Ajay Malhotra & Anr. vs State Govt. Of Delhi
2014 Latest Caselaw 4106 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                             Judgment Reserved on : August 27, 2014
                         Judgment Pronounced on : September 03, 2014

+                        CRL.A.356/2011

       AJAY MALHOTRA & ANR.                  .....Appellants
               Represented by: Ms.Saahila Lamba, Advocate

                                 versus

       STATE GOVT OF DELHI                          ..... Respondent
               Represented by:        Mr.Lovkesh Sawhney, APP
                                      Insp.Subodh Kumar, PS Patel
                                      Nagar
       CORAM:
       HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
       HON'BLE MS. JUSTICE MUKTA GUPTA

PRADEEP NANDRAJOG, J.

1. Process of criminal law was set into motion when at around 10.50 P.M. on March 18, 2007, SI Raj Kumar PW-8, recorded DD No.37A, Ex.PW-8/A, noting therein that an unknown person has informed over the telephone that a person is lying dead in a street behind Shadipur Metro Station.

2. Being handed over a copy of DD No.37A, accompanied by Ct.Anil Kumar PW-16, SI Jitender Tiwari PW-18, proceeded to the street behind Shadipur Metro Station where a person named Mukesh (hereinafter referred to as the 'Deceased') was lying unconscious.

3. In the meantime, a PCR van reached the spot and removed the deceased to Deen Dayal Upadhaya Hospital where the deceased was declared brought dead as recorded in the MLC Ex.PW-23/A.

4. At the hospital Rajnish PW-4 met SI Jitender Tiwari who claimed to have knowledge as to how the deceased was injured. SI Jitender Tiwari recorded the statement Ex.PW-4/A of Rajnish and made an endorsement Ex.PW-18/A thereunder at 1:10 hours on March 19, 2007. He handed over the same to Ct.Anil Kumar for FIR to be registered. Ct.Anil Kumar took the rukka to PS Patel Nagar where HC Amir Singh PW-3, recorded the FIR No.182/2007, Ex.PW-3/C.

5. The statement Ex.PW-4/A of Rajnish, in Hindi, loosely translated reads as under:-

"I reside at the house bearing Municipal No.J-503, Gali No.3, Prem Nagar, Patel Nagar with my parents. Presently, I am working at RJ Credits, 8/47, first floor, South Patel Nagar, New Delhi - 8 and assigned the task of distribution of pamphlets. The deceased and two others persons viz. Sanju and Sanjeet work with me at RJ Credits. One month ago my friend Jona introduced us (he, Sanju, Sanjeet and deceased) to Ajay Malhtora @ Lucky in connection with some work. We worked with Lucky in connection with a marathon race organized by Hangama TV which was held at Nehru Stadium, New Delhi and for which we boys were to be paid wages including conveyance expenses in sum of `2,200/-. We repeatedly asked Ajay @ Lucky to pay our wages but he did not do so. Two days ago we four boys again asked Lucky to pay our wages whereupon he (Ajay) along with some of his associates started abusing and threatening us. We objected to the aforesaid conduct of Ajay and asked him to pay our wages. Yesterday i.e. March 18, 2007 at about 06.00 P.M. I met Lucky and again asked him to make payment upon which Lucky told me that all the boys wanting payment of their wages should come at a park near Satyam cinema at about 8.30 - 09.00 P.M., which information was given by me to my associates Sanju, Sanjeet, deceased and we went to the park near Satyam cinema. At around 09.00 P.M. Ajay @ Lucky along with his six friends came in the park. Ajay asked us about our remaining associates upon which I told him that I have not been able to meet his other associates. For about ten-fifteen minutes Ajay

