HARVINDER PAL SAINI Vs. STATE

JUDGEMENT

(1.) This judgment will dispose of four appeals, directed against a judgment and order of the learned Additional Sessions Judge, Delhi, dated 23.07.1997 and 31.07.1997, in SC No.54/96 ("impugned judgment") handing down conviction and sentence for offences punishable under Section 396/34 read with Section 411, IPC. The convicted Appellants, who impugn that judgment, are hereafter referred to by their names, i.e. Amrish, Harvinder and Naseem Ahmed. The State has preferred two appeals, in one questioning the sentence, seeking its enhancement to death penalty; in the other, it has impugned the acquittal of two co-accused Sanjay and Krishan Lal.

(2.) The prosecution case, briefly is that on 25.12.1987, at about 6.45 PM Sh. Lekh Raj Luthra (P.W.5), along with his wife Smt. Prem Kumar (PW 3) and daughter Bindu Luthra (PW- 1) was watching T.V. in the drawing room of Flat No. 5/610, Lodhi Colony, New Delhi. The door bell of the flat rang. Bindu PW-1 opened the back door and saw four boys standing; she asked them the reason. They told her that they wanted to meet her brother, Sunil Luthra (the deceased), who was an Advocate. PW-1 asked the boys to wait for a minute; she shut the back entrance and went to the drawing room where her parents were sitting, told her father PW-5 that the four boys had come there to see Sunil Luthra. Thereafter, Bindu opened the front door and asked the boys, the purpose for which they were to meet Sunil. One of them replied that they wanted to talk to Sunil in connection with a case. Bindu told them that Sunil was away to the market and that he would be back within 10 minutes and asked them to wait, inviting them to sit on the Sofa lying in the Veranda. They sat on the sofa and immediately got up and told Bindu that they would be back within 10 minutes. While moving towards the main door, they took out their pistols and one of them placed the pistol on her (Bindu's) temple i.e. Kanpati and asked her to keep quiet and commanded her to move towards the drawing room. All the four boys went into the drawing room. One of them pointed the pistol at her father and another towards her mother. She gestured to her father to remain quiet; but her mother could not resist and she asked, addressing them as "betas", as to what they wanted. One of them said that they would not leave Sunil alive. In the meantime, another person, armed with a knife, entered the bed room. He pulled down the attach s lying over the Almirah and started scattering the articles in it. In the meantime, on the sound of Sunil's car PW 5 ran towards the main entrance and shouted to Sunil Luthra that he should not come upstairs. But Sunil went upstairs, out of curiosity to see what was the matter. As soon as Sunil entered the door all the four persons with pistols surrounded him; the one armed with the knife gave knife blows, some on his chest and some on the abdomen, of Sunil. In the scuffle Lekh Raj Luthra, attempted to save his son Sunil; he succeeded in apprehending one accused. Before he could catch him, that accused hit him on his hand with some object. All these witnesses raised an alarm. The accused attempted to run away. One of them i.e. Nassem Ahmed was caught on the stairs by Lekh Raj P.W.5. Immediately, after the incident, Bindu telephoned control room No.100 twice. The police constable reached there. Naseem was handed over to the police by Lekh Raj Luthra. A taxi was immediately called; Lekh Raj Luthra took deceased Sunil to the hospital. Bindu also telephoned her father's friend namely Sh. Ashok Chand Sikka PW-6 and Sh. Govil (PW.22) Sh. Govil arrived and accompanied Sh. Lekh Raj Luthra to the Hospital. The police alleged that after receiving information, their officials arrived at the spot, recorded the statement of Bindu (Ex. PW-1/A), took seized articles, handkerchief, and other objects. They also took into custody Naseem Ahmed.

(3.) It was alleged that Naseem Ahmed was arrested on 26.12.1987, and the shirt worn by him was recovered by seizure memo Ex. PW-5/C. It was alleged that in the morning of 26.12.1997 Naseem made the disclosure statement Ex. PW 4/E in which, claimed the State, Naseem stated about a plan with his associates, Harvidner Pal alias Vijay Saini alias Pappi, a taxi driver, Sanjay Kumar alias Raja, Amrish Chaudhary, alias Amit, Shrab alias Shaboo to wreck revenge on Sunil Luthra and to kill him. This plan was hatched at Parade Ground Dehradun in a tea shop. Vijay Anand had assured, payment of Rs.500/- to each one of them for going to Delhi and returning back. About 8 to 10 days, prior to the date of occurrence, he along with Vijay Anand, Sohrab Alias Shaboo and Shiv had arrived at Delhi at House No. 3506, Arjun Gali, Paharganj. As they could not succeed in this plan they returned. It was also alleged that according to the disclosure, on 23.12.87 in the night he (Naseem) along with Vijay Anand, Amit, Shiv and Sanjay arrived in Delhi as per program and stayed at Avtar Hotel; they were given the site plan of Sunil's house. In accordance with this plan, he along with Sanjay, Vijay Anand, Shiv all armed with pistolsand Amit armed with knife, reached House No.610. As soon as Sunil entered the house, Vijay Anand fired but there was no shot. Then Amit attacked Sunil and his father with a knife. In the scuffle and noise, Sunil's father caught hold of him and handed him over to the police. He stated that he was later arrested from Dehradun and Bijnoor. He volunteered to get the pistol which they were armed with, recovered. It was also disclosed that there was enmity between Vijay Anand and Sunil Luthra.