CRL.A.--1284/2015. Case: SUSHIL ARORA Vs. STATE. High Court of Delhi (India)
| Case Number | CRL.A.--1284/2015 |
| Citation | NA |
| Judgement Date | February 08, 2017 |
| Court | High Court of Delhi (India) |
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 29th August, 2016
Pronounced on : 08th February,
+ CRL.A. 1284/2015
SUSHIL ARORA ..... Appellant
Through: Mr. Vikas Arora and Ms. Radhika Arora, Advocates
Versus
STATE ..... Respondent
Through: Ms. Aasha Tiwari, APP for State
+ CRL.A. 53/2016
RAJESH PANDEY ..... Appellant
Through: Mr. Vivek Sood, Sr. Advocate with Mr. Ashim Shridhar, Advocate
Versus
STATE (GOVT. OF NCT OF DELHI) ..... Respondent
Through: Ms. Aasha Tiwari, APP for State
+ CRL.A. 190/2016
HEMANT GARG ..... Appellant
Through: Mr. K. Singhal, Advocate
Versus
STATE NCT OF DELHI ..... Respondent
Through: Ms. Aasha Tiwari, APP for State
Crl. A. No.1284/2015 & connected matters Page 1 of 140
+ CRL.A. 1338/2015
VISHNU S/O PANCHU RAM ..... Appellant
Through: Mr. M.N. Dudeja and Mr. Rajesh Kaushik, Advocates
Versus
STATE NCT OF DELHI ..... Respondent
Through: Ms. Aasha Tiwari, APP for State
+ CRL.A. 283/2016
SONVEER alias PINKU ..... Appellant
Through: Mr. Rajeev Mohan, Advocate
Versus
STATE ..... Respondent
Through: Ms. Aasha Tiwari, APP for State
CORAM:
HON'BLE MS. JUSTICE GITA MITTAL HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT
R.K. GAUBA, J:
"...A reasonable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case. If a case is proved perfectly, it is argued that it is artificial; if a case has some flaws inevitable because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being
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punished, many guilty persons must be allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish..."
[Gangadhar Behera v. State of Orissa, (2002) 8 SCC 381 and Inder Singh v. State (Delhi Admn.) (1978) 4 SCC 161]
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These five appeals challenge the judgment dated 02.07.2015 order dated 26.08.2015 passed by the Additional Sessions Judge, Delhi in sessions case no.07/2009. By the impugned judgment, learned trial court held the appellants guilty for offences punishable under Sections 302 and 307 read with Section 34 of Indian Penal Code, (IPC) and by the impugned order awarded as punishment imprisonment for life with various amounts of fine to each of them. By the impugned judgment, one of the appellants, viz Sonveer @ Pinku (Crl.
no.283/2016) was acquitted of the charge under Section 27 Arms 1959, which had been additionally framed against him and against another appellant Vishnu (Crl. Appeal no.1338/2015), on the ground no proof had been adduced with regard to the grant of sanction under Section 39 of Arms Act.
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I had penned this opinion in September - October last year, drafting it for the bench to return a decision dismissing all the appeals upholding the conviction. Upon receiving copy of a totally divergent opinion, prepared with great labour and erudition by my learned colleague on the bench, Gita Mittal, J, I am obliged to suitably modify the document and also now present it as "my" opinion and consequently replacing such words as "we" and "our", wherever they occur in
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original draft with "I" and "my". Aside from such cosmetic changes, must say that having accorded anxious and careful consideration to reasons set out in the said separate opinion proposing acquittal for five appellants, I, however, do not stand persuaded to revise my view. wish to express some additional thoughts at the end of the original draft to explain why I respectfully disagree with the opinion commending of doubts to be accorded and the appeals to be allowed.
POLICE REPORTS
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The sessions case in which the impugned judgment and order passed from which these appeals arise relates to the first information report (FIR) that had been registered (Ex.PW25/A) at 7.00 p.m.
22.02.2009 in police station Chanakya Puri (police station) under 154 of the Code of Criminal Procedure, 1973 (Cr. PC) on the basis rukka (Ex. PW26/A) that had been sent at 6.30 p.m. on the same by Inspector Surender Singh Rana (PW-26) of the police respecting an incident that had statedly occurred at a place described Ridge Road, near Simon Boliver Marg, T Point, it essentially founded on the statement (Ex. PW1/A) of Sunil (PW-1), the informant (presented as an eye witness), the investigation into the brought out that in the subject incident a young person named Ankit, son of Mr. Rajiv Minocha, aged about 23 years resident of a house in no.4, Mehrauli, New Delhi had suffered fire arm injuries to which he succumbed during treatment in the Jai Prakash Narayan Apex Centre of the All India Institute of Medical Sciences (AIIMS), New Delhi (hereinafter referred to as “the trauma centre” or “the Hospital”). It
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been the case of the prosecution that in the same incident Surender
8), a resident of a village in Tehsil Farooq Nagar, District Gurgaon Haryana, then aged about 26 years, had also been shot at and resultantly sustained a fire arm injury. The FIR was registered investigation into offences under Sections 302, 307, 34 and 120B besides under Sections 25 and 27 of the Arms Act.
