Delhi District Court
State vs . Vijay Singh on 8 August, 2012
IN THE COURT OF SH. HEM RAJ: METROPOLITAN MAGISTRATE:
(WEST)09:TIS HAZARI COURTS:DELHI
STATE Vs. VIJAY SINGH
FIR No : 633/99
U/S : 25 ARMS ACT
P.S : VIKAS PURI
1. Serial No. of the Case : 108/3/10
2. Unique ID No, of the : 02401R0196642000
3. Date of Commission of Offence : 25.12.1999
4. Date of institution of the case : 05.12.2000
5. Name of the complainant : ASI Laxman Singh
6. Name of accused & address : Vijay Singh Nagar
S/o Sh. Tikam Singh
R/o VillageJarakhpur,
PS:Dhankaur, Distt. Gautam Budh
Nagar, U.P.
7. Offence complained : 25 Arms Act 1959.
8. Offence Charged with : 25 Arms Act 1959.
9. Plea of Accused : Pleaded Not Guilty.
10.Final Order : Acquitted
11.Date of Final Order : 08.08.2012.
J U D G M E N T
1 The prosecution has filed a charge sheet against the accused on the allegations that on 25.12.1999 at about 12.45 am at Hblock terminal, Vikas FIR No. 633/1999 STATE V/s VIJAY SINGH PAGE No.1/17 Puri, Delhi, the accused was travelling on a cycle richshaw with a polythene in his right hand who was stopped by the PCR officials on suspicions and on checking he was found having a desi katta in the same. The same was seized and the FIR was registered. Accordingly, accused was alleged to have committed the offence U/S 25 Arms Act, 1959.
2 After the completion of the investigation a charge sheet under section 25 Arms Act was filed against the accused. In compliance of section 207 Cr PC the copy of the charge sheet along with other documents were supplied to him and later on, vide order dated 23.5.2001 charge for the offence under section 25 Arms Act was framed to which the accused pleaded not guilty and claimed trial. 3 In order to prove its case against the accused, the prosecution examined as many as nine witnesses.
4 PW1 ASI Laxman Singh was the Incharge of PCR Van on 24/25121999 and ASI Hawa Singh was the driver of the same van. He deposed on the lines of the prosecution's story. He deposed that the accused was apprehended when he was coming on a rickshaw. He deposed the measurements of the katta. He proved the sketch of the katta as Ex.PW1/A and seizure memo of FIR No. 633/1999 STATE V/s VIJAY SINGH PAGE No.2/17 the pullanda as Ex.Pw1/B. He also proved his statement as Ex.PW1/C. He correctly identified the katta as Ex.P1 and also identified the accused in the Court.
In his crossexamination, he stated that he alongwith ASI Hawa Singh and one more constable was on duty but he could not tell the name of that constable.
5 PW2 HC Bhoop Singh was the IO of the case who came at the spot when a wireless message was given to the police station. He deposed about the investigation conducted by him. He converted the case property into a pullanda by keeping the katta Ex.P1 which was sealed with the seal of "OPY". He proved the site plan Ex.PW2/C. He correctly identified the case property as well as accused.
In his crossexamination he has stated that the information about the apprehension of the accused was received in the police station vide DD no.57B. He stated that he recorded the statement of the rickshaw puller alongwith ASI Laxman, HC Hawa Singh and Ct. Sayyad Azad at the spot. He denied the suggestion that the accused was falsely implicated in this case. 6 PW3 Ct. Sayyad Azad reached at the spot alongwith the IO of the case i.e PW2 HC Bhoop Singh and got the FIR registered in this case. He deposed the investigation he had participated in. he was crossexamined by Ld. FIR No. 633/1999 STATE V/s VIJAY SINGH PAGE No.3/17 Counsel for accused at length.
7 PW4 HC Rishi Pal inadvertently examined as PW3 was the DO and he proved the FIR as Ex. PW2/B and endorsement on the Ruqqa as Ex. PW1/C. He was not crossexamined by the Ld. Defence Counsel. 8 PW5 Sh. K.C. Varshney examined as PW4. He deposed that on 16.05.2000 FSL, Malviya Nagar received the pullandae with the seal of OPY. He found in the pullanda one country made pistol of point 315 bore. He proved his FSL report as Ex.PW4/A. He further deposed that country made pistol was a fire arm and test fired was conducted successfully and he correctly identified the same in the court.
