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Delhi District Court

State vs . on 18 October, 2014

                            1

             IN THE COURT OF SH. RAJNISH BHATNAGAR,
            ADDL. SESSIONS JUDGE -02, NORTH DISTRICT
                    ROHINI COURTS : DELHI

IN RE :                     Sessions Case No. : 75/12
                            FIR No. : 277/12
                             P.S.     : Mangol Puri
                            U/s : 302/34 IPC & 25/27/54/59 Arms Act
                             Date of registration : 09-11-2012
                            Reserved for Judgment on: 22-09-2014
                            Judgment Announced on : 18-10-2014

             State

              Vs.

1.    Narender S/o Mahesh Kumar
      R/o E-170, Mangol Puri, Delhi.

2. Akash @ Patta S/o Mahesh Kumar
   R/o E-170, Mangol Puri, Delhi.

JUDGMENT

1. Briefly stated the present case was registered on the basis of the statement of complainant Raj Kumar S/o Suresh Kumar R/o E-134, 135, Mangol Puri, Delhi. According to the complainant he lives with his family at the above mentioned address and deals in the business of T.V. and Fridge Covers at Karol Bagh, Delhi. According to the complainant on 01-08-2012, he came to his home after his work and before taking the dinner he went to buy butter from his neighbourhood shop, i.e. Himanshu General Store, situated at E-148, Mangol Puri. According to the complainant he reached at the said shop at about 10:30 p.m and saw that in front of gali No. 4 near E Block Park Gate, accused persons were quarrelling with one Sunil S/o Sessions Case No. : 75/12 Page 1 of 53 2 Suresh resident of the same block as that of the complainant.

2. According to the complainant Sunil was demanding his Rs.

150/- from Narender @ Badal and Akash @ Patta but they were refusing to pay the money. On this pretext a quarrel had taken place between them. According to the complainant Narender @ Badal said to his brother Akash @ Patta that today, they would teach a lesson to Sunil and then he would not demand money again from them.

3. According to the complainant thereafter Akash @ Patta caught hold of Sunil and Narender @ Badal stabbed him on his chest and stomach as a result of which blood started oozing from the body of Sunil and he fell down near the Gate of E Block Park. After stabbing Sunil, both Narender @ Badal and Akash @ Patta ran away from there.

4. According to the complainant in the meantime Jaggi brother of Sunil reached there. Some public persons also gathered there and somebody informed the police. PCR came and removed Sunil to the hospital alongwith his brother Jaggi. According to the complainant lateron he came to know that Sunil had expired in the hospital.

5. FIR No. 277/12 was registered at PS Mangol Puri and investigation went underway. During the course of investigation accused persons were arrested. After completion of investigation final report U/s 173 Cr.P.C. was prepared and was filed in the court of Metropolitan Magistrate who after completing all the formalities committed the case to the court of sessions for trial.

6. On 04-12-2012, a charge U/s 302/34 IPC was framed Sessions Case No. : 75/12 Page 2 of 53 3 against both the accused persons and a separate charge U/s 25/27/54/59 of the Arms Act was also framed against accused Narender @ Badal @ Ped to which they both pleaded not guilty and claimed trial.

7. In order to prove the guilt of the accused persons, the prosecution examined as many as 29 witnesses.

8. PW 1 Sumit, PW 2 Raj Kumar, PW 3 Jagdish, PW 4 Subhash, are the material public witnesses and I will discuss their testimonies in the later part of the judgment.

9. PW 5 Suresh Kumar is the father of the deceased Sunil.

On 2-8-12, he visited Sanjay Gandhi Hospital Mortuary and identified the dead body of his son vide identification statement Ex. PW 5/A and the dead body after its examination was handed over to him vide receipt Ex. PW 5/B.

10. PW 6 SI Anil Kumar is the In-charge of Mobile Crime Team. On the intervening night of 01/02-08-2012 he visited the place of occurrence, inspected the spot and prepared his crime team report which he proved as Ex. PW 6/A.

11. PW 7 Ct. Kamal is the photographer with the Mobile Crime Team. On the intervening night of 01/02-08-12, he visited the place of occurrence and took photographs from different angles. He proved on record the negatives of the photographs as Ex. PW 7/P-1 to Ex. PW 7/P-13 and the positives of the same as Ex. PW 7/P-14 to Ex. PW 17/P-26.

12. PW 8 ASI Balbir Singh has tendered his evidence by way of affidavit which he proved as Ex. PW 8/A. PW 8 after receiving the telephonic call at about 23:21 hrs. about a murder, reached the spot in the PCR van and found that the injured had Sessions Case No. : 75/12 Page 3 of 53 4 already been removed to the hospital by the PCR van Libra 10.

13. PW 9 H.C. Prabhu Dayal is the duty officer. He recorded DD No. 45-A and proved on record the copy of the same as Ex. PW 9/A; DD No. 77-B was also recorded by constable Jagat Pal on the dictation of PW 9 and PW 9 proved the same as Ex. PW 9/B. He also led his evidence by way of affidavit which he proved as Ex. PW 9/C and the same bears his signatures at point A and B.

14. PW 10 Ct. Surender Kumar led his evidence by way of affidavit which he proved as Ex. PW 10/A which bears his signatures at point A and B. On 02-08-12, he delivered the special report in this case to the Ld. MM and other senior officers of the police.

15. PW 11 Ms. Sarita deposed that Mobile phone No. 8506990048 of Idea Cellular Co. was issued in her name in March, 2012 on her ID and the said mobile phone was used by her younger sister Sangeeta. She further deposed that during the course of investigation of this case, she received a phone call from police officials of PS Mangol Puri that some phone call has been made to some one from her phone. She told the police that her said mobile phone was being used by younger sister Sangeeta. She also made inquiry from her sister Sangeeta and who told her that the said SIM card was misplaced by her.

16. PW 12 Pawan Singh is the Nodal Officer, Idea Cellular Limited. He deposed that mobile No. 8506990048 was issued to customer Sarita from Idea Cellular Co. on the basis of ID given by her. PW 12 proved on record certified copy of CAF as Ex. PW 11/DB and copy of ID as Ex. PW 11/DC. He also Sessions Case No. : 75/12 Page 4 of 53 5 proved on record the certified copy of the call details pertaining to the above said mobile phone from 01-08-12 to 10-08-12 as Ex. PW 12/A. He also proved on record certificate U/s 65-B of the Evidence Act regarding the call details as Ex. PW 12/B.

17. PW 13 H.C. Mahavir Prasad is the MHC(M). He deposed about the depositing of the exhibits of the case in the malkhana and sending of the same to the FSL Rohini and also about the receipt of the same form the FSL and the relevant entries made by him in register No. 19 in this regard. He proved on record photocopy of the entry made by him at serial No. 6175 in register No. 19 as Ex. PW 13/A. He also proved on record the copy of the road certificate vide which the exhibits of this case were sent to FSL Rohini as Ex. PW 13/B.

