NARESH GAUTAM Vs. STATE

JUDGEMENT

(1.) THE present first appeal has been preferred by the Appellant under Section 374 Criminal Procedure Code, 1973 (Cr.P.C.) to assail the judgment and order on sentence dated 21.12.2009 and 24.12.2009 respectively passed by the learned Additional Sessions Judge -03 (ASJ) (Outer) , Rohini Courts, Delhi in S.C. No.115/2008 arising out of First Information Report (FIR) No.435/2002 registered at Police Station Paschim Vihar under Sections (u/s) 307/34 Indian Penal Code, 1860 (IPC). The Appellant was convicted for the offences u/s 307/34 IPC by the impugned judgment dated 21.12.2009, and was sentenced to undergo Rigorous Imprisonment (RI) for three years with fine of Rs.500/ -, and in default of payment of fine, to undergo Simple Imprisonment(SI) for 30 days.

(2.) THE case of the prosecution, as noticed in the impugned judgment, is that on 03.08.2002 at about 09:30 p.m. at Rohtak Road, Near Peeragarhi Pul, the Appellant Naresh, S/o. Sh. Madhav Singh in furtherance of common intention along with 2 -3 other persons - who could not be apprehended, had voluntarily caused dangerous injury on the person of the complainant Sharvan Kumar (PW -2) with such intention or knowledge and under such circumstances that if by that act he caused the death of Sharvan Kumar (PW - 2) , he would have been guilty of murder. Therefore, the case of the prosecution was that the Appellant attempted to commit murder of Sharvan Kumar (PW -2) , thereby committed offence punishable u/s 307/34 IPC. In support of its case, the prosecution examined 8 witnesses. The Appellant also led his evidence in defence. He examined one witness Smt. Bhudevi - his mother, as DW -1.

(3.) LEARNED counsel for the Appellant has submitted that the learned ASJ has failed to appreciate the glaring contradictions and omissions in the case of the prosecution. In this regard, he drew the attention of the Court to the Rukka (Ex. PW -2/A) prepared on the basis of the statement of Sharvan Kumar (PW -2). Learned counsel submits that in his statement recorded as Ex. PW -2/A dated 03.08.2002, the said witness had stated that on the said day, when he was going from Mangolpuri towards Peeragarhi at about 09:30 p.m. under the Peeragarhi Pul, he was caught held by 2 -3 boys and verbally abused. He stated that one of these boys attacked him with a sharp device in his stomach, upon which he raised an alarm. Consequently, "Sipahi Chander" came running, whereupon the said boys started to run away. However, "Sipahi Chander" caught held of one of the boys, whose name and father's name was later disclosed as Naresh, S/o. Sh. Madhav Singh. He further stated that Naresh was brought along with him to the hospital. The other accomplice of Naresh had run away by taking advantage of the darkness, and that he had not seen the faces of the other boys.