JUDGEMENT

1. The instant appeal under Section 378 of the Code of Criminal Procedure, 1973 (In short “Cr.P.C.”) is directed against the judgment of acquittal dated 16.04.2015 passed in Sessions Case No.12/13 by the learned Additional Sessions Judge - 03, North-East, Karkardooma Courts, New Delhi, acquitting the accused/respondent in a case arising out of FIR No.24/2012 under Section 304 of the Indian Penal Code, 1860 (In short “IPC”) registered at Police Station Seelampur, Delhi.

2. Learned counsel appearing for the appellant states that the impugned order passed by the learned ASJ is perverse, palpably wrong, manifestly erroneous, and demonstrably is not sustainable in the eyes of law. Further, it is against the basic provision of law. He further submits that the order of learned ASJ is based on conjectures and surmises and as such cannot stand the scrutiny of law and thus, deserves to be quashed.

3. The case of the respondent is that the learned trial court has rightly concluded that the prosecution has failed to prove the case beyond reasonable doubt. According to him, the reasoning given by the learned trial court for the acquittal of the respondent is based on the sound legal principle that the accused cannot be convicted unless the prosecution proves the case beyond reasonable doubt. In the instant case, he submits that evidence has been created falsely to implicate the respondent and there is no reason to believe the prosecution story.

4. I have heard the learned counsel appearing for the parties and perused the record.

5. The case of the prosecution is that on 22.01.2012 at around 12 or 1 noon, near Shastri Park Red Light, Delhi, a quarrel/verbal exchange took place between Mohd. Rizwan @ Rizvi and respondent Asgar Ali. During that quarrel, accused Asgar Ali hit the head of Mohd. Rizvi with a stick (danda) which resulted in injuries to his head. PW-1 Naushad, who was the brother of Mohd. Rizwan @ Rizvi, on coming to know about the incident, reached the spot and informed the PCR. The information about this quarrel was recorded in Police Station Seelampur vide DD No.33B (Ex.PW9/A). In the meantime, the PCR van reached the spot and Mohd. Rizwan was moved to GTB Hospital where his MLC Ex.PW6/A was prepared. Rizwan, after his treatment, came back home. On the next day, PW-1- Naushad went to Police Station Seelampur and gave his statement which is Ex.PW1/A and on the basis of the said statement, SI Mukesh Kumar prepared a rukka Ex.PW14/1, and produced it for registration of FIR. On the basis of the rukka, PW-9 W/ASI Mary Rose recorded the FIR Ex.PW9/B. However, on 23.01.2012, the condition of Rizwan deteriorated and PW-1 Naushad called a doctor namely Dr. Ansari. On examining Rizwan, Dr. Ansari informed PW-1 Naushad, that Rizwan had expired and this information was then communicated by PW-1 to the police. Police then took the dead body of Rizwan to GTB Hospital.

5.1 On 24.01.2012, PW-3 Dr. Neha Gupta conducted the autopsy on the dead body of Rizwan and submitted her report Ex.PW3/A. She, however, did not give any opinion regarding the cause of death and decided to wait for chemical analysis of the viscera. On

03.02.2012, after receiving the chemical analysis report of viscera, PW-3 Dr. Neha Gupta, vide her subsequent opinion Ex.PW3/C dated

17.09.2012, opined the cause of death to be asphyxia as a result of antemortem aspiration consequent upon injury to the head produced by blunt force impact. She also opined that the deceased had consumed alcohol before his death. Thereafter, on 24.01.2012, the respondent was arrested near Shastri Park Red Light, Bulland Masjid, Delhi and made a disclosure statement which is ExPW1/F. Pursuant to this disclosure, at the instance of the accused, from the North-East corner of DDA Park of Shastri Park, one bamboo/danda (stick) was recovered. Vide opinion dated 03.02.2012 which is Ex.PW3/B, PW3 Dr. Neha Gupta, had opined that inj