TOTA RAM @ BONI Vs. STATE

JUDGEMENT

(1.) Tota Ram @ Boni (A-1), Ramesh Kumar (A-2), Ravinder Singh (A-3) and Ashwani Kumar @ Ashu were arrested by the police of Police Station Sarai Rohilla and were challaned to the Court for trial for committing offence punishable under Sections 393/394/397/34 IPC. In nutshell the prosecution case is under:-

(2.) Daily Diary (DD) No.63B (Ex.6/P) was recorded at Police Station Sarai Rohilla on 28.09.1996 at 11:40 P.M. on getting information from Constable Pavinder Singh (PW-3) that Manoj Kumar had admitted Deepak in injured condition at Hindu Rao Hospital. The investigation was assigned to Head Constable Suraj Bhan who with Constable Pavinder Singh went to the hospital. In his statement, injured Deepak disclosed that when he was coming back to his house at 10:30 P.M. after taking juice, at the corner of his house in Gali No.3, 3/4 boys were present. A-1, who was known to him, asked him to stop and inquired from him as to how much money he had. He replied in the negative. On that A-1 put his hand in his pocket and grappled with him. A-1 inflicted injury on his back with some sharp object. His three associates who were present there also caught hold of him. The incident was witnessed by Manoj Kumar. The assailants fled the spot. During the course of investigation A-1, A-2, A-3 and Ashwani Kumar were arrested and their disclosure statements were recorded. The IO recorded the statements of the witnesses conversant with facts and after completion of investigation submitted a charge-sheet against them in the court. They were duly charged and brought to trial. The prosecution examined seven witnesses. In their 313 statements, the accused pleaded false implication. On appreciating the evidence and considering the rival contentions of the parties, the Trial Court by the impugned judgment convicted A-1 to A-3 and acquitted Ashwani Kumar. Being aggrieved, the appellants have preferred the appeals.

(3.) I have heard the learned Additional Public Prosecutor and the learned counsel for the appellants and have examined the record. On scrutinizing the testimony of witnesses it reveals that there are vital discrepancies and contradictions. The conviction is based upon the sole testimony of the complainant. PW-1 (Deepak) in his statement (Ex.PW- 1/A) categorically mentioned that the incident was witnessed by his friend Manoj Kumar who admitted him in the hospital. However, Manoj Kumar was not examined. No explanation has been offered by the prosecution for withholding material witness Manoj Kumar. PW-1 (Deepak) gave a contradictory version in his testimony and stated that his friend Manoj Kumar came at the spot after he fell down due to injuries and admitted him in the hospital. He did not claim that the incident was seen by Manoj Kumar. The prosecution failed to reconcile the two version.