LIYAKAT ALI Vs. STATE

JUDGEMENT

(1.) LIYAKAT Ali (the appellant) questions the legality and correctness of a judgment dated 29.01.1999 in Sessions Case No.25/1999 arising out of FIR No.248/1996 registered at Police Station Seema Puri by which he was convicted under Section 307/34 IPC & 27 Arms Act. By an order dated 31.01.1999, he was awarded rigorous imprisonment for three years with fine Rs.3,000/ - under Section 307 IPC and rigorous imprisonment for one year with fine Rs.1,000/ - under Section 27 Arms Act. Both the sentences were to operate concurrently. The facts as projected in the charge -sheet are as under: -

(2.) LIYAKAT Ali, Akil Ahmed and Gauz Mohd. @ Taj Mohd. were arrested and sent for trial alleging that on 12.05.1996 at about 11.30 P.M. near railway crossing under the bridge, G.T.Road, Shahdara, they in furtherance of common intention inflicted injuries to Sanjay Kumar by firing at him with a service revolver issued to Liyakat Ali. The police machinery came into motion when DD No.39A (Ex.PW -12/B) was recorded at 11.50 P.M. at Police Station Seema Puri on getting information about the firing incident. The investigation was assigned to ASI Narpat Singh who with Ct.Pardeep went to the spot and came to know that the injured had already been taken to Guru Teg Bahadur hospital. He collected the MLC of injured Sanjay Kumar and lodged First Information Report after recording his statement (Ex.PW -11/A). In the meantime, Liyakat Ali, and Gauz Mohd. who were brought to Police Station Seema Puri by Ct.Satender Kumar were sent for medical examination. Cross -case vide FIR No.249/1996 under Section 307/365/341/34 IPC was registered after recording Gauz Mohd @ Taj Mohd's statement. Statements of witnesses conversant with the facts were recorded. After completion of investigation, a charge -sheet was filed against all of them; they were duly charged and brought to trial. The prosecution examined 12 witnesses to bring home their guilt. In 313 statements, they denied their complicity in the crime and pleaded false implication. After considering the rival contentions of the parties and on appreciation of the entire evidence, the Trial Court, by the impugned judgment held Liyakat Ali perpetrator of the crime for the offences mentioned previously. It is relevant to note that Akil Ahmed and Gauz Mohd.@ Taj Mohd. were acquitted of all the charges and the State did not challenge their acquittal.

(3.) ADMITTED position is that Liyakat Ali was Head Constable with Delhi Police and a 9MM pistol with live cartridges was issued to him by an order dated 22.11.1995 for protection. It is not in dispute that in the occurrence that took place on 12.05.1996, PW -11 (Sanjay) sustained bullet injury on his body by the said service revolver (Ex.P4) at about 11.30 P.M. near railway crossing under the bridge, G.T.Road, Shahdara. DD No.39A (Ex.PW -12/B) was recorded at 11.50 P.M. at Police Station Seema Puri regarding the firing incident. Injured Sanjay Kumar was taken to GTB hospital soon after the incident by one Deepak. MLC (Ex.PW7/A) records arrival time of the patient as 12.50 A.M. with the alleged history of 'being shot at a short while ago'. The complainant - Sanjay Kumar who was declared 'fit for statement' disclosed to Investigating Officer in his statement (Ex.PW -11/A) that at about 11.30 P.M. when he was present near railway 'fatak' (crossing), Shahdara to go to his friend Arvind's house, Akil, Taj Mohd. and Liyakat arrived on a Scooter No.DL -5SG2848 and caught hold of him. Liyakat Ali fired at him and they all fled the spot. He further informed that there was some money dispute. While appearing as PW -11 in the Court statement Sanjay proved the version given to the police and implicated Liyakat and others He further deposed that Rs.4850/ - were for inflicting injuries to him. snatched from him. He assigned a definite and specific role to Liyakat Ali as he took out a pistol and fired at him on his abdomen. PW -7 (Dr.Ajay Kumar Sharma), who examined the victim on 13.05.1995 opined the nature of injuries as 'grievous' caused by a fire arm vide MLC (Ex.PW -7/A). PW -2 (Dr.S.C.Bhalla) who examined X -ray plate proved his report (Ex.PW -2/A). Undoubtedly, Sanjay Kumar had sustained grievous injuries on abdomen by firing with a revolver. In fact, injuries sustained by the victim are not under challenge. It was imperative for the appellant to explain as to how and under what circumstances, he went to the spot at odd hours far away from his residence with his service revolver and how he was compelled or forced to use it for firing at the victim. These facts were within the special knowledge of the appellant and under Section 106 Evidence Act he was bound to explain. It has come on record in evidence that complainant -Sanjay and his associates Nand Kumar and Rakesh were history -sheeters and bad characters (BCs). The Investigating Officer PW -12 (ASI Narpat Singh) admitted that there was dispute among Taj Mohd. @ Gauz Mohd., Akil, Sanjay, Nand Kishore @ Nandu and Rakesh over sharing of money earned by selling prohibited narcotics like smack, charas etc. A quarrel took place among them at the spot and Taj Mohd. was severally beaten. The appellant did not offer any reasonable explanation as to why he had close association with individuals having criminal antecedents and what prompted him on his own to go to the spot to assist or save one of the groups and to use his service revolver. Being a Head Constable in Delhi police and after having being provided with a pistol for his protection and protection of the family members, he was not expected to use it at the instance of an individual whose criminal antecedents were known to him. The appellant took inconsistent and conflicting defence to justify use of the official weapon at his command.