SATISH KUMAR Vs. STATE

JUDGEMENT

(1.) BY the present appeal the Appellant lays a challenge to the judgment dated 19th December, 2002 whereby he was convicted for offence under Section 307 IPC and the order on sentence dated 21st December, 2002 whereby he has been directed to undergo Rigorous Imprisonment for a period of 3 1/2 years and a fine of Rs. 500/- and in default of payment of fine to further undergo Simple Imprisonment for 15 days.

(2.) LEARNED counsel for the Appellant contends that the injured witness has turned hostile. The Appellant has been convicted on the basis of the testimony of PW1, the alleged eye witness, a relative of the injured PW4 and an interested witness. No reliance can be placed on the testimony of PW1. The prosecution has failed to establish the motive and thus the ingredients of Section 307 IPC are not made out. Even as per the testimony of PW1 he came out on hearing the noise of the quarrel and did not know how the quarrel took place. Thus he was not aware of the motive. There is contradiction in the testimony of PW1 and the Investigating Officer, as PW1 states that police removed the injured to the hospital whereas the Investigating Officer states that when he went to the spot, the injured had already been removed to AIIMS. There is contradiction as regards the arrest of the Appellant because PW1 states that he was arrested from the spot whereas the Investigating Officer states that he was arrested later on. The case of the prosecution is that the knife was recovered at the instance of the Appellant. If the Appellant was at the spot itself, no recovery could have been made at his instance. Further the alleged weapon used was only a kitchen knife. It has not been identified by PW1. The exhibits were sent to the FSL after two months. The injury was opined to be simple in nature. Even as per the case of the prosecution, the injury was inflicted on the spur of the moment, hence the same was not a pre-mediated. Reliance is placed on Govindaraju @ Govinda vs. State by Sriramapuram P.S. and another, 2012 (4) SCC 722; Praveen Kumar vs. State, 17 (1980) DLT 297; State vs. Nanhe Babu, 2012 (3) JCC 2101; Sumit Kumar vs. State, 2012 (3) JCC 1827; Manoj Kumar and another vs. State, 2012 (1) JCC 1 and Manoj Kumar vs. The State, 114 (2004) DLT 511. The co-convict who was convicted for offence under Section 323 IPC has already been released on probation. In the alterative the Appellant be released on the period already undergone.

(3.) I have heard learned counsel for the parties.