State vs . 1. Chandgi Ram S/O. Sh. Satya Prakash on 29 April, 2014

[Cites 35, Cited by 0]

Delhi District Court

State vs . 1. Chandgi Ram S/O. Sh. Satya Prakash on 29 April, 2014

 IN THE COURT OF SANJAY GARG: ADDITIONAL SESSIONS JUDGE: 
          01(EAST)  : KARKARDOOMA COURT: DELHI.

SC No.                                                   126/13
FIR No.                                                  433/09
PS.                                                      Anand Vihar 
US.                                                      302/323/325/506/34IPC   and   27& 
                                                         30 Arms Act
Instituted on                                            10.02.10
Argued on                                                29.03.14
Decided on                                               23.04.14

State   Vs.   1. Chandgi Ram  S/o. Sh. Satya Prakash
              R/o. Village Jafrabad, PS. Chimbramu
              District Kannauj, UP
              2. Mukesh Lal S/o. Sh. S Moti Lal
              R/o. 26, Church Compound Old Tar
              Ghar near Queen Merry School, Delhi
              3.  Dhiraj Solanki   S/o. Sh. Jawahar Solanki
               R/o. Village Khanpur, Post Chola  Railway Station
               Sikanderabad, District Bulandshahar, UP
              4.  Narender Chauhan S/o. Sh Azad Pal Chauhan
              R/o. Village  Bahadurgarh, PS Bahadurgarh
              District Ghaziabad, UP
              5. Manoj S/o. Sh Kunwar Pal
               R/o. Village  Bahadurgarh, PS Bahadurgarh
              District Ghaziabad, UP
              6. Sunil Chauhan S/o. Sh. Bhim Chander Chauhan
              R/o H. No. 138, Mohalla Sanjay Colony, PS. Sahibabad, 
              Distt. Ghaziabad, UP

FIR No.433/09                                                            page 1  of page 47
                                
 JUDGMENT

1. DD No. 69B dated 30.09.09 was lodged at PS Anand Vihar at 10.51 PM regarding firing at Anand Vihar Petrol Pump and a boy having sustained injuries. This DD was assigned to ASI Chander Pal (PW36). He along with Ct. Ashok Kumar (PW9) reached at the spot. ASI Ramesh Chand(PW33) who was posted in PCR East Zone on vehicle No. R59 was already there at the spot i.e Masih Petrol Pump, Anand Vihar, Opposite Ram Vihar. Accused Mukesh met PW33 there and told that 45 boys had come in Honda City Car No. UP16A3510 under influence of liquor, one out of them was urinating in front of gate of " In and Out" shop on which a quarrel took place and petrol pump guard Chandgi Ram fired upon the miscreants and one boy had sustained injuries and has been removed to Pushpanjali Hospital. Area SHO also reached there. PW36 reached Pushpanji Hospital and there he found injured in emergency having gun shot injuries on his right armpit. PW5 Vineet Sharma told him that he is a friend of the injured and has also sustained injuries in the incident. PW36 recorded statement of PW5 Vineet Sharma.

2. PW5 Vineet Sharma in his complaint Ex.PW5/A has mentioned that at about 10 PM in the Honda City Car No. UP16A3510 of Himanshu, all friends i.e Anikesh (PW1)Rahul(PW2) and Manoj ( PW4) reached at Mashih Petrol Pump and took petrol. Next day they all have to go to Shirdi. After doing some purchases, at about 10.30 PM they reached at " In and Out" outlet of the same petrol pump to have cold drink. After parking the car, Himanshu came out to purchase cold drink and started urinating on the wall FIR No.433/09 page 2 of page 47 near that outlet. Upon this, a man aged 4550 years sitting in the outlet came out and stopped Himanshu. That man was either owner or the manager of the petrol pump. Hot exchange of words took place between that man and Himanshu and that man abused Himanshu. He and his other friends came out of the car to the rescue of Himanshu. That man also collected other employees of the petrol pump and they all started beating Himanshu. The guard of the petrol Pump who was having a double barrel gun also reached there. That man exhorted the guard saying " Chandgi Ram Dekhte Kya Ho Goli Chalau". On this Chandgi Ram fired 45 bullets from his double barrel gun . One bullet hit on the armpit of Himanshu and blood started oozing from it. He held Himanshu and made him sit in the car. They brought Himanshu to Pushpanji Hospital and there Himanshu was declared brought dead.

3. On this complaint, PW36 prepared rukka and got FIR registered. Crime Team was called at the spot which lifted exhibits from there. Further investigation was entrusted to Inspector Ghanshyam(PW51).

4. PW1 Anikesh reached at the spot in the said car i.e Honda City Car No. UP16A3510 . Crime Team inspected the car and took photographs. IO PW51 seized the said car and lifted exhibits from the spot. On the identification of PW1, IO PW51 apprehended accused Chandgi Ram who was having double barrel gun in his hand, having five used cartridges 13 live cartridges. Cartridges and Double barrel gun were seized and were taken into possession. Dead body was got postmortemed at Subzi Mandi Mortuary. After postmortem dead FIR No.433/09 page 3 of page 47 body was handed over to the family of the deceased. On 09.10.09 on the pointing out of PW1 accused Mukesh, Manager of Mashih Petrol Pump was arrested. Gun license of Chandgi Ram was verified from Kannauj Arms Licensing Authority. Arm license was found genuine but permission for carrying out the gun to Delhi was found fake.

5. On 25.11.09 accused Dhiraj was apprehended being identified by friends of the deceased and he got recovered a danda from the roof of the petrol pump which was used by him in the commission of this crime. On 17.03.10 accused Manoj and Narender were apprehended in this case. On 20.03.10 accused Sunil Chauhan surrendered in the court and was arrested in this case. TIP of accused Sunil, Narender and Manoj were got done. During investigation exhibits were sent to FSL and CFSL. After investigation police filed chargesheet under Section 302/323/506/325/34 IPC and 27 Arms Act.

6. Charge under Section 302/34IPC, 323/34IPC and 325/34 IPC were given to accused Chandgi Ram, Mukesh Lal and Dhiraj Solanki by predecessor of this court on 25.0.3.10 , to which they pleaded not guilty and claimed trial. A separate charge under Section 30 of Arms Act was also given to accused Chandgi Ram by predecessor of this court on 25.03.10 to which he pleaded not guilt and claimed trial. Charge under Section 302/34IPC, 323/34IPC and 325/34 IPC were given to accused Narender Chauhan, Manoj and Sunil Chauhan by predecessor of this court on 01.06.10 , to which they pleaded not guilty and claimed trial. Separate charge under Section 27 Arms Act was given to accused Chandgi Ram by predecessor of this court on 04.04.13, to which he pleaded not guilty and claimed trial.

FIR No.433/09                                                               page 4  of page 47
          PUBLIC  WITNESS 

7.         To prove its case prosecution examined 51 witnesses.       PW1

Anikesh Budhiraja , PW2 Rahul Gupta, PW4 Manoj Bhakhuni and PW5 Vineet Sharma are eyewitnesses to the incident. PW5 is the complainant, on whose complaint PW36 prepared rukka and got FIR registered. PW6 Mintu Kumar was working as ATM Guard at the Petrol Pump. PW7 Sunil Rai was working as Salesman in " In and Out"

shop at Mashih Petrol Pump. Both PW6 and PW7 have turned hostile and did not support the prosecution case.PW8 Sanjay Sharma is brother in law of the deceased and PW11 Vivek Sharma is elder brother of the deceased and they both have identified dead body. PW13 Lokesh Gaur is the maternal uncle of the deceased and PW14 P. K. Sharma is the father of the deceased who reached at the spot subsequently and joined the investigation.

8. PW31 Sunil R. Mashi is a formal witness being owner of Mashih Automobiles. PW39 Vinod Kumar Chauhan is a manager of Mashih Petrol Pump, Anand Vihar and he produced documents as required by the police during investigation.

MEDICAL EVIDENCE

9. PW15 Dr. Yogesh Jhamb was present at Casualty, Pushpanjali Medical Centre. On 30.09.09 at about 11.00 PM he examined deceased Himanshu. He proved MLC of Himanshu prepared by Dr. Surender Pratap as Ex.PW15/A. PW16 Dr. Binod Kumar Singh , Casualty Medical Officer, Max Balaji Hospital, Patparganj examined deceased on 01.10.09 at 12.05 AM and declared him brought dead and prepred MLC Ex.PW16/A. PW17 Dr. Akash Jhanjee, Specialist Forensic FIR No.433/09 page 5 of page 47 Medicine Subzi Mandi Mortuary did postmortem on dead body and proved his report Ex. PW17/A. PW20 Dr. Surender Pratap Singh was with Dr. Yogesh Jhamb when deceased was examined at Pushpanjali Medical Centre. PW22 Dr. Sachin Harit Casualty Medical Officer has examined Anikesh, Rahul, Manoj and Vineet and proved their MLCs Ex.PW22/A to D. PW23 Dr. Nikhil Aggarwal, Radiologist, Dr. Hedgewar Arogya Sansthan examined Xray plates of Rahul, Vineet and Anikesh and gave his report Ex. PW23/A to C. PW26 Dr. Amit Gupta, CMO Sushruta Trauma Centre, Kashmiri Gate, Delhi proved medical examination report of accused Mukesh Ex.PW26/A. PW29 Dr. Rajesh Kumar, Consultant Orthopaedics, Columbia Asia Hospital , Ghaziabad, UP gave result regarding the nature of injuries on MLC of accused Rahul.PW30 Dr. Rajesh Kalra, Consultant ENT, Dr. Hedgewar Arogya Sansthan gave opinion regarding the nature of injuries on MLC of Anikesh. PW42 Dr. Vishal Singla, Senior Resident Department of Surgery from Hedgewar Hospital was dropped on the request of Ld. APP for the State. PW43 Dr. Akshay Bahadur Incharge Surgery Department,Hedgewar Arogya Sansthan proved nature of the injury on the MLC of Vineet given by doctor Rajesh Batra who left the hospital.

