Delhi District Court
State vs . on 25 August, 2011
1
IN THE COURT OF SURINDER KUMAR SHARMA
ADDITIONAL SESSIONS JUDGE - NORTH EAST
KARKARDOOMA COURTS:DELHI
State
Vs.
1. Tahir @ Sahil
S/o Sh. Sagir Ahmad
R/o House No. 195,
Gali No.1, Kidwai Nagar,
Police Station Lisari Gate,
Meerut ( U.P. )
2. Anwar @ Addha
S/o Sh. Hazi Said
R/o House No. 650, Gali No.1,
Mohalla Char Diwari, Islamabad,
Police Station Lisari Gate,
Meerut ( U.P. )
3. Shakil @ Kalia @ Rahul
S/o Savir
R/o Gali No. 18, Ahmed Nagar, Lakhipur,
Police Station Lisari Gate,
Meerut (U.P.) ( Since Expired )
FIR No.: 367/2006
U. Sections 302/307/398/34 IPC &
U/ss 25/27 of Arms Act
Sessions Case No. 48/08 Page 1 /46
2
Sessions Case No. : 48/2008
Date of Institution of case : 14.5.2007
Date of Arguments : 10.08.2011
Date of Judgment : 25.08.2011
JUDGMENT:
In brief the case of the prosecution is that D.D. No.28A was recorded by the Duty Officer at Police Station Khajuri Khas that at FBlock, Gali No.2, Dayal Pur near Water Tanki two persons have been shot. The said DD was assigned to ASI Rajinder Singh. ASI Rajinder Singh along with Constable Indresh reached at F3/4, Karawal Nagar Road where Shashi Medical Store was located. Inspector B.P.Sharma along with SI Satender Singh Tomar and other police staff also reached at the spot, where Inspector B.P.Sharma came to know that the injured had already been taken to GTB Hospital by CATS Ambulance. Inspector B.P. Sharma left SI Satender Tomar at the spot and he along with ASI Rajender Singh and Constable Indresh reached at GTB Hospital. In the hospital, Inspector B.P.Sharma collected the MLCs of Ramesh Sundariyal and Amit Sundariyal. Amit Sundariyal was declared brought dead and Ramesh Sundariyal was declared fit for statement. Inspector Sessions Case No. 48/08 Page 2 /46 3 B.P.Sharma recorded the statement of Ramesh Chand Sundariyal, on which he made his endorsement and got the present case registered in Police Station Khajuri Khas.
Complainant Ramesh Sundariyal has stated in his complaint that he and his son Amit Sundariyal used to run a medical store under the name and style of Shashi Medical Store at F3/4, Dayal Pur Extension, Main Karawal Nagar Road. On 21.8.2006 at about 11.00 p.m. he and Amit were present at the Medical Store. At that time, three boys came to their shop and one of them tried to enter the shop and two boys were standing outside. On this, Amit objected to his entering the shop on which he started abusing. Amit made him to go outside the counter. At that time that boy took out revolver/pistol from the dub of his pant and fired on Amit. The gun shot injury was sustained by Amit on his left shoulder by the said firing. At that time the complainant Ramesh Chand Sundariyal tried to intervene to save his son and bullet was fired on him also which struck on to his right hand. Amit had raised hue and cry. At that time those boys again fired at Amit from the revolver/pistol and the bullet struck on his chest. Amit fell down on the road. The complainant Ramesh Chand Sundariyal has also stated in his complaint that one Sessions Case No. 48/08 Page 3 /46 4 bullet went touching of his stomach. Those three boys then ran away from the spot towards Jodha Ram Street after the firing. The boy who was trying to enter the shop was wearing white colour shirt. All the three boys were aged about 22 to 25 years. The boy who had fired was of the height of about 5 ½ feet. He was of wheatish colour and of medium built. The height of other two boys was about 5 ½ feet. He could identify all the three boys if shown to him. The complainant has further stated in his complaint that all the said three boys had tried to enter their shop forcibly and on their objection, those boys had fired upon them with intention to kill, as a result of which, Amit had expired and he had sustained injuries.
During investigation, the Investigating Officer prepared the site plan, lifted blood, earth control, blood sample and blood laden earth from the spot, got the spot photographed, also seized fired cartridges from the spot. The Investigating Officer also got conducted the postmortem on the dead body of deceased Amit Sunderiyal and arrested the accused Shakil @ Kalia.
After completion of the investigation, the charge sheet was filed in the court for the offences punishable u/ss 302/307/398/34 IPC & u/s 25/27 of Arms Act against the accused Sessions Case No. 48/08 Page 4 /46 5 Shakil @ Kalia.
Ld. M.M after supply of copies etc, committed to the court of Sessions.
Vide order dated 22.05.2007, a charge for the offences punishable under sections 452/393/398/302/307 IPC read with section 34 IPC was framed against the accused Shakil @ Kalia to which he pleaded not guilty and claimed trial.
Thereafter, accused persons Anwar @ Adha and Tahir @ Sahil were arrested. The judicial TIP of accused Anwar @ Adha was conducted. Accused Tahir @ Sahil refused to join the TIP. On completion of investigation, supplementary charge sheet against them was filed in the court for the offences punishable under sections 393/398/302/307 IPC read with section 34 IPC against both the accused persons.
During trial accused Shakil @ Kalia while in judicial custody had escaped from the police custody while he was being produced before the court in Patiala Punjab. Thereafter, vide order dated 14.2.2008 the accused Shakil @ Kalia was declared as proclaimed offender. During trial it was reported by the accused Tahir and Anwar that accused Shakil @ Kalia had been killed in an Sessions Case No. 48/08 Page 5 /46 6 encounter. Notice was issued to the S.H.O. P.S. Khajuri Khas to verify the death of accused Shakil @ Kalia. On 23.11.2010 death verification report was submitted by S.H.O. of P.S.Khajuri Khas wherein accused Shakil @ Kalia was reported to be dead.
Vide order dated 2.11.2007, a charge for the offences punishable under sections 452/393/398/302/307 IPC read with section 34 IPC was framed against both the accused persons namely Tahir @ Sahil and Anwar @ Addha to which they pleaded not guilty and claimed trial.
In support of its case the prosecution has examined 29 witnesses.
