Delhi District Court
State vs . Ahmed Sikander on 10 June, 2009
FIR No. 80/06
P.S.: Chandni Mahal
U/s: 25 Arms Act & 309 IPC
IN THE COURT OF SH. SIDHARTH MATHUR, METROPOLITAN
MAGISTRATE, CENTRAL - 02, TIS HAZARI COURTS, DELHI
State Vs. Ahmed Sikander
FIR No.: 80/06
U/S : 25 Arms Act & 309 IPC
P.S.: Chandni Mahal
1. S. No. of the Case : 317/03/06
2. Date of Commission of Offence : 21.03.2006
3. Date of institution of the case : 03.04.2006
4. Name of the complainant : H.C. Tejpal, Belt No. 170/C.
5. Name of the accused, parentage : Ahmed Sikander S/o Mohd.
& address Yousuf R/o H. No. 143, Katra
Gokul Shah, Matia Mahal, Jama
Masjid Delhi.
6. Offence complained or proved : U/s 25 Arms Act & 309 IPC.
7. Plea of Accused : Pleaded Not Guilty.
8. Final Order : Acquitted
9. Date of Final Order : 10.06.2009
JUDGMENT
1. Accused Ahmed Sikander S/o Mohd. Yousuf has been sent up to face trial for offences under Section 25 Arms Act & 309 IPC with the allegations that on 21.03.2006 at about 1.15 p.m. at Matia Mahal Chowk, Jama Masjid, Delhi within the jurisdiction of P.S. Chandni Mahal, accused was found in illegal possession of button actuated knife with total length of 25 cm, blade length of 11 cm & width of 3 cm in contravention of notification of Delhi 10.06.2009 Page 1 of 22 Pages FIR No. 80/06 P.S.: Chandni Mahal U/s: 25 Arms Act & 309 IPC Administration and as such had allegedly committed the offence under Section 25 Arms Act.
It was also alleged against the accused that on the above said date, time & place, the accused had rammed his head into a nearby electricity pole with a motive to commit suicide & hence had committed offence under Section 309 IPC. After usual investigation, the charge sheet was filed in the court on 03.04.2006.
2. Vide order dated 18.04.2006, accused was charged for offences under Section 25 Arms Act & 309 IPC, to which accused pleaded "Not Guilty"
& claimed trial.
3. In order to substantiate the charges, the prosecution had examined 5 witnesses. PW-3 H.C. Tej Pal had testified that on 21.03.2006, he was posted at P.S. Chandni Mahal and when was on patrolling duty with Ct. Vijay & Surender, then at about 11.55 a.m. at Chitli Qabar Chowk, their secret informer informed him that the accused is standing at Matia Mahal Chowk, who might be possessing an illegal knife, where after he asked 45 persons to join raiding party but all of them refused for one reason or the other. After that the raiding party comprising of PW3, Ct. Vijay & Ct. Surender along with informer reached Matia Mahal Chowk & on the pointing of the secret informer, accused was apprehended from that place. PW3 further deposed that after the 10.06.2009 Page 2 of 22 Pages FIR No. 80/06 P.S.: Chandni Mahal U/s: 25 Arms Act & 309 IPC apprehension of the accused, the accused had rammed his head onto an electric pole with an intention to commit suicide, whereby he caused himself injuries. PW3 also testified that the accused was personally searched by him & one button actuated knife was recovered from right hand side pocket of the pant of the accused. PW3 also deposed that he prepared the sketch of knife as Ex. PW1/A whose blade length was 11 cm while the total length was 24 cm & width 3 cm. The said knife was seized vide seizure memo Ex. PW1/B. PW-3 deposed that he handed over the accused along with the case property to PW2 H.C. Jagbir, who was deputed as the IO of the case. Thereafter HC Jagbir prepared the site plan at the instance of PW3. Subsequently the case property was deposited in the Malkhana of the concerned P.S. PW3 further deposed that he had prepared the pullinda of the blood stained shirt of the accused and a pullinda of the knife seized from the accused, which pullindas were sealed with the seal of "TPS", which seal was lateron handed over by him to Constable Vijay. The case property was proved as Ex. P1, while the blood stained shirt was exhibited as Ex. P2.