FORENSIC SCIENCE LABORATORY

10. PW46 Naresh Kumar Sr. Scientific Officer ( Biology) FSL Rohini proved his biology and serology report Ex. PW46/A and B. PW48 M. Krishna, Assistant government Examiner, Computer Forensic Division, Directorate of Forensic Science, Ministy of Home Affairs, Ramanthapur, Hyderabad proved his detailed report as Ex. PW49/A. FIR No.433/09 page 6 of page 47 PW50 Dr. N. P. Waghmare, Assistant Director Ballistic , FSL Rohini Delhi proved his report Ex.PW50/A. Police Witnesses

11. PW33 ASI Ramesh Chand was posted in PCR vehicle R50 and on the basis of getting information through wireless he reached at the spot accompanying Ct. Ashok Kumar (PW9). PW35 SI Arvind Kumar Gaur is IO in FIR No.543/09 under Section 420/466/467/468/471 IPC registered against accused Chandgi Ram for having forged documents. PW36 ASI Chander Pal is the first police official who reached at the spot on the basis of DD No. 69B registered in PS. He prepared rukka Ex. PW36/A and got FIR registered. He arrested accused Chandgi Ram and recorded his disclosure statement Ex. PW36/B. He has seized permission letter for carrying gun produced by accused Chandgi Ram vide seizure memo Ex.PW36/C. PW37 Inspector Naveen Chandra Kandpal was Inspector Investigation in PS Anand Vihar. He prepared a request letter for preserving of dead body in Mortuary Subzi Mandi and arrested accused Narender and Manoj. He also recorded their disclosure statements Ex. PW37/E and F. PW41 Inspector Rajesh Sinha was working as Incharge Crime Team . He reached at the spot and prepared SOC report Ex. PW41/A. PW51 Inspector Ghanshyam is the main IO. The investigation of this case was assigned to him after registration of FIR. He has taken into possession the personal belongings of the deceased from Max Balaji Hospital and prepared inquest papers Ex. PW51/B, prepared site plan at the instance of Vineet and Anikesh, had taken double barrel gun and cartridges from FIR No.433/09 page 7 of page 47 the possession of accused Chandgi Ram and conducted MLC of all the injured persons, lifted exhibits from the spot, seized CPU box having hard disk and CD drive used for CCTV recording installed at Mashih Petrol Pump, arrested accused Mukesh, Manager of the petrol Pump, arrested accused Dhiraj and other accused Manoj, Narender and Sunil and recorded disclosure statements made by accused persons.

12. PW44 K. P. Singh, SDM Sikanderpur, Distt. Balia UP proved his report Ex. PW44/A regarding gun license and permission for carrying it given to accused Chandgi Ram.

13. PW3 HC Sonu Kaushik Assistant Draftsman proved scaled site plan Ex.PW3/A at the instance of complainant PW5.

14. PW45 Sh. R. L. Meena Ld MM conducted TIP of accused Sunil, Narender and Manoj from witnesses Anikesh, Vineet, Manoj and Rahul. He proved TIP of accused Sunil as Ex. PW45C1 to C4, accused Narender Ex.CW45 D1 to D4 and accused Manoj Ex. 45 E1 to E4.

15. On the basis of incriminating evidence against accused, their statements were recorded under Section 313 Cr. PC . They all denied evidence against them and took the defence of false implication. Accused Chandgi Ram took the defence that on 30.09.09 deceased with PW1, PW2, PW4 and PW5 came in Honda City Car, accompanied by two more persons on motorcycles at Petrol Pump. They all were armed with deadly weapons and fired shots in air and caused a situation of extreme panic and terror. They snatched the bag containing cash and also attempted to loot cash from the counter.

FIR No.433/09 page 8 of page 47 He fired 4 shots in the air to threaten them. Those persons led by Himanshu caught hold his gun and started snatching the same, due to grappling, the same went off accidentally which hit Himanshu in his armpit. He opted to lead defence evidence.

16. Accused Mukesh Lal took the defence of false implication and opted to lead defence evidence. Accused Sunil Chauhan also took defence of false implication and did not opt to lead defence evidence. Accused Dhiraj Solanki also took the defence of false implication stating that he has nothing to do in the present case and he also opted to lead defence evidence.

17. Accused Manoj took the defence of false implication and did not opt to lead defence evidence. Accused Narender Chauhan also took the defence of false implication and opted to lead defence evidence.

18. In defence evidence total 10 witnesses were examined. DW1 Ajay Lal is brother of accused Mukesh Lal. DW2 Sonu Kumar is stated to have given Sim No. 9899005109 to accused Dhiraj. DW3 Girish Chander Matpal is working as Manager at Mashih Petrol Pump. DW4 Ajeet Singh Assistant Nodal Officer Idea Cellular Ltd produced CAF of Sim No. 09891266455 as Ex.DW4/A. DW5 Rakesh Kumar Ahlmad in the court of Sh. Kuldeep Narain, Ld. ACMM(E) KKD Court produced copy of FIR received by Ld. MM. DW6 Israr Babu, Assistant Nodal Officer Vodafone produced CDR and Tower Location Chart of mobile No. 9899005109 as Ex. DW6/1 to 3. DW7 Sanjay Banerjee is a public witness examined by accused Mukesh Lal. DW8 Vishal Gaurav Nodal Officer Bharti Airtel produced CDRs of mobile, CAF containing FIR No.433/09 page 9 of page 47 documents and certificate under Section 65 B of the Indian Evidence Act of mobile No. 9810399076 as Ex DW18/A to D. DW9 Inderjeet @ Pappu is brother of accused Dhiraj Solanki. DW10 Ct. Arvind produced site plan of the area of PS Anand Vihar Ex.DW10/A.

19. Heard arguments of Sh. Maqsood Ahmad, Ld. Addl. PP for State,Sh Raman Sahaney Ld counsel for complainant,Sh. Rakesh Kochar, Ld. Defence counsel for accused Sunil Chauhan, Sh. Joginder Tuli, Ld. Counsel for accused Mukesh Lal, Manoj, Narender and Chandgi Ram and Sh. P L. Behl, Ld. Counsel for accused Dhiraj Solanki. Perused the case file.

20. Ld. Counsel for complainant filed written arguments and also relied upon following judgments:

i)2013[1]JCC 327 Vijay Kumar Shukla Vs. State

ii) 2010[2] JCC 1503 Abu Thakir & Ors Vs. State Rep. By Inspector of Police Tamil Nadu

iii) 2012[3] JCC 1671 Hiralal Pandey & Ors Vs. State of UP

iv) 2011[2]JCC 1326 Rajesh Singh & Ors Vs. State of UP

v) Criminal Appeal No. 86 of 2011 Gangabhavani Vs. Rayapati Venkat Reddy & Ors

vi) 2012[2]JCC 1415 Alagupandi @ Alagupandian Vs State of Tamil Nadu

vii)2009[4]JCC 2715 Amiruddin Vs. State ( Delhi Administration)

viii) 2011 VII AD(Delhi) 276 Wahid Ahmed and Ors. Vs. State FIR No.433/09 page 10 of page 47

ix) 2013[1] JCC 167 Imran Vs. State

21. Sh. Jogindrer Tuli, Ld. Counsel for accused Mukesh Lal, Manoj, Narender and Chandgi Ram filed written submissions and relied upon following judgments:

i)(2009) 13 Supreme Court Cases 475 Batakrushna Parida Vs. State of Orissa

ii)2009(12) Scale Satish Narayan Sawant Vs. State of Goa

iii) Crl. Appeal No. 218/2006 Bijender Singh Vs. Statements

iv) Crl. A No. 442/2008 Amit Kumar Vs. State of NCT of Delhi

v) 2003(10)SC Cases 74 State of UP vs. Bhagwant and Others

vi) (2208) 17 SC Cases 277 Nagaraja Vs. State of Karnataka

vii) (2002) 2 SC Cases 426 State of Haryana Vs. Ram Singh

viii) AIR 1994 SC 1133 Balkar Singh and Others Vs. State of Punjab

22. Sh. P L. Behl, Ld. Counsel for accused Dhiraj Solanki filed written submissions and also relied upon following judgments:

i) 2012 [4] JCC 2745 Suresh Sakharam Nangare Vs. State of Maharashtra.

ii) 2011 [2] JCC 1233 Murari Vs. State

iii)2012 [2]JCC 1279 Ajay Goswami Vs. State

23. Sh. Rakesh Kochar, Ld. Defence counsel for accused Sunil Chauhan relied upon following judgments: FIR No.433/09 page 11 of page 47

i) 2012(1) RCR (Criminal)951 Girdhari Vs. State (NCT of Delhi)

ii) (1998)4 SCC 494 Mohd. Iqbal M. Shaikh Vs. State of Maharashtra

iii) (2010) 6 SCC 1 Manu Sharma Vs. State (NCT of Delhi)

iv) 2011 Crl. L.J. 2336 Sukhbir Singh & Anr. Vs. State of Punjab

v) JT 2001 (10) SC 184 State of Uttar Pradesh Vs. Ram Sahai

vi) 2010 (10) AD (Delhi) 134 Ram Murti Vs. State (NCT of Delhi) Place of Incident and death of Himanshu

24. The place of the incident is not disputed by accused persons.

Except accused Chandgi Ram, remaining accused has taken the defence that they were not involved in the incident in any manner and have been falsely implicated. Defence taken by accused Chandgi Ram is that deceased accompanying PW1, PW2 and PW5 had come at Mashih Petrol Pump, armed with deadly weapons, they had fired shots in air and had snatched the bag containing cash and also attempted to loot cash from the counter. He had fired 4 shots in the air to threaten them. Those persons led by Himanshu caught hold his gun from the barrel and started snatching the same, due to grappling and snatching , the same went off accidentally which hit Himanshu in his armpit. The defence taken by accused Chandgi Ram and other persons will be dealt in later paras.

