The main legal point established in the judgment is the admissibility of minor discrepancies in the testimonies of witnesses and the interpretation of the second limb of Section 304 IPC.

Sunita Gupta, J.

1. Challenge in this appeal is to the judgment dated 02.08.2010 and order on sentence dated 04.08.2010 whereby the appellant was convicted for offence under Sections 304 of Indian Penal Code, 1860 (“IPC” for short) in Sessions Case No. 30/09 arising out of FIR No.240/08 Police Station Daryaganj for culpable homicide not amounting to murder of deceased Rakesh and sentenced to undergo rigorous imprisonment for a period of ten years and fine of Rs.5,000/-. In default of payment of fine, the appellant was to undergo rigorous imprisonment for a period of six months.

2. Prosecution case emanates from the fact that on 19.09.2008 at about 11.30 pm, complainant – Nasir was present along with his friends Mohd. Shakeel and Mohd. Rehan near the parking gate in front of Delite Cinema. The three of them were sitting in a TSR and chatting with each other when one Iqbal, who was known to Nasir, came running towards them and informed that one person was fiercely beating another man near the parking gate. Thereafter, all three of them accompanied by Iqbal went towards the place of incident and saw the accused hitting on the head of another man with a stone. On seeing the complainant and his friends approaching him, accused fled from the spot. The complainant called the police from his mobile and informed about the incident. A police gypsy came and took the injured to the hospital, who later on succumbed to his injuries. Meanwhile, the complainant along with his friends went in the direction where the accused had fled and apprehended him near the MTNL building. Thereafter, the complainant again called up the police and informed them about the apprehension of the accused. The police came and arrested the accused. A blood stained stone with which the accused allegedly hit the deceased was seized and sealed at the spot. Statement of Mohd. Nisar was recorded which culminated in registration of an FIR under Section 308 IPC. On 20.09.2008, the injured Rakesh succumbed to his injuries, as such the case was converted to Section 304 IPC. After completing investigation, charge-sheet was submitted against accused.

3. Charge for offence under Section 304 IPC was framed against the accused to which he pleaded not guilty and claimed trial.

4. In order to bring home the guilt of the accused, the prosecution, in all examined 16 witnesses. All the incriminating evidence was put to the accused in his statement under Section 313 of Code of Criminal Procedure wherein he denied his involvement in the case and stated that he has been falsely implicated. He did not prefer to lead any defence evidence. Vide impugned judgment, the learned Additional Sessions Judge observed that case of the prosecution stands established from the testimony of eye witnesses coupled with the medical evidence. No motive was imputed by the prosecution as such it was observed that the accused had knowledge that the bodily injuries which he inflicted were likely to cause death and as such the case squarely falls within the second limb of Section 304 IPC.

5. Aggrieved by this judgment, the present appeal has been preferred by the appellant.

6. The material witnesses who substantiated the case of the prosecution are PW2 – Mohd. Shakeel, PW4 – Iqbal, PW5 – Rehan and PW13 – Mohd. Nasir.

7. PW2 – Mohd. Shakeel is one of the eye witnesses of the incident. He deposed that on 19.09.2008 at about 11.30 pm, he was present near Delite Cinema with Rehan and Nasir. One boy named Iqbal from Shehnai Band came there and told them that one boy was hitting another boy on face with stone and when Iqbal intervened he was asked to leave the spot. According to him, Iqbal was nervous when he came to them. On receiving the information from Iqbal all four of them proceeded towards Shehnai Band near Delhi Gate red light and saw that the accused was hitting a boy with a stone on his forehead. The boy was bleeding from nose and mouth. In the meantime, police gypsy also reached the spot. By