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7. Mr K.B. Andley, the learned senior counsel, appearing on behalf of the appellant, assailed the impugned judgment and order on sentence on the ground that the learned Additional Sessions Judge failed to give due credence to the statement (Exhibit PW-17/D) of the deceased Shiv Prasad which was recorded on 05.06.1990 itself by PW-19 ( SI Raghubir Singh). It is on the basis of the statement (Exhibit PW-17/D) that the FIR was registered. It was pointed out by Mr Andley that in the said statement, there is no mention of any of the accused catching hold of the deceased Shiv Prasad. He also pointed out that there is no reference to any exhortation by any of the alleged assailants. Furthermore, he pointed out that the statement does not indicate the presence of either PW-1 (Madan Gopal) or PW-2 (Surender Kumar @ Kaku) or PW-3 (Harish Kumar). Lastly he pointed out that the statement (Exhibit PW-17/D) does not mention the names of any of the accused. On the contrary, the statement indicates that Shiv Prasad did not know any of his assailants but that he could recognize them. On the basis of the aforesaid statement, Mr Andley submitted that the testimonies of PW-1 (Madan Gopal), PW-2 (Surender Kumar @ Kaku) as also PW-3 (Harish Kumar) become extremely doubtful, in the least. He therefore submitted that once due credence is given to the statement (Exhibit PW-17/D), the prosecution case becomes extremely doubtful and a conviction cannot be returned when such doubt exists. He also pointed out that PW-19 (SI Raghubir Singh) has clearly stated that it is he who had recorded the statement of Shiv Prasad on 05.06.1990 after the endorsement was made by the doctor that Shiv Prasad was fit for making a statement.
8. Ms Richa Kapoor, appearing on behalf of the State, supported the impugned judgment and order on sentence and she stated that when there are two eye witnesses namely PW-1 (Madan Gopal) and PW-2 (Surender Kumar @ Kaku) and their testimonies have not been dented by the defence, then there is no question of acquittal of the present appellant. She further submitted that both these witnesses had clearly indicated that the appellant participated in the crime in more than one way, that is, by catching hold of the deceased Shiv Prasad as also by exhorting Bobby @ Massey to stab Shiv Prasad. She also submitted that the presence of PW-1 (Madan Gopal), in any event, is established by MLC (Exhibit PW-13/D) which indicates that the injured Shiv Prasad had been brought to the hospital by his brother PW-1 (Madan Gopal) from the place of incident which is the house of PW-1 (Madan Gopal). She therefore submitted that the conviction as well as the order on sentence do not warrant any interference.

11. Apart from this, we also find that in Exhibit PW-17/D, which is admittedly the statement made by Shiv Prasad and has been recorded by PW-19 (SI Raghubir Singh), there is no mention of anybody catching hold of Shiv Prasad or of anybody exhorting the actual assailant to stab Shiv Prasad. But both PW-1 (Madan Gopal) and PW-2 (Surender Kumar @ Kaku) have ascribed the role of 'catching hold' to the appellant Naushad Ali. Insofar as the exhortation is concerned, PW-1 (Madan Gopal) stated that it was either Naushad Ali or the other accused person who exhorted Bobby @ Massey by using the words - "Dekhta kya hai mar chaku sale ko". On the other hand PW-2 (Surender Kumar @ Kaku) stated that it was Naushad Ali who had given the said exhortation. Both PW-1 (Madan Gopal) and PW-2 (Surender Kumar @ Kaku) have stated that there were only three assailants namely the present appellant Naushad Ali, the co-accused Bobby @ Massey and Rajan, who is absconding. However, in (Exhibit PW-17/D) Shiv Prasad has clearly stated that there were three to four boys who had attacked him.