25. PW5 Vineet is the complainant as he had made a complaint FIR No.433/09 page 12 of page 47 Ex. PW5/A on the basis of which FIR was registered in this case. While deposing on Oath before this court, he has reaffirmed the version of the incident mentioned in the complaint. Since in the complaint the names of the assailants and the role played by each one in the incident has not been mentioned, statement made by him on oath is again discussed. As per him, on 30.09.09 he went to the house of Himanshu at 103, Dayanand Vihar, Delhi to lave his mother there. PW1,PW2, PW4 and deceased were going to purchase some articles from the market and they asked him to accompany them. He accompanied them in a Honda City Car bearing No. UP16A3510 of the deceased. They reached at Mashih Petrol Pump, Anand Vihar and then went to Savita Vihar Market to purchase some medicines as they had to go to Shridi. Himanshu alighted from the car to purchase the medicines and they remain seated in the car. They started returning back and reached at Mashih Petrol Pump to purchase some confectionery items from In and Out shop at Mashih Petrol Pump. Deceased alighted from the car to purchase the articles. Deceased asked accused Chandgi Ram for toilet. Accused Chandgi Ram replied that the light of the toilet is out of order and door is closed. Deceased started urinating near the garbage near the wall. In the meanwhile, accused Mukesh Lal came out, he firstly abused and then manhandled deceased. Deceased felt sorry. They also came out of the car to intervene. Meanwhile accused Chandgi Ram and accused Mukesh Lal called other employees of the Mashih Petrol Pump, who assaulted him and his other friends. They had badly beaten deceased. Accused Dhiraj was having a danda, accused Sunil was having iron chain, accused Narender was having weapon like knife FIR No.433/09 page 13 of page 47 and accused Manoj was having belt. Somehow they saved themselves and returned back to their car. Accused Mukesh Lal exhorted " Inhe rok lo inhe jane mat do, inhe jaan se mar do". Accused Manoj, Dhiraj and Narender encircled the car, accused Manoj opened the door of the car, while accused Dhiraj dragged deceased by holding his collr from the driver's seat. They all assaulted them. Accused Manoj Lal went inside In and Out shop and brought a glass bottle and after breaking the same, assaulted deceased Himanshu. Deceased in order to save him, pushed away accused Mukesh Lal and Mukesh fell down, then accused Mukesh exhorted Chandgi Ram " Dekhta Kya hai goli chala". Upon this, accused Chandgi Ram with intention to kill them fired upon Himanshu which hit on his right side armpit. Deceased cried stating that " Vineet goli lag gai". He rushed towards Himanshu, picked him up. PW1 opened the door of the car. Rahul( PW2) also helped him in lifting deceased and putting him in the car. They rushed to Pushpanjali Hospital where he was taken to emergency ward. PW1, PW2 and PW4 also accompanied them. He telephonically informed the mother of deceased about the incident. Mother of the deceased, his brothers and sister also reached at Pushpanjali hospital. He along with father of Himanshu and other injured reached at Mashih Petrol Pump and there they found a huge public gathering. He again went to Max Hospital. At about 3.50AM he was informed by someone that PW1 had called him at Mashih Petrol Pump. He along with PW2 and PW4 reached at Mashih Petrol Pump. There IO PW51 prepared site plan at his instance. His statement was recorded at Pushpanjali Hospital. Next day being called by the police for medical examination, he along with PW1, PW2 and PW4 reached FIR No.433/09 page 14 of page 47 PS Anand Vihar and they were taken by the police to Hedgewar Arogya Sansthan and there they were medically examined.

26. Statements of PW1, PW2 and PW4, who are eyewitnesses to this incident and were accompanying deceased and PW5 in the same car, are consistent and corroborate the statement of PW5.

27. Ex. PW15/A is the MLC of the deceased Himanshu dated 30.09.09 at 11.00 PM prepared at Pushpanjali Medical Centre. As per PW15, they could not resuscitate the injured and declared him dead at 11.15 PM. Ex.PW16/A is the MLC of Himanshu prepared on 1.10.09 at 12.05AM at Max Balaji Hospital, as per which he was declared brought dead. Ex. PW17/A is the postmortem report, as per which deceased sustained following external and internal injuries:

1. Lacerated wound 2.5 x 1 cm x scalp layer deep over right parietal region of the head lying 9.2 cm above the top of right ear pinna with margins abraded and bruised reddish in colour.

2. Imprint abrasion contusion with pattern shown in the postmortem report in the area of 30 x 2 cm over lower front of left side abdomen extending through the left flank to the back of the abdomen, reddish in colour.

3. Incised wound 1.9 x 0.4 x skin deep present over the right axillary positioned as shown in the postmortem report with tailing present at the above and over length of 0.3 cm the would being placed 10 cm below the top of right axilla.

4. Imprint abrasion contusion reddish with pattern shown in the postmortem report over back of right shoulder and adjacent FIR No.433/09 page 15 of page 47 right chest region.

5. Three abrasion measuring 3.2 x 0.6 cm, 1.7 x 0.4 cm and 0.9 and 0.4 cm reddish present over the inner front of upper of right arm with patterns as shown in the P/M report.

6. Penetrating wound in area of 6.5 x 4cm x chest cavity deep present over the top of right axillary region. This aperture wound is surrounded by separate hole wound in area of 8 cm in diameter with area ranging in size 1.5 cm x 1cm to 0.5 x 0.2 cm extended onto outer front of right side chest region upper half with underlying tissues including axillary vessels, nerves, muscles ( pectoral and intercostal space muscles) found torn/lacerated . There is no surrounding burning, blackening and tattooing.

Track of Injury N. 6( Firearm injury) The pellets entered the body via injury No. 6 cutting/tearing through the skin, subcutaneous tissues fasia reducing central aperture wound surrounded by multiple small pellets holes all round cutting through the axillary vessels, nerves, pectoral muscles intercostal space muscles, rib fractured on right side exposing right side chest cavity lacerating the right lung upper lobe and are found embbed in the tissues in the wound track of the wound is pinkish red. The 15 metalic pellets recovered from the wound track and are sealed in small glass bottles.

Internal Examination

1. Head scalp shown was intact except sub scalp bruising in the FIR No.433/09 page 16 of page 47 scalp layers via injury No. 1. No fracture of skull bones present. Brain was pale.

2. Neck structure intact.

3. ChestRight side ribs 1 to 5 fractured at outer angles and costrochondral junctions with fractured ends reddish and bruised with adjacent musculature contused. Left ribs intact. Right side chest cavity exposed via injury No. 6. Right lung lacerated involving upper lobe. Left lung pale. Heart was NAD. 15 metallic pellets as already mentioned in the track of injury No. 6 were sealed in small bottle.

4. Abdomen and Pelvisliver, spleen and kidney were NAD. Stomach contained around 300ml of semi digested food material non identifiable with no specific smell. Walls were NAD. Bowels loops were intact and contained gases and feces. Bladder and rectum were empty. No fracture of pelvic bones present.

5. Spinal column intact OPINION Cause of death is haemorrage and shock consequent upon injury No. 6 which is sufficient to cause death in ordinary course of nature. All injuries were ante mortem and fresh in duration. Injury No. 1 and 5 are caused by blunt force impact. Injury No. 3 is caused by some sharp pointed object. Injury No. 2 and 4 are imprint injuries and were caused by blunt objects like belt, chain etc. Injury No. 6 is caused by ammunition of FIR No.433/09 page 17 of page 47 smooth bore firearm weapon. PM findings are consistent with blunt assault before death. Time since death as per Hospital records was around 11.15 PM on 30.09.09 ( Inquest paper No.

10) and was approximately same in the P/M calculation. The blood sample of the deceased in gauze piece and small bottle with cotton wool and 15 metalic pellets recovered from the body were handed over in sealed condition to the police along with the sample seal of the mortuary.

During his cross examination PW17 has stated that he cannot comment upon whether the injury No. 6 is close contact wound or not. There was no burning, blackening and tattooing. IO never shown the clothes worn by the injured. He cannot comment whether the wearing of the clothes reduce the effect of the burning.

28. PW1 Ghanshyam is the IO to whom investigation was assigned after registration of FIR. As per him, same day he along with PW1, PW2, PW4, PW5 and other police officials reached at Surajmal Vihar, on the basis of information received from a cyclist by PW1 and apprehended accused Chandgi Ram from there. A double barrel gun, five used cartridges and 13 live cartridges of 12 bore were recovered from his possession. These articles were put in a separate cloth parcel and sealed with seal of GS and were taken into possession. Ex. PW49/A is the ballistic report given by Sh. V. R. Anand, Assistant Director, Ballistic, FSL Rohini. As per this report, all these exhibits were fire arms /ammunitions as defined in Arms Act 1959. The three cartridge cases recovered from accused Chandgi Ram had FIR No.433/09 page 18 of page 47 been fired through right barrel of double barrel gun and two cartridge cases had been fired through left barrel of double barrel gun, recovered from the possession of accused Chandgi Ram.

29. PW50 Dr. N. P. Waghmare, Assistant Director Ballistic, FSL, Rohini has examined green colour Tshirt of the deceased having a hole at right side front armpit, 14 number of lead pellets ( recovered by PW17 from the wound track during postmortem and sealed in a small glass bottle). As per his report Ex. PW50/A, on his physical microscope examination and gun shot/bullet residue analysis by the Atomic Absorption Spectrometer (AAS) the suspect hole on Tshirt was found to have been caused by the bullet discharged through the firearm. As per his physical examination of pellets, these were found to corresponds to shot No. 1 of standard 12 bore ammunition.

30. From the evidence discussed above, it stands proved that deceased Himanshu died as a result of bullet injuries i.e. Injury No. 6 mentioned in the P/M report Ex.PW17/A, fired from the double barrel gun recovered from the possession of accused Chandgi Ram at the time of his arrest. It also stands proved that this incident took place at Mashih Petrol Pump on 30.09.09. Moreover, as already discussed, it is an admitted case of accused Chandgi Ram that the bullet which hit the deceased was fired from his double barrel gun, but as per him, it went off accidentally during grappling. The defence taken by remaining accused is of alibi and false implication in this case.

EYE WITNESSES ACCOUNT AND DEFENCE

31. Ex. PW22/A to D are the MLCs of PW1, PW2, PW4 and PW5 FIR No.433/09 page 19 of page 47 prepared on 1.10.08 at Casualty Dr. Hedgewar Arogya Sansthan by Dr. Sachin Harit. As per Dr. Sachin Harit, PW1 was having abrasion over nose, left cheek and forehead and he was referred to ENT for further management and examination. PW2 was having contusion marks over left upper arm, left upper chest, right abdomen and tenderness over right hand with abrasion over right thumb and he was referred to Ortho Department for further management and treatment. PW4 was having abrasion over left shoulder. PW5 was having multiple abrasions with contusion over left right side of back and over left upper arm and he was referred to ortho and surgery for further management and treatment. PW23 Dr. Nikhil Aggarwal, Radiologist, Dr. Hedgewar Arogya Sansthan examined Xray plates of PW1, PW2 and PW5. As per Xray report Ex. PW23/A of PW2, a small chip fracture base of proximal phalanx of thumb was found. However in the Xray report Ex.PW23/B and C of PW1 and PW5, no bone injury was found. PW24 Vijay Gautam, Technician, Department of Imaging & Radiology , Dr. Hedgewar Arogya Sansthan had taken these Xray plates of PW1, PW2 and PW5. MLCs of these witnesses support their statements regarding their presence at the spot at the time of this incident and having participated to rescue deceased Himanshu and also being beaten up in the said incident.

32. All the defence counsels have assailed the credibility of these witnesses primarily on the ground that they have made substantial improvements while deposing before this court; complainant PW5 and other witnesses i.e PW1, PW2 and PW4 have not given the description of the assailants in their statements recorded by the police. Other challenge posed to their testimonies is contradiction FIR No.433/09 page 20 of page 47 in their statements inter se and the confrontations done during cross examinations vis a vis their statements recorded by the police.

