RAJ KUMAR BHARMORIA Vs. STATE OF HIMACHAL PRADESH

JUDGEMENT

(1.) The appellant challenges his conviction for offences under Section 394 of the Indian Penal Code (hereinafter referred to as 'IPC'). He has been sentenced to undergo rigorous imprisonment for a period of six years and a fine of Rs. one lac. The prosecution case in brief is that on 10.11.2006 at 1.20 A.M. complainant PW-1 Devender Kumar went to Police Station, Sadar, Mandi, and lodged a report stating that he was working as a taxi driver at Manali of vehicle No. HP-01K-0624 owned by PW-2 Manoj Kumar. On 9.11.2006 at around 7.30 P.M. in the evening three persons, who had hired the taxi, boarded it in Manali. Out of them, one was limping and was known as Bharmoria. The second one was of moderate built and was wearing a black jacket and the third was a lean and thin person. All of them had hired his taxi from Manali to travel to Dharamshala. When they boarded the taxi they were conversing in 'Kangri' dialect. When at about 10.45/11.00 P.M. this taxi reached at Mehar near Drang, all of them asked the complainant to stop the taxi on the pretext that they wanted to urinate. When they returned, two of them occupied the rear seat and the third one stood near the front window of the taxi. When the complainant set on the driving seat, the persons who were sitting on the rear seat clamped his neck with an iron wire and tried to pull him back with the intent of throttling him. When the complainant resisted the third person, who was standing outside the taxi, struck him with a stone injuring the complainant. During this period, a scooter was spotted by the complainant proceeding towards the spot where the taxi was parked. The accused became puzzled/frightened and during this period, the complainant jumped from the taxi to save his life whereupon the accused fled with the taxi towards Jogindernagar.

(2.) The complainant stated that on the day the taxi was hired, two of these persons had come on a motorcycle and had parked it in front of Victoria Palace Hotel, Manali. First Information Report, dated 10.11.2006, Ex. PW-1/A, was recorded on the statement made by the complainant PW-1.

(3.) To prove its case, the prosecution examined 14 witnesses. On the evidence recorded, the learned trial Court convicted the accused while acquitting two others on the ground that the names of the other accused Naveen Kumar and Sanjeev Kumar have not been mentioned in the FIR nor any test identification parade has been conducted. The learned Court then holds that there was no occasion for the prosecution witnesses to recollect their identity, as Manali, according to learned Judge, is a tourist place where number of persons visit regularly. The testimony of the complainant Devender Kumar so far as it relates to these two accused was discarded by the learned Court holding that it does not inspire confidence as he has made a number of improvements while appearing as a witness which improvements are inconsistent with the statement made by this witness and an afterthought.