BADAR DURREZ AHMED, J

1. These two appeals are being decided together as they are directed against the same judgment and order on the point of sentence. The judgment dated 11.11.2008 delivered by the Additional Sessions Judge-01, South, Patiala House Courts, New Delhi in Sessions Case No. 203/2006 arising out of FIR 225/2003 registered at Police Station Kotla Mubarak Pur, under Sections 302/120B/34 IPC and Sections 25/27 of the Arms Act, 1959 is under challenge in these appeals.

2. By virtue of the impugned judgment dated 11.11.2008, the appellants Suresh Pehlwan @ Suresh Basoya, Sushil Choudhary @ Sushil Pehlwan (appellants in Crl. A. No. 72/2009) and Dalip Kumar @ Gudar (appellant in Crl. A. No. 73/2009) have been convicted under Section 302/34 IPC. Appellant Suresh Pehlwan and Sushil Choudhary have also been convicted under Section 25 of the Arms Act, 1959. Insofar as the accused Lekhraj is concerned, he was acquitted of the charges under Sections 120B/302/34 IPC. The present appellants had also been charged under Section 120B, but they have also been acquitted under that Section but have been convicted, as mentioned above, under Section 302 read with Section 34 IPC. The appellants are also impugning the order on the point of sentence which was pronounced on 19.11.2008, whereby the three appellants were sentenced to life imprisonment for commission of the offence punishable under Section 302/34 IPC and they were also directed to pay a fine of Rs.10,000/-each, in default whereof, they were required to undergo simple imprisonment for nine months each. Insofar as the appellants Suresh Pehlwan @ Suresh Basoya, Sushil Choudhary @ Sushil Pehlwan are concerned, they were sentenced to undergo rigorous imprisonment for two years each with a fine of Rs.1,000/-each, in default whereof, they were required to undergo additional simple imprisonment for two months. The sentences of imprisonment awarded to Suresh Pehlwan @ Suresh Basoya, Sushil Choudhary @ Sushil Pehlwan for the offences under the IPC and the Arms Act were directed to run concurrently.

3. The charges were framed on 24.11.2003. The four accused, namely, Suresh Pehlwan, Dalip Kumar, Sushil Choudhary and Lekhraj were, inter alia, charged as under:-

“That on 31.5.03 at about 12 noon at the corner of house no. 59 and house no. 47 Housing Society NDMC Part I near Mother Dairy ,New Delhi within the jurisdiction of PS K.M. Pur in prosecution of the common object of the conspiracy entered by you to commit the murder of deceased Surinder Gupta committed murder of Surinder Gupta by firing two shots by Sushil Pahlwan with the country made pistol and giving number of knives blows by accused Suresh Pahlwan and thereby committed an offence punishable under section 302 read with 120 B of UPC and within my cognizance.”

Sushil Choudhary @ Sushil Pehlwan was separately charged under Section 120B IPC as also under Sections 25 and 27 of the Arms Act. Suresh Pehlwan was similarly also charged of the offence punishable under Section 120B IPC and the offence punishable under Sections 25 and 27 of the Arms Act, 1959. The appellant Dalip Kumar was also separately charged in respect of the offence punishable under Section 120B IPC. Insofar as the accused Lekhraj is concerned, he was also separately charged of the offence punishable under Section 120B IPC and he was regarded as the mastermind of the conspiracy.

4. All the accused pleaded not guilty to the charges and claimed trial. The prosecution examined as many as 25 witnesses. Thereafter, the statements of the accused under Section 313 of the Criminal Procedure Code, 1973 were recorded and the defence produced one witness DW1 Raj Kumar. After considering the evidence on record and the arguments advanced by the prosecution as well as by the defence counsel, the learned Additional Sessions Judge came to the conclusion that the case of conspiracy under Section 120B IPC was not made out at all. As a result, the accused Lekhraj was acquitted i