18. PW-14 HC Dayaram Yadav deposed that on 02.08.12, he joined the investigation with IO Inspector Satya Prakash. He along with IO reached Sanjay Gandhi Memorial Hospital where IO prepared inquest and the dead body was duly identified by the father of deceased. Thereafter, the postmortem was conducted and after the postmortem the dead body was handed over to Suresh Kumar, father of deceased vide receipt Ex.PW5/B.

19. He further deposed that after the postmortem, doctor handed over two pulandas and one sample seal duly sealed with the seal of SGMH Mortuary, Mangol Puri, Delhi and one sample seal of same specimen. These exhibits were taken into possession vide memo Ex.PW14/A which bears his signatures at point A. Sessions Case No. : 75/12 Page 5 of 53 6

20. He further deposed that on 23.08.12, he again joined the investigation of this case. On that day, on the direction of the IO, he received 10 sealed parcels from MHC (M) HC Mahavir Prasad vide RC No. 72/21/12 to be deposited in FSL. He deposited the said parcels in FSL office and handed over the receipt issued by FSL and copy of road certificate to MHC (M) on the same day.

21. PW 15 Smt. Pushpa Arora, Principal, M.C. Primary School, E Block, Mangol Puri E-II, Delhi has seen the certificate pertaining to the date of birth of accused Narender Kumar S/o. Sh. Mahesh Kumar R/o. E-170, Mangol Puri, Delhi on the judicial file and she deposed that the said certificate was issued by her and was handed over to police. She proved the said certificate as Ex.PW15/A which bears her signatures at point A. She further deposed that as per the admission register, the date of birth of Narender Kumar is 30.05.1992. She has also seen the certificate pertaining to Akash S/o. Sh. Mahesh Kumar R/o. E- 170, Mangol Puri issued by her on 02.08.12 and proved the same as Ex.PW15/B which bears her signatures at point A. As per the admission record, date of birth of accused Akash is 22.02.93.

22. PW 16 Ct. Parveen deposed that on 01.08.12 at about 11:25 p.m, he joined the investigation with Inspector Satprakash and thereafter they reached at the spot i.e. E Block Park, Mangol Puri, Delhi where they found Ct. Sanjay, already present there as he had gone to the spot with SI Jaspal Singh. They found blood scattered at the gate of the park. On enquiry, they came to know that injured had been removed to Sanjay Sessions Case No. : 75/12 Page 6 of 53 7 Gandhi Memorial Hospital by PCR van.

23. He further deposed that thereafter, he along with Inspector Satprakash reached at SGM Hospital where IO collected the MLC of deceased whose name was revealed as Sunil. In the hospital, they met Jaggi, brother of deceased and SI Jaspal Singh. Crime team reached at the hospital and inspected the dead body lying in the Mortuary and crime team photographer took the photographs of the dead body. Thereafter, they along with officials of mobile crime team left the hospital for spot. One public person Rajkumar met them at the spot and told the IO that he has seen the incident.

24. PW 16 further deposed that IO recorded the statement of Rajkumar and prepared rukka. IO handed over the rukka to him and he took the same to police station Mangol Puri and handed over to duty officer for registration of the case. After the registration of the case, duty officer handed over original rukka and copy of FIR to him and he handed over the same to IO at the spot at about 4.15 a.m. IO searched for the accused persons but they could not be found.

25. PW 17 Sh. Ramesh Asstt. Clerk, Delhi Home General, Home Secretariat, New Delhi brought the summoned record i.e notification dated 17-02-1979 and proved on record the attested copy of the same as Ex. PW 17/A.

26. PW 18 SI Jagat Raj is the duty officer. He proved on record the copy of the FIR as Ex. PW 18/A and he deposed that he had made his endorsement on the rukka which he proved as Ex. PW 18/B.

27. PW 19 SI Jaspal Singh deposed that on the night Sessions Case No. : 75/12 Page 7 of 53 8 intervening 1/ 2-8-2012, he was posted at P.S. Mangol Puri and was on emergency duty at police station from 8 p.m. to 8 a.m. In the night, duty officer informed him on telephone about the facts of DD No. 77B, true copy of which is Ex. PW 8/B, regarding stabbing of one boy near Laxmi presentation Mangol Puri, Delhi.

28. He further deposed that thereafter he reached at the spot alongwith constable Sanjay and he found blood scattered on both sides of the gate of the park. He also found one black colour pair of chappal lying at the spot. On inquiry he came to know, that injured had already been removed to SGM Hospital by PCR van. Thereafter he directed constable Sanjay to remain at the spot to guard the place of occurrence and he left for SGM Hospital Mangol Puri.

29. He further deposed that he found one Sunil Son of Suresh Kumar who was declared dead in the hospital and his dead body was lying in casualty. In the meantime Inspector Satya Prakash, Inspector Investigation PS Mangol Puri alongwith constable Praveen also reached in the hospital. PW 19 further deposed that Inspector Satya Prakash collected the MLC of deceased Sunil. Crime team was also called in the hospital. Dead body was shifted to mortuary of SGM Hospital. In the meantime SI Anil Kumar Incharge Mobile Crime team alongwith his staff reached in the Mortuary and inspected the dead body and constable Kamal, photographer, took photographs of the dead body from different angels.

30. He further deposed that in the Hospital one Ravi @ Jagdish @ Jaggi who told that he is brother of Jagdish met them and he told them that his brother Sunil was stabbed by one Sessions Case No. : 75/12 Page 8 of 53 9 Narender and his brother Akash. He also told that this fact was told to him by one Subhash. PW 19 further deposed that thereafter he alongwith IO and other staff with crime team reached at the spot. Crime team inspected the spot and the photographer took photographs of the spot from different angles. One Eye Witness Raj Kumar met them there. IO recorded his statement and prepared rukka on the same and it was sent to PS through constable Praveen Kumar for the registration of the case. Inspector Satya Prakash prepared the site plan of the place of occurrence on the pointing out of complainant Raj Kumar. IO lifted blood stained concrete from both the sides of the gate and also lifted the earth control. IO also lifted one blood stained play card from the spot. IO also lifted one blood stained pair of chappal and these articles were seized by the IO in separate pullandas and sealed with the seal of SP and were taken into possession vide seizure memo already Ex. PW 2/C which bears signature of PW 19 at point B.

31. PW 19 further deposed that thereafter they left the spot in search of accused persons and conducted raid at their house but they were not found there. Thereafter they again came back at the spot. PW 19 further deposed that in the meantime, constable Praveen reached at the spot from PS and he handed over original rukka and copy of FIR to IO. Thereafter they reached at PS Mangol Puri. Seal of SP which was handed over to him by IO after use was returned by him to the IO at PS on the same day. He also identified the case property.

