Sushil Arora v. State

(vii) There is also credible and incriminating ocular and documentary evidence to show that there was a brawl or a fight outside Chintu Car Point in the parking area. Pushkar Raj, brother of Sushil Arora who had deposed as DW/6, had made a call from his mobile phone 9891255906 at police helpline number 100, which information was conveyed to Police Station Karol Bagh and recorded as DD 20A at 1:45p.m. by Head Constable Arvind Kumar/PW-27 and given exhibit mark Ex.PW-27/A. The said information was also conveyed to Police Station Rajender Nagar and recorded as DD 23/A at 1:45 p.m. by Head Constable Mahadev Prasad/PW-28 vide exhibit mark Ex.PW-28/A. The brawl outside Chintu Car Point is deposed to by Sunil/PW-1, Paramjeet Singh/PW-5, Varun/PW-6, Surender/PW-8, Mahendra Singh/PW-9, Hemant/PW-10 and Gajender/PW-11.

(viii) Thereafter, deceased Ankit, Sunil/PW-1, Paramjeet

Singh/PW-5, Varun/PW-6 and Surender/PW-8 had left Chintu Car Point in the Santro Car bearing No.DL2F-FK- 0002 and had taken the Ridge Road towards Dhaula Kuan. Paramjeet Singh/PW-5, was driving the said car. They had stopped to purchase water and cold drink from a cart vendor, when occupants of an Indica car, driven at a very high speed, came there and had fired bullets at them. They started the car and had tried to escape but were compelled to stop the car at the traffic signal at T-Point on the Simon Bolivar Marg. The Indica car which had followed them also reached the spot. To save themselves, Sunil/PW-1, Paramjeet Singh/PW-5, Varun/PW-6 and Surender/PW-8 decamped by either opening the doors of the car or pulling themselves out of the window as the left side door on the rear side could not be opened. Ankit too came out of the car and was hit in the firing. Surender/PW-8 also got hit. For the reasons stated below I would accept the said assertions.

(ix) It is the case of the prosecution that the appellants Sonveer,

Vishnu and even Hemant Garg were present at Chintu Car Point and were involved the brawl. They had come to Chintu Car Point at the instance of Rajesh Pandey on the request of Sushil Arora. Thereafter, Sonveer, Vishnu, Hemant Garg, Rajesh Pandey and Sushil Arora had followed deceased Ankit, Sunil/PW-1, Paramjeet Sunil/PW-1, Paramjeet Singh/PW-5, Varun/PW-6 and Surender/PW-8 in the Indica car and had fired upon and killed Ankit and injured Surender/PW-8. This factual dispute relates to the identity of the perpetrators and persons present in the Indica car. The said aspect is the core issue and question to be adjudicated, and has been examined and considered below.

(x) There is ample evidence on the firing at the Santro Car at

Ridge Road T-Point, Simon Bolivar Marg. Apart from testimonies of Sunil/PW-1, Paramjeet Singh/PW-5, Varun/PW-6, Surender/PW-8 and Manveer Singh/PW-2 and Narender Singh/PW-12, we have police witnesses and communication records. Constable Kalyan Shetty/PW-7, who was a part of the Mobile Crime Team and had taken 26 photographs at the spot marked Ex.PW-7/P[1] to P26 and negatives Ex.PW-7/B[1] to B26. He had reached the spot at about 3:15 p.m. and had taken instructions from Inspector S.S. Rana/PW-26. Similar is the testimony of Constable Satpal Singh/PW-15 who has deposed having visited the crime spot with SHO Jagat Singh Bhati/PW-47. SI Harshwardhan/PW-42 was in-charge of the Mobile Crime Team who, after receiving information at about 2:30 p.m. - 3:00 p.m., had reached the place of occurrence at 3:15 p.m. and had seen one black Santro car stationed on the road. Blood was also lying at the spot and he had taken the blood sample, earth sample and three empty cartridges. His report was marked as Ex.PW-42/A. ASI Nand Kishore/PW-24 was posted on 22.02.2009 on emergency duty at Police Station Chanakyapuri and DD 15A was received by him. He along with Constable Pradeep had reached the place of occurrence where they had seen Santro car No. DL2F-FK-0002 parked on the side of the road. Blood was found lying on the ground on the back side of the car. The right side triangular window had a small hole with crack marks. Cold drink bottle and mobile phone were found lying in the car. Three fired cartridges and one live cartridge was found at the spot. These were lifted and seized. Testimony of Inspector S.S. Rana/PW- 26, the first investigating officer, and Inspector Jagat Singh/PW-47, SHO Police Station Chanakyapuri about the place of occurrence, i.e. T-Point Simon Bolivar Marg, presence of Santro car which had bullet hole and the presence of blood in the car and outside on the road, recovery of three fired cartridges and one live bullet are credible and beyond question. Dr. Naresh Kumar/PW-16, Sr. Scientific Assistant, Forensic Science Laboratory, Rohini had examined the Santro car on 25th February, 2009 and had found blood, which was lifted from the place mentioned in his report Ex.PW-16/A. Dr. R.V. Anand/PW-19, Senior Scientific Officer, Ballistic Division, FSL, on 25th February, 2009 had conducted forensic examination on the Santro Car along with his team and had observed one entry hole caused by a projectile discharged from fire arm on the right side fixed quarter window of the car. There was also one dent present on the right hand side on the bonnet. His report was marked as Ex.PW-19/A.

(xi) Mahendra Singh/PW-9, Hemant/PW-10 and Gajender/PW-

11 had left Chintu Car Point in a separate car and had reached Hotel Hyatt Regency when they came to know about the firing at T-Point of the Simon Bolivar Marg. Thereafter, the three had proceeded to the T-Point where they came to know that the deceased had been shifted to the Trauma Centre at AIIMS. They accordingly proceeded to the Trauma Centre, AIIMS. For reasons set out below, I have accepted this enunciation of the aforestated witnesses read with evidence of Sunil/PW-1 and Paramjeet Singh/PW-5.

(xii) Sunil/PW-1, Paramjeet Singh/PW-5, Varun/PW-6 and

Surender/PW-8 ran away from the spot. Thereafter, Sunil/PW-1 proclaims having called and informed his uncle Mahendra Singh/PW-9 on telephone about the occurrence and had subsequently alongwith Paramjeet Singh/PW-6 reached Trauma Centre, AIIMS where Ankit was admitted. For good reasons stated below and in view of the ocular testimonies of the witnesses, I would accept this version of the prosecution.

(xiii) There is sufficient material and evidence to establish that

Ankit Minocha had suffered a homicidal death due to firearm injuries. The MLC of Ankit Minocha, Ex.PW- 50/A refers to history of gunshot wounds and that the patient was in a drowsy state with gasping breathing, and his abdomen was full of blood. His pupils were sluggish to reaction and there was an exit injury on the scalp from which blood was oozing. There were two other wounds including one on the right shoulder. Dr. Arvind Kumar/PW-18, who was then Senior Resident, Department of Forensic Medicine at AIIMS, had conducted postmortem examination of the dead body of Ankit Minocha. He has referred to abrasions, contused abrasion and a stitched wound on left parieto – occipital region of scalp. On dissection one bullet was recovered from left lateral side of the neck and small metallic fragment was recovered on left temporal region. There was another fire arm entry wound on the right arm posterior, and the projectile had entered the chest cavity through lower lobe of the right lung, and was recovered from the right lobe of the liver. There was a stitched wound in the mid-axillary line of the right side chest. The two bullets and one metallic fragment were preserved and sealed and given to the investigating officer. PW-18 opined that the cause of death was due to the shock and haemorrhage as a result of antemortem fire arm injury, which was sufficient to cause death in the ordinary course of nature, individually and collectively. No burning, singing, tattooing or blackening was seen. In cross-examination, PW-18 had affirmed that the fire arm injury was sufficient to cause immediate death. However, the witness expressed difficulty in precisely stating how long the victim had survived or remained conscious.

9. Before I examine the testimony of the eye witnesses relating to the identification of those present in the Indica car at the time of firing, I would first examine the testimony of Manveer Singh/PW-2, Narender Singh/PW-12, and Ranjeet Singh/PW-4, statedly passersby, who, as per the Appellants, are planted witnesses.

10. I am in agreement with the prosecution that Manveer Singh/PW-2 was present near the place of occurrence near Buddha Garden main road on 22.02.2009 at 2:00 p.m. He was on his motorcycle, which he had stopped on the left side of the road as there was a person selling birds. He had then noticed one Indica car silver gray in colour which was being driven at a very high speed. When the Indica car had gone ahead 100 to 150 meters or a little more, he had heard a sound as if fire crackers had burst. He started his motorcycle and had followed the Indica car. He had then noticed that the Indica car was moving slowly and two or three persons were in the process of sitting inside the car. One person was possibly on the steering wheel as the Indica car was moving. He had followed the Indica car and had noticed its number as DL3E-AX-2192. Since he did not have much time and pen and paper was available with him, he stopped the motorcycle and had dialled 100 number from his mobile phone

