FATEH DEEP SINGH, J. - (1.) WHAT stands reflected from the record as well as the arguments of the counsel for the contesting parties are to the effect: - That a case registered by way of FIR No.39 dated 13.03.2004 under Sections 302/120 -B/364/201 IPC read with Section 25 of the Arms Act pertaining to Police Station City Bahadurgarh on the statement of complainant Devender Gupta against nine accused namely, Dharmender @ Dhauna, Rajesh @ Raju, Swaran Singh @ Tony Sardar, Kuldeep @ Monu, Rajesh @ Mogli, Dinesh @ Datua,Vijay @ Koki, Neetu Nihal and Kamal Mehta out of whom Rajesh @ Raju, Dinesh @ Datua and Vijay Sharma @ Koki were held guilty for commission of offences under Sections 302/364/120 -B IPC by the Court of learned Additional Sessions Judge, Jhajjar and were sentenced to rigorous imprisonment for life and fine of Rs.20,000/ - each. In default of fine, the convicts to undergo further imprisonment for two years each under Section 302/120 -B of IPC and further were sentenced to rigorous imprisonment for ten years and fine of Rs.10,000/ - each, in default of fine, the convicts to undergo further imprisonment for one year each under Section 364 of IPC whereas remaining accused stood acquitted. Thus that is how these appeals have arisen against the acquittal as well as conviction passed against various accused. Thus being inter -connected matters arising out of the same case, therefore, needs to be disposed off by this common judgment.
(2.) FOR the sake of brevity, three different challans against all these accused were submitted and committed at various stages which were consolidated by orders dated 06.02.2006 of the learned trial Court and so of appellant -convict Vijay @ Koki, who was earlier found innocent during investigation and was subsequently summoned under Section 319 Cr.P.C. vide orders dated 15.09.2006. That is how the trial against all these accused commenced inspite of initial hiccups and there had been repeated misc. applications having been preferred by the accused under different provisions of law as well as amendment/alteration of the charges and as well as recalling of certain prosecution witnesses on the basis of the directions of the Hon'ble High Court and, therefore, sufficiently explains how the trial had proceeded at snail's pace. The precise allegations levelled by Devender Gupta PW -1 son of deceased Rakesh Kumar Gupta contained in his statement Exhibit PA/1 recorded by PW -7 ASI Chander Gupta on 13.04.2004 around 5.00 P.M. at Patel Nagar, Bahadurgarh. In a statement, the complainant had stated that his deceased father was running a tent house under the name and style of M/s Ganpati Tent House at Shastri Nagar, Delhi where the complainant also helps him. It has been stated that about 20 years ago Subhash elder uncle (Tau) of the complainant was murdered by elder brother of accused Koki regarding which a case was got registered and on account of nurturing of a grudge, Dinesh @ Datua, Koki, Chikna @ Raju @ Rajesh all accused convicts had murdered his father by a fire arm after calling him from his tent house and, thereafter have thrown his dead body in Patel Nagar. Upon this statement, after endorsement Exhibit PA/1 has led to the registration of the present FIR by PW -6. It is during the investigations by PW -13/PW -7 ASI Chander Gupta photographs with negatives of the dead body were clicked by PW -10 vide Exhibits P -6 to P -13. Inquest report was prepared and statement of the witnesses were recorded. The dead body was handed over to PW -5, who got conducted the post -mortem examination on police request through PW -1 Dr. K.K.Jakhar, who initially also conducted the MLR of this injured. The articles i.e. the vehicle recovered from near the dead body and the remnants of the bullet recovered from the dead body were sent to the Forensic Science Laboratory and during the course of investigations by the various officials including PW -24 DSP Samunder Singh and PW -25 DSP Devender Yadav, the accused were arrested and on the basis of their disclosure statements articles were got recovered. Consequent upon investigations, the accused detailed above were put to trial after they denied the charges so framed against them. Learned counsel for the parties have in their submissions not questioned the death as well as cause of this death of the deceased. It is well elaborated in the testimony of PW -1 Dr. K.K. Jakhar, who was examined on 12.04.2006, 02.04.2007 on the basis of the post -mortem examination given by way of report Exhibit P -2 whereby five lacerated wounds have been discovered on the dead body on the areas of face, anterior chest wall and left upper back medial aspect. The doctor has opined all these injuries to be ante mortem in nature sufficient to cause death in normal course of life and has proved the belongings of the dead body shirt Exhibit P -3, Pant Exhibit P -4, Banyan Exhibit P -5 and underwear Exhibit P -6. The doctor had also recovered a metallic portion of the bullet from the dead body which was sealed and handed over to the police though the doctor has failed to give the precise nature of this metallic article whether it is a pallet or a bullet certainly had to be certified by the Forensic Expert and not by the doctor, who had conducted the postmortem examination.
(3.) THE FSL report Exhibits PZ and PZ/1 clearly establishes beyond any doubt in the light of the contentions of the State counsel that these articles as to the belongings of the dead body were stained with human blood and the blood collected from the spot by the Investigating Officer at the time of initial examination of the spot was also blood stained earth and the metallic portion remnant of the bullet was of .38 caliber and also stained with human blood. Thus from this all leads to the inference that the deceased had died on account of fire arm injury thus a homicidal death by all means. No doubt as is spelled out in the first version contained in the statement of the complainant Exhibit P -A there is no clear cut version that as to manner in which these three accused had called the deceased. However, in his testimony as PW -1, the complainant had detailed in his testimonies on 09.08.2006, 13.01.2007, 20.08.2010 that on the day of the occurrence around 11/11.30 A.M. Vijay @ Koki, Dinesh @ Datua and Raju @ Chikna had came to their shop and after having conversation with his father took him away and that his father had taken the keys of the car from him telling he would be coming back after two hours. It was thereafter stated by this witness that PW -3 brother of the deceased came and told him that the deceased had been shot dead and his body was lying near his car registration No.DL -8CF -1351. Though the counsel for the accused have tried to dampen the effects of the testimony of PW -1 terming him to be a close relative of the deceased. However, it is the stand of the complainant that he was working in the tent house helping his father and it was in his presence these three accused have taken away his father. The taint that is sought to be assigned to PW -1 that there was history of previous enmity between families is certainly an admitted fact from the prosecution as well as the defence side. Rather a suggestion has been put to this witness regarding plea of alibi qua accused Vijay @ Koki that he was not present at the time of the occurrence as he happened to be present at Budh Vihar, Delhi accused Chikna @ Raju was present at Rohini, Delhi. There is a positive averment in the cross -examination of this witness that he tried to contact about 15 times between 11.30 to 4.30 P.M. on the cell phone of the deceased but there was no response. Learned counsel for the accused could not pin point anything adverse that has come to put to doubt the veracity of this witness.;