engaged us in some casual conversation and told us that he has informed our remaining associates and they have come in the street behind Shadipur Metro station. He further told us that we (he, Sanju, Sanjeet and deceased) should go there, he (Ajay) and his associates are also coming there and he would pay them their wages there. The four of us went to the street behind metro station. In the meantime, Ajay and his six associates namely, Sagar @ Chubu, Rajesh @ Ramka, Rahul Kumar, Karan @ Vicky, Ravi and Rahul Kohli who are residents of Shadi Khampur and New Ranjeet Nagar also came there. I have seen the aforesaid six associates of Ajay along with him on previous occasions and have also met them. On reaching the street Ajay and his associates surrounded them from all four sides and suddenly attacked them. Sagar @ Chubu had an open knife in his hand and Rajesh @ Ramka had an iron punch in his right hand. Ajay exhorted his associates to the effect that four of us should not be able to leave alive today and that we should be finished upon which all of them (Ajay and his six associates) started beating them. Rajesh @ Ramka caused injuries to me and Sanju with iron punch. Karan, Ravi and Rahul Kohli one by one gave beatings to me, Sanju and Sanjeet. While we were trying to run to save our lives Rahul Kohli snatched my mobile phone having number 9213189021 from his pocket. Rahul Kumar and Ajay @ Lucky caught hold of the deceased from right and left sides respectively and Sagar stabbed him (deceased) in his stomach with the open knife held by him whereupon the deceased fell on the ground. I, Sanju and Sanjeet fled from there. At about 2300 hours we again went to the street behind metro station and the police was present there at that time. Sanjeet Kumar went to the hospital in the vehicle of police. We (he and Sanju) also went to DDU Hospital where the doctors declared my friend deceased as brought dead. Ajay @ Lucky, Rahul Kumar, Sagar @ Chubu, Rahul Kohli, Ravi, Karan @ Bunty and Rajesh @ Ramka together with the intention of causing death had attacked and stabbed my friend deceased and caused his death. We have also sustained injuries. A legal action be taken against them."

6. SI Jitender Tiwari also recorded the statements of Sanju PW-5 and Sanjeet Kumar PW-20 under Section 161 Cr.P.C. wherein they also

indicted appellants Ajay Malhotra @ Lucky and Rahul Kohli along with Rahul Kumar, Sagar @ Chubu, Ravi, Karan @ Bunty and Rajesh @ Ramka (all juvenile) as the persons who had attacked the deceased as also Ranjish, Sanju and Sanjeet.

7. On the same day i.e. March 19, 2007 at about 02.00 P.M. Dr.B.N.Mishra PW-10, conducted the post-mortem of the dead body of the deceased and prepared the post-mortem report Ex.PW-10/A. The external injuries found on the person of the deceased are as follows:-

"(i) One spindle shaped stab wound ( 2 cm x 1 cm x cavity deep) present at lower part of chest at mid clavicular line with located 13 cm from left nipple 17.5 cm from left iliac crest with sharp edge with oozing of blood present. Directed obliquely upwards - backwards.

(ii) One stab wound (1.2 cm x 0.7 cm x 0.5 cm) present on lateral aspect of back at the line of posterior axillary fold with sharp margins.

(iii) One stab wound (0.1 cm x 0.7 cm x 0.5 cm) present on the lateral 1/3 part of left thigh with sharp margins."

8. The post-mortem report Ex.PW-10/A of the deceased records that the cause of death is due to hemorrhagic shock consequent upon laceration of pancreas and left lobe of lung followed by stab wound (vide injury No.1) and that injury No.1 is sufficient to cause death.

9. On the basis of a secret information, the appellants as also Rahul Kumar, Sagar @ Chubu, Ravi, Karan @ Bunty and Rajesh @ Ramka were arrested on March 19, 2007. Inspector Kapil Parasher PW-22, interrogated the appellants in the presence of SI Jitender Tiwari PW-18, Ct.Anil Kumar PW-16 and Ct.Sanjeev PW-9. Appellant Ajay Malhotra @ Lucky made a disclosure statement Ex.PW-9/D, which is inadmissible in evidence because no recovery pursuant thereto was made. Appellant

Rahul Kohli made a disclosure statement Ex.PW-9/E informing that he can get recovered the mobile phone of Sanjeet which he had snatched. He thereafter recovered a mobile phone from his residence and handed over the same to the Investigating Officer.

10. The appellants were sent for trial before a regular Court. The juvenile accused Rahul Kumar, Sagar @ Chubu, Ravi, Karan @ Bunty and Rajesh @ Ramka were referred to the Juvenile Justice Board for trial.

11. Charges were framed against the appellants for having committed offences punishable under Sections 147, 148 and 149 IPC read with Section 302 IPC. The substance of the charge framed against the appellants was that they formed an unlawful assembly with five juvenile co-accused at about 09.30 P.M. on March 18, 2007 with a common object. They armed themselves with deadly weapons at a street behind Shadipur Metro Station, for purpose of rioting and committing murder of the deceased.

