UMESH KUMAR Vs. STATE

JUDGEMENT

(1.) By the present appeal the Appellant lays a challenge to the judgment dated 21st February, 2003 whereby he has been convicted for offences punishable under Sections 451 and 393 IPC read with Section 34 IPC and the order on sentence dated 21st February, 2003 whereby he has been directed to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs. 1,000/- under Section 393 IPC and Rigorous Imprisonment for a period of one year under Section 451 IPC. The Appellant was also directed to pay Rs. 5,000/- each as compensation to PW3 and PW5 by way of pay order or bank draft in their name and in default of the same the Appellant was directed to undergo Simple Imprisonment for a period of three months.

(2.) Learned counsel for the Appellant contends that on the same set of evidence, the co-accused Shanti Ranjan, who was also charged with offences under Section 398 IPC and 27 Arms Act has been acquitted, however the Appellant has been convicted. Learned Trial Court failed to appreciate that the prosecution story was not supported by the witnesses. The prosecution witnesses contradicted each other. The identification in Court for the first time was discarded in the case of Shanti Ranjan. However, the same was accepted in the case of the Appellant. PW5 failed to identify the Appellant and PW3 though identified stated that he did not know that the Appellant was apprehended at the spot. The knowledge of PW3 qua identification is based on hearsay evidence and thus not admissible in evidence. The version of the Investigating Officer is not supported by PW3 inasmuch as he refutes the recovery of knife from the possession of the co-accused in his presence.

(3.) Learned APP for the State on the other hand contends that PW3, the injured witness categorically identified the Appellant and the co-accused.