Presence at a crime scene does not establish guilt absent clear evidence of participation or intent. The acquittal by the trial court was supported by plausible reasoning.

JUDGMENT

Mukta Gupta, J. (Oral)

CRL.M.A. 1211/2020 (for condonation of delay)

For the reasons stated in the application, delay of 20 days in filing the leave to appeal petition is condoned.

Application is disposed of.

CRL.L.P. 69/2020

1. The present leave to appeal had been filed by the State against the judgment dated 28th August 2019 whereby the two respondents Yogesh Sharma and Sonu were acquitted for offences punishable under Sections 302/392/394/397/34 IPC. Besides the two respondents, as per the prosecution case, two more persons were involved, one being a juvenile whose enquiry was conducted before the learned Juvenile Justice Board and the other alleged accused Pawan could not be arrested.

2. During the pendency of the present leave to appeal petition, respondent No. 2 Sonu passed away and thus, vide order dated 12th August 2021, this court noted that the petition qua respondent No. 2 stands abated. Thus, the leave to appeal is now sought only qua respondent No. 1 Yogesh Sharma.

3. Case of the prosecution is that the respondent No.1 was seen running along with the main accused Sonu who was having a knife in his hand coming from the side of the railway track besides the two other boys, who entered into the street of Chhapra Barber and ran towards Azad Pur village. Out of four boys, one was having a knife and said boy was Sonu. Behind these boys, one man aged 35-40 years was following, catching hold of his stomach with his hand and raising the alarm "pakdo, mujhe chaku maar diya hai" as stated by PW-2.

4. The FIR in question was registered not on the statement of PW-2 but of Inspector Brij Pal Singh who appeared as PW-23 who noted on the Tehrir that at the spot no eye witness was found and the injured died without making any statement. Thereafter, statement of PW2 was recorded who in his deposition before the Court stated as under:

"PW2- MOHD. IQBAL, AGED 25 YEARS S/O RAJUDDIN R/O.T-35, MOOL CHAND COLONY, RAMA ROAD, ADARSH NAGAR, DELHI.

ON S.A.

I do the job of Mashakhori (to sell vegetables in retail) at Azad Pur Mandi.

On 16.06.2010, at about 7.45 or 8.00 PM, I was coming from Azad Pur Railway Station side and was going towards New Subzi Mandi via railway track, when I reached in front of the shop of Chhapra Baber, there I saw that four boys were coming from the side of railway track/railway bridge and they entered in the street of Chhapra Barber and ran towards Azad Pur Village. One of them was having a knife in his hand. One man, aged about 35-40 years was following said four boys and was catching hold of his stomach with his hands and was raising alarm, "pakdo, Mujhe Chaku Maar Diya Hai". I was having fracture in my left leg, as such I was unable to chase the said four boys. The said injured man went towards Jelarwala Bagh, railway track. I also left the place.

On 17.06.2010, I disclosed the abovesaid facts to the IO and he recorded my statement. I also gave the description of said four boys to the IO in my statement. I did not identify and accused in this case at any place. Out of the said four boys, three are today present in the Court (correctly identified). The knife was in the hand of accused today wearing blue shirt and jeans (witness pointed towards accused Sonu). I identified the fourth accused in TIP in Bachcha Jail (Observation Home) on 23.12.2010. I came to know his name as Pawan.

Xxxxx by counsel Sh.R.S. Deshwal for accused Yogesh.

Earlier I was facing trial in a case U/s.399 IPC. But there is no case pending against me. It is wrong to suggest that I sustained facture in my legs due to the beating given by the police. It is wrong to suggest that I was a booked criminal of the area. Mahender Saini and one Sardar Ji are my nei