Difference of opinion between the two Judges, primarily on the question of the eye witness identification of the perpetrators, and to some extent on other aspects, has led to this reference in the five appeals by Sushil Arora, Rajesh Pandey, Hemant Garg, Vishnu and Sonveer.

2. The aforestated appellants challenge the judgment of the Addl. Sessions Judge dated 02.07.2015, holding them guilty of the murder of Ankit Minocha (sometimes also referred to as Ankit) and for attempt to murder Surender/PW-8, under Section 302 and Section 307 read with Section 34 of the Indian Penal Code, 1860 (for short ‘IPC‘) in Sessions Case No.7/2009 arising from FIR No. 35/2009 registered at Police Station Chanakyapuri under Section 302/307/120B/34 of the IPC and Sections 25/27/54/59 of the Arms Act, 1959.

3. The impugned judgment acquits Sonveer of the charge under the Arms Act, 1959 on the ground that no proof had been adduced with regard to the grant of sanction. No finding is recorded on the charge under the Arms Act against Vishnu. The State has accepted the said decision and the "victims" have not preferred any appeal.

4. By the order on sentence dated 26.08.2015, which is also under challenge, the appellants have been sentenced to imprisonment for life, for the offence under Section 302 read with Section 120B of the IPC with fine of Rs.15,000/- each in the case of Sushil Arora and Hemant Garg, fine of Rs.20,000/- in the case of Rajesh Pandey and fine of Rs.25,000/- each in the case of Vishnu and Sonveer. In default of payment of fine, Sushil Arora and Hemant Garg are to undergo simple imprisonment for six months, Rajesh Pandey is to undergo simple imprisonment for eight months and Vishnu and Sonveer are to undergo simple imprisonment for a period of one year. Benefit of Section 428 of the Code of Criminal Procedure, 1973 (Code, for short) has been granted.

5. The judgments of Gita Mittal and R.K. Gauba JJ. correctly hold that the order on sentence is defective for the appellants were not convicted under Section 120B as a substantive offence. Another defect noticed and apparent is that no punishment has been awarded separately for the offence under Section 307 IPC.

6. The two judgments, penned by Gita Mittal, J acquitting the appellants and R.K. Gauba, J affirming conviction of the appellants, are detailed and extensively refer to the ocular evidence of the purported injured eye witness Surender/PW-8, the complainant Sunil/PW-1, Paramjeet Singh/PW-5, and Varun/PW-6, who were statedly with the deceased in Santro Car No.DL2F-FK-0002 on 22.02.2009 at Ridge Road near Simon Bolivar T-Point at about 2:00 p.m. when occupants of an Indica car bearing No. DL3C-AX-2192 had fired on them, causing bullet injuries leading to the death of Ankit Minocha and injury on Surender/PW-8. The prosecution, in addition, relies upon testimony of Ranjeet Singh/PW-4 and Manveer Singh/PW-2, especially the former, who, it is claimed, were passersby and public witnesses present at the place of occurrence. The prosecution also relies upon testimonies of Mahendra Singh/PW-9, Hemant/PW-10, and Gajender Singh/PW-11 to establish motive and the facts immediately prior and post the occurrence on 22.02.2009. Reliance is placed on the version given by Narender Singh/PW-12, who it is stated had taken the injured Ankit Minocha from the place of occurrence, i.e Simon Bolivar T-Point to the Trauma Centre at All India Institute of Medical Sciences(AIIMS, for short).

7. The primary issue and question of fact to be determined and decided in these appeals relates to the identity of the perpetrators, i.e. occupants of the Indica Car, who had fired causing bullet injury and death of Ankit Minocha

8. Before I deal with the testimonies of the eye witnesses and the police witnesses and other circumstances on the question of identity of perpetrators, I would like to pen down facts which have been established and proven beyond doubt or even when there is some debate, no firm opinion is require