Delhi High Court
Asif @ Babu Khan @ Chhota Pathan @ ... vs State & Ors on 13 August, 2013
Author: Sunita Gupta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Crl.M.B.No.1287/2013 in CRL.A. 789/2013
ASIF @ BABU KHAN @ CHHOTA
PATHAN @ SALMAN ..... Appellant
Through: Mr. Wajeeh Shafiq, Advocate.
versus
STATE & ORS ..... Respondents
Through: Ms. Fizani Husain, APP for the State
with SI Prempal Singh, PS Jyoti Nagar.
CORAM:
HON'BLE MS. JUSTICE SUNITA GUPTA
ORDER
% 13.08.2013
1. This is an application u/s 389 read with Section 482 Cr.P.C for bail
and suspension of sentence.
2. Vide impugned judgment dated 08.04.2013, the appellant has been
convicted for offence u/s 307/452/342 read with Section 34 IPC. It is the
submission of learned counsel for the appellant that the question for
consideration is whether the accused can be punished for offence u/s 307
IPC in the absence of a finding to the effect that there was common object
or common intention on any of the accused to kill complainant/injured or
the assault was made with the knowledge that the murder can also be
caused in that assault. In their statement recorded u/s 313 Cr.P.C the
question pertaining to common intention was not put to the accused.
Moreover, the ligature with which it was alleged that the accused persons
tied the inmates was not even recovered. The brother of the complainant,
namely Shekhu who was allegedly beaten and was tied up along with
PW1, PW15 and PW16 was neither medically examined nor produced as a
prosecution witness. The sword, alleged to have been used in the incident
was also not recovered. The katta allegedly used in the incident was
produced by the wife of the complainant herself. There is no medical
evidence that the complainant has suffered a gun shot injury. Iron rod
which is alleged to have been used in the offence is not linked with the
offence. PW15 and PW16 did not support the prosecution case. It is only
the wife of the complainant who has supported the prosecution case and
based on her testimony the accused persons including the appellant have
been convicted and sentenced. Her testimony is fraught with omissions
and improvements and it is unsafe to rely upon her testimony. The
appellant is in custody for the last one year, as such pending the appeal, the
sentence be suspended and appellant be released on bail.
3. The application has been contested by the State and in the status
report it is submitted that as per the prosecution case, in the intervening
night of 24/25.11.2009 at 12.40 a.m, on receipt of information vide DD
No.19A regarding shooting of one person at Gali No.1, Kabir Nagar, ASI
Subhash Chand along with Ct. Satya Narayan reached the spot i.e. C-
2/15A, Gali No.2, Kabir Nagar where they came to know that injured has
been taken to GTB Hospital by his brother. After reaching GTB hospital
and collecting the MLC of injured Sehbaz, his statement was recorded.
FIR was got registered. During the course of investigation it was found
that accused Arif was having a sword in his hand with which he gave a
blow on the back of the victim. Supplementary charge sheet was filed
against [email protected] [email protected] Pathan. It was further submitted that
brother of the complainant Shekhu could not be examined since he is not
traceable and the complainant has been murdered on 06.03.2011. Wife of
the complainant has fully supported the case of prosecution, as such there
is no ground for releasing the appellant on bail.
4. It is further submitted by learned Additional Public Prosecutor for
the State that the appellant is involved in as many as 14 cases, that being so
he is not entitled for release on bail.
5. As regards pendency of the cases against the appellant is
concerned, it was submitted by learned counsel for the appellant that as per
the list supplied by learned Additional Public Prosecutor for the State most
of the cases are still pending investigation. He has been acquitted in two
cases and has been convicted only in one case.
6. The case of prosecution in brief is that on receipt of information
vide DD No.19A regarding shooting of one person at Gali No.1, Kabir
Nagar, police officials reached the spot where they came to know that
inured has been taken to GTB hospital by his brother. Thereupon the
police officials went to GTB hospital and recorded the statement of injured
Shehbaz wherein he stated that he along with his family is residing in a
rented house of Sayed Salman Zaidi and running a kabadi shop. On that
day at about 12.30 a.m, he returned to his house from Jafrabad and the
moment he reached the door of his house, [email protected]
[email protected] and Shehbaz who were known to him from before came out
from his house and started beating him. Shehbaz who was having katta in
his hand fired which hit his left arm. Shehbaz hit on his head with an iron
rod. Chhota Pathan caught hold of him and told "Maro Sale ko. Yeh bohot
police ki mukhbari karta hai." Arif who was having sword in his hand hit
on his waist. His wife Shaheen, niece Gulista, Shagufta and brother
Shekhu were present in the house. The accused persons had tied the hands
of his brother Shekhu. When his wife tried to save him, they pushed her
and she fell down. When his nieces and wife raised alarm Bachao Bachao,
all the accused tried to run away. He tried to catch hold of Shahnawaz. He
managed to escape. Meanwhile his katta fell there. Police was informed.
He was brought to hospital by his brother.
7. As revealed from the record, the injured has been murdered while
his brother Shekhu is not traceable. The allegations are very serious in
nature. The infirmities pointed out by learned counsel for the appellant
will be required to be considered at the time of hearing the appeal.
Keeping in view the gravity of the offence coupled with the antecedents of
the appellant, there is no ground for suspension of sentence or releasing the
appellant on bail.
The application is accordingly dismissed.
SUNITA GUPTA, J
AUGUST 13, 2013
as
