VIJAY SINGH Vs. STATE

JUDGEMENT

(1.) By this appeal the Appellant lays challenge to the judgment convicting him for an offence punishable under Section 307 IPC and a sentence of Rigorous Imprisonment for a period of five years and to pay a fine of '200 and in default of payment of fine to further undergo RI for 15 days.

(2.) Briefly the prosecution case is that the Appellant owed '3,000 to one Shiv Shankar PW4 and on 11th March, 1998 he along with the Appellant went to the room of Uncle of the Appellant near Patparganj where they were served food. Thereafter, the said Uncle of the Appellant along with his brother-in-law went away for their duty. When PW4 Shiv Shanker asked Vijay Singh to return his '3,000/- which he had given to him earlier, Vijay Singh asked him to wait till his Uncle returns back. At about 12.00 noon when the Appellant told Vijay Singh that he had to go back to his house and again demanded his money, the Appellant asked him to stop and took out the knife from the pocket of his pant and gave 10-12 knife blows on the stomach, chest, back and arm of PW4 Shiv Shanker. PW4 fell down and after some time the police arrived and took him to the hospital. When the Appellant gave knife blows on the person of PW4, he was only wearing an angocha (towel) tied around his waist. As the injured was not fit for statement, his statement could not be recorded. The FIR was registered on the statement of PW2 Subhash. On completion of investigation, the charge sheet was filed. All the prosecution witnesses, except PW2 who is the complainant, supported the prosecution case. On consideration of the statements of the prosecution witnesses, statement of the Appellant under Section 313 Cr. P.C. and his defence evidence, the learned Trial Court convicted the Appellant as above.

(3.) Learned counsel for the Appellant challenging the conviction contends that PW4 was injured on 11th March, 1998 and discharged on 6th April, 1998, and despite the X-ray being conducted no X-ray report was filed by the prosecution and thus, an adverse inference should be drawn. There was no opinion of the Doctor that the injuries were fatal. As per the MLC, the injuries have been opined to be dangerous and thus, at best the same would be an offence either under Section 324 or 326 IPC. The prosecution case has not been supported by the only alleged eye witness on whose statement the FIR was registered. Despite being a populated area, no independent witness was examined. The PCR reached at the spot and the Appellant was allegedly apprehended on the spot. This conduct of the Appellant is inconsistent with his guilt. There are variations in the testimony of the witnesses as to the place of recovery of the weapon of offence. As per PW14 HC Bodan Lal, he had apprehended the Appellant along with the knife while fleeing from the spot. Whereas PW12 HC Ram Charan and PW15 Inspector Deshbandhu state that when they brought the Appellant to the spot, the Appellant disclosed that the knife was concealed beneath the gadda and got the same recovered. The defence version has not been considered by the learned Trial Court as though the prosecution case is that the Appellant owed '3,000/- however, in fact it was Appellant who was to take the money from PW4 Shiv Shanker. Despite the Appellant being not unfit to make the statement his statement was recorded on the next day. Even the call made to the PCR was that a fight was going on and thus the prosecution case is unreliable and the Appellant is entitled to be acquitted.