9971054874. There was a black colour Santro car DL2F-FK-0002 stationed on the kaccha road. He had parked the motorcycle on the spot. At that time, he had seen three persons running towards Buddha Garden side, but he could not state whether the said persons had got down from the Santro car or not. He had seen a young boy wearing orange colour jersey and sky blue jeans with sports shoes of white colour lying close to the Santro car. The said person was bleeding profusely from his head and blood was coming out as if a water pipe with pressure was leaking. He immediately made a second call to the police from his mobile. In the meanwhile, one white colour Santro car arrived at the spot and two persons lifted the injured boy and had stated that they were taking him to hospital. Manveer Singh/PW-2, noticing them and their behaviour, had felt that they were known to the victim. The police came to the spot and had recorded his statement. He had seen what appeared to be bullet marks on the right side window glass of the Santro car. Police had taken photographs at the spot and he was visible in the photographs. Manveer Singh/PW-2 has accepted that he was not in a position to identify the perpetrators, as he had seen the occupants of the Indica car for a short duration. However, the occupants of the Indica were young persons. In his cross-examination, Manveer Singh/PW-2 affirmed having noted the Indica car number on a paper slip so as not to rely upon his memory. Though this paper slip was not produced before the Court, this, in my opinion, would not in any manner affect the credibility and truthfulness of the version given by Manveer Singh/PW-2. The aforesaid position is corroborated and affirmed in DD entries by the Delhi Police Control Room records marked Ex.PW-29/A and Ex.PW- 30/A. No doubt, as per the said form, the information from telephone No. 9971054074 was conveyed by one Narender Singh but the same form also refers to the name of caller as Manveer Singh, son of Harnam, who was present at the spot. The information conveyed had given the number of the Indica car from which firing had taken place as 2192. The injured had been taken to Safdarjung Hospital in car No. DL4C-AG-7179. The form Ex.PW-30/A refers to the subsequent PCR recordings made at 2:05, 2:11 vide VTR 69; 2:05 and 2:58 vide TGR 41 and vide VTR 70 at 3:25 and 3:26 on 22.02.2009. The recordings mention that the number of Indica gray colour car was DL3S-2192 or DL3U-AX-2192 and that the person who was injured was sitting on the rear seat behind the driver, the injured had been taken to the Safdarjung Hospital and that the injured was admitted to the Safdarjung Trauma Centre and was on ventilator. The PCR form Ex.PW-30/A, I must notice, incorrectly mentions that the victim was taken to Safdarjang Hospital, for it is a fact that Ankit was taken to Trauma Centre, AIIMS. However, this would not distract and negate the other contemporaneous recordings made in the PCR form. Perhaps information conveyed and recorded in the PCR form regarding Safdarjang Hospital was not made after verifying the place of admission but on the basis of perception and details given at the place of occurrence. Safdarjang Hospital and AIIMS are located on two sides of the same road. Pertinently, PCR form mentions name of injured as Surender/PW-8 and that he had gone to Chintu Car Point, Karol Bagh and that he was present in the Santro car when the occurrence had taken place. The aforesaid facts are corroborated and proved by woman Constable Saubhagyawati/PW-29 and Head Constable Suresh Kumar/PW-30 who were posted in Police Control Room at telephone operator on 22.02.2009 and had recorded the said information transmitted by the PCR in the course of their official duties. Even if I ignore Ex.PW-29/A and Ex.PW-30/A in the absence of certificate under Section 65B of the Evidence Act, as was admitted by the two witnesses in their cross-examination, I find that the testimony of Manveer Singh/PW-2 is credible and believable. He has given truthful version of what he had seen and had occurred.

11. The testimony of Manveer Singh/PW-2 is important and relevant on several aspects, though he was not in a position to identify the perpetrators. Firing was a directed and deliberate attack. Inference being that there was a history and antecedent facts leading to the firing. The murderous assault was by the occupants of the Indica Car bearing number 2192, who were at-least 3 or 4 in number. Lastly, there were some others who ran away from the spot.

12. Similarly, testimony of Narender Singh/PW-12 to the effect that he had picked up the deceased and taken him to the Trauma Centre, AIIMS in Car No. DL4C-AG-7179 is credible and merits acceptance. He has testified having not disclosed his name and identity at the hospital apprehending harassment. However, the police were able to track him the next day from his car number. The fact that the police had not seized his car and the car was not sent for forensic examination or he had washed his car or his friend Jagmohan was not examined are all inconsequential. These would not in any way affect the affirmative version given by him that he had taken deceased Ankit to the Trauma Centre at AIIMS. Manveer Singh/PW-2 corroborates the version by Narender Singh/PW-12, on the car number in which the deceased was taken to the AIIMS Trauma Centre immediately after the occurrence from the spot. Narender Singh/PW-12's testimony when read with testimony of other witnesses affirms that other occupants present with deceased Ankit in the Santro Car, who out of fear had fled from the spot, had not taken the deceased Ankit to the AIIMS Trauma Centre.

13. My attention was drawn to the MLC of Ankit, Ex.PW-50/A, which refers the name of the relative or friend as Satpal. Narender Singh/PW-12 had stated that he had not given his name to the hospital doctors/authorities. The MLC Ex.PW-50/A, records the patient's name as Ankit, son of unknown, resident of unknown. The time of admission is 2:20 p.m. Testimony of Dr.Harsh Vardhan/PW-50 does not clarify on how and who had given the name Ankit, as the MLC was prepared by Dr.Mukesh Kumar whose handwriting and signatures were identified by PW-50. PW-50 himself had no personal knowledge. Thus, how the name Ankit got recorded in MLC Ex.PW- 50/A has not been explained. Narender Singh/PW-12, who is a resident of Mehrauli, possibly knew the deceased for he had stated that he had identified the Santro car standing at the spot as one belonging to Monu who was from Mehrauli and in transport business. Paramjeet Singh/PW-5 is also known as Monu. It is therefore probable that the version of Narender Singh/PW-12 that he had not given the name of Ankit is incorrect. However, this will not be a ground to disbelieve Narender Singh/PW-12 or the MLC Ex. PW-50/A or the time of admission of the deceased Ankit in the AIIMS Trauma Centre being 2:20 p.m. I do not think any benefit would accrue to the appellants or doubts arise on this account and reason. It is also possible that the name Ankit may have been ascertained from some documents available which the injured was carrying. It would be wrong to assume as suggested that personal details recorded on the MLC Ex.PW were given by diseased Ankit. Parentage and address of Ankit was not mentioned.

14. I would now examine the question whether Ranjeet Singh/PW-4 is a credible chance and public witness, a good samaritan who had seen the occurrence; or is a planted witness as asserted by the appellants. Ranjeet Singh/PW-4, I may point out, had identified the appellants as the five occupants of the Indica car. There are several good reasons for me to doubt, if not disbelieve Ranjeet Singh/PW-4 coincidental presence at the place of occurrence and identification of the perpetrators. Ranjeet Singh/PW-4 has claimed that on 22.02.2009 he was going from his residence in Pahari Dhiraj to his sister's house in village Adhchini. At about 2:00 p.m., he was near Buddha Garden Gate where he had seen the Indica car being driven at a high speed and had overtaken the black Santro car when he heard a sound like a fire cracker. Two persons who had taken out their heads up to the shoulder from the left side front and rear window of the Indica car were firing. The Indica car had stopped and all the five occupants came out. In the meanwhile, the Santro car, which was stalked by the Indica car, started moving and had proceeded towards Dhaula Kuan side. The five occupants of the Indica car immediately sat in the Indica car and followed and chased the Santro car. He had also followed them. The Santro car had stopped at the traffic red light and he had seen some boys come out of the Santro car from the front and the rear side. One boy in orange colour shirt who had come out from the rear seat of the Santro car was walking with difficulty. The Indica car which had followed the Santro car reached the spot and one boy got down from the Indica car and had fired at the boy with the orange colour shirt on his head. As noticed above, PW-4 had identified the five appellants as occupants of the Indica car, including Vishnu and Sonveer as the ones who were firing. He had also stated that the injured was taken to Safdarjung hospital in the Santro Car No.DL4C- AG-7179.

15. Ranjeet Singh/PW-4 claims to have proceeded to Safdarjung Hospital after informing his name and address to the PCR officer. After arriving at Safdarjung Hospital, PW-4 did not meet the family members of the deceased or any other person. After spending ten minutes at the hospital's Trauma Centre, he left the hospital and had proceeded to his sister's place which he had reached at about 3:00 p.m. He did not narrate the aforesaid incident to his sister and no discussion took place with her.

16. Ranjeet Singh/PW-4's presence at the place of occurrence is not corroborated and affirmed by Manveer Singh/PW-2, or Narender Singh/PW-12, or any of the police witnesses who had immediately visited the place of occurrence. He is not to be seen in any of the photographs. He has deposed having given his home address to the police officers of the PCR van, who had shortly reached the spot, an assertion certainly not accepted and stated by any of the PCR officers in their testimonies or in the communications to the control room. The call records and information conveyed by the PCR vide Ex. PW29/A and Ex. PW 30/A do not affirm and corroborate his chance presence at the scene of crime. There are also discrepancies in the version given by Ranjeet Singh /PW-4 viz. the version given by Manveer Singh /PW-2, Sunil /PW-1, Paramjeet Singh /PW-5, Varun /PW-6 and Surender /PW-8. Ranjeet Singh‘s /PW-4 assertion was that the occupants of Indica Car five in number had got down when the firing had taken place near the Cold Drink Vender‘s Cart. This assertion is not deposed to and affirmed by the other witnesses.

17. Cross-examination of Ranjeet Singh /PW-4 and police witnesses reveals another aspect. PW-4 initially denied knowing the decease or his father but he subsequently accepted that he had met father of the deceased at Police Station Sadar Bazar regarding some other incident in October/November, 2010. This visit to Police Station Sadar Bazar was made pursuant to a call to him by father of the deceased regarding a road accident.

18. The visits to police station stand affirmed and established from the photograph shown to Rajiv Kumar Minocha/PW-32 in his crossexamination conducted on 24th November, 2011. PW-23 had accepted that on one or two occasions, when he happened to visit the police station, Ranjeet Singh/PW-4 had accompanied him in the same car. He identified himself in the photograph with the said witness, his brother Vijay and Inspector Arun Kumar/PW-48A. Inspector Arun Kumar/PW-48A had similarly identified himself in the said photograph being present with Ranjeet Singh/PW-4 and Rajiv Minocha/PW-32. Question therefore arises whether Ranjeet Singh/PW-4 had known the family of the deceased before or prior to the occurrence. He certainly knew the family of the deceased post the occurrence. The statement of Ranjeet Singh/PW-4 and the crossexamination would indicate and reflects that possibly this witness knew the family of the deceased from before. Ranjeet Singh/PW-4 was residing in the vicinity and within the same area where the deceased used to live i.e. Pahari Dhiraj. This area no doubt is thickly populated, albeit Ranjeet Singh/PW-4 has accepted that he and his brother were well known residents of the said area.

19. Ranjeet Singh/PW-4 has accepted in his cross-examination that he was carrying on business in Sadar Bazar, Delhi in partnership and was an owner/landlord of ancestral properties in Old Delhi, with several tenants. His wife is teaching as a lecturer in Delhi University, his two daughters were staying in Australia and his son had a foreign degree. Yet, PW-4 professed that he did not have any mobile phone and that there was no landline phone also in his office premises. It is rather difficult to accept and believe that Ranjeet Singh /PW-4 given his background and economic and social status, did not have a mobile phone and hence the contention of the appellants that the mobile number details were deliberately withheld and concealed, as these would have helped ascertain and verify whether the said witness was or was not present at the place of occurrence. Call records would have also indicated and revealed whether Ranjeet Singh/PW-4 had known the family of the deceased from before. On the said contention, I would only observe that it is somewhat difficult to accept that Ranjeet Singh /PW-4 did not have a mobile phone.

