Crl.a> No. 1547 of 2010

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IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1547  OF 2010

SURENDER @ BABLI ..... APPELLANT

VERSUS

STATE (NCT) OF DELHI ..... RESPONDENT

O R D E R

1. On  the  8th February,  2001  at  about  12:45p.m.,  

Sanjeev  Kumar  deceased  came  to  the  premises  of  M/s  

Manoharlal Laxman Dass, Old Anaj Mandi,  Narela and  

asked for payments due to him from the owner.  The Head  

Muneem, Shyam Lal, asked P.W. 6 Anil Sharma, another  

Muneem, to go to the State Bank of Indore, Narela where  

they had an account to withdraw Rs. 4 lakhs so that the  

same could be paid off to Sanjiv Kumar.  Anil Sharma,  

accordingly, accompanied by Sanjiv Sharma P.W. 10 left  

on  a  two  wheeler  for  the  State  Bank  of  Indore  and  

withdrew Rs. 4 lakhs and after putting the currency in  

a bag left for their own shop.  As they were passing  

through Dahiya X-ray Wali Gali, a motor cycle came from  

the rear with three persons riding on it.  The motor

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cycle came to the right side of the scooter and one of  

the three persons tried to snatch the bag containing  

the money from the hands of P.W. 10 with the result  

that P.W. 6 lost balance and the scooter fell on its  

side.  One of the three persons again tried to snatch  

the bag from Sanjiv Kumar and when he resisted he fired  

a shot at Sanjiv Kumar which struck him in his chest  

killing him instantaneously.  The third person also  

took out a pistol but it fell on the ground.  The three  

assailants then got on to the motor cycle and made good  

their  escape.   On  the  basis  of  the  information  

conveyed  to  the  police  station  a  First  Information  

Report  against  unidentified  persons  was  recorded  in  

Police Station Narela by ASI Jagir Singh, P.W. 1.  He  

also recorded the statement of Sanjiv Sharma, P.W. 10,  

who voluntarily came to the police station to give a  

statement as he claimed to be an eye-witness.  The  

three accused who had been arrested during the course  

of  the  investigation,  were  brought  to  trial  for  

offences punishable under Sections 393,398 and 302/34  

of the Indian Penal Code and under Section 27 of the  

Arms Act against accused Mukesh and under Section 25 of  

the Arms Act against Surender @ Babli and Manjit Singh  

accused.  The trial court relied on the evidence of  

P.W. 6 Anil Sharma and P.W. 10 Sanjiv Sharma, only

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partly, as they had been declared hostile and further  

observing that the post mortem report indicated the  

presence of a fire arm injury and the pistol which had  

been  recovered  at  the  instance  of  the  appellant  

Surender  @  Babli  which  matched  the  spent  bullet  

recovered from the dead body on the 8th of February,  

2001 were circumstances which involved all the three  

accused in the incident.  The trial court, accordingly,  

convicted  and  sentenced  them  to  various  terms  of  

imprisonment  under  the  aforesaid  provisions.   The  

matter was thereafter taken in appeal before the High  

Court.  The High Court observed that both P.W. 6 and  

P.W.  10   had  not  identified  any  of  the  assailants  

whereas P.W. 10 had also been declared hostile. The  

High Court, accordingly, acquitted Mukesh and Manjit on  

the  ground  that  there  was  a  complete  lack  of  

identification   in  their  case.   The  High  Court  

nevertheless held that in the light of the fact that  

the  murder  weapon  which  had  been  recovered  at  the  

instance  of  appellant  Surender  @  Babli  proved  his  

involvement in the incident and having held as above  

dismissed his appeal.  It is in this situation that the  

matter is before us  after the grant of special leave.

2. It  will  be  seen  from  the  record  that  the  

evidence with regard to the identification of the three

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assailants  i.e.  Mukesh  and  Manjit  and  appellant  

Surender was virtually identical.  The High Court has  

found that the evidence of identification could not be  

believed  but has convicted the appellant solely on the  

ground that the murder weapon which had been recovered  

at  his  instance  had  been  matched  with  the  bullet  

recovered from the dead body.  We have, however, gone  

through the evidence on the record  which has been  

brought to our notice by the learned counsel for the  

parties.  The incident happened on the 8th of February,  

2011 and the post mortem examination was conducted on  

the same day and the spent bullet recovered from the  

dead body of the deceased.  It is also clear that the  

said bullet had been deposited in the police malkhana  

soon after its removal from the dead body.  The weapon  

was  allegedly  recovered  at  the  instance  of  the  

appellant  on  the  28th of  February,  2001  as  per  the  

prosecution story, but curiously enough the bullet as  

well as the weapon were despatched to the laboratory  

together on the 3rd of April, 2001.  We are unable to  

fathom as to why the investigating agency did not deem  

it proper to send the bullet to the laboratory soon  

after its recovery and the fact that they chose to wait  

for the weapon of offence to be recovered, casts a  

clear doubt as to the sanctity of the recovery.  There

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is yet another circumstance which creates a serious  

doubt  as  to  the  recovery  of  the  weapon.   P.W.  7  

Constable Rishi Raj testified that the document Exhibit  

P.W. 9/H regarding the recovery of the pistol was in  

the handwriting of Sub-Inspector Praveen Kumar.  This  

was reiterated by P.W. 9 Head Constable Ram Chand in  

his testimony.  Sub Inspector Praveen Kumar appearing  

as P.W. 22, however, denied that he had prepared the  

said  document  and  further  stated  that  it  had  been  

prepared  on  the  dictation  of  one  S.K.  Meena.   We,  

therefore, feel that the very recovery of the weapon is  

in  serious doubt.  In this background, we are of the  

opinion that the case of the appellant Surender is no  

different  from  that  of  the  other  accused.   We,  

accordingly, set aside the judgment of the High Court  

insofar as the appellant is concerned and allow the  

appeal accordingly.  The appellant is in custody; he  

shall be released forthwith if not wanted in connection  

with any other case.

........................J [HARJIT SINGH BEDI]

........................J [GYAN SUDHA MISRA]

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NEW DELHI JULY 28, 2011.

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IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1547  OF 2010

SURENDER @ BABLI ..... APPELLANT

VERSUS

STATE (NCT) OF DELHI ..... RESPONDENT

O R D E R

We  have  heard  the  learned  counsel  for  the  

parties.

Vide our separate reasoned order, we have set  

aside the judgment of the High court insofar as the  

appellant  is  concerned  and  allow  the  appeal  

accordingly.

It is stated that appellant is in custody.  He  

shall  be  released  forth  with  if  not  wanted  in  

connection with any other case.  

The reasoned order shall be separately placed on  

record.   

........................J [HARJIT SINGH BEDI]

........................J [GYAN SUDHA MISRA]

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NEW DELHI JULY 28, 2011.