A conviction under Section 34 IPC requires proof of common intention and participation, which were found lacking in this case, leading to acquittal.

JUDGMENT :

MANOJ KUMAR OHRI, J.

1. By way of present appeals, the appellants seek to assail the judgement of conviction dated 17.10.2023 and order on sentence dated 18.01.2024 in Session Case No.110/2019 arising out of FIR No. 301/2016 registered under Sections 323/341/506/34 IPC at P.S. Karawal Nagar, Delhi.

Vide the impugned judgement, appellants stand convicted for the offence punishable under Sections 325/34 IPC and vide order on sentence, the appellants were sentenced to undergo RI for 6 months with fine of Rs.20,000/- each, and in default of payment of fine to further undergo SI for 3 months. Benefit of Section 428 Cr.P.C. was given to the appellants.

2. The underlying facts leading to the registration of above FIR (Ex.PW- 2/A) noted by the Trial Court are as under: -

“The story of the prosecution, in brief, is that on 31.08.2016 at about 11:30 PM near Hanuman Mandir, Shiv Vihar Tirah, Delhi, while Munni Devi wife of Bhoop Ram was sitting on her cart for selling fruit. Rahul, Poti Ram, Ashok Babu, Sachin and V’ (juvenile), who used to put their fruits cart nearby started quarreling with Munni Devi. In the meanwhile, Bhoop Ram also reached there and they started quarreling with him and gave beating to him. During quarrel 'V' (juvenile) hit on the head of Bhoop Ram with a danda due to which he started bleeding from his head. The accused persons also attacked on his body with some pointed object. They extended threats to kill him. His sister Premwati also arrived there and she also started quarreling with him. Bhup Ram went to GTB hospital along with his son-in-law Ram.”

3. On completion of investigation, charges were framed. In the trial, the prosecution examined 5 witnesses. The complainant Bhup Ram was examined as PW1, Dr. Sandeep Kumar who proved the MLC was examined as PW4, ASI Radhey Shyam, the IO, deposed as PW5. Rest of the witnesses were formal in nature and deposed as to various aspects of investigation. Appellants in their statement under Section 313 Cr.P.C., took the defence of false implication because the complainant had taken money from the appellant/Ashok’s wife, which he was not returning. In defence, they examined 2 witnesses; Rohtash Singh who was an eyewitness to the incident as DW1 and Premwati, wife of the appellant/Ashok who happened to be sister of the complainant as DW2. During the pendency of trial, the proceedings were abated for co-accused Sachin and Poti Ram on account of their death.

4. Learned counsel for the appellants submits that the appellants are innocent and have been falsely implicated in the present case by the complainant. It is submitted that the complainant had borrowed around Rs.60,000/- from his sister i.e., DW2, and on the day of the incident, the complainant abused DW2 when she asked for return of the money. The injury on complainant is sought to be explained by stating that he had slipped and hit his head on the handle of his rehri. It is further contended that neither the weapon of offence was recovered, nor any specific role has been attributed to the appellants and further that there was no common intention to attract Section 34 of the IPC.

5. Per contra, learned APP for the State has supported the impugned judgement. He submits that the complainant has been consistent and reliable and his testimony is supported by the MLC. It is further submitted that the reason of injury being the complainant slipping is unbelievable and clearly an afterthought. It is submitted that the testimony of Premwati is contradictory to the defence version as the amount stated to be borrowed by the complainant is different.

6. A perusal of the complainant’s testimony reveals that on 31.08.2016, at about