MANOJ TOMAR @ LALA Vs. STATE

JUDGEMENT

(1.) BY this appeal the Appellant lays challenge to the judgment dated 10th September, 2001 convicting the Appellant for offences under Sections 392/394/34 IPC and order on sentence dated 17th September, 2001 directing him to undergo Rigorous Imprisonment for a period of four years for each offence punishable under Sections 392/34 IPC and 394/34 IPC.

(2.) LEARNED Counsel for the Petitioner contends that complainant/PW1 Jai Singh the star witness of the prosecution case in his first statement has leveled no allegation of robbery. The only allegation leveled is that the accused put his hand in the pocket of the complainant and when he caught hold the hand, the accused and co -accused pulled him down from the bus and the co -accused stabbed him with knife. PW1 did not know the Appellant before the incident. However, strangely on the next day of the incident, he comes to the police station and states that the accused is standing at a particular place and he be arrested. PW1 has not fully supported the case of the prosecution in the Court. Thus he was cross -examined by the learned APP. In the cross -examination, learned APP put leading questions to him. A suggestion was given by the prosecution that he failed to identify the Appellant as he was won over which he denied. Thus, there is no identification of the Appellant by the alleged injured witness. Despite this, the learned Trial Court erroneously held that the Appellant was sufficiently identified. The MLC has not been exhibited by the Record Clerk. Further PW1 states that he fell unconscious at the place of the incident and regained consciousness after three hours. The MLC immediately after 45 minutes of the incident records that PW1 was conscious and oriented. As per the MLC, there was no evidence of active blood leak. An adverse inference should be drawn against the prosecution for not examining the doctor as this opinion could only have been proved by the doctor after appearing in the witness box in terms of Section 114(g) of Indian Evidence Act. No TIP was conduced. Further there are contradictions in the testimonies of PW5 and PW6 with regard to the manner of arrest of the Appellant.

(3.) I have heard Learned Counsel for the parties.