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PETITIONER:

MOHD. ANWAR

Vs.

RESPONDENT:

STATE OF DELHI

DATE OF JUDGMENT: 17/12/1999

BENCH:

M.B.Shah, G.B.Pattanaik

JUDGMENT:

Shah, J.

Appellants were convicted for the offence punishable

under Sections 302, 307 read with Section 34 IPC and Section

5 TADA Act, 1987 by the Designated Court, Delhi vide its

judgment and order dated 6.8.1999/ 13.8.1999 in Sessions

Case No.7/97 and FIR No.279/92. It is alleged that in the

broad day light, in the presence of police party, Khalil

Ahmad - informer of the police, was murdered by Mohd. Anwar

by firing of shot from the revolver. It is the prosecution

version that there was information about activities of

dacoits in Delhi, which was conveyed to SI Pankaj Singh. On

19.9.1992, SI Pankaj Singh along with the deceased-informer

Khalil, SI Shiv Lal (PW3), ASI Raghbir Singh (PW1),

Constable Devender (PW16), Constable Ramesh, Constable

Satbir Singh (PW13) and Constable Jagpal (PW10) went for

patrolling near Naulakha Niwas, Model Basti, Delhi. At

about 1.50 p.m., three boys were seen coming to Model Basti

from Rani Jhansi Road. On seeing the police party, they

turned back and started running. At that time, informer

Khalil pointed out towards them. The police party chased

those three boys in their vehicles by taking the same to the

wrong side of the road. When the police party reached quite

near those boys near police quarters at Ahata Kedara, the

third boy succeeded in running away while the present

appellants took out their weapons i.e. Anwar took out his

revolver and Tasleem took out his pistol. As soon as, SI

Pankaj alighted from the vehicle in order to apprehend the

accused, Tasleem asked his companion Maro Salon Ko. At

this, accused Anwar who was holding revolver in his hand

fired therefrom. The bullet hit at the left side chest of

Khalil, who was just alighting from the police vehicle. SI

Shiv Lal immediately made Khalil to sit in the vehicle. At

that stage, SI Pankaj Singh and ASI Raghbir Singh fired two

rounds each in reply. Both the accused also continued to

fire and retreat. They were apprehended at the main gate of

police colony, Ahata Kedara. ASI Raghbir Singh apprehended

accused Tasleem and SI Pankaj Singh apprehended accused

Anwar with the help of constable Satbir and other staff. At

that time, because of commotion, crowd collected and some

persons out of the crowd also started beating the accused

persons due to anger but the police rescued them. Injured

Khalil was sent to the hospital alongwith SI Shiv Lal. From

accused Anwar, English made revolver of .32 bore, which was

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in his hands, was seized and on checking its chamber four

cartridges cases and two live cartridges were found. On

further search, six more live cartridges were recovered from

the right side pocket of his pants. It is also contended

that from accused Tasleem a country made .315 pistol, which

was in his hands, was seized. On checking the said pistol,

one cartridge case was found in chamber and on further

search five more live cartridges were recovered from the

right side pocket of pants of the accused. On

interrogation, the accused disclosed the name of their third

accomplice as Salim alias Pinny, who was also arrested.

It has been contended that at the initial stage,

police registered a case under Section 307 read with Section

34 IPC and Section 5 TADA Act. However, after receipt of

information from SI Shiv Lal, who had gone to the hospital

alongwith the injured Khalil, that Khalil was declared

brought dead to the hospital, offence under Section 302 IPC

was added. After completion of the inquiry, charge sheet

was submitted against the appellants, Salim and other three

persons. As there was no evidence against Salim and other

three persons, they were discharged. It is the defence of

the accused that the entire police version is false and that

they were lifted from their houses and were roped in this

case. After considering the evidence, which was led by the

prosecution, the appellants have been convicted by the

designated court.

Against the said judgment and order both the accused

have filed separate appeals. Mohd. Anwar has filed

Criminal Appeal No.1045 of 1999 and Tasleem has filed

Criminal Appeal No.1175 of 1999 against their conviction and

sentence.

The learned senior counsel, Mr. Jaspal Singh

appearing on behalf of appellant, Mohd. Anwar submitted

that the impugned judgment and order passed by the learned

Judge is illegal and erroneous and that the entire

prosecution version is false and accused are roped in

fabricated case. He submitted that admittedly number of

persons had collected at the scene of offence yet no

independent witness was examined by the prosecution. He

further pointed out that SI Pankaj Singh was not examined by

the prosecution and, therefore, also benefit of doubt should

be given to the appellant. It is his contention that the

investigating officer ought not to have used the vehicle

wherein the deceased Khalil was asked to sit after receipt

of injury for carrying him to hospital. The bullet

recovered from the body of the deceased was not compared by

the ballistic expert. Blood was also not collected from the

scene of offence and, therefore, prosecution version becomes

doubtful that the incident occurred at the alleged place.