He was not crossexamined by the Ld. Defence Counsel. 9 PW6 SI Kuldeep Singh inadvertently examined as PW5 collected the FSL report on 26.09.2000 and he prepared the charge sheet.
He was also not crossexamined by the Ld. Counsel for the accused.
FIR No. 633/1999 STATE V/s VIJAY SINGH PAGE No.4/17 10 PW7 ASI Om Prakash inadvertently examined as PW6 was the
MHC(M) and deposed that on 25.12.1999, IO Bhup Singh deposited one polythene in sealed condition with the seal of OPY along with FSL form and he made relevant entry in the register no. 19 vide entry no. 20/24 and he proved the same as Ex.PW6/A. He was not crossexamined by the Ld. Defence Counsel. 11 PW8 Kewal Singh inadvertently examined as PW7 granted the sanction u/s 39 Arms Act for the prosecution of the accused. He proved the same as Ex.PW7/A. He denied the suggestion that he accorded the same in a routine manner.
12 PW9 Ct. Balwant Singh inadvertently examined as PW8 proved the copy of DD no. 57B as Ex.PW8/A. He deposed that the original DD has been destroyed vide order of DCP mark X dated 31.08.2006.
He was not crossexamined by the Ld. Defence Counsel. 13 PW10 Ct. Dharmender inadvertently examined as PW9. He deposed that on 16.05.2000 he was directed to deposit the sealed pullanda with the seal of OPY and deposite the same in the FSL, Malviya Nagar. He further FIR No. 633/1999 STATE V/s VIJAY SINGH PAGE No.5/17 deposed that he deposited the same at FSL and returned the acknowledged copy to MHC(M) HC Om Prakash.
He was not crossexamined by Ld .Counsel for accused. 14 In his statement under Section section 313 Cr.P.C the accused stated that no country made pistol was recovered from his possession. He further stated that he was was falsely implicated in this case by the police. He chose not to lead any defence evidence.
15 I have heard the Ld. APP for the State as well as Ld. Defence Counsel. I have also gone through the oral and documentary evidence available on the record carefully.
16 It has been submitted by Ld. APP that the prosecution has been able to prove the guilt of accused beyond the reasonable doubt It has been further stated that the testimonies of the prosecution witnesses are reliable and trustworthy which have been able to bring home the guilt of the accused beyond the reasonable doubt.
17 On the other hand, the Ld. Defence Counsel submitted that the FIR No. 633/1999 STATE V/s VIJAY SINGH PAGE No.6/17
prosecution has miserably failed to prove the case against the accused beyond reasonable doubt. He further submits that there is an ordinate delay in the sending of the samples and the case property to the FSL which has caused the serious prejudice to the case of the prosecution. He further contended that the prosecution has failed to prove that the sample and the case property remained intact, till they reached at the FSL in as much as, the prosecution has not proved the FSL form. He contented further that documents prepared before the registration of the FIR contained the number of the same which show that the documents were false documents and prepared in order to falsely implicate the accused in this case. He vehemently argued that the seal after its use was not handed over to any independent person and therefore, the possibility of its misuse cannot be ruled out. It has been further submitted that there are material contradictions in the oral testimonies and the documentary evidence on the record which rendered the case of the prosecution as doubtful. He further argued that no incriminating material has come on the record against the accused and the prosecution has miserably failed to prove the case beyond reasonable doubt.
Delay in sending the recovered articles to the FSL
18 The Ld. Defence Counsel has argued firstly that the prosecution has
not sent the seized country made pistol urgently to the FSL and the same
FIR No. 633/1999 STATE V/s VIJAY SINGH PAGE No.7/17
remained in the malkhana at the police station and manipulation thereof cannot be ruled out. In the judgment of Modan Singh Vs. State of Rajasthan , (1978)4SCC 435 the effect of the inordinate delay in sending the recovered arms was considered by the Hon,ble Supreme Court in the para 9 of the judgment in the following words:
"9 .........The recovery of the pistol, Ex. 8 from the person of Modan Singh was on the 20th December at the police station itself and the recovery memo is Ex. P. 23. An empty cartridge, a live cartridge and a pistol case was recovered from the house of Modan Singh on the 23rd and the seizure memo was prepared but the prosecution failed to lead evidence that the material objects were properly kept till they were sent to the expert on 621967 by a special messenger. The investigating officers would only say that the material objects were kept sealed upon 14121966. The prosecution is silent as to in whose custody the material objects were till 621967 ...................................... ."
