RAJ KUMAR Vs. STATE OF NCT OF DELHI

JUDGEMENT

(1.) By this appeal, the appellant challenges the impugned judgment dtd. 12/2/2021 whereby the learned Additional Sessions Judge while acquitting the appellant for offences punishable under Sec. 3, 3(1)(i), 3(1)(ii), 3(2) and 3(4) MCOCA and 396/307/397/412/34 IPC, convicted him for offence punishable under Sec. 302 IPC and the order on sentence dtd. 20/2/2021 directing him to undergo life imprisonment along with a fine of ?5,000/- and in default whereof to undergo simple imprisonment for one month.

(2.) Learned counsel for the Appellant Raj Kumar @ Bheema contends that the Learned Trial Court has acquitted all the accused persons except for the appellant for the offences charged with and that no separate charge under sec. 302 having been framed against him, appellant cannot be convicted for the substantive offence. Prosecution has led no evidence against the appellant. Merely because police finds that appellant is a habitual offender and has been involved in other cases in past comes to the conclusion that the appellant was involved in the present case. The injured, Smt. Indra Prabha, (PW-18) while identifying the accused Naeem Khan @ Muta stated that 8 years have passed so she cannot say whether he was among those persons or not and that she was not sure about the second boy but was sure about the appellant being one of the five accused persons. As per prosecution, "chheni" was recovered from the appellant but no injury was found from the said weapon. MLC of injured and post mortem report of the deceased were not proved as the doctor who examined her and who conducted the post mortem was not examined by the prosecution deliberately. Finger prints of all the other four accused were found but not of the appellant. The fact that TIP was refused cannot be the sole ground to convict. Recovery of the blood-stained pant after 18 days of incident from open space is highly doubtful and cannot be treated as an incriminating evidence in the chain of circumstances. The alleged pant and the recovered articles were not shown to the sole eye witness, PW-18 for identification.

(3.) On the other hand, Ld. APP for the State submits that the motive of the appellant was to illegally trespass into the house of the deceased and commit robbery as the door of drawing room was removed and glass were shattered. As per Head Const. Ravinder Kumar (PW-14), appellant was arrested on secret information and pursuant to the disclosure statement recoveries were made. Dr. Arvind Kumar (PW-1) who had given subsequent opinion regarding the weapon of offence concluded that the exhibit V i.e., the recovered "chheni" was one of the weapons of offence and that injury B, C, D on body of injured PW-18 were possible by the said weapon. Injured, PW-18 who was examined through video conferencing had clearly identified the present appellant as the boy who had given blows to her husband twice before the Ld. Trial Court. Devender Kumar, Ld. ADJ (PW-16) stated that he got the TIP of the recovered articles conducted in his presence. As per the testimonies of Head Const. Ravinder Kumar and Insp. Sunil Kumar Sharma (PW-15), the said stolen articles, Ganesh idol (gold om) and CD player were recovered from the jhuggi of Appellant and were duly identified by (Vivek) son of the deceased. The brutality of the murder is clearly made out from the post mortem report of the deceased where the doctor found total of 21 injuries on the body and cause of death opined was due to shock and haemorrhage consequent to multiple ante mortem injuries. As per the FSL result, human blood was detected on the alleged pant of the appellant which he was wearing at the time of the incident. Reliance is placed on the decision reported as (2010) AIR (SCW) 5701 Abdul Sayeed Vs. State of Madhya Pradesh, to contend that the testimony of injured victim can be awarded special status in law and that the statement of injured witness should be relied upon.