32. PW 20 Dr. Manoj Dhingra deposed that on 2-8-12, he alongwith Dr. Vivek Rawat conducted the postmortem on the Sessions Case No. : 75/12 Page 9 of 53 10 dead body of Sunil S/o Suresh. He proved on record their detailed PM report as Ex. PW 20/A having his signatures at point A on each page and signature of Dr. Vivek Rawat at point B on each page.

33. PW 21 Dr. Brijesh Singh deposed that on 01-08- 2012, he was posted at SGM Hospital and on that day patient Sunil S/o Suresh Kumar was brought to casualty at around 11:20 p.m with alleged history of physical assault by sharp weapon. He further deposed that the patient was declared brought dead and the dead body was shifted to mortuary for postmortem examination. He proved on record the MLC of the patient as Ex. PW 21/A.

34. PW 22 Inspector Mahesh Kumar is the drafts man. On 10-08-2012, he visited the place of incident and at the instance of Inspector Satya Prakash he took the rough notes and measurements of the spot and on the basis of the rough notes, he prepared the scaled site plan. He proved on record the scaled site plan prepared by him as Ex. PW 22/A.

35. PW 23 H.C. Ram Phal deposed that on the intervening night of 01/02.08.2012, he was posted at PCR van Libra 10 as In-charge. He further deposed that at about 10:52 p.m on receiving the information regarding stabbing of one boy near Lakshmi Tent, E Block Park, Manglopuri, he alongwith staff reached there. He further deposed that one person by the name of Sunil S/o Suresh was found having two stab injuries in his chest and he was shifted to SGM Hospital with the help of public persons and was admitted at SGM Hospital on the MLC No. 13020. Doctor declared the injured Sessions Case No. : 75/12 Page 10 of 53 11 brought dead. He also brought the original call book register containing the details of his visit and proved on record the copy of the same as Ex. PW 23/A (containing 2 pages.)

36. PW 24 H.C. Vijay Singh deposed that on the intervening night of 01/02/08/2012, he was posted at PCR PHQ ITO from 8:00 p.m to 8:00 a.m. at Extension no. 109. An information was received at about 10:56 p.m from phone No. 9711330355 about the stabbing of a boy near Lakshmi Tent E- Block Park, Mangolpuri. He filled up the PCR form which he proved as Ex. PW 24/A and passed on the information on the channel.

37. PW 25 is Ct. Sanjay Kumar who on the intervening night of 01/02.08.2012, was posted at PS Mangol Puri and was on emergency duty with PW 19 SI Jaspal Singh. At about 11: 00 p.m on the receipt of information from the duty officer regarding stabbing of one boy near Lakshmi Tent E Block Park Mangol Puri, he alongwith PW 19 SI Jaspal Singh reached there. PW 25 Ct. Sanjay Kumar more or less deposed on the same lines as deposed by PW 19 SI Jaspal Singh.

38. PW 26 W/Constable Sharda deposed that on 1-8- 2012, she was posted at CPCR as constable from 8:00 p.m to 8:00 a.m and on that day at 23:18:28 she received a call regarding the murder at E- Block, H. No. 150, Mangol Puri from a person who did not tell his name. On receiving the said call she filled up the PCR form and thereafter she sent the information on net. She proved on record the attested copy of the same as Ex. PW 26/A.

39. PW 27 Israr Babu is the alternate Nodal Officer Sessions Case No. : 75/12 Page 11 of 53 12 Vodaphone Mobile Service Ltd. He brought the summoned record i.e original customer application form of mobile No. 9711330355. He deposed that the aforementioned mobile phone was issued in the name of Raghonath Raj Sharma S/o Ram Nath Shgarma R/o 3C-45, Block - C, T Camp, Mangolpuri, New Delhi. He further deposed that the ID proof given for the issuance of aforementioned connection is copy of voter ID card. He proved on record the copy of the customer application form as Ex. PW 27/A and the copy of the ID proof as Ex. PW 27/B. PW 27 also brought the call details of the aforementioned mobile phone for dated 01-08-2012 and proved the same as Ex. PW 27/C which bears his signature at point A. He also proved on record the Certificate U/s 65-B of the Indian Evidence Act for the correctness of the aforementioned call details record as Ex. PW 27/D. He also proved on record the Cell ID chart of Vodaphone for Delhi and NCR running into 134 pages as Ex. PW 27/E (collectively).

40. PW 28 SI Sachin Mann deposed that on 02-08-2012, he joined the investigation in this case with Inspector Satya Prakash, Ct. Parveen, Ct. Daya Ram and reached MC Primary School, D Block, Mangol Puri, Delhi where IO collected the date of birth documents in respect of accused Narender and Akash. PW 28 further deposed that thereafter they went in search of the accused and at about 6:15 p.m they reached 88 Picket Mangol Puri where a secret informer met and told about the presence of accused Narender and Akash at B Block Bus Stand, Outer Ring Road. He further deposed that 4-5 passersby were asked to join the raiding party but none of them Sessions Case No. : 75/12 Page 12 of 53 13 agreed. He further deposed that thereafter, in the company of secret informer they reached at B Block bus stand, Mangol Puri and at the pointing out of the secret informer accused Narender and Akash were apprehended.

41. He further deposed that on the search of accused Narender @ Badal @ Ped, one buttondar knife was recovered from the right side pocket of his jeans. The sketch of the knife was prepared. He proved on record the sketch of the knife as Ex. PW 28/A. He further deposed that knife was turned into a pullanda and sealed with the seal of SP and taken into possession vide seizure memo Ex. PW 28/B which bears his signature at point A. PW 28 further deposed that the shirt of the accused Narender @ Badal @ Ped was taken out and sealed which was having blood stains on it and it was light green and white coloured old check shirt and its three front buttons were torn off and one button of right hand cuff was also missing. The same was kept in a white plastic polythene and turned into a pullanda and sealed with the seal of SP and taken into possession vie seizure memo Ex. PW 28/C.

42. PW 28 further deposed that accused Narender and Akash were arrested vide arrest memo Ex. PW 28/D and Ex. PW 28/E respectively and their personal search were carried out vide memo Ex. PW 28/F and Ex. PW 28/G respectively. Both the accused Narender and Akash thereafter made their disclosure statements and PW 28 proved the same as Ex. PW 28/H and Ex. PW 28/J respectively.

43. PW 28 further deposed that the seal after its use was handed over to him. Both the accused Narender and Akash Sessions Case No. : 75/12 Page 13 of 53 14 thereafter pointed out the place of incident i.e E Block Park Gate, Mangol Puri in front of house No. E-148, Mangolpuri, Delhi and pointing out memo Ex. PW 1/A and Ex. PW 1/B respectively were prepared and both bears his signature at point B. Both the accused were medically examined at SGM Hospital and case property was deposited with the MHC(M) by the IO. PW 28 also identified the case property.