12. Apart from examining the police officers associated with the investigation, Rajnish, Sanju and Sanjeet Kumar were examined as PW-4, PW-5 and PW-20 respectively.

13. Rajnish PW-4, deposed on the lines of his earlier statement Ex.PW-4/A with variations which we shall be highlighting a little later, but at this stage would note that he could not state with clarity as to which accused gave an exhortation to kill the deceased along with Rajnish, Sanju and Sanjeet. It would be relevant to note that as per him after the deceased was stabbed Sanju, Sanjeet and he fled and went to their respective houses. He deposed that after sometime Sanjeet came to his house and informed him that the deceased had not returned to his house

whereupon they again went to the place of occurrence (street behind Shadipur metro station) where the deceased was still lying unconscious. He deposed that Sanjeet Kumar went to the police station at Patel Nagar and informed the police about the murder of the deceased. He stated that he was got medically examined by the police after his statement was recorded. (Pertinently, neither MLC of Rajnish is on the record nor has any police officer deposed of Rajnish being medically examined).

14. Sanju PW-5, did not support the case of the prosecution and turned hostile.

15. Sanjeet Kumar PW-20, also deposed substantially in sync with what Rajnish had said in his statement Ex.PW-4/A, with differences regarding role attributed to the different accused, which we shall be highlighting a little later. Being relevant, questioned about his claim to be injured and what happened to his medical examination, on being suggested that his claim of being injured was wrong, during cross examination he said: „It is wrong that police did not get me medically examined as I was not having any serious injury. I did not tell IO that I was having pain so I would make statement later or that I wanted to get myself medically examined. Vol. I got upset after seeing the dead body of my friend.‟

16. It would be better if we note the differences between the statement Ex.PW-4/A of Rajnish and his testimony and that of Sanjeet Kumar PW- 20, regarding the role attributed by them to the accused persons in a tabular form. The same would be as under:-

 Name      of Role attributed by        Role attributed   Role attributed
accused      Rajnish in his            by      Rajnish   by        Sanjeet
person       statement Ex.PW-          PW-4, in his      Kumar PW-20,
             4/A                       testimony         in his testimony
Appellant    Exhortation               Caught hold of    Exhortation
Ajay                                   deceased
Malhotra     Caught hold of            Mukesh           Caught hold of
             deceased Mukesh                            deceased
Appellant    Beatings        to        Caught hold of Beatings       to
Rahul Kohli Rajnish, Sanju and         deceased         Sanjeet     and
             Sanjeet                   Mukesh           Sanju
Rahul Kumar Caught hold of             -                Caught hold of
             deceased Mukesh                            deceased
Rajesh    @ Hit Rajnish and            Hit Rajnish with Probably gave
Ramka        Sanju with iron           iron punch       beatings     to
             punch                                      Rajnish     and
                                                        Sanju with iron
                                                        punch.

                                                         Beatings       to
                                                         Sanjit and Sanju
                                                         Stated in his
                                                         examination-in-
                                                         chief that Rajesh
                                                         had stabbed the
                                                         deceased
Karan         @ Beatings         to -                    Beatings     with
Bunty           Rajnish, Sanju and                       iron punch
                Sanjeet
Ravi            Beatings         to -                    Beatings   with
                Rajnish, Sanju and                       iron punch
                Sanjeet
Sagar         @ Stabbed deceased    Stabbed              Stated in his
Chubu                               deceased             cross-
                                                         examination by
                                                         prosecutor that
                                                         Sagar @ Chubu
                                                         had stabbed the
                                                         deceased.

17. The appellants pleaded false implication.

18. Holding that the evidence of Rajnish PW-4 and Sanjeet Kumar PW-20, inspires confidence, vide impugned judgment dated October 20, 2010 the learned Trial Judge has convicted the appellants of having formed an unlawful assembly, object whereof was to cause rioting and commit murder of the deceased. Vide order dated October 25, 2010 the learned Trial judge has sentenced the appellants to undergo imprisonment for life and pay fine in sum of `5,000/- for having committed offence punishable under Section 302 IPC read with Section 149 IPC; in default to undergo rigorous imprisonment for a period of six months. For the offence punishable under Section 148 IPC the appellants have been sentenced to undergo rigorous imprisonment for a period of three years.

