The judgment establishes the principle that guilt can be proved beyond reasonable doubt based on circumstantial evidence, even in the presence of minor discrepancies in witness testimonies and issues of res judicata.

JUDGMENT :

ANISH DAYAL, J.

1. These appeals assail the impugned judgment dated 15th February, 2018 convicting the appellants, Mohd. Sabir, Pradeep Kumar Saini and Shan Mohd. (Crl. A. 568/2018), appellant Saleem (Crl. A. 554/2018), appellant Rustam (Crl. A. 530/2018), appellant Sohrab (Crl. A.591/2018) for offence punishable under Section 396/412 IPC and convicting Mohd. Aslam (Crl. A. 384 of 2018) for offence punishable under Section 412 IPC.

2. The said appeals of Mohd. Sabir, Pradeep Kumar Saini, Shan Mohd., Saleem, Rustam and Sohrab further challenge the order of sentence dated 22nd March, 2018 awarding life imprisonment and fine of Rs. 20,000/- each (imprisonment for one year in default of payment of fine) for offence punishable under Section 396 IPC and all the seven appellants, rigorous imprisonment of seven years and fine of Rs. 10,000/- each (imprisonment for one year in default of payment of fine) for offence punishable under Section 412 IPC.

The Incident

3. The case of the prosecution arises from the registration of FIR No. 56 of 2011 under Sections 302/394/397/34 IPC registered at P.S. Krishna Nagar on the statement of Ms. Pooja Kapoor (PW-2) for dacoity and murder at Gambhir Jewellers, C-2/6, Lal Quarter, Krishna Nagar, Delhi. On receipt of information attended by Inspector K.K Tiwari (PW-45), the complainant (PW-2) stated that PW-2 was sales girl at the jewellery shop and on 23rd February, 2011 at about 5:00 p.m., she was present in the shop with another sales girl Ms. Reena (PW-3) and the proprietor Sh. Gaurav Gambhir who was sitting on his chair near a counter in the shop. Three boys having helmets on their heads entered in the shop and one of the boys went to where Gaurav Gambhir was sitting, put a pistol on the counter and threatened him to remain quiet. The other two boys came to the counter, where the complainant and Reena were pointed pistol and were made to sit behind the counter. The two boys removed gold jewellery from the counter and display trays and put them in a bag. The boy standing near Gaurav asked him to remove the jewellery he was wearing on his person, upon which Gaurav requested him to let the personal bracelet be with him. This triggered scuffle with the boy who fired at Gaurav with his pistol, and the three ran away from the shop, while Gaurav chased them. Their helmets were left behind and when the complainant approached Gaurav, they saw Gaurav lying down outside the shop near the stairs with his face down. All three escaped on two motorcycles towards Friends Centre. Pursuant to the FIR being registered, the crime team inspected the spot and prepared their report including taking chance prints. Pursuant to the investigation, it was revealed that the father of the deceased, Sh. Vijay Gambhir (PW-11) had seen his son coming out of the shop chasing the assailants, when the assailant shot him on the head and sat on the motorcycle and ran away. The elder brother of PW-11, Sh. Narender Gambhir (PW-18) was standing in the balcony of the first floor of the premises, where the shop was located, and he also witnessed the assailants escaping after firing on the head of Gaurav Gambhir. Subsequently, Mohd. Sabir was first arrested, then the other accused persons, Pradeep Kumar Saini, Saleem, Rustam and Sohrab (who were already arrested in another case FIR No. 32 of 2011, Special Cell, Delhi). Further, accused Shan Mohd. and Aslam were also arrested. Recovery was affected of various items of jewellery from the appellants. Post mortem was done on the body of the deceased and articles were seized at the spot of incident. Judicial TIP was done of the accused persons and articles recovered and statement of witnesses were recorded. Pursuant to a charge-sheet filed against all seven appellants, charges were framed under Section 396/34 IPC (against all appellants except Mohd. Aslam) and under Section 412 IPC against all seven appellants. The appellants pleaded not guilty and claimed trial. The prosecution examined 4