The prosecution's other witnesses i.e. PW1 Constable Surender & PW5 H.C. Vijay, who were the remaining members of the raiding party apart from PW3 also testified on the lines akin to that of the testimony of PW3 and hence their testimonies need not to be reiterated.
4. Next witness of the prosecution was PW2 H.C. Jagbir, who testified 10.06.2009 Page 3 of 22 Pages FIR No. 80/06 P.S.: Chandni Mahal U/s: 25 Arms Act & 309 IPC about the steps taken by him in the investigation of the case. PW2 testified that he had visited the site with Constable Vijay where PW3 H.C. Tejpal & accused were present, and the accused was handed over to him by H.C. Tejpal with case property. PW2 also deposed that he prepared the site plan Ex. PW2/A at the instance of H.C. Tejpal and arrested the accused via arrest memo Ex. PW 1/D & inspected the body of accused via search memo Ex. PW1/E. PW2 also deposed that he alongwith Constable Surender & Constable Vijay took the accused for medical examination to LNJP Hospital. PW2 also deposed that he recorded the statements of witnesses and prepared the challan.
The remaining witness of prosecution PW4 HC Hare Ram deposed that on 21.03.2006, when he was posted as Duty Officer at PS Chandni Mahal, at 2.25 p.m. he received rukka from H.C. Tejpal through Constable Vijay whereupon he registered instant FIR, which was proved as Ex. PW4/A (OSR).
5. No other witness has been examined by the prosecution after completion of prosecution evidence. All the incriminating evidence was put to the accused in the statement of accused recorded under Section 281/313 Cr. P.C. wherein while denying the allegations, accused had taken the plea of "False Implication". No evidence in defence was led thereof by the accused.
6. I have heard Ld. APP for State and Ld. Legal Aid Counsel appearing for the accused and have also gone through the case file very 10.06.2009 Page 4 of 22 Pages FIR No. 80/06 P.S.: Chandni Mahal U/s: 25 Arms Act & 309 IPC carefully.
Ld. APP for state submitted that in the present case accused is liable to be convicted for the offences under Section 25 Arms Act & 309 IPC on the basis of depositions made by various prosecution witnesses.
On the other hand, Ld. Legal Aid Counsel for the accused submitted that the accused had been falsely implicated in this case and thus acquittal of the accused has been prayed for.
7. I have given a considered thought to the rival submissions made by Ld. APP for state and Ld. Legal Aid Counsel for accused keeping in view the material available on the judicial file.
8. It is a settled proposition of criminal law that prosecution is supposed to prove its case on judicial file beyond reasonable doubt by leading reliable, cogent and convincing evidence. Further it is a settled proposition of criminal law that in order to prove its case on judicial file, prosecution is supposed to stand on its on legs and it cannot derive any benefit whatsoever from the weaknesses, if any, of the defence of the accused. Further it is a settled proposition of criminal law that burden of proof of the version of the prosecution in a criminal trial throughout the trial is on the prosecution and it never shifts on to the accused. Also it is a settled proposition of criminal law that accused is entitled to the benefit of every reasonable doubt in the 10.06.2009 Page 5 of 22 Pages FIR No. 80/06 P.S.: Chandni Mahal U/s: 25 Arms Act & 309 IPC prosecution story and such reasonable doubt entitles the accused to acquittal.
9. First, I shall be dealing with the aspect as to whether the prosecution has succeeded in bringing home the charge framed against the accused under Section 25 Arms Act so as to entail his conviction thereunder.
