Delhi High Court
Liyakat Ali vs State on 30 January, 2014
Author: S.P.Garg
Bench: S.P.Garg
* 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:-
Crl.A.No.99/2000 Page 1 of 13
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 Crl.A.No.99/2000 Page 2 of 13 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. 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 Crl.A.No.99/2000 Page 3 of 13 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.
Crl.A.No.99/2000 Page 4 of 13
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 Crl.A.No.99/2000 Page 5 of 13 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 Crl.A.No.99/2000 Page 6 of 13 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 Mohd.@ 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 Crl.A.No.99/2000 Page 7 of 13 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 Crl.A.No.99/2000 Page 8 of 13 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 Crl.A.No.99/2000 Page 9 of 13 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 Crl.A.No.99/2000 Page 10 of 13 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 Crl.A.No.99/2000 Page 11 of 13 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 Crl.A.No.99/2000 Page 12 of 13 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 Crl.A.No.99/2000 Page 13 of 13