High Court · 2012

In the course of trial, the prosecution side has examined as many as 12 8. witnesses including the Medical Officer and Investigating Officer. The Head Assi stant in the office of Chief Judicial Magistrate, Lakhimpur was examined as cour t witness. Learned trial Court also recorded the statement of the accused-person s under the provisions of Section 313 Cr.P.C. Accused pleaded total denial to th e charges brought against them. However, on being required, they declined to add uce any evidence.

9. On conclusion of trial and after hearing the parties, the trial Court ac quitted all the accused persons save and except Sri Bulu Thangal and Sri Thanu K rishna Thangal whom he convicted U/s. 395/397 IPC and sentenced them to punishme nt as aforesaid. It is that judgment which has been assailed in this appeal.

10. Opening up argument on behalf of the appellants, their learned counsel h as submitted that judgment of the trial court suffers from several infirmities o f extremely serious nature. However, the learned trial court ignored all those i nfirmities with serious consequences and came to the conclusion that prosecution has successfully proved the charges brought against the accused persons. In that connection, it has been pointed out:-

11. (a) That night in question was dark one and PW5 claimed to have identified the m iscreants in the light of torch which he carried at the time of incident. But th is important information was not recorded in the FIR which was lodged on the nex t day of alleged incident. This undoubtedly casts a serious doubt about the auth enticity of entire prosecution case. (b) The instrument which was used in recognizing the miscreants on the night in question assumes tremendous importance in the facts and circumstances of the cas e under consideration. Such a vital instrument was not seized by police, and tha t too, without assigning any reason for its inability to seize such vital instru ment. (c) The learned Sessions Judge who placed enormous reliance on the conf essional statement fails to take notice of the fact that no reliance can be plac ed on the same for several serious reasons, prominent of them being a) the accus ed was not given sufficient time to have reflection on the warnings rendered to him before his recording confession and b) the signature of the accused was not obtained on the confessional statement as required under the law. (d). The prosecution case is principally rested on the solitary testimony of PW 5 but his evidence is unreliable for reasons more than one. Despite the soli tary evidence of PW 5 being unreliable, learned trial court instead of rejecting such evidence, acted on it in convicting the accused /appellants of the offence s aforesaid. (e). The evidence of witnesses on which prosecution has placed enormo us reliance are all interested, related and partisan witnesses and as such, no r eliance on their evidence could have been placed by the learned trial court. How ever, learned trial court instead of rejecting such evidence, chose to act on it in convicting and punishing the accused persons as aforesaid. (f). One of the accused namely Shri Thanu Krishna Thengal is a person havin g 40% disability which clearly demonstrates that under no circumstances , such a n accused could participate in the crime under consideration. This important mat ter was not taken in the consideration by the learned Sessions Judge while convi cting and sentencing them to punishment as aforesaid. In order to substantiate its argument, on the counts aforesaid, the lear 12. ned counsel for the accused/appellants has referred me to the decisions reported