In my considered opinion as a cumulative effect of the following reasons, the prosecution has miserably failed to prove on the requisite scales the offence under Section 25 Arms Act charged against the accused, whereby the accused is entitled to be acquitted for the charge under Section 25 Arms Act leveled against him due to the following circumstances creating reasonable doubts & holes in the prosecution story.
10. Chapter 22 Rule 49 of Punjab Police Rules, 1934, provides as under: "22.49 Matters to be entered in Register No.II - The following matters shall, amongst others, be entered:
(c) The hour of arrival and departure on duty at or from a police station of all enrolled police officers of whatever rank, whether posted at the police station or elsewhere, with a statement of the nature of their duty. This entry shall be made immediately on arrival or prior to the departure of the officer concerned and shall be attested by the latter personality by signature or seal. Note: The term Police Station will include all places such as Police Lines & Police Posts where Register No. II is maintained.
10.06.2009 Page 6 of 22 Pages FIR No. 80/06 P.S.: Chandni Mahal U/s: 25 Arms Act & 309 IPC
11. In the present case, the above said provision appears to have not been complied with by prosecution. As per the prosecution version at the time of the apprehension of the accused with one button actuated knife in his possession, PW-3, 1 & 5 were on area patrolling duty via DD entry No. 13 but the said DD entry has not been brought on record. In my opinion prosecution was under an obligation to prove on record, the above said DD entry vide which above said police officials had left the PS for patrolling duty so as to prove the possibility of availability of PW1, 3 & 5 at the place of apprehension of the accused. In the facts and circumstances of the case, the prosecution ought to have proved the DD entry by which the above said police officials PW1, 3 & 5 had left the PS so as to inspire the confidence regarding their availability/presence at the place of apprehension of the accused. At this juncture, it would be relevant to refer to a case law reported as "Rattan Lal Vs. State" 1987 (2) Crimes 29, wherein the Delhi High Court has observed that if the investigating agency deliberately ignores to comply with the provisions of the Act, the courts will have to approach their action with reservations & thus the matter has to be viewed by the court with suspicion, if the necessary provisions of law are not strictly complied with and then it can at least be said that it was so done with an oblique motive. This failure of the prosecution to bring on record the relevant DD entry as discussed above creates a reasonable doubt in the prosecution version and attributes oblique motive on to the actions of the members of the raiding party.
10.06.2009 Page 7 of 22 Pages FIR No. 80/06 P.S.: Chandni Mahal U/s: 25 Arms Act & 309 IPC
12. As per rukka Ex. PW 3/A, PW3 before conducting the raid asked passerby's to join the raiding party, but all of them left the spot after giving reasonable excuses without disclosing their name and address. Similar fact has been asserted by PW1, 3 & 5 in their respective testimonies. Now as per rukka it is clear that no serious attempt was made by the concerned police officials to get independent public persons to join the police proceedings of raid and subsequent apprehension & search of the accused despite availability of such witnesses. It has been admitted by PW1, 3 & 5 that no notice was given to the members of the public who had refused to answer the requisitions of the PW3 to join the raiding party, nor PW3 had recorded the excuses made by such public individuals despite the admitted fact that the area where the raid was ceonceptulized & conducted was thickly populated.
