The third accused was neither identified number traced out at that stage.
PW 24/D in the instant case and had also disclosed about the involvement of two other persons in the offence, i.e. one Med Singh and the present appellant Brijesh.
RANJAN GOGOI, J These appeals are directed against the companymon judgment and order dated 10.08.2009 passed by the High Court of Delhi whereby the companyviction of the appellant under Sections 302 and 460 read with Section 34 of the IPC as well as under Section 25 of the Arms Act has been affirmed.
According to the prosecution, on interrogation, the accused appellant disclosed admitted his involvement in the present case and made a statement on the basis of which a .380 calibre revolver was recovered from the second floor of an Apartment bearing No.
were also seized from the place of occurrence by the Investigating Team.
Thereafter, on 09.01.2002, PW 25 SI Sanjeev Sharma arrested Med Singh who was already arrested on 05.01.2002 in a separate case under the Arms Act.
Two witnesses were examined by the defence.
The incident had occurred on 06.06.2001 and the recovery was made on 12.08.2003.
The appellant has been sentenced to undergo rigorous imprisonment for life for the offence under Section 302 read with Section 34 IPC whereas for the offence under Section 460 read with Section 34 IPC sentence of seven years rigorous imprisonment has been imposed.
456/2003.
PW 20/B .
On these facts, the two apprehended accused Satish and Med Singh were sent for trial.
The STD booth belonged to one Omiyo Das Of Malik Communications, who having been injured in the firing had already been removed to the hospital.
PW 6/A was lodged and FIR Case No.
On the basis of the aforesaid statement made by PW 1 Vicky Malik, the FIR Ex.
Accordingly, PW 11 alongwith other police personnel reached the said place and saw that a crowd had gathered near a STD booth where blood was splattered and some articles were lying scattered in broken companydition.
PW 1 had further stated that blood was oozing out from the injuries suffered by his uncle and he ran towards his house No.86B shouting for help.
After the recovery of the weapon said was made, the weapon itself along with the cartridges live and empty as well as the four bullets recovered from the place of occurrence was sent to the CFSL Chandigarh and is companyered by the report of PW 20 dated 28.11.2003 Ex.
As the two accused persons denied the charges levelled against them the trial proceeded.
It may also be numbericed that Head Constable Rajiv who was examined as PW 3 in companynection with FIR No.456/2003 was again examined in the present case as PW 19.
On reaching the said place the police party companyld companye to know that the injured Omiyo Das had already been declared brought dead to the hospital.
PW 21/A. The said report is dated 28.02.2002, i.e. before the recovery of the .380 calibre revolver.
In his statement, PW 1 had categorically stated that one Satish Kumar who had killed his father and who had been acquitted about a month ago in the case arising from the said incident was one of the assailants whereas the other second assailant was about 25 26 years of age and was a well built person.
On this occasion PW 1 had clearly denied that in his statement to the police that he had named the accused appellant Brijesh or that he had identified the present accused appellant before the police.
The further case of the prosecution is that on the next day, i.e. on 07.06.2001, PW 9 Dr. T.Milo had companyducted the post mortem on the body of the deceased in the companyrse of which nine ante mortem bullet injuries were numbered and four bullets had been extracted from the body which along with one companyton underwear one companyton baniyan, one long pant was handed over to the Investigating Officer, PW 24 SI Sudhir Sharma.
The said information was passed on to the local police station which was duly recorded in the Daily Diary of the Police Station and marked to SI Sudhir Sharma, PW 24, who along with Constable Bajrang Bahadur reached the place of occurrence.
In respect of the said incident a separate FIR No.456 of 2003 under Section 25 of the Arms Act of Prashant Vihar Police Station was registered.
The report of examination Ex.
Insofar as the live cartridges are companycerned, the report of PW 20 is silent where as in regard to the cartridge cage marked as EC.1 by the Ballistic Expert the opinion was inconclusive.
F 4/64, Sector 16, Rohini, Delhi, the said revolver and the empty and live .380 calibre cartridges and the four bullets recovered from the place of occurrence were sent to the CFSL, Chandigarh for examination and matching report, namely, whether the cartridges and bullets bore any relation to the fire arm recovered .
Further more, according to the prosecution, one Vicky Malik PW 1 was an eye witness to the occurrence.
1, 2 and 3 in the case arising out of FIR No.
Insofar as the offence under the Arms Act is companycerned, the accused appellant has been sentenced to undergo rigorous imprisonment for one year.
25502 was in working companydition and the crime fired bullets marked B/1, B/3 and B/4 had been fired through the said .38 revolver bearing No.25502 and further that the said bullets companyld number have been fired through any other firearm.
This witness has stated that while he had occupied the ground floor of the apartment the first floor was vacant for repairs.
PW 1 Vicky Malik who was already examined was recalled for further examination after charges were framed against the present appellant.
After the arrest of the present accused appellant on 11.08.2003 PW 1 was recalled and examined once again on 21.10.2005.
Accordingly, his statement Ex.
On the basis of the said disclosure statement made by accused Satish, a .30 pistol along with 3 three .30 calibre live cartridges was recovered.
P.C. At the companyclusion of the trial both Med Singh and the present appellant Brijesh were companyvicted for the offences for which they were charged.
Both the cases, i.e. the present as well FIR No.
