Advocates appeared :
For the Appellant : Vikas Saxena
For the Respondent : A. K. Nirankari

JUDGMENT : – This case was listed for consideration of I. A. No. 11401/2022, an application for suspension of sentence on the ground of delay in hearing of appeal. On 2-8-2022, the Counsel for the appellant took adjournment for arguing the appeal finally and accordingly, today, the appeal was heard finally.

2. This Criminal Appeal has been filed under section 374 of Criminal Procedure Code, against the judgment and sentence dated 24-3-2021 passed by 4th Additional Sessions Judge, Gwalior in S.T. No. 418 of 2016, by which the appellant has been convicted under sections 307 and 341 of INDIAN PENAL CODE and for offence under section 307 of INDIAN PENAL CODE , he has been sentenced to undergo rigorous imprisonment of 5 years and a fine of Rs. 1000/- with default rigorous imprisonment of 6 months and for offence under section 341 of INDIAN PENAL CODE , no jail sentence has been awarded and a fine of Rs. 100/- has been imposed with default simple imprisonment for 15 days.

3. The prosecution story in short is that on 10-9-2016, the complainant Sanjay Tiwari lodged a Dehati Nalishi in Sahara Hospital that his motorcycle was stopped by two miscreants near Mansha Devi, near the gate of Forest Department and sought his help on the ground that their motorcycle has gone out of order. The complainant expressed his inability to take the miscreants on his motorcycle. Then both the miscreants started abusing him and demanded Rs. 500/- for purchasing liquor. When he objected to it, then they started abusing and assaulting him. One boy was having on pointed iron object and assaulted him on his head whereas another gave a lathi blow on his shoulder. Dilip also reached on the spot, then the miscreants ran away. He has been admitted by Dilip in the hospital.

4. On the basis of Dehati Nalishi, the police registered FIR for offence under sections 341, 294, 323, 327, 34 of INDIAN PENAL CODE against two unknown persons. Spot map was prepared. The statements of witnesses were recorded. During investigation it was found that the offence has been committed by the appellant along with Sagar Soni and Nisha Chauhan. Accordingly, the appellant was arrested and on his memorandum, a Baka was seized from the bushes near the place of incident, whereas one motorcycle, jeans pant were seized from his house. On the information of an informer, co-accused Sagar Soni and Nisha Chauhan were also arrested. On the basis of report of CT scan, the Doctors opined that the injury caused to the appellant was dangerous to life, accordingly, offence under section 307 of INDIAN PENAL CODE was added. Since, co-accused Nisha Chauhan was a juvenile therefore, she was produced before JJB. The seized articles were sent for Forensic examination. The FSL report was received. Police after completing investigation, filed the charge sheet for offence under sections 341, 294, 323, 327, 307, 34 of INDIAN PENAL CODE .

5. The trial Court by order dated 9-3-2017, framed charges under sections 307, 327, 341 of INDIAN PENAL CODE and under section 25-B of Arms Act against the appellant and framed charges under sections 307/34, 327 and 341 of INDIAN PENAL CODE against co-accused Sagar Soni.

6. The appellant and co-accused Sagar Soni, abjured their guilt and pleaded not guilty.

7. The prosecution examined Sanjay Tiwari (P.W.1), Dilip Sharma (P.W.2), Manoj Dhakad (P.W.3), Shailendra Tiwari (P.W. 4), Devendra Singh (P.W. 5), Jyotsana Tiwari (P.W. 6), Hakim Singh (P.W.7), Dr. Keshav Rajput (P.W.8), Dr. R.N. Gupta (P.W.9), Smt. Yogita Bajpai (P.W.10), Ramlakhan Singh (P.W.11), Ramlakhan Singh Yadav (P.W.12), Maharaj Singh (P.W.13), Arvind Singh Tomar (P.W.14), and Ramkishan (P.W.15).

8. The appellant did not examine any witness in his defence.

9. The trial Court by the impugned judgment has acquitted the co-accused Sagar Soni and convicted the appellant for the above mentioned offences.

10. Challenging the judgment of conviction, it is submitted by the Counsel for the appellant that the ocu