33. It is contended on behalf of the accused persons that as per law the police is immediately required to lodge FIR on receiving information regarding the commission of a non cognizable offence. But here in this case, FIR was lodged at much later stage and same was ante timed with sole objective to manipulate the facts of this case. Ex. PW18/DX is the copy of FIR delivered by PW18 Ct. Giriraj at the residence of Ld. ACMM. As per this witness, on 1.10.09 at 3.00 AM he was handed over three envelopes containing copies of this FIR and he delivered the same at the residence of Ld ACMM Sh. Rakesh Kumar, KKD Court Complex and other police officers. As per this FIR, information was received in the PS at 1.10 hours on 1.10.09. Ahlmad of Ld. ACMM is examined as DW5. As per him, Ld. ACMM has done endorsement of 'seen' on it at 9.25 AM on 1.10.09. If FIR was delivered at the house of Ld. ACMM as deposed by PW18 during night or endorsement of 'seen' was done by Ld. ACMM in the morning only Ld. ACMM could have thrown light on it. Solely on the basis of endorsement on the FIR by Ld. ACMM, it cannot be concluded that it was lodged by the police deliberately at much later stage after receiving information about the incident with objective to manipulate the facts to falsely implicate accused persons. Moreover Apex Court in Gangabhavani (Supra) has observed that the case of the prosecution cannot be rejected solely on the ground of delay in lodging FIR. Even if there is delay, prosecution explained it, Court should not reject the case of the prosecution solely on this ground. Reliance is also placed upon State of UP Vs Munesh AIR 2013 SC 147.

FIR No.433/09                                                               page 21  of page 47
 34.     In    Gangabhavani  (   Supra),   Apex   Court,   regarding     non 
mentioning     of   names   of   the   accused   in   the   FIR,   has   observed   as 
follows:

        "   It   is   also   a   settled     legal   proposition   that   merely     not

mentioning all the names of all the accused or their overt acts elaborately of details of injuries said to have been suffered, could not render the FIR vague or unreliable. The FIR is not an encyclopedia of all the facts. More so, it is quite natural that all the names and details may not be given in the FIR, where a large number of accused are involved.

35. Regarding contradictions in evidence, in para 9 in Gangabhavani (Supra), Apex Court has observed that

9. In state of U.P Vs Naresh, (2011)4 SCC 324, this court after considering a large number of its earlier judgments held:

" In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and other witnesses also make material improvement while deposing in the court, such evidence cannot be safe to rely upon. However, minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. The Court has to form its FIR No.433/09 page 22 of page 47 opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence.

Exaggerations per se do not render the evidence brittle. But it can be one of the factors to set credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility.

Therefore, mere marginal variations in the statements of a witness cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier. The omissions which amount to contradictions in material particulars i.e go to the root of the case/materially affect the trial or core of the prosecution's case, render the testimony of the witness liable to be discredited."

A similar view has been reiterated by this Court in Tehsildr Singh & Anr. V. State of U. P. AIR 1959 SC1012, Pudhu Raja & Anr. Vs. State , Rep. By Inspector of Police, JT 2012(9) SC 252; and Lal Bahadur Vs. State (NCT of Delhi, (2013) 4SCC557).

36. The credibility of the prosecution witnesses has been assailed on behalf of the accused persons submitting that PW6, PW7, PW31 and other defence witnesses examined by accused person, have supported defence and it causes big dent to the credibility of the prosecution case and to eyewitnesses PW1, PW2, PW4 and PW5. PW6 Mintu Kumar is stated to have been working as ATM Guard installed at Mashih Petrol Pump. He is not employee of the petrol pump. As per her him, he was employed by M/s. Earth Spire( India) Private Limited Okhla Phase I, Delhi. As per him, his duty hours were from FIR No.433/09 page 23 of page 47 8.00 Pm to 8.00 AM. In the year 2009, he was employed as Guard on the ATM and no incident took place in his presence. During cross by Ld. Addl. PP for the State, he has stated that at the time of incident, he was not available there and he has gone to have his meals. PW7 Sunil Rai was working as Salesman in 'In and Out' Shop at Mashih Petrol Pump. As per him, his duty hours were from 6.00 PM to 8.00 AM. On 30.09.09 at about 9.30 PM one Honda City Car came in front of " In & Out" shop , Mashih Petrol Pump and purchased some eatables and went away . After about 1 1 ¼ hours same vehicle again came at the Petrol Pump, he was inside the store. He came out and saw that there were 34 persons and were making noise. He went inside the Cabin to make a call at 100 number and made a call. Mukesh Lal was sitting inside in his office and he told him to make a call at 100 number. When he was making the call to the police, he heard the noise of firing. He went outside and saw that a boy was having gun shot injury and he was being put in the vehicle and they went away. One police person also came on the motorcycle and he saw that the guard of the petrol pump i.e accused Chandgi Ram was taken by PCR to PS. Accused Mukesh Lal was having injury on his foot and he asked him to go to the police Station to find out about the happening. He went to PS and saw that Chandgi Ram was already there and after meeting Chandgi Ram, he returned to the Petrol Pump. This witness was prosecution witness but turned hostile. Despite elaborate cross examination by Ld. Addl. PP for the State, he did not utter a word in favour of the prosecution and was confronted with his statement Ex. PW7/A recorded by the police. During cross by accused Dhiraj Solanki, he has stated that after about 1 ½ months, FIR No.433/09 page 24 of page 47 34 persons including accused Dhiraj Solanki went to the PS. Dhiraj remained in the PS for about 56 days and he used to go there to give food. Police never recovered any danda at the instance of accused Dhiraj from the Petrol Pump.

37. PW31 Sunil R. Masih is the owner of the Mashih Automobiles. As per him, he furnished the documents called by the Investigating Officer vide covering letters Ex. PW31A. During cross by accused persons, he deposed that he received a call at 11.00 PM from the Petrol Pump that some persons have come to the petrol pump and are firing . He reached at the petrol Pump and asked Mukesh Lal about the incident. Accused Mukesh Lal told him that accused Chandgi Ram has been taken by the police on the motorcycle. He went to police Station at about 11.45 PM along with Mukesh Lal and other boys of petrol pump and Chandgi Ram was present there in the PS. He admitted that there is one CCTV camera near the petrol Pump and there is transparent glass wall opposite side of " In and Out" shop. The Original footage is in the CPU which was taken by Inspector Ghanshyam ( PW51) on 05.10.09 in open condition and he was not given the copy of footage. IO PW51 has also seen the footage at Mashih Petrol Pump and it was showing the incident of dacoity and not of the murder. Accused Dhiraj joined the services on 01.11.09 and remained on duty till 18.11.09. During this period, IO PW51 made inquiries from accused Dhiraj Solanki.

38. PW6 has neither supported the prosecution case nor accused persons by stating that at the time of incident, he was not available there and had gone to have his meals. However, PW7, who is an employee of Petrol Pump and PW31, who is the owner of the petrol FIR No.433/09 page 25 of page 47 Pump, have not supported prosecution case but have supported accused persons in their defence. PW7 being colleague of the accused persons has every reason to depose in their favour and similarly PW31 being owner of the said petrol Pump and all the accused persons being his employees, has every reason to depose against prosecution and in favour of the accused persons. Both these witnesses being interested witnesses and in view of clear, consistent and credible statements of PW1, PW2, PW4 and PW5, their statements do not inspire confidence.

39. Accused persons have also taken defence that in fact deceased with PW1, PW2, PW4 and PW5 have come at Petrol Pump to loot the petrol pump and the incident took place to thwart their attempt and in that process, as these persons were grappling with accused Chandgi Ram, his gun went off accidentally, hit deceased Himanshu. Accused persons have relied upon News published in Punjab Kesri dated 01.10.09 Ex. PW1/D2 mentioning that" Guard Ki Bahaduri Se Lootpat Ka Prayas Viphal,Ghayal Sathi Ko car Mein Dal Bhag Nikle badmash". Paper reporting cannot be taken as piece of evidence, having no credibility attached to it. As per other accused persons, IO PW51admitted that Ex. PW10/D1 message received at Police Control Room was " Anand Vihar, Ram Vihar Near Mashih Auto Mobile Petrol Pump par quarrel kuch log petrol pump par firing kar rahe hain no injured." It is stated that this information was given from Petrol Pump at 100 number and it proves that deceased with his four associates who are projected eyewitnesses in this case, had come at the petrol pump to loot. Accused Chandgi Ram had gone one step further as he in his statement under Section 313 Cr. P.C has stated that FIR No.433/09 page 26 of page 47 deceased and his associates armed with deadly weapons, had fired shots in air and had snatched the bag containing cash and also attempted to loot cash from the counter. This defence taken by accused persons on the face of it appears to be false. From whom and how much cash was looted, absolutely no evidence in this regard has come on record and has been brought by accused persons on record. If deceased accompanying PW1, PW2, PW4 and PW5 has fired from deadly weapon, there is no evidence gathered by the police from the spot or produced by accused persons regarding this allegation of firing from deadly weapon. Subsequent DD entry must have been lodged by accused persons after this incident by making a call at 100 Number to misled investigation and create false evidence for their defence.

40. To further establish their defence, accused persons examined 10 witnesses. PW1 Ajay Lal is brother of accused Mukesh Lal. As per him on 09.10.09 at bout 10.30 AM he along with brother Mukesh Lal had gone to police station to give Rs. 10 lacs as bribe to IO PW51 who demanded Rs. 20 lacs. During cross examination by Ld. Addl. PP for the State, DW1 has stated that no demand was raised by IO PW51 in his presence before he along with his brother visited the PS to meet him. If IO PW51 had demanded any illegal gratification from accused Mukesh Lal, accused was required to report the matter to the senior police officers. Without any proof solely on the assertions, it cannot be believed that IO PW51 had demanded any illegal gratification of Rs. 20 lacs from accused Mukesh Lal and since he failed to do that due to to this reason, he was falsely implicated in this case. It is relevant to mention here that PW1, PW2, PW4 and PW5 FIR No.433/09 page 27 of page 47 are eyewitnesses to this incident and have assigned specific and active role to this accused in the incident.

