ARUN KUMAR @ TINKU Vs. STATE

JUDGEMENT

(1.) By the present appeal the Appellants lay a challenge to the judgment dated 8th March, 2002 convicting them for the offences punishable under Section 323/506 (II) IPC and order on sentence dated 11th March, 2002 directing them to undergo rigorous imprisonment for 1 year and fine of Rs. 1000/- for offence under Section 323 IPC and one year rigorous imprisonment with a fine of Rs. 1000/- for offence under Section 506 (II) IPC each and in default of payment of fine to further undergo R.I. for two months.

(2.) Briefly, the prosecution case is that four persons namely Sohan Pal @ Sonu, Rajesh Kumar, Arun Kumar @ Rinku & Amit Gill and two juveniles all residents of MMTC Colony, New Delhi, all aged about 18/20 years, attempted to murder one boy named Anil in furtherance of their common intention on 24th May, 1999 at around 6:25 PM. FIR No. 315/99 was registered at PS Malviya Nagar on the statement of PW3 Dalip, the brother of the deceased Anil. The complainant stated that the deceased Anil had an altercation with Arvind, Rinku @ Thakur, Rohit @ Haddi, Amit @ Sonu over an issue of a girl. On 23rd May, 1999 at around 10:30 PM Rajesh & Sohan Pal arrived at their house and called Anil and asked him to come along as the matter which had taken place in the day time was to be discussed with Arvind, Rinku, Rohit & Anil in the Nursery Park MMTC. He accompanied, his brother to the park where Arvind, Rinku, Rohit & Amit were present. Arvind told his brother Anil that he was showing himself to be a Badmash and all the four boys then started beating Anil by fist and kick blows and when he tried to save his brother Rohit @ Haddy pushed him and he fell down. Arvind then picked a stone and hit it on the head of his brother Anil, who fell down on the ground and became unconscious. Thereafter Arvind, Rinku, Rohit and Amit threatened him that if he disclosed about the incident to anybody they would kill him & they went away. PW3 Dalip along with Rajesh brought the deceased to the house of Rajesh and due to fear did not disclose about the incident to anyone and went back to his house. After some time Vishal i.e. elder brother of Rajesh informed the father of the deceased Anil that he had sustained injuries by falling from a staircase, whereupon the father of deceased rushed to the house of Rajesh and removed Anil to the Hospital. On the date of lodging of the report i.e. 24th May, 1999 the complainant in the afternoon came to know about the demise of his brother and then he narrated about the incident to his father. An inquiry was already in action regarding this incident as on 24th May 1999 at about 2.15 AM, DD No. 26A was received wherein Constable Sunil Kumar posted at Safdarjung Hospital had telephonically informed that one Ashok Kumar mistaken for Anil Kumar had been admitted in the hospital having fallen from stairs. This DD was marked to Sub-Inspector Mahinder Singh for enquiry, but only after the death of the victim the Investigating Officer recorded the statement of PW3 Dalip and hence a case under Sections 302/201/506/34 IPC was registered against the accused persons. The Investigating Officer visited the place of occurrence and at the instance of Arvind, Rinku @ Thakur recovered a concrete accumulated stone from MMTC Park and seized the same vide Ex.PW3/A, clothes of the deceased vide seizure memo Ex. PW13/E. As per the opinion of the doctor, the death was due to sudden cardio respiratory arrest. Charge sheet was filed against all the accused except the juveniles, who were sent to the juvenile Court. After recording the statements of prosecution witnesses and examining the accused persons under Section 313 Cr.P.C., the learned trial Court acquitted Rajesh and Sohan Pal and convicted Amit and Arun and sentenced them as mentioned above.

(3.) Learned counsel for the Appellants states that Appellant Arun Kumar i.e. Appellant No. 1 has expired in a road-accident on the 8th April, 2006, hence the present appeal stands abated qua him and thus argued only for Appellant Amit. It is stated that the testimony of Shri Dalip PW3 is not reliable as he is an interested witness, being the real brother of the deceased. His testimony is also full of contradictions. There is an unexplained delay in lodging of FIR and the same has been ignored by the learned trial Judge. The incident took place on 23rd May, 1999 at about 10:30 P.M. and the matter was reported on the next day. Also the conduct of the brother i.e. Dalip whose brother was injured is highly suspicious as he did not narrate the incident to his family and only after the death of his brother he disclosed about the incident. As regards the place of incident PW3 in his testimony stated that the incident took place at MMTC Park whereas in his cross-examination in reply to the specific question put to this witness that the incident took place at either Sarvodya Park or MMTC Park, he answered that the incident took place at Sarvodya Park. Hence, his presence at the spot is highly doubtful as he has contradicted himself about the place of incident. The prosecution has also not proved on record the post-mortem report, hence, any specific opinion about the death of the, deceased could not be formed by the Court. It is submitted that appellant Amit was a juvenile at the time of commission of offence and thus he is entitled to the benefit under Juvenile Justice (Care & Protection of Children) Act, 2000. Thus, the Appellant be acquitted of the charges framed against him as prosecution has not been able to prove its. case beyond reasonable doubt.