http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 3  

PETITIONER: SULEMAN AND ANR.

       Vs.

RESPONDENT: STATE OF DELHI THR.  SECRETRY

DATE OF JUDGMENT:       10/02/1999

BENCH: G.T.  Nanavati, S.N.  Phukan.

JUDGMENT:

Nanavati, J.

       Both 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 and ammunitions.

       In 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. The  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 and ammunitions.

       Learned 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 3  

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.

       To 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. As  the  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.

       But  as  regards  possession  of  arms, the evidence of all the three witnesses is  consistent. A  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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 3  

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. His conviction under Section 25 of the Arms Act and the sentence imposed thereunder are maintained.

       Criminal 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.