SALEEM @ BANIYA Vs. STATE

JUDGEMENT

(1.) VIDE judgment dated September 29, 1999 the appellant has been convicted for offence punishable under Section 302 IPC and 27 Arms Act. The order on sentence dated September 30, 1999 directs appellant to undergo life imprisonment and to pay a fine of Rs.5,000/ - for the offence under Section 302 IPC and rigorous imprisonment for a period of two years and a fine of Rs.1,000/ - for the offence under Section 27 Arms Act. During the pendency of the present appeal, the sentence of the appellant was suspended however, he failed to appear at the time of the hearing and thus non -bailable warrants were issued. The appellant is now in custody since May 4, 2014.

(2.) LEARNED counsel for the appellant assailing the judgment contends that the prosecution has failed to prove the motive, the witness from whose house knife was allegedly recovered was not made a witness to the recovery memo Ex. PW -12/D, PW -11 who deposed that she saw the appellant throwing a knife did not know the appellant prior to the investigation and thus the prosecution ought to have got conducted the test identification parade. Further no test identification parade of the knife allegedly recovered was got conducted. No blood stained clothes of the appellant were recovered nor was any finger print found on the alleged knife. There are material improvements and contradictions in the statement of the witnesses including the Investigating Officer. PW -4 has contradicted his version. Though it is the case of the prosecution that shops were open at the time of alleged incident no shopkeeper has been examined as a witness. Despite number of shops and hotels being near the place of alleged incident, only PW -4 could hear the hue and cry of the deceased. It is stated that HC Subhash took the deceased to the hospital but he has not been examined in the court. There is contradiction in the statement of PW -10 from his version in the FIR and the deposition before the court. In the site plan, the house of PW -4 has not been shown and the same shows only shops and vacant plots. The prosecution having not proved its case beyond reasonable doubt, the appellant be acquitted of the charges.

(3.) WE have heard learned counsel for the parties and perused the record. The prosecution case unfolds on the statement of PW -10 Ram Dass, father of the deceased who got his statement Ex.PW -10/B recorded, on the basis of which FIR No.249/1998 under Section 302 IPC was registered at PS Gokalpuri. Ram Dass in his testimony deposed that on April 18, 1998 at about 10/11 a.m. he was going alone to purchase some goods from Gali No.3, Shri Ram Colony. While he was standing at the shop he heard a noise 'Ramu ko maar diya, Ramu ko maar diya '. Ramu @ Yash Pal was his son. He saw Ramu running at the Bada Chowk near the place where he was standing at a distance of 18 -19 paces from him. Ramu had already received a stab injury. He also saw the appellant running after Ramu towards Bada Chowk. His other son Mahender also reached near Bada Chowk and told him 'Papa, Yash Pal ko Maar Diya '. He also saw blood on the hands of his son Mahender. Due to stab injury already received by Yash Pal he fell down at Bada Chowk. When Yash Pal fell down at Bada Chowk, he saw Salim stabbing Yash Pal. His son had died on the spot when the police reached at the spot. Thereafter police took his son along with him to the hospital. Doctor declared him brought dead. He further deposed about the recovery of the blood stained knife from the house of one Peter. He also deposed that the site plan was prepared at his instance.