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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.