SAJID KHAN Vs. STATE NCT OF DELHI

JUDGEMENT

(1.) SAJID Khan (A -1), Khalid (A -2) and Atif (A -3) impugn a judgment dated 19.05.2011 of learned Additional Sessions Judge in Sessions Case No. 78/09 arising out of FIR No. 19/09 registered at Police Station Chandni Mahal by which they were held guilty for committing offence punishable under Section 307/34 IPC. By an order dated 21.05.2011 they were sentenced to undergo Rigorous Imprisonment for ten years with fine Rs. 3,000/ - each. Shorn of the details, the prosecution case is as under: -

(2.) ON the night intervening 3/4.03.2009 at about 02.35 am Daily Diary (DD) No. 2 (Ex. PW -15/A) was recorded at Police Station Chandni Mahal regarding a quarrel at House No. 2820, Turkman Gate. The investigation was assigned to SI Prashant Kumar who with Ct. Sri Pal went to the spot. They came to know that the injured had already been taken to Lok Nayak Jai Prakash Narayan hospital (in short 'LNJP'). On reaching LNJP hospital, SI Prashant Kumar collected the MLC of the victim Kasif who was declared unfit to make statement. The investigating officer lodged First Information Report after recording statement of victim's brother (Mohd. Danish) (Ex. PW -5/A). The complainant disclosed that when he and his brother Kasif were returning to their house, the appellants and their brother Anas (facing trial before Juvenile Justice Board) met them and they caught hold of Kasif. When he intervened to save his brother Kasif, (A -2) threatened to kill him by a knife. Thereafter, Kasif was caught hold by A -1 and Anas. A -3 attacked him with a 'pointed object' as a result of which Kasif started bleeding profusely from his right ear. On seeing Kasif bleeding, the assailants fled the spot with crime weapons.

(3.) I have heard the learned counsel for the parties and have examined the record. Learned counsel for the appellants urged that the Trial Court did not appreciate the evidence in its true and proper perspective. The Trial Court erred in convicting all the appellants on the sole testimony of PW -5 (Mohd. Danish) whose presence at the spot was highly doubtful. No independent public witness was associated at any stage of the investigation. The injuries inflicted to the victim were not sufficient to base conviction under Section 307 IPC. Victim's death was due to medical negligence and he expired after four and a half months from the date of incident in the hospital. No overt act was attributed to A -1. In the absence of prior animosity, the appellants who lived in the neighbourhood of the victim were not expected to inflict fatal injuries. The prosecution witnesses have given divergent version on material facts regarding the place of incident and the circumstances in which they happened to be present at the spot after attending 'dawat' at the residence of their Bua. The victim and his family members were facing trial on the complaint lodged by the accused under Section 308 IPC. Learned Additional Public Prosecutor urged that the testimony of PW -5 (Mohd. Danish) implicates all the appellants and there are no sound reasons to disbelieve him.