JUGAL KISHORE Vs. THE STATE OF DELHI

JUDGEMENT

(1.) Crl. Mb No. 208/2007. This application under section 389 Cr.P.C read with section 482 Cr.P.C has been preferred by the appellant for suspension of sentence and for grant of bail during pendency of the instant appeal. The appellant was convicted by the learned trial court to undergo rigorous imprisonment for a term of 7 years under Section 304-Part-A IPC coupled with fine of ? 5000/-.

(2.) Learned counsel for the appellant submits that the other accused persons, who faced trial along with the appellant, were acquitted on the basis of testimony of the same very witnesses while he was convicted by the learned trial court. It is further submitted that the deceased in this case was initially admitted to Sanjay Gandhi Memorial Hospital wherein his MLC was got prepared and the injuries were opined to be grievous. He was then transferred to Trauma Center wherefrom he disappeared against the advise of doctors and no medical record was placed on judicial file. It is submitted that the death of deceased had taken place after about 3 months of the incident and the cause of death was pneumonia and that the conviction of appellant was bad in eyes of law.

(3.) A perusal of the impugned judgment would show that two brothers of the deceased had claimed to be eye witnesses and they had named five of the accused persons. One of the accused persons was declared proclaimed offender while rest of four accused were put to trial. However, the learned trial court found that the two brothers of the deceased were not the trustworthy witnesses and disbelieved their testimony in respect of the incident and acquitted three of the accused persons who faced trial. The conviction of the appellant was held on the basis of dying declaration of the deceased. The statement of the deceased was recorded by the Investigating Officer when he was admitted in Sanjay Gandhi Memorial Hospital and the MLC regarding grievous hurt was before the Investigating Officer. The deceased, in his dying declaration named the appellant as one of the assailants. The injuries would show that the backbone and ribs of the deceased were broken by the present appellant and one more accused person who was declared proclaimed offender. The disappearance of the deceased from Trauma Center is not an inconsistency since the deceased found there was no improvement in his condition he was removed to another Government hospital. He was, thereafter, shifted from one hospital to another hospital, all Government hospitals, so that his condition may improve. But ultimately he died. Even if it is considered that the appellant was not guilty of offence under Section 304 Part A IPC and was only guilty of causing grievous hurt, as is pleaded, still I do not find it a fit case for suspension of sentence at this stage. The application is hereby dismissed.