DEVKI NANDAN Vs. STATE

JUDGEMENT

(1.) By the present appeal, Devki Nandan @ Devi Singh challenges the impugned judgment dated 20th September 2016 convicting him for the offence punishable under Section 307 IPC in FIR No. 549/2014 registered at PS Bharat Nagar and the order on sentence dated 22nd September 2016 directing him to undergo rigorous imprisonment for a period of six years and to pay a fine of Rs. 15,000/- in default whereof to undergo simple imprisonment for a period of two months.

(2.) Learned counsel for the appellant submits that the injured 'S' in her testimony admitted that she was sleeping at the time of incident and she could not tell the colour of the clothes appellant was wearing at the time of the incident. He further contends that the son of the injured deposed that he did not know anything about the incident as he was sleeping at that time. He contends that the whole case sought to be made against the appellant is based on leading questions put forth to the son of the appellant and injured. He contends that the owner of the jhuggi was not present at the spot and that he had no problem with the appellant. Appellant informed his relative Rajnish about the incident and made a call to PCR from his number which took 'S' to the hospital. Photographs of 'S' in compromising position were never placed on record. Appellant did not know the name of the assailant as he was sleeping at the time of incident and got up only after hearing the cries of 'S'. Relying upon the decision of the Bombay High Court reported as Anant Nathu Mankar and others. v. State of Maharashtra, 2011 CrLJ 2713 it is contended that at best an offence punishable under Section 326 IPC is made out and not 307 IPC and hence in the alternative conviction of the appellant be converted to one under Section 326 IPC and he be released on the period undergone.

(3.) Per contra, Learned APP for the State submits that that the injured in her testimony categorically mentions the name of the appellant as the person who hit tawa on her head. She further contended that son of the appellant was a tortured witness as can be seen from his testimony wherein he stated that he came to court to get his father acquitted. Weapon of offence that is tawa was recovered at the instance of the appellant and as per the FSL report, the DNA profile from the blood taken from the tawa matched with the DNA profile of 'S'. She further states that the nature of injury was grievous and the injury was sufficient to cause death in the ordinary course to nature. Reliance is placed upon the decision of the Bombay High Court reported as Trimukh Maroti Kirkan v. State of Maharashtra, 2006 10 SCC 681.