PRADEEP KUMAR Vs. STATE

JUDGEMENT

(1.) IN the present appeal the Appellant lays a challenge to the judgment dated 29th September, 1999 convicting him for offence under Section 307 IPC and the order on sentence dated 30th September, 1999 directing him to undergo Rigorous Imprisonment for a period of 7 years and fine of Rs. 1000/- and in default of payment of fine to further undergo Simple Imprisonment for three months.

(2.) LEARNED counsel for the Appellant contends that on the same set of facts allegedly proved by the prosecution the co-accused has been acquitted. The name of the Appellant is not mentioned in the FIR. Also in the MLC the victim was found to be conscious, however the complainant does not implicate the Appellant or the other accused. Even S.I. Phool Singh, who took the complainant to the hospital in PCR, does not state anything about the involvement of the Appellant. The allegations in the FIR were that the co-accused allegedly caught hold of the complainant PW1 and the Appellant gave knife blows. The witnesses have not supported this version and have turned hostile. It is contended that once the co-accused who caught hold of the victim has been acquitted, it is not possible that the Appellant would have inflicted the knife blows. The prosecution case rests on the testimony of PW1, the injured complainant, PW2, his brother and PW7, the manager of the cinema hall. It is averred that these witnesses are interested witnesses hence their testimony cannot be relied upon. Only one witness has been examined qua the arrest and alleged seizure at the instance of the Petitioner. PW2 Rambir was not present at the spot, however still the seizure memo has been signed by him. Thus, the Appellant is liable to be acquitted.

(3.) I find no merit in the contention of the learned counsel for the Appellant that on the same facts since the co-accused has been acquitted, the Appellant could not have been convicted. A perusal of the testimonies of the witnesses PW1, PW2 and PW7 prove that the Appellant was the assailant though they have failed to identify the other person, who was present along with the Appellant on the day of incident. Though PW7 has stated that the two accused persons grappled with the PW1 but has stated that he does not know which of the accused gave injury to PW1 on the abdomen, however on all other points he has corroborated the version of PW1. Further the non-mentioning of the names of the assailants by the PW1 in the MLC though he was well oriented and conscious does not cast any dent on his otherwise cogent and clear testimony. Suffice it is to say that the PW1 was immediately taken to the hospital and admitted there at 10.15 PM on 1st January, 1992. At the instance of the Appellant there is recovery of chhuri. Both PW1 and PW2 have identified the knife to be the same with which the Appellant gave the injuries on the abdomen of PW1. Thus, the recovery of knife stands proved and the weapon of offence is connected to the injuries caused. Further the prosecution has examined PW4 Constable Narender Pal, who is a witness to the arrest and seizure of chhuri at the instance of the Appellant, besides PW8 the Investigating Officer SI Rajpal Singh. Further the chhuri recovered from the Appellant was sent to the FSL for examination wherein it opined presence of human blood though the particular group to which the blood belonged could not be given. Thus, the evidence of PW1 is duly corroborated by that of PW2, PW7 and the MLC. Keeping in view the evidence placed on record. I find no infirmity in the impugned judgment.