19. Section 141, IPC defines 'unlawful assembly' as under:-

"An assembly of five or more persons is designated an "unlawful assembly", if the common object of the persons composing that assembly is -

First - To overawe by criminal force, or show of criminal force the Central or any State Government or Parliament or the Legislature of any State or any public servant in the exercise of the lawful power of such public servant; or Second - To resist the execution of any law, or of any legal process; or Third - To commit any mischief or criminal trespass, or other offence; or Fourth - By means of criminal force, or show of criminal force, to any person, or take or obtain possession of any property, or to deprive any person of the enjoyment of a right of way, or of the use of water or other incorporeal right of which he is in possession or enjoyment, or to enforce any right or supposed right; or

Fifth - By means of criminal force, or show of criminal force, to compel any person to do what he is not legally bound to do, or omit to do what he is legally entitled to do. Explanation - An assembly which was not unlawful when it assembled, may subsequently become an unlawful assembly."

20. Section 149 IPC reads as follows:-

"If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members or that assembly knew to be likely to committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence."

21. It is apparent that under Section 149 IPC the emphasis is on common object and not on common intention. Mere presence in an unlawful assembly cannot render a person liable unless there was a common object and he was actuated by that common object and that object is one of those set out in Section 141 IPC. The crucial question to be determined would be whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects as specified in Section 141 IPC. It cannot be laid down as a general proposition of law that unless an overt act is proved against a person, who is alleged to be a member of the unlawful assembly, it cannot be said that he is not a member of the unlawful assembly. The only thing required is that he should have understood that the assembly was unlawful and was likely to commit any of the acts which fall within the purview of Section 141. The word 'object' means the purpose or design and in order to make it 'common' it must be shared by all. In other words, the object should be common to the persons, who compose the assembly, that is to say, they should all be aware of it and concur in it. A common object may be formed by

express agreement after mutual consultation, but that is by no means necessary. It may be formed at any stage by all or a few members of the assembly and the other members may just join and adopt it. Once formed, it need not continue to be the same. It may be modified or altered or abandoned at any stage. The expression 'in prosecution of common object' appearing in Section 149 IPC has to be strictly construed as equivalent to 'in order to attain the common object'. It must be immediately connected with the common object by virtue of the nature of the object. There must be community of object and the object may exist only up to particular stage and not thereafter. Members of an unlawful assembly may have community of object up to certain point beyond which they may differ in their objects and the knowledge possessed by each member of what is likely to be committed in prosecution of their common object may vary not only according to the information at his command but also according to the extent to which he/she shares the community of objects and as a consequence of this, the effect of Section 149 IPC may be different on different members of the same assembly.

22. The common object of an assembly is to be ascertained from the acts and language used by the members composing the assembly; taking into account all surrounding circumstances. The conduct adopted by the members of the assembly is an important circumstance to be kept in mind. Similarly, the arms carried by the members of the assembly and their behavior at or near the scene of incident are also important circumstances to be kept in mind. The time of forming an unlawful intent is not material. An assembly of persons may be an innocuous gathering

initially but may subsequently become unlawful. In other words common object can develop during the course of an incident at the spot constanti.

23. Section 149 IPC consists of two parts. The first part of the section means that the offence to be committed in prosecution of the common object must be one which is committed with a view to accomplish the common object. In order that the offence may fall within the first part the offence must be connected immediately with the common object of the unlawful assembly of which the accused was a member of. Even if the offence committed is not in direct prosecution of the common object of the assembly it may yet fall under Section 149 IPC if it can be shown that the offence was such as the members knew was likely to be committed and this is what is required in the second part of the section. The purpose for which the members of the assembly set out or desired to achieve is that object. If the object desired by all the members is the same the knowledge that the object which is being pursued is shared by all the members and they are in general agreement as to how it is to be achieved and that is now the common object of the assembly. An object is entertained in the human mind and it being merely a mental attitude no direct evidence can be available and like intention, has to be gathered from the acts which the person commits and the result thereof. The word 'knew' used in the second part of Section 149 means something more than a possibility and it cannot be made to bear the sense of 'might have been known'.

24. On a first blush, the two eye-witnesses : Rajnish PW-4 and Sanjeet Kumar PW-20 have supported each other. It is for this reason that the learned Trial Judge has accepted their version.