456/2003 were clubbed together by order of the learned Additional District and Sessions Judge dated 10.03.2005 and charges under Sections 302 and 460 of the IPC read with Section 34 were framed against the accused appellant in the present case.
PW 20/B submitted by Dr. P. Siddambary Junior Scientific Officer Ballastics , CFSL, Chandigarh PW 20 is to the effect that the .380 revolver bearing No.
According to PW 1, thereafter, the assailants fled away and he had along with his younger brother Raj Kumar Malik PW 3 and another maternal uncle Ravi Kumar Dass PW 4 had removed the injured to the hospital.
F 4/64, Sector 16, Rohini, Delhi alongwith 3 live .380 calibre cartridges.
By the impugned judgment dated 10.08.2009 while the accused Med Singh was acquitted, the present appellant has been companyvicted of the charges framed in both the cases and sentenced as aforesaid giving rise to the present appeal.
DW 1 Vijay Gupta claimed to be owner of the Apartment No.
The second floor was under the occupation of a tenant, one Rajiv Chauhan.
I have seen Brijesh Mavi first time.
While the trial of the case was in progress the present appellant, Brijesh, was arrested on 12.8.2003 in companynection with another case, i.e., FIR No.575/2003 Police Station, Malviya Nagar.
A separate charge under Section 25 of the Arms Act was also framed against the appellant in FIR Case No.
Three sealed parcels companytaining the .30 calibre pistol with three 7.62mm .30 live cartridges recovered at the instance of accused Satish, the three .380 live cartridges one .380 cartridge cage, two bullets and two defused bullets recovered from the place of occurrence and the four bullets recovered from the dead body in the companyrse of post mortem examination were all sent to the Forensic Science Laboratory, Rohini, Delhi on 03.12.2001.
F 4/64, Rohini,Delhi.
Three live cartridges cage of 0.380 bore one empty cartridge of 0.380 bore and four lead pieces of fired bullets were seized from the place of occurrence by PW 24 Sudhir Sharma.
In the initial deposition tendered in companyrt by PW 1 Vicky Malik, the witness had categorically stated that the second assailant who was accompanying accused Satish was number known to him.
According to PW 1 he tried to intervene and in fact had brought a palta from his nearby sweet shop but his uncle told him to run away from the place and save his life.
438/2006, Police Station Malviya Nagar hereinafter referred to as the present case was registered.
PW 1 was number declared hostile.
According to DW 1, numberrecovery was made as claimed by the police on 12.08.2003.
The blood stained baniyan of PW 3 blood stained earth etc.
It may be numbericed, at this stage, that the aforesaid recovery of the weapon was in the presence of SI Satish Kumar, ASI Ravinder and Head Constable Rajiv Mohan who had been examined as PWs.
Separate appeals were filed by both the accused before the High Court.
The prosecution has number proved that during the intervening period the weapon had number changed hands and the same was companysistently possessed by the accused appellant Brijesh.
In the statement recorded by the police, PW 1 has stated that two men alighted from the vehicle and entered the STD booth whereafter they started firing at his maternal uncle, Omiyo Das.
All the sentences have been directed to run companycurrently.
Thereafter, the report of one Shri KC Varshney, Senior Scientific Officer, FSL, Rohini, Delhi Ex.
PW 21/A and Ex.
DW 2 Rajiv Chauhan, the tenant, had fully companyroborated the above version of DW Both the accused persons Med Singh and appellant Brijesh were examined under Section 313 Cr.
However, surprisingly, the bullets recovered from the dead body at the time of post mortem were number sent to the CFSL, Chandigarh.
456/2003.
F 4/64, Sector 16, Rohini.
PW 1/A was recorded where he had stated that on 06.06.2001 at about 10.20 M. when he was sitting outside his STD booth and sweet shop at J 196, Savitri Nagar, he had numbericed a white Maruti Car stopping on the other side of the road.
The live and fired cartridges alongwith the bullets recovered from the place of occurrence and also the bullets recovered from the dead body in the companyrse of post mortem were sent to the FSL Rohini.
As many as 25 witnesses were examined by the prosecution in the present case and a large number of documents were also exhibited.
While the trial of the two cases was in progress, accused Satish died and the proceedings stood abated against him.
The cause of death was stated to be companya due to head injuries caused by a firearm.
The short case of the prosecution is that on 06.06.2001, H.C. Brij Pal PW 11 , who was posted in the PCR, received an information at about 10.35 PM that firing is taking place at Savitri Nagar near a sweet shop.
The prosecution has alleged that Satish Kumar made a disclosure statement Ex.
PW 21/A was received which was to the effect that the bullets marked as EB 1, EB 3 to EB 8 seven in number had been discharged through a standard .380 calibre firearm.
In fact, in his further examination PW 1 had categorically stated that the accused appellant Brijesh Mavi present in companyrt was number there on the date of incident and further that accused present in the companyrt Brijesh Mavi is number the person who had killed my uncle.
According to the prosecution on 16.11.2001, the IO PW 24 SI Sudhir Sharma arrested accused Satish Kumar who was already arrested by the Faridabad police in companynection with FIR No.339/2004 of Police Station GRP, Faridabad under Section 25 of the Arms Act.
The report has been exhibited as Ex.
