CRL.A.--793/2001. Case: NARENDER AGARWAL Vs. STATE OF DELHI. High Court of Delhi (India)

Case NumberCRL.A.--793/2001
CitationNA
Judgement DateAugust 08, 2019
CourtHigh Court of Delhi (India)

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Judgment Reserved on: ____ 26th July, 201

Judgment Pronounced on: 8 August, + CRL.A. 782/2001

DINESH SINGH PANWAR ..... Appellant Through: Mr. K.B. Andley, Senior with Mr. Mohd Shamik, Mr.

K. Andley and Mr. Kshitij

Advocates versus

STATE N.C.T. OF DELHI ..... Respondent Through: Mr. Rajat Katyal, APP

+ CRL.A. 788/2001

DIWAKAR GUPTA ..... Appellant

Through: Mr. Ravinder Narayan and Mr.

Raghav Narayan, Advocates versus

STATE N.C.T. OF DELHI ..... Respondent Through: Mr. Rajat Katyal, APP

+ CRL.A. 793/2001

NARENDER AGARWAL ..... Appellant

Through: Ms. Saahila Lamba, Advocate versus

STATE OF DELHI ..... Respondent Through: Mr. Rajat Katyal, APP

+ CRL.A. 812/2001

SUNIL ..... Appellant

Through: Mr. Anurag Jain, Advocate versus

STATE (N.C.T. OF DELHI) ..... Respondent Through: Mr. Rajat Katyal, APP

CORAM:

HON'BLE MR. JUSTICE G.S.SISTANI HON'BLE MR. JUSTICE CHANDER SHEKHAR

  1. The present appeals have been filed under Section 374 of the of Criminal Procedure (hereinafter referred to as ‘Cr.P.C.’)

    the judgment dated 06.09.2001 passed by the learned Sessions Judge, Delhi, in Sessions Case No.89/2001, arising FIR No.179/97, registered under Sections 302 read with Section of the Indian Penal Code (hereinafter referred to as ‘IPC’) at Police Station Trilok Puri, whereby all the appellants have been held guilty under Section 302 read with Section 34 of IPC and 307 read with Section 34 of IPC. Arguments have been in all the appeals together, the same are being disposed of common judgment.

  2. The appellants vide the order on sentence dated 07.09.2001 been sentenced to rigorous imprisonment for life with a fine of 15,000/- each, in default of payment of fine to further simple imprisonment for a period of one year under Section 302 with Section 34 of IPC. The appellants were also sentenced rigorous imprisonment for a period of 10 years with a fine Rs.5,000/- each, in default, to further undergo simple imprisonment for a period of four months under Section 307 read with Section of IPC. Both the sentences were ordered to run concurrently.

  3. Before the rival submissions of learned counsels for the parties be considered, we deem it appropriate to outline the case of prosecution which reads as under:

    “1. Tersely, the facts as alleged against the accused are that on 6.3.97 DD entry No.31 was recorded in Post Mandawali, P.S. Trilokpuri on wireless message Chander Vihar, Mandawali Fazalpur, accused Diwakar fired at Jitender. On this information, SHO, who was patrolling duty in the area went at the spot alongwith the

    block of bricks, in front of H.No.401, Chander Vihar was found lying and the bricks were also having blood alongwith one chappal as well as two empty cartridges were also found lying there. In the meantime, information from DD No.32 was received by the SHO that injured has admitted as ‘brought dead’ in GTB Hospital. Inspector Kapoor alongwith his staff went to the GTB Hospital government vehicle leaving behind SI H.R. Meena and staff at the spot and collected the MLC of Yatinder Sharma s/o Hari Chand Sharma, r/o 244/8, School Mandawali, Delhi and the dead body was inspected by SHO Inspector Vinod Kapoor, which was found having big wound and four other small wounds nearby on the In the mortuary, Dharminder Kumar Sharma son of Chand Sharma, r/o K-551, Kalyan Marg, Mandawali statement recorded by the SHO.”

  4. The statement of PW5, Complainant Dharmender Kumar was recorded by PW28 Insp. Vinod Kapoor (SHO, P.S. Trilok whereby it was stated by him that on the day of occurrence, he working as vice-President for the East District Congress Committee. As MCD elections were to be held in the Mandawali Zone, Chaudhary (wife of Chaudhary Jeet Singh, Joint Secretary of Pradesh Congress Committee) was also contesting as an independent candidate. The complainant PW5 Dharmender further stated being a worker for the Congress party, he was supporting Sharma who was also a contesting candidate in the MCD electio for Mandawali Zone. PW5 was asked by Chaudhary Jeet Singh support his wife to which PW5 refused. Thereafter, Chaudhary Singh threatened PW5 that within a month of elections, he face the consequences. All the appellants i.e. Diwakar Gupta, Dinesh Singh, Narender Agarwal and Sunil who were supporting

    her candidature.

