RAJESH Vs. STATE

JUDGEMENT

(1.) By the present appeal the appellant challenges the judgement dated April 28, 1998 convicting him for offence under Sections 302/34 IPC and the order on sentence dated April 29, 1998 directing him to undergo imprisonment for life and to pay a fine of Rs. 5,000/-.

(2.) Two more were convicted with the appellant however, during the pendency of their appeal they took the plea of juvenility and on the basis thereof, Crl.A.No.286/1998 filed by them stands disposed of.

(3.) Learned counsel for the appellant contends that the presence of PW-1 at the time of alleged incident is doubtful. There are contradictions in the testimonies of PW-1 and PW-2 in regard to injury and other aspects. PW-2 is a relation and hence cannot be believed. No blood stained clothes of PW 2 have been seized to prove that he witnessed the incident. PW-2 gave the statement to the police only at the hospital when he came to the mortuary after hearing the death of his nephew, as he had accompanied PW-4, the father of the deceased. The alleged recovery of weapon of offence was from a public place and hence cannot be attributed to the appellant. The recovery has been planted on the appellant as it was not made on the date of arrest of the appellant. Admittedly the knife was not in a working position and had no finger prints of the appellant or any blood. No public witness was joined with the alleged recovery. PW-5 Bir Singh has turned hostile. There are major contradictions in the statements of the witnesses of the crime team regarding the place of occurrence. PW-1 the complainant has also not supported the prosecution case. Thus the appellant be acquitted. In the alternative, since it was not a premeditated fight, the conviction of the appellant be altered to one under Section 304 IPC.