20. Ankit was not taken and admitted in the Safdarjung hospital, as deposed by Ranjeet Singh/PW-4. I have referred to the PCR form Ex.PW-30/A, which mentions that Ankit was taken to Safdarjang Hospital and observed that the said recording is factually incorrect but inconsequential for the said information was recorded on the basis of the details collected at the place of occurrence and not after verification. However, Ranjeet Singh/PW-4 had stated that he had proceeded and seen the victim in the hospital, namely, Safdarjang Hospital and not at the AIIMS Hospital. Ranjeet Singh/PW-4 is not a rustic villager but a businessman owning substantial properties whose sister was living in an area near the hospitals. He would certainly have known, like most of us, the difference between the two hospitals.

21. Ranjeet Singh/PW-4 testified having left the house of the sister at 7:15 p.m. on 22.2.2009 and on the way back had stopped at the spot where his statement was recorded at about 8:00 p.m. by Inspector S.S. Rana/PW-26. The appellants urge that the sudden appearance of PW-4 at the place of crime after 6 hours is curious and deceptive, indicative of being a planted witness. I have examined the case diary and notice that Investigating Officer S.S. Rana /PW-26 in the proceedings recorded on 22nd February, 2009, did not narrate and reproduce in detail the statement given by Ranjeet Singh /PW-4 under Section 161 of the Code. It is also apparent that the carbon paper used in relation to the page which mentions the statement of Ranjeet Singh /PW-4 is different from the carbon paper used while recording the proceedings dated 22nd February, 2009 in the case diary on the other pages. [On the question of police diary and its relevance, see Laxmi v. State,(2016) 155 DRJ 179 (DB) and Sarvesh Kumar v. State (Govt. Of NCT of Delhi), (2016) 229 DLT 640 (DB).]

22. For the aforesaid reasons, I would accept the contention of the appellants that the eye witness assertion and identification by Ranjeet Singh /PW-4 should be discarded for his presence at the spot and at the place of occurrence is clearly questionable and unreliable. I would therefore eschew testimony of Ranjeet Singh/PW-4.

23. I would now refer to testimonies of Sunil/PW-1, Paramjeet/PW- 5, Varun/PW-6, and Surender/PW-8, who, as per prosecution version, had gone to Chintu Car Point and were also present in the Santro car when they were fired upon. They have identified either all or some of the appellants as persons who were present at Chintu Car Point or in the Indica Car. I would also examine the statements made by Mahendra Singh/PW-9, Hemant/PW-10, and Gajender/PW-11. Reference, wherever required, is also made to the police witnesses.

24. Sunil/PW-1 in his court deposition recorded on 6th October, 2009, affirmed that on 22nd February, 2009 he alongwith Paramjeet/PW-5, Varun/PW-6, Surender/PW-8 and the deceased Ankit had visited Chintu Car Point. As they entered the office, Mahendra Singh/PW-9 had told them that talks had concluded and they should move out. They accordingly had waited outside the office for Mahendra Singh/PW-9. Four boys were standing outside the office. Another person, namely, accused-Rajesh Pandey came out of the office and had spoken and talked with these boys, who, it appeared, belonged to the same office. Mahendra Singh/PW-9 came out and they started their vehicle to leave the place. However, there was a motorcycle parked in front of the Santro car and on this account, altercation took place between the deceased Ankit and Varun/PW-6 on one side and the four boys who were standing outside. Sunil/PW-1, Mahendra Singh/PW-9 and Paramjeet Singh/PW-5 had intervened and separated the two sides. Sunil had testified that Sushil Arora and Rajesh Pandey were sitting on the rear seat of the Indica car when firing took place, with three boys who were earlier present outside Chintu Car Point. He had stated that perhaps there were five occupants in the Indica car. Sunil/PW-1 had also testified that prior to 22nd February, 2009 on 20th February, 2009, he, along with his uncle Mahendra Singh/PW-9, visited Chintu Car Point and had also seen Rajesh Pandey and Sushil Arora, who were present there.

25. Sunil/PW-1's deposition was recorded de novo on 8th March, 2010 and on subsequent dates. The reason being that till 6th October, 2009, the appellant-Sushil Arora alone had been put to trial as other accused were absconding. Subsequently, the other four accused persons were arrested and charge-sheeted. Consequently, Sunil/PW-1 was examined afresh. In his examination on 8th March, 2010 and on subsequent dates, Sunil/PW-1 has not referred to his purported earlier visit with Mahendra Singh/PW-9 on 20th February, 2009 and his interaction with Sushil Arora and Rajesh Pandey. This is important, for if Sunil/PW-1 had interacted with Sushil Arora and Rajesh Pandey on 20th February, 2009, I should accept the prosecution version that the said witness was well acquainted and had sufficient opportunity to interact with the two appellants - Sushil Arora and Rajesh Pandey. Noticeably, Sunil/PW-1 in his statement recorded on 6th October, 2009 did not talk of presence of three or four boys at Chintu Car Point on 20th February, 2009, who later on 22nd February, 2009, were statedly present at the same place and in the Indica car and had fired. R.K. Gauba, J. in his judgment has pointed out that statement of Sunil/PW-1 recorded on 6th October, 2009 can be read in evidence against Sushil Arora for he was represented and had been chargesheeted and was on trial on the said date. I would not place reliance and accept the statement of Sunil/PW-1 recorded on 6th October, 2009 with reference to the purported visit to Chintu Car Point with Mahendra Singh/PW-9 on 20th February, 2009 for the reasons indicated below.

26. Even on 6th October, 2009, Sunil/PW-1 had accepted, he had come to know Sushil Arora by his name only on 22nd February, 2009 and not on 20th February, 2009. In case Sunil/PW-1 had interacted and was present with Mahendra Singh/PW-9 at Chintu Car Point on 20th February, 2009, he would have known and identified appellant Sushil Arora by his name. This position was affirmed by Sunil/PW-1 in his cross-examination on 10th March, 2010, when the witness deposed that prior to the date of the occurrence, i.e., 22nd February, 2009, he had not met or seen appellant-Sushil Arora. He had not been introduced to him by his uncle Mahendra Singh/PW-9, nor did he have any talk with Sushil Arora. He subsequently, i.e. after the incident, came to know the name of the appellant - Sushil Arora, from his uncle Mahendra Singh/PW-9. Sunil/PW-, 1 as per his own statement, on 22nd February, 2009 had merely peeped into the office of Chintu Car Point and was asked to move out by his uncle Mahendra Singh/PW-9. Another important aspect emerging from the statement of Mahendra Singh/PW-9 is that by the time Sunil/PW-1 and others in Santro car had arrived at Chintu Car Point on 22nd February, 2009, discussion with Sushil Arora in the presence of accused Rajesh Pandey and Pushkar Raj, who has deposed as DW-6, had ended in a settlement.

27. It is difficult to accept that Sunil / PW-1 was present in the detailed interaction of Sushil Arora on 20.2.2009 with Mahindra Singh/PW-9, yet he did not know him and was not in a position to identify him by his name. This ex facie appears to be implausible. It would as a sequitor follow that Sunil/PW-1 did not personally know Sushil Arora by his name prior to the incident. I would accordingly hold that his name, i.e, Sushil Arora's name, though mentioned in Ex.PW-1/A, was told to Sunil/PW-1 by Mahendra Singh/PW-9.

28. R.K. Gauba, J. in his judgment has affirmatively concluded that there was acrimony and dispute, and threats were extended by Rajesh Pandey during the said discussion. Gita Mittal, J., on the other hand, has referred to the testimony of the witnesses including Sunil/PW-1 to show that there was a dispute on the question of re-payment of Rs.10 lakh, but the same was amicably resolved, albeit there was an altercation between Varun/PW-6 and deceased Ankit with the boys in the parking lot on account of the motorcycle which was parked in front of the Santro car, which had blocked their way. The assertion is that three or four boys, who were present there had subsequently followed the Santro car in the Indica car and fired.

29. In other words, enunciation by the appellants-Sushil Arora and Rajesh Pandey is that the occurrence and brawl involving Varun/PW-6 and deceased Ankit which took place outside Chintu Car Point had led to the firing and they have been falsely implicated on the basis of supposition and perception of the witnesses, who have stated that appellant Sushil Arora and Rajesh Pandey were involved and were instrumental and responsible for the firing. They were not present in the Indica car.

30. Before examining testimonies of Paramjeet/PW-5, Varun/PW-6 and Surender/PW-8, I would prefer to refer to the solemn statements of Mahendra Singh/PW-9, Hemant/PW-10 and Gajender/PW-11, for clarity on what had transpired outside Chintu Car Point, and on identity and presence of the appellants Sushil Arora, Rajesh Pandey, Hemant Garg, Vishnu and Sonveer, as deposed by them.