  5. It was further stated by PW5 Dharmender Sharma that on the the incident, at about 6.15 PM, he and his younger brother @ Yati (deceased) while returning from his in-laws house, crossed Indira Marg and upon reaching in front of the house of appellant Diwakar Gupta, all the appellants Dinesh, Diwakar,

    and Narender Agarwal exhorted “AAJ TUMHARA TAMAM KAR DETE HAI KYOKI TUMNE CHUNAV HAMARE UMMIDWAR KA VIROD KIYA. AAJ HUM ISKA MAJA CHAKHATE HAIN”. In the meanwhile, the Narender Agarwal exhorted the appellants Sunil, Dinesh Diwakar by saying “DEKHTE KAYA HO? MAARO SALO GOLI” to which the appellants Diwakar and Dinesh opened fire their respective weapons towards the complainant Dharmender the deceased. The appellant Sunil started giving danda blows deceased. The complainant further stated that he remained unhurt his brother (deceased) sustained bullet injuries on his chest and palm. The deceased fell down at the spot and was bleeding profusely. complainant cried for help “BACHAO-BACHAO”. PW7 Kishore, PW6 Devender and PW8 Bijender who were present spot, tried to save them while all the four appellants fled from spot while firing from their respective weapons. The complainant took his brother in a Maruti Car to the GTB Hospital with the help of his neighbours namely PW10 Parmanand Tyagi and PW9 Mane Pal where he was declared dead. The complainant further stated his brother was killed on account of enmity and an attempt was made to kill him.

    10.20 PM by the SHO, Trilok Puri and the FIR was registered

    11.05 PM. On 01.10.1997, charge under Sections 302/307/34 of was framed against all the appellants whereby they innocence and claimed to be tried.

  6. To bring home the guilt of the appellants, the prosecution exami as many as 36 witnesses in all. The statement of the appellants recorded under Section 313 of Cr.P.C. whereby they denied all incriminating material against them. It was stated by the Dinesh Singh in his statement under Section 313 of Cr.P.C. that was running a business under the name and style of Automobiles authorised LML Vespa and Panwar Fin-lease Pvt.

    On 06.03.1997, he was present at his shop and had nothing with the present case. In his statement, the appellant Diwakar stated that the elections of the Residents Welfare Association held on 02.10.1996 wherein Devender Sharma was opposing candidature in the election and implicated him due to enmity. appellant Diwakar further stated that he was a part of a chit fund and Bijender Sharma owed Rs. 21 Lacs to him due to which he deposed against him to avoid the payment and falsely him. It was further stated by the appellant Diwakar that s Ram Kishore deposed against him as he had arranged a plot for Kishore, for which the appellant Diwakar demanded Rs.10,000/ which Ram Kishore refused and threatened him that he implicate him in a false case. Parmanand Tyagi was brother of Kishore. Other public witnesses were brothers of Dharmender Kumar Sharma. The appellant Diwakar further stated that his was bearing licence which remained at the Police Station Ha

    Delhi. There might be a chance for the Police to fire the bullets his rifle and plant empty fired cartridges on him. Similar empty cartridges might be available at his home. On 06.03.1997, he was out of Delhi and was in possession of his rifle and no shot was fired the same. The appellant Diwakar claimed to be falsely implicated the present case.

  7. In their defence, the appellants examined five witnesses to rebut case of the prosecution.

    Common arguments made on behalf of all the appellants :

  8. Learned counsels submit that all the appellants have been implicated in the present case. As per the case of the prosecution, incident took place on 06.03.1997 at about 6.15 PM. The contend that on the fateful day, the deceased alongwith his PW5 were returning after a visit from the house of the in-laws PW5 and it was by chance that they met all the appellants, reaching outside the house of the appellant Diwakar. The further submit that the entire story of the prosecution is unbelievable for the reason that according to the prosecution, the Diwakar had fired from his rifle while the appellant Dinesh had fired from his katta, which resulted in the death of the deceased. It is also the case of the prosecution that the appellant Narender had the other appellants while the appellant Sunil had inflicted blows on the deceased. The counsels submit that the entire took place when the appellants were standing at the house of appellant Diwakar and the deceased alongwith his brother were crossing the spot. In effect, the deceased and his crossed the house of the appellant Diwakar on the fateful day

    standing and were armed with a rifle, danda and katta, would highly improbable. In this background, the case of the prosecution is challenged on two grounds; firstly the meeting of all the with the deceased and PW5 was a chance meeting and secondly the witnesses who had been examined by the prosecution are relations of the deceased or distantly related and the common amongst all the eye witnesses is that they were interested witnesses It was further contended that the case of the prosecution is based on the eye witness account of PW5 Dharmender K (brother of the deceased) who was present with the deceased at time of the incident. It has been highlighted by the learned for the appellants that the conduct of PW5 is highly improbable after having seen his brother murdered, he would have either his brother to the hospital immediately after the incident or he would have had at least made a call at number 100. The counsels that the incident took place at 06:15 PM and the information the incident was given to the...

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