RAVI KUMAR Vs. STATE

JUDGEMENT

(1.) These appeals can be disposed of together as they challenge the common judgment dated 29 th April, 2011 passed by the learned Additional Sessions Judge convicting the Appellants herein for offence under Section 307/34 IPC and Appellant Rakesh Kumar @ Dhillo for offence under Section 25 Arms Act as well. Vide the impugned order dated 30 th April, 2011 both the Appellants have been sentenced to undergo rigorous imprisonment for a period of 7 years and a fine of Rs 5000/- in default of payment of fine to undergo further simple imprisonment for six months for offence under Section 307/34 IPC. The Appellant Rakesh @ Dhillo has been further sentenced to the rigorous imprisonment for two years for offence under Section 25 Arms Act and to pay a fine of Rs. 500/- and in default of payment of fine to undergo simple imprisonment for one month.

(2.) Learned counsel for the Appellants contend that the conviction under Section 307/34 IPC cannot be sustained on the short ground that the prosecution has not proved the MLC before the learned Trial Court. Further the case of the prosecution is that the Appellants took the auto-rikshaw and got down at Kilokri and as they did not pay the fare, the injured fought with them, when the Appellant Rakesh caught hold of him and Appellant Ravi stabbed. Thereafter PW5 the complainant went to Police post Sunlight and then to AIIMS. Thus, the injuries cannot be said to be serious/ grievous in nature. Further, no blood was recovered from auto-rikshaw nor were the clothes of the injured seized. There is no evidence on record to prove that the injuries could have resulted in the death of PW5. The arrest of the Appellants is also shrouded in mystery. According to the investigating officer search of the Appellants was made on private vehicle. The Appellants were arrested after two months of the alleged incident. No article was recovered at the instance of Appellant Ravi Kumar though his house was fully searched. In the cross-examination the investigating officer failed to give the description of the house, the timings when he made the search etc. Thus, the Appellants be acquitted of the charges framed and in any case even if the testimony of PW5 is to be believed, at best a case for conviction under Section 324/34 IPC is made out and the sentence of the Appellants be reduced to the period already undergone.

(3.) Learned APP on the other hand contends that though the MLC has not been exhibited inadvertently before the learned Trial Court, however PW5 has stated about the injuries received. Further PW1 Dr. Sushil Sharma has opined that the injuries mentioned on the MLC of PW5 were possible by the knife recovered from Appellant Rakesh @ Dhillo. Thus, the testimony of PW5 stands corroborated sufficiently. There is no contradiction in the testimony of the investigating officer and he has stated about all material facts which transpired during investigation. Since no blood stains were visible on the blade of the knife when it is recovered, the same was not sent to FSL. The Appellants have not been falsely implicated and have been duly identified by the complainant. Appellant Ravi refused TIP and Appellant Rakesh Kumar was duly identified by PW5 in the TIP proceedings. Further PW5 had correctly identified both the Appellants before the Trial Court which is the substantive identification.