41. Sh. P. L. Behl ,Ld Counsel for accused Dhiraj Solanki has taken the defence that this accused was kept in illegal confinement by the police from 18.11.09 to 25.11.09 and during this duration he was shown to the witnesses and his photographs were taken and shown to the witnesses. Ld Counsel for accused has urged that there is no allegation in the FIR of accused Dhiraj having any danda or beating deceased and other PWs with the danda. It is stated that prosecution evidence with regard to the alleged arrest of accused Dhiraj on 25.11.09 and recovery of danda is highly inconsistent, doubtful and not convincing. It is further argued that at the time of arrest of accused Dhiraj, Mukesh Lal and Chandgi Ram, all the four eyewitnesses i.e PW1 PW, PW4 and PW5 are always shown together which is highly unnatural and every time PW1 is shown to be informer informing the police about the presence of the accused persons.

42. DW2 Sonu Kumar is co worker of accused Dhiraj at Mashih Petrol Pump. As per him, he had been working at Mashih Petrol Pump Anand Vihar as salesman and had worked with effect from 200310. Accused Dhiraj was working with him. He had been having mobile phone No,. 9899005109 in his name since 2005. It was a prepaid connection and same was given by him in the year 2007 to accused Dhiraj for his use. DW6 Israr Babu Assistant Nodal Officer Vodafone has proved that this number was allotted on the name of Sonu ( DW2) and he has filed call details from 11.11.09 till 25.11.09 . Sh. P. L. Behl Ld. Counsel for accused submitted that accused Dhiraj FIR No.433/09 page 28 of page 47 was kept in illegal confinement from 18.11.09 to 25.11.09 and during this period he had regularly talked with PW31 on his mobile no. 9899005109. DW6 also filed Tower Location Chart /Cell ID Chart Ex. DW6/3 along with mandatory certificate under Section 65 B of the Indian Evidence Act. DW8 Vishal Gaurav Nodal Officer Bharti Airtel has proved that mobile No. 9810399076 was on the name of Sunil K. Mashih(PW31). DW9 Inderjeet @ Pappu is the real brother of accused Dhiraj. As per him, on 19.11.09 he received a cal from Dhiraj Solanki from his mobile number telling him that he(accused) along with two other employees Jitender and Vijay Pal were brought to PS Anand Vihar. He had visited PS Anand Vihar on 19/20/21.11.09 and accused informed him that police had let off Vijay Pal and Jitender. On 25.11.09 when he contacted SHO, PS Anand Vihar i.e PW51. He was asked him to bring Rs. 2 lacs. From this evidence, brought on record by accused Dhiraj Solanki, nothing conclusive can be ascertained. Mobile number of DW2 could have been used by Dhiraj Solanki or someone else. It is not possible to ascertain the exact location from where the said mobile was used. If the said phone is coming under a particular tower covering PS Anand Vihar, from this it cannot be concluded that accused remain confined illegally in PS Anand Vihar under the directions of SHO, PS Anand Vihar from 18.11.09 to 25.11.09.

43. Defence taken by Sh. Joginder Tuli, Ld. Counsel for accused Mukesh Lal is that this accused was not involved in the incident, as deposed by PW7, he was sitting in " in and out" shop and was unable to move having leg injury . To support this defence, DW7 Sanjay Banerjee has been introduced as public witness. As per him, FIR No.433/09 page 29 of page 47 on 30.09.09 at about 10.15 PM his scooter developed some technical fault, he reached at the said petrol Pump for some help. He contacted manager Mukesh Lal and requested him to park his scooter. While he was talking to accused Mukesh Lal, he heard gun shot. He came out and saw that 45 boys were running towards the car golden Honda having some UP number from Petrol Pump . At grocery shop some blood was found lying there. Accused Mukesh Lal was having difficulty in walking as he was having some injury in right or left leg. During cross by Ld. Addl.PP for the State, this witness has stated that no quarrel took place at the petrol pump when he was with Mueksh Lal. As already observed, in view of the clear and consistent statements of PW1, PW2, PW4 and PW5, statement of this witness does not inspire confidence. Accused Mukesh Lal may be having some injuries on his left leg but there is no evidence on record to infer that he was unable to move at the time of this incident. Moreover, PW31 Sunil K. Mashih has stated that on 30.09.09 at a 11.30 11.45 PM he had gone to PS Anand Vihar along with Mukesh Lal and other boys of the petrol pump. At least from this, it stands proved that accused Mukesh Lal was not having any serious leg injuries rendering him immobile.

44. Other defence taken on behalf of the accused persons is that at Mashih Petrol Pump there was CCTV camera and CCTV footage was being stored in the CPU installed there and same was seized by the police. It is stated that CCTV footage was seen by IO PW51while seizing it on 05.10.09 and it showed that deceased and four witnesses had reached at the petrol pump with purpose to loot it and due to this reason same was destroyed. As per IO PW51, he along FIR No.433/09 page 30 of page 47 with PW1 reached at the petrol pump on 05.10.09. PW,2, PW4 and PW5 also joined them. One Girish ( DW3) and Vinod ( PW39), working as manager, were found present there. DW3 produced CPU box having hard disk which was stated to be used for CCTV footage recording installed at petrol Pump. He converted the CPU in cloth parcel, sealed with seal of GS and same was taken into possession vide seizure memo Ex.PW39/A. This statement of IO PW51 is supported by PW1, PW2, PW4 and PW5. As per PW39( Vinod Kumar Chauhan), IO had taken CPU in open condition in his car.

45. Ex. PW48/A is the report given by M. Krishna, Assistant government Examiner, Computer Forensic Division, Directorate of Forensic Science, Ministy of Home Affairs, Ramanthapur, Hyderabad. The relevant portion of report is as follows: REPORT **** Thorough and careful forensic analysis of the suspected digital evidence storage media was carried out.

1. The analysis of the registry files of the suspected digital evidence storage media marked Q1 reveals that the operating system " Windows XP professional" was installed on 16.05.2009. The hard copy of registry view is given at Annexure A( page No. 4)

2. The suspected digital evidence storage media marked Q1 contains video footages in the format of .bix and .box. The file attributes of the video footages shows the data of creation as "18/05/2009". The list of the files and the file attributes is given at AnnexureA( page Nos. 522). This laboratory does not have the video player to view the content of the files. These files can be viewed FIR No.433/09 page 31 of page 47 through the 'video player' supplied with Digital Video Recorder(DVR).

3. No video footage created on 30/09/2009 could be found in the suspected digital evidence storage media marked Q1.

46. I do not find any reason to disbelieve this report.

47. Number of objections have been raised by ld. Counsel for accused Dhiraj Solanki regarding the alleged recovery of danda as weapon of offence at his instance from the roof of the petrol pump on 25.11.09.

48. As per IO PW51, on 25.11.09 at the instance of PW1, PW2 PW4 and PW5, accused Dhiraj was apprehended from Mashih Petrol Pump. During interrogation he made disclosure statement Ex. PW19/C. He got recovered a danda from the roof of the petrol pump which he had used in the commission of this offence. PW1,PW2, PW4 and PW5 have supported statement of IO PW51. As per IO, he had also lifted broken glass of bottle of Vodka along with blue colour label from the spot. In P/M report, doctor has given specific opinion that injury No. 2 and 4 are imprint injuries and were caused by blunt objects like belt, chain etc. Injury No. 3 is caused by some sharp pointed object. P/M report supports statements of eyewitnesses that accused Dhiraj had assaulted deceased with danda and broken glass of bottle.

49. Defence put by accused Chandgi Ram is that deceased received bullet injuries accidentally when he( deceased) with his associates was grappling with him. As per Modi's Medical Jurisprudence and Toxicology 23rd Edition , if a firearm is discharged very close to the body or in actual contact, subcutaneous tissues over FIR No.433/09 page 32 of page 47 an area of two or three inches around the wound of entrance are lacerated and the surrounding skin is usually scorched and blackened by smoke and tattooed with unburnt grains of gunpowder or smokeless propellant powder. As per P/M report, Ex. PW17/A, doctor has given clear finding that there is no surrounding burning, blackening and tattooing. This proves that firearm was discharged from distance and not from close range. This further strengthens the statements of PW1, PW2, PW4 and PW5 that accused Chandgi Ram fired short after aiming his double barrel gun towards the deceased.

50. PW33 ASI Ramesh Chand, PCR North Zone was the first police official who reached at the spot. As per him one Mukesh S/o. Moti Lal i.e. accused met him there and told that 45 boys came in Honda City car No. UP16A3510, boys were under the influence of liquor, out of them one started urinating in front of gate of "In & Out"

Shop on which quarrel took place and petrol pump guard Chandgi Ram fired shot upon the miscreants and one boy had sustained bullet injury and injured has been removed to Pushpanjali Hospital. Ex.PW21/C is the DD entry on the call made by PW33 at 11.16 p.m which is as follows : "Petrol pump ke staff, Mukesh ne bataaya, chaar aadmi Honda City car, UP 16A 3510, mein aaye, office ke saamne urinal ko lekar staff se jhagra kiya, jismein security guard Chandgi Ram ne 3/4 round fire bhi kiye. Kisi ko chot lagi ya nahi, pataa nahi. Petrol pump waale theek hain, gaadi waale bhaag gaye. Cash lootne waali baat nahi."

51. This DD Ex.PW21/C falsify the defence taken by accused Chandgi Ram that deceased, PW1, PW2, PW4 and PW5 had come at FIR No.433/09 page 33 of page 47 petrol pump armed with deadly weapons and had looted the same.

52. Ex.PW39/B is the details of dispensing point/sale point blockwise alongwith names and addresses of operators filed by PW39 Manager of Mashih Petrol Pump.As per this list accused Dheeraj, Sunil Chauhan, Narender and Manoj were posted on the petrol pump during night shift on 30.9.09. Ex.PW51/N1 to N3 are the copies of the application forms submitted to SHO PS Anand Vihar by Mashih Automobiles Anand Vihar of accused Narender Kumar, Manoj and Sunil Chauhan. This evidence further supports statement of PW1, PW2, PW4 and PW5 regarding the presence of accused Dhiraj, Narender, Manoj and Sunil at the spot at the time of this incident.

53. The Ld. defence counsel Sh. Joginder Tuli has urged that all the witnesses were having mobile phones and they did not make any call to police while taking deceased to hospital. It is also submitted that PW1, PW2, PW4 and PW5 are friends and relatives of deceased and they cannot be put in the category of neutral or independent public witnesses. It is vehemently urged that much credibility cannot be given to these witnesses.

54. Apex Court in Alagupandi (Supra) has observed that mere relationship would not render the evidence of witnesses unreliable if it is otherwise trustworthy and reliable. As already discussed statements of PW1, PW2, PW4 and PW5 are found to be consistent and reliable. Merely because they were friends and relatives of deceased and accompanying him at the time of this incident, their statements cannot be held unreliable.

