SALIM Vs. STATE GOVT. OF NCT OF DELHI

JUDGEMENT

(1.) These connected appeals assail the following:

(2.) As per the case of prosecution, Mohd. Shakeel (the complainant) carried on the business of handicraft on 3rd Floor of a rented house bearing P-165, Zakir Hussain College, Shakur ki Dandi, Delhi where he used to reside along with his co-workers Mohd. Hasibul Alam, Devanand Kumar Sharma, Mohd. Feroz, Govind and Mohd. Shahid. On 8/10/2012, at about 11:30 a.m. while all these persons were doing their work, one person 22-23 years of age came into the room and went away and later during the day was accompanied along with three other persons who entered the room and closed the door by bolting it from inside. One of the persons took out his pistol, pointed it at them and asked them to give whatever was with them. Mohd. Shakeel and the other occupants stated that they had nothing with them. Upon hearing this, the intruders started beating them and snatched mobile phones of Mohd. Shakeel, Mohd. Hasibul Alam and Govind and beat up Mohd. Shakeel due to which he received injuries on his left foot. The intruders searched the clothes which were hanging in the room and took out around Rs.7,000.00 or 8,000/- and left the house after closing the door from outside. Muna. Shahid, one of the occupants came out from the window, unbolted the door from outside and raised a hue and cry. Many public persons collected in the street and tried to catch the intruders. One of the public persons chased the intruders and caught one of them but was shot in the head by them, due to which he fell, and the intruder was able to run away while firing. SI Pradeep (PW-42) was posted at PS Kamla Market and around 11:45 a.m. received DD No.14A that brother of the caller had received a bullet injury. He reached Shakur Ki Dandi along with PW- 10 Constable Lokpal and found a crowd of people. He found that blood was scattered on the street near the chowk at Shakur ki Dandi and found two empty cartridges and one live cartridge. PW-42 called the Crime Team and later found another empty cartridge near the wall of MTNL office at a distance of 5-6 ft. from the spot. When he reached LNJP Hospital he came to know that one injured namely Mohd. Sultan had died whereas another injured PW-27 Nawab Ali was admitted in the emergency ward. After collecting the MLCs, when PW- 42 reached the spot, he found that Crime Team was already there and conducting their inspection. PW-42 recorded the statement of PW- 19 Mohd. Shakeel and after making an endorsement handed it over for registration of FIR to PW-10, on the basis of which FIR No. 116 of 2212 was registered. The investigation was assigned to Inspector Investigation) Binod Kumar. While the investigation was continuing SI Pramod Anand PW-35 received secret information on the basis of which PW-35 along with PW-36 conveyed the information at the office Inspector, Special Staff upon which ACP (Operation), Central District formed a raiding party. At around 3:50 p.m. they reached DDU Park, DDU Marg and surrounded the park where they apprehende' T the appellant S while he was trying to flee. He took out a country made pistol and pointed it towards Constable Satbir PW-36 but before he could fire, the constable caught hold of him. Constable Rakesh PW-37 apprehended the appellant Mohd. Uvesh while he was fleeing from the other side of park. He too took out a pistol and was about to fire when the constable caught hold of him. Two other associates were apprehended by the members of the raiding party whose names were revealed as Mohd. Shadiq and Mohd. Shamim and from their possession one country made pistol and live cartridges were recovered. However, since they were not the accused in the present case, recovery from them is not relevant. Later, on information provided by appellant Salim, Munavvar was arrested from the location behind Delite Cinema and cashbox was recovered from him. After completion of the investigation, chargesheet was filed and charges were framed against all the accused. The prosecution during trial led evidence of 43 witnesses, statements of the accused were recorded under Sec. 313 Cr.P.C. and the evidence of one witness was led in defence. Submissions by the Appellant

(3.) The appellants through their counsel submitted that credibility of the eyewitness PW-19 Mohd. Shakeel was doubtful since crime scene report prepared on 8/10/2012 in PW-19's presence didn't mention any offence of robbery/dacoity. The counsel for the appellants contended that even as per the case of the prosecution, the firing happened by only one assailant when the incident of robbery was over and when the accused persons were making good their escape. Therefore, shots were fired at the point of time of when Alam and Manzar were caught and not when the offence was committed ana thus common intention under Sec. 34 IPC would not apply since there was no pre-meditated plan to fire. Further there were discrepancies in the ballistic evidence and the chain of the custody since crime visit report mentioned 3 empty and 1 live cartridge whereas the seizure memo of the bullets mentions 2 empty and one live cartridge and bullets recovered from the body of the deceased and the appellants are of different dimensions. Besides, the chain of custody of firearm was vitiated because there was no record of safe custody between 18/10/2012 to 1/11/2012, between seizure and deposit in the maalkhana and between 18/3/2013 to 2/4/2013 between return of the firearms to the PS with FSL report and deposit in the makhana. The appellant contended that they had been convicted solely based on constructive liability and the prosecution was unable to prove beyond reasonable doubt as to how Sec. 397/302/304 would be applicable to Mohd. Uvesh and Salim as their presence on the spot itself was not proven. The counsel for the appellant Alam argued in addition that there was serious doubt as to who had opened fire which had killed the deceased and therefore benefit of doubt should be given to the appellant Alam. The counsel contended that prosecution has failed to establish a coherent story regarding involvement of appellant and it could be safely concluded that PW-19 and his other co-workers, as also PW-27 Nawab Ali, were not eyewitnesses to the incident of firing. Reliance was placed on the first information recorded in Call Report Ex. PW-16 which notes that Sultan's brother Rizwan had called mentioning that Asif and Fahad had shot his brother Sultan with whom he had an earlier quarrel. Since no investigation regarding Asif and Fahad had been carried out, their participation in the situation cannot be ruled out. Prosecution was not sure with respect to number of persons involved in the incident of shooting as well as about the fact that who had fired. A perusal of the testimonies of PW-18 and PW-25 would show that PW-19 was not the witness of the incident of firing and that it was quite improbable that having bolted the door from outside to flee the spot, Shahid was able to unbolt the room and then go down from the 4th floor where the room was situated and then chase the assailants. Besides there was no recovery effected from the appellant Alam. Submissions by the Prosecution