44. PW 29 Inspector Satya Prakash is the IO of the case. He unfolded the sequence of investigation done by him. He proved on record the endorsement made by him on the statement of eye witness Raj Kumar as Ex. PW 29/A; inquest paper as Ex. PW 29/B; request for conducting postmortem of the deceased as Ex. PW 29/C and written submissions regarding possibility of injury with the recovered weapon as Ex. PW 29/D.

45. After the closing of the prosecution evidence statements of the accused persons U/s 313 Cr.P.C were recorded and all the incriminating evidence was put to them. Accused persons denied the same and stated that they are innocent and have been falsely implicated. No evidence in defence was led by any of the accused.

46. I have heard Ld. Addl.PP for the State and Ld Amicus Curiae for the accused persons and have also gone through the records of the case.

47. It is submitted by the Ld. Addl. PP for the state that the public witnesses examined by the prosecution have supported its case. It is further submitted by the Ld. Addl. PP for the state that PW 1 though has been cross examined by him but Sessions Case No. : 75/12 Page 14 of 53 15 simply cross examining of this witnesses by him does not make PW 1 unbelievable. It is further urged by the Ld. Addl.PP for the state that all the public witnesses have corroborated each other in all the material particulars and there is nothing in their cross examination to make them unbelievable.

48. It is further submitted by the Ld. Addl. PP for the state that a knife was recovered form accused Narender which has been proved by the prosecution by examining PW 28 SI Sachin Maan and PW 29 Inspector Satya Prakash, so the charge U/s 25/27/54/59 of the Arms Act has also been proved against him. It is further urged that even if there are minor contradictions between the testimonies of the prosecution witnesses, the same does not make them unreliable. It is further urged by the Ld. Addl. PP for the state that on the basis of the evidence produced by the prosecution both the accused persons are liable to be convicted U/s 302/34 IPC as they both in furtherance of their common intention committed the murder of Sunil.

49. On the other hand, it is submitted by the Ld. Amicus Curiae for the accused persons that the eye witnesses are planted witnesses. PW 1 and PW 2 have not supported the case of the prosecution and they have been cross examined by the Ld. Addl. PP for the state. It is further urged that PW 3 is a hearsay witness and no reliance can be placed upon this witness. It is further urged that there is nothing in the FSL report so as to connect the alleged knife with the offence.

50. It is further urged that the information received in the police station was recorded vide DD No. 77 B and the IO had not called the caller at the spot nor made him a witness. It is further Sessions Case No. : 75/12 Page 15 of 53 16 urged that there are contradictions in the testimonies of the witnesses and accused persons have been falsely implicated.

51. Now analyzing the case on the basis of material on record. The accused persons from their appearance looked to me under the age of 18 years so before proceeding further I thought it proper to decide whether the accused persons are above 18 years at the time of incident.

52. The accused persons were arrested on 02-08-2012, and as per their conviction slip accused Narender was 20 years of age and accused Akash was 19 years of age. The prosecution has examined Smt. Pushpa Arora, principal M.C. Primary School E Block, Mangol Puri as PW 15. She has deposed that she had issued certificate Ex. PW 15/A bearing her signatures at point A and according to her school admission register the date of birth of accused Narender is 30-05-1992. She also proved the certificate given by her in respect of age of accused Akash as Ex. PW 15/B. She has deposed that as per the school record the date of birth of Akash is 22/02/1993. So from the perusal of certificate Ex. PW 15/A and Ex. PW 15/B the age of accused Narender was more than 20 years and age of accused Akash was more than 19 years on the date of the incident i.e. 01-08-2012. So both the accused were major i.e. more than 18 years on the date of the incident.

53. Now having settled this issue let me now proceed to examine the evidence produced by the prosecution on record. In the present case the material witnesses are PW 1 Sumit, PW 2 Raj Kumar, PW 3 Jagdish and PW 4 Subhash.

54. Homicidal death of Sunil (since deceased) is not Sessions Case No. : 75/12 Page 16 of 53 17 under challenge. PW 20 Dr. Manoj Dhingra in the postmortem report Ex. PW 20/A conducted on 2-8-2012, opined that the cause of death was due to shock associated with damage for chest structures under injury No. 1, 2 and 3 which is antemortem & is sufficient to cause death in the ordinary course of nature. PW 20 was not cross examined. He also gave his opinion, Ex. PW 29/D that the injury mentioned in the PM report was possible with the knife shown to him.

55. PW 1 Sumit has deposed that he is running a grocery shop at E-148 Mangol Puri, Delhi under the name and style of "Himanshu General Store". He further deposed that on 01-08-2012, at about 10:30 p.m deceased Sunil came alongwith one boy to purchase cigarette from his shop. After taking cigarette deceased alongwith that boy went towards E- Block Park. (This witness correctly identified both the accused persons as they lived in his gali).

56. He further deposed that the younger of the two accused came to his shop and had purchased a cigarette from him and went towards the deceased who was standing in side the E Block park. This witness pointed out towards accused Akash @ Patta as the younger of the two accused persons. He further deposed that the unknown boy who was accompanying the deceased by that time had left the park and accused Akash @ Patta started quarrelling with the deceased. He further deposed that at that time accused Narender who is the elder brother of accused Akash @ Patta also joined in the quarrel. He further deposed that he saw the deceased falling down and when he went towards him he saw that deceased was Sessions Case No. : 75/12 Page 17 of 53 18 bleeding from the stomach. He further deposed that he had seen the accused persons leaving the park after the deceased had fallen down. He further deposed that on the next day he was called by the police and he saw both the accused persons sitting in the police station.

57. He further deposed that he told the police officials that he had seen the accused persons and the deceased quarrelling. This witness was cross examined by Ld. Addl. PP for the state and in the cross examination he stated that he had not stated in his statement to the police that accused persons were quarrelling with the deceased on some money matters. He further stated that he had not stated to the police the name of the deceased as Sunil. He further stated that he had not identified accused Narender as the person who inflicted knife blows on the deceased. He was confronted with the statement Ex. PW 1/C. He admitted that he had stated to the police in the statement Ex. PW 1/C that accused Akash had caught hold of the deceased. He denied the suggestion that Ex. PW 1/A and Ex. PW 1/B which are the arrest memo of the accused persons were prepared at the spot. He further denied that the accused pointed out the place of occurrence in his presence. He was confronted with his statement Ex. PW 1/C wherein he has stated that Ex. PW 1/A, Ex. Pw 1/B were prepared at the spot and the accused persons pointed out the place of occurrence.