PW1 Ramesh Chand Sundariyal is the complainant. He has stated that Amit Kumar was his son, who used to run a medical store under the name and style of Shashi Medical Store at F3/4, Dayal Pur Extension, Main Karawal Nagar Road, Delhi. He used to help his son at the Medical Store. On 21.8.2006 at about 10.45 p.m. he was present inside the medical store. His son Amit was standing near the counter of the shop. Accused Tahir tried to enter his shop. In the meantime, he (PW1) also reached near the counter. His son tried to stop Tahir. In the meantime, Tahir had taken out a Sessions Case No. 48/08 Page 6 /46 7 revolver from his pant. Other associate of the accused had fired a shot. The said shot hit on the shoulder of his son Amit. He rushed towards accused Tahir to overpower him. Tahir fired a shot which hit on his (PW1) right hand. At that juncture, his son Amit rushed towards him (PW1 Ramesh Chander Sundariyal ) to save him. Then accused Tahir fired another shot which hit his son Amit, who fell down. Accused Tahir fired another shot which went touching his (PW1) abdomen and probably hit his son.
PW1 Ramesh Chander Sundariyal has further stated that there were two other associates of accused Tahir, out of them one was standing across the road and one was standing in the middle of the road. His son had cried ''thief thief'' when he was hit by first shot.
PW1 Ramesh Chander Sundariyal has further stated that one of the associate of accused Tahir, who was standing in the middle of the road was stopping the traffic so that none comes to intervene. Accused Anwar was standing in the middle of the road. He can identify the third offender if shown to him, who had also fired one shot on his son Amit. His son received three bullet injuries while he (PW1) received two bullet injuries and in total five Sessions Case No. 48/08 Page 7 /46 8 bullets were fired.
PW1 Ramesh Chander Sundariyal has further stated he tried to lift his son but he could not succeed on account of bullet injuries sustained by him. In the meantime, persons of nearby vicinity reached there and removed his son to Mavi Hospital in a three wheeler scooter. One person also removed him to Mavi Hospital on a two wheeler scooter. There the doctors advised him as well as his son to go to hospital. In the meantime, police Gypsy from Police Station Gokal Puri reached there. Immediately a police Gypsy of Police Station Khajuri Khas also reached there and his son was made to board it. In the meantime an ambulance reached there and his son was removed to GTB Hospital in the ambulance where his son was declared dead.
PW1 Ramesh Chander Sundariyal has further stated that he lodged his report with the police which is Ex. PW1/A on which he put his thumb impression since his hand was not functioning. On 22.8.2006, autopsy on dead body of his son was got done and thereafter the dead body was handed over to him. When he identified the dead body, his statement was recorded which is Ex. PW1/B. Sessions Case No. 48/08 Page 8 /46 9 PW1 Ramesh Chander Sundariyal has further stated that in January 2007 he was taken to Central Jail Tihar, where he identified one of the offender known as Shakil. In May 2007, he was again taken to Central Jail, Tihar to identify accused Anwar. Accused Anwar was identified by him at Central Jail Tihar. He (PW1) had not participated in the TIP of third offender since he had refused to participate in TIP. Accused persons wanted to commit robbery in his shop.
PW2 is Constable Sanjeev Kumar who along with the Mobile Crime Team North East District reached at the spot and on the instructions of the I.O. he has taken ten photographs of the spot. He proved the same which are Ex. PW2/A1 to Ex.PW2/A9. He also proved the negatives of the photographs, which are Ex. PW2/B1 to Ex.PW2/B10.
PW3 is Head Constable Vijay Singh. On 29.12.06 accused Shakil @ Kalia ( since expired ) was apprehended by HC Rohtash in his presence at the instance of a secret information from near Culvert Johripur, Delhi and one country made pistol was recovered from his possession for which a separate case was registered at Police Station Gokalpuri. In that case, he made a Sessions Case No. 48/08 Page 9 /46 10 disclosure statement regarding his involvement in the present case.
PW4 is Govind Ram Sundriyal who reached at GTB Hospital after receiving an information from Ramesh Chand Sundriyal on telephone that Amit had been shot at. He identified the dead body of deceased Amit on 22.8.2006 in mortuary of GTB Hospital. He has received the dead body of Amit for his last rites.
PW5 is ASI Rajinder Singh. He has stated on 21.8.2006 DD No. 28A (Ex. PW5/A) was assigned to him for action in the matter. He along with Constable Indresh reached at premises No. F3/4, Karawal Nagar Road where Shashi Medical Store was located. In the meantime, Inspector B.P.Sharma along with SI Satender Singh Tomar and other police staff also reached at the spot. There Inspector B.P.Sharma came to know that the injured had already been taken to GTB Hospital by CATS Ambulance. Inspector B.P. Sharma had left S.I. Satender Tomar at the spot and he along with him and Constable Indresh reached at GTB Hospital. In the hospital, Inspector B.P.Sharma collected the MLCs of Ramesh Sundariyal and Amit Sundariyal. Amit Sundariyal was declared brought dead and Ramesh Sundariyal was declared fit for statement. Inspector B.P.Sharma recorded the statement of Ramesh Chand Sessions Case No. 48/08 Page 10 /46 11 Sundariyal which is Ex. PW1/A and got the present case registered in Police Station Khajuri Khas. Thereafter, he along with Inspector B.P.Sharma reached at the spot. In his presence Inspector B.P. Sharma got the spot photographed, seized two spent cartridges, two missed cartridges, one lid of cartridge from the spot and also seized one cartridge of .315 bore which was lying near Jodha Ram Street, vide memo Ex. PW5/B. Inspector B.P.Sharma also seized blood, earth control sample and earth stained with blood vide memos Ex. PW5/C, Ex. PW5/D and Ex. PW5/E. PW6 Lalan Rai is the Duty Officer. He stated that on 22.8.2006 he was posted in P.S. Khajuri Khas. At about 2.30 a.m. on receipt of rukka from Ct. Indresh sent by Insp. B.P.Sharma, he registered FIR bearing no. 363/2006. He proved the copy of the same as Ex. PW6/A. PW7 is Constable Ajay Kumar. He has joined the investigation with I.O. Inspector B.P.Sharma and was present in the mortuary of GTB Hospital at the time of postmortem of the dead body of deceased Amit Kumar. After postmortem the dead body was handed over to the relatives of the deceased vide memo Ex. PW7/A. Doctor of the hospital had given him three parcles in sealed Sessions Case No. 48/08 Page 11 /46 12 condition along with the sample seal which were handed over by him to the I.O. who seized the same vide memo Ex. PW7/B. PW8 is S.I. Ramanand Yadav. He stated that on 21.8.2006 he was working as Duty Officer at P.S. Khajuri Khas. At about 11.17 p.m. a PCR call was received and on the basis of the same, he recorded DD No.28A. The same was assigned to ASI Rajinder Singh through Ct. Indresh. Inspector B.P.Sharma and S.I. Satender Tomar have also proceeded for the spot. The said DD is Ex. PW5/A. PW9 SI Mukesh Kumar Jain Draftsman has stated that on 11.10.2006 he went to the spot along with the I.O. and took rough notes and measurements on the pointing out of I.O. Thereafter on the basis on those rough notes and measurements he prepared scaled site plan on 13.10.2006 in his office which is Ex. PW9/A. After preparation of scaled site plan he destroyed rough notes and measurements.
