Point of Law: It is sufficient that incriminating circumstance in this regard including post mortem report was put to appellant while recording statement under Section 313 Cr.P.C. and the appellant did not give any alternate version.

JUDGMENT :

1. By this appeal the appellant assails the order and judgment dated 15th February, 2016 whereby he was convicted for offence punishable under section 302 IPC and has been awarded rigorous imprisonment for life vide order on sentence dated 22nd June, 2016 and to pay a fine of Rs.20,000/- and in default thereof, to further undergo simple imprisonment for six months.

The Incident:

2. As per the prosecution, on the intervening night of 31st May, 2012 and 1st June, 2012 at about 1:30 AM, victim (deceased) was assaulted by the appellant (accused) with an intention to kill and thereby caused his death. This crime was committed in front of Reliance Fresh Metro Food Bazar, 86, Local Shopping Complex, Vivekanand Puri, Sarai Rohilla, Delhi. On 3rd June, 2012, after completion of investigation, the appellant was arrested. Learned Trial Court framed charge under Section 302 IPC to which the appellant pleaded not guilty and claimed trial.

3. Prosecution examined 24 witnesses in support of its case; statement of appellant was recorded under Section 313 Cr.P.C.; no evidence was led in defence by the appellant.

Submissions by the appellants:

4. Learned counsel for the appellant submitted that the prosecution case suffers from many flaws and in order to substantiate the point, the contentions pressed by the appellant are, inter alia as under:

i) Learned Trial Court failed to appreciate that on account of various lacunae, the prosecution could not prove its case beyond reasonable doubt and benefit of doubt ought to have been given to the appellant.

ii) The testimonies of some of the prosecution witnesses viz. a viz. PW-2, PW-3, PW-5 ad PW-10 were inconsistent and did not match / support each other?s version. Particularly, PW-5 did not state that he had seen the appellant committing the offence and that even when he was chasing the appellant, he could not see him due to darkness in the street.

iii) Since the murder was a consequence of a „spur of a moment?, at best it was a single blow with no previous enmity, at the very least,

Exceptions 1 and 4 to Section 300 IPC would apply but despite that, the appellant has already been incarcerated for almost 10 years. The Learned Trial Court has wrongly convicted the appellant under Section 302 IPC rather than Section 304 IPC and thus, the impugned order be set aside.

iv) The appellant had been reported to be drunk at the time of alleged incident, per testimony of prosecution witnesses and therefore, he could not possibly have had an intention to murder in a scuffle that broke out suddenly. Since as per the case of prosecution itself the appellant was drunk, he could not differentiate between right and wrong in an inebriated condition.

v) The Investigating Officer did not pick up any finger prints from the alleged bottle with which murder is claimed to have been committed and hence, there is no scientific proof to corroborate the prosecution version.

vi) The weapon of offence was not recovered at the instance of the appellant nor was it produced before the learned Trial Court.

vii) Prosecution witness was not asked to explain as to why the incident was not reported immediately to the police despite seeing the dead body or that why he left the spot without informing anyone about the dead body.

viii) While there was record of seizure of floor mat of the vehicle, the witness did not state that it was seized in front of him.

ix) PW-10, the doctor from the Department of Forensic Medicine, stated that pieces of broken glass were found inside the body of the deceased but he did not identify the bottle which was found at the crime scene. The doctor did not give any opinion regarding the number of weapons which might have been used to cause injuries; in fact, he stated that all the injuries could be possible by single hand and blunt pointed weapon with blunt edge.

x) PW-5, the helper working on transport truck like the deceased, had ran off from the scene of quarrel to call his employers PW-1 and PW-3 and he himself ha