58. This witness was cross examined by the Ld. Amicus Curiae for the accused persons and in his cross examination he stated that he closes his shop at about 10:30 p.m. He stated in the cross examination "it is correct that I knew accused persons Sessions Case No. : 75/12 Page 18 of 53 19 prior to the incident as they are the residents of the same gali." He denied the suggestion that he was on inimical terms with the accused. He stated that he had not seen the deceased prior to the date of the incident. He stated that the police had obtained the signatures on the documents in the police station.

59. Another eye witness according to the prosecution is PW 2 Raj Kumar. He deposed that on 1-8-12, he had gone to the nearby shop namely "Himanshu General Store" at about 10:30 p.m to fetch butter. He further deposed that one boy whose name he came to know lateron was standing in front of lane near gate of C Block park and both the accused persons (correctly identified by him) were quarrelling with deceased Sunil. He deposed that accused Akash @ Patta caught hold of him and other accused Narender was grappling with him. He further deposed that accused Narender gave a blow with something to Sunil because of which he fell down and both the accused persons ran away. When he went near Sunil he saw that he was bleeding from his chest and in the meanwhile many persons gathered at the spot and police also arrived there. He proved his statement as Ex. PW 2/A. He further deposed that the site plan Ex. PW 2/B was prepared at his instance and police lifted the exhibits from the spot which were taken into possession vide seizure memo Ex. PW 2/C.

60. This witness was also cross examined by the Ld. Addl. PP for the state and in his cross examination he stated that his statement Ex. Pw 2/A was correctly recorded by the police. He stated in the cross examination that both the accused persons resides in his neighbourhood in the back lane of his Sessions Case No. : 75/12 Page 19 of 53 20 house. He admitted that deceased Sunil was asking for Rs. 150/- from both the accused persons and because of this both the accused persons were quarrelling with deceased Sunil. He denied the suggestion that accused Narender had given knife blow on the chest and stomach of deceased Sunil. He stated that accused Akash had caught hold of Sunil and he went on to state that accused Narender had given blow on the chest of the Sunil with something. He stated that Jaggi brother of deceased Sunil also reached at the spot.

61. This witness was also cross examined by the Ld Amicus Curiae for both the accused persons and in his cross examination he stated that the place of incident is situated in a thickly populated area. He stated that both the accused persons are residing in the back lane of the house and he had seen them prior to the incident. He denied having any enmity with the accused persons. He stated that he had not heard the exact conversation made between the deceased and the accused as he was standing at the shop which is at a distance of 10-15 steps from the place of incident. He stated that besides both the accused and Sunil one another person was there at the place of the incident and the said person was with deceased Sunil.

62. He denied the suggestion that it was dark at the spot. He denied that he had gone directly to his house from the shop. He reiterated that the site plan Ex. PW 2/B was prepared in his presence.

63. Another eye witness of the incident is PW 4 Subhash. He deposed that about 3 years prior to the date of the incident Sessions Case No. : 75/12 Page 20 of 53 21 he was residing at E Block Mangol Puri where his sister Veena resides. On 1-8-2012, one day prior to Raksha Bandhan he visited the house of his sister and in the evening he went to meet his friend deceased Sunil. At about 10:30 p.m he alognwith Sunil was present at E Block park where accused Narender and Akash quarreled with Sunil for Rs. 150/- as deceased Sunil was asking his Rs. 150/- from accused Narender and in that quarrel deceased Sunil received knife injury at the hands of accused persons. He further deposed that he cannot tell which of the accused person had inflicted knife injury.

64. He further deposed that at the time of quarrel both the accused persons were grappling with Sunil and at that time a knife injury was inflicted to him. He further deposed that deceased Sunil suffered injuries on his chest and stomach. He then rushed to the house of Sunil to inform his relatives. Jagdish @ Jaggi brother of the deceased and his sister came to the spot. He deposed that he cannot identify the knife and the clothes of the accused if shown to him.

65. This witness was also cross examined by the Ld. Addl. PP for the state and in his cross examination he stated that both the accused persons refused to return the money of Sunil, so quarrel intensified between them. He further deposed that accused Akash had told that "Aaj Sunil Ko Sabak Sikha Dete Hai Jis Se Sunil Hamse Dubara Paise Nahi Mangega." He admitted that accused Akash caught hold of Sunil and accused Narender gave knife blow on the chest and stomach of Sunil.

66. In the cross examination by the Ld. Amicus Curaie he stated that accused persons were not known to him personally Sessions Case No. : 75/12 Page 21 of 53 22 but once he had seen accused Akash when he was with Sunil. He stated in his cross examination "it is correct that initially arguments were going on between deceased Sunil and accused Narender" He stated that when the quarrel started accused Akash was not present at the spot. He stated that he cannot say which of the two accused had stabbed Sunil and further stated that when accused Akash came to the spot and joined accused Narender it was then deceased Sunil received stab wounds. He stated that he could not tell if any person known to him was present amongst public persons who gathered there as he was perturbed and immediately left for the house of the deceased. He stated that it was night time. He further stated that the accused persons fled from the spot. He denied the suggestion that he was not present at the time of the incident.

67. This witness was re-examined by the Ld. Addl. PP for the state and he deposed in his re-examination that his version that out of the two accused one of them had inflicted knife injury to Sunil is correct.

68. Now coming back to the testimonies of PW 1, PW 2, and PW 4, it is to be seen how far they are reliable and believable. It has been vehemently argued by the Ld Amicus curiae that the public witnesses have turned hostile and no reliance can be placed on them. It is also urged by him that there are contradictions in their testimonies.

69. The law to deal with the evidence of hostile witnesses is well settled in the case of Rameshbhai Mohanbhai Koli Vs. State of Gujrat (2011) 11 SCC 111, the Supreme Court held :

"It is settled legal proposition that Sessions Case No. : 75/12 Page 22 of 53 23 the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross- examined him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent that their version is found to be dependable on a careful scrutiny thereof. [Vide Bhagwan Singh v.State of Haryana 1976 SCC (Cri) 7, Rabindra Kumar Dey v.State of Orissa 1976 SCC (Cri) 566, Syad Akbar v.State of Karnataka 1980 SCC (Cri) 59 and Khujji v.State of M.P. 1991 SCC (Cri) 916] In State of U.P.V. Ramesh Prasad Misra 1996 SCC (Cri) 1278, this Court held that evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or the accused but required to be subjected to close the prosecution or defence can be relied upon. A smilar view has been reiterated by this Court in Balu Sonba Shinde V.State of Maharashtra 2003 SCC (Cri) 112, Gagan Konojia v.State of Punjab (2008) 1 SCC (Cri) 109, Radha Mohan Singh v. State of U.P. (2006) 1 SCC (Cri) Sessions Case No. : 75/12 Page 23 of 53 24 661, Sarvesh Narain Shukla v.Daroga Singh (2009) 1 SCC (Cri) 188 and Subbu Singh v.State (2009)2 SCC (Cri) 1106".