31. Mahendra Singh/PW-9 in his deposition has testified that he had given a loan of Rs.10 lakh to appellant-Sushil Arora in June or July, 2008 and Sushil Arora had given two blank cheques without the name of the payee of Rs.[5] lakh each. Subsequently, his name was written by one Saroj. Sushil Arora had agreed and paid interest @ 2% per month, but from January, 2009 interest was not paid. Mahendra Singh/PW-9's daughter's wedding was scheduled and held on 14th February, 2009 and after the wedding, he along with his nephew Sunil/PW-1 had visited the office of Sushil Arora at Chintu Car Point, Pusa Road, where accused Rajesh Pandey and his brother Pushkar Raj were also present. They were asked to come back after two days. On 22nd February, 2009, he had visited the office of Sushil Arora with his cousin Sudhir, Gajender and Hemant. Rajesh Pandey was present there along with 4-5 other boys, who were standing outside the office. Initially, appellant-Sushil Arora had expressed inability to re-pay, but finally there was an agreement and settlement with Sushil Arora agreeing to re-pay the loan @ Rs.[2] lakh per month without interest. Rajesh Pandey in the discussion had stated that Mahendra Singh/PW-9 was trapped and he should do what they had directed - "Tu Fasa Hua Hai Jaisa Hum Kahte Hai Vaisa Maanja". PW-9 had then called Sunil/PW-1 on his mobile phone and had asked him to come with 3-4 associates as appellant-Sushil Arora did not intend to pay any money. Thereupon, Sunil/PW-1 had come along with others, namely, deceased Ankit, Surender/PW-8, Varun/PW-6 and Paramjeet/PW-5. Sunil/PW-1 came inside the office and was told to go and wait outside as talks were going on. Subsequently, Mahendra Singh/PW-9, Sudhir, Gajender/PW-11 and Hemant/PW-10 came out of the office and had asked Sunil/PW-1 to leave. Thereupon, quarrel took place between deceased Ankit and four boys standing outside the office as a motorcycle was parked in front of their Santro car. PW-9 had intervened and separated the two sides. Mahendra Singh/PW-9, however, could not identify whether appellants Hemant Garg, Sonveer and Vishnu were amongst 3-4 boys involved in the quarrel. In his cross-examination, PW-9 has accepted that he had developed family relationship with appellant Sushil Arora, who was invited to his daughter's wedding. He has stated that Sunil/PW-1 on 22nd February, 2009 had come inside the office for a moment and was sent out immediately. In his cross-examination, Mahendra Singh/PW-9 accepted that in his statement under Section 161 of the Code, he had not stated the exact words attributed to Rajesh Pandey as quoted above. He has also accepted that talks/discussion had concluded with appellant-Sushil Arora agreeing that he would pay Rs.10 lakh. They were served tea and the entire discussion was cordial except for exchange of the aforesaid words.

32. Hemant/PW-10, who was present along with Mahendra/PW-9, Sudhir and Gajender/PW-11 at Chintu Car Point, had identified appellant Sushil Arora and that the talks had concluded between him and Mahendra Singh/PW-9. However, this witness could not recollect the exact month, and had stated it was the 22nd day and a Friday. After two days, PW-10 had again visited Chintu Car Point with Mahendra Singh/PW-9, Gajender/PW-11 and Sunil/PW-1. At that time, there was an exchange of words between appellant Sushil Arora and his brother Puskar Raj, DW-6 on one side, and Mahendra Singh/PW-9 on the other. Appellant Rajesh Pandey was also present and had threatened. Appellant Sushil Arora had agreed to pay the principal amount without interest. Three-four boys were standing outside Chintu Car Point and Rajesh Pandey was in constant touch and conversing with those boys, who were coming in and going out of the office. In the meanwhile, Sunil/PW-1, deceased Ankit, Paramjeet/PW- 5 and another boy whose name PW-10 could not recall also came to Chintu Car Point and were asked to stand outside the office. There was a quarrel between the boys who were standing outside the office and Sunil and his boys, which they had quelled. They had left Chintu Car Point in two separate cars with Sunil/PW-1 and other boys going in the black Santro car. They had reached Hyat Regency, Bhikaji Cama Place, when Mahendra Singh/PW-9 had received a telephone call from Sunil/PW-1 that someone had fired on them and Ankit had suffered bullet injury. He identified Vishnu and Sonveer, who were present in the Court, not by name, albeit as those who were present outside the office of Chintu Car Point on the date of occurrence. In his cross-examination, Hemant/PW-10 has accepted that talks had concluded in a settlement on 22nd February, 2009 and only 4 persons were present in the office, whereas four boys, namely, Sunil/PW-1, Ankit etc. were present outside. The quarrel and tiff outside Chintu Car Point had lasted for 2-3 minutes. Except Sunil/PW-1, who had entered the office for just one minute and was asked by Mahendra Singh/PW-9 to stay outside, others, namely, deceased Ankit, Paramjeet/PW-5 or their friends had not come inside the office.

33. Gajender Singh/PW-11 has similarly testified about his visit with Mahendra Singh/PW-9, Hemant/PW-10 and Sudhir to the appellant Sushil Arora's office at Chintu Car Point on 22nd February,

2009. Four-five boys were standing outside the office. Appellant- Sushil Arora along with his brother Pushkar Raj/DW-6 and one or two persons, whose names he did not remember, were present in the office. Appellant-Rajesh Pandey was sitting inside the office and had stated that "they did not know him" and that "he was Rajesh Pandey". Talks had ended in a settlement with appellant-Sushil Arora agreeing to pay the principal amount without interest in monthly instalments of Rs.[2] lakh each. They had got up and moved out, when there was a quarrel between deceased Ankit and Varun/PW-6 on the one side and the four boys, who were standing outside, on the issue of re-moving the motorcycle. They had by then sat in the car. They came out and got the two groups separated. Subsequently, they had left and had reached Hyatt Hotel, when Mahendra Singh/PW-9 received a telephone call from Sunil/PW-1 about the firing by occupants of an Indica car. He identified Sonveer and Vishnu, who were present in the Court, as two amongst the 4-5 boys, who were present outside Chintu Car Point. In his cross-examination, PW-11 had accepted that only he and Mahendra Singh/PW-9 had gone inside the office of Chintu Car Point, which gives an impression that Hemant/PW-10 had not gone inside. However, I am not inclined to accept the said version in view of the earlier statement of PW-11 that Hemant/PW-10 had gone with them to Chintu Car Point and testimony of Hemant/PW-10 and Mahendra Singh/PW-9. He has accepted that talks inside Chintu Car Point had ended in an amicable settlement and there was no quarrel inside Chintu Car Point. Further, only Sunil/PW-1 had come inside the office but he was immediately asked to go outside by Mahendra Singh/PW-

9. Others, who had come with Sunil/PW-1, had not come inside the office.

34. Thus, Hemant/PW-10 and Gajender/PW-11 had identified appellants Sonveer and Vishnu as being present outside Chintu Car Point.

35. This brings us to the statement on oath of Paramjeet Singh/PW- 5 on the question of identity of the accused present at Chintu Car Point on 22nd February, 2009 and in the Indica car, which had fired on the Santro car. PW-5 had correctly identified appellants Sushil Arora and Rajesh Pandey as well as Sonveer, Vishnu and Hemant Garg and stated that they were present in the Indica car which had fired. He had identified Sonveer, Vishnu and Hemant Garg, whose names he came to know later on, as persons present outside Chintu Car Point. He had seen Varun/PW-6 having a physical brawl with the three boys. Ankit got down from the car and had proceeded towards them. They also got down from the vehicle and had separated Varun/PW-6 from the three boys. The brawl had lasted for 1-2 minutes. I would not doubt presence of Paramjeet Singh/PW-5 for the Santro car bearing number DL2F-FK-0002 belonged to him and he was statedly driving the said car. His presence has been deposed to and affirmed by other witnesses, namely, Sunil/PW-1, Varun/PW-6, Surender/PW-8, Mahendra/PW-9, Hemant/PW-10 and Gajender/PW-11.

36. Paramjeet/PW-5 claims that he had gone inside the office and was asked by Mahendra Singh/PW-9 to wait outside. However, I would not read the said version of PW-5 as a statement that he had seen appellants Sushil Arora and Rajesh Pandey inside Chintu Car Point. This assertion would reflect that he was deposing on the basis of what was stated to him by Sunil/PW-1 and is an overstatement. In his cross-examination, PW-5 was confronted with his statement under Section 161 of the Code marked Ex.PW-5/D[1], wherein it was not recorded that he had not gone inside Chintu Car Point. Mahendra Singh/PW-9, Sunil/PW-1, Hemant/PW-10 and Gajender/PW-11 have deposed that only Sunil/PW-1 had come and peeped inside the office and was asked to stand outside by PW-9. We shall subsequently deal with the failure of PW-5 to identify accused Hemant Garg in the Test Identification Parade on 26th August, 2009 and the effect thereof on the dock identification of Hemant Garg as the driver of the Indica car.

37. I would also discount the version of PW-5 that he had seen the Indica car arrive outside Chintu Car Point for this fact is not deposed to by any other witness, Sunil/PW-1, Varun/PW-6, Surender/PW-8, Mahendra Singh/PW-9, Hemant/PW-10 or Gajender/PW-11. This fact is also not recorded in the statement given by PW-5 under Section 161 of the Code marked Ex.PW-5/D[1] as is clear from the crossexamination of PW-5 on 20th April, 2010.

38. PW-5 has testified that appellant Sushil Arora and Rajesh Pandey were travelling in the rear seat of the Indica car and had uttered the words "Maro salo ko" and used abusive language. This has not been testified by any other witness. I would treat this version as another exaggeration made by PW-5 in order to implicate appellants Sushil Arora and Rajesh Pandey. On the question of presence of appellants Sushil Arora and Rajesh Pandey in the Indica car, I have subsequently examined and considered the evidence and material on record.

39. Paramjeet/PW-5 has stated that Mahendra Singh/PW-9 was travelling in "Verna" car, whereas other witnesses have described the car being used by Mahendra Singh/PW-9 as Esteem. This minor variation, in my opinion, cannot be a ground to disbelieve and reject the entire testimony of Paramjeet Singh/PW-5. "Verna" and "Esteem", it is common knowledge, are mid segment cars manufactured by two different companies. Minor confusion as to the name of the car cannot be a ground to completely reject the testimony of PW-5.