PW10 is SI Suraj Bhan. He has stated that on 29.12.2006 he was entrusted the investigation of case FIR No.1000/2006, Police Station Gokal Puri. He arrested accused Shakil @ Kalia( since expired ) and recorded his disclosure statement in Sessions Case No. 48/08 Page 12 /46 13 which he disclosed about his involvement in the present case. He conveyed the factum of disclosure statement to Police Station Khajuri Khas.
PW11 is Constable Sanjeev who joined the investigation of the present case with the I.O. on 23.7.2007. In his presence, the accused Tahir @ Sahil was arrested by the I.O. after the permission of the court as he surrendered before the court. His arrest memo is Ex.PW11/A. The I.O. has also recorded the disclosure statement of the accused Tahir @ Sahil which is Ex. PW11/B. PW14 Dr. Meghali is from Department of Forensic Medicine, GTB Hospital. She proved the Postmortem Report No. 911/06 running into four pages in respect of deceased Amit Kumar. This report was prepared by Dr. Barkha Gupta. She has stated that Dr. Barkha Gupta has left the services of the hospital and her present whereabouts were not known. She identified the handwriting and signatures of Dr. Barkha Gupa as she had seen her writing and signing in the official course of her duties. As per Postmortem Report Ex. PW14/A the cause of death is shock due to hemorrhage due to antemortem injury to heart and liver caused by projectile of a Sessions Case No. 48/08 Page 13 /46 14 firearm. Injury No.1 was sufficient to cause death in the ordinary course of nature.
PW15 is Insp. Dinesh Kumar. He stated that on 2122/08/2006 he was posted in Mobile Crime Team, North East District. On that day, he along with Ct. Sanjeev Photographer and other staff reached at the spot. He inspected the spot and prepared his report which is Ex.PW 15/A. PW17 Constable Jeetpal & PW18 Constable Rajender Kumar have joined the investigation of the present case with I.O. Inspector B.P. Sharma on 22.5.2007 and they have corroborated the version of Inspector B.P.Sharma on all the material particulars.
PW19 is Smt. Anita Chhari, Senior Scientific Asstt. FSL, Rohini, Delhi. She has stated that on 24.7.2007 five parcels were received in the office of FSL. She examined the same and gave her report, which is Ex. PW19/A. She has also carried out the serological examination on the exhibits and gave her report which is Ex. PW19/B. PW22 is Dr. Devender Kumar, CMO, GTB Hospital. He stated that he has seen the MLC No. C3209/06 dated Sessions Case No. 48/08 Page 14 /46 15 21.8.2006 of one Sh. R.C. Sundriyal which was prepared by him. The MLC is Ex. PW22/A. PW22 further stated that MLC No. B3343/06 dated 21.8.2006 of Amit Sundriyal which is in the handwriting of Dr. Ajay, who has left the services of the hospital and his present whereabouts are not known. He identified the handwriting and signatures of Dr. Ajay as he had worked under him and seen him writing and signing during the course of his official duties. The MLC is Ex. PW22/B. PW24 is Sh. Naresh Kumar Malhotra Addl. Senior Civil Judge, (North) Tis Hazari Courts, Delhi. He stated that on 11.5.2007 an application for conducting of the TIP of accused Anwar @ Addha was marked to him and he fixed the TIP for 17.5.2007 in Central Jail, Tihar. The application for TIP is Ex. PW24/1. The witness Ramesh Sundariyal was produced by the I.O. Inspector B.P.Sharma and was identified by him. He has stated that he had conducted TIP of accused Anwar @ Addha and during the TIP accused Anwar @ Addha was correctly identified by the witness Ramesh Sundariyal. The TIP proceedings are Ex. PW24/2. The I.O. moved an application for taking copy of the proceedings, which Sessions Case No. 48/08 Page 15 /46 16 was allowed by him. The application is Ex. PW24/3.
PW25 is Sh. Sanjeev Kumar Singh Administrative Civil Judge (Central) Tis Hazari Courts, Delhi. He stated that an application for conducting of the TIP of accused Tahir @ Sahil was marked to him and he fixed the TIP for 17.5.2007 in Central Jail, Tihar. The application for TIP is Ex. PW25/A. On 23.7.2007 accused Tahir @ Sahil was produced before him and he on his asking, accused refused to join the TIP. He warned the accused that his refusal to join the TIP could be read against him during course of trial, but the accused Tahir @ Sahil had refused to join the TIP. The TIP proceedings conducted by him are Ex. PW25/B. The I.O. moved an application for taking copy of the proceedings, which was allowed by him. The application is Ex. PW25/C. PW26 is S.I Shiv Kumar. He stated that on 8.5.2007 he was posted in Special Cell, Lodhi Colony. He had joined the investigation of this case along with Inspector S.K.Giri, who was leading the team of Special Cell. They all had gone to Meerut as they had prior information that the accused Anwar @ Addha wanted in this case would come at Eastern Court Road near the bridge of drain, Meerut at about 11.00 a.m. The team was deputed at the nala Sessions Case No. 48/08 Page 16 /46 17 bridge. Accused Anwar @Addha was overpowered and apprehended. Accused was brought to the office of Special Cell Delhi and was arrested vide memo Ex.26/A. His personal search was conducted vide memo Ex. PW26/A1. He had also made disclosure statement Ex.PW26/B. A kalandra under section 41.1(a) Cr.P.C was prepared and same was filed before the court of C.M.M. and same is Ex.PW 26/C. The DD entry in this regard is Ex.PW 26/D which was made by Inspector S.K.Giri. The arrival entry was made by him in P.S. Special Cell vide DD No.5 dated 8.5.2007 which is Ex.PW 26/E. PW26 further stated that on 21.7.2007 the other accused Tahir @ Sahil who was also carrying reward of Rs.10,000/ on his head was arrested near the Garh Bus Stand, Sohrab Gate, Meerut. The departure entry No.4. from Delhi is Ex. PW 26/F. Accused Tahir @ Sahil was arrested vide his arrest and personal search memos Ex. PW26/G and PW 26/G1. The disclosure statement of accused Tahir @ Sahil was recorded which is Ex. PW 26/H. They arrived in P.S. Special Cell and arrival entry No.10 in this regard is Ex.PW26/J. Accused was produced before the Duty M.M. and his kalandra u/s 41.1.(a) Cr.P.C. was prepared which is Ex. Sessions Case No. 48/08 Page 17 /46 18 PW 26/K. The I.O. recorded his statement.
