MANOJ Vs. STATE

JUDGEMENT

(1.) By this appeal the Appellants lay a challenge to the judgment dated 28th October, 2010 convicting them for offences punishable under Sections 308/34 IPC and order on sentence dated 10th November, 2010 awarding them Rigorous Imprisonment for a period of three years and a fine of 4000/- each and in default of payment of fine, to further undergo Rigorous Imprisonment for two months.

(2.) Briefly, the prosecution case is that the Appellants in furtherance of their common intention assaulted Tirath PW4 by means of a danda blow on his head when the PW4 demanded his full amount for the meat and bread they took from his 'Rehri'.

(3.) Learned Counsel for the Appellant contends that there is no evidence against the Appellants as all the witnesses have turned hostile. The learned trial court has convicted the Appellants relying on the statement of the witnesses in examination-in-chief only and has not looked at the cross-examination. PW3 Tejpal, the Complainant and allegedly an eye-witness, though in his examination-in-chief has stated that Appellant Manoj gave a danda blow on the head of Tirath when Parveen caught hold of his hands, however, in cross-examination he has stated that he did not see the accused persons. Similarly, PW8 has stated that he saw Tirath lying in an injured condition on the ground and took him to the Trauma Centre in a 'Vikram' with the help of one Sushil. He has categorically stated that no incident has taken place in his presence. PW4 Tirath, the injured though in his examination-in-chief has stated that Appellant Parveen caught hold of the hands of PW4 and Manoj gave danda blow on his head on which he fell down and got unconscious, has not supported the prosecution case in cross-examination. Thus, there is no evidence on record to implicate the Appellants for offence under Section 308 IPC. Moreover PW4 has stated that the Appellants were in drunken condition and thus, the Appellants could not have formed the intention to commit the said offence. The learned trial court has convicted the Appellants in view of the fact that the Appellants got recovered the weapon of offence pursuant to their disclosure under Section 27 of the Act. However, the prosecution has failed to connect the danda with the injuries on the injured and thus the said recovery cannot be used against the Appellant.