40. Varun/PW-6 in his deposition has affirmed that he along with Sunil/PW-1, Paramjeet Singh/PW-5, Surender/PW-8 and deceased Ankit on 22nd February, 2009 had gone to Karol Bagh and had reached Chintu Car Point in Santro car and were standing outside. After some time Mahendra Singh/PW-9 came out of the Chintu Car Point office and they were to leave the place. Varun/PW-6 and deceased Ankit on one side and the four accused, namely, Rajesh Pandey, Vishnu, Sonveer and Hemant Garg, who were present in the Court, had a brawl over the issue of taking out of vehicle. Mahendra Singh/PW-9 had intervened. Five of them thereafter left in the Santro car and had proceeded towards Budha Garden (Budha Jayanti Park) with PW-5 at the driver's seat. They had stopped near a cold drink cart to buy water and cold drink. In the meanwhile, one Indica car silver colour bearing number 2192 had overtaken them and fired shots at their vehicle. One shot had pierced the fixed small glass behind rear side window glass and hit Ankit below his armpit as he was sitting on the right side rear seat of the car. They moved their vehicle but had to stop at the traffic light as there was a traffic jam. They took their vehicle on the left side of the road, got down and started running. Sonveer and Vishnu were identified by Varun/PW-6 in the Court as the occupants of the Indica car who had fired at them. These two had taken out the upper halves of their bodies from the Indica car while firing at them. At a traffic light, one bullet had hit Ankit and another had hit Surender/PW-8. Ankit had fallen near the Santro car. Varun/PW-6 had also identified accused Hemant Garg as the driver of the Indica car, not by name, as he was not familiar with his name, but by identifying him. In his examination in chief, PW-6 had indicated that there were two more persons in the Indica car, but he was unable to see them. Varun/PW-6 was declared hostile and in his crossexamination by the Additional Public Prosecutor, he accepted that Mahendra Singh/PW-9 had gone to Chintu Car Point to collect Rs.10 lakh. Further, he had come to know the name of accused Rajesh Pandey as he was being addressed as such and he had seen him coming in and going out of the Chintu Car Point office and communicating with other persons present outside. He then accepted that Rajesh Pandey was present in the Indica car with accused Vishnu, Sonveer and Hemant Garg. However, he did not identify and state that appellant Sushil Arora was present in the Indica car with the accused persons, though, he was confronted with his statement under Section 161 of the Code dated 8th July, 2009 marked Ex.PW-6/PB. In his cross-examination on behalf of accused-Rajesh Pandey, Varun/PW-6 has accepted that no person from the office of Chintu Car Point had come out when there was physical scuffle, which had lasted around 5-7 minutes. None of them had received any physical injury in the altercation outside Chintu Car Point. He had difficulty in getting down from the Santro car as the left side door had got stuck against a tree. PW-6 in the cross-examination, had testified that there were two other persons in the Indica car but he could not identify them. On Court question, PW-6 admitted that he had no prior acquaintance with Sonveer and Vishnu and had seen them at Chintu Car Point along with others.

41. Surender/PW-8, the injured, has testified being present outside Chintu Car Point, which place they had visited as Mahendra Singh/PW-9 had to collect Rs.10 lakh from a person named Sushil Arora. Three-four other persons were present outside the office. Mahendra Singh/PW-9 came out at about 1.00-1.15 P.M. and thereafter, they decided to leave. As there was a motorcycle in front of the Santro car, deceased Ankit and Varun/PW-6 had asked 3-4 boys to move the motorcycle. There was an exchange of words and thereafter a physical altercation between them. Mahendra Singh/PW-9 and Sunil/PW-1 had intervened and got them separated. They, namely, Sunil/PW-1, Varun/PW-6, Paramjeet/PW-5 and he, i.e., Surender/PW- 8 along with deceased Ankit sat in the Santro car and had proceeded towards Budha Garden side and had stopped to buy cold drink/water from a cart vendor. In the meanwhile, an Indica car overtook them from behind. Bullets were fired and one bullet had pierced the small fixed glass near the rear right side door of the Santro car and had hit Ankit below his armpit. Two boys in the Indica car had firearms and had fired. One boy, who was sitting on the left side, had taken out is upper body. The second boy was on the rear left side window seat in the Indica car. There were 4-5 occupants in the Indica car. He could not give their names, but had identified Sonveer and Vishnu as the two boys who had fired. He also identified Hemant Garg as the person who was driving the Indica car. PW-8 in his examination in chief was somewhat ambivalent as he did not specifically depose on the presence of Hemant Garg amongst the boys with whom there was a quarrel outside Chintu Car Point. However, in his cross examination by counsel for Hemant Garg on 08/02/2010, PW-8 categorically denied the suggestion that the appellant Hemant Garg was not present at Chintu Car Point, or he was not driving the car at the time of incident or that he had wrongly identified him at the instance of the police. Surender/PW-8 had stated that there were one or two more boys in the Indica car but he was unable to see them and, hence, could not identify them with certainty. To save themselves, they had driven away but had to stop at the red light. They got down from the car and ran. A firearm bullet had hit him below his waist. Ankit was sitting on the rear seat and had got down and was hit by a bullet.

42. The Appellants submit that Surender/PW-8 was not an injured eye witness and has been introduced and engrafted. He was not present and was never injured or the injury was self-inflicted. Referring to the cross-examination on behalf of Vishnu and Sonveer conducted on 07.09.2010, it was submitted that the conduct of Surender/PW-8, who claimed profuse and extensive bleeding throughout and while travelling by bus, but did not take immediate and available medical aid and assistance at AIIMS and had purportedly proceeded to the office at Mehrauli and then came to AIIMS for treatment, was implausible and unnatural conduct. My attention was also drawn to the forensic reports/Exh. HC-A, Exh. HC- B, and Exh. HC-C, as per which the clothes worn by Surender/PW-8 did not have the bullet hole or charring. Further, as per the MLC of Surender/PW-8 marked Ex.PW-39/A, there was charring around the wound indicative that the firing had taken place from a close range. Lastly, the MLC of Surender/PW-8, Ex. PW-39/A, records the place of occurrence as Connaught Place and not T-Point, Simon Bolivar Marg.

43. It is correct that the clothes worn by Surender/PW-8 were not produced and as per the forensic report Exh. HC-C, no bullet hole was found, but this is explainable in view of the place of the wound/injury. Surender/PW-8 was hit by the fire arm bullet on his left side below waist near his hip. Thus, absence of hole etc. on the clothes could be explained. Similarly, description of the place of occurrence or the site of crime as Connaught Place as recorded in the MLC Ex.PW-39/A cannot be a ground to disbelieve Surender/PW-8. Connaught Place was not the exact location, but was not too far from the place of firing. Surender/PW-8 was a conductor working with Sunil/PW-1. He was not a man of means and did not possess even a mobile phone. He had gone to Chintu Car Point as per the instructions given by Sunil/PW-1 as his employer's uncle Mahendra Singh/PW-9 had given a loan of Rs.10 Lacs which was to be recovered. Description would well reveal and indicate lack of knowledge and awareness of road names, location, and more importantly absence and lack of collusion and deliberation between him and others present. It discloses spontaneity.

44. Surender/PW-8 was certainly admitted to the Trauma Centre of AIIMS as per MLC Ex.-PW39/A on 22.02.2009 at 4:00 p.m., i.e. nearly two hours after the occurrence. PW-8 had a round wound over his left hip region about 1 centimetre in diameter with some charring around the wound. Charring would it is submitted indicate firing from a close range, which was possible. It is apparent that the projectile had not entered in the body of PW-8 and had grazed past his hip, giving the charring effect. Charring is not contrary and antithesis of the prosecution version or PW-8's testimony. PW-8 was examined by Dr. Anindaya/PW-39 who has also deposed about the tenderness around the injury and has stated that the patient could remain alive for three hours after sustaining this kind of injury. Police Control Room records Ex. PW29/A and Ex. PW 30/A also affirm PW-8's admission in the hospital and that he had suffered injury in the occurrence. Assertion by Surender/PW-8 that he was bleeding profusely yet had travelled in bus as from place of occurrence to Mehrauli, etc. was not made in the examination-in-chief. It is only in the cross examination that Surender/PW-8 had stated that he was bleeding profusely while running to catch the bus and was bleeding even when he had boarded the bus. On further cross-examination, PW-8 had professed that there was blood on the seat of the bus and his clothes were soaked in blood but nobody asked him why was he bleeding. However, PW-8 had accepted that the bleeding had stopped by the time he had reached AIIMS. It is difficult to perceive that the bleeding would stop on its own without medical intervention. I would hold that Surender/PW-8's version on bleeding is an exaggeration and an overstatement made in his cross-examination and this part has to be discarded. The attempt under cross-examination was to magnify and overstate the extent of injury suffered. PW-8 did stretch and exaggerate, but this would not be a ground to propound and hold that he was a planted witness.

45. As per the serological report Ex.HC-C[2], human blood of group 'A' was found on Ex.C-14(b) i.e. underwear statedly worn by Surender/PW-8. Similarly, human blood was found on the pant worn by Surender/PW-8, but blood group could not be ascertained for want of reaction. Blood group of Ankit was also 'A' but this would not mean, as asserted, that the human blood found on the pant and blood of group 'A' found on the underwear of Surender/PW-8 must have been of Ankit.

46. I would therefore reject the appellants' contention that Surender/PW-8 was not present in the Santro car at the time of the occurrence and the injury as reflected in the MLC Ex.39/A was either not there or was self-inflicted. These contentions are untenable and unacceptable.

47. Before I specifically examine evidence, ocular and documentary, against each of the appellants, I would deal with some of the contentions relating to First Information Report (FIR, for short), inquest report, and common intention.

48. I begin by referring to the FIR/Ex.PW25/A. Sunil/PW-1 in his complaint marked Ex.PW-1/A, which was converted into the FIR marked Ex. PW25/A, refers to the presence of Sushil Arora and Rajesh Pandey at Chintu Car Point and that 3-4 boys, who were standing outside Sushil Arora's office and were coming in and going out of the office. The complaint Ex. PW 1/A records that these boys were also present on 20th February, 2009, when Sunil had visited the same office with his uncle Mahendra Singh/PW-9 and had met Sushil Arora and Rajesh Pandey. While taking out the car on 22nd February, 2009, Varun/PW-6 had an altercation with 3-4 boys as a motorcycle was obstructing their car and there was a scuffle between them. Sunil had intervened and thereafter they drove away. The complaint names Sushil Arora and Rajesh Pandey as occupants of the Indica car with three other men with whom altercation had taken place and that both Sushil Arora and Rajesh Pandey, were present in the Indica car at the time of firing, along with three men. Names of the other occupants in the Indica car were not stated.