In circumstances like the present one, if members had in reality refused to assist the members of the raiding party, they could have served the said passerby/public witnesses with a notice in writing to join the police proceedings either at the time of seeking their initial assistance for joining the raid or later at the time of apprehending the accused, as after the apprehension of the accused there was no possibility of accused escaping his arrest or crime going undetected. At least in these facts and circumstances of the case, in my opinion, the police officials must have asked the passersby/persons available at the spot of conceptualization of the raid on information from informer and 10.06.2009 Page 8 of 22 Pages FIR No. 80/06 P.S.: Chandni Mahal U/s: 25 Arms Act & 309 IPC at the spot of apprehension of the accused by serving them a notice in writing and further in case of their refusal, the concerned police people must have taken action against them under Section 187 IPC. Facts and circumstances of the case read in the light of the testimony of PW1, 3 & 5 suggest that no sincere efforts were made by the said police officials including PW3 to join independent public witnesses in the concerned police proceedings with respect to the formation of the raiding party comprising independent public personnals and for joining the independent witnesses at the time of the search of the accused which allegedly had resulted in seizure of the impugned weapon from the accused. In this regard reliance is being placed on the following judgments: In case law reported as "Anoop Joshi Vs. State" 1992(2) C.C. Cases 314 (HC), High Court of Delhi had observed as under: "18. It is repeatedly laid down by this Court in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evidence that no such sincere efforts have been made, particularly when we find that shops were open and one or two shopkeepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the shopkeepers had declined to join the raiding party, the police could have later on taken legal action against such shopkeepers because they could not have escaped the rigours of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC". 10.06.2009 Page 9 of 22 Pages FIR No. 80/06 P.S.: Chandni Mahal U/s: 25 Arms Act & 309 IPC In a case law reported as "Roop Chand Vs. The State of Haryana" 1999 (1) C.L.R. 69, the Punjab & Haryana High Court held as under: "3. I have heard the learned counsel for the parties and gone through the evidence with their help. The recovery of illicit liquor was effected from the possession of the petitioner during noon time and it is in the evidence of the prosecution witnesses that some witnesses form the public were available and they were asked to join the investigation. The explanation furnished by the prosecution is that the independent witnesses were asked to join the investigation but they refused to do so on the ground that their joining will result into enmity between them and the petitioner". "4. It is well settled principle of the law that the Investigating Agency should join independent witnesses at the time of recovery of contraband articles, if they are available and their failure to do so in such a situation casts a shadow of doubt on the prosecution case. In the present case also admittedly the independent witnesses were available at the time of recovery but they refused to associate themselves in the investigation. This explanation does not inspire confidence because the police officials who are the only witnesses examined in the case have not given the names and addresses of the persons contacted to join it is a very common excuse that the witnesses from the public refused to join the investigation. A police officer conducting investigation of a crime is entitled to ask anybody to join the investigation and on refusal by a person from the public the Investigating Officer can take action against such a person under the law. Had it been a fact that the witnesses from the public had refused to join the investigation, the Investigating Officer must have proceeded against them under the relevant provisions of law. The failure to do so by the police officer is suggestive of the fact that the explanation for nonjoining the witnesses from the public is an after thought and is not worthy of credence. All these facts taken together make the prosecution case highly doubtful".
13. In case law reported as "Sadhu Singh Vs. State of Punjab" 1997 (3) Crime 55 the Punjab & Haryana High Court had observed as under: 10.06.2009 Page 10 of 22 Pages FIR No. 80/06 P.S.: Chandni Mahal U/s: 25 Arms Act & 309 IPC "5. In a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubts. It is for the prosecution to travel the entire distance from 'may have' to 'must have'. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused". "6. In the present case, the State examined two witnesses namely, Harbans Singh ASI who appeared as PW1 and Kartar Singh, PW2. Both the witnesses supported the prosecution version in terms of the recovery of opium from the person of the petitioner, but there was no public witness who had joint. It is not necessary in such recoveries that public witnesses must be joined, but attempt must be made to join the public witnesses. There can be cases when public witnesses are reluctant to join or are not available. All the same, the prosecution must show a genuine attempt having been made to join a public witness or that they were not available. A stereotype statement of nonavailability will not be sufficient particularly when at the relevant time, it was not difficult to procure the service of public witness. This reflects adversely on the prosecution version".
