The main legal point established in the judgment is the admissibility of the MLC and X-Ray report as evidence, as well as the application of sentencing principles and mitigating factors.

Ashutosh Kumar, J.

1. All the appeals have been heard together and are being disposed of by this common judgment.

2. Ram Kumar Pathak, (appellant in Criminal Appeal No.285/2011), Shobran Pal and Ramesh Pal (appellants in Criminal Appeal no.897/2011) have challenged the judgment and order of conviction dated 11.02.2011 and 15.02.2011 passed by the learned Additional Sessions Judge (North-West-04), Rohini, Delhi, in Sessions case no.75/2009, arising out of FIR No.807/2006 (PS Uttam Nagar), whereby they have been convicted under Sections 308/34 of the IPC and have been sentenced to undergo Rigorous Imprisonment for four years, fine of Rs.7,000/- and in default of payment of fine, a further Simple Imprisonment of 7 months, with the benefit of Section 428 of the Code of Criminal Procedure (for short “Cr.P.C.”) accruing to them.

3. Durvesh Singh (appellant in Criminal Appeal No.513/2011), has on the other hand, challenged the judgment on the ground that from the evidence adduced during the course of trial, the accused persons ought to have been convicted under Section 307/34 of the IPC and not under Section 308/34 of the IPC.

4. Durvesh Singh has also questioned the adequacy of the sentence imposed upon the accused persons.

5. The appellants have questioned the correctness of the impugned judgment and order of conviction on the ground that the Trial Court has thrown to the winds the accepted canons of appreciating evidence and has completely ignored serious contradictions in the statements of the witnesses which tantamounts to a total departure from the prosecution version. The impugned judgment has been assailed on further grounds namely; (i) non-examination of any independent witness to the occurrence; (ii) completely shutting out the evidence of two witnesses offered on behalf of the defence; and (iii) also the fact that the injury report was not proved by the Doctor who wrote the report and thus there being no material to suggest that Durvesh Singh (PW.3) was injured in the occurrence and in the manner in which the appellants are alleged to have assaulted him.

6. Durvesh Singh (PW.3), during the Trial, has supported the statement given by him before the police on 03.09.2006 (Ex.PW.3/A) and has testified to the fact that on the day of the occurrence, all three appellants (Ram Kumar Pathak, Shobran Pal and Ramesh Pal) assaulted him by means of hockey sticks and dandas. He has deposed that at the relevant time he was an employee of Jagdamba Gas Agency at Keshav Pur Depot, where the appellant Ramesh Pal also worked as supplier of gas cylinder to the customers. Ramesh Pal was harbouring a grudge that perhaps because of PW.3, he was removed from the service of Jagdamba Gas Agency. The appellant Ramesh Pal had threatened PW.3 of dire consequences in the past. He has further alleged that sometime prior to the occurrence i.e. on 24.08.2006, appellant Shobran Pal along with 2-3 other persons had surrounded him in front of Subzi Mandi, Keshav Pur, but PW.3 could anyhow save himself from being assaulted. On 03.09.2006, as has been stated by PW.3, while he was coming back from his shop and proceeding towards his home, he met one person near the crossing of Vikas Nagar at around 08:20 p.m. who requested him to give lift till the hospital/nursing home as he was hit by a moving vehicle. PW.3 thereafter took the aforesaid person on his vehicle and proceeded for the nursing home. No sooner had he reached some distance, he noticed that the appellants, variously armed with hockey sticks and dandas, were standing on a vacant plot. The appellants Shobran Pal and Ram Kumar were having hockey sticks in their hands whereas Ramesh Pal was carrying a danda. PW.3 was assaulted by all three appellants. While warding off the attack, he received injuries on his hand leading to fractures. He was mercilessly assaulted on his legs which were also fractured. PW.3, thereafter, fell down on the ground. The appellants were of the impression that he has died beca