PW28 is Dr. Vikas Chauhan Medical Officer, Safdarjung Hospital, Delhi. He proved the MLCs of accused Tahir @ Sahil. The MLCs are in the handwriting of Dr. Shalini Aggarwal and Dr.Sandeep Kumar, who have left the hospital and their whereabouts are not known. He identified the handwriting and signatures of both the said doctors on the MLCs. The MLCs are Ex.PW28/A and Ex.PW28/B. PW29 is ASI Om Prakash. He stated that on 22.8.2006 he was posted as MHC(M) at Police Station Khajuri Khas. On that day, eight sealed pullandas were deposited by Inspector B.P.Sharma and same were entered by him at Serial No. 1555 in Register No.19.
PW29 further stated that on 24.4.2007 all the said eight pullandas along with two sample seals were sent to FSL, Rohini through Ct. Kuldeep, vide RC No. 7/21 and 8/21.
PW29 further stated that on 19.6.2007 Ct. Sanjeev Kumar deposited six pullanads in the malkhana along with one result. The result was handed over to I.O.
PW29 further stated that on 25.03.2008 Ct. Sanjeev Sessions Case No. 48/08 Page 18 /46 19 deposited one result and the case property in the malkhana and the result was handed over to the I.O. The copy of the relevant entry is Ex. PW29/A. The copies of RC No. 7/21 and 8/21 in Register No. 21 are Ex. PW29/B. PW27 Inspector B.P.Sharma is the Investigating Officer of the case. He stated that on 21.8.2006 he was posted at P.S Khajuri Khas as Inspector Investigation. On receipt of DD no. 28A (Ex.PW 5/A), he along with ASI Rajender Singh, Ct. Indresh, and SI Statender Tomar and other police staff reached the spot at F3/4, Dayalpur Extension, Main Road, Karawal Nagar at the shop of Shashi Medical Store. On reaching the spot he came to know that the injured had already been shifted to GTB Hospital by CATS Ambulance. He left S.I.Satender Tomar at the spot and he along with ASI Rajender Singh and Ct. Indresh proceeded to GTB Hospital. There he collected the MLCs of Ramesh Sundariyal and Amit Sundariyal. Amit Sundariyal was declared brought dead. He recorded the statement of Ramesh Chand which is Ex.PW1/A. Ramesh Chand put his left thumb impression on his statement since his right hand was injured. He put his endorsement Ex. PW 27/A on the same, prepared rukka and handed it over to Ct. Indresh for Sessions Case No. 48/08 Page 19 /46 20 getting the FIR registered. Constable Indresh went to the police station and got the case registered. He along with police staff again went back to the spot and called crime team at the spot. He had seized blood lying on the spot. He lifted earth control, blood sample and blood laden earth separately. All the three pullandas were seized vide memos Ex.PW5/C, Ex. PW5/D and memo Ex. PW 27/B. The Crime Team took photographs at the spot. The Crime Team Report was also handed over to him by SI Dinesh, which is Ex. PW27/C. At the spot he also found two fired cartridges, two unfired cartridges, one fired cartridges (.315) bore and one bullet lead. All the case property was converted into different pullandas and were kept in one plastic container and was seized vide memo Ex. PW 5/B. The case property was sealed with seal of BPS. Ct. Indresh had returned back at the spot and handed over to him rukka and copy of FIR. Injured/ complainant Ramesh Chand had also come back to the spot. He had also put the FIR numbers on the documents which had been prepared by him. He prepared site plan on the pointing out of Ramesh Chand, which is Ex.PW27/D. He also recorded the statements of the photographer, the officials of the Crime Team and supplementary statement of the complainant. He along with the Sessions Case No. 48/08 Page 20 /46 21 staff returned back to the Police Station and the case property was deposited in the malkhana.
PW27 further stated that he along with Ct. Ajay went to GTB Hospital Mortuary. He moved an application Ex. PW27/E before the concerned doctor for getting the postmortem conducted on the dead body of Amit. He also completed the inquest proceeding Ex.PW27/F and recorded the statements regarding the dead body identification which are Ex.PW1/B and PW27/G. The dead body was handed over to relatives of the deceased vide memo Ex. PW 7/A. The doctor handed over three pullandas and sample seal to Ct. Ajay, which he seized vide memo Ex. PW 7/A. PW27 has stated that he deposited the case property in the malkhana and the MLC Ex.PW22/A of injured Ramesh in the hospital for obtaining final opinion. On 11.10.2006 he along with Draftman SI Mukesh Jain had visited the spot and at his instance SI Mukesh Jain prepared scaled site plan Ex.PW9/A. He had also collected the Postmortem Report Ex. PW14/A and the photographs Ex.PW2/ A1 to A9.
PW27 further stated that on 3.1.2007 on receipt of DD No. 54B from Police Station Gokalpuri about the apprehension of Sessions Case No. 48/08 Page 21 /46 22 accused Shakil @ Kalia, he got issued production warrants of the accused. On 9.1.2007 accused Shakil was produced in the court and after obtaining permission from the court, he interrogated the accused. He formally arrested the accused vide memo Ex.PW 27/H and his personal search was conducted vide memo Ex. PW 27/H1. He recorded his disclosure statement Ex.PW27/H2. He prepared challan and filed the same in the court. Accused Tahir and Anwar were placed in column No.2 of the chargesheet since proclamation proceedings against them were being carried out.
