GULZARI LAL Vs. STATE

JUDGEMENT

(1.) By this appeal a challenge is laid to the judgment convicting the Appellant for offence punishable under Section 307 IPC and an order of sentence directing him to undergo Rigorous Imprisonment for four years and to pay a fine of '3,000/- and in default of payment of fine, to further undergo simple imprisonment for six months. On realization of the fine amount, '2,500/- was to be paid to the injured as compensation.

(2.) The prosecution case in brief is that on 2 nd December, 1994 at 8:50 p.m. an information was received at Police Post Mianwali, Police Station Paschim Vihar vide D.D. No. 28, Ex.PW8/A that a fight has taken place at C-Block, Camp-4, Jawalapuri. PW8 HC Satish Chander along with PW9 Constable Ramesh Kumar reached the spot where accused Gulzari Lal had already been apprehended by PW7 HC Ravi Dutt and PW4 Constable Rajneesh who were on patrolling duty. Thereafter PW11, ASI Mahinder Singh also reached the spot. PW7 handed over one Churi? to ASI Mahinder Singh and informed that the Appellant has injured one Vijay with this Churi who has been removed to DDU Hospital through PW9 who was accompanied by PW3 Preetam Singh, the brother of the injured. On reaching the hospital, the doctor declared the injured Vijay Singh fit for statement and at 10:15 p.m., PW11 recorded the statement of Vijay Singh Ex. PW2/A wherein he stated that he was working on contract basis in the factory of Horilal at R 241, Camp No. 5, Jawalapuri. The Appellant herein was also working as a labourer in the factory. However, his services were terminated as he was not working satisfactorily. He was reemployed after some time but again because of his non-performance, his services were terminated on 1 st December, 1994. On that day i.e. 2 nd December, 1994, he along with his brother Preetam Singh who was also working in the same factory were returning to their house and at about 8:40 p.m. when they reached C-Block turning, they found the accused already present there. While the injured and his brother were passing through him, he came in front of them. The Appellant was armed with a Churi in his right hand and retorted the injured that he was removing him from service time and again and was not allowing him to work, so he would finish him. The Appellant attacked him with the Churi on his neck, backside of neck and his back. His brother intervened and tried to save him, in the meantime, two police officials reached the spot who overpowered the Appellant and apprehended him. They took the Churi in their possession. On this statement of the injured, ASI Mahinder Singh made an endorsement Exhibit PW11/A and case FIR No. 881/1994, Exhibit PW1/B under Section 307 IPC was registered at P.S. Pachim Vihar. After the completion of investigation, charge-sheet was filed. The learned Trial Court after recording of the prosecution evidence, statement of the Appellant under Section 313 Cr.P.C. and the defence evidence, convicted and sentenced the Appellant as mentioned above.

(3.) Learned counsel for the Appellant challenging the impugned judgment contends that PW2, the injured himself has made material improvements in his statement before the Court as regards the place of incident and the fact that they were returning to their home on a bicycle. No bicycle has been seized by the police from the spot nor has any statement been made by the injured PW2 or PW3 Preetam his brother in this regard to the police. Though, the place of incident was a locality where a number of public persons were present however, no independent public witness has either been cited or examined as a witness to the incident. The conduct of PW 3 Preetam Singh, the brother of the injured is unnatural as after his brother Vijay Singh was injured he first left the bicycle at the factory of Hori Lal and then reached the hospital. He is not an eye-witness of the incident and has been planted as an eye witness. There are contradictions in the deposition of the witnesses and the site plan Ex. PW11/B. Though witnesses have stated that it was a residential area and street light was there, however the same has not been shown in the site plan. The injury received on the person of the Appellant has remained unexplained by the prosecution and thus a doubt is cast upon on the entire prosecution case. No incident took place at C-Block, as no blood was found on the spot though it is the case of the prosecution that the injured was bleeding profusely. No earth control has been seized from the spot. Thus, the place of occurrence is doubtful.