GAGAN Vs. STATE

JUDGEMENT

(1.) The appellant Gagan by the impugned judgment dated 29 th March, 2011 stands convicted under Sections 302 and 411 of the Indian Penal Code, 1860 (IPC, for short). By the order of sentence dated 31 st March, 2011, he has been sentenced to undergo life imprisonment and fine of Rs.3,000/- for the offence punishable under Section 302 IPC and, in default of payment of fine, to undergo Rigorous Imprisonment of six months. The appellant has been sentenced to undergo Rigorous Imprisonment of six months for the offence under Section 411 IPC.

(2.) To put it succinctly, the prosecution case is that the appellantGagan along with two or three other boys in the night of 22 nd December, 2008, at about 12.15 A.M., tried to loot belongings of Chutkou @ Nanku and, in the process, wielded stab injuries resulting in his death. At this stage, we record that the co-accused Vinod Kumar has been acquitted, by the same impugned judgment. This relevant aspect has been considered and examined later on.

(3.) To curtail prolixity we would like to refer first to the prosecution version. In the present case, the prosecution relies upon the statement of Vinay Kumar (PW-3), the complainant on whose statement FIR No. 405/2008, Police Station Gokul Puri (Ex. PW-8/B) was recorded. The prosecution asserted upon the disclosure made by the appellant-Gagan (Ex. PW-7/A) pursuant to which alleged blood stained T-shirt worn by the appellant-Gagan, the knife used in the incident and the wrist watch snatched from the deceased Chutkou were recovered. Reliance is placed upon FSL Report (Exhibit PW-18/A and B) as per which blood group A was detected on the appellant's T-shirt. It is submitted that blood of group A was also found, as per the serological report, on the shirt, pant and the undergarments of the deceased. It is urged that acquittal of Vinod Kumar by itself does not justify acquittal of the appellant-Gagan as the appellate court can re-examine and appreciate the entire evidence and is free to come to any conclusion without being influenced by the said acquittal. The only bar is that the order of acquittal passed in favour of Vinod Kumar cannot be set aside unless an appeal has been preferred against his acquittal. Reliance in this regard is placed upon Sunder Singh and Others v. State of Punjab, 1962 AIR(SC) 1211.