49. It was submitted that the FIR should have been registered on the basis of the complaint or statement made by Manveer Singh/PW-2, who was the first one to have called the Police Control Room from his mobile and had informed them about the firing and involvement of grey colour Indica car bearing number 2192. It was submitted that Inspector S.S. Rana/PW-26 and Inspector Jagat Singh/PW-47 of Police Station-Chanakya Puri had deliberately refused to accept Manveer/PW-12 presence at the place of occurrence, though this stands recorded in the call records and accepted by Manveer Singh/PW-2. I would accept that Manveer Singh/PW-2 was present at the spot and would have met Inspector S.S. Rana/PW-26 and Inspector Jagat Singh/PW-47. However, it would not be a good ground or justification to discard and treat the FIR/Ex.PW-25/A based on Sunil's/PW-1's statement marked Ex. PW-1/A, as invalid and bad in law. Police had to move with alarcity and both Inspector S.S. Rana/PW-26 and Inspector Jagat Singh/PW-47 had promptly proceeded to Trauma Centre, AIIMS to ascertain facts and get information and know well being of the victim. This was solicitous and should be appreciated. Till then, the police was unaware of the name and identity of the victim, his condition and other details. On reaching the hospital they had met Sunil/PW-1, who was with the victim deceased-Ankit in the Santro car. There was nothing wrong or illegal in the Investigating Officer Inspector S.S. Rana/PW-26 recording the statement, Ex.PW-1/A of Sunil/PW-1 and thereafter converting the same into the FIR, Ex.PW-25/A.

50. There is divergence of opinion between Gita Mittal J. and R.K. Gauba, J., on the alleged delay in the registration of FIR and on failure to lead evidence that the FIR upon registration was duly communicated and sent to the Magistrate.

51. It emerges that the firing incident had taken place at about 2:00 p.m. and Ankit Minocha was thereafter admitted to Trauma Centre at AIIMS as per MLC/Ex.PW-50/A at 2:20 p.m.. FIR as per the prosecution version was recorded on the basis of the statement made by Sunil/ Ex.PW-1/A at Police Station Chanakya Puri, at about 19:00 hours, after a time gap of about 5 hours. This time gap, I would observe, is not substantial. Evidence reveals that the police had proceeded and acted swiftly and with adroitness in reaching the place of occurrence and had then proceeded to Trauma Centre, AIIMS. Recording of the statement (Rukka), sending of the Rukka to the Police Station and thereafter registration of the FIR would necessarily take time. ASI Om Prakash /PW-25 had recorded the said FIR on the basis of Rukka and thereafter had sent the said Rukka to Inspector S.S. Rana/ PW-26. He proved the daily diary entry bearing DD No.21A and 22A marked Ex. PW-25/B and Ex-PW25/C. The said Rukka was brought by Constable Satpal /PW-15, who had joined investigation with Inspector, SHO Jagat Singh /PW-47 and had at first reached the traffic light at Budha Garden, Ridge Road and thereafter proceeded to AIIMS Trauma Centre. Cross-examination of Constable Satpal/ PW- 15 which is fairly in detail and extensive, would reveal that he was not specifically confronted and questioned on the ante timing of the FIR or the delay. In the cross examination, the suggestion given was that on the same day itself the witness had visited Chintu Car Point at Pusa Road and had met Pushkar Raj/ PW-6. A clear indication that the statement of Sunil marked Ex.PW-1/A and the FIR had named Sushil Arora and had referred to Chintu Car Point. ASI Om Prakash/ PW-25 was hardly cross-examined and no effective suggestion was given to show and establish that the FIR was ante timed. I would therefore agree that the five hours delay in registration of FIR given the aforesaid facts and circumstances with events happening at a fast pace, cannot be termed as belated. However, I would accept the argument and contention of the appellants that even if the FIR was not ante timed and was not delayed, the question of the truth and falsity of the assertions made therein is a separate aspect.

52. On the third aspect again I would agree with the view taken by R.K. Gauba J. in his judgment that assuming that there was delay in compliance with Section 157(1) of the Code in forwarding the copy of FIR to Illaqa Magistrate, this would not demolish or denounce the trustworthy evidence on record, as has been held in Munshi Prasad Vs. State of Bihar, (2002) 1 SCC 351 and Bhajan Singh @ Harbhajan Singh and Ors. Vs. State of Haryana, (2011) 7 SCC 421. There is no rule of law that the prosecution must fail and result in acquittal if the prosecution fails to establish receipt of the report under Section 157 (1) of the Code at the end of the Magistrate. Similarly, I would record and reject that the delay in preparation of inquest papers in the facts of the present case would help the defence and result in acquittal. Homicidal death of Ankit, time of occurrence and death, cause of death and that the perpetrators had fired from the Indica car, are facts beyond realm of debate and doubt.

53. I must reject the argument of Hemant Garg, Rajesh Pandey and Sushil Arora that Section 34 of the IPC would not be attracted and applicable to the occupants of the Indica car, for mere occupation of the car would not show and establish common intention. In the facts and circumstances of the present case, the said contention is flawed and should be outright rejected. This is a case wherein the occupants of the Santro car had left and driven away from Chintu Car Point. They had stopped to have water and cold drink from a cart parked near the Buddha Jayanti Park. The said Santro car, however, was pursued and waylaid by an Indica car, which was being driven at a great speed. Two of the occupants, as noticed below, were armed with firearms. They overtook the parked Santro car standing to purchase cold drink/water. Occupants from the front and rear window on the left side of the Indica car had fired bullets at the occupants of the Santro car. The occupants of the Santro car, to save themselves, drove and moved ahead but could not escape and had to stop in view of the congestion at the red light. In the process, a minor accident took place. Indica car followed the Santro car and thereafter, the second round of firing took place. As per the statement of Manveer Singh/PW-2, two or three occupants of the Indica car got down and had fired. Someone at that time was at the steering wheel of the Indica car. The facts would reveal that this is a case wherein the Indica car with two persons armed with weapon, had deliberately and intentionally followed the Santro car with a desire and purpose to cause injuries, had fired. It is not a case wherein there was a sudden quarrel and fight without common intent of other occupants of the Indica car, one or more had brandished the firearms, which were in their custody, to fire and kill one and injure a third person. Regardless of whether the other occupants of the car had made any statement or not, the impelling facts would disclose a concerted and deliberate intent to follow the Santro car and fire at the occupants of the said car. Driver of the Indica car, because of his overt act in driving the car, would be attributed with common intention. Others present in the car, even if not involved in the firing, would be attributed for their common intention, for their presence in the car would indicate and reflect this intention, knowing the prior animosity be the money dispute or quarrel or brawl, which had taken place shortly before.

54. At this stage I would also take on record the dates on which each appellant was arrested and dates when the chargesheets were filed. S.S. Rana/ PW-26 had arrested Sushil Arora on 24th February,

2009. Charge-sheet against him was filed by the prosecution on 23rd May, 2009 and the case was committed to the Court of Sessions vide order dated 4th August, 2009. Hemant Garg, Sonveer, and Vishnu were arrested on 10th August, 2009, 27th August, 2009 and 29th September, 2009 respectively. First supplementary charge-sheet was filed against them on 24th October, 2009. Rajesh Pandey was the last person to be arrested on 11th November, 2009. Consequently the second supplementary charge-sheet was filed on 2nd January, 2010. Charges against Sushil Arora were framed on 22nd August, 2009, whereas charges against other four appellants were framed on 29th January,

2010.

55. I would now examine evidence against each of the appellants on their presence in the Indica car and whether prosecution has been able to establish their case against each one of them, beyond doubt. As noticed above, names of the appellants Sushil Arora and his friend Rajesh Pandey figure in the FIR and were mentioned by Sunil/PW-1 in his statement marked Ex. PW-1/A. Names of accused Sonveer and Vishnu or for that matter Hemant Garg, did not figure in the FIR or the statement marked Ex. PW-1/A. Hemant Garg, Sonveer, and Vishnu

56. Appellant-Hemant Garg is the registered owner of Indica car bearing number DL 3CAX 2192, a fact accepted by him in his statement under Section 313 of the Code and by his wife Shalini who had appeared and deposed as defence witness DW-2.

57. Hari Shah/PW-31 from the Transport Department, Saket had stated that car bearing No.DL-3CAX 2192 was registered in the name of the appellant, Hemant Garg. He had produced computerized print out which were marked Ex.PW-31/A. No doubt PW-31 in his crossexamination has stated that the request from the police to provide the details was received on 23rd May, 2009, and photocopy of the said request has been exhibited as Ex.PW-31/DA, there is sufficient material on record to show that the police had started investigation on the involvement of Hemant Garg immediately after the occurrence and had even visited his residence.

58. Ownership details of the said car had come to the knowledge of the police on the basis of computerised records as deposed to by Inspector Jagat Singh/PW-47, the SHO of Police Station Chanakya Puri and Inspector S.S.Rana/PW-26, who was the first Investigating Officer. Inspector Jagat Singh/PW-47, who was involved with the investigation, in his cross-examination has stated that they had visited the house of Hemant Garg, owner of the Indica car on 23rd February, 2009, which is a day before the appellant-Sushil Arora was arrested on 24th February, 2009.

59. Prosecution had filed application dated 20th March,2009 seeking issuance of non bailable warrants against Hemant Garg, which was allowed by the Metropolitan Magistrate on 24th March, 2009.Subsequently, Hemant Garg had applied for anticipatory bail vide application dated 17th April,2009, which was rejected vide order dated 20th April, 2009 passed by the Additional Sessions Judge.

60. Hemant Garg was involved in a case FIR No. 535/2002 under Sections 365,366 and 376 IPC of PS Timar Pur and having jumped bail was a proclaimed offender wanted by law. Hemant Garg surrendered in this case on 6th August,2009 and had moved an application through his wife stating, inter alia, that he wanted to surrender with a request for Test Identification Parade (TIP, for short) in the present case.

61. Inspector Arun Kumar / PW-48/A, who took over investigation of the case on 9th July, 2009 has stated that he had moved an application for TIP of Hemant Garg on 7th August, 2009 after he came to know that Hemant Garg was in judicial custody in FIR No.535/2002 Police Station Timarpur under Sections 366/377/34 IPC. The application for TIP was allowed on 10th August, 2009 by the Metropolitan Magistrate and Hemant Garg, who had appeared in muffled face, was sent to the judicial custody on being arrested in the present FIR.

