Kanwaljit Singh Ahluwalia, J. - (1.) THE present Appellant was tried along with one Jitender @ Meena in case FIR No. 197 dated 30.3.1998, registered at Police Station Rai, under Sections 307, 450, 34 IPC by the Court of Additional Sessions Judge, Sonepat and vide judgment and order dated 18.5.2002, both the accused were convicted and sentenced to undergo RI for 5 years and to pay a fine of Rs. 1000/ - each under Section 307 IPC and to undergo further RI for two years and to pay a fine of Rs. 500/ - each under Section 450 IPC. In default of payment of fine, they were ordered to undergo further RI for a period of two months. However, both the sentences were ordered to run concurrently.
(2.) CASE of the prosecution is that on 30.3.1998 at about 5.30 p.m., in the area of Rasoi, P.S. Rai, Jitender fired four shots and made an attempt to commit murder of Rajiv Goyal s/o Karam Chand Goyal owner of Goyal Spinning and Weaving Mills, Rasoi and thereby committed offence under Section 307 IPC. According to the prosecution, the present Appellant Vijay Pal had accompanied Jitender and thereby committed offence with the aid of Section 34 IPC. The present Appellant along with Jitender @ Meena was also tried for offence under Section 450 IPC Co -accused Jitender has not preferred any appeal. According to the Counsel for the Appellant, out of maximum sentence of 5 years awarded under Section 307 IPC the Appellant has undergone 4 years 7 months and 3 days actual sentence and he was released by the jail authorities on 11.10.2009 on expiry of the sentence after getting benefit of remissions. Counsel for the Appellant has stated that he intends to contest the conviction of the Appellant as after the completion of sentence, he has been elected Sarpanch of the village, primarily on the ground that the prosecution has failed to prove identity of the Appellant as one of the accused. Counsel has in a very emphatic manner stated that except Rajiv Goyal, all the witnesses have been declared hostile and they have not supported the case of the prosecution. No other witness, except Rajiv Goyal, has deposed that the present Appellant was present at the scene of crime. It is further contended that even Rajiv Goyal has stated that the accused -Appellant was not known to the witnesses and he was shown to the injured witness in the police station. Therefore, counsel submits that identification of the Appellant in court is meaningless as the present Appellant was shown to the injured witness in the police station. To fortify this submission, Counsel has relied upon recent judgment of this Court in Shamsher Singh v. State of Haryana, (Crl. Appeal No. 937 -SB of 2000), decided on 10.2.2011. Before this contention of the Appellant is evaluated, it will be necessary to notice the brief facts of the case.
(3.) SURENDER Gupta P.W. 9 lodged FIR Ex.PB wherein he stated that he was a Manager in the factory known as Goyal Spinning and Weaving Mills, Rasoi. On 28.3.1998 at about 5.30 p.m., he was working in his office. At that time, Mohinder Dhull, Clerk and Vijay Chauhan, Accountant were sitting along with him. Owner of the factory, Rajiv Goyal, resident of Phase No. 1, D/54, Ashok Vihar, Delhi and one Ashish Garg, Director of Shri Sham Cot Spin were also sitting in the office and were having conversation. At that time, two boys came on a motorcycle without registration number. The motor cycle was red coloured Yamaha. They brought Ram Saran security guard on the gun point. Both the boys were having pistol. One of them was Jitender, resident of Rasoi and the other one was of wheatish colour, tall and thinly built, aged about 22/23 years who remained with the motor cycle in starting mode on the main gate. Jitender forced his entry into the room of Rajiv Goyal and asked him to hand over the cash. When Rajiv Goyal asked what for the cash is to be handed over, Jitender fired four straight shots at him. One shot hit Rajiv Goyal in the chest towards right side and the second shot hit on the left hand. Thereafter, Rajiv Goyal fell down. Jitender fled away along with his accomplice on the motorcycle towards GT road saying that in case they are chased, further shot shall be fired.;