AKASH Vs. STATE

JUDGEMENT

(1.) The Appeal under Sec. 374(2) of the Code of Criminal Procedure, 1973 ('Cr.PC' hereinafter) has been filed on behalf of the Appellant against the Judgment dtd. 22/8/2008 and Order on Sentence dtd. 26/8/2008 arising out of FIR No. 159/2003 u/s 307/394/397/34 of the Indian Penal Code, 1860 ('IPC" hereinafter) sentencing the Appellant to 07 Years of Rigorous Imprisonment under Sec. 397/34 of IPC and fine of Rs.5,000.00in default Simple Imprisonment for 01 year.

(2.) The Appellant has assailed his conviction on the ground that there is no quality evidence led by the prosecution support of its case. The story is that the prosecution case rests essentially on the disclosure statement, which is not admissible in evidence. Though, the prosecution has claimed that the Appellant was apprehended from the public park on secret information, but no independent witness had been joined by the Investigating Officer, at the time of his arrest despite several persons having gathered on the spot. There are material contradictions in the testimony of the witnesses especially the Complainant PW-2, Mr. Bahadur and the injured PW-1, Mr. Rajesh. PW-1 pertinently was declared hostile by the prosecution as he resiled from his previous statement. He admitted in his cross-examination that he could not tell the correct place of alleged incident as to whether he took place in Block No. 1 or Block No. 2 of Khichripur. Furthermore, he admitted that there was no light at the place of alleged incident, which shows that he had not seen the accused persons. He also admitted that the police had arrived at the spot after about 45 minutes and took him to the hospital. However, in his examination-in-chief, he had deposed that he became unconscious after injuries were inflicted on his person by the accused persons and he met the Police in GTB Hospital from where he shifted to LBS Hospital. There are material contradictions in the testimony of PW-1, Mr. Rajesh and certain pertinent admissions were made, which have been overlooked.

(3.) It is further claimed in the grounds of Appeal that PW-2, Mr. Bahadur admitted that he was the person, who first lifted the injured with his both hands and his clothes got stained with blood but surprisingly, the Police did not seize his blood stained clothes, in order to establish his credibility as an eye witness. He, in his testimony, deposed that the injured was put in the van by the policeman, while the injured PW-1, Mr. Rajesh in his testimony stated that he met the police in the hospital. Furthermore, PW-2, Mr. Bahadur admitted that the police had taken his signatures on the documents in the Police Station on the next day of incident at about 2:00 P.M. Also, at that time, his employer had accompanied him but surprisingly the Police did not record the statement of the employer, which creates a serious doubt about the prosecution story.