ASHWANI KUMAR Vs. STATE OF DELHI

JUDGEMENT

(1.) The present appeal has been preferred by the appellant/convict, Ashwini Kumar and Sanjay Kumar, against the Judgment dtd. 5/4/2004, vide which, they were convicted under Ss. 302/307/34 of the Indian Penal Code ["IPC"] and against the Order on Sentence dtd. 12/4/2004, passed by the learned Additional Sessions Judge, New Delhi ["trial court"], in Sessions Case No. 43/2001, arising out of FIR No. 225/1985 registered under Sec. 307/34 of the Indian Penal Code ["IPC"] at Police Station Krishna Nagar, Delhi.

(2.) The sentence awarded by the learned Trial Court on the appellants was suspended by this Court vide order dtd. 25/9/2006 and 17/2/2009 respectively. Appellant no. 1, Ashwani Kumar, expired during the pendency of the appeal and therefore the proceedings qua him stand abated vide order dtd. 18/11/2025.

(3.) The prosecution case in brief, is that on 2/6/1985, at 6:30 PM a quarrel allegedly took place between the appellants, the victim, the complainant and their companions when the complainant/Rajesh Kumar along with Bharat Bhushan (deceased), Vipin Kumar and Satish Kumar were passing near the house of Appellant No. 1/Ashwani Kumar. The said quarrel initially started with verbal abuses and later escalated to stone pelting between both sides, when one accused, Leeley Singh, fired from his 'katta' but the same did not work. At that time Appellant no. 1 asked Appellant no. 2 to fetch firearm/gun from his house and exhorted him to kill them. Appellant no. 2 immediately brought a double barrel gun and fired a shot which hit the neck of a person namely Vipin [PW3] who then fell down. Bharat Bhushan/deceased tried to overpower the appellant no. 2, when Appellant no. 1 (now deceased) snatched the gun from Appellant no. 2 and fired at the deceased on his abdomen and again loaded the gun from the cartridges belt hanging in the neck of Appellant no. 2 to fire, but could not do so since a crowd had gathered there. The appellants then went to their houses. Subsequently, both the injured persons were taken to JPN Hospital where Bharat Bhushan (deceased) succumbed to his injuries.