Full Judgment Text
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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.