- (1.) CHALLENGE in this appeal is to the judgment and order dated 1/3.9.2003 passed by Sh. G.S. Kotla, Additional Sessions Judge, Gurgaon, vide which the accused appellant Jagbir has been convicted under Section 304 of the Indian Penal Code ( in short the IPC) and sentenced to undergo rigorous imprisonment for a period of four years and to pay a fine of Rs.2,000/ - and in default of payment of fine to further undergo rigorous imprisonment for two months. Shorn of unnecessary details, the brief facts of the case are that on 10.7.2000 an information was received on telephone in the police station on which Hem Chander SI reached village Bajghera where he came to know that one person had been buried under the soil who had been sent to General Hospital Gurgaon. Narender Singh s/o Attar Singh made a statement that on 9.7.2000 he got the information that three young boys were showing the feat on the cycle on Panchayat land in the village. During that show one item of samadhi was also to be shown. All the above three boys, in the course of show, dug a ditch of 6' depth and 4/5' wide and put Narender in the same in the form of samadhi and then the ditch was covered with earth after placing wooden planks on the same by Jagbir s/o Chandgi Ram and Amit s/o Raghunath of District Sonepat. They kept Narender burried for about 3 hours and thereafter when Narender was taken out, he was found unconscious. So many person from the village had also collected there. They sent Narender to General Hospital Gurgaon. Jagbir accused also accompanied him. He came to know that Narender had died. He then informed the police of Police Post Palam Vihar. Narender died due to the negligence of Jagbir and Amit accused. A case under Section 304 -A IPC was registered. Jagbir and Amit were arrested on 12.7.2000. On the advice of Assistant District Attorney offence under Section 304 IPC was converted. After completion of the invetigation, challan was presented against the accused.
(2.) CHARGE under Section 304 IPC was framed against both the accused, to which they pleaded not guilty and claimed trial. The prosecution, in order to bring home guilt of the accused, examined PW -1 Kirpa Ram, complainant, PW -2 Mam Singh, PW -3 Pirthi, PW -4 SI Rampal, PW -5 Sarwan Kumar, Draftsman, PW -6 Narender Singh, PW -7 Hem Chander SI, PW -8 Sunil Dutt HC and closed the prosecution evidence.
(3.) DURING the course of trial, accused Amit died and the proceedings against him were dropped. The accused Jagbir was examined under Section 313 Cr.P.C. and all the incriminating evidence was put to him, to which he pleaded innocence. He was called upon to lead his defence evidence but he had chosen not to lead any defence evidence. Learned trial Court after appraisal of the evidence convicted and sentenced the accused Jagbir to undergo imprisonment and fine vide judgment and order dated 1/3.9.2003, as narrated above. Feeling dissatisfied with the above said judgment and order dated 1/3.9.2003 passed by Sh. G.S. Kotla, Additional Sessions Judge, Gurgaon, the accused appellant has preferred the present appeal. Counsel for the appellant has submitted that case of the prosecution is that deceased alongwith Amit and appellant Jagbir were showing the feat on the bicycle on Panchayat land in the village. During that show one item of samadhi was shown. All the three boys dug a ditch of 6' dept and 4' wide and Narender formed a samadhi. The ditch was covered with earth after placing wooden planks. The said planks were removed after 3 hours and Narender became unconscious and later on succumbed due to suffocation. It is submitted that explicit reliance of the prosecution is upon the testimony of PW -1 Kirpa Ram, Chokidar of the village. This witness has categorically stated in the examination -in -chief, as well as, in the cross examination that he was not present when Narender went into samadhi. In the cross examination he has stated that he was not present at the spot when the game of cycle was being played. His testimony to the effect that Jagbir and Amit accused had made Narender to sit in samadhi is a hearsay evidence and the learned trial Court has wrongly relied upon his testimony regarding the occurrence.;