55. PW1, PW2, PW4 and PW5 were crossexamined at length but core of their testimonies remain intact. Except minor insignificant FIR No.433/09 page 34 of page 47 contradictions accused persons have failed to bring any material contradiction or improvement, either to discredit their testimonies or create a shadow of doubt on their credibility.

TIP OF ACCUSED PERSONS :

56. As per the prosecution case accused Chandgi Ram was arrested within few hours of this incident on the identification of PW1, PW2, PW4 and PW5. Accused Mukesh was arrested on 9.10.09 and accused Dhiraj was arrested on 25.11.09 on being identified by these witnesses. Accused Manoj and Narender were arrested on 17.3.10 and accused Sunil Chauhan was arrested on 20.3.10. Accused Manoj, Narender and Sunil Chauhan not being arrested at the instance and identification of PW1, PW2, PW4 and PW5, were put to TIP for their identification.

57. TIP of accused Sunil, Narender and Manoj were conducted by PW45 Sh. R. L. Meena, Ld MM. Ex. PW45/C1 to C4 is the TIP of accused Sunil Chauhan from PW1, PW2, PW4 and PW5. All these witnesses have not identified accused Sunil Chauhan as one of the culprits. Ex.PW45/D1 to D4 is the TIP of accused Narender Chauhan from PW1, PW2, PWP4 and PW5. Accused Narender was also not identified by PW1, PW2 and PW4 as one of the culprits. Ex.PW45/E1 to E4 is the TIP of accused Manoj from PW1, PW2, PW4 and PW5. PW1, PW2 and PW4 have not identified this accused as one of the culprits. But PW5 has identified accused Narender and Manoj correctly being one of the assailants.

58. It is contended on behalf of the accused persons that PW1, PW2, PW4 and PW5 have failed to identify accused Sunil, Narender and Manoj in judicial TIP but they have identified these accused FIR No.433/09 page 35 of page 47 persons while deposing before this Court, which proves that these witnesses were tutored and shown the photographs of the accused persons before they depose and identify the accused in the Court. It is stated that this causes dent on the credibility of these witnesses. Per contra Ld. APP and Ld. counsel for the complainant submitted that PW1, PW2, PW4 and PW5 had sufficient and reasonable opportunity to identify the accused persons and as per law first time identification in the Court is sufficient to hold them guilty for this offence. In support of their submissions they have relied upon Jadu Nath Singh & Anr. V/s. State of UP 1971 SCC (Crl.) 124, where the Court has observed that an identification parade belongs to the stage of investigation by the police; the question whether a witness has or has not identified the accused during the investigation is not one which is in itself relevant at the trial. The actual evidence regarding identification is that which is given by the witnesses in the Court. The fact that a particular witness has been able to identify the accused at an identification parade is only circumstance corroborated to identification in the Court.

59. I agree with the contention raised by Ld. APP and Ld. counsel for the complainant that it is not mandatory to get the accused identified in TIP from the eye witnesses if same were not previously known to the eye witnesses. The law is settled that keeping in view the facts and circumstance of the case on the basis of first time identification of accused in the Court the finding of guilt can be returned. But here in this case accused Sunil, Narender and Manoj were not previously known to PW1, PW2, PW4 and PW5. As already discussed since the other three accused were arrested at the instance FIR No.433/09 page 36 of page 47 of these witnesses due to this reason accused Sunil, Narender and Manoj were only put to TIP. Accused Sunil was not identified by either of the four witnesses but accused Narender and Manoj were identified by PW5 only. The process involved in TIP is very cumbersome and if accused get identified in it, it has big credibility attached to it as far as identification of the accused is concerned. In my view on the basis of TIP proceedings benefit of doubt needs to be given to accused Sunil regarding his involvement in this incident. The case of accused Manoj and Narender is on different footing as they were identified by PW5 whereas other three witnesses i.e. PW1, PW2 and PW4 have failed to identify them in TIP. PW5 is the complainant and important prosecution witness and his identification of accused Manoj and Narender in TIP is an important piece of evidence to implicate accused Manoj and Narender in the commission of this crime.

60. The other question which is required to be considered is if identification of accused Sunil and Narender by PW1, PW2, PW4 and PW5 in the Court and failure to identify these accused by these witnesses in TIP caste any aspersion or causes any dent on their credibility. The law is settled that in such scenario a duty is caste upon the Court to sift the evidence and after close scrutiny with proper care and caution to come to judicial conclusion as to who out of the accused persons can be considered to have actually committed the offence. The maxim falsus in uno, falsus in omnibus is not a sound rule to apply in the conditions in this country and, therefore, it is the duty of the court where a witness has been found to have given unreliable evidence in regard to certain particulars, to scrutinize the rest of his evidence with care and caution. If the remaining evidence FIR No.433/09 page 37 of page 47 is trustworthy and substratum of the prosecution case remains intact, then the court should uphold the prosecution case to that extent. The reliance is placed upon (2009) 16 SCC 269 case titled Janardan Singh V/s. State of Bihar. In (1999) 4 SCC 268 case titled Manoj @ Bhau & others Vs. State of Maharashtra, the Apex Court has observed that the Court has to scrutinize evidence of the witnesses to find out whether the so called exaggerations and embellishments really pertain to the basic prosecution case so that the entire evidence has to be discarded as being untrustworthy or the Court would be justified in embarking upon an inquiry for the purpose of separating the chaff from the grain and accept grain to base the convict.

COMMON INTENTION OF THE ACCUSED PERSONS

61. It is argued on behalf of the accused persons that prosecution has failed to prove that all the accused shared common intention while committing this crime. Sh. P.L. Behl, Ld. counsel for accused Dhiraj has submitted that as per PW1 accused Dhiraj and his associates had given beatings to him and his friend including Himanshu and subsequently on the exhortation of accused Mukesh Lal , accused Manoj and Dhiraj took the deceased out of the car and all gave beatings to him. It is submitted that as per version of PW1, PW2, PW4 and PW5 subsequently when deceased had pushed accused Mukesh Lal, Mukesh Lal fell down and became furious and asked Chandgi Ram to fire, who fired on this exhortation and this does not even remotely suggest that accused Dhiraj shared any common intention in causing death of deceased Himanshu. Same argument is advanced by Sh. Joginder Tuli, Ld. Counsel on behalf of accused Mukesh Lal, Manoj, Narender and Chandgi Ram submitting FIR No.433/09 page 38 of page 47 that there is no evidence brought on record by prosecution to infer if all the accused persons shared common intention while causing death of Himanshu. In support of his submissions Ld. counsel has relied upon Nagaraja (Supra), wherein the Apex Court has observed that for invoking the provisions of section 34 IPC, at least two factors must be established ; (1) common intention, and (2) participation of the accused in the commission of an offence. For the aforementioned purpose although no overt act is required to be attributed to the individual accused but even then before a person is convicted by applying the doctrine of vicarious liability not only his participation in the crime must be proved but presence of common intention must be established. The facts of the instant case are distinguishable from the facts of this case.

62. On the other hand Ld. APP and Ld. counsel for the complainant submitted that the liability of one person for an offence committed by another, in the course of criminal act perpetrated by several persons arises u/s. 34 IPC, if such act is done in furtherance of common intention of the person to join in committing the crime, there may not be direct proof of common intention but such intention can be inferred from the circumstances appeared from the proved facts and circumstances. In support of his submissions Ld. counsel has relied upon the observation made by Apex Court in Rajesh Singh (Supra).

63. For appreciating the statements of PW1, PW2, PW4 and PW5 regarding the role played by each of the accused, in brief their statements are again discussed. As per these witnesses when deceased started urinating accused Mukesh Lal abused and man FIR No.433/09 page 39 of page 47 handled him, they all came out of the car and intervened. Accused Mukesh and Chandgi Ram called other employees of the Mashih Petrol Pump, who assaulted deceased and them. Accused Dhiraj was having a danda, accused Sunil was having an iron chain, accused Narender was having weapon like knife and accused Manoj was having belt. Accused Mukesh Lal gave exhortation "Aaj Inme Se Koi Bach Kar Na Jaye." By saving them they returned to their car, on this accused Mukesh Lal gave exhortation "Inki Gari Gher Lo, Aaj Inme Se Koi Jane Na Paye". Accused Manoj and Dhiraj pulled deceased into the car by holding his collar and deceased was again taken out of the car by all the accused persons. Deceased had pushed Mukesh Lal who fell down and on this he became furious. Accused Mukesh Lal told accused Chandgi Ram to fire on them which did not hit anyone of them. Accused Mukesh Lal again gave exhortation to Chandgi Ram "Theek Se Goli Chala Aur Jaan Se Maar De", on this accused Chandgi Ram fired a shot aiming towards deceased and the shot hit on his right armpit.

64. I agree with the contentions raised on behalf of the accused persons that it is a case of sudden fight without any premeditation. As per statements of these witnesses accused Mukesh Lal and Chandgi Ram were present at the spot and other accused persons have reached there on exhortation given by accused Mukesh Lal. Though the quarrel took place without any premeditation but common intention among the accused persons can be struck then and there at the spot. Same has to be gathered from the role played by each one of the accused persons in the entire incident. Common intention on the part of accused Mukesh Lal and Chandgi Ram is FIR No.433/09 page 40 of page 47 apparent as accused Mukesh Lal has specifically asked accused Chandgi Ram "Theek Se Goli Chala Aur Jaan Se Maar De". When deceased with his associates i.e. PW1, PW2, PW4 and PW5 returned to his car, on this on the exhortation given by accused Mukesh Lal accused Manoj and Dhiraj opened the gate of their car and pulled Himanshu out of it.

65. The common intention is a question of fact, it is subjective but can be inferred from circumstances. The totality of the circumstances must be taken into consideration in arriving at the conclusion whether the accused persons had a common intention to commit an offence with which they can be convicted. The law is settled that in order to attract section 34 IPC, there must be pre arranged plan and meeting of minds which may also develop on the spot. The conduct of accused persons preceding, attending and following the occurrence is relevant to find out as to whether they had shared the common intention. The essence of section 34 is simultaneous consensus of the minds of the accused persons participating in the criminal action to bring out a particular result which can be developed at the spot even during the course of an occurrence. The reliance is placed upon Surendra Chauhan Vs. State of MP, AIR 2000 SC 1436. The manner in which accused Mukesh Lal gave exhortation, assaulted deceased with empty glass bottle, accused Manoj and Dhiraj pulled deceased out of the car and gave him beatings, accused Chandgi Ram fired four shots from his double barrel gun, on the exhortation accused Chandgi Ram fired a fatal shot aiming deceased Himanshu, the obvious inference is that accused Mukesh Lal, Chandgi Ram, Manoj and Dhiraj shared common FIR No.433/09 page 41 of page 47 intention, in execution of which deceased Himanshu was killed. The presence of accused Narender at the spot and his participation in assaulting deceased and others with his other coaccused also proves beyond doubt that he shared common intention with his coaccused in committing this crime.

