VISHWESHWAR @ MUNNA Vs. STATE

JUDGEMENT

(1.) This criminal appeal is directed against the judgment dated 23rd December, 2009 passed in SC No.19/3/09 arising from FIR No.711/08, P.S.Nangloi under section 302 IPC whereby the appellant has been held guilty for the offence punishable u/s 304 Part II IPC and the order of sentence dated 7th January, 2010 whereby the appellant has been sentenced to undergo RI for 10 years with fine of Rs.10000/- and in default to further undergo SI for one year.

(2.) At the outset, learned counsel for the appellant, on instructions from appellant who is present in J.C, has submitted that appellant is not challenging his conviction u/s 304 Part II IPC. It is submitted that appellant has already undergone sentence of six years and three months and he be released on the sentence already undergone by him.

(3.) The case of the prosecution is that FIR Ex.PW5/A was registered on the statement Ex.PW 3/A of Rajesh Kumar, PW-3 made to SI Rajender Sharma, PW-12 wherein he had stated that he was working in a shoe factory in Udyog Nagar Peeragarhi, Delhi and was living in a rented accommodation at D-10, Extension II-D, Nangloi. The name of the owner of said house was Jagdish @ Dhori Lal. The appellant was the servant of Jagdish @ Dhori Lal and was working in his dairy and lived in a courtyard outside their rented accommodation. Rajesh Kumar, PW-3 had alleged that prior to 4-5 days of the occurrence, appellant had purchased a 'deck' which he used to play on a high volume due to which disturbance was being caused to them. Despite being asked not to play the same on high volume, appellant did not desist. On 20th December, 2008 in the evening he was again playing music at a very high volume. At about 9.30 pm complainant PW3 requested him not to play the music in high volume. Hearing that appellant got angry and started abusing him. Thereupon, their owner i.e. Jagdish @ Dhori Lal came and on his intervention, appellant had switched off the 'deck'. Thereafter, they went for sleep. In the morning i.e. on 21st December, 2008 at about 6.30 am when he was taking a stroll in the 'Gali', his sister Laxmi i.e. deceased had gone to ease herself in a nearby house i.e. bearing no.D-6 Extension-II, Nangloi which was the house of Jagdish @ Dhori Lal. He had alleged that appellant was present there and was giving Bhusa (fodder) to the buffaloes. Thereafter he returned back to his house. Immediately, thereafter deceased came crying in the house and told that appellant had stabbed her with a knife in her breast. She was bleeding from the right side of breast portion and fell down in the court yard. He along with his brother Mukesh, PW-2 took her to Deep Charitable Dispensary where the doctor gave some stitches on the wound and advised them to take her to Satya Bhama Hospital. While they were taking her to said hospital, Laxmi died on the way. They brought her back to their house and arranged for her cremation and thereafter took her to cremation ground at Kamruddin Nagar where police came and took the dead body in their possession.