70. "The law on the treatment of the evidence of a hostile witness is that the evidence of such a witness need not be completely rejected only because he has turned hostile, The Court must, however, be circumspect in accepting his testimony and, to the extent possible, look for its corroboration.

71. In Karuppanna Thevar Vs. State of T.N., (1976) 1 SCC 31 this Court held : "that the testimony of a hostile witness may not be rejected outright "but the court has at least to be aware that, prima facie a witness who makes different statements at different times has no regard for truth. The Court should therefore be slow to act on the testimony of such a witness and normally, it should look for corroboration to his evidence."

72. Similarly, in Bhagwan Singh Vs. State of Haryana, (1976) 1 SCC 389 this Court held: "But the fact that the Court gave permission to the prosecutor to cross-examine his own witness, thus characterizing him as, what is described as a hostile witness, does not completely efface his evidence. The evidence remains admissible in the trial and there is no legal bar to base a conviction upon his testimony if corroborated by other reliable evidence."

73. These basic principles have been reiterated recently in Bhajju Vs. State of M.P. (2012) 4 SCC 327 and Ramesh Harijan Vs. State of U.P., (2012) 5 SCC 777.

74. Now as far as the identity of the accused persons is concerned PW 1 and PW 2 have categorically stated that both the accused persons were known to them as they lived in the same locality. Even in their cross examination they have reiterated that the accused persons were known to them prior to the date of the incident.

75. As far as PW 4 is concerned, he lived in the same area about 3 years prior to the incident. He has also stated in the cross examination done by the Ld Amicus Curiae for the accused persons that he had seen accused Akash with deceased Sunil on the day of the incident. Now as far as the presence of the accused persons at the spot is concerned, the same has not been disputed by the defence and in a question put to PW 4 he has given the following answer : "It is correct that initially the arguments were going on between deceased Sunil and accused Narender. Accused Akash had come alone." Meaning thereby, both the accused persons were present at the spot at the time of the incident.

76. PW 1 and PW 2 have also categorically stated that both the accused persons were present at the spot and were quarrelling with Sunil. So the presence of the accused persons at the spot has been duly established by the prosecution witnesses.

77. PW 1 was cross examined by the Ld. Addl. PP for the state and in the cross examination he denied having knowledge of the reason for the quarrel between the deceased and the accused persons. He has also stated that he was not aware about the name of the deceased as Sunil and that he identified Sessions Case No. : 75/12 Page 25 of 53 26 accused Narender as the person who inflicted knife blow on the deceased.

78. Even if this witness has not supported the case of the prosecution on the above said three points in my opinion, the testimony of this witness does not become untrustworthy because he has narrated the manner in which the incident took place. He has deposed that accused Akash started quarrelling with the deceased and accused Narender thereafter joined accused Akash in the quarrel. However, PW 4 Subhash in the cross examination done by the Ld Amicus Curaie has stated it to be as correct that initially arguments were going on between deceased Sunil and accused Narender and accused Akash joined lateron. PW 2 has deposed that both the accused persons were quarrelling with deceased Sunil and he went on to state that accused Akash @ Patta had caught hold of him and accused Narender who was abusing deceased Sunil gave blow with something to Sunil because of which he fell down and both of them had run away.

79. So all these witnesses in unison are deposing about the presence of both the accused persons at the spot and that they were quarrelling with deceased Sunil. Though PW 1 is not certain as to what was the reason of quarrel but PW 4 has categorically stated that the quarrel was for Rs. 150/- which the accused persons refused to return to the deceased.

80. PW 1 who is the eye witness, though has not deposed as to which of the accused had given the blow to the deceased but he has seen him alongwith the accused persons who were quarrelling with Sunil (since deceased) and he also saw Sunil Sessions Case No. : 75/12 Page 26 of 53 27 falling down and bleeding and immediately thereafter he had seen the accused persons leaving the park. So the testimony of this witness leaves no doubt that it was the accused persons who had quarrelled and thereafter inflicted injury on the person of the deceased though PW 1 is not able to say as to how the injury was inflicted.

81. It is pertinent to mention here that PW 1 is a shop keeper and it was around 10:30 p.m so he must be busy with his shop and it is not expected of him to keep a constant watch on the activities going in and around him. But as already discussed hereinabove he has narrated the sequence of events which lead to the injury to Sunil (since deceased). So this witness cannot be said to be an unreliable witness. PW 2 has categorically described the manner of the incident and the role played by each of the accused. This witness has also deposed about a quarrel between deceased Sunil and both the accused persons as has been deposed by PW 1. But this witness has ascribed role to accused persons. According to this witness accused Akash had caught hold of the deceased and accused Narender gave a blow with something to Sunil because of which he fell down and thereafter both the accused persons ran away from there. Now both PW 1 and PW 2 are saying that deceased Sunil was stabbed. The word they are using in their testimony is something with which deceased Sunil was hit. So to me they appear to be truthful witnesses because they were watching the incident from a distance and it was night time so it may not have been possible for them to see the real weapon of offence, else they could have said that deceased Sunil was Sessions Case No. : 75/12 Page 27 of 53 28 stabbed with a knife.

82. PW 4 according to the prosecution is another eye witness. He has also corroborated the testimonies of PW 1 and PW 2 with regard to the quarrel between the accused persons and the deceased. He has deposed that the deceased had received knife injury but again he stated that he cannot tell as to which of the accused had inflicted knife injuries. But he has categorically stated in his examination in chief as well as in his cross examination on behalf of the accused persons that both the accused persons were present at the spot and quarreling with deceased Sunil and during the quarrel deceased Sunil received injuries on his chest and stomach.

83. This witness was also cross examined by the Ld. Addl. PP for the state with regard to the exhortation given by accused Akash and also the role played by each of the accused. To my mind, even if this witness did not speak in his examination in chief with regard to the exhortation and role of the accused and had only spoken about the above two facts in his cross examination by the Ld. Addl. PP for the state, it does not make this witness unbelievable because he has corroborated the testimonies of PW 1 and PW 2 on all the material particulars with regard to the presence of both the accused persons with Sunil; their quarrel and receiving of injuries by deceased Sunil during the quarrel which he had with the accused persons, and accused persons leaving the spot.

84. So from the testimonies of PW 1, PW 2 and PW 4 the prosecution, has been able to prove that it was the accused persons who were present at the spot alongwith deceased and Sessions Case No. : 75/12 Page 28 of 53 29 quarreled with him and during the quarrel deceased Sunil fell down having received injuries on his chest and stomach. Only PW 2 has been able to assign role to the accused persons and to my mind, even if, PW 1 and PW 4 could not specifically assign the role to the accused persons they does not become untrustworthy and unreliable witnesses because it is not possible for all the witnesses to have seen the entire incident simultaneously in the same manner as it is happening and as seen by the other witnesses. The witnesses cannot be said to have photogenic memory and they are liable to forget some facts here and there. The Court can sift the chaff from the grain in order to find out the truth from the testimony of the witnesses.