25. But, the learned Trial Judge has glossed over a very important circumstance. From the charge sheet as also the testimonies of the two eye-witnesses : Rajnish PW-4 and Sanjeet Kumar PW-20, it is apparent that there was tension between the deceased, Rajnish, Sanju and Sanjeet Kumar on one hand and the appellant Ajay Malhotra on the other, regarding the payment of wages. In such a situation, as held in the decisions reported as 1981 Cri. L.J. 1034 State of U.P. v. Sahai & Ors, 2003 Cri. L.J. 401 Raghunath & Ors. v. State of Haryana and JT 2010 (1) SC 24 Bodella Babul Reddy v. Public Prosecutor, HC of AP, it is not unusual for a factionist to take advantage of the occurrence and there is an incurable tendency in the factionists to rope in the innocent members of the opposite faction along with the guilty and twist and manipulate the facts with regard to the mode and manner of the occurrence so as to make their case appear true with the innocent members of the opposite faction also as participants in the occurrence. In such situations, it is the duty of the Court to microscopically scrutinize the evidence of the eye-witnesses.

26. The incident in question happened at about 09.30 P.M. on March 18, 2007. The first information regarding the incident was received by the police at around 10.50 P.M. on March 18, 2007 when an unknown person gave information about the death of the deceased upon which DD No.37A was recorded at PS Patel Nagar.

27. Rajnish PW-4 and Sanjeet Kumar PW-20 had deposed that they had fled from the place of occurrence when the deceased was stabbed by the accused. After fleeing from the place of occurrence, Rajnish and Sanjeet Kumar did not inform the police about the incident. They remained mum. (Though Rajnish and Sanjeet Kumar have claimed that Sanjeet Kumar had gone to the police station and informed about the

incident the same is palpably false in view of the recording contained in DD No.37A that an unknown person has given information about the death of the deceased). The narratives noted by us hereinabove clearly show that Rajnish and Sanjeet Kumar reappeared at the place of occurrence much later at about 11.00 P.M. by which time the police had already arrived there.

28. The conduct of Rajnish and Sanjeet Kumar of not informing the police about the incident in question after fleeing from the place of occurrence, despite their friend bleeding to death, is most unnatural.

29. Why did Rajnish and Sanjeet Kumar chose to remain silent? What were they hiding?

30. There is something more than what meets the eye.

31. In the decision reported as AIR 2001 SC 2902 Kashi Ram & Ors. Vs. State of M.P., in paragraph 24 it was observed that notwithstanding that at neither three stages : (i) when witnesses of the prosecution are cross examined; (ii) when examined under Section 313 Cr.P.C.; and (iii) entitled to lead defence evidence, an accused introduces a plea, it can still be raised during the course of submissions by relying on the probabilities and circumstances emerging in the case. It may be true that as opined in the decision reported as AIR 1990 SC 1459 Vijayee Singh Vs. State of U.P. the Supreme Court cautioned the Courts by emphasizing the difference between a flimsy or fantastic plea taken by the defence which is to be rejected all together, but a reasonable plea which casts a doubt on the prosecution version has to be taken note of. The doubt has to be that of a reasonable, astute and alert mind, arrived at after due application of

mind to every relevant circumstance of the case appearing from the evidence which is reasonable.

32. Rajnish and Sanjeet Kumar have claimed that they also suffered injuries when they were attacked by the accused. Rajnish and Sanjeet Kumar were got medically examined by the police. No MLC of the two has been filed by the investigating officer. We have already noted hereinabove in a tabular form the difference in the version qua role played by different accused in the deposition of the two witnesses. We are conscious of the fact when the number of accused are large, different witnesses do tend to assign a different role to the accused, which would be natural when two persons deposed the same fact concerning various accused after a couple of months of the incident. But at the same time, in the instant case conduct of Rajnish and Sanjeet coupled with the fact that there was an issue of receiving money from Ajay Malhotra requires this Court to find out that elusive nugget of truth which the Court has to find in every criminal trial.

33. The facts probablize that in the instant case a fight ensued between deceased, Rajnish, Sanjeet Kumar and Sanju on one hand and Ajay Malhotra and his six associates viz. Rahul Kohli, Rahul Kumar, Rajesh @ Ramka, Sagar @ Chubu, Karan @ Vicky and Ravi over payment of wages. The deceased ended up losing his life in said fight. Rajnish and Sanjeet Kumar got scared that they may be held responsible for the death of deceased and thus fled from the place of occurrence. After sometime Rajnish and Sanjeet Kumar gathered their wits and returned to the place of occurrence and gave statements to the police stating therein that they (deceased, Rajnish, Sanjeet Kumar and Sanju) were attacked by the accused.

