Surender @ Babli vs State(Gnct)Of Delhi

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 Crl.a> No. 1547 of 2010 2 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.

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.