14. As per rukka & testimony of PW5, it is clear that after the apprehension of the accused but before taking the formal/casual search of the accused, police official (s), who were the members of the raiding party had not offered their own search either to the accused or any other independent member of the public before conducting the search of the accused, which allegedly had resulted in recovery of the impugned vehicle from the possession of the accused. At this juncture, it would be appropriate to refer to the judgment of Orissa High Court reported as "Rabindernath Prusty Vs. State of Orissa" wherein it was held as under: "10. The next part of the prosecution case is relating to the search and 10.06.2009 Page 11 of 22 Pages FIR No. 80/06 P.S.: Chandni Mahal U/s: 25 Arms Act & 309 IPC recovery of Rs. 500/ from the accused. One of the formalities that has to be observed in searching a person in that the searching Officer and others assisting him should give their personal search to the accused before searching the person of the accused. (See AIR 1969 SC 53 : (1969 Cri. L.J.
279), State of Bihar Vs. Kapil Singh). This rule is meant to avoid the possibility of implanting the object which was brought out by the search. There is no evidence on record whatsoever that the raiding party gave their personal search to the accused before the latter's person was searched. Besides the above, it is in the evidence of PWs 2 & 5 that the accused wanted to know the reason for which his person was to be searched and the reason for such search was not intimated to the accused. No independent witness had witnessed the search. In the above premises, my conclusion is that the search was illegal and consequently the conviction based thereon is also vitiated".
15. Being guided by above said case law, it can be said that search of the accused by above said police official (s) was in complete violation of the above said case law and the same can be said to be illegal & motivated more so in the circumstances as discussed herein above which makes the story of prosecution otherwise doubtful.
16. As per rukka and the testimony of PW3 & PW5, it is clear that the seal after use on the pulandas containing the seized weapon and blood stain shirt of the accused allegedly recovered from the accused was given to none else but to PW5 Ct. Vijay by PW3 H.C. Tejpal, the one who is a material prosecution witness being member of the raiding party & one of the witnesses to the alleged recovery of the illegal knife & blood stained shirt from the possession of the accused. Such material witness of a case is always interested 10.06.2009 Page 12 of 22 Pages FIR No. 80/06 P.S.: Chandni Mahal U/s: 25 Arms Act & 309 IPC in the success of the case of the prosecution and keeping in view this fact, the chances of fabrication of the case property cannot be ruled out beyond reasonable doubts. Further it is equally pertinent to note that the testimonies of the all the prosecution's witnesses are silent as to when & to whom the said seal was given back by the said witness or as to what happened to it after the FIR was lodged & the requirement of the said seal was over as far as the instant case is concerned.
17. There is one more circumstance which brings the story of the prosecution qua the recovery of the illegal weapon from the possession of the accused under serious doubt. It has been stated by PW1 in his cross examination that the secret informer left the spot of the apprehension of the accused after 1520 minutes on the apprehension of the accused. It has been testified by PW2 in his evidence that after the lodging of the FIR and handing over of the investigation of the case to him, he reached the spot with PW5 where he found PW3 alongwith the accused. PW3 has deposed in his cross examination that the secret informer remained on the spot for 1 to 1½ hour till the time PW2 arrived on the spot with the FIR. PW5 had stated that the informer had left the spot after identifying the accused. The cumulative reading of the above contradictory statements qua the presence of the secret informer at the spot casts a shadow of doubt on the story of the pointing of the accused by the secret informer as propounded by the prosecution. PW5 states 10.06.2009 Page 13 of 22 Pages FIR No. 80/06 P.S.: Chandni Mahal U/s: 25 Arms Act & 309 IPC that the informer left the spot immediately after identifying the accused while the other member of the raiding party states that the accused left the spot after 1520 minutes while the head of the raiding party i.e. PW3 states that the informer remained at the spot till the time PW2 arrived at the spot with PW5. The assertion of PW3 that the informer remained at the spot till PW2 arrived is contradicted itself by the testimony of PW2 who has stated that when he reached the spot with PW5, except for the accused & H.C. Tejpal none else was present. The aforesaid circumstances & testimonies discussed qua the presence of the secret informer clearly dents the veracity of the prosecution's evidence led in respect of the presence of the secret informer at the spot. The above said inherent contradictions has also effected the reliability of the prosecution witnesses, in particular, PW3 who in my view tried to be an exaggerating witness thereby resulting in losing his reliability. The above circumstances creates a doubt on the presence of the secret informer itself at the spot, thereby making it difficult for the court to believe as to whether in reality any secret informer was present on the spot to identify the accused or not.
