JUDGMENT

Fakkir Mohamed Ibrahim Kalifulla, J.-First accused is the appellant before us. The challenge is to the judgment of the Division Bench of the High Court of Delhi in Criminal Appeal No.134/2003 dated 16.09.2005. The High Court by its common judgment in Criminal Appeal No.166/2003 preferred by the second accused and Criminal Appeal No.134 of 2003 preferred by the appellant before us confirmed the conviction of the appellant for offences under Section 302 as well as under Section 392 read with Section 34 IPC.

2. The genesis of the case of the prosecution was that one Shama Parveen was living in House No.A-32/15, Main Road No.66, Maujpur, that while she was using the first floor as her residential premises she had her own shop in the ground floor where she was dealing with air-coolers and the business of real-estate. She had three sons living with her apart from her mother. In another portion of the same premises her maternal uncle one Mohd. Jamil (Mammu) was having his own business. One Salvinder alias Kake friend of Shama Parveen used to frequently visit her house. On 27.10.1998 Shama Parveen returned back to her house along with Salvinder after making certain purchases from the market and after her return appellant and two other persons entered her house and they were armed with revolvers and also a knife. After entering the house they enquired about Mammu and when Shama Parveen replied that he had gone to fetch vegetables the accused snatched a gold ring, locket and cash amounting to Rs.100/150 from Salvinder. They demanded the keys of the almirah of Shama Parveen and out of force when she handed over the keys the accused opened the almirah and removed sum of Rs.15000/- kept in the almirah apart from sum of Rs.2,50,000/- kept in the locker. They also removed a mobile phone and some other ornaments apart from ear rings and a necklace from the person of Shama Parveen. While so, Mohd. Jamil alias Mammu also entered the house and another friend of Shama Parveen, namely, Nasreen and her husband Jeeta also came there. Shama Parveen’s mother was already present in the house. After committing robbery, the appellant stated to have attempted to molest Shama Parveen and when Salvinder protested to such an attempt of the appellant questioning as to why even after removing the valuables they are indulging in such molestation, the appellant stated to have retarded towards him asking him to shut up and also simultaneously fired a shot on his forehead. Salvinder stated to have fell down on the bed. The three accused thereafter stated to have left the place with the robbed items and cash by locking the door outside the house. After 10-15 minutes one of the sons of Shama Parveen, namely, Danish entered the house who untied all the victims and thereafter the injured Salvinder was taken to the hospital where he was declared ‘brought dead’. Based on the statement of Shama Parveen the police registered a crime under Sections 392/354/302 read with Section 34 IPC at Police Station Seelampur, Delhi.

3. Be that as it may, based on a secret information the appellant and the second accused were arrested by officials of the Special Cell, Lodhi Colony from Sunlight Colony, Seema Puri while they came there in a vehicle bearing Registration No.DL-2C-B 1381. Pursuant to the arrest when a search was made on the person of the second accused a loaded country-made pistol was recovered from his pant pocket. On the personal search made on the appellant he was also found in possession of another country-made pistol along with live cartridges. Cases were registered against them under the Arms Act vide FIR No.717 and 718/1998 at Police Station Seema Puri. Further recoveries were also made from the person of the appellant, namely, a gold chain and a ‘Rado’ wrist watch. Based on the further investigation it came to light that they were involved in the incident on 27.10.1998 at the residence of Shama Parveen. The investigation further revealed apart from the app