KHEM CHAND Vs. STATE

JUDGEMENT

(1.) The challenge in this appeal under Section 374 of Criminal Procedure Code, 1973 is to the judgment dated 24th November, 2010 in Sessions Case No.34/2009 arising out of FIR No. 239/2003 under Sections 302/308/452/323/34 IPC registered at Police Station New Usman Pur vide which the appellant Khem Chand was convicted under Sections 304-I/34 of Indian Penal Code, 1860 while co-accused Harish, Dharam Pal and Surender were convicted under Sections 323/34 IPC and order of sentence dated 25th November, 2010 vide which the appellant Khem Chand was sentenced to undergo rigorous imprisonment for five years and also to pay fine of Rs.10,000/-. In default of payment of fine, to undergo simple imprisonment for ten months, whereas his co-accused were sentenced to the period already undergone and to pay fine of Rs.5,000/- each. In default of payment of fine the convicts were to undergo simple imprisonment of five months. The convicts were granted benefit of Section 428 Cr.P.C.

(2.) The gravamen of the charge against the appellant and co-accused is that on 14th December, 2003 on receipt of information regarding quarrel at Jai Prakash Nagar, Gali No. 4, towards Bittu Chowk, Usman Pur, DD No. 51B Ex.PW13/A was recorded by PW13-Constable Shiv Ram. On receipt of this DD, PW17-Sub Inspector Bhagwat Prasad along with PW23-Constable Satveer Singh reached the place of occurrence i.e. L-Block, Jai Prakash Nagar, Gali No.4 at Bittoo Chowk at the crossing of Gali No. 4 and 9. Some blood was lying near naali. They were informed that a quarrel had taken place at the factory of Ram Singh. Blood stains from Gali No. 4 to Gali No. 9 were found. One blood stained hawai chappal was lying near the factory of Ram Singh. No eye witness was available. He came to know that injured had already been removed to GTB Hospital. MLC of Raj Kumar was collected on which doctor declared him "brought dead". He also collected MLC of Mittar Pal and Anup Singh. Doctor declared them unfit. One Veermati (PW1), wife of Ram Singh met him at the hospital. He recorded her statement Ex.PW1/A, prepared rukka Ex.PW17/B and sent the same through Constable Satveer for registration of FIR, on the basis of which FIR No. 293/2003 under Sections 302/308/452/323/34 IPC was registered. He along with the complainant came back at the place of occurrence. SHO Police Station New Usman Pur and members of crime team and photographer met him there. Photographs were taken. Site plan Ex.PW17/C was prepared. Blood lying at the spot, hawai chapple lying near the factory of Ram Singh was seized. During the course of investigation, accused Khem Chand, Dharam Pal, Harish and Surender were arrested. Their disclosure statements were recorded. In pursuance to the disclosure statement Ex.PW2/B made by co-accused Harish, a brick piece was got recovered which was taken into possession vide memo Ex.PW17/E. Post-mortem on the dead body of Raj Kumar was got conducted. Accused Mahesh could not be arrested. After completion of investigation, chargesheet was submitted for offence under Sections 302/308/323/452/34 IPC. After committal of the case, charge for offence under Sections 304/34 IPC was framed against accused Khem Chand while charge under Sections 308/34 IPC was framed against accused Harish Kumar, Surender and Dharam Pal. All the accused pleaded not guilty and claimed trial.

(3.) In order to substantiate its case, prosecution examined 28 witnesses. All the incriminating evidence was put to the accused persons while recording their statement under Section 313 Cr.P.C. Their case is one of denial simplicitor by stating that they are not concerned with this case. Although, initially they stated that they want to lead defence evidence, however, no evidence was led in defence. After minutely going through the testimony of the witnesses, vide impugned order, the appellant was held guilty for offence under Section 304-I IPC while the remaining accused were convicted for offence under Sections 323/34 IPC and sentenced, as stated above.