Vs. State of Delhi  INSC 428 (17 December 1999)
G.B.Pattanaik Shah, J.
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 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.
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.
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.
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.
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.
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 discharged by the learned
Judge by order dated 09.1.1996.
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.
against this Criminal 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.
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.
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.
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 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.
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
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 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.
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.
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.
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.
conviction of Tasleem for the offence punishable under Section 302 read with
Section 34 IPC requires to be set- aside.
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.
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.
Appeal No. 1045 of 1999 filed by Anwar is dismissed.