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On 24.02.2009, the appellant Sushil Arora (Crl.
no.1284/2015), resident of house no.113, SBI Colony, Paschim New Delhi working for gain by running business in the name and style “Chintoo Car Point” from a premises described as shop no.1 at 17 Road, opposite Jassa Ram Hospital, New Delhi – hereinafter described, for convenience, variously by name or as accused / appellant no.1 (Asurrendered before the Investigation Officer (IO) at the police station in view of the evidence that had statedly been gathered by that time, was formally arrested for involvement in the aforementioned crime. report under Section 173 Cr. PC (charge-sheet) dated 23.05.2009 submitted by Inspector Jagat Singh (PW-47), the then Station Officer (SHO) of the police station in the court of the Metropolitan Magistrate seeking prosecution of the appellant Sushil Arora (A-1) for the offences under Sections 302, 307, 34 and 120B IPC, also stating further investigation in terms of Section 173(8) Cr. PC was underway arrests of four other persons wanted in the case described by names Hemant Garg, Sonveer @ Pinku, Vishnu and Rajesh Pandey (i.e. the other four appellants) were yet to be effected. Cognizance on this police (the first charge-sheet) was taken and requisite process initiated by concerned Metropolitan Magistrate.
Crl. A. No.1284/2015 & connected matters Page 5 of 140
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During further investigation, besides collection of other evidence, the appellant Hemant Garg (Crl.Appeal no. 190/2016) – hereinafter described, for convenience, variously by name or as accused / appellant no.2 (A-2) – was formally arrested on 10.08.2009, after his presence been secured in the court of the Metropolitan Magistrate on the basis the production warrant that was issued on the request of the IO upon having learnt that he (Hemant Garg) was lodged in judicial custody connection with another case relating to FIR no.535/2002 under Section 365, 366 & 376 IPC PS Timarpur. It has been the case of the prosecution that on 27.08.2009 upon secret information, appellant Sonveer @
(Crl. Appeal No. 283/2016) – hereinafter described, for convenience, variously by name or as accused / appellant no.3 (A-3) – was from the Coffee Home parking close to Hanuman Mandir, Connaught Place, New Delhi. Further, on 29.09.2009, appellant Vishnu (Crl. Appeal 1338/2015) – hereinafter described, for convenience, variously by name or as accused / appellant no.4 (A-4) – was formally arrested with permission of the Metropolitan Magistrate in whose court he produced on the production warrant on request of the IO he having about he being in judicial custody in another case relating to No.47/2007 under Sections 324, 506 & 34 IPC PS Prashad Nagar.
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After the arrests of the above three additional accused – appellants Hemant Garg (A-2), Sonveer @ Pinku (A-3) and Vishnu – on the basis of further investigation, a supplementary report section 173 Cr. PC was laid in the court of the Metropolitan Magistrate on
24.10.2009 seeking their trial with the first accused for offences Sections 302, 307, 34, 120B IPC read with Sections 25 and 27 of
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Arms Act. It may be added that in this supplementary report (the supplementary charge-sheet) the name of Rajesh Pandey, the appellant was again mentioned, he having since been declared proclaimed offender by the court of the Metropolitan Magistrate by dated 30.07.2009. The Metropolitan Magistrate took cognizance on first supplementary charge-sheet and initiated further action thereupon under the law.
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On 11.11.2009, the appellant Rajesh Pandey (Crl.
no.53/2016) – hereinafter described, for convenience variously by name or as accused / appellant no.5 (A-5) – was statedly arrested on basis of secret information, from outside New Delhi Railway Station and after investigation, another supplementary report under section 173 Cr. (second supplementary charge-sheet) was submitted on 02.01.2010 in court of the Metropolitan Magistrate seeking his trial with the other persons for the aforementioned offences. Cognizance on this supplementary charge-sheet was also taken.
THE CHARGE AND FINDINGS OF TRIAL COURT
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Eventually all the three charge-sheets were clubbed and the came up for trial before the court of the sessions which decided, by detailed order dated 29.01.2010 followed by subsequent orders to put five appellants to trial on charge for offences under Sections 302, 307 read with Sections 34 and 120B IPC, the gravamen of which was that the appellants, having entered into a criminal conspiracy, while travelling in a car make Indica bearing registration...
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