Furthermore, it has come in testimony of PW2 that when he reached at the spot after the registration of the FIR, he found accused with PW 3 H.C. Tejpal present. No amount of evidence has come from the mouth of any one prosecution's witnesses as to where had the remaining member of the raiding party i.e. PW1 was after the I.O. PW2 arrived at the spot. Nothing 10.06.2009 Page 14 of 22 Pages FIR No. 80/06 P.S.: Chandni Mahal U/s: 25 Arms Act & 309 IPC has come on record to show that PW1 continued to be on spot after the apprehension of the accused till the time the accused was arrested by PW2. If PW1 was the member of the raiding party and the tehrir Ex. PW3/A was sent by PW3 through PW5, then PW1 should have been at the spot alongwith the accused and PW3, but no evidence has come to suggest his presence at the time of arrival of PW2 at the spot on the registration of the FIR, rather what transpires from testimony of PW2 is that when he reached the spot alongwith PW5 with the FIR, only the accused and PW3 were found to be present on the spot. This surprise missing of PW1 from the state of affairs at the time of arrival of the PW2 with PW5 clearly brings the prosecution case under doubt to the extent of the presence of PW1 during the police proceedings.
Accordingly, my aforesaid discussion reveals certain inherent contradictions, inconsistencies & exaggeration in the prosecution's evidence qua the offence under Section 25 Arms Act alleged against the accused, which clearly has resulted in failure of the prosecution to prove the said offence on the yardsticks of proving the charge beyond reasonable doubt against the accused in respect of the said offence.
18. Next, I shall ponder my attention on the aspect as to whether the prosecution has succeeded in proving the offence charged against the accused under Section 309 IPC on the basis of the evidence adduced on record.
Before proceeding further, I deem it appropriate to discuss that in 10.06.2009 Page 15 of 22 Pages FIR No. 80/06 P.S.: Chandni Mahal U/s: 25 Arms Act & 309 IPC order to bring home the offence under Section 309 IPC against the accused, the prosecution was obliged to prove the intention of the accused to commit suicide & commission of any overt actus by the accused towards the achievement of his said intention. As we all know, intention is something which rests in the mind of the individual committing an act and thus intention is something which cannot be seen or perceived & the same can only be deduced by the actions committed by an individual.
19. Reverting on to the facts of the present case, it is the case of the prosecution that on 21.03.2006 at about 1.15 p.m. at Matia Mahal Chowk, Jama Masjid, Delhi, after the accused was apprehended by PW3 with assistance of PW1 & PW5 with an illegal knife, the accused attempted to commit suicide by ramming his head to a nearby electricity pole. In site plan Ex. PW2/A, the said electricity pole is shown under the head of "KHAMBA". As far as the oral evidence is concerned, it was stated by PW1 in his evidence that when the police party was apprehending the accused, he rammed his head against an electricity pole and received injuries. PW1 stated in his cross examination that the electricity pole was around 1520 paces from the spot of the apprehension. PW1 also stated in his cross examination that the accused was taken to LNJP Hospital after he hit the electricity pole.
PW2 had stated in his evidence that the accused was taken to LNJP hospital by PW1 & PW5 once after he alongwith the accused & case property 10.06.2009 Page 16 of 22 Pages FIR No. 80/06 P.S.: Chandni Mahal U/s: 25 Arms Act & 309 IPC came back to the police station & deposited the case property in the malkhana.
