BAHADUR SINGH AND ORS. Vs. STATE

JUDGEMENT

(1.) By these appeals, the Appellants impugn the judgment dated 4th March, 2011 whereby they have been convicted for offences punishable under Section 394/34 IPC, 457/34 IPC and 411 IPC and in addition Appellants Mohsin and Bahadur were also convicted for offence punishable under Section 397 IPC. As per the order on sentence dated 11th March, 2011 Appellant Mohd. Shahid was directed to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 20,000/- for offence under Section 394 IPC and in default of payment of fine to further undergo rigorous imprisonment for a period of one year, rigorous imprisonment of five years and a fine of Rs. 10,000/- for offence punishable under Section 457 IPC and in default of payment of fine to further undergo rigorous imprisonment for a period of six months and rigorous imprisonment for a period of two years and a fine of Rs. 5000/- for offence punishable under Section 411 IPC and in default of payment of fine to further undergo rigorous imprisonment for three years. Appellants Mohsin and Bahadur were in addition to the above, directed to undergo sentence of rigorous imprisonment for a period of 7 years under Section 397 IPC.

(2.) Learned counsel for the Appellant Mohd. Shahid contends that the Appellant was not identified by the complainant. The identification by the son of the complainant was meaningless as he was the planted witness. There are material contradictions in the testimonies of PW1 and PW4. No public witness was associated at the time of alleged recovery of a ring and Rs. 300/- from his house. Ring was not identified in the TIP proceedings. PW1 was doing the business of artificial jewellery and thus the same could have been easily planted. Further PW8, the finger print expert has given a specific report that the finger prints lifted did not match with the finger prints of the Appellants. Further though PW1 states that there were two servants working on the upper floor, however despite cries only one servant Mukesh came down and no other person comes down. The version of PW3 cast a doubt on the version of PW1 as to the alleged entry of the Appellants. Further PW3 does not say that he was beaten. Moreover, PW3 does not identify the Appellant Mohd. Shahid in the Test Identification Parade but strangely identifies him in the Court. PW4 Madhup states that leg blows were given to Mukesh. Thus, all the three witnesses have given different version of assault on Mukesh. Further this witness PW4 does not know as to whom he identified in TIP on 18th January, 2007. As per the report of the chance prints, the chance prints do not match with either of the three Appellants or the inmates of the house. Further only two bangles and one ring were recovered from the Appellants and thus there is no complete recovery of the goods.

(3.) Learned counsel for the Appellant Bahadur reiterating the submissions of the learned counsel for the Appellant Mohd. Shahid states that co-accused Firoz and Rehan have been acquitted, though there was recovery of currency notes from them and thus the Appellant is also entitled to the benefit of doubt. Further the identification of PW1 cannot be given any weightage as he did not identify any of the Appellants in the TIP and only identified Bahadur and Mohsin in the Court. Further PW4 only identified Mohd. Shahid and thus for lack of corroboration of identification the Appellant is entitled to be acquitted.