PW27 further stated that on 9.5.2007 DD No. 60B was lodged by Inspector S.K.Giri of Special Cell that they had arrested accused Anwar @ Addha. Accused Anwar @ Addha was produced in court on 11.5.2007 on production warrants. After taking permission from the court, accused was arrested vide arrest memo Ex.PW27/J. He recorded his disclosure statement Ex. PW 27/J1. Accused was remanded to J.C and he remained in muffled face throughout. Separate application was made for TIP of the accused. The TIP proceeding of accused Anwar were carried out on 17.05.07. The accused pointed out the spot of occurrence at Shashi Medical Store vide memo Ex.PW 17/A. He also carried out search of house Sessions Case No. 48/08 Page 22 /46 23 of the accused at his house No. 650, Gali No.1, Mohalla Char Diwari, Islamabad, Police Station Lisari Gate, Meerut, vide memo Ex. PW 16/A. Nothing incriminating was recovered in the house search of accused Anwar. Accused also made supplementary disclosure statement which was recorded vide memo Ex.PW16/B. PW27 further stated that proceeding against accused Tahir @ Sahil were carried out under section 82/83 Cr.P.C. On 21.07.2007, DD No. 37A was lodged in Police Station Khajuri Khas by SI Shiv Kumar of Special Cell, Lodhi Road, regarding apprehension of accused Tahir @ Sahil and that he would be produced in Tis Hazari Court. D.D. No. 27A is attested by him . A request was made for issuance of production warrants and accused Tahir @ Sahil was produced in the court on 23.7.07. After permission, accused was arrested vide memo Ex. PW 11/A. The accused made disclosure statement Ex.PW11/B. An application was moved for carrying out TIP proceeding of accused Tahir @ Sahil. Accused Tahir refused to join TIP. The accused always remained in muffled face till his TIP. The accused Tahir pointed out the spot vide memo Ex. PW 20/A. PW27 further stated that on 4.8.2007 the house of Sessions Case No. 48/08 Page 23 /46 24 accused Tahir at H.No.195, Gali No.1, Mohalla Kidwai Nagar, Police Station Lisari Gate, Meerut was searched vide memo Ex.PW20/B but nothing incrimination could be recovered. The accused again made a supplementary statement Ex. PW 20/C. PW27 further stated that he recorded statements of witnesses under section 161 Cr.P.C. He sent the exhibits to the FSL. Challan was prepared and same was filed in the court. The FSL reports Ex. PW 19/A and PW Ex.19/B were collected subsequently and filed in the court.
The FSL report is Ex. PW 27/K. Two fired bullets are Ex.P1 and Ex.P2. Two misfired rounds are Ex.P3 and P4. One bullet lead is Ex.P5 and cartridges shell of .315 bore cartridges is Ex.P6.
PW12 is Satender Tomar. He joined the investigation of this case with the Investigating Officer PW27 Inspector B.P.Sharma. He supported the case of the prosecution on all the material points.
PW13 is Constable Indresh Kumar. He joined the investigation with PW5 ASI Rajender Singh went to the spot. He supported the case of the prosecution on the material points and also Sessions Case No. 48/08 Page 24 /46 25 corroborated the testimony of PW5 ASI Rajender Singh.
PW16 is Head Constable Shokender. He joined the investigation of this case with IO Inspector B.P.Shjarma. In his presence, IO took the house search of accused Anwar vide Ex.PW16/A and recorded his disclosure statement Ex. PW16/B. He has stated that accused took them to Hindon River but the accused could not point out any place where he had thrown the weapon of offence.
PW13 Head Constable Narender Singh & PW23 Constable Abdul Sattar have joined the investigation of this case with IO Inspector B.P.Sharma. They have supported the case of the prosecution on all the material points regarding arrest of the accused Tahir @ Sahil and regarding the investigation conducted by the I.O. qua accused Tahir @ Sahil.
PW21 is Constable Hans Raj. He joined the investigation of this case with I.O. qua the accused Anwar and has supported the prosecution case on all the material points.
The statements u/s 313 Cr.P.C. of both the accused persons were recorded wherein both of them have denied the case of the prosecution.
Sessions Case No. 48/08 Page 25 /46 26
The accused Tahir @ Sahil has stated he was apprehended by the police of P.S. Gokal Puri from Meerut, U.P. The police called the complainant in the police station but the complainant did not identify him. Thereafter, he was falsely implicated in a case of Arms Act bearing FIR No. 606/06. He further stated that later on, he was falsely implicated by the police in the present case to work out the murder case as per the directions from the Police Commissioner that heinous crime cases should be worked out. Therefore, he was falsely implicated in this case.
The accused Anwar @ Addha has stated that he was lifted by the police from his residence at Meerut and was falsely implicated in this case. Police obtained his signatures on some blank papers. He did not make any disclosure statement to the police. He further stated that his photographs were taken by the police and he was also shown to the complainant in the police station.
None of the accused has led any evidence in defence. I have heard Sh.Mukul Kumar Addl. P.P. for the State, Sh. R.H. Zaidi Advocate for accused Tahir @ Sahil. I have also heard Sh. M.H. Khan and Sh.Dasa Ram Ld. Counsels for accused Anwar @ Addha. I have also gone through the case file and the case Sessions Case No. 48/08 Page 26 /46 27 law relied upon by Ld. Counsels for the accused persons.
It was submitted by Ld. Addl. P.P. for the State that in this case the most material witness is the complainant Ramesh Chand Sundariyal who is an eye witness. It was further submitted that he has identified both the accused persons as assailants and he has fully supported the prosecution case. Nothing could come out in his cross examination which could shake his credibility in any manner.
It was further contended by Ld. Addl. P.P. for the State that from the statement of complainant PW1 Ramesh Chand Sundariyal coupled with the postmortem report Ex. PW14/A of Amit and MLC Ex. PW22/A of injured Ramesh Chand Sundariyal , it is proved that accused persons in furtherance of their common intention have committed the murder of Amit Sundariyal and they have also attempted to kill the complainant Ramesh Chand Sundariyal.
It was further the submission of Ld. Addl. P.P. for the State that from the evidence on record, it is also proved the accused persons in furtherance of their common intention have committed tresspass in the shop of the complainant. It was further submitted Sessions Case No. 48/08 Page 27 /46 28 by Ld. Addl. P.P. that from the evidence on the record, it is also proved that the accused persons in furtherance of their common intention have attempted to commit robbery by putting the complainant and his son in the fear of death, in the said shop and at that time the accused persons were armed with country made pistols.
It was further submitted by Ld. Addl. P.P. for the Sate that the complainant has identified both the accused persons in the court. It was submitted that accused Anwar @ Addha was also identified by complainant Ramesh Chand Sundariyal in the judicial TIP. It was submitted that accused Tahir @ Sahil has refused to participate in the TIP and therefore, an adverse inference has to be drawn against him. It was further the submission of Ld. Addl. P.P. for the State that the identity of both the accused persons is proved beyond doubt.