85. PW 3 is another public witness and he has deposed that his friend Subhash came to him and told that the accused persons had inflicted knife blows to Sunil at the gate of E Block Park. He reached the spot and found his brother bleeding from the chest. PCR van reached there and removed his brother to the hospital.

86. In his cross examination he denied that there was complete darkness at the spot. This witness like other witnesses has also denied that there was darkness at the spot. So in these circumstances, it cannot be said that it was not possible for the witnesses to see as to who has inflicted the injuries on Sunil. Both the accused persons were known to PW 1 and PW 2 and even PW 4 had seen accused Akash and he was present with Sunil when the incident took place, even otherwise there is nothing in the cross examination of PW 4 to discredit his testimony regarding his presence at the spot at the time of the Sessions Case No. : 75/12 Page 29 of 53 30 incident.

87. MOTIVE : According to the prosecution, the motive behind the murder of Sunil is that he was demanding Rs. 150/- from the accused persons and on that accused there was a quarrel between them which resulted in the murder of Sunil.

88. PW 1 and PW 2 have not stated that the quarrel was for a sum of Rs. 150/-, though it was suggested them by the Ld. Addl. PP for the State in the cross examination. Apart from the testimonies of these two witnesses nothing has been brought on record by the prosecution to prove that the motive behind the murder was a sum of Rs. 150/- which Sunil (since deceased) was demanding from the accused persons. Even if the prosecution has failed to establish the motive that does not give any benefit to the accused because it is settled law that where the conviction of an offence is proved by the direct evidence, it hardly matters whether motive is proved or not.

89. So looking into the testimony of the witnesses the prosecution has been able to establish that it was the accused persons with whom the deceased was having a quarrel which resulted in his death.

90. The postmortem examination report is Ex. PW 20/A and as per the postmortem examination report the following injuries were found on the person of Sunil since (deceased) :

(a) Stab wound 3 cm X 1.8 cm X 6 cm, obliquely placed in right axillary fossa along the anterior axillary line, 123 cm from right heel & 9 cm latral to right nipple with tailing seen at lower angle of the Sessions Case No. : 75/12 Page 30 of 53 31 wound.

(b) Stab wound 3.5 cm X 1 cm X cavity deep (up to heart) obliquely placed over lower front of chest, 115 cm from the heel along the midline of body with tailing seen at lower angle of the wound.

(c) Stab wound 3.5 cm X 1.5 cm. X cavity deep (up to lung) obliquely placed over left mammary (precordial) area, 117 cm from the heel & 12 cm from the midline of the body with tailing seen at lower angle of the wound.

(d) Stab wound 3.6 cm X 2 cm X 6 cm obliquely placed over right loin area, 93 cm from the heel & 10 cm from the midline of body with tailing seen at lower angle of the wound.

91. All wounds are wedge shaped with blunt upper end & acute (pointed) lower end in shape. All wound show tailing at its lower angle. The margins of all wound are clean cut & inverted. As per the opinion of the doctor who conducted the postmortem the death is due to shock associated with damage for chest structures under injury No. 1, 2 and 3 which is antemortem & is sufficient to cause death in the ordinary course of nature.

92. Now the question is as to what offence has been committed by the accused persons. The accused persons have been charged U/s 302/34 IPC and accused Narender has also been charged separately U/s 25/27/54/59 of the Arms Act.

93. Section 34 IPC reads as follows :

["34. Acts done by several persons in furtherance of common intention.- When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.]"

94. This section recognizes principle of vicarious liability in criminal jurisprudence. It is a rule of evidence and does not create a substantive offence. In order to attract Section 34 IPC two postulates are indispensable as held by the Ho'ble Supreme Court in Suresh Vs. State of U.P. AIR 2001 S.C. 1344 :

(1) The criminal Act should have been done, not by one person, but more than one person. (2) Doing of every such individual act cumulatively resulting in the commission of criminal offence should have been in furtherance of the common intention of all such persons.

95. It is one of the settled principle of law that the common intention must be interior in time to the commission of the offence. It is also equally settled that the intention of the individual has to be inferred from the overt act or conduct or from other relevant circumstances. Therefore, the totality of the circumstances must be taken into consideration in order to arrive at a conclusion whether the accused had a common intention to commit the offence under which they have been charged.

96. It has come in the testimony of the eye witnesses i.e. PW 1, PW 2 and PW 4 that there was a quarrel between the deceased and the accused persons and it has also come in the testimony of PW 2 that accused Akash caught hold of deceased and accused Narender inflicted injury on the person of the deceased Sunil with some object and thereafter they both left. So it shows that both the accused persons had shared common intention and in furtherance of which accused Akash caught hold of the deceased and then injury was inflicted by accused Narender. If accused Akash hand not caught hold of the deceased, there were chances of deceased saving himself from the attack made by accused Narnder on him. The injury has been inflicted on the vital part of the body of the deceased i.e. chest and according to the postmortem report Ex. PW 20/A the injury on the chest was sufficient to cause death in the ordinary course of nature. So the prosecution has been able to prove that both the accused had shared the common intention, in furtherance of which they quarreled with deceased Sunil and in the said quarrel Sunil (since deceased) received injuries and died.

97. The definition of 'murder' is given in Section 300 IPC. That definition, inter alia, says that culpable homicide is murder if the act by which the death is caused is done with the intention of causing death. Therefore, it is to be seen if any of the other parts of definition of 'murder' can be applicable. Clause '3rdly' of the said definition says that culpable homicide is murder if the act by which the death is caused, is done with the intention of causing bodily injury to any person and the bodily injury Sessions Case No. : 75/12 Page 33 of 53 34 intended to be inflicted is sufficient in the ordinary course of nature to cause death. In Virsa Singh Vs. The State of Punjab, 1958 SCR 1495 (at page 1500) the following was held by the Supreme Court while interpreting clause 3rdly of Section 300 IPC :

"To put it shortly, the prosecution must prove the following facts before it can bring a case under Section 300. "3rdly"; First, it must establish, quite objectively, that a bodily injury is present;

Secondly, the nature of the injury must be proved; There are purely objective investigations.

Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended.

Once these three elements are proved to be present, the enquiry proceeds further and, Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature. This part of the inquiry is purely objective and inferential and has nothing to do with the intention of the offender.

Once these four elements are established by the prosecution (and of course, the burden is on the prosecution throughout) the offence is murder under Section 300, 3rdly. It does not matter that there was an intention to cause death. It does not matter that there was an intention even to cause an injury of a kind that is sufficient to cause death in the ordinary course of Sessions Case No. : 75/12 Page 34 of 53 35 nature not that there is any real distinction between the two.)"

