CHANDER PRAKASH & ORS. Vs. STATE

JUDGEMENT

(1.) By the present appeal, the Appellants seek setting aside of the judgment dated 9 th December, 2009 passed by the learned Additional Sessions Judge, Karkardooma Courts, Delhi in Sessions Case No. 98/2006 whereby the Appellants were convicted under Section 304 Part II read with Section 34 IPC along with Section 323/34 IPC and order dated 12 th December, 2009, whereby the Appellants were sentenced to undergo Rigorous Imprisonment for a period of seven years each for the offence under Section 304 Part-II read with 34 IPC and Rigorous Imprisonment for a period of one month for offence under Sections 323/34 IPC and also to pay a fine of Rs. 1,000/- each and in default of payment of fine to undergo seven days Simple Imprisonment.

(2.) Learned counsel for the Appellants contends that even if the evidence adduced before the Trial Court is accepted, the ingredients of offence under Section 304 Part-II read with 34 IPC are not made out. No knowledge can be attributed to the Appellants for commission of an offence under Section 304 Part II IPC. In support of his contention, learned counsel contends that the opinion of PW12 Dr. Vinay Kumar on the post mortem report shows that although the injuries were collectively sufficient to cause death of Mandeep, however, no particular injury could have caused the death. No evidence has been adduced before the Trial Court to show that the Appellants acted in furtherance of a common intention thus recourse to Section 34 IPC cannot be taken to convict the Appellants. The presence of the deceased on the spot is doubtful as PW13 the Complainant has stated in his first statement before the police that the deceased arrived at the spot with him whereas in his examination-in-chief he stated that deceased Mandeep arrived after him. From the statement of PW3 it is apparent that PW9, PW13 and PW14 reached the hospital with him on the receipt of information of death of Mandeep. Learned counsel also relies on DD No. 22A (Ex. PW1/E) wherein there exists a mention of altercation and not of any death having taken place. MLC of the deceased Ex. PW11/A, recorded at the earliest available opportunity, shows that no external injury marks were found on the deceased s body. However, the postmortem report Ex. PW12/A which was done more than 12 hours after the incident, recorded three injuries on the person of the deceased. No specific role was ascribed to any of the Appellants relating them to injuries and no particular injury has been opined to be fatal.

(3.) It is further contended that there is inconsistency in the statements of the prosecution witnesses especially the eye witnesses with regard to description of the incident. As per statement of PW13 Virender Pal, the Appellants and juvenile gave beating with fists to deceased Mandeep in a cruel manner while as per statement of PW5 Constable Jairoop, one of the accused had caught hold of the deceased and remaining three gave beatings with kicks and fists. However, PW14 Narender Kumar in his testimony stated that the Appellants and juvenile gave hand and fist blows to the deceased on his stomach and other parts of body. It is further submitted that there are discrepancies regarding duration of incident. As per Virender Pal the incident lasted for 10-15 minutes, while according to Constable Jairoop it lasted for 5-7 minutes and still according to Naresh, it lasted for 2-3 minutes.