RAJENDRA SINGH S/O JAGAT SINGH Vs. STATE OF UTTARANCHAL
LAWS(UTN)-2013-3-130
HIGH COURT OF UTTARAKHAND
Decided on March 08,2013

Rajendra Singh S/O Jagat Singh Appellant
VERSUS
STATE OF UTTARANCHAL Respondents

JUDGEMENT

- (1.) Present appeal has been preferred by the accused-appellant against the judgment and order dated 29.03.2001, passed by Sessions Judge, Pithoragarh, in Sessions Trial No. 40 of 1997, thereby, convicting and sentencing, the appellant for an offence punishable under Section 304 IPC and directing him to serve 10 years rigorous imprisonment,
(2.) As per the prosecution story, Karbeer Damai came to the shop of Gopal Singh in the evening of 18.05.1997, to purchase Jalebi. Meanwhile, accused-appellant came in drunken state and started fighting with Gopal Singh on some issue. Accused-appellant tried to hit Gopal Singh with Jhajar (a tool to prepare Jalebi), however, Gopal Singh took shelter of Karbeer Damai and suddenly accused-appellant attacked with knife on Gopal Singh, however, he missed Gopal Singh and knife hit on Karbeer Damai, which resulted into death of Karbeer Damai. Incident was reported to have been witnessed by Gopal Singh as well as by Birbhan Damai. Birbhan Damai was never produced before the trial Court as witness and reason thereof was shown that Birbhan Damai was resident of Nepal, therefore, he could not be summoned to record his statement on oath during trial. However, PW1 Gopal Singh was produced before the court below but he has not supported the prosecution story. However, the learned trial Judge having observed that since appellant was real brother of PW1 Gopal Singh, therefore, he is not supporting the prosecution story, convicted the accused on the ground that two police constables reached on the spot immediately after the incident, therefore, circumstances are suggesting guilt of the accused.
(3.) Mr. Naveen Tiwari, learned counsel for the appellant has vehemently argued that except PW1 and Birbhan Damai none has witnessed the occurrence and Birbhan Damai was not produced before the trial Court and PW1 did not support the prosecution story, therefore, simply because police could reach the spot immediately after the incident is not sufficient to hold the appellant guilty.;


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