HEMRAJ Vs. STATE

JUDGEMENT

(1.) This appeal assails the impugned judgment dtd. 17/1/2019 passed by the learned Trial Court convicting the Appellant for offences punishable under Ss. 302, 307, 394 and 397 IPC but acquitting him of charge under Sec. 27 of the Arms Act; and order on sentence dtd. 19/1/2019 awarding the following sentence to the Appellant:

(2.) As per the case of the prosecution, the complainant PW-1 Bhuri Singh and his family members were returning to their house in Sec. -29, Gurgaon, Haryana on 27/10/2013. He and his brother-in-law Naresh were riding on his Bajaj Platina Motorcycle whereas his wife PW-6 Laxmi was riding on the other motorcycle being driven by his maternal uncle PW-8 Satyavan. Satyavan stopped his motorcycle for filling petrol on the way and the complainant alongwith Naresh waited on the motorcycle near Chand Cinema, Mahila Park. One unidentified boy (later identified as the Appellant) came near their motorcycle and asked Naresh to hand over whatever he had on him on his person. When Naresh refused, the boy stabbed him in his stomach with a knife and snatched the Micromax mobile of Naresh. The Appellant asked the complainant PW-1 to hand over his purse and when he refused to do so, he assaulted PW-1 with a knife and caused injury on his left arm. The Appellant took away the complainant's purse having two currency notes of Rs.500.00 each. The Appellant tried to run from there, but the complainant and deceased chased him and apprehended him while he was trying to jump the wall adjacent to the park. Public also reached there and gave beatings to the Appellant and subsequently the PCR reached the spot and took the complainant and the deceased to Lal Bahadur Shastri Hospital, while apprehending the Appellant and recovering the knife from him. After completion of the investigation, a chargesheet was filed against the Appellant. Charges were framed under Sec. s 394, 397, 302, 307 IPC and Sec. 27 of the Arms Act. The prosecution examined 24 witnesses in support of the case, statement of the Appellant was recorded under Sec. 313 Cr.P.C. and one witness was examined in defence. Submissions of the Appellant

(3.) The Appellant submitted through his appeal and arguments led by his counsel, that the statements of the prosecution witnesses were contradictory particularly on the issue of apprehension of the Appellant. While PW-6 deposed that the Appellant was apprehended by PW-1 and the deceased, PW-8 deposed that the deceased had stab injury and was sitting there, and the Appellant was apprehended only by PW-1. It was contended that the learned Trial Court ought to have considered that PW-8 was declared hostile on this point and therefore his testimony was not reliable. The testimony of DW-1 Smt. Somwati, mother of the Appellant ought to have been appreciated, who stated that on 25/10/2013 police officials lifted her son forcibly from the house and took him to the police station. When she reached the police station and asked as to why they had lifted her son, the police stated that they would leave the Appellant if she could produce her elder son Pawan, and upon her refusing to do so police falsely implicated the Appellant in this case. It was the contention of the Appellant that the deceased had a quarrel with somebody else and the Appellant was unnecessarily implicated in what was a blind case for the police. The recovery of the mobile phone and the wallet from the park which was a public place was after a considerable delay and had been falsely planted on the Appellant by the police. The recovery of mobile phone and purse from the possession of the accused is also doubtful as the same were not recovered from his possession but from the bushes in the park having an 8 ft. Wall. The recovery of mobile phone and purse is not as per Sec. 27 Evidence At. It was overlooked that there was no proper light at the place of incident and therefore it was not possible for PW-1 or other witnesses to properly see the accused at the time of the alleged incident. While PW-6 and PW-8 had stated that the Appellant had a knife in his hand when he was apprehended, PW-23 deposed that the knife was recovered from the bushes inside Mahila Park. The recovery of knife is doubtful from the possession of the Appellant/accused. None of the prosecution witnesses have stated in their evidence that knife was recovered from the possession of the accused and various prosecution witnesses have themselves stated that knife allegedly used in the incident was not recovered from the possession of the accused but was given by some unknown person. Since the Appellant was a "bad character" of the area, he had been falsely implicated by the police to solve a blind murder case. The recovery of the blood stained shirt at the instance of the accused appears to be improbable and the same has been planted upon him. Further, it was contended that the injuries on the body of PW-1, Bhuri Singh was simple in nature and therefore the case could not be covered under Sec. 307 IPC and at least that conviction ought to be set aside. Also there was only a single injury alleged to have been inflicted with a knife by the accused on vital part of the body of the deceased. Hence the case is not covered under Sec. 300 IPC as the accused had no intention to kill Naresh and the alleged incident occurred all of a sudden without any pre-meditation and was therefore covered under Exception 4 to Sec. 300 IPC as there was no intention to cause death. The counsel for the Appellant relied upon Ajmal v. State of Kerela (2022) SCC Online SC 842 and Khokan @ Khokan Vishwas v. State of Chhattisgarh (2021) 3 SCC 365 in support of their arguments. Submissions by the Prosecution