PANKAJ Vs. STATE (GOVT. OF NCT OF DELHI)

JUDGEMENT

(1.) These appeals assail the judgment dtd. 28/8/2019 whereby the appellants have been convicted for the offence punishable under Sec. 302/34 IPC and awarded life imprisonment with fine of Rs.1,000.00 each, and simple imprisonment for one month each in default of the payment of fine vide order on sentence dtd. 29/8/2019. The third accused Amit @ Dabar as per the chargesheet dtd. 5/9/2013, passed away in jail on 31/12/2017 and therefore, the proceedings against him were abated vide order dtd. 16/4/2018 during trial.

(2.) As per the case of the prosecution the deceased (Kamal Bansal) was residing with his girlfriend in the house of appellant Ankush but was not paying him expenses, which led to a quarrel between Kamal Bansal and Ankush. Kamal Bansal alongwith his girlfriend left the house, without paying the expenses and shifted to his factory. This enraged Ankush and with a view to teach Kamal Bansal a lesson, he allegedly discussed the matter with the appellant Pankaj and Amit @ Dabar. On 29/5/2013, Amit borrowed a motorcycle from his relative and then alongwith appellants Pankaj and Ankush went to the house of Kamal Bansal at about 10:30 p.m. On learning that he was in the factory, on 30/5/2013 at about 1:30 a.m., both the appellants and Amit @ Dabar reached the factory on a motorcycle and asked Kamal Bansal to accompany them. As per the prosecution, Kamal Bansal was called outside by the appellant Pankaj and Amit @ Dabar and as soon as he came out, appellant Pankaj held him by the shoulder and demanded to why he did not pay appellant Ankush. Kamal Bansal was taken away from the factory to end of the gali where the appellants started thrashing him with fists and legs. When Kamal Bansal resisted, Amit @ Dabar held his hand to overpower him and appellant Pankaj hit Kamal Bansal's head with a big piece of stone lying nearby. Kamal Bansal collapsed and then appellant Pankaj pulled him to the side of the road to avoid detection and all three namely Pankaj, Ankush and Amit @ Dabar fled on a motorcycle. However, one ASI Inderjeet and Constable Kuldeep were passing through that place in performance of their duty. They chased the motorcycle, saw the accused persons and also noted the number of the motorcycle. The injured was taken to the hospital by PCR van but succumbed to injuries and died on 5/6/2013. Changes were framed against the appellants and Amit @ Dabar, the prosecution examined 24 witnesses, statement of the appellants under Sec. 313 Cr.P.C. was recorded and the appellants did not lead any evidence in defence.

(3.) The appellants contended through the learned counsel appearing on their behalf, through the appeal and written submissions that conviction by the learned Trial Court was not sustainable since the prosecution had failed to prove the motive behind the alleged murder of the deceased by the appellants. Further, despite that police officials were deployed to collect exhibits and guard the scene of offence from 30/5/2013, the recovery of the concrete stone was done from an open space at the place of occurrence on 8/6/2013 allegedly at the instance of appellant Pankaj, which shows that the police officials had planted the recovery of the concrete stone. The appellants further contended that the prosecution's version that the deceased was last seen with the assailants by his girlfriend Maneka who had come to the factory, was not examined by the prosecution and therefore, the last seen theory was unsupported. Even material witnesses viz. Constable Kuldeep who alongwith ASI Injerjeet allegedly saw the assailants on their bike / scooter and Gulran who made the PCR call were also not examined as prosecution witnesses.