ASHOK KUMAR Vs. JOGINDER ALIAS JOGGI

JUDGEMENT

(1.) THE informant/complainant has preferred an appeal under Section 372, Code of Criminal Procedure against the judgment and order of the Learned Sessions Judge, dated 25th January, 2011 in SC No.161/2008 acquitting the respondents of the charge framed against them, for having committed offences punishable under Sections 302/34 IPC.

(2.) BRIEFLY, the prosecution story is that on 27.08.2008, at about 08:50 PM., near House No. 272, Gali No.7, Rao Nihal Singh Marg, Kapashera, both the respondents,in furtherance of their common intention inflicted gun-shot injury on Sunita Yadav, wife of Late Sh. Ravinder Yadav, with the intention to kill her. The injured Sunita Yadav died later; both the respondents were accused of committing the offence punishable under Section 302 read with section 34 IPC. The prosecution (which too has filed a petition, seeking leave to appeal against the impugned judgment) alleged that on 27.08.2008, at about 08:50 P.M, to screen the real offender, the respondent Narender eliminated evidence of the offence of murder committed in furtherance of common intention by him with his co-respondent Joginder i.e. he abandoned/eliminated the pistol which was used in commission of the said offence, and therefore, respondent Narender is alleged to have committed an offence punishable under section 201 IPC. The prosecution case further is that on 27.08.2008, at about 08:50 P.M., at or near House No. 272, Gali No.7, Rao Nihal Singh Marg, Kapashera, within the jurisdiction of PS Kapashera, respondent Joginder was in possession of an unlicenced pistol and he used the same in contravention of the Arms Act, and thus, made himself liable for an offence punishable under Section 27 of the Arms Act.

(3.) COUNSEL for the Appellant as well as the APP urged that the impugned judgment has overlooked several material aspects. It was argued that the Court fell into error, in disbelieving the testimonies of PW-1, PW-2, PW-3 and PW-14, all of whom had witnessed the incident. It was urged that one of the principal grounds which weighed with the Trial Court, in acquitting the accused was that the statements of most of the witnesses was recorded after 24 hours. It was submitted that the history of this case reveals that the injured Sunita Yadav was first taken to the hospital, where the priority of all concerned was to ensure timely and proper treatment. In the process, being a private institution, the police ? who were unacquainted with the witnesses, could not locate them. The delay in recording their statements under these circumstances was not fatal to the case. COUNSEL for the Appellant as well as the Standing COUNSEL urged that the earliest point when the incident was recorded, i.e. Ex. PW-13/A clearly stated the circumstances whereby Sunita Yadav was shot and was taken to the hospital for treatment.