The court emphasized the necessity of establishing intention or knowledge for culpable homicide under Section 308 IPC, determining that the prosecution met its burden despite minor inconsistencies in witness testimonies.

JUDGMENT

NEENA BANSAL KRISHNA, J.

1. The present Criminal Appeal under Section 378 of the Code of Criminal Procedure (hereinafter referred to as „CrPC, 1973‟) has been filed on behalf of the appellant, to challenge the Judgment dated 01.10.2008 vide which the respondents, namely, Mohit Kumar and Sandeep Kumar, have Signature Not Verified Digitally Signed CRL.A.541/2009 Page 1 of 11 been acquitted for the offence under Section 308 /34 of the Indian Penal Code , 1860 (hereinafter referred to as „IPC, 1860‟).

2. The case of the prosecution in brief, is that on 20.09.2006, at about 5:30 p.m., Mohit Kumar (accused), son of Shish Pal along with another boy (co-accused Sandeep Kumar), went to the house of the complainant Maninder Gautam and called him outside, after which they abused and threatened him and then hit him with a pointed/sharp instrument, which resulted in a serious wound on his head. He started bleeding profusely and became unconscious. His neighbour, Mr. Kamal Singh, who saw him lying unconscious, called the PCR and the injured was taken to Guru Teg Bahadur Hospital where he received 21 stitches on his head. Thereafter, on his complaint, FIR No. 701/2006 under Section 308 /34 of IPC, was registered.

3. Subsequently, on 26.09.2006, the respondents were arrested at the instance of the complainant. The two co-accused/respondents led the police for the recovery of the nail cutter from near the wall, close to the place of incident. On the completion of investigation, the Charge-Sheet was filed in the Court and the charges were framed under Section 308 /34 IPC.

4. The prosecution examined 12 witnesses out of whom PW-1 Kamal Singh was the person, who had called the PCR. PW-2 Maninder Gautam is the injured, who had proved his complaint Ex.PW-2/1 and had deposed about the entire incident. PW-3 Sanjay Tomar, who was an eye witness but he failed to support the case of the prosecution. PW-6 Dr. P. Yadav, CMO, GTB Hospital had examined the inured on 30.09.2006 and prepared his MLC, Ex.PW-6/1. PW-7 Dr. Pradeep Saini has opined the nature of injury to be simple. PW-10 Head Constable Ashok Kumar had joined the investigations with PW-9 ASI Dharam Singh, the Investigating Officer and Signature Not Verified Digitally Signed CRL.A.541/2009 Page 2 of 11 effected the recovery of the nail cutter at the instance of the respondents. Rest were the police witnesses who have deposed about the investigations that had been carried out.

5. The statements of the respondents were recorded under Section 313 Cr.P.C. in which they pleaded their innocence. They examined DW-1, Roshan Lal who deposed that he was present at the Bhushan Nai (barber shop) on 20.09.2006 at about 5:30 p.m. and no incident of fight took place.

6. Learned ASJ observed that PW-1 Kamal Singh, who had found the injured lying unconscious had deposed that he had seen the injured walking towards him in injured condition with blood profusely coming out of his head and had also deposed that the injured had disclosed the names of the assailants to him. It was observed that the testimony of PW-1 Kamal Singh was contradictory to the testimony of the injured, PW-2 Maninder Gautam, who had deposed that he had fainted soon after the injury was inflicted and then gained consciousness only in the GTB Hospital. Learned ASJ further observed that the identity of the weapon of offence i.e. nail cutter was not be established and the possibility of the weapon of offence having been planted could not be ruled out. Thus, the story of the prosecution was not believed and the two respondents were acquitted.

7. Aggrieved, the present Appeal has been filed wherein the impugned Order of acquittal, has been challenged by the Sta