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By this common judgment, we propose to dispose of Crl.Appeal No.104-DB of 2002 filed by Narender @ Dhilu son of Randhir and Crl.Appeal No.187-DB of 2002 filed by Yogesh @ Bablu son of Randeep, to challenge the judgment/order dated 4.2.2002 rendered by Additional Sessions Judge, Sonepat. By the said judgment, appellants Narender @ Dhilu and Yogesh @ Bablu were convicted under Sections 302/392/34 IPC and directed to undergo life imprisonment and to pay fine of Rs.10,000/-, in default of payment of fine, to further undergo RI for two years, each under Section 302 read with Section 34 IPC, and RI for six years and to pay fine of Rs.5,000/-, in default of payment of fine, to further undergo RI for one year, each under Section 392 IPC.

After completion of investigation, accused were challaned. Vide order dated 3.2.1999 by the JMIC, Sonepat, the case was committed to the Court of Sessions for trial.

Accused were charged under Sections 302/392/34 IPC, to which they did not plead guilty and claimed trial.

To prove its case, prosecution examined 23 witnesses. PW1 Dr. Arun Garg stated that Board was constituted to conduct the postmortem examination on the dead body of Pawan. He was member of the Board and on 10.5.1998 at 12.00 noon, the Board had conducted the postmortem examination on the dead body of Pawan and found the following injuries:-

On 22.6.1998, accused Narender was interrogated and in pursuance of disclosure statement suffered by him, one brief case and a stepney of car were got recovered from the specified place, which were taken into police possession vide separate memo attested by the witnesses.

PW20 Inspector Mahavir Singh stated that on 12.6.1998, one country made pistol and three live cartridges were recovered from accused Yogesh.

PW21 Sh. S.K.Kaushik stated that on 12.6.1998, he was serving as CJM, Sonepat. Yogesh and Dinesh were produced before him with muffled faces for their identification parade. On enquiry, both the accused replied that they were not to participate in the test identification parade because they were already shown to the witnesses. On 23.6.1998, accused Narender was produced before him. On enquiry, he replied that he was not ready to join test identification parade because he was already shown to the witnesses.

Learned State counsel argued that occurrence had taken place on 9.5.1998 at about 6.00 PM. Complainant and his uncle were returning from their factory, then on the way, they sighted one maruti car. Four accused were in the car. Vineet Aggarwal was driving his Maruti Zen Car No.DL-06-CD-0846. Maruti car was stopped by the accused in front of the car driven by Vineet Aggarwal. Vineet Aggarwal and his uncle Pawan were forced to occupy the rear seat. While going towards Village Jhinjholi, one of the accused had shot fire, hitting the deceased. Deceased was thrown from the running car. Vineet Aggarwal was dropped at some distance from Jhinjholi at the canal. As per prosecution story, accused had fled away from the spot after committing the crime. In a separate FIR under the Arms Act, Yogesh and Dinesh were arrested. They were produced before CJM, Sonepat. On enquiry by CJM, Sonepat, the accused replied that they are not to participate in the test identification parade. After that, in pursuance of disclosure statement suffered by appellant Yogesh, Car No. DL-06-CD- 0846 was got recovered. Appellant Narender was also arrested on 23.6.1998 and as per disclosure statement suffered by him, one brief case and a stepney of car No.DL-06-CD-0846 were got recovered from the specified place. Recovery was in the presence of Murari Verma (PW22) and Dinesh Kumar (PW23). Both the witnesses admitted their signatures on the disclosure statements and recovery memos, but failed to support the prosecution story by saying that recovery was not effected in their presence. The witnesses out of fear resiled from their statements. If they were not present at the time of disclosure statement and recovery, then how their signatures appeared on the disclosure statement and recovery memo. In case, the appellants had not committed the crime, then they could easily state that they were ready to participate in the test identification parade. No evidence on the file that before arrest, the appellants were shown to the complainant or the recovery witnesses. If appellants were shown to the witnesses, then witnesses of recovery could easily state that in their presence, brief case and stepney were recovered from the accused. No case of the accused that they were arrested much earlier to the date of recovery. Evidence on the file was rightly scrutinized by the trial Court.