34. By looking at the evidence in the instant case we find it difficult to conclusively determine as to what is the origin of the fight. It could be that the deceased, Rajnish, Sanjeet Kumar and Sanju went to the place of the occurrence to fight with the appellant Ajay Malhotra and his associates and got outnumbered. It is also possible that Ajay Malhotra and his associates triggered the fight. Whatever it may be, the fact of the matter is that no unlawful assembly was formed by appellants Ajay Malhotra and Rahul Kohli and their associates to murder the deceased. In this connection, it is important to note that save and except the deceased no other person from the side of the deceased (Rajnish, Sanju and Sanjeet Kumar) got injured. We also note that as per Rajnish and Sanjeet Kumar, the appellant Ajay Malhotra and Rahul Kumar had caught hold of the deceased and Sagar @ Chubu had stabbed him. No role is attributed to the remaining four accused viz. appellant Rahul Kohli, Karan @ Vicky, Ravi and Rajesh @ Ramka. (Rajnish PW-4, claimed in his testimony in Court that it was appellant Rahul Kohli who had caught hold of the deceased but the same is clearly false in view of the facts that Rajnish had attributed the role of catching hold of the deceased to Rahul Kumar and not appellant Rahul Kohli in his earlier statement Ex.PW-4/A and Sanjeet Kumar had also attributed the role of catching hold of the deceased to Rahul Kumar and not to appellant Rahul Kohli in his testimony.)

35. A somewhat analogous situation had arisen before the Supreme Court in the decision reported as 1993 (3) SCALE 899 Shikhar Behera & Ors. v. State of Orissa. In said case, a free fight had ensued between two groups over possession of a disputed land. It was held that where death is caused in a free fight between two groups, nature of participation,

weapon used and injuries caused are factors relevant to infer common object of members of the alleged unlawful assembly. After noting that only two out of eight injuries found on the person of first deceased and one out of seven injuries found on the person of second deceased were serious it was held by the Court that the common object of the assembly was to indulge in a fight and resume possession of the land in dispute and not to murder anyone. Being relevant, we note the following observations made by the Court:-

"In such a free fight, the question of one party being aggressor may not arise. However, the members of each party would be members of the unlawful assembly with the common object to fight. But the nature of participation, the weapons used and injuries caused would also be relevant to infer the nature of the common object. In the instant case, it is not safe to hold that the common object of the unlawful assembly was to commit murder and that everyone knew that the same would attract Section 302 IPC."

36. In view thereof, we set aside the conviction of appellant Rahul Kohli under Section 302/148/149 IPC.

37. As regards appellant Ajay Malhotra @ Lucky the position is little different. Ajay Malhotra @ Lucky had caught hold of the deceased when he was being stabbed by Sagar @ Chubu. Three injuries were found on the person of the deceased, out of which one was serious. Under these circumstances, appellant Ajay Malhotra @ Lucky is convicted for the offence punishable under Section 304 IPC i.e. culpable homicide not amounting to murder.

38. Accordingly, the conviction of appellant Ajay Malhotra @ Lucky for the offence punishable under Section 302/148/149 IPC is modified to one under Section 304 IPC.

39. A perusal of the nominal roll of appellant Ajay Malhotra @ Lucky shows that he has remained behind bars for about seven years. Ends of justice would be served if appellant No.2 is directed to be sentenced for the period already undergone by him.

40. The appeal is disposed of setting aside the conviction of the second appellant Rahul Kohli who being on bail vide order dated December 13, 2011 requires it to be directed that the bail bond and surety bond furnished by him are discharged. The first appellant Ajay Malhotra is convicted for the offence of culpable homicide not amounting to murder pertaining to the death of Mukesh and for which offence we sentence him to imprisonment for the period already undergone.

41. Copy of this decision be sent to the Superintendent Central Jail Tihar for compliance and record. Unless required in some other case, Ajay Malhotra shall be released from prison.

42. TCR be returned.

(PRADEEP NANDRAJOG) JUDGE

(MUKTA GUPTA) JUDGE SEPTEMBER 03, 2014 mamta