MANOJ KUMAR Vs. STATE

JUDGEMENT

(1.) By this appeal the Appellants lay a challenge to the judgment dated 23 rd May, 2000 convicting them for offences punishable under Section 394/34 IPC and the order on sentence dated 24 th May, 2000 directing them to undergo Rigorous Imprisonment for a period of four years and a fine of Rs. 2,000/- each and in default of payment of fine to undergo Simple Imprisonment for two months. Besides Appellant No.2 Ashok has been convicted and sentenced for offence under Section 398 IPC as well and directed to undergo Rigorous Imprisonment for a period of 7 years and fine of Rs. 4,000/- and in default of payment of fine Simple Imprisonment for four months.

(2.) Learned counsel for the Petitioner contends that the complainant knew the Appellants very well. Despite knowing the Appellants she did not name them in the FIR. The identity of the Appellants was deliberately concealed and in the FIR it was stated that unidentified assailants came to the house. Admittedly, the Appellants and the complainant are neighbours. In the cross-examination PW2 the complainant has admitted that the distance between their houses is 10 paces and that the complainant had got the work of electricity done in May/June 1998 from the Appellant No.2. The Appellants who are brothers and one more accused Subhash who was their friend were falsely implicated in this matter at the instance of the complainant as the Appellants were demanding the money due from the complainant for the electricity work done by them which the complainant was not paying. The learned Trial Court has not considered the explanation rendered by the Appellants in their statements under Section 313 Cr.P.C. Further, no conviction can be based on the solitary testimony of PW2, the complainant Santra Devi as the same is not reliable. Her children who were sleeping with her and other eye-witnesses were deliberately not examined by the prosecution. No robbery has been proved. The Appellants have not been apprehended at the spot, however it is shown that they were apprehended on the next date on a secret information. Allegedly a toy pistol was recovered, however there is no allegation in the entire deposition of PW2 that any pistol was shown.

(3.) It is further contended that the testimony of PW2 is full of contradictions. In the site plan the place of incident is mentioned as the third floor of the house. PW2 in her examination-in-chief states that the incident took place at the first floor whereas in the cross-examination it is stated to have taken place on the second floor. The injury received on the complainant is superficial in nature and no opinion has been given by the doctor that the injury could be caused by a knife like instrument. In the MLC it is stated that she was attacked by an instrument and not by a knife. Since the complainant admittedly knew the Appellants, the refusal of TIP cannot be taken as adverse. Reliance is placed on Murari Vs. State,2011 2 DLT 609. Further there is no evidence that the complainant withheld the names of Appellants in the FIR because she was under fear. A serious adverse inference needs to be taken against the prosecution case. Reliance is placed on K. Ashokan & Five Ors. Vs. State of Kerala, 1998 2 JCC 170.