PW3 had stated in his evidence that during the course of apprehension of the accused, he had hit his head against an electricity pole with an intention to commit suicide, whereby he sustained injuries. PW3 had stated in the cross examination that there was a distance of 45 paces between the spot of arrest & the electricity pole. PW3 also stated that the accused was taken to LNJP Hospital after he hit his head. PW5 stated in his examination the same facts as stated by PW3 qua the infliction of injury by the accused, but has added in his cross examination that no medical aid was provided to the accused for the said injury immediately after the infliction since he refused to cooperate.
The perusal of the record reveals that the prosecution neither had placed or proved the MLC of the accused qua the injuries allegedly inflicted by him upon himself nor had bothered to call for the doctor who had attended the accused.
20. From the above testimonies of the prosecution witnesses, omission of the prosecution to examine the concerned doctor who treated the accused for the said injuries and further the omission on behalf of the prosecution either to place or prove the MLC of the accused, I am unable to convince myself that the prosecution has succeeded in proving either the injuries of the accused allegedly inflicted by him upon himself or the intention to commit 10.06.2009 Page 17 of 22 Pages FIR No. 80/06 P.S.: Chandni Mahal U/s: 25 Arms Act & 309 IPC suicide, which was necessary for the prosecution in order to prove the overt act of the accused allegedly committed by him towards commit suicide. Merely, a request letter of medical examination under the signatures of PW2 is visible on record which was not proved on record by the prosecution since none of the prosecution's witnesses have deposed even an iota about the said request letter. The MLC of the accused neither has been brought on record nor the prosecution has made an effort to call for it in order to prove it or place it on record. Now, if the said request letter dated 21.03.2006 is perused, it would reveal that the concerned doctor had reported as below: "Ahmed Sikander M/23 Years S/o Mohd. Yousuf 143, Katra Gokul Shah, Matia Mahal, Jama Masjid.
Brought by Kishore Kumar, 1302/C O/E Abrations on scalp ½ X ½ No fresh complaint Vitals stable M.I. (1) Scan on right side forehead (2) Scan on right side face"
The aforesaid request letter was issued by PW2 as his name is there in the column of "Name of the I.O."
The perusal of the above said medical examination, reveals that accused was ordered a scan by doctor, but no such scan has been proved or placed on record to prove the injuries. The aforesaid medical examination also reveals that only minor Abrations were found on the scalp of the accused. The injuries which are as above reported by the doctor, In my view were 10.06.2009 Page 18 of 22 Pages FIR No. 80/06 P.S.: Chandni Mahal U/s: 25 Arms Act & 309 IPC insufficient so as to refer them as the injuries connected to attempted suicide or caused due to the ramming of the head. The ramming of the head, as can be judicially noticed, will not have only caused Abrations, rather, if the accused would have rammed the electricity pole with an intention to commit suicide, the injuries must have been more grave something different from mere Abrations. Now, what has come on record is the injuries in the form of Abrations, which in my humble understanding of medical juris prudence could not have been caused by ramming of head, which ramming in my conceptualization would have caused opening of or breaking of the scalp requiring stitches. The minor Abrations are in the nature of cut injuries which certainly could not have been caused by ramming head and even otherwise, the said Abrations, even if are believed to have been caused by ramming of head in an electricity pole were insufficient to infer any act or intention to attempt suicide on part of the accused. The prosecution & the police officials concerned have been lethargic enough by not even attempting to place on record the MLC of the accused, which could have proved the injuries. This is a sorry state of affairs that prosecution did nothing to place the MLC on record, which might have elicited the truth in respect of the injuries over the accused. It is not clear as to whether the said injuries were caused by the accused himself or by somebody else.
