KRISHNA SHARMA Vs. STATE

JUDGEMENT

(1.) THIS criminal appeal is directed against the judgment dated 23. 12. 2006 delivered in Sessions Case No. 81/2004, whereby the appellant was convicted under Section 308 read with Section 34 IPC and vide separate order dated 4. 1. 2007 sentenced to undergo rigorous imprisonment for four years with a fine of Rs. 5000a and in default of payment of fine to further undergo rigorous imprisonment for six months. The benefit of Section 428 cr. P. C. was also given to the appellant.

(2.) BRIEFLY stating the case of the prosecution is that on 26. 02. 2004 when pw-2, Rohit Gaur (complainant/injured) along with his sister, PW-1, monika Gaur was returning home after delivering a letter to Dr. Hans at his clinic and had reached in front of shop of Mamta Tailor, at about 2 PM, the appellant caught hold of the injured while his brother (co-accused) Jitender hit him on his head from behind with an iron rod. The injured Rohit Gaur was removed to AIIMS hospital by PW-3, Mahesh Sharma. He was medically treated and his statement was recorded on the basis of which FIR No. 58/2004 under Section 341/308/34 IPC was registered at Police Station vasant Vihar. Thereafter, the appellant and his brother co-accused Jitender were arrested and on their disclosure an iron rod (Ex. P-1) was recovered, which was identified by PW-1 Monika Gaur as a weapon used for causing injury on the head of the injured. After completion of investigation, the ehargesheet against the accused Jitender was filed before the Juvenile justice Board as he was juvenile at the time of commission of offence and the ehargesheet against the present appellant was filed before the learned mm, who after complying with the provisions of Section 209 Cr. P. C. committed the case to the Sessions Court as the offence punishable under section 308 IPC is exclusively triable by the Court of Sessions. The appellant was charged for the offence punishable under Section 308 read with Section 34 IPC to which he pleaded not guilty.

(3.) IN order to prove its case, the prosecution has examined 15 witnesses, including the injured/pw-2 Rohit Gaur and his sister PW-1 Monika Gaur, who fully supported the prosecution's version and stood by the complaint dated 26. 02. 2004 Ex. PW2/a. The injured, Rohit Gaur, who appeared as pw-2 has deposed that the police officials recorded his statement Ex. PW2/a in the hospital. He also deposed that his blood stained clothes were also taken into possession by the Police vide seizure memo Ex. PW2/b. This witness also identified his blood stained clothes as Ex. P2 and Ex. P3. The blood found on those clothes was proved to be of the same group as was of the injured by the CFSL. PW-1 Monika Gaur identified the iron rod by which accused Jitender hit on the head of the injured and the same was exhibited as Ex. Pl.