RAJIVE BHALLA,J - (1.) The appellant, challenges judgment dated 31.05.2013, whereby the respondents have been acquitted of a charge under Section 302 read with Section 34 of the Indian Penal Code. Counsel for the appellant submits that the impugned judgment has been recorded by disregarding relevant facts, ignoring statement made by the deceased, before PW8 -Dharampal Sharma and PW9 -Abhishek as well as the statement made by the Investigating Officer. It is further submitted that PW13 -Dr. Lokesh Gupta has recorded that the deceased was conscious and oriented, but was unfit to make a statement. The fact that the deceased was conscious and eventually died a few hours later does not rule out the possibility of making a statement to PW8 Dharampal Sharma and PW9 -Abhishek, identifying the assailants. It is further submitted that discrepancies pointed out by the trial court between statements made under Section 161 of the Code of Criminal Procedure and their depositions in Court, are natural and even otherwise contrary to the record. PW8 Dharampal Sharma and PW9 Abhishek were sitting besides the deceased between 6.30 AM and 8.00 AM and merely because they did not state in their statements, recorded under Section 161 of the Code of Criminal Procedure that the deceased made a statement identifying the accused, is insufficient to rule out their depositions. It is further submitted that as the respondents admitted their guilt, suffered disclosure statements that led to recovery of weapons of offence, the prosecution has clearly proved the case beyond a shadow of doubt. It is also contended that the trial court should taken the totality of circumstances into consideration and convicted respondents no.1 to 3.
(2.) COUNSEL for the respondents submits that the impugned judgment is well reasoned, is based upon a considered appraisal of the evidence, the trial court has rightly acquitted respondents no.1 to 5. It is further submitted that the evidence on record, namely the depositions of PW8 Dharampal Sharma and PW9 Abhishek have been disbelieved by assigning clear and cogent reasons relating to the time of their arrival in the hospital and the statement made by the complainant, that when they arrived, Sanjeev had already passed away, and the medical evidence that during this period, the deceased remained unconscious. It is submitted that findings recorded by the courts below being clear, cogent and rationale, the appeal may be dismissed. Before we record our conclusions, it would be necessary to refer to the facts, as well as the evidence in detail. On 30.04.2012, upon receipt of information regarding the death of one Sanjeev, a police party headed by SI Tota Ram, accompanied by ASI Hari Kishan and ASI Ram Nath reached B.K.Hospital, Faridabad, where Satbir, father of the deceased, made a statement that led to registration of the FIR. Satbir stated that his son was working in the workshop of his brother -in -law Abhishek. At about 5.00 AM, on 30.04.2012, his son went out for a walk in the park at Piyali Chowk. Bihari Parshad accused, who resides in Press Colony, sells sugarcane juice on a rehri with his sons Premjit and Dina Nath. The latter gave merciless beatings to Sanjeev with dandas and iron rods. On receipt of this information, he and his brother -in -law Abhishek and Dharampal rushed to the spot, where they were told that Sanjeev has been shifted in a police gypsy, to B.K.Hospital, Faridabad. When they arrived at the hospital, Satbir found that his son Sanjeev had already passed away due to injuries caused by the accused.
(3.) AFTER registration of the FIR, the police recorded statements of witnesses, including the statements of PW8 Dharampal Sharma and PW9 Abhishek collected various incriminating evidence and arrested the accused. The accused suffered disclosure statements that led to recovery of dandas, iron rods etc. said to have been used in commission of the offence, and upon completion of investigation, filed a final report.;