ROHIT @ GOLU Vs. STATE

JUDGEMENT

(1.) By the present appeal, Rohit @ Golu challenges the impugned judgment dated 6th August 2016 convicting him for the offences punishable under Sections 307/34 IPC in FIR No. 333/2012 registered at PS New Usmanpur and the order on sentence dated 17th August 2016 directing him to undergo rigorous imprisonment for a period of seven years and to pay a fine of 25,000/- and in default whereof to undergo simple imprisonment for a period of six months for the offence punishable under Section 307/34 IPC.

(2.) Assailing the conviction, learned counsel for the appellant contends that the identity of the appellant is not established. As per the version of the injured Rahul it was a sudden and momentary act under the state of intoxication. Reliance is placed upon the decision of the Delhi High Court reported as 2010 SCC OnLine Del 2761 Jamalu & Ors. v. State of Delhi. He further contends that the MLC of the injured is not duly proved as the doctor deposed that he gave his opinion based on surgical records only and that Rahul was not present at that time. Reliance is also placed upon the decision of the Gauhati High Court reported as 1983 SCC OnLine Gau 48 Bhanda Garh v. State of Assam. Deepak and Gyaneshwar in their testimonies deposed that they knew the appellant, whereas in their cross-examination they have stated that they did not know the appellant prior to the incident. Gyaneshwar stated that he got to know about the appellant from the people present at the spot whereas Deepak stated that he got to know about him on the next day from someone else. Rahul stated that he knew the name of the accused as Guddu but later in the hospital he was informed by his friend Gyaneshwar that his real name was Golu, however in his cross-examination he stated that he did not know the accused persons prior to the incident. This creates a doubt regarding the identity of the appellant. Neither Deepak and Gyaneshwar were declared hostile nor they were called for re-examination. Therefore, the version of cross-examination is to be accepted in the present case as per which the identity of the appellant is doubtful. Reliance is placed upon the decision of the Supreme Court of India reported as (2005) 5 SCC 258 Mukhtiar Ahmed Ansari. v. State. He further submits that the appellant was arrested almost three months after the incident at the instance of Rahul. He further points out that the statement of defence witness that is father of the accused wherein he stated that the police officials of PS Usmanpur have falsely implicated the appellant in the present case due to enmity as he had made many complaints against police officials of PS Usmanpur regarding the organized crime in the area has not been considered by the learned Trial Court. Statement of the defence witness was erroneously rejected on the ground that a certificate under Section 65B of the Evidence Act was not filed in support of the e-mails relating to the complaint. Reliance is also placed upon the decision of the Supreme Court of India reported as (2002) 1 SCC 351 Munshi Prasad and others. v. State of Bihar wherein it was held that the defence witnesses are entitled to same credibility as that of prosecution witness.

(3.) Per contra, learned APP for the State submits that the testimony of the complainant Rahul is corroborated with the testimony of the eyewitnesses, that is, Gyaneshwar and Deepak. She further contends that since the appellant was arrested at the instance of the complainant Rahul, no further identification parade was required nor can the identity of the accused disputed.