A conviction based solely on unreliable witness testimonies, which failed to support the allegations, cannot be sustained in law.

JUDGMENT :

CHANDRASEKHARAN SUDHA, J.

1. In this appeal under Section 374 of the Code of Criminal Procedure, 1973 (the Cr.P.C), the accused persons in Sessions Case No. 103/2016 on the file of the Additional Sessions Judge, Shahdara District, Karkardooma Courts, Delhi, assails the judgment dated 17.01.2017 and order on sentence dated

21.01.2017 as per which the accused persons have beenconvicted and sentenced for the offence punishable under Section 308 read with Section 34 of the Indian Penal Code, 1860 (the IPC ).

2. The prosecution case in brief is that on 04.04.2012 at around 11:30 PM, the accused persons in furtherance of their common intention, wrongfully restrained PW2 and voluntarily caused bodily injury on his head and stomach with an iron rod and a brick with the intention and knowledge that, if they by that act caused death, they would be guilty of culpable homicide not amounting to murder. Hence, the accused persons are alleged to have committed the offences punishable under Sections 341 , 308 read with Section 34 IPC .

3. On the basis of Ext. PW8/A FIS of PW3, given on 05.04.2012, Crime no. 127/2012, Jagat Puri Police Station, that is, Ext. A-1 FIR was registered by the Assistant Sub-Inspector. PW8, Sub-Inspector, conducted investigation into the crime and on completion of the same filed the charge-sheet/final report alleging commission of the aforesaid offences.

4. When the accused persons were produced before the trial court, all the copies of the prosecution records were furnished to them as contemplated under Section 207 Cr.PC. Thereafter, in compliance of Section 209 Cr.P.C, the case was committed to the Court of Session concerned. On appearance of the accused persons and after hearing both sides, the trial court as per order dated 21.01.2015, framed a Charge under Sections 341 , 308 read with Section 34 IPC , which was read over and explained to the accused persons, to which they pleaded not guilty.

5. On behalf of the prosecution, PWs. 1 to 8 were examined and Exts. PW1/P-1, PW1/A, PW2/A-B, PW3/A, PW5/A, PW6/A, PW7/A-C, PW8/C-F A-1, A-3, A-4, A-5, A-6, A-7, A-8, A-9 and A-10 were marked.

6. After the close of the prosecution evidence, the accused persons were questioned under Section 313 (1)(b) Cr.P.C. regarding the incriminating circumstances appearing against them in the evidence of the prosecution. The accused persons denied all those circumstances and maintained their innocence. They claimed that they had been falsely implicated in the case.

7. After questioning the accused persons under Section. 313(1)(b) Cr.P.C., compliance of Section 232 Cr.P.C. was mandatory. In the case on hand, no hearing as contemplated under Cr.P.C. is seen done by the trial court. However, non- compliance of the said provision does not, ipso facto vitiate the proceedings, unless omission to comply with the same is shown to have resulted in serious and substantial prejudice to the accused (See Moidu K. vs. State of Kerala , 2009 (3) KHC 89 : 2009 SCC OnLine Ker 2888). Here, the accused persons have no case that non-compliance of Cr.P.C has caused any prejudice to them.

8. No oral or documentary evidence was adduced by the accused persons.

9. Upon consideration of the oral and documentary evidence on record and after hearing both sides, the trial court, vide the impugned judgment dated 17.01.2017, found the accused persons guilty of the offence punishable under Section 308 read with Section 34 IPC . Vide order on sentence dated 21.01.2017, all accused persons have been sentenced to simple imprisonment for a period of 3 years and to fine of ₹25,000/-, and in default of