& ANR Vs. State of Delhi Thr. Secretry  INSC 23 (10 February 1999)
S.N. Phukan. Nanavati, J.
these appeals arise out of the common judgment passed by the court of Additional Designated
Court - II, Delhi. Suleman and Chiman are the
appellants In Criminal Appeal No. 627/98 and Sadhu Ram is the appellant In
Criminal Appeal No.750/98, The three appellants alongwith two others were tried
for the offences punishable under Sections 399 and 402 I PC and Section 5 of
the TADA Act. The three accused who were alleged to be in possession of knives
were further charged under Section 25 of the Arms Act. The allegation against
the appellants and the other accused was that they were planning to commit a dacoity
and for that purpose they had assembled in Sarup Nagar Dharamshala with arms
order to prove its case, the prosecution had examined P.W.2 - Head Constable Chand
Singh, P.W.3 - Rampal Sharma and P.W. 6 S.I. Om Prakash.
prosecute on had also led evidence to prove that the seized articles were kept
in proper custody and that the two fire arms were examined by the Central
Forensic Science Laboratory. Relying upon the evidence of P.Ws. 2,3 and 5, the
designated Court held that all the five accused had assembled in the Dharamshala
at Sarup Nagar as alleged and were planning to loot a petrol pump on that day.
As the appellants were held to have made preparations for committing dacoity
and assembled for that purpose, they were convicted both under Sections 399 and
402 IPC. The trial court also held appellants Suleman and Sadhu Ram guilty
under Section 5 of the TADA Act as they were found in possession of fire arms
counsel for the appellants took us through the evidence of P.Ws. 2,3 and 6 and
pointed out the inconsistencies in their evidence as regards the place where
the police officer had received information regarding the accused and non-avalilablility
of independent persons for joining the raiding party to witness the outcome of
the raid. He also submitted that their evidence even otherwise is not
sufficient to sustain conviction under Sections 399 and 402 IPC. Learned
counsel for the appellant - Suleman further submitted that the pistol recovered
from him was not found in working order and, therefore, suleman could not have
been convicted under Section 5 of the TADA Act.
prove why the five accused had assembled at Dharamshala of Sarup Nagar, the
prosecution had mainly relied upon the evidence of P.W.2 who was the only
witness who had gone near the Dharamshala and heard conversation amongst the
accused. He was accompanied at that time by ASI - Bhagat Ram but the
prosecution did not examine ASI - Bhagat Ram as a witness. P.W. 2 - Head
Constable Chand Singh in his examination-in-chief did not depose anything about
the conversation, he was declared hostile and permitted to be cross-examined by
the learned public prosecutor. In cross-examination, he stated that the
conversation which he had heard and reported to Sub-Inspector Om Prakash was
about looting a petrol pump. According to this witness, he had remained near
this Dharamshala for about 15 minutes. His further cross-examination on behalf
of the accused discloses that when he had gone near the Dharmashala, it was
dark as there was no light either inside or nearby. Dharamshala consisted of
only one room and it had only one door and no window. He had stood outside that
room and a little away from the door. He had not told anything more than that
five persons inside the Dharamshala were planning to rob a petrol pump that
night. He had not narrated what they had spoken or discussed. It is also
doubtful that they were speaking so loudly that their conversation could be
heard outside. It is also surprising as to how ne could have reported to S.I. -
Om Prakash that two of them had pistols and remaining three had knives.
evidence discloses, the weapons were kept concealed on their persons and there
was complete darkness inside this room. P.W. 2 had not even gone near the door.
This would clearly indicate that P.W. 2 was not telling the truth when he
stated that he had heard the accused talking about looting a petrol pump. It
is, therefore, not possible to sustain the conviction of the appellants under
Sections 399 and 402 IPC. Their conviction under Sections 399 and 402 IPC will
have to be set aside.
regards possession of arms, the evidence of all the three witnesses is
revolver was found from Sadhu Ram, a pistol from Suleman and knives from the
remaining three. The revolver carried by Sadhu Ram was found loaded with five
live cartidges and the pistol of Suleman was found loaded with one live cartidge.
The report of the Central Forensic Science Laboratory shows that the evolver
was in working condition and all the five cartidges were live cartidges. The
pistol was not in working order in the sense that firing mechanism was found
defective. The cartidge found from it was a live cartidge. Live cartidge is an
explosive within the meaning of Section 5 of the TADA Act. Therefore, even if evidence
regarding possession of pistol by Suleman is ignored, his conviction under
Section 5 can be sustained. We see no reason to doubt the evidence of PWs. 2, 3
and 6 regarding their having apprehended the appellants and seized from them
the fire arms, In the result, Criminal Appeal No.627/98 is partly allowed.
Conviction and sentence of appellant Suleman under Sections 399 and 402 IPC are
set aside. His conviction under Section 5 of the TADA Act and the sentence thereunder
are maintained. Conviction of appellant - Chiman under Sections 399 and 402 IPC
and the sentence imposed for commission of those offences are set aside.
conviction under Section 25 of the Arms Act and the sentence imposed there under
Appeal No. 750/58 is also partly avowed. Conviction of Sadhu Ram under Sections
399 and 402 IPC is set aside and so also the sentence in respect of those
offences. His conviction under Section 5 of the TADA Act is maintained and the
sentence for that offence is confirmed.