DHARMENDER & ANR Vs. STATE

JUDGEMENT

(1.) This appeal is directed against the impugned judgment dated 22nd July 2016 passed by the learned Additional Sessions Judge, (South-West)-02 Dwarka Courts, Delhi (ASJ) in Sessions Case No.61 of 2015 arising out of the FIR No. 13 of 2012 registered at Police Station (PS) Najafgarh convicting the two Appellants i.e. Dharmender [Accused No. 1 (A-1)] and Jitender [Accused No. 2 (A-2)] for the offence punishable under Section 302 / 34 of the Indian Penal Code ( IPC ) and under Section 307 / 34 IPC and the order on sentence dated 29th July 2016 whereby for the offence under Section 302 / 34 IPC each of the Appellants were sentenced to undergo imprisonment for life with a fine of Rs.20,000/- each; and in default of payment of fine, to undergo simple imprisonment (SI) for six months each; and for the offence under Section 307 / 34 IPC they were also sentenced to undergo RI for seven years and to pay a fine of Rs. 10,000 each and in default, to undergo SI for three months each The charge

(2.) Both the Appellants were charged with assaulting, in furtherance of their common intention and with the help of dandas and lathis, one Monu on 8th January 2012 at about 7.45 pm at Nangli Dairy Bus stand, Najafgarh, New Delhi as a result of which he suffered injuries and remained admitted at the hospital from 8th to 22nd January 2012 and ultimately died on 23rd January 2012. The Appellants were accordingly charged with committing the offence of murder punishable under Section 302 / 34 IPC. They were also charged with giving blows to Ravi (PW-3) with dandas and lathis at the same time, date and place thereby causing him injuries with the knowledge that they could have been guilty of culpable homicide not amounting to murder had the said person died, thereby committing an offence punishable under Section 307 / 34 IPC. The eye witness account

(3.) An independent eye-witness to this incident was Mukesh (PW-2). He stated that on 8th January 2012 between 7 and 7.30 pm he was standing at Nangli Dairy bus stand toward Dwarka side. The deceased, Monu, and Ravi (PW-3) were selling momos near the bus stand. The two accused, i.e. A-1 and A-2, who were residents of jhuggi at Najafgarh along with some others were eating momos. Both the accused were having wooden dandas/baseball bats. The deceased (Monu) demanded the payment for the momos. Immediately, both the accused assaulted him on the head with a gas cylinder while PW-3 was assaulted with a baseball bat/danda. Both the deceased and PW-3 fell down on the road and both the accused ran away. Investigation