CULPABLE HOMICIDE AMOUNTING TO MURDER AND NOT AMOUNTING TO MURDER

66. The other contention raised on behalf of accused persons is that the incident as per the prosecution case took place suddenly on the spur of the moment as deceased urinated near " In and Out"

shop near petrol pump. It is stated that this case gets covered under the exceptions of section 300 IPC and the only offence disclosed is u/s. 304 (II) IPC and that too only against accused Chandagi Ram.. In support of his submissions Ld. counsel Sh. Joginder Tuli for accused Chandgi Ram has relied upon the observation made by Apex Court in Batakrushna Parida (Supra), Bijender Singh (Supra) and Amit Kumar (Supra). In Bijender Singh (Supra), the court held the accused guilty of culpable homicide amounting to murder, accepting submissions of the accused that there was no evidence of past enmity ; there being no motive for the crime ; that it being a result of sudden quarrel and the weapon of offence being a kitchen knife readily available. In Amit Kumar (Supra), the court held the offence being committed by accused as u/s. 304 (part II) IPC as accused had picked the scissor lying in the room and thrust the same in the stomach of his cousin. The court observed any knowledge can certainly be attributed to the appellant that if he struck the scissor and pierces the stomach of his cousin by such act he was likely to FIR No.433/09 page 42 of page 47 cause death.

67. In Pulicherla Nagaraju @ Nagaraja Reddy Vs. State of Andhra Pradesh (2006) 11 SC 444 Supreme Court enumerated some of the circumstances relevant to finding out whether there was any intention to cause death on the part of the accused. The Court observed:

"...Therefore, the court should proceed to decided the pivotal question of intention, with care and caution,as that will decided whether the case falls under Section 302 or 304 Part I or 304 Part II. Many petty or insignificant matters plucking of a fruit, straying of a cattle, quarrel of children, utterance of a rude word or even an objectionable glance, may lead to altercations and group clashes culminating in deaths. Usual motives like revenge, greed, jealously or suspicion may be totally absent in such cases. There may be no intention. There may be no pre mediation. In fact, there may not even be criminality. At the other end of the spectrum, there may be cases of murder where the accused attempts to avoid the penalty for murder by attempting to put death. It is for the courts to ensure that the cases of murder punishable under Section 302, are not converted into offences punishable under Section 304 Part I/II, or cases of culpable homicide not amounting to murder, are treated as murder punishable under Section 302. The intention to cause death can be gathered generally from a combination of a few or several of the following, among other,circumstances:(i)nature of the weapon used; (ii)whether the weapon was carried by the accused or was picked up from the spot; (iii)whether the blow is aimed at FIR No.433/09 page 43 of page 47 a vital part of the body; (iv) the amount of force employed in causing injury;(v) whether the act was in the course of sudden quarrel or sudden fight or free for all fight; (vi) whether the incident occurs by chance or whether there was any pre mediation; (vii) whether there was any prior enmity or whether the deceased was a stranger;(viii)whether there was any grave and sudden provocation, and if so, the cause for such provocation; (ix) whether it was in the heat of passion; (x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner;

(xi)whether the accused dealt a single blow or several blows. The above list of circumstances is, of course,not exhaustive and there may be several other special circumstances with reference to individual cases which may throw light on the question of intention..."

68. In Surinder Kumar V/s. Union Territory Chandigarh (1989) 2 SCC 217, the Apex Court has held that if in a sudden quarrel a person in the heat of the moment picks up a weapon which is handy and causes injuries out of which only one proves fatal, he would be entitled to the benefit of exceptions provided, he has not acted with cruelty. In Ghappu Yadav & Ors. Vs. State of M.P (2003) 3 SCC 528, the Apex Court has observed that the law requires that the offender should not have taken undue advantage or acted in a cruel unusual manner to be able to claim the benefit of exception 4 to section 300 IPC.

69. In Singapagu Anjaiah Vs. State of Andhra Pradesh (2010) 9 SCC 799, the Court observed that nobody can enter into the mind of FIR No.433/09 page 44 of page 47 the accused, its intention has to be gathered from the weapon used, the part of the body chosen for the assault and the nature of the injuries caused.

70. Recently our High Court in Crl. Appeal No. 297/2010 in a case titled Arvind Yadav Vs. State (NCT of Delhi), has discussed and elaborated the various judgments of the Apex Court to define the distinction between murder and culpable homicide not amounting to murder. In para 10 our High Court has relied upon landmark judgment of the Apex Court in State of Andhra Pradesh Vs. Rayaparapu Punnayya & Anr (1976) 4 CC 382.

71. As observed by Apex Court in Pulicherla Nagaraju (Supra), the only circumstance which takes out this case out of the purview of exception 4 of section 300 IPC is that the accused persons under common intention had given gun shot injury to deceased after taking undue advantage of being at their place ; duly armed with a double barrel gun and other weapons i.e danda, belt etc. ; deceased and his associates were not having any weapon with them to assault the accused persons and when deceased and his associates have tried to run away from the spot deceased was pulled out of his car and on the exhortation given by accused Mukesh Lal accused Chandgi Ram fired a fatal shot aiming at him. The only inference from these circumstances is that accused persons inflicted the fatal injuries to deceased after taking undue advantage of their position and have acted in a cruel and unusual manner.

ARMS ACT AGAINST ACCUSED CHANDGI RAM

72. The case of the prosecution is that accused Chandgi Ram was having genuine Arms license but permission for carrying Arms FIR No.433/09 page 45 of page 47 license in Delhi was found to be fake as no such permission was ever granted by the competent authority. As per IO PW51 on the basis of verification report Ex.PW44/A he had endorsed for registration of FIR No. 543/09 u/s. 420/466/467/468 and 471 IPC PS Anand Vihar. PW44 K.P. Singh who was working as Dy. Collector/SDM Kannauj, UP has verified the armed license No. 2000/2010 on the name of accused Chandgi Ram and permission dated 10.7.09 for carrying arms out of the jurisdiction of Kannauj, UP i.e. to Delhi for three months. Ex.PW34/A is the report given by PW44 dated 22.12.09. As per this report no permission was given to Chandgi Ram to work as security guard at Mashih Petrol Pump from their office. The license was given to him is dated 7.2.01. As per the application of Chandgi Ram it was given to him for the safety and security of his life. Ex.PW44/A is a letter written by PW44 mentioning that the letter dated 10.7.09 authorising Chandgi Ram to take armed license to Delhi is found to be forged.

73. Accused is charged u/s. 27 and 30 Arms Act. As per section 27 Arms Act whoever uses any arms or ammunition in contravention of section 5 shall be punished with imprisonment. Section 5 of Arms Act provides that no person shall use any firearms unless he holds in this behalf a license issued in accordance with the provisions of this Act and the rules made there under. As the permission to carry double barrel gun from Kannauj to Delhi is found to be forged, the arms license of accused Chandgi Ram being only valid in the jurisdiction of Kannauj, UP, accused was not holding a valid license to carry this gun in Delhi. As per the facts of this case by using the double barrel gun issued for personal safety and security and forged permission for FIR No.433/09 page 46 of page 47 carrying it to Delhi accused Chandgi Ram has also contravened the conditions of his license. Therefore, the offences u/s. 27 and 30 Arms Act also stands proved against him.

CONCLUSION

74. In view of the aforesaid reasons accused Sunil Chauhan being not identified by PW1, PW2, PW4 and PW5 in TIP is given benefit of doubt. He is thereby acquitted from the offences punishable u/s. 323/325/302/34 IPC.

75. However, on the strength of reasons discussed above,it is held that prosecution has been able to prove beyond reasonable doubt that accused Chandgi Ram, Mukesh Lal, Dhiraj Solanki, Manoj and Narender have committed the offence u/s. 302/323/325/34 IPC. Accused Chandgi Ram is also convicted for the offence u/s. 27 and 30 Arms Act. They are convicted accordingly.

Announced in the open Court                          ( SANJAY GARG )    
on 23.04.2014                                                        Addl. Sessions Judge01 (East)
                                                                     Karkardooma Courts, Delhi 




FIR No.433/09                                                                     page 47  of page 47

IN THE COURT OF SANJAY GARG: ADDITIONAL SESSIONS JUDGE:

01(EAST) : KARKARDOOMA COURT: DELHI.

SC No. 126/13 FIR No. 433/09

PS.                                                         Anand Vihar 
US.                                                           302/323/325/34 IPC and   u/s. 27 
                                                            and 30 Arms Act.

State   Vs.             Chandgi Ram  S/o. Sh. Satya Prakash
                       R/o. Village Jafrabad, PS. Chimbramu
                       District Kannauj, UP


ORDER ON QUANTUM

1. I have heard arguments of Sh. Maqsood Ahmad, Ld. Addl. PP for State and Sh Raman Sahaney Ld counsel for complainant and Sh.

Joginder Tuli, Ld. Counsel for convict Chandgi Ram on quantum of sentence.

2. Ld. APP and Ld. counsel for the complainant submit that keeping in view gravity of the offence this case falls in the category of rarest of rare cases and capital punishment be awarded to the convict.

3. The Ld. counsel for convict submits that the convict is first offender, not involved in any other criminal case. It is stated that convict is aged 44 years and is married having wife and three children i.e. two sons aged 5 and 12 years and one daughter aged 14 years. It is stated that a lenient view be taken while awarding sentence.

4. Keeping in view the totality of the circumstances in which deceased Himanshu was murdered, this case does not fall in the FIR No.433/09 page 48 of page 47 category of rarest of rare case. Section 27 (3) Arms Act provides mandatory death penalty to a convict who uses any arms in contravention of section 7 causing death of any other person. But Apex court in State of Punjab Vs. Dalbir Singh AIR 2012 SC 1040 has declared section 27 (3) as ultra vires.

5. Keeping in view the aggravating and mitigating circumstances, convict is sentenced as under : For the offence punishable u/s. 302 IPC he is sentenced to undergo life imprisonment and shall also be liable to pay fine of Rs.

2000/ in default to undergo SI for two month. For the offence punishable u/s. 323 IPC he is sentenced to undergo RI for one year and shall also be liable to pay fine of Rs.

