JUDGMENT :

MUKTA GUPTA, J.

1. By this petition, State seeks leave to appeal against the impugned judgment dated 31st October, 2019 whereby the learned Trial Court acquitted the respondents for offences punishable under Sections 302/174-A/34 IPC.

2. Case of the prosecution is based on the statement of PW-1/ brother of the deceased Johny who stated that he along with his family members including Johny were residing in the house belonging to their grand maternal father (Nanaji). In the year 2010 his brother was doing the job of repairing radio cover. On 14th April, 2010 at about 8.30 PM he along with his brother and neighbour Vijay Chopra were going to Three and a Half Pushta for a walk when ‘P’ (CCL) came riding on a scooter and he put scooter between the two legs of his brother Johny. On this Johny asked ‘P’ “Dekh kar nahin chal sakta”. ‘P’ got enraged and slapped his brother. However, the matter was closed. Thereafter, on 15th April, 2010 his brother along with Vijay Chopra and Sheru were present near the Masjid behind Lal Hospital. At around 8.00 PM ‘P’ again met his brother and some altercation took place between his brother and ‘P’. His brother slapped ‘P’ 5 – 6 times when ‘P’ left after threatening his brother that “mein tujhe dekh lunga”. On 16th April, 2010 he along with his brother Johny, Vijay Chopra and Sheru were standing at the square in front of Lal Hospital. In the meantime ‘P’ came along with his 2 – 3 accomplices to the spot. ‘P’ caught hold of his brother and thereafter ‘P’ and his accomplices started beating his brother and threw him on the ground. Vipin Kumar, the witness, further stated that he along with Sheru, Vijay Chopra and another neighbour Sonu tried to save Jony but ‘P’ said that he would avenge his insult. ‘P’ asked his accomplices to kill his brother. Thereafter, ‘P’ took out a knife and stabbed Johny in the chest. ‘P’ and his accomplices escaped from the spot.

3. This testimony of PW-1 is not supported by any of the other three eye-witnesses who have turned hostile and de-hors the material contradictions and improvements pointed out in his testimony, it may be noted that the role assigned to the two appellants who are stated to be the accomplices are that they came along with ‘P’, ‘P’ caught hold of PW-1’s brother and thereafter ‘P’ and others started beating and threw him on the ground. This beating was obviously by fists and kick blows, as no weapon of offence has been attributed at this stage and is also not evident from the post-mortem report. When the witness along with Sheru, Vijay Chopra and Sonu tried to save him, it is again ‘P’ who stated that he will avenge his insult and told his accomplices to kill his brother. However, none of the accomplices has been attributed any act thereafter and it is ‘P’ who takes out the knife and stabs Johny, the brother of the witness in the chest.

4. As per the post-mortem report one stab injury has been found on the left side of the chest. The track of the wound goes through the skin, subcutaneous tissue, 5th rib, 5th intercostal space and finally cutting through lower lobe of left lung to a depth of 8 cm. The two other injuries were two bluish bruises on the mandible portion which could have been due to the fall as well. ‘P’ being a juvenile, an inquiry qua him was conducted before the Juvenile Justice Board and before the learned Additional Sessions Judge, the two accused i.e. Raju Kumar and Vinod Kumar, who are the respondents herein were tried and acquitted.

5. From the testimony, as noted above, it is evident that no specific role except of beating physically, nor of any exhortation, nor of acting pursuant to exhortation has been attributed to the respondents herein. Thus, even ignoring the contradiction and improvements, at best a role under Section 323 IPC has been attributed to the respondents. A perusal of the Trial Court Record reveals that respondent Raju Kumar has been in custody for nearly two years and even Vinod Kumar was granted bail after the w