SUNIL @ SHELLY ETC. Vs. STATE

JUDGEMENT

(1.) PRESENT appeal has been filed under Section 374 Cr.P.C. against the judgment of the trial court dated 17.1.2005, whereby the appellants were convicted under section 308 read with section 34 IPC and order on sentence dated 19.1.2005 by which appellants were awarded sentence of one year with fine of Rs. 500/ - each, and in default of payment of fine RI for one month. As per the prosecution, on 28.5.2001 at about 10:30 pm a complaint was lodged by one Chander that appellants had beaten one Shri Krishan and his brother. On the basis of the complaint an FIR No. 240/2001 under Sections 308/34 IPC was registered at P.S. Mukherjee Nagar, New Delhi. The case was committed for trial on 25.2.2002; and charges were framed on the material placed before the court that Sunil, Ajay Kumar along with Mahender Kumar (juvenile) in furtherance of a common intention on 28.5.2001 at about 10:30 pm near Jhuggi Autumn Line within the jurisdiction of Mukherjee Nagar caused bodily injuries on the person of Shri Krishan with such intention and knowledge or under such circumstances that if they had thereby caused the death of Shri Krishan, they would be guilty of culpable homicide not amounting to murder and thereby committed an offence under section 308 read with section 34 IPC. The accused persons pleaded not guilty and claimed trial. The prosecution examined 10 witnesses, whereas defence has examined only one witness.

(2.) COUNSEL appearing for the appellant submits that the judgment of the trial court is against the law and facts, the witnesses produced by the prosecution are interested witnesses or the official witnesses and their testimonies are unreliable. It is also contended that there are material improvements in the statement of the witnesses and thus they cannot be believed. The trial court has overlooked the serious contradictions in the statements of the witnesses of the prosecution and thus prosecution has miserably failed to prove their case and the trial court has wrongly convicted the appellants.

(3.) COUNSEL for the appellants contends that the testimony of the star witness of the prosecution i.e. PW -1, who is also victim in the case, is unreliable and full of contradictions and order of conviction could not have been passed on the testimony of PW -1. It is submitted that there are contradictions between the testimony of PW -1, who has testified that the occurrence took place at 9:30 pm. and he received injuries and regained consciousness only at 4:00 am in the hospital, and PW -2, who has deposed that the occurrence took place at about 10:30 p.m. and he saw Shri Kumar and Chander were being beaten with iron rod; appellant, Sunil gave a sirsa blow on the head of Shri Krishan and he fell down and became unconscious. PW -3, Chander Kumar has stated that at 10:30 p.m. when he was sitting outside his house, three boys came to the said place including accused Shelly and one of the boys put his foot in the gutter as a result of which filth splashed into his house. The complainant asked the boys to walk properly as all the three boys were under the influence of liquor. Shelly challenged Kishan to put his foot into the gutter once or twice again, as a result of which filth again splashed into the jhuggi. There are serious contradictions in the statements of all three witnesses. One of the witnesses stated that when one of the appellants, Ajay put his leg in the nalli, mud flew into the thali of PW1, whereas PW3 Chander Kumar stated that one of the boys put his leg in the gutter as a result of which filth splashed inside the house and when Kishan objected he again once or twice put his foot in the gutter intentionally.