STATE OF HIMACHAL PRADESH Vs. SANJEEV KUMAR

JUDGEMENT

(1.) BOTH these appeals are being disposed of by a common judgment as same question of law and fact are involved.

(2.) THE State and the accused preferred these appeals against the judgment of the learned Additional Sessions Judge-II, Kangra at Dharamshala convicting the accused for the offence under Section 395 of the Indian Penal Code (hereinafter referred to as IPC).

(3.) PW-3, Bir Sahib, who was declared hostile says that he was the driver of Maruti Van No. PN-10B-0663 which he was driving in Dharmshala. He further says that about 7 years ago, since the incident he was going to the house of the owner of the vehicle around 4-5 P.M. 3-4 boys stopped his taxi and told him that they wanted to travel to Gharoh. These boys boarded the taxi along with a `khan' who was carrying some clothes for sale from house to house. He does not remember the kind of the clothes he was carrying. On the way, these people asked this `khan' to get down. He did not see any knives with them as he was driving the vehicle. Out of these boys/people, one slapped this witness and threatened him. At Gharoh he stopped the taxi and raised an alarm whereon some boys who were playing there, chased and apprehended two boys/persons and the others succeeded in escaping. He does not recognize any one of the persons who were sitting in his taxi. He does not know their names. He only recognized two persons who have been apprehended by the boys. He then states that accused present in Court are not those persons. The evidence of this witness is of importance. In cross-examination by the defendant he says that:-