98. In the present case statement of PW 20 Dr. Manoj Dhingra is that on the body of deceased Sunil there were 4 stab wounds over the chest and the death is due to shock associated with the damage for chest structure under injury No. 1, 2, and 3 which are antemortem and sufficient to cause death in the ordinary course of nature.

99. Accused persons inflicted injury on the chest which is a vital part of body with sharp edge weapon which has not been described by the witnesses as they were unable to see the object with which the injury was inflicted on the person of deceased. In any case the postmortem report reveals that the injuries were inflicted with sharp age weapon which could possibly be a knife. So the seat of injury is the chest which is the vital part of the body, in these circumstances the accused persons can be said to have possessed the requisite intention as necessary U/s 300 3rdly. The accused are, therefore, liable to be held guilty and convicted U/s 302/34 IPC.

100. Recovery of knife from accused Narender :

According to the prosecution, accused Narender was arrested on 2-8-12, at about 7:40 p.m vide arrest memo Ex. PW 28/D. From the search of accused Narender a button actuated knife was recovered from the pocket of his pant. The knife was seized vide memo Ex. PW 28/B and before seizing the knife the IO had prepared its sketch which is Ex. PW 28/A.

101. It was argued by the Ld. Aicus Curiae for the accused that the recovery has been planted. No public witness was joined at the time of the recovery of the knife and it was further Sessions Case No. : 75/12 Page 35 of 53 36 urged that the knife cannot be connected with the offence.

102. The witnesses of recovery of knife are PW 28 SI Sachin Maan and PW 29 Inspector Satya Prakash who is the IO of this case. As far as the contention of the Ld Amicus Curiae that no public witness was joined by the IO at he time of the recovery of the knife. It does not cut much ice because the testimony of the official witnesses is not always to be discarded and it is a matter of common knowledge that the public witnesses seldom joins the investigation as the public persons do not want to get involved in the police proceedings.

103. It was then argued by the Ld. Amicus Curiae that the recovery of the knife has been planted and the accused persons were lifted from their house. PW 28 and PW 29 both have corroborated each other with regard to the recovery of knife. They both have deposed in unison that accused Narender was apprehended at the instance of the secret informer and from the right side pocket of his jeans a button actuated knife Ex. P 7 was recovered which was seized vide memo Ex. PW 28/B. Both the witnesses were cross examined bu there is nothing in their cross examination to discredit these witnesses.

104. Accused Narender was examined U/s 313 Cr.P.C and he has only denied the incriminating evidence put to him. In his statement U/s 313 Cr.P.C it has not been stated by the accused that he was lifted from his house or the knife has been planted. So this can also be taken as one of the circumstance against the accused in regard to the recovery of the knife from his person in addition to the corroborative testimony of PW 28 and PW 29.

105. Now it is to be seen whether the knife recovered from the accused is the same knife which has been used by him in committing the crime. It has been held by me hereinabove that accused Narender was found in possession of the knife Ex. P-7. The knife was sent to FSL and it was examined as Ex. '7'. As per the report of FSL the knife which is Ex'7' was having human blood on it but grouping could not be given. No exhibit has been put on the FSL report but the same is admissible U/s 293 Cr.P.C so now it has been exhibited as Ex. PX.

106. There is no blood grouping on the knife and none of the witnesses says that it was the same knife with which deceased Sunil was stabbed so it cannot be said that the knife recovered from the accused was the same knife with which deceased Sunil was stabbed.

107. The prosecution though been able to prove that the knife Ex. P-7 was recovered form accused Narender but it has failed to prove that the recovered knife was the same knife which was used by accused Narender in committing the murder of Sunil. In any case carrying such knife recovered from the accused is prohibited vide notification Ex. PW 17/A. So accused Narender is liable to be held guilty and convicted U/s 25/54/59 of the Arms Act.

108. Accordingly both the accused are held guilty and convicted U/s 302/34 IPC and accused Narender is also held guilty and convicted U/s 25/54/59 of the Arms Act. Put up for arguments on the point of sentence on 30-10-2014. (Announced in the open Court on 18-10-2014.) Sessions Case No. : 75/12 Page 37 of 53 38 (RAJNISH BHATNAGAR) ASJ-02, NORTH DISTRICT ROHINI COURTS : DELHI IN THE COURT OF SH. RAJNISH BHATNAGAR, ADDL. SESSIONS JUDGE -02, NORTH DISTRICT ROHINI COURTS : DELHI IN RE : Sessions Case No. : 75/12 FIR No. : 277/12 P.S. : Mangol Puri U/s : 302/34 IPC & 25/27/54/59 Arms Act State Vs.

1. Narender S/o Mahesh Kumar R/o E-170, Mangol Puri, Delhi.

2. Akash @ Patta S/o Mahesh Kumar R/o E-170, Mangol Puri, Delhi.

ORDER ON OF SENTENCE

1. I have heard Ld. Substitute Addl. PP for the state and Ld. Amicus Curiae for both the convicts on the point of sentence.

2. It is urged by the Ld. Amicus Curiae for the convicts that the convicts are young men and have a family to support. It is further submitted that they are first time offender and there is no previous conviction in their name, so minimum punishment be awarded to them.

3. On the other hand Ld. Substitute Addl. PP for the State submits that the convicts don't deserve any leniency as they have committed the murder of a young man only for a sum of Rs. 150/-

which the deceased was demanding from the convicts as he had lend the same to them. He prays that maximum i.e. death punishment be awarded to the convicts.

4. Both the convicts have been convicted by me vide separate judgment dated 18.10.2014 U/s 302/34 IPC and accused Narender has also been convicted U/s 25/54/59 of the Arms Act.

5. It is not a rarest of the rare case inviting imposition of capital punishment. Reliance can be placed upon Bachan Singh Vs. State of Punjab AIR 1980 SC 898. I therefore sentence both the convicts to undergo life imprisonment U/s 302/34 IPC and pay a fine of Rs. 10000/- each. They will undergo rigorous imprisonment for six Sessions Case No. : 75/12 Page 39 of 53 40 months each in case of default of payment of fine.

6. Convict Narender is also sentenced to undergo rigorous imprisonment for 5 years and to pay a fine of Rs. 5000/- and he will undergo rigorous imprisonment for three months in case of default of payment of fine U/s 25/54/59 of the Arms Act.

7. Ordered accordingly.

8. All the sentences in respect of accused Narender to run concurrently. The benefit of section 428 Cr.P.C. be given to both the convicts. Copy of judgment and order on sentence be given to both the convicts free of cost. File be consigned to Record Room.

(Announced in the open Court on 19-11-2014) (RAJNISH BHATNAGAR) ADDL. SESSIONS JUDGE-02 NORTH DISTRICT, ROHINI COURTS : DELHI Sessions Case No. : 75/12 Page 40 of 53