It was submitted by the Ld. Counsels for the accused persons that both the accused persons have been falsely implicated in this case. It was submitted that both the accused persons are innocent and they were falsely implicated in order to work out the blind murder case. It was the submission of both the Counsels that the names of both the accused are not mentioned in the FIR. Sessions Case No. 48/08 Page 28 /46 29
Admittedly, the names of both the accused persons are not mentioned in the FIR. It is important to note that the accused persons were not earlier known to the complainant PW1 Ramesh Chand Sundariyal. Therefore, it was not possible for the complainant to disclose the names of the assailants in his complaint. Therefore, this contention of the Ld. Defence Counsels is without any force.
It was submitted by both the Ld. Counsels that the identity of both the accused persons has not been proved.
It was submitted by Sh.R.H. Zaidi Ld. Counsel for the accused Tahir @ Sahil that the prosecution has failed to prove its case against the accused as the identity of accused Tahir @ Sahil has not been proved. It was vehemently argued by Sh. Zaidi that accused Tahir @ Sahil was not present at the spot. It was further submitted that PW1 Ramesh Chand Sundariyal who is the main witness has stated in his statement in the court that he had seen Tahir for the first time in the court after the incident. It was further submitted that as the accused Tahir was seen after the incident, first time in the court, so his testimony regarding identification of accused Tahir cannot be relied upon. In this regard Ld. Defence Counsel has relied upon AIR 1979 Supreme Court 1127, 2003 Crl.L.J.1152 ( Kerala High Sessions Case No. 48/08 Page 29 /46 30 Court ) and 2011(2) JCC1233(Delhi High Court ).
It was further contended by Ld. Defence Counsel for the accused Tahir @ Sahil that the accused has refused to join the TIP as the police had shown the photographs of the accused to PW1 Ramesh Chand Sundariyal before conducting the TIP of the accused Tahir @ Sahil.
So far as the contention of Ld. Defence Counsel for the accused Tahir @ Sahil that his photographs were shown to PW1 Ramesh Chand Sundariyal before the TIP, in this regard it is important to note that PW1 Ramesh Chand Sundariyal has denied the suggestion of the defence counsel that the photographs of the accused Tahir @ Sahil were shown to him by the police. The perusal of the TIP proceedings Ex.PW25/B reveals that the accused has stated in his statement before the Ld. M.M. that he did not want to join the TIP proceedings as his face had already been shown by the police to the witness. Thus, it is revealed that accused Tahir @ Sahil had refused to join the TIP as he was physically shown to the complainant. Nothing has come on record as to when and where Tahir @ Sahil was shown to the PW1 Ramesh Chand Sundariyal before the TIP. Further the suggestion was not to put to the witness Sessions Case No. 48/08 Page 30 /46 31 PW1 Ramesh Chand Sundariyal in his cross examination that the police had shown the face of the accused Tahir @ Sahil to him. It is further important to note that despite warning given by Ld. Magistrate at the time of conducting the TIP proceedings, that in case of his refusal to join the TIP, an adverse inference can be drawn against the accused Tahir @ Sahil. Hence in my view it is not proved that before conducting the TIP of accused Tahir @ Sahil, his photographs were shown to PW1 Ramesh Chand Sundariyal. Nor any evidence has come on record to show that police had shown the accused Tahir @ Sahil to PW1 Ramesh Chand Sundariyal.
So far as the contention of Sh. Zaidi that after the alleged incident, PW1 Ramesh Chand Sundariyal has seen the accused Tahir @ Sahil first time in the court is concerned, admittedly, the PW1 Ramesh Chand Sundariyal has seen the accused Tahir @ Sahil first time in the court after the incident. After the incident, the accused was arrested and his TIP was fixed but he refused to join the TIP, therefore, the PW1 Ramesh Chand Sundariyal has no occasion to see him prior to his (PW1) statement in the court. Therefore, this contention of the Ld. Defence Counsel is without any merit and has to be ignored.
Sessions Case No. 48/08 Page 31 /46 32
It was contended by Sh. Khan Ld.Counsel for accused Anwar @ Addha that he has been falsely implicated. It was also his submission that identity of accused Anwar @ Addha has not been proved. It was contended that accused Anwar @ Addha was identified by PW1 Ramesh Chand Sundariyal in his judicial TIP as the police has shown the photographs of accused Anwar @ Addha to PW1 Ramesh Chand Sundariyal. The perusal of the TIP proceedings Ex. PW24/2 shows that no such plea was taken by accused Anwar @ Addha at the time of conducting his judicial TIP. Therefore, this plea taken by the Ld.Defence Counsel for accused Anwar @ Addha is an afterthought and the same cannot be believed.
It was contended by both the defence counsels that both the accused persons were seen by the complainant PW1 Ramesh Chand Sundariyal after a long time after the happening of the incident. It was contended that the complainant has allegedly seen the accused persons at the time of incident. It was further contended that the complainant had very short duration to see the assailants and thus he could not have a clear view of the assailants as such it was very difficult for him to identify the assailants after a long period. In Sessions Case No. 48/08 Page 32 /46 33 this regard, reliance was placed upon 2006 (3) CC Cases (HC)117 ( Patna).
Now, the question is that whether the complainant PW1 Ramesh Chand Sundariyal could see the assailants properly at the time of the incident. It is important to note that from the testimony of PW1 Ramesh Chand Sundariyal it is revealed that the incident was not of such small duration that it was not possible for the complainant PW1 Ramesh Chand Sundariyal to see the assailants properly. His testimony further reveals that PW1 Ramesh Chand Sundariyal has also tried to overpower the assailants as he has tried to hit the assailants with the stone. All these facts show that the complainant PW1 Ramesh Chand Sundariyal had ample opportunity to see the assailants properly at the time of incident. In my view no one can explain as to how one remembers ones face after a lapse of such a long period, but sometimes the impression of the assailant is so deep rooted in the memory of a person that he can identify him in any situation. Therefore, in my considered opinion the complainant PW1 Ramesh Chand Sundariyal had properly seen the assailants at the time of incident and he has correctly identified the accused persons in the court.
Sessions Case No. 48/08 Page 33 /46 34
It was contended by Ld. Defence Counsels for the accused persons that there was no electricity at the time of alleged incident and therefore, it was not possible for PW1 Ramesh Chand Sundariyal to see the assailants properly at the time of incident. The perusal of statement of I.O. PW27 Inspector B.P.Sharma reveals that he has stated in his cross examination that the electricity light was available at the time when he reached the spot. He also stated that the street light and other lights were on. No suggestion was put to this witness that there was not street light at the spot at the time of incident. Therefore, the testimony of I.O. PW27 Insp. B.P.Sharma remained unchallenged in this regard and the same has to be accepted in view of the judgment of Hon'ble Delhi High Court which is reported as State Vs. Mohd. Afzal & Ors. 2003VII AD(Delhi)1 wherein it was held that when a witness is not cross examined on any relevant aspect, the correctness of the statement made by the witness cannot be disputed.
