Abhay S. Oka, J. FACTUAL ASPECTS

1. The appellant is accused no.2, who, along with accused no.1 – Mahesh, was convicted for the offences punishable under Section 302 of the Indian Penal Code (for short ‘IPC’) and Section 25 of the Arms Act. The appellant and the co-accused were ordered to undergo life imprisonment for the offence punishable under Section 302 of the IPC. The conviction and sentence of the appellant have been confirmed by the High Court by the impugned judgment.

Digitally signed by ASHISH KONDLE Date: 2024.01.25 16:17:18 IST Reason:

Signature Not Verified

2. It is a case of the murder of Pawan and Ajju Chaudhary. According to the prosecution case, on 03rd of January 2004, the deceased Pawan went to Rohini to meet his ailing sister Sushila. Dharmender (PW-2) is the complainant. Dharmender is the brother of the deceased Pawan. According to Dharmender, the deceased Pawan had fallen into bad company and cases of dacoity and theft were registered against him. He stated that on 04th January 2004, he enquired with his sister, who told him that the deceased Pawan had returned after meeting her. According to Dharmender, around 09:00 a.m. on 05th January 2004, he was informed by someone that his brother Pawan had been shot dead. Thereafter, the bodies of both the deceased were found by the police.

3. The prosecution examined a total of 20 witnesses. The prosecution relied upon the evidence of PW-1 – Mukesh and PW-3 – Vijender as they were allegedly the eyewitnesses. Dharmender (PW-2) was also examined. The other two material witnesses are PW-15 Sub-inspector Desh Raj and PW-20 DSP Puran Chand. At the relevant time, PW-20 was the Investigating Officer. Both the witnesses are relevant on the issue of recovery of the weapon of the offence at the appellant's instance, as there are no independent witnesses to the recovery. According to the case of the prosecution, the report of the ballistic expert showed that the bullets recovered from the body of the deceased Pawan were fired from the country-made pistol, which was recovered at the instance of the appellant.

SUBMISSIONS

4. Shri Gaurav Agrawal, learned counsel appointed as amicus curiae submitted that the case of the prosecution is not based on circumstantial evidence but on the eye-witness account of witnesses PW-1 and PW-3. He submitted that neither of the eyewitnesses supported the prosecution and both were declared hostile. He urged that in the absence of any independent witness, the recovery of the alleged weapon at the instance of the appellant cannot be relied upon. Moreover, the recovery is from an open place accessible to all, and that also happened more than one month after the date of the incident. He pointed out that PW-2 – Dharmender had deposed that as deceased Pawan was on inimical terms with one Naresh Yadav, he suspected that Pawan and Ajju Chaudhary must have been either murdered by Naresh Yadav or by someone at his instance. By pointing out the testimony of PW-20, he submitted that no investigation was carried out about the involvement of Naresh Yadav, who was the first suspect. He would, therefore, submit that the prosecution has failed to prove the case beyond a reasonable doubt.

5. Ms. Bina Madhavan, the learned counsel appearing for the State of Haryana, submitted that the recovery of the weapon of assault had been proved to have been made at the instance of the appellant. The report of the expert establishes that the bullet found on the dead body of deceased Pawan could have been fired from the weapon recovered at the instance of the appellant. She placed reliance on the following decisions:

(i) John Pandian etc. v. State1 (ii) Golakonda Venkateswara Rao v. State of A.P.2 (iii) State of Punjab v. Jagir Singh & Ors.3 (iv) State, Govt. of NCT of Delhi v. Sunil & Anr.4

(v) Pawan Kumar @ Monu Mittal etc. v. State of U.P. & Anr. etc.5 (vi) Suresh Chandra Bahri etc. v. State of Bihar6 1 (2010) 14 SCC 129 2 (20