STATE Vs. MOHD ZAHID

JUDGEMENT

(1.) The present appeal has been preferred by the appellant/State under Sec. 378 Cr.P.C. seeking setting aside of the impugned judgment dtd. 25/1/2016 passed by the learned Additional Sessions Judge, North-East District, Karkardooma Courts, Delhi, in proceedings arising out of FIR No. 337/2011 registered at P.S. Jyoti Nagar, whereby the Trial Court acquitted the respondent of the charge under Sec. 308 IPC. Notably, the leave to appeal was granted vide order dtd. 7/9/2017.

(2.) The case of the prosecution, in brief, is that on 20/8/2011 at about 8:45 p.m., the respondent had a quarrel with the injured and struck him on the head with a hammer with such intention or knowledge and under such circumstances that, if by that act death had been caused, he would have been guilty of culpable homicide not amounting to murder. The injured was removed to GTB Hospital by the PCR van and was initially declared unfit for statement. On the next day, after being declared fit, his statement was recorded. Consequently, the respondent was arrested, and a hammer was allegedly recovered from his house. Upon completion of investigation, the charge-sheet was filed, and the case was committed to the Sessions Court, where a charge under Sec. 308 IPC was framed. The respondent pleaded not guilty and claimed trial.

(3.) The prosecution examined 10 witnesses in support of its case. The key witnesses are the injured/PW-2, who deposed that the respondent assaulted him with an iron hammer; the brother of the injured/PW-3, who claimed to have witnessed the incident; and PW-10/SI Vivek Malik, the I.O. of the case, who deposed as to various aspects of the investigation including visiting the spot of the incident, arresting the respondent, and the recovery of a hammer from his house. As for the other witnesses, PW-4/HC Jitender Pal stated that on receiving information regarding an injured person lying near Yasin Hotel in Gali No. 1, Kardam Puri, he along with PCR staff went to the spot where they found the injured lying in a semi-conscious state on the road and they shifted him to GTB Hospital; PW-5/ASI Ram Niwas proved recording of DD No. 35A regarding a quarrel; PW-7/Ct. Ajay Malik accompanied the I.O. during the initial investigation and deposed about reaching the spot, preparation of the rukka, and subsequent procedural steps; PW-1/HC Rishi Pal proved registration of FIR No. 337/2011; PW-6/HC Sunil Kumar, MHC(M), proved the malkhana entries regarding deposit of two sealed parcels by the concerned I.O. and clarified that the parcels were not sent to FSL; PW-8/Dr. P. K. Saha identified the signatures of the examining doctor on the MLC of the injured prepared at GTB Hospital; and PW-9/Dr. Virendra proved the subsequent medical opinion declaring the injuries sustained by PW-2 to be grievous in nature.