The court held that the prosecution had proved its case beyond reasonable doubt, relying on the testimony of an eyewitness, the recovery of the weapon of offence, and the ballistics report.

JUDGMENT :

SANGITA DHINGRA SEHGAL, J

CRL.A. 234/2016 & CRL.A. 236/2016

1. The present Appeals are instituted on behalf of the appellants under Section 374(2) of the Code of Criminal Procedure, 1973, (hereinafter referred as “Cr.P.C.”) against the impugned judgment of conviction dated 28.01.2016 and order on sentence dated 30.01.2016 passed by the Court of ASJ, Rohini Court, Delhi , (FIR No. 725/2013, P.S. Vijay Nagar, West Delhi), registered under section 302/34 of the Indian Penal Code,1860 (herein after referred as “IPC”) along with section 25/27 of the Arms Act, 1959 whereby both the appellants were sentenced to undergo rigorous imprisonment for life and fine of Rs.25,000 and in default of payment of fine to further undergo imprisonment for a period of six months for the offence punishable under section 302/ 34 IPC. Appellant No.1 was further sentenced to undergo rigorous imprisonment for a period of five years and fine of Rs. 5,000 and in default of payment of fine to undergo simple imprisonment for a period of one month for the offence punishable Under section 27 of the Arms Act.

2. The brief facts of the case, as distinguished by the learned Trial Court are as under: -

“(i) On 28.12.2013, vide DD no. 95-B, it was recorded that one person had sustained bullet injury and had died on the spot. In response thereto, the police reached at the Flat no. 235-236, pocket 15, Sector 24, Rohini, Delhi situated on the second floor (hereinafter referred to as “the scene of crime” or “the spot” or “the said flat”) and found dead body of Vikas@ Vicky. Crime team reached at the spot and took the photographs. At the spot, son of maternal uncle (Mama) of Vikas namely Deepak Mann the eye witness, was present and made a statement on the basis of which FIR was lodged against both the accused.

(ii) According to the statement of Deepak Maan (the complainant and the eye witness), on 28.12.2013 at about 9.30PM, he telephonically called Vikas @ Vicky. That time, Vikas told him that he was at the said flat where a party was going on and asked him to come over there. After some time, Vikas came to pick him from the bridge at Sector 24, Rohini in a car and he along with him went to the said flat where Deepak, Rohit, Pradeep Kumar, Pradeep Dabas (the accused No.1), Sonu Tharu (the accused No.2), Vikas and their 3-4 more friends were celebrating the birthday of Manish. They all consumed liquor. At the time of cutting the birthday cake, some altercations took place between the accused no.2 and Vikas. The accused no.1 took side of the accused no.2 and asked Vikas as to how he was talking like that with the accused no.2 who was his dearest friend. That time, the accused no.1 took out his pistol and fired at once and the bullet hit the rack of the kitchen and he stated that his target never got missed. Thereafter, the accused no.1 handed over the pistol to the accused no.2. subsequently, the complainant went to the kitchen to take the match box to lit the cigarette and that time, Vikas standing at the gate of kitchen. The moment complainant turned after picking the match box, he noticed that the accused no.1 took the pistol from the accused no.2 and fired on Vikas. Thereafter, both of them ran away from the spot, Vikas fell down on the floor and blood was oozing. He and Pradeep Kumar noticed that Vikas had died. (iii) Inspector Ajay Kumar lifted the exhibits from the spot and prepared the site plan at the instance of eye witness. Postmortem was done on the dead body of Vikas.

(iv) On 02.01.2014, on the secret information, both the accused were arrested at Kanjhawala Stand with the accord car No. DL-3CAK-8810.

(v) On 04.01.2014, both the accused made the disclosure statement wherein they disclosed that they could get recovered the pistol and clothes worn by them from the village Tharu. In pursuance thereto, at the instance of the accused no. 1, one pistol, the clothes and one magazine having one live cartridge were recovered from the village Tharu. At the instance