1000/ in default to undergo SI for one month. For the offence punishable u/s. 325 IPC he is sentenced to undergo RI for three years and shall also be liable to pay fine of Rs.1000/ in default to undergo SI for one month. U/s. 27 Arms Act he is sentenced to undergo RI for seven years and shall also be liable to pay fine of Rs.1000/ in default to undergo SI for one month. U/s. 30 Arms Act he is sentenced to undergo RI for six months and shall also be liable to pay fine of Rs.

               1000/   in   default   to   undergo   SI   for   one 

FIR No.433/09                                                               page 49  of page 47
               month.   All   the   sentences   to   run 
              concurrently.

6 .    Benefit of section 428 Cr. PC be given to the accused.  Copy of

judgment and this order be given to the convict free of cost. File be consigned to record room.




ANNOUNCED IN OPEN COURT 
ON   29.04.14                                                 (SANJAY GARG)
                                           ADDL. SESSIONS JUDGE(EAST)  01
                                                        KARKARDOOMA COURTS : 
                                                               DELHI           




FIR No.433/09                                                          page 50  of page 47

IN THE COURT OF SANJAY GARG: ADDITIONAL SESSIONS JUDGE:

01(EAST) : KARKARDOOMA COURT: DELHI.

SC No. 126/13 FIR No. 433/09

PS.                                                           Anand Vihar 
US.                                                            302/323/325/34 IPC 


State   Vs.                                     Mukesh Lal S/o. Sh. S Moti Lal
                                                R/o. 26, Church Compound Old Tar
                                                Ghar near Queen Merry School, Delhi
ORDER ON QUANTUM

1. I have heard arguments of Sh. Maqsood Ahmad, Ld. Addl. PP for State and Sh Raman Sahaney Ld counsel for complainant and Sh. Joginder Tuli, Ld. Counsel for convict Mukesh Lal on quantum of sentence.

2. Ld. APP and Ld. counsel for the complainant submit that keeping in view gravity of the offence this case falls in the category of rarest of rare cases and capital punishment be awarded to the convict.

3. The Ld. counsel for convict submits that the convict is first offender, not involved in any other criminal case. It is stated that convict is aged 45 years and is married having two daughters aged 12 and 14 years. It is stated that his wife died in 2005. It is stated that a lenient view be taken while awarding sentence.

4. Keeping in view the totality of the circumstances in which deceased Himanshu was murdered, this case does not fall in the category of rarest of rare case.

5. Keeping in view the aggravating and mitigating circumstances, convict is sentenced as under : For the offence punishable u/s. 302 IPC he is FIR No.433/09 page 51 of page 47 sentenced to undergo life imprisonment and shall also be liable to pay fine of Rs.2000/ in default to undergo SI for two month. For the offence punishable u/s. 323 IPC he is sentenced to undergo RI for one year and shall also be liable to pay fine of Rs. 1000/ in default to undergo SI for one month. For the offence punishable u/s. 325 IPC he is sentenced to undergo RI for three years and shall also be liable to pay fine of Rs.1000/ in default to undergo SI for one month. All the sentences to run concurrently.

6 . Benefit of section 428 Cr. PC be given to the accused. Copy of judgment and this order be given to the convict free of cost. File be consigned to record room.

Announced in the open Court                                                                    ( SANJAY GARG )    
on 29.04.2014                                                                   Addl. Sessions Judge01 (East)
                                                                                 Karkardooma Courts, Delhi 
 


 




FIR No.433/09                                                                                       page 52  of page 47

IN THE COURT OF SANJAY GARG: ADDITIONAL SESSIONS JUDGE:

01(EAST) : KARKARDOOMA COURT: DELHI.

SC No. 126/13 FIR No. 433/09

PS.                                                           Anand Vihar 
US.                                                            302/323/325/34 IPC 


State   Vs.                       Narender Chauhan S/o. Sh Azad Pal Chauhan
                                 R/o. Village  Bahadurgarh, PS Bahadurgarh
                                 District Ghaziabad, UP


ORDER ON QUANTUM

1. I have heard arguments of Sh. Maqsood Ahmad, Ld. Addl. PP for State and Sh Raman Sahaney Ld counsel for complainant and Sh. Joginder Tuli, Ld. Counsel for convict Narender on quantum of sentence.

2. Ld. APP and Ld. counsel for the complainant submit that keeping in view gravity of the offence this case falls in the category of rarest of rare cases and capital punishment be awarded to the convict.

3. The Ld. counsel for convict submits that the convict is first offender, not involved in any other criminal case. It is stated that convict is aged 34 years and is married having wife and two sons aged 11 and 12 years. It is stated that a lenient view be taken while awarding sentence.

4. Keeping in view the totality of the circumstances in which deceased Himanshu was murdered, this case does not fall in the category of rarest of rare case.

5. Keeping in view the aggravating and mitigating circumstances, convict is sentenced as under : For the offence punishable u/s. 302 IPC he is FIR No.433/09 page 53 of page 47 sentenced to undergo life imprisonment and shall also be liable to pay fine of Rs.2000/ in default to undergo SI for two month. For the offence punishable u/s. 323 IPC he is sentenced to undergo RI for one year and shall also be liable to pay fine of Rs. 1000/ in default to undergo SI for one month. For the offence punishable u/s. 325 IPC he is sentenced to undergo RI for three years and shall also be liable to pay fine of Rs.1000/ in default to undergo SI for one month. All the sentences to run concurrently.

6 . Benefit of section 428 Cr. PC be given to the accused. Copy of judgment and this order be given to the convict free of cost. File be consigned to record room.

Announced in the open Court                                                                    ( SANJAY GARG )    
on 29.04.2014                                                                   Addl. Sessions Judge01 (East)
                                                                                 Karkardooma Courts, Delhi 
 




FIR No.433/09                                                                                       page 54  of page 47

IN THE COURT OF SANJAY GARG: ADDITIONAL SESSIONS JUDGE:

01(EAST) : KARKARDOOMA COURT: DELHI.

SC No. 126/13 FIR No. 433/09

    PS.                                                         Anand Vihar 
    US.                                                          302/323/325/34 IPC 


State   Vs.                                         Dhiraj Solanki     S/o. Sh. Jawahar Solanki  
                                                  R/o. Village Khanpur, Post Chola  
                                                  Railway Station Sikanderabad, 
                                                  District Bulandshahar, UP
ORDER ON QUANTUM

1. I have heard arguments of Sh. Maqsood Ahmad, Ld. Addl. PP for State and Sh Raman Sahaney Ld counsel for complainant and Sh. P. L. Behl, Ld. Counsel for convict Dhiraj Solanki on quantum of sentence.

2. Ld. APP and Ld. counsel for the complainant submit that keeping in view gravity of the offence this case falls in the category of rarest of rare cases and capital punishment be awarded to the convict.

3. The Ld. counsel for convict submits that the convict is first offender, not involved in any other criminal case. It is stated that convict is aged 35 years and is married having wife and two children namely Dhruv aged about 11 years and Laksh aged about 7 years and both the children are school going. Ld. counsel has also placed on record photocopy of election card of convict and copies of school badge of children. It is stated that accused is the sole blood earner of his family having liability of looking after wife and two minor children. It is stated that a lenient view be taken while awarding sentence.

4. Keeping in view the totality of the circumstances in which deceased Himanshu was murdered, this case does not fall in the category of FIR No.433/09 page 55 of page 47 rarest of rare case.

5. Keeping in view the aggravating and mitigating circumstances, convict is sentenced as under : For the offence punishable u/s. 302 IPC he is sentenced to undergo life imprisonment and shall also be liable to pay fine of Rs.2000/ in default to undergo SI for two month. For the offence punishable u/s. 323 IPC he is sentenced to undergo RI for one year and shall also be liable to pay fine of Rs. 1000/ in default to undergo SI for one month. For the offence punishable u/s. 325 IPC he is sentenced to undergo RI for three years and shall also be liable to pay fine of Rs.1000/ in default to undergo SI for one month. All the sentences to run concurrently.

6 . Benefit of section 428 Cr. PC be given to the accused. Copy of judgment and this order be given to the convict free of cost. File be consigned to record room.

Announced in the open Court                                                                    ( SANJAY GARG )    
on 29.04.2014                                                                   Addl. Sessions Judge01 (East)
                                                                                 Karkardooma Courts, Delhi 




FIR No.433/09                                                                                       page 56  of page 47

IN THE COURT OF SANJAY GARG: ADDITIONAL SESSIONS JUDGE:

01(EAST) : KARKARDOOMA COURT: DELHI.

SC No. 126/13 FIR No. 433/09

PS.                                                           Anand Vihar 
US.                                                            302/323/325/34 IPC 


State   Vs.                       Manoj S/o. Sh Kunwar Pal
                                  R/o. Village  Bahadurgarh, PS Bahadurgarh
                                  District Ghaziabad, UP
ORDER ON QUANTUM

1. I have heard arguments of Sh. Maqsood Ahmad, Ld. Addl. PP for State and Sh Raman Sahaney Ld counsel for complainant and Sh. Joginder Tuli, Ld. Counsel for convict Manoj on quantum of sentence.

2. Ld. APP and Ld. counsel for the complainant submit that keeping in view gravity of the offence this case falls in the category of rarest of rare cases and capital punishment be awarded to the convict.

3. The Ld. counsel for convict submits that the convict is first offender, not involved in any other criminal case. It is stated that convict is a young boy aged 23 years and is unmarried. It is stated that a lenient view be taken while awarding sentence.

4. Keeping in view the totality of the circumstances in which deceased Himanshu was murdered, this case does not fall in the category of rarest of rare case.

5. Keeping in view the aggravating and mitigating circumstances, convict is sentenced as under : For the offence punishable u/s. 302 IPC he is sentenced to undergo life imprisonment and FIR No.433/09 page 57 of page 47 shall also be liable to pay fine of Rs.2000/ in default to undergo SI for two month. For the offence punishable u/s. 323 IPC he is sentenced to undergo RI for one year and shall also be liable to pay fine of Rs. 1000/ in default to undergo SI for one month. For the offence punishable u/s. 325 IPC he is sentenced to undergo RI for three years and shall also be liable to pay fine of Rs.1000/ in default to undergo SI for one month. All the sentences to run concurrently.

6 . Benefit of section 428 Cr. PC be given to the accused. Copy of judgment and this order be given to the convict free of cost. File be consigned to record room.

Announced in the open Court                                                                    ( SANJAY GARG )    
on 29.04.2014                                                                   Addl. Sessions Judge01 (East)
                                                                                 Karkardooma Courts, Delhi 
 




FIR No.433/09                                                                                       page 58  of page 47

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State vs . 1. Chandgi Ram S/O. Sh. Satya Prakash on 29 April, 2014