Liyakat Ali vs State
2014 Latest Caselaw 579 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                  RESERVED ON : 31st October, 2013
                                  DECIDED ON : 30th January, 2014

+      CRL.A.99/2000

       LIYAKAT ALI                                        ..... Appellant
                          Through :    Mr.Jayant K.Sud with Mr.Ujas
                                       Kumar, Advocates with appellant
                                       present in person.

                          versus

       STATE                                           ..... Respondent
                          Through :    Mr.M.N.Dudeja, APP.

       CORAM:
       MR. JUSTICE S.P.GARG

S.P.GARG, J.

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 `3,000/- under Section 307 IPC and rigorous

imprisonment for one year with fine `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

[email protected] Taj Mohd. were acquitted of all the charges and the State did not

challenge their acquittal.

3. I have heard the learned counsel for the parties and have

examined the record. Appellant's counsel urged that the Trial Court did

not appreciate the evidence in its true and proper perspective and fell in

grave error in relying upon the tainted testimony of the complainant-

Sanjay, who had criminal antecedents and was involved in a murder case.

The appellant was falsely implicated at the behest of local police who

deliberately manipulated the entire case. The Trial Court miserably erred

in ignoring material irregularities. The investigating officer admitted in

the cross-examination that Liyakat Ali (the appellant) and Gauz Mohd. @

Taj Mohd. were sent for medical examination and a cross-case was

registered. The prosecution did not explain as to how and in what manner

Gauz Mohd. @ Taj Mohd. got grievous injuries at the crime spot. The

Investigating Officer admittedly came to know during investigation about

the quarrel had taken place under flyover of G.T.Road between Gauz

Mohd. @ Taj Mohd. and Akil Ahmed on one hand and Sanjay, Nand

Kishore @ Nandu and Rakesh on the other, and grievous injuries were

inflicted to Gauz Mohd. @ Taj Mohd. He further admitted that Liyakat

Ali arrived at the spot after the quarrel and fired at Sanjay from his service

revolver. Apparently, the appellant had no motive or intention to

eliminate Sanjay. He further contended that from the evidence it was

crystal clear that Liyakat Ali had reached the spot afterwards to rescue

Gauz Mohd @ Taj Mohd. who was assaulted by PW-11 (Sanjay) and his

associates. Liyakat Ali fired only in self-defence as there was impending

threat to his life. Since Liyakat Ali and Gauz Mohd. @Taj Mohd. were

being chased by the assailants, they were forced to take lift from Ct.

Satender Kumar who brought them to the police station. The prosecution

was unable to establish if `4,850/- were snatched in the incident. Counsel

adopted alternative argument to release the appellant on probation as he

had no previous criminal record and was at the fag end of his career.

Learned Additional Public Prosecutor while supporting the findings on

conviction urged that there are no sound reasons to discard the testimony

of the injured Sanjay. The appellant could not establish the plea of self-

defence.

4. 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

for inflicting injuries to him. He further deposed that `4850/- were

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.

He alleged that he being neighbour of Gauz Mohd. @ Taj Mohd. went to

the spot due to his friendship after being informed of the quarrel, and

when he was attacked by PW-11 Sanjay and his accomplices, he had to

fire in self-defence to protect himself. The appellant, however, miserably

failed to substantiate it. He did not lodge any complaint against any

individual for assaulting and injuring him. Outcome of the cross-case

lodged at Gauz [email protected] Taj Mohd.'s complaint is unclear. Liyakat Ali

(the appellant) had not suffered any serious injury and the investigating

officer in the cross-examination explained that he had not seen any visible

injury on the body and he was taken for medical examination on his

request. In the MLC (Ex.PW12/DB), the doctor did not notice any major

injury except abrasions on hand and fore-arm. Since alleged injuries were

minor or superficial, non-explanation of these would not affect the

prosecution case. In the cross-examination of the complainant, suggestion

was put that he had fired at the appellant with a 'katta'. Again different

suggestion was put that when the complainant and his associates were

giving beatings to Gauz Mohd.; Liyakat Ali came to save him. In 313

statement, Liyakat Ali alleged that on 12.05.1996 Akil and Deepak met

him near his house and told that Taj Mohd was in detention at police

station Seema Puri and he was called by the SHO for inquiry about him.

He accompanied Deepak on a two-wheeler scooter towards Seema Puri

and when they reached near railway crossing, he was surrounded by 8/10

boys including Nandu, Rakesh and Sanjay. Nandu fired at him from a

country made pistol but it did not hit him. Rakesh hit him with a knife

and his 'banayan' got cut marks. They caught hold of him and attempted

to snatch his service revolver. He did not know how the bullet got fired

from the service revolver. He started running from the spot and saw Gauz

Mohd. lying in injured condition nearby; brought him at the main road;

