MOHD. ANWAR versus STATE OF DELHI

Citation: [1999] SUPP. 5 S.C.R. 485 · Decided: 17-12-1999 · Supreme Court of India · Bench: G.B. PATTANAIK · Disposal: Case Partly allowed

Judgment (excerpt)

MOHD. ANWAR 
A 
v. 
ST A TE OF DELHI 
.. ~ 
DECEMBER 17, 1999 
[G.B. PATTANAIK AND M.B. SHAH, JJ.] 
B 
Penal Code, 1860: 
Sections 302, 307 and 34-Accused persons chased by police party--
Death in exchange of fire-Revolver seized from accused at the spot-Expert C 
opinion that bullet recovered from body of deceased was fired from the said 
revolver-Eye witnesses-Members of police party testifying against accused-
Held, under the facts accused was rightly convicted-TADA Act, 1987-
Section 5. 
Sections 302 and 34-Co-accused-Only a/legation was that he D 
exhorted the main accused-Some prosecution witnesses not specifically 
stating the specific words used by him in exhorting-Four out of six charge-
sheeted persons discharged-Common intention to kill not established-
Held, under the facts conviction of co-accused set-aside. 
Appellants-accused, A and T, were tried and convicted for offences E 
punishable under Sections 302, 307 read with Section 34 IPC and Section 
5 of TADA Act, 1987 by the Designated Court. Prosecution alleged that 
deceased-informer was murdered by appellant, A, who fired a shot from his 
revolver at the exhortation of accused T, when they were chased and cornered 
by police. The accused were arrested and a 0.32 bore revolver, a country F 
made .315 pistol with empty and live cartridges were recovered from them. 
After completion of inquiry, charge-sheet was submitted against appellants 
and four other persons who were discharged for lack of evidence. Against 
the judgment of the Designated Court, accused persons have filed the present 
appeals. 
Appellant A, contended that no independent witness was examined by 
prosecution though number of persons had collected at the scene of crime; 
that the investigating officer was not examined and he should not have used 
the vehicle wherein deceased was asked to sit after receiving bullet injury; 
G 
and that the bullet recovered from the body of the deceased was not compared H 
485 
486 
SUPREME COURT REPORTS [1999] SOPP. 5 S.C.R. 
A by ballistic expert and it could have been fired by the police. 
Appellant T, contended that when four other persons involved by police 
were discharged, there was no reason for convicting him under Section 302 
read with Section 34 IPC solely on the alleged round that he had exhorted 
appellant A, at the time of incident; and that the appellants were not having 
B any common intention to kill/commit the crime. 
The respondent contended that prosecution witnesses were corroborated 
by seizure of weapons from the hands of appellants; and that bullet recovered 
from the body of the deceased was fired from the revolver of appellant, A. 
C 
Partly allowing the appeal of' A' and dismissing the appeal of T, the 
Court 
HELD : 1. Apart from the ocular version of the witnesses which proved 
that accused A, fired from his revolver which caused the death, from the 
possession of appellant A, 0.32 bore English made revolver was seized 
D alongwith four cartridges cases and two live cartridges and six more 
cartridges were recovered from his possession. These were examined by Dy. 
Sr. Scientific Officer cum-Assistant Chemical Examiner CFSL, CBI, New 
Delhi who gave his opinion that bullet found from the body of the deceased. 
was fired from the said 0.32 bore revolver. As per the post mortem report, 
deceased was having one rounded punctured wound on the left side from the 
E front of the chest. [490-G-H; 491-A-B] 
F 
1.2. There is no reason to disbelieve the evidence of PWl that sub-
inspector tried to record the statement of some persons who collected at the 
spot but none agreed to be a witness. For such situation, prosecution cannot 
be blamed. [491-C] 
1.3. For the non-examination of investigating officer, it was pointed out 
that he was out of the country when the evidence was recorded and therefore, 
this would be hardly a ground for disbelieving the other witnesses who were 
present at the spot. (491-C-D] 
G 
1.4. For giving immediate treatment deceased was required to be removed 
to the hospital and therefore, at that point of time the act of the investigating 
officer of using the vehicle, occupied by the deceased after receiving bullet 
injury, for removing him to the hospital, would not in any way affect the 
prosecution version. The said vehicle was not used for the commission of 
offence. [491-D-E] 
H 
2.1. Some of the prosecution witnesses had not specifically stated that 
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MOHD. ANWAR v. STATE OF DELHI [SHA

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