MOHD KAYUM Vs. STATE OF DELHI

JUDGEMENT

(1.) BY this appeal the appellants are assailing the judgment dated 27. 02. 1999 and order dated 05. 03. 1999 passed by the learned Additional Sessions Judge, delhi in Session Case No. 55/97 whereby appellant no. 2 Asif was convicted under section 307 IPC and was awarded seven years rigorous imprisonment and a fine of rs. 5000/- with a default stipulation to further undergo one year rigorous imprisonment and appellant no. 1 Kayum was convicted under Section 307 read with section 34 IPC and was sentenced to undergo rigorous imprisonment for a period of five years and fine of Rs. 2000/- and to undergo further five months rigorous imprisonment in default of payment of fine.

(2.) FACTUAL matrix leading to the conviction of the appellants is that on 16. 07. 1996 at about 12. 00 noon when the complainant was working in his factory, appellant Asif, whom he knew earlier, came to his factory and called him outside the factory on the pretext of having some discussion. Appellant Asif took the complainant near the gate of Khadde Wala School where appellant Kayum was already present. Kayum asked the complainant as to why he had slapped him yesterday and that he would teach him a lesson for the same. On saying so Kayum caught hold of the complainant and Asif took out a knife from his dub and caused injuries to the complainant on the left side of his chest and also on his back. On raising of alarm by the injured the appellants-accused fled from the spot and thereafter the injured was removed to the GTB hospital by his elder brother yunus who had also reached the spot after hearing the cries of his brother. On the basis of a rukka (Ex. PW- 13/b) FIR no. 402/96 (Ex. PW-3/a) under Sections 307/34 IPC was registered with Seelam pur police station and investigation was carried out. During investigation blood stained shirt of injured Fujail was taken into possession vide memo (Ex. PW-9/a ). On 18. 7. 1996 at about 8. 45 p. m. a raiding party was organized comprising of Ct. Satish, Jeetpal and Head-constable dayanand by Sub-inspector Krishan Kumar (PW-13) on receipt of secret information and the appellants-accused Mohd. Kayum and Asif were apprehended from gali no. 2, Jamaalon ka baag. On personal search of the appellant Asif one buttondar knife was recovered and in respect of that recovery a separate FIR No. 406/96 was registered under the Arms Act. As per the medical opinion, the complainant-injured PW-1 had received grievous injuries inflicted with a sharp edged weapon.

(3.) AFTER completion of investigation the police charge-sheeted both the appellants and the trial Court tried them for the offence under Section 307 read with Section 34 IPC. Both the appellants had pleaded false implication. The sessions Court after examining the evidence of the thirteen witnesses examined by the prosecution held appellant Asif guilty of the offence under Section 307 ipc and appellant Kayum under Section 307 read with Section 34 IPC. Being aggrieved by their conviction the appellants have come up in appeal.