Surender @ Babli vs State(Gnct)Of Delhi

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

Crl.a> No. 1547 of 2010 3

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

Crl.a> No. 1547 of 2010 4

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

Crl.a> No. 1547 of 2010 5

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.

Crl.a> No. 1547 of 2010

7

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]

Crl.a> No. 1547 of 2010 8

NEW DELHI JULY 28, 2011.