He further submitted that there is no positive evidence to

establish that the deceased has not expired because of the

firing by SI Pankaj Singh and ASI Raghbir Singh, who, as per

the prosecution story, fired in retaliation.

The learned senior counsel, Mr. Sushil Kumar

appearing on behalf of Tasleem, in addition, submitted that

the role assigned to the accused Tasleem is that he exhorted

Maro Salon Ko at the time of incident and for that he is

convicted for the offence under Section 302/34 IPC. The

prosecution version cannot be relied upon in view of the

fact that in the present case apart from two accused, the

police had roped in four more other persons, who were

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discharged by the learned Judge by order dated 09.1.1996.

He submitted that both the accused were seriously beaten up

by the police after picking them from their residence. The

prosecution has intentionally not produced on record the

medical reports indicating the injuries caused to the

accused as well as SI Pankaj Singh. He submitted that there

is no reliable evidence on record to establish that pistol

was seized from the possession of Tasleem.

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riminal Appeal No.1045 of 1999 filed by Anwar. It is

to be stated at the outset that prosecution has proved that

accused Anwar fired from his revolver which caused the death

of informer Khalil. For that purpose, the prosecution has

relied upon the evidence of PW1 Raghbir Singh, who has

stated that police party took the vehicle and chased the

accused near the gate of police quarters, Ahata Kedara. At

that time, one of the boys escaped from the spot and out of

remaining two, Anwar took out a revolver and Tasleem took

out a country made pistol on seeing the police party. Anwar

fired from his revolver which caused injury to the informer.

He has also stated that SI Pankaj Singh overpowered the

accused Anwar and took into possession a .32 bore revolver

with six rolls, out of which four rolls were found empty as

having been fired and remaining two rolls were found lying

in the chamber. He has also stated that SI Pankaj Singh

requested many persons who were on the spot to join the

investigation but none agreed. He has identified the

revolver seized from the accused Anwar. The evidence of

this witness with regard to the role played by Anwar is

fully corroborated by PW3 SI Shiv Lal, PW10 HC Jagpal, PW13

HC Satbir Singh and PW16 Constable Devender. Apart from

this ocular version of the witnesses, from the possession of

Anwar .32 bore English made revolver was seized alongwith

four cartridges cases and two live cartridges and six more

cartridges were recovered from his possession. These were

examined by PW6 Dey. Sr. Scientific Officer cum Assistant

Chemical Examiner, CFSL, CBI, New Delhi and according to his

report English revolver was in working order. Further, he

has given an opinion with regard to .32 lead deformed

bullet which was found from the body of deceased and has

stated that it was fired from .32 bore revolver, Ex.P1.

That lead bullet was taken out from the dead body of

deceased by Dr. L.K. Barua (PW18) during postmortem. As

per the postmortem report, deceased was having one rounded

punctured wound on the left side from the front of chest.

Aforesaid evidence, in our view, conclusively connects

the accused Anwar with the crime. However, learned counsel

Mr. Jaspal submitted that prosecution has failed to examine

any independent witness. In our view, there is no reason to

disbelieve the say of PW1 that SI Pankaj Singh tried to

record the statement of some persons who collected at the

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spot but none agreed to be a witness. For such situation,

prosecution cannot be blamed. For the non-examination of

investigating officer, SI Pankaj Singh, it was pointed out

that he was out of the country when the evidence was

recorded and, therefore, this also would be hardly a ground

for disbelieving the other witnesses who were present on the

spot. Learned counsel has further pointed out that

investigating officer ought not to have used the vehicle

wherein deceased Khalil was asked to sit after receiving

bullet injury. In our view, this submission is without any

substance because for giving immediate treatment deceased

was required to be removed to the hospital and, therefore,

at that point of time the act of the investigating officer

of using that vehicle for removing him to the hospital,

would not in any way affect the prosecution version. It is

to be stated that the said vehicle was not used for the

commission of offence. Similarly, the contention of the

learned counsel for the appellant that bullet recovered from

the body of the deceased was not compared by the ballistic

expert to find out whether it was bullet fired from the

revolver of SI Pankaj Singh or PW1 ASI Raghbir Singh

requires to be rejected, in view of the definite evidence on

record which establishes that .32 lead deformed bullet,

which was found from the body of the deceased, was fired

from English revolver which was seized from Anwar.