62. On 26th August, 2009, TIP was conducted by Mr. Jitender Mishra, Metropolitan Magistrate /PW-35. Ranjeet Singh/PW-4 and Paramjeet Singh/ PW-5, however, failed to identify Hemant Garg vide reports Ex.PW-4/D[2] and Ex.PW-5/D[2] respectively. The prosecution accepts that two witnesses namely, Sunil /PW-1 and Surender/PW-8 had also been summoned to Tihar Jail for the TIP of Hemant Garg on 26th August, 2009. Mr. Jitender Mishra /PW-35, Metropolitan Magistrate in his testimony has not stated or confirmed about the presence of Sunil /PW-1 and Surender /PW-8 and why they did not participate in the TIP held on 26th August, 2009. Counsel for the appellant Hemant Garg has vociferously, with some merit, questioned the prosecution and their failure to conduct TIP of Hemant Garg on 26th August, 2009 by Sunil /PW-1 and Surender /PW-8. Inspector Arun Kumar/PW-48/A in his testimony has accepted that Ranjeet Singh/PW-4 and Paramjeet Singh/ PW-5 had failed to identify Hemant Garg on 26th August, 2009 and that on 27th August, 2009 another application for TIP of Hemant Garg by Sunil /PW-1 and Surender /PW-8 marked Ex.PW-49/C, was moved. However, in his crossexamination by counsel for Hemant Garg, Arun Kumar/PW-48/A has accepted that in the first application filed for TIP, which was held on 26th August, 2009, he had mentioned that the TIP of Hemant Garg was conducted by four witnesses and the said witnesses including Sunil /PW-1 and Surender /PW-8 had been directed to come for TIP. He had claimed that Sunil /PW-1 and Surender /PW-8 could not participate the TIP on 26th August, 2009 as the Metropolitan Magistrate, i.e., Mr. Jitender Mishra/ PW-35 having conducted TIP by two witnesses, had directed him to move a fresh application for remaining two witnesses. The said version given by PW-48/A is debatable. However, it is equally correct that Sunil /PW-1 and Surender /PW-8 in the TIP conducted on 28th August, 2009 before Mr. Surya Malik Grover / PW-44, Metropolitan Magistrate, had identified Hemant Garg vide Ex.PW-44/A and Ex.PW-44/A[1]. On the question of identification in the TIP proceedings before Mr. Surya Grover Malik/PW-44, Hemant Garg had stated that the TIP was conducted at the instance of the Investigating Officer to falsely implicate him as he was shown to the witness and TIP was against law as he was not asked to change his position. At the same time, undeniably, Hemant Garg had participated in the second TIP proceedings, Ex. PW-44/A and Ex. PW-44/A[1], without demur and protest. Hemant Garg was sent to judicial custody on 10th August, 2009 and even earlier was in judicial custody. Order granting police remand of Hemant Garg was passed on 29th August, 2009 after the second TIP was conducted on 28th August, 2009. If Hemant Garg had been shown to the witnesses Sunil/PW-1 and Surender/PW-8 at any time before the second TIP, he would have protested, which would have been recorded in the TIP proceedings by PW-44. It would not be therefore appropriate to per-se reject the TIP on 28th August,2009 as being dishonest, managed and inconsequential.

63. Hemant Garg was identified by Sunil/PW-1 and Surender/PW-8 in the court. Varun/PW-6 had also identified him in the court.

64. Shalini, wife of Hemant Garg, who had appeared as DW-2, has accepted that Hemant Garg was the owner of the Indica car number DL-3CAX-2192.DW-2 has claimed that her husband, Hemant Garg, did not know how to drive and they used to have a driver named Ankur. DW-2 herself knew how to drive and had produced her driving licence. Pertinently, the driver was never produced in the Court, though it was claimed by DW-2 that she used to pay Rs.3,000/- per month to the driver. As per DW-2, Hemant Garg used to have a shop of pearls etc. at Beedanpura, Karol Bagh, New Delhi. Hemant Garg in his statement under Section 313 of the Code had stated that he had given his car to Yoginder @ Vikas s/o Raj Kishore on 22nd February, 2009 for the purpose of sale as he wanted to purchase a new car. At the time of occurrence, he was at his shop at 10/2444, Beadon Pura, Karol Bagh. He did not know how to drive and his wife Shalini used to drive the car. Order dated 20th April, 2009 rejecting Hemant Garg's application for anticipatory bail, does not note any contention that Hemant Garg did not know how to drive. It however records the contention of Hemant Garg that he had given the Indica car to Yogender Yadav, but was unable to state since when. Inspector S.S. Rana in his reply dated 4th April,2009 to an application filed regarding Yogendra had stated they had interrogated him as he was in contact with Hemant Garg on telephone on the date of occurrence. Evidence of Shalini DW-2 or the version of Hemant Garg of not knowing driving or that they had engaged the driver Ankur would falter and is completely inconsistent with the testimony of the eye witnesses Sunil /PW-1, Paramjeet Singh /PW-5, Varun /PW-6, Surender /PW-8, to the effect that Hemant Garg was driving the Indica Car. Plea of alibi raised by Hemant Garg that he was not physically present at the particular place at the time of commission of the offence but was present at that point of time at another place has to be established by the accused with absolute certainty so as to exclude possibility of his presence at the place of occurrence. When the prosecution has been able to discharge their burden and establish by reliable evidence presence of an accused at the scene of crime, then the court would be slow to accept counter allegation, unless the accused adduces evidence of quality and standard that reasonable doubt would arise. Burden on the accused in such circumstances is heavy.(See Binay Kumar Singh V/s State of Bihar, (1997) 1SCC 283).

65. Submission on behalf of Hemant Garg predicated on statement of Shalini/DW-2 viz. mobile Sim No. 9999010588 and call record details,Ex. PW49/DS, as rightly observed by R.K.Gaba J. is of no help as one can use the mobile phone even while driving.

66. On the aspect of dock identification, the Supreme Court in Ashok Debbarma @ Achak Debbarma Vs. State of Tripura 2014 (3) SCALE 344 has referred to earlier case law on the subject of TIP and dock identification and has observed:

in Harbajan Singh v. State of J&K [(1975) 4 SCC 480: 1975 SCC (Cri) 545], Jadunath Singh v. State of U.P. [(1970) 3 SCC 518: 1971 SCC (Cri) 124] and George v. State of Kerala [(1998) 4 SCC 605: 1998 SCC (Cri) 1232].

21. The abovementioned decisions would indicate that while the evidence of identification of an accused at a trial is admissible as substantive piece of evidence, it would depend on the facts of a given case as to whether or not such a piece of evidence can be relied upon as the sole basis of conviction of an accused. In Malkhansingh v. State of M.P. [(2003) 5 SCC 746: 2003 SCC (Cri) 1247], this Court clarified that the test identification parade is not a substantive piece of evidence and to hold the test identification parade is not even the rule of law but a rule of prudence so that the identification of the accused inside the courtroom at the trial can be safely relied upon. We are of the view that if the witnesses are trustworthy and reliable, the mere fact that no test identification parade was conducted, itself, would not be a reason for discarding the evidence of those witnesses. This Court in Dana Yadav [Dana Yadav v. State of Bihar, (2002) 7 SCC 295: 2002 SCC (Cri) 1698] has examined the points on the law at great length and held that: (SCC p. 316, para 38) ―(c) The evidence of identification of an accused in court by a witness is substantive evidence whereas that of identification in test identification parade is, though a primary evidence but not substantive one, and the same can be used only to corroborate the identification of the accused by a witness in court.‖ So far as the present case is concerned, PW 10 and PW 13 have identified the accused in open court which is the substantive piece of evidence and such identification by the eyewitnesses has not been shaken or contradicted. The trial court examined in detail the oral evidence tendered by those witnesses, which was accepted by the High Court and we find no error in the appreciation of the evidence tendered by those witnesses." Recently, in Mohd. Sajjad @ Raju @ Salim Vs. State of West Bengal Criminal Appeal No.1953/2010 decided on 6th January, 2017, the Supreme Court has referred to an earlier decision in Lal Singh Vs. State of U.P.(2003) 12 SCC 554 wherein it has been held as under:

92. It is correct that when there is direct imperative and impelling evidence, question of motive can pale into insignificance as has been held in Bipin Kumar Mondal Vs. State of West Bengal (2010) 12 SCC 91, albeit in the present case, prosecution relies upon motive as an incriminating circumstance and material. Importantly, as per the prosecution version firing which had caused death of Ankit was in retaliation and an act of revenge. In these circumstances, motive does acquire significance and importance when we examine the question as to who were the perpetrators. In the aforesaid background, it would not be correct to ignore the occurrence outside Chintu Car Point which had resulted in a brawl, and hold that the said factum, though approved, would establish only motive and thus should be treated as inconsequential by squarely relying on eye witnesses. In the cases of direct evidence, which is credible and acceptable, failure of the prosecution to establish motive is not material, but in the facts of the present case, when veracity and credibility of the direct evidence itself is in question, motive when elucidated and relied, has to be factored and given adequate consideration.

93. There is evidence of witnesses including Mahindra Singh /PW- 9 and Gajender Singh /PW-11 that Rajesh Pandey was going in and out to meet the persons outside. Complaint Ex.PW1/A by Sunil states that boys were moving in and out of the office and not that Rajesh Pandey was repeatedly moving out to talk to them. However, even if this is accepted as correct that these witnesses have not testified on the direct involvement of Sushil Arora or Rajesh Pandey when there was a brawl and a fight outside Chintu Car Point when the Santro Car could not be moved.

94. Varun/PW-6 in his statement under Section 161 marked Ex. PW-6/6A had stated that there was a fight outside Chintu Car Point and the same boys were present in the Indica car when the firing took place at the Ridge Road near Simon Bolivar T-Point. This statement specifically refers to both Sushil Arora and Rajesh Pandey by name but does not state that both of them were present in the Indica car. However, Varun/PW-6 did blame both Sushil Arora and Rajesh Pandey for the firing.

95. Inspector S.S. Rana/PW-26 in his application dated 24th February, 2009, seeking 7 days' remand of appellant-Sushil Arora had stated that on 22nd February, 2009, there was exchange of words followed by scuffle with brick bats between the two groups and the party headed by Mahendra Singh/PW-9 had overpowered the other party and had beaten them black and blue. Thereafter, Mahendra Singh/PW-9 had left in his car. Rajesh Pandey, Sushil Arora and three others had followed the first party with a loaded pistol and had overtaken the Santro car. This application specifically mentions that three unknown persons involved in the said occurrence were yet to be arrested and pistol was also to be recovered. The prosecution version as per the charge sheet was strikingly different. Ocular evidence led and relied upon by the prosecution does not refer to any altercation and fight with direct involvement of Mahendra Singh/PW-9, or Sushil Arora and Rajesh Pandey.

