STATE Vs. SUNIL ALIAS AKASH ALIAS SAGAR

JUDGEMENT

(1.) The State seeks leave to appeal against the judgment and order of the learned Additional Sessions Judge dated 17.02.2011 in Session Case No.138/2009. The respondent (hereinafter referred to as accused) Sunil was acquitted of the charge of having committed murder of Suraj (hereinafter referred to as deceased), punishable under Section-302/34 IPC.

(2.) The prosecution's case was that Rahul (PW-6), Ravi (PW-7) and the deceased were returning on 15.08.2009 at around 08:30 PM from the shop of one Bhura Halwai after purchasing milk. It was alleged that Sunil and Vipin (the co-accused) who was declared proclaimed offender confronted them from the opposite direction in a drunken condition and told Suraj that he was a bad character ("tu badmash hai apni gali ka dada banta hai"). The deceased apparently asked Sunil and Vipin to talk over their differences in the morning since they were drunk. Sunil held the deceased's hand from the back and Vipin inflicted knife injuries on Suraj on chest and then both accused fled the spot. The police was called and Suraj was taken to the SGM Hospital where he was declared dead. The statement of PW-6 Rahul formed the basis of the FIR recorded as FIR No.271/2009. After collecting the postmortem report and other materials, the respondent Sunil was charged for having committed the offence. Since Vipin could not be traced, he was declared proclaimed offender and not subjected to trial. The Trial Court concluded that the material presented before it could not form the basis for conviction under Section- 302/34 IPC. The relevant part of its reasoning is found in paragraph nos.15 and 19 of the judgment which reads as follows: - Common Intention

(3.) Ms. Richa Kapoor, Additional Public Prosecutor urges that the Trial Court omitted to consider the material part of PW-6's evidence which clearly stated that Suraj was held by Sunil at the exhortation of Vipin and that the latter took out a knife and stabbed the deceased. It was argued that this clearly constituted a case where Sunil facilitated the commission of the offence and shared his intention with the PO Vipin by virtue of Section-34, IPC.