RAKESH @ RAJU & ORS Vs. STATE

JUDGEMENT

(1.) Crl.M.B.2052/2017

(2.) I have heard the learned counsel for the parties and have examined the file. Learned Senior counsel for the appellants urged that the impugned judgment based upon dying declaration of the deceased cannot be sustained particularly when the trial court did not believe the testimonies of PW-1 (Azad Rathi) and PW-4 (Sunny). The said eyewitnesses were not present at the spot at the time of incident. The victim was not fit to make any statement. So-called statement recorded by PW-24 (ASI Phool Kumar) cannot be believed as it was not certified by the concerned doctor. PW-3 (Arjun), another injured in the incident has not supported the prosecution. So is the testimonies of PW-5 (Rajnish) and PW-6 (Ashok Kumar); they have also not supported the prosecution case. No independent public witness was associated at any stage of investigation. The appellants have remained in custody for sufficient duration. Learned Additional Public Prosecutor has opposed the grant of suspension as allegations proved against the appellants are serious.

(3.) Undisputedly, the appellants were charged for commission of offences punishable under Section 147; 148 read with Section 149 IPC; 302 read with Section 149 IPC and 323 read with Section 149 IPC. Krishan (A-4) was further charged for commission of offence punishable under Section 27 Arms Act. In order to establish its case, the prosecution examined 27 witnesses in all. PW-1 (Azad Rathi) and PW-4 (Sunny) claimed themselves to be present at the spot at the time of incident. Their testimonies, however, were not believed by the court below and it was observed that their presence at the spot was doubtful. The trial court, however, came to the conclusion that ASI Gurcharan had lodged the FIR after recording the statement of the victim on 26.12.2016. The contents of the victim's statement were taken as dying declaration as the victim Sachin expired on 08.01.2017.