96. On behalf of Sushil Arora it was submitted that he was using mobile No.9811071400 and the police has deliberately withheld the call record details including location which would indicate that he was not present in the Indica Car. Reliance is placed upon testimony of Pushkar Raj /DW-6, who had deposed to the effect that the appellant Sushil Arora was carrying mobile No.9811071400, which used to always remain with him. He had testified that Sushil Arora had left Chintu Car Point at 2:30 p.m. in the Santro Car DL 8CN 5173 for miscellaneous work and had visited the car dealers in and around Karol Bagh area and then to his father‘s house at Rohini. The fact that Sushil Arora had remained at the shop till 2:30 p.m. on 22nd February, 2009 was verified and confirmed to the police by the neighbourhood shopkeepers. However, these shopkeepers were not enlisted as witnesses and did not depose. Pertinently, neither did the defence seek their presence and appearance as witness in support of their alibi. DW-6 had remained at the shop and at about 7:45 p.m. he had spoken police officers who had visited Chintu Car Point in a Gypsy car and made enquiries from him regarding the earlier brawl and Sushil Arora. They had left after noting the name, address and phone number of Sushil Arora. On 23rd February, 2009 at about 1:30 p.m. he had received a call from police station Chanakya Puri, who had enquired about Sushil Arora. He was asked him to come to the police station with Sushil Arora. He and Sushil Arora thereafter had visited the police station Chanakya Puri where enquiries were made from them and were let off and told that they would be called again. On 24th February, 2009, he had received another call from Police Station Chanakya Puri. He and Sushil Arora, as per the directions, visited the said police station where Sushil Arora was arrested.

97. Sushil Arora had also summoned Israr Babu, Alternate Nodal officer Vodafone, who had deposed as DW-5 and had proved call record details of mobile No.9811071400 for the month of February,

2009. The tower location charts were marked as Ex.DW-5/A and DW-5/C respectively. He testified that mobile No.9811071400 was issued in the name of Sushil Arora and proved the screen shot of the details as Ex.DW-5/D. The location chart indications from 1:30 to 2:30 p.m. on 22nd February, 2009 was marked X-1 to X-16; and the certificate given under Section 65B of the Evidence Act bearing signatures of DW-5 was marked as Ex.DW-5/B.

98. Pushkar Raj /DW-6, however, in his cross-examination had stated that there were five mobile phones in his family as on 22nd February, 2009 and he did not remember these mobile phone numbers, except 9213904572. He was cross-examined but denied the suggestion that Sushil Arora was not carrying with him mobile No.9811071400 on 22nd February, 2009.

99. The prosecution does not rely upon the call record details and location chart as evidence which would implicate Sushil Arora. The call record details of mobile No.9811071400 and the location chart would to some extent support the case of Sushil Arora, but I cannot with certainty hold that it is proved and established beyond doubt and debate that mobile No.9811071400 was with Sushil Arora at the time of occurrence, in spite of the testimony of Pushkar Raj /DW-6. The said witness has accepted that there were as many as five mobile phones in his family, details of which (except one number) were not forthcoming. The call record details of all these numbers and location chart was not available. I would, in these circumstances, not hold that the call record details and location chart of mobile No.9811071400 would absolve and contra-indicate presence of Sushil Arora in the Indica Car at the time of firing. The alibi, which is solely based upon testimony of Pushkar Raj /DW-6 and Israr Babu/ DW-5 is not fully and affirmatively established beyond doubt.

100. In Tomaso Bruno Vs. State of U.P. (2015) 7 SCC 178, it has been observed that the best evidence that could have thrown a better light on the facts and circumstances and which was available, but was not collected and consequently withheld by the prosecution, was a factor which could be taken into account by the court by applying presumption under Section 114 (g) of the Evidence Act. This position/ratio would apply when the evidence produced is shaky and debatable. Evidence adduced both oral and documentary must be first examined to ascertain its veracity and whether it proves the case beyond reasonable doubt. Multiplicity and duplication of evidence is not required. However, assertion of the prosecution in the present case in the context of Sushil Arora and Rajesh Pandey is debatable and therefore failure or witholding a relevant consideration. In this context failure to adduce relevant evidence and lapses in investigation assume relevance and importance.

101. I would accept that the prosecution/investigation was not able to ascertain from Sushil Arora upon arrest on 24th February, 2009, names of both Sonveer and Vishnu as occupants in the Indica car. Police had been able to ascertain the name of Hemant Garg by 23rd February, 2009 being the registered owner of the Indica car. This is apparent from the case dairy wherein name of Vishnu finds mentioned for the first time on 25th February, 2009 and the name of Sonveer was recorded for the first time in May, 2009. This apart, Inspector Jagat Singh/PW-47, who was the SHO and was involved in investigation with Inspector S.S. Rana/PW-26, has accepted that he had interrogated Sushil Arora along with PW-26. Sushil Arora, as per PW-47 had specifically named Rajesh Pandey i.e. only Rajesh Pandey and no other accused including Hemant Garg. PW-46 subsequently accepted that he had come to know the other three accused i.e. Hemant Garg, Vishnu and Sonveer by 27th February, 2009, but was unable to remember on what basis i.e. document and fact. This assertion finds corroboration from the remand application dated 24th February, 2009 moved for police remand of Sushil Arora, which records that "another four assailants, namely, Rajesh Pandey and three unknown are to be arrested". Similarly, on 20th March, 2009, investigation had sought issuance of non-bailable warrants only against Rajesh Pandey and Hemant Garg and no one else. Written reply by the investigation opposing application for anticipatory bail by Hemant Garg filed in April, 2009, did not name Vishnu and Sonveer. It is in this factual context that it is submitted with merit that Sushil Arora did not know and had not named Hemant Garg, Vishnu and Sonveer. Inference being that he was not with them in the Indica car.

102. The second assertion which again has substance stems from the deposition of Pushkar Raj/DW-6, who had made a telephone call to police control room at 1.45 P.M. about a fight (jhagra) at 17, Pusa Road, City Hospital, which was recorded as DD No.20A, Ex.PW-27/A by Head Constable Arvind Kumar/PW-27, Police Station Karol Bagh. Similarly, Head Constable Mahadev Prashad/PW-28 had recorded DD No.23B, Ex.PW-23/A at police station Rajendra Nagar. DD No.20A was marked to ASI Deshpal and DD No.23A was marked to ASI Ramphool for further action. The prosecution did not produce either ASI Deshpal, police station Karol Bagh and ASI Ramphool, police station Rajendra Nagar. Their evidence would have been relevant as they would have visited Chintu Car Point and could elucidated on presence or absence of Sushil Arora and Rajesh Pandey at Chintu Car Point. The action taken and the report received with regard to DD No.20A Ex.PW-27/A or DD No.23B, Ex.PW-23/A has not been adduced and produced. The visit and the two officers was certainly of consequence because it would have coinsided with the shooting incident. Moreover, the police complaint by Pushkar Raj/DW-6 would also reflect that at that time, he or his brother Sushil Arora and Rajesh Pandey did not intend to resort to violence and had no intention to cause death for otherwise DW-6 would not have made the said call.

103. I have already dealt with the arguments relating to the call details records of Sushil Arora and pointed the flaws in the arguments of defence in that regard. Nevertheless, it is recorded that the prosecution has failed and not adduced evidence to show and establish inter-action and connection between Sushil Arora and Rajesh Pandey and Vishnu, Sonveer, and Hemant Garg before and after the occurrence and also adduced any evidence so as to establish their absence from Chintu Car Point.

104. Arguments predicated on exculpatory material creates doubt on presence of Sushil Arora and Rajesh Pandey in the Indica car. One is left with reservation and in uncertainty with the prosecution version based on the evidence led and adduced to implicate Sushil Arora and Rajesh Pandey. Points recorded above show two different motives which could be behind the crime. The facts proved overwhelmingly indicate that the brawl outside Chintu Car Point and not the money dispute was the compelling factor, though the latter aspect could be intertwined. Certainty for confirmation of the eye-witnesses identification of Sushil Arora and Rajesh Pandey is missing and absent. In these circumstances there is a lingering doubt in my mind on whether Sushil Arora and Rajesh Pandey were present in the Indica car. Reasons for the said doubt are manifold and get reflected from the points noted above in favour of Sushil Arora and Rajesh Pandey.

105. In view of the aforesaid discussion, I would dismiss the appeals preferred by Hemant Garg, Sonveer and Vishnu with one clarification that they stand convicted vide judgment dated 2nd July, 2015 under Sections 302 and 307 read with Section 34 IPC and not under Section 120B IPC. The order on sentence dated 26th August, 2015 which records that they have been convicted under Section 120-B of the IPC is incorrect and contrary to the judgment dated 2nd July, 2015. The order of sentence is modified to this extent.

106. Another error in the order of sentence is that no separate sentence was pronounced in respect of conviction under Section 307 read with Section 34 IPC. R.K. Gauba J. in his judgment dated 8th February, 2017 has in view of the facts and circumstances held that punishment of life imprisonment with fine deserves to be enforced for both the offences i.e. under Section 302 as well as Section 307 IPC. The substantive imprisonment of life on each account would run concurrently. Under Section 307 IPC where hurt is caused, the offender is liable to either imprisonment for life or such imprisonment which may extend to 10 years and is also liable to fine. Second part of Section 307 is not applicable.

107. I concur with punishment awarded by R.K. Gauba, J. under Section 307 read with Section 34 IPC keeping in view the nature of offence and the manner in which firing had taken place. The three appellants, however, are entitled to benefit of Section 428 IPC and sentences for the offence under Section 307 read with Section 34 IPC would run concurrently with the sentence under Section 302 read with Section 34 IPC.

108. In view of the aforesaid discussion, I would accept the appeals preferred by Sushil Arora and Rajesh Pandey and hold that they are entitled to be acquitted by giving them benefit of doubt. If the said appellants are in custody, they will be released forthwith, if not required in any other case. Sd/-

JUDGE DECEMBER 5th, 2017 ssn