ROHIT DHINGRA Vs. STATE

JUDGEMENT

(1.) The appellants impugn a judgment dated 1.06.2011 and order dated 3.06.2011 of the Additional Sessions Judge, in S.C. No. 32/2008. They were convicted of the offence punishable under Section 302/34 and are sentenced to life imprisonment and fine of Rs. 5,000. In default of payment of fine, the convict would have to further undergo imprisonment for 6 months.

(2.) The prosecution alleged that on the night intervening 10 th & 11 th January, 2008, Rohit Dhingra and Ashish@ Ashu (hereafter Appellants ) committed the murder of Mahesh Nagar (hereafter the deceased ) by clobbering his head with a stone; one Amit too was a conspirator. The crime is said to have been committed at 2 nd Pushta near Dharma Kanta Pushta, Sonia Vihar, Delhi where the body of the deceased was found on the morning of 11 th January, 2008. The prosecution had based its case against the Appellants principally on the last seen circumstance, to allege that they were perpetrators of the crime. On the basis of recoveries made, and statements recorded during the investigation, the Appellants were charged for committing the murder of Mahesh Nagar. They pleaded not guilty, and claimed trial. The prosecution relied on the evidence of 22 witnesses; principally, the testimonies of PW-3 and PW-5. After considering all these, as well as the submissions of the parties, the Trial Court convicted the Appellants, and sentenced them to prison terms, in the manner described above.

(3.) The Appellant s counsel argued that the impugned judgment of conviction is unsustainable, because it is based on shaky and tenuous evidence. Emphasizing this aspect, it was argued that PW-3 and PW-5, the witnesses to the circumstance of the accused being last seen in the company of the deceased, contradicted each other. Counsel said that whereas PW-3 said that he saw Rohit at 8:30 in the evening, (a fact admitted to in cross examination), PW-5 deposed to having seen the deceased Mahesh at 8 PM 10-1-2008. There was thus, no positive evidence that the Appellants Rohit and Ashish were seen together with Mahesh Nagar, when he was last seen alive. It was urged that the entire last seen theory was built around the alleged confessional statement said to have been recorded in the police station by the accused, said to have been witnessed by PW-5. This statement was hit by Section 25 of the Evidence Act, and no part of it could be admissible, even on an application of Section 27.