It was further submitted by Ld. Defence Counsels that complainant PW1 Ramesh Chand Sundariyal has stated in his cross examination that he did not recollect as to whether electricity was in order. He stated that one inverter has been installed in their shop. Sessions Case No. 48/08 Page 34 /46 35 The perusal of the testimony of PW1 reveals that he has further stated in his cross examination that electricity was visible at Aggarwal Sweet Shop as there was a generator set. No suggestion was put to PW1 Ramesh Chand Sundariyal that there was no electricity at Aggarwal Sweet Shop nor any suggestion was put to PW1 Ramesh Chand Sundariyal that there was no Aggarwal Sweet Shop. Further no suggestion was put to PW1 Ramesh Chand Sundariyal in his cross examination that there was darkness at the spot due to which he was not able to properly see the assailants. It is important to note that it is not possible to operate and run the shop in the late night hours without electricity. It is important to note that PW1 has stated in his cross examination that when the incident occurred, there was a customer at their shop, meaning thereby the shop was in operation at the time of incident and this was possible only if the light was available there. Therefore, it is proved that at the time of incident sufficient light was there. Therefore, in my view, this contention of Ld. Defence Counsels is without any merit.
It was submitted by the Ld. Defence Counsels that no motive has been attributed or alleged on the part of the accused persons for committing the crime. The other aspect of the matter is Sessions Case No. 48/08 Page 35 /46 36 that no motive has been alleged on the part of the complainant PW1 Ramesh Chand Sundariyal to falsely implicate the accused persons. It is well settled position of law that motive is always not an essential ingredient of an offence. This contention of Ld. Defence Counsel is to be ignored being merit less. In this regard, I am supported by judgment of Hon'ble Delhi High Court which is reported as 2009 (3) JCC2428 wherein it was held that lack of proof of motive cannot be a ground to acquit the accused.
It was contended by the Ld. Counsels that in this case there is only one material witness i.e. complainant PW1 Ramesh Chand Sundariyal on whose testimony the prosecution case rests. It was contended that the uncorroborated testimony of PW1 Ramesh Chand Sundariyal cannot be relied upon as he is the interested witness. In this regard the reliance was placed upon 2003(2) Crimes48 (SC) and 2000(3) CC Cases (SC)140.
Now, the question is that whether PW1 Ramesh Chand Sundariyal is an interested witness or that whether his testimony can be relied upon. The main contention of the Ld. Counsels for the accused persons was that PW1 Ramesh Chand Sundariyal is the father of deceased Amit Kumar and therefore, he is an interested Sessions Case No. 48/08 Page 36 /46 37 witness.
Admittedly, PW1 Ramesh Chand Sundariyal is father of deceased Amit Kumar. His presence at the spot is natural because he along with his deceased son Amit were running the medical store where the incident took place. It is also important to be noted that PW1 Ramesh Chand Sundariyal has also sustained gun shot injury in the incident wherein his son Amit Kumar was killed. His presence at the spot has been proved from his testimony. The Hon'ble Supreme Court in a case reported as Dalbir Kaur Vs. State of Punjab AIR 1977 SC472 has held that a close relative who is a very natural witness in the circumstances of a case cannot be regarded as an interested witness. Hence, PW1 Ramesh Chand Sundariyal cannot be termed as an interested witness. If for the sake of the arguments it is assumed that PW1 Ramesh Chand Sundariyal is an interested witness, even then his testimony cannot be thrown away on this ground. In this regard, I am supported by the judgment of Hon'ble Supreme Court which is reported as Om Prakash Vs. State of Punjab AIR 1993 SC138 wherein the Hon'ble Supreme Court has held that when interested witness is found to be natural witness, his version has to be accepted. The Hon'ble Supreme Court Sessions Case No. 48/08 Page 37 /46 38 in a case reported as Kailash Vs. State of U.P. AIR 1997 SC2835 has held that in the absence of any material to show that the eye witness had enmity with any of the accused, the evidence of that witness could not be brushed aside on the ground of relationship with the victim. In the present case also no enmity with the witness of PW1 Ramesh Chand Sundariyal has been alleged by the accused persons. Nothing has come on record that accused persons were known to the PW1 Ramesh Chand Sundariyal prior to the incident or that they were having inimical terms. In another case reported as Tarjinder Singh Vs. State of Haryana AIR 1993 SC503 the Hon'ble Supreme has held that where the presence of an eye witness at the scene of occurrence is proved and his evidence is corroborated with medical and circumstantial evidence, the evidence of such witness cannot be discarded on the ground that he is an interested witness. In the present case the evidence of PW1 Ramesh Chand Sundariyal is corroborated by the medical evidence.
Hence, in view of the above discussion, I am of the considered opinion that PW1 Ramesh Chand Sundariyal is not an interested witness and he is a natural witness. His testimony cannot be discarded on this ground.
Sessions Case No. 48/08 Page 38 /46 39
Now, the question is that whether the conviction can be based on the sole testimony of a witness. It has been held time and again by Hon'ble Supreme Court that it is the quality of evidence which matters it and not the number of the witnesses. It was further the submission of Ld. Defence Counsels that it is not safe to rely upon the uncorroborated the testimony of PW1 Ramesh Chand Sundariyal. This contention of Ld. Defence Counsel is to be ignored in view of the judgment of Hon'ble Supreme Court of India which is reported as Lallu Manjhi and another Vs. State of Jharkhand 2003 1 AD (SC)597 wherein it was held that conviction of accused can be based even on the testimony of a solitary witness when his evidence is found to be wholly reliable. The Hon'ble Supreme Court in an another case reported as 2009 (I) AD(SC)80 has held that as per section 134 Indian Evidence Act, there is no legal impediment in convicting a person on the sole testimony of a single witness. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy.
The next contention of the Ld.Counsels for the accused persons is that the incident occurred at a public place where lot of public persons were present, but the I.O. did not join any public Sessions Case No. 48/08 Page 39 /46 40 witness in the proceedings. It was further submitted that as per PW1 Ramesh Chand Sundariyal, one Mr. Chopra had reached the spot on hearing the bang of fire, has not been examined by the I.O. nor he was joined in the investigation.