took lift from Constable Satender in the police vehicle and went to the

police station Seema Puri. Akil who had allegedly gone to bring Liyakat

Ali, in his 313 statement narrated a conflicting version. He claimed that at

the railway fatak (crossing) Gauz Mohd. was taken after beatings by

Sanjay, Nandu, Rakesh and their associates. He and Deepak were sent to

call Liyakat Ali from his house on the pretext that he was called by SHO

Seema Puri. He informed Liyakat Ali who was standing outside his

house. Deepak took him to the spot. He did not know what happened

thereafter. Akil Ahmed did not claim that Liyakat Ali was fired at by

Sanjay or Rakesh in an attempt to snatch his pistol/service revolver. He

also did not reveal if any injuries were caused to Liyakat Ali in the said

scuffle. Gauz Mohd. in 313 statement took a plea that he was beaten and

asked to pay `2 lacs as ransom and was taken to railway fatak with an

intention to kill him. He was again beaten there and he suffered fracture

on his left wrist. Akil and Liyakat came there to save him. Akil was sent

to his house to bring money. He did not claim if there was any scuffle

with Liyakat Ali or he was fired at. It appears that all the accused have

given contradictory and conflicting version as to how the occurrence took

place in which Sanjay and Gauz Mohd. sustained injuries. Akil and Gauz

Mohd. did not claim if there was any attack by the assailants or that firing

from the service revolver injuring Sanjay was accidental.

5. It is true that there are vital discrepancies in the statement of

the complainant and PW-12 (ASI Narpat Singh), the Investigating Officer

regarding the sequence of events leading to the incident. Apparently, the

complainant has not presented true facts about the occurrence and has

suppressed material facts. Deepak was not examined during investigation.

The Investigation conducted is highly defective and faulty; no sincere

efforts were made to find out the genesis of the quarrel. However, lapses

on the part of Investigating Officer in conducting the investigation do not

ipso facto wipe out the crime when admittedly the appellant went to the

spot and used his service revolver in firing at PW-11 (Sanjay). Each and

every infirmity in prosecution case will not necessarily vitiate the trial.

6. During arguments, appellant's counsel submitted that he

acted in self-defence and fired at Sanjay to ward off attack by his

associates. The appellant during trial did not plead in so many words that

he legitimately acted in the exercise of right of private defence. However,

it is well settled that even if an accused does not plead self- defence, it is

open to the court to consider such a plea if the same arises from the

material on record. The burden of proving the existence of circumstances

bringing a case within any exception is upon the accused. Of course that

burden can be discharged by showing probabilities in favour of that plea.

Under Section 105 of the Indian Evidence Act, the onus rests on the

accused to establish his plea of self-defence. Court shall presume the

absence of such circumstances. It is for the accused to place necessary

material on record either by himself by adducing positive evidence or by

eliciting necessary facts from the witnesses examined for the prosecution.

Right of private defence is primarily a defensive right and is available

only to one who is suddenly confronted with the necessity of averting an

impending danger. In the instant case, the appellant did not set up any

plea of self-defence and rather put a suggestion in the cross-examination

to the complainant that he did not fire at him. There is no positive

evidence to infer that complainant or Rakesh fired with country made

pistol at Liyakat Ali. Sanjay was taken in injured condition to GTB

hospital soon after the incident and the investigating officer did not

recover any country made pistol from his possession. When PW-9

(Ct.Satender Singh) found him and Gauz Mohd, they were not being

chased by any assailant. Apparently, the appellant had no imminent threat

to his safety to avail the plea of self-defence.

7. Acquittal of co-accused Akil and Gauz Mohd. is of no

benefit to the appellant as the prosecution was able to establish beyond

doubt that he alone had fired from his service revolver at Sanjay and

caused grievous hurt to him. After the occurrence the appellant fled the

spot. He has admitted his physical presence at the spot. There is no rule

of law that if the court acquits certain accused on the evidence of a

witness finding it to be open to some doubt with regard to them for

definite reasons, other accused against whom there is positive evidence

must be acquitted. The court has a duty in such cases to separate the grain

from the chaff. The findings of the Trial Court are based upon fair

appraisal of evidence and no interference is warranted. All the relevant

contentions of the appellant have been dealt with in the impugned

judgment. The findings on conviction under Section 307 IPC stand

affirmed.

8. While awarding the sentence, the Trial Court considered the

mitigating circumstances and took into consideration the exemplary work

of the appellant and also getting out-of- turn promotion. The appellant

was awarded Rigorous Imprisonment for three years with fine `3,000/-

under Section 307 IPC. Apparently, lenient view has been taken by the

Trial Court. The appellant was a Head Constable in Delhi police and was

provided with a service revolver and twelve live cartridges for self

protection. Instead of using the official weapon for the purpose it was

issued, he associated with criminals and went to the spot where there was

quarrel over sharing of money among the two groups. The appellant had

direct nexus with the individuals having criminal background and assisted

them in their fight against the other. The appellant had no reason on his

own to go to the spot on his scooter at odd hours without informing the

local police and to intervene in the quarrel between the two groups and

fire at one of the individuals i.e.PW-11 (Sanjay). He fired at the vital

organ of the complainant without any reasonable apprehension and fled

the spot without taking care of him. The injured was taken by the public

to the hospital where he remained admitted for number of days. The

appellant does not deserve leniency due to having direct nexus/association

with the criminals.

9. The appeal is unmerited and is dismissed. The appellant is

directed to surrender before the Trial Court on 6th February, 2014 to serve

the remaining period of sentence. Trial Court record along with a copy of

order be sent back forthwith. A copy of the order be also sent to Jail

Superintendent, Tihar Jail for intimation.

(S.P.GARG) JUDGE JANUARY 30, 2013 sa