Dinesh Kumar @ Dinu v. The State

BADAR DURREZ AHMED, J VEENA BIRBAL, J DECEMBER 22,2011 kb

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Judgment delivered on 22.12.2011 + CRL.A No. 1091/2010 & CRL.M.B. No. 1918/2011 DINESH KUMAR @ DINU … Appellant versus STATE … Respondent Advocates who appeared in this case: For the Petitioner : Mr Anil Soni For the Respondent : Mr Pawan Narang AND + CRL.A No. 1202/2011& CRL.M.B. No. 1693/2011 NEERAJ @ VIPIN … Appellant versus STATE … Respondent Advocates who appeared in this case: For the Petitioner : Mr Sumer Kumar Sethi For the Respondent : Mr Pawan Narang CORAM: HON'BLE MR. JUSTICE BADAR DURREZ AHMED HON'BLE MS. JUSTICE VEENA BIRBAL BADAR DURREZ AHMED (ORAL) 1. These matters were listed before us for consideration of the applications for suspension of sentence on behalf of the appellants Dinesh Kumar @ Dinu and Neeraj @ Vipin. In the course of the arguments the learned counsel took us through the evidence on record. Inasmuch as the lower court record is available, they submitted that the appeals themselves could be heard and disposed of as a short point was involved. Consequently, we heard the appeals themselves. 2. The present appeals are directed against the judgment dated 05.06.2010 passed by the learned Additional Sessions Judge, Rohini Court, Delhi in sessions case No. 85/08, arising out of FIR No. 106/2008, registered at P.S. Saraswati Vihar, under section 302/468/471/34 IPC and sections 25/27 of the Arms Act, 1959. By virtue of the impugned judgment, the appellants were convicted under section 302/34 IPC as well as sections 25 and 27 of the Arms Act, 1959. The appellant Neeraj @ Vipin was also convicted under section 471 IPC. 3. The impugned order on sentence was passed on 09.06.2010 whereby the appellants were sentenced to life imprisonment along with a fine of `. 5000/- each in respect of the offence punishable under section 302 IPC read with 34 IPC and in default of the payment of fine, the appellants were required to undergo rigorous imprisonment (R.I.) for six months. The appellants were also sentenced to two years R.I. along with a fine of `. 1000/- each in respect of the offence punishable under section 25 of the Arms Act, 1959 and, in default thereof, to undergo R.I. for two months. The appellants were also sentenced to undergo two years R.I. with a fine of `. 1000/- each for the offence punishable under section 27 of the Arms Act, 1959 and, in default of the payment of fine, to undergo R.I. for two months. Additionally, the appellant Neeraj @ Vipin was also sentenced to R.I. of one year along with a fine of `. 1000/- for the offence punishable under section 471 IPC and in default of payment of fine he was required to undergo R.I. for six months. All the sentences were to run concurrently. 4. The case of the prosecution is that on 28.02.2008 at about 1.46 AM information was received in Police Control Room that a person is lying unconscious by the side of the Railway Track, Near Shakur Basti Railway Station. The message was flashed. PCR van reached there. The police officers from PS Saraswati Vihar also reached the spot. The Ambulance also reached there. A person was found dead. He was identified as Manoj by Sh. Sukhdev Singh who had also arrived at the spot. Gunshot injuries were found on the dead body. Near the dead body, one quarter bottle of the liquor was found along with a packet of namkeen. A pair of slippers was also found. The identity of the deceased was also established from the documents found in the pocket of the deceased. During investigation, the son of the deceased stated that the deceased was seen with Neeraj @ Vipin on his scooter at about 8.30 PM. Neeraj was interrogated. His disclosure statement was recorded. At the instance of Neeraj, the co-accused Dinesh was also arrested. He also allegedly led to the recovery of a country made pistol with eight live cartridges and three empty shells. During the post mortem examination of the dead body, two bullets were recovered. Exhibits were sent to the Forensic Science Laboratory for analysis. The scooter