As per version of PW1 Ramesh Chand Sundariyal no other person has witnessed the incident. It was night hours. Even if we assume for the sake of arguments that there were some persons who had witnessed the incident, the question is that whether such persons are required to be essentially examined in the court as witnesses and in case they are not examined as witnesses, can the prosecution case be thrown away on this ground. In my considered opinion it is not necessary to examine all the persons who had witnessed the incident. In this regard, I am supported by judgment of Hon'ble Supreme Court which is reported as M.A. Abdulla Kunhi Vs. State of Kerala 1991 SC452 wherein it was held that it is not necessary that all the persons who were witnessing the occurrence should be examined. Moreover, it is well settled position of law that it is not the number of witnesses which matters, rather it is quality of evidence which is important.
So far as the joining of public persons in the Sessions Case No. 48/08 Page 40 /46 41 investigation is concerned, it is well known fact that public persons are not prepared to join the investigation or other proceedings conducted by the police. On this ground, the prosecution case cannot be rejected provided the other witnesses examined by the prosecution are reliable and trustworthy. Therefore under these circumstances, I am of the view that the contention of the Ld. Defence Counsels is without any merit and the same does not affect the merits of the prosecution case.
It was further submitted by Ld. Defence Counsel that the blood stained clothes of the complainant were not seized by the police. It was contended that the I.O. did not seize the motor cycle of the assailants and license of medical store was not seized. The persons who had taken the deceased Amit Kumar and PW1 Ramesh Chand Sundariyal to the hospital were not cited as witnesses and the doctors of Mavi Hospital where the deceased Amit and PW1 Ramesh Chand Sundariyal were taken are also not cited as witnesses. In my view, this is not a ground to discard the testimonies of prosecution witnesses if they are otherwise reliable and trustworthy. At the most we can say that I.O. was negligent while conducting the investigation. I am of the considered view that Sessions Case No. 48/08 Page 41 /46 42 accused persons cannot derive any benefit on account of negligence on the part of the I.O. In this regard, I am supported by a judgment of Hon'ble Supreme Court of India, which is reported as AIR 1988 SC1850, Ram Bihari Yadav Vs. State of Bihar & Ors. wherein it was observed that it is settled law that when the direct testimony of the eye witness inspires confidence and fully establishes the prosecution version, failure or omission or negligence on part of I.O. cannot affect the credibility of the prosecution version.
The Hon'ble High Court of Delhi in a case reported as 2009 IX AD ( DELHI)71 Ahmed Ali Sardar Vs. State has observed that failure or omission or negligence on part of I.O. cannot affect credibility of prosecution version.
The Hon'ble Supreme Court in a case reported as 2009 IV AD (SC)34 has observed that the shoddy investigation cannot be a foundation for the accused persons to take advantage of shoddiness.
Therefore, in view of the cases referred above, the contention raised by Ld. Defence Counsels does not have any merit.
It was further contended by the Ld. Defence Counsels that the public persons did not chase the assailants, which creates a Sessions Case No. 48/08 Page 42 /46 43 doubt in the prosecution story. When one person dies and other sustains gun shot injuries, no one would dare to chase the assailants in the night hours. Therefore, this contention of Ld.Defence Counsels is without any merit.
It was further contended by the Ld. Defence Counsels that weapon of offence was not recovered which creates a doubt in the prosecution story. It is well settled law that nonrecovery of weapon of offence is not fatal to the prosecution case. The Hon'ble Supreme Court in a case reported as Lakhan Sao Vs. State of Bihar & Another 2000 Crl.L.J. 2959 ( SC) has held that non recovery of a pistol or a cartridge does not detract from the case of the prosecution, where the direct evidence is acceptable. In another case reported as Krishna Mochi & Ors. Vs. State of Bihar ( 2002) 6, Supreme Court Cases81 the Hon'ble Supreme Court of India has held that recovery of no incriminating material from the accused cannot alone be taken as ground to exonerate the accused from the charges, more so when their participation in the crime is unfolded in ocular account of the occurrence given by the witnesses whose evidence has been found to be unimpeachable. Hence, this contention of Ld. Defence Counsels is without any merit. Sessions Case No. 48/08 Page 43 /46 44
The perusal of the statement of PW1 Ramesh Chand Sundariyal reveals that he is consistent and corroborative. There is no infirmity in his statement. Nothing could come in his cross examination which could shake his credibility. Therefor, there is no reason to disbelieve his statement. From his statement it is proved that at the time of incident both the accused persons along with their coaccused Shakil @ Kalia ( since expired ) in furtherance of their common intention fired gun shots on the deceased Amit Kumar and Ramesh Chand Sundariyal with an intention to kill them. The bullet hit on the chest of Amit Kumar which proved fatal as per postmortem report Ex.PW14/A. It is also proved from the postmortem report Ex. PW14/A that deceased Amit Kumar died due to the gun shot injuries sustained by him in the incident.
The case law relied upon by Ld. Defence Counsels are not applicable to the fact and circumstances of the present case.
So far as the charge u/s 452 IPC is concerned, in my view the prosecution has failed to prove the charge. From the evidence on record it is proved that the incident took place outside the shop of the complainant. The complainant PW1 has admitted in his cross examination that incident took place outside his shop. Sessions Case No. 48/08 Page 44 /46 45 Therefore the charge u/s 452 IPC cannot be sustained.
So far as the charges u/ss 393 IPC and 398 IPC are concerned, in my view the same cannot be sustained because the complainant has not stated in his statement on the basis of which FIR was registered that any attempt was made by the accused persons to commit robbery. No cogent evidence has come on record in this regard. Though the complainant has stated in the court that the accused persons wanted to commit robbery in their shop. The complainant has not stated as to how he inferred that the accused persons wanted to commit robbery in his shop. As discussed above this fact was not stated by the complainant in his statement on the basis of which FIR was registered.
In view of the above discussion, it is proved that on 21.8.2006 at about 11.00 p.m. the accused persons in furtherance of their common intention committed murder of Amit Kumar and they have attempted to kill the complainant PW1 Ramesh Chand Sundariyal. Accordingly, both the accused persons are held guilty for the offences punishable u/ss 302/307/34 IPC and are convicted thereunder.
In view of the above discussion, I am of the opinion that Sessions Case No. 48/08 Page 45 /46 46 the prosecution has failed to prove the charges against the accused persons for the offences punishable u/ss 452/393/398 IPC beyond doubt. Accordingly, they are acquitted of the said charges.
Both the accused persons be heard separately on the point of sentence.
Announced in open Court on 25th August' 2011 (Surinder Kumar Sharma) Additional Sessions Judge (North East) Karkardooma Courts, Delhi Sessions Case No. 48/08 Page 46 /46