There is one more fact revealed in the testimonies of the prosecutions' witnesses is that as to how the accused who was single at the 10.06.2009 Page 19 of 22 Pages FIR No. 80/06 P.S.: Chandni Mahal U/s: 25 Arms Act & 309 IPC time of arrest being apprehended & overpowered by 3 trained police officials despite managed to escape their custody and hit the nearby pole. The aforesaid fact has gone unexplained by the prosecution. It has also gone unexplained as to why the accused would hit the electricity pole after his apprehension and before his search whereby the illegal weapon was recovered by him, when he already had the knife in his possession and if he intended to commit suicide, then he could have done so by inflicting injuries upon himself by knife rather than by going over the board to hit a electricity pole. If the accused really intended to commit suicide, the easier mode available to him was to cause injuries to him at his vital parts by the knife in his possession, but, that is not the case herein. It is more surprising as to why the accused despite having a weapon capable of being used for attempted suicide, would prefer to chose a more cumbersum process of relieving himself from the custody of the police officials, finding a pole & hitting that. The aforesaid factor also creates a doubt on the nature & reason of the injury found on the accused.
There are also contradictions qua the facts that as to how far the electricity pole was from the spot of the arrest of the accused. PW1 says it was 1520 ft., while PW5 says it was 45 ft. PW2 has stated nothing about the distance of the electricity pole. The site plan Ex. PW2/A, if seen would reveal that from the spot of the arrest, the electricity pole was seemingly more far than 45 ft. The above inherent contradiction qua the distance of the electricity pole from the place of the arrest as revealed from the testimonies of PW1, 3 & 10.06.2009 Page 20 of 22 Pages FIR No. 80/06 P.S.: Chandni Mahal U/s: 25 Arms Act & 309 IPC 5 and the site plan, clearly dents the story of the prosecution that the accused after managing to escape himself from the apprehension of 3 well trained police officials, hits an electricity pole with an intention to commit suicide.
PW1 states that he took the accused for medical examination and in his cross examination states that the accused was taken to the hospital immediately after he rammed his head. PW2 states that PW1 & PW5 took the accused to the hospital after the accused was brought to P.S. and the case property was deposited in the malkhana. PW3 is totally silent on the aspect of taking the accused to the hospital after he caused himself injury. PW5 has stated that the immediate medical aid was not provided to the accused since he was refusing to cooperate. The medical request letter of the I.O. as discussed above brings forth the aforesaid improvements & exaggerations made by the aforesaid witnesses qua the medical aid to the accused. As discussed above, the aforesaid letter clearly shows that the concerned doctor has noted that the accused was brought by Kishore Kumar, if that being so, it means that neither PW1 nor PW5 took the accused for medical examination and it was one Kishore Kumar who took the accused for medical examination. This fact exposes the lies being propounded by PW1 and PW2. The time of the examination mentioned upon the request letter is 3.20 p.m., which also contradicts PW1 & PW3 that the accused was taken to hospital immediately after he rammed his head, which lie otherwise was exposed from the testimony of PW2, who had stated that the accused was taken to the hospital after a 10.06.2009 Page 21 of 22 Pages FIR No. 80/06 P.S.: Chandni Mahal U/s: 25 Arms Act & 309 IPC while of he being taken to the P.S. The aforesaid inconsistencies have not only dented the prosecution's version qua the alleged attempt to suicide by the accused, but has also exposed the exaggerations and improvements made by the prosecution's witnesses in their testimonies before the court, which clearly runs contrary to the material discussed by me on the basis of the record.
21. In my opinion framed in view of the above mentioned discussion, it can be safely concluded that prosecution has failed to prove its case of attempt to suicide against the accused since neither the injuries have been proved by cogent documentary evidence nor the intention of the accused to commit suicide have been proved beyond reasonable doubt.
Accordingly, the accused is acquitted of the charges framed against him under Section 25 Arms Act & 309 IPC since the prosecution has not prove the charges beyond reasonable doubt as there exist flagrant doubts & unexplained holes in the prosecution story. As such accused is hereby acquitted of the charges framed against him. He be set at liberty if not required in any other case. Case property be destroyed as per rules. Copy of this judgment be given to the accused free of cost. File be consigned to record room.
Announced in the open court on 10.06.2009.
(Sidharth Mathur) M.M. (Central-02)/Delhi 10.06.2009 Page 22 of 22 Pages