The main legal point established in the judgment is the application of Section 325 of IPC instead of Section 308, based on the absence of intention to kill and the presence of contradictions in witness statements.

P.S. TEJI, J.

1. By way of separate appeals, the appellants seek to challenge the judgment of conviction and order on sentence dated 09.08.2001, whereby the appellants – have been held guilty for the offence punishable under Section 308/34 of IPC and they have been sentenced to undergo rigorous imprisonment for a period of three years each with fine of Rs.2000/-each and in default, they were ordered to further undergo simple imprisonment for thirty days.

2. Since the appellants have been convicted and sentenced by the common order passed by learned Additional Sessions Judge, therefore, with the consent of Mr. Bharat Bhushan Bhatia, learned counsel for the appellant – Aas Mohammad and Mr. Varinder Kumar Sharma, learned counsel for the appellant – Balmat, arguments in both the appeals are heard together and are being disposed of by this common order.

3. The incident in question is of 29.04.1994, at about 1.30 AM, when the complainant Kulbir Singh, who was a tempo driver, came home by bicycle after parking the tempo at the place of the tempo owner. When he was easing himself outside his house, four persons namely Deenu, Balmat, Basti and brother of Deenu forcibly took him to the House of Nirmala. These persons were carrying lathies with them. First of all, brother of Deenu gave lathi blows on Kulbir Singh’s head due to which he became unconscious. Thereafter he was admitted in Deen Dayal Upadhyay Hospital in an injured condition. On receipt of information, the investigating officer reached the hospital. The injured was found unfit for statement and ultimately on 16.05.1994, the statement of the injured Kulbir Singh was recorded when he narrated the incident to the investigating officer. He informed that the aforesaid four persons were carrying lathies with them and when brother of Deenu gave lathi blows on his head, he became unconscious.

4. During the course of investigation accused Deen Mohd and Basti were declared proclaimed offenders and only the appellants herein were charged with the offence under Section 308 read with section 34 of IPC, to which they did not plead guilty and claimed trial. However, the appellants had not led any witnesses in their defence.

5. To bring home the guilt of the appellants, the prosecution examined as many as 10 witnesses. They are, Kulbir Singh (PW-1); Smt. Rajbala (PW-2); Dalbir Singh (PW-3); Constable Narsingh (PW-4); Dr. Yash Raj, Specialist Radiology, Guru Gobind Singh Hospital (PW-5); Head Constable Dalip Kumar (PW-6); Constable Ajay (PW-7); Dr. D.D. Gulani, CMO DDU Hospital (PW-8); Inspector Gurmeet Singh (PW-9); Head Constable Ram Narain (PW10).

6. Thereafter, entire incriminating material on record was put to the appellant, and his statement under Section 313 of Cr.P.C. was recorded, in which they pleaded not guilty and claimed trial. However, the appellants did not prefer to lead any defence evidence.

7. After considering the facts, evidence led and the material on record, the learned Additional Sessions Judge held the appellants -Aas Mohammad and Balmat guilty for the offence as mentioned above and vide order on sentence passed, sentenced the appellants, as indicated above. During pendency of the present appeal, the sentence imposed upon the appellant – Aas Mohammad was suspended vide order dated 30.08.2001 and the sentence of appellant – Balmat was suspended vide order dated 05.12.2001.

8. Learned counsel for the appellant – Aas Mohammad contended that the appellant has been convicted merely on the statement of injured Kulbir Singh (PW-1) stating that he had suffered grievous injury caused by the appellant on his head from the back side. However, as per the prosecution, the injury was caused by Deen Mohd, who remained a proclaimed offender and had also received injuries from the hands of the complainant party. The prosecution case has been changed by stating that he was given beating in the Gali in the presence of witnesses Dalbir Singh and his wife, however in the report under Sec