Sanjiv Khanna, J:--

Parmod Kumar, the appellant in Criminal Appeal No. 143/2004, has challenged the judgment dated 19th January, 2004 convicting him under Section 302 read with Section 120-B Indian Penal Code, 1860 (IPC, for short), and Section 395 read with Section 120-B IPC. The said conviction arises out of charge-sheet filed in FIR No. 253/1995 Police Station Lodhi Colony, relating to homicidal deaths of Anil Kumar Shokal, Vijender Kumar Shokal and H.P. Pandey, as result of fire arm injury in an occurrence late in the evening on 5th July, 1995.

2. Earlier, vide charge-sheet dated 25th September, 1995, Lokesh, Mukesh, Prem Shakar, Rajeev and Sanjay Yadav (since deceased) were prosecuted under Sections 302/396/397/398 read with Section 120-B IPC and Section 201 read with Section 34 IPC in FIR No. 253/1995 Police Station Lodhi Colony relating to the same occurrence. They were acquitted. The State, in Criminal Appeal No. 371/1998, has challenged the judgment dated 6th October, 1997, acquitting Lokesh, Mukesh, Prem Shankar, Rajeev and Sanjay Yadav (since deceased) from the said charges. One Mahesh was also charge sheeted but was discharged vide order dated 25th May, 1997.

3. The reason for two separate charge-sheets and judgments is that the appellant Parmod Kumar could not be earlier arrested and was declared a proclaimed offender. Parmod Kumar was arrested after he surrendered in the Court on 7th January, 1998, nearly three months after the judgment of acquittal dated 6th October, 1997 in the case of Lokesh, Mukesh, Prem Shankar, Rajeev and Sanjay Yadav (since deceased).

4. As there are two judgments and the evidence has been separately recorded, we shall independently examine and deal with the evidence on record and pronounce two separate decisions.

5. As noticed above, Parmod Kumar was arrested on 7th January, 1998 and was charged and stands convicted for the offences under Section 302 read with Section 120B of the Indian Penal Code, 1860 (IPC for short) for murder of Anil Kumar Shokal, Vijender Kumar Shokal and H.P. Pandey and Section 395 read with Section 120B for dacoity along with the co-accused Lokesh, Sanjay Yadav (since deceased), Prem Shankar and Rajeev. By order on sentence dated 29th January, 2004, the appellant stands sentenced to imprisonment for life and fine of Rs. 10,000/- and in default, to undergo rigorous imprisonment for 10 months for the offence under Section 302 read with Section 120B IPC and rigorous imprisonment for life and fine of Rs. 10,000/- and in default, to undergo rigorous imprisonment for 10 months for the offence under Section 395 read with Section 120B IPC. The sentences would run concurrently.

6. The impugned judgment notices the fact that the co-accused namely, Lokesh, Mukesh, Prem Shankar, Rajeev and Sanjay (since deceased) stand acquitted vide judgment dated 6th October, 1997 passed by the predecessor presiding judge. However, for reasons recorded therein and on the basis of evidence on record, the impugned judgment convicts Parmod Kumar.

7. The facts as emerging from the first information report in brief are that Anil Kumar Shokal and Vijender Kumar Shokal were engaged in the business of manufacture, procurement and sale of silver jewellery and articles by the name of M/s Sri Ram & Sons from their shop in Chandni Chowk and otherwise. On 5.7.1995, at about 4:00 p.m., Anil Kumar Shokal and Vijender Kumar Shokal along with Sumit aged 13 years and Upasana aged 8 years had proceeded for Madangir and Kotla in a Maruti Van bearing No. DNB 1968, which was driven by H.P. Pandey for sale and collection of money. Sumit and Upasana, children of Anil Kumar Shokal, had come to the shop at Chandni Chowk as Upasana wanted a bicycle as her birthday gift. They had first proceeded to Kotla Mubarakpur market from where Anil Kumar Shokal had to collect dues. As the collection was to take time, Sumit and Upasana were driven to their maternal uncle’s home at Pragati Vihar Hostel by the driver H.P. Pandey.