ASHOK KUMAR Vs. STATE

JUDGEMENT

(1.) By the present Appeals a challenge is laid to the judgment of conviction passed by the Addl. Sessions Judge convicting the Appellants for offences punishable under Sections 304/34 IPC and sentence of Rigorous Imprisonment for a period of five years.

(2.) The case of the prosecution in nutshell is that on 16th August, 1990 two persons namely Ramesh and Ashok who were drivers of two different trucks bearing no. DIG 6572 and HR-13-0376 respectively, reached near check-post at Badarpur and parked their respective trucks near the check post. At about 8 a.m. they ordered tea to one Malkhan Singh who used to run a kiosk near the check post. Malkhan Singh prepared the tea and supplied to them. However, both of them did not like the tea and subsequently there was exchange of heated arguments between the Appellants and Malkhan Singh. On this, Ramesh caught hold of both his hands and Ashok pressed his throat with his hands and he died on the spot. Malkhan Singh was taken to Holy Family Hospital, where he was declared brought dead. Both the accused persons were apprehended on the spot by Constable Jasbir Singh PW2 and other persons. On the statement of one Kaptan Singh Ex.PW16/1, FIR No. 240/90 Ex.PW13/1 under Section 304/34 IPC was registered at P.S. Badarpur. On completion of investigation, charge-sheet was filed. After recording of prosecution evidence and statement of the Appellants under Section 313 Cr. P.C., both the accused were convicted as above.

(3.) Learned counsel for the Appellants contends that out of 16 prosecution witnesses examined PW1 Asha Devi, PW2 Constable Jasbir Singh, PW3 Kalyan Singh and PW10 Mahesh claim to be eye-witnesses of the incident. Out of the four alleged eye-witnesses, the presence of PW1 Asha Devi and PW10 Mahesh who claim to be present on the spot at the time occurrence, has been held to be doubtful by the Ld. Trial Court and their testimonies have been excluded as there are material contradictions and inconsistencies in the same. Presence of PW1 Asha Devi is doubtful as PW2 Const. Jasbir Singh has deposed that when he along with Kaptan Singh reached at the spot where Malkhan Singh was lying unconscious, Asha Devi came later on i.e. after about 5-10 minutes and public persons separated Malkhan Singh from accused persons. However, PW1 Asha Devi deposed that no one else was present at the time of occurrence except PW2 Constable Jasbir and PW10 Mahesh. As per the testimony of PW3 Kalyan Singh who was working in the Melrose Bread Company (factory) near the tea stall of Malkhan Singh, when he reached at the spot PW1 Asha Devi was present there. PW1 Asha Devi in her testimony had stated that when Malkhan Singh was in the clutches of accused persons, she got Malkhan Singh released from them and she took him to the Holy Family Hospital. Learned counsel contends that it seems highly improbable that PW1 took the truck to the hospital. On being recalled for cross-examination PW1 Asha Devi contradicted her own statement by deposing that she along with PW10 Mahesh took the deceased to the hospital and that it was incorrect to suggest that accused Ashok had throttled the deceased. On the contrary, PW10 Mahesh, brother of the deceased in his statement states that many persons got Malkhan Singh released and he along with PW3 Kaptan Singh and PW1 Asha Devi took Malkhan Singh to the Holy Family Hospital. PW10 Mahesh, brother of deceased in his cross-examination has deposed that when he reached at the place of occurrence Asha Devi was not present there and he called Asha Devi from her hotel. Mahesh PW10, who is the brother of the deceased in his statement, has nowhere stated that he got Malkhan Singh released from the clutches of the accused and this conduct of PW10 is highly unnatural being brother of the deceased, and thus it shows that he was not present at the time of incident. Further Kaptan Singh, uncle of the deceased, on whose statement FIR was registered, died during the course of trial, hence his statement could not be recorded. Thus, the prosecution has failed to prove the fact as to who got released Malkhan Singh from the clutches of accused persons and thus presence of the PW1 and PW10 is highly doubtful as there are material improvements and inconsistencies in their statements.