(1.) Vide impugned judgment dated 1st December, 2015, the appellants Deepak and Karan were convicted for the offences punishable under Sections 392/411/34 IPC and Karan was also convicted for the offence punishable under Section 397 IPC. Vide order on sentence dated 5th December, 2015 Deepak and Karan were directed to undergo rigorous imprisonment for a period of seven years each and to pay a fine of Rs. 3,000/- each for the offence punishable under Section 392/34 IPC and in default of payment of fine, to undergo further simple imprisonment for a period of one month each; rigorous imprisonment for a period of two years each and to pay a fine of Rs. 1,000/- each for the offence punishable under Section 411 IPC and in default of payment of fine, to undergo further simple imprisonment for a period of one month each. Karan was also sentenced to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs. 3,000/- for the offence punishable under Section 397 IPC and in default of payment of fine, to undergo further simple imprisonment for a period of one month.
(2.) Learned counsel for the Deepak submits that as per Rakesh Singh (PW-1) the mobile phone and cash of Rs. 900/- were recovered from the possession of the appellants at the police station. However, as per the testimony of Ct Rajbir (PW-4) the search of the appellants was done by the complainant on the asking of SI Ajit Singh and the complainant handed over the recovered items to SI Ajit Singh. Furthermore, there is discrepancy in the testimony of Rakesh Singh with respect to the fact whether the PCR van came first on the spot or police officials came on the motorcycle. During the examination-in-chief of Rakesh Singh, he stated that he had noticed one PCR Van and one police bike coming. However, during his crossexamination, he stated that when he raised noise, two patrolling officials came on motorcycle and PCR van came at spot after five minutes. No independent witness has been examined even though they were available and the same is reflected from the testimony of Rakesh Singh who stated in his cross-examination that two labourers who were sleeping in a nearby tea kiosk woke up and came there. There is discrepancy in the place of personal search of the appellants. Rakesh Singh in his statement did not state that the personal search of the accused was conducted in his presence. No bill or receipt of the mobile phone of make Nokia was produced by Rakesh Singh. Mukesh, from whom Rakesh Singh had purchased the mobile phone, was also not examined as a witness. It is further urged that recoveries were planted on the appellants because of animosity with beat police. No log book either of the police gypsy or the police bike has been produced or proved on record.
(3.) Learned counsel for Karan, in addition to the aforementioned arguments, states that as per the case of prosecution ustara was recovered from the personal search of Karan, however, recovery memo does not mention about it. Furthermore, the Court had observed that the ustara was sealed with the seal of 'VS' whereas SI Ajit (PW-7) stated that it was sealed with the seal of 'AS'. Even the seizure memo notes that ustara was sealed with the seal of 'AS'.