Hence, in our view, there is no substance in this

appeal and the learned designated court has rightly

convicted the appellant, Anwar for the offence for which he

was charged.

CRIMINAL APPEAL NO.1175 OF 1999

Now we would deal with the Criminal Appeal No.1175 of

1999 filed by Tasleem. He has been convicted for the

offence punishable under Section 302 read with Section 34

IPC and sentenced to suffer imprisonment for life and to pay

a fine of Rs.500/-. He is also convicted for the offence

under Section 307 read with Section 34 IPC and sentenced to

suffer RI for 5 years and to pay a fine of Rs.500/- and

under Section 5 TADA (P) Act, 1987 to undergo R.I. for 5

years and to pay a fine of Rs.500/-. The learned counsel

pointed out that the appellant is in jail since the day of

offence i.e. 19.9.1992 and he has already undergone the

sentence for the offence punishable under Section 307 IPC

and Section 5 of the TADA (P) Act. He, therefore, submitted

that assuming that the said conviction is valid yet there

was no reason for convicting the accused for the offence

punishable under Section 302 read with Section 34 IPC solely

on the alleged ground that Tasleem has exhorted as alleged,

particularly when the police had falsely involved four other

persons, who were required to be discharged. For this

purpose, we are also taken through the evidence of all the

witnesses. From the evidence on record, the role assigned

to Tasleem is that he was accompanying Anwar and that he was

having pistol in his pocket. When they were chased and

cornered, both took out their fire arms and it is alleged

that Tasleem uttered the words Maro Salon Ko. Question

is, whether prosecution has established the said part of its

version beyond reasonable doubt. For this purpose, it can

be noted that PW1 ASI Raghbir Singh had not specifically

stated that Tasleem exhorted Anwar by using the words Maro

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Salon Ko. He has only stated that Mohd. Anwar took out a

revolver and Mohd. Tasleem took out a country made pistol

on seeing the police party and fired at them. Thereafter,

he has improved and stated that Anwar fired at the instance

of Tasleem. The court while recording the evidence has

noted that witness has identified Tasleem as Anwar and Anwar

as Tasleem. It is true that PW10 HC Jagpal Singh, PW13 SI

Shiv Lal, PW13 Constable Satbir Singh and PW 16 Constable

Devender have deposed to the effect that Tasleem has

exhorted other boys by uttering Maro Salon Ko. ASI

Raghbir Singh has specifically not deposed that Tasleem has

exhorted and thereafter Anwar fired from his revolver, which

caused injuries to the deceased. P.W.10 Jagpal Singh has in

his examination-in-chief merely stated that after chasing

the accused when they stopped the vehicle, Tasleem told his

companions to shoot them. He has not specifically used the

words Maro Salon Ko. In his cross-examination, he has

stated that when Khalil got down from the vehicle, accused

shouted Maro Maro. He was contradicted with his 161

statement, but as the Investigating Officer is not examined,

nothing can be stated about that part of the evidence.

Further, the prosecution version is that both appellants

alongwith other persons had gone near Naulakha house for

allegedly committing dacoity. However, that would not mean

that after being chased by the police party accused were

having any common intention to kill the chasing party.

There is nothing on the record to establish that by alleged

firing by Tasleem injury was caused to anyone. Hence we do

not discuss the other contention raised by learned counsel

Mr. Sushil Kumar that from Tasleem tamancha was not

recovered or, in any case, the said recovery is not proved.

Further, it is to be noted that at the initial stage, six

persons were chargesheeted for the alleged offences. The

learned Judge discharged four of them. In this set of

circumstances, it would be unsafe to rely upon the evidence

of prosecution witnesses that Tasleem exhorted or uttered

the words Maro Salon Ko as alleged and therefore, Anwar

fired from his revolver which caused injury to the deceased

Khalil. From the facts and circumstances it would be

difficult to infer that Tasleem was having any common

intention to commit the crime for which Anwar is convicted.

Hence, conviction of Tasleem for the offence punishable

under Section 302 read with Section 34 IPC requires to be

set- aside.

As submitted by learned senior counsel Mr. Sushil

Kumar, for the other role played by Tasleem, for which he is

convicted and has undergone the sentence, the evidence is

not required to be re-appreciated.

In the result, Criminal Appeal No. 1175 of 1999 filed

by Tasleem is partly allowed. He is acquitted of the

offence punishable under Sections 302 read with Section 34

IPC. Rest of the order passed by the learned Judge is

confirmed. If he has already undergone the sentence for

those offences, he be set at liberty immediately if not

required in any other case.

Criminal Appeal No. 1045 of 1999 filed by Anwar is

dismissed.