In Desh Raj @ Dass V/s State, 83 (2000) DLT 262, while relying upon the judgments of Hon'ble Supreme Court in Baldev Singh vs. State of Punjab 1991CAR 81 and Santa Singh Vs. State of Punjab, AIR 1956 SC 526, the Hon'ble Mr. Justice Dalveer Bhandari as His Lordship then was, took the view that the delay of 12 days in sending the samples to the CFSL proved fatal to the prosecution.
19 As per the facts of the prosecution case, the country made pistol was recovered from the possession of the accused on 25.12.1999 and the same was deposited in the Malkhana on the same day as well. PW6 ASI Om Prakash who FIR No. 633/1999 STATE V/s VIJAY SINGH PAGE No.8/17 was the MHCM and PW2 HC Bhoop Singh deposed the same. PW6 proved the relevant extracts of Register no.19 showing the relevant entry at serial number 1226 dated 25.12.1999. PW K. C. Varshney had deposed that the sealed pullanda was received in the FSL on 16.05.2000 and he found support from the testimony of PW9 who also deposed the same. There was a delay of almost 6 months in sending the sealed pullanda to the FSL which delay has not been explained on the record by the prosecution. No plausible reason has been brought forward by the prosecution as to why the pullanda was kept in the malkhana for such a long period. When the seal was available with the IO all the time and the pullanda remained in the malkahana, the tempering with the same cannot be ruled out.
Absence of CFSL Form 20 The Ld. defence counsel has further argued that the prosecution has not proved the CFSL Form in this case which renders the case of the prosecution doubtful and due to which the prosecution case suffers from inherent infirmities. In Desh Raj @ Dass V/s State, 83 (2000) DLT 262, His Lordship Hon'b'e Mr. Justice Dalbeer Bhandari, as His Lordship then, was dealing with a case under Section 402 IPC and 25 Arms Act. In that case, it was held in para 25 that:
" Neither depositing the CFSL form in the Malhkana nor sending it alongwith the sample parcel to the office of the CFSL puts a question mark on the credibility of the prosecution version."
FIR No. 633/1999 STATE V/s VIJAY SINGH PAGE No.9/17 In Lalman Vs. State 75(1998) DLT 224, it was observed by Delhi High Court as under:
"CFSL form is a valuable safeguard to ensure that the sample is not tempered with till its analysis by the CFSL analyst. The CFSL form should not only br prepared and sealed by the officer making the seizure at the place where the case property is seized from the accused, it should also be sealed by the SHO to whom the sample and case property is handed over and the same should accompany the sample to the CFSL. The purpose of the specimen seal is to compare the same with the seals on the sample parcels meant for analysis and report by CFSL to ensure that the purity of samples are not tempered with. In the absence of the CFSL form, it cannot be said that the purity of the sample remained intact. Benefit of its absence should go the accused."
The same view was taken in Rajan Ali vs. The State( Delhi Administration) 81(1999)DLT 194 by Delhi High Court. Recently in the case of Bijay vs. State ( G.N.C.T. Of Delhi), 2011 VI AD (DELHI)562, Hon'ble Mr. Justice Suresh Kait, also observed the same. The evidence led by the prosecution in this regard would show that PW2 HC Bhoop Singh deposed that the FSL form was prepared. However, PW6 has not deposed about the deposit of CFSL form nor PW9 who took the sealed pullanda to the FSL deposed anything about the same. PW K.C. Varshney also did not depose anything about the FSL form and the same has not been proved on the record. In view of the testimony of the prosecution witnesses, I am not inclined to buy the story of prosecution that FSL form was prepared and deposited in the malkhana. As held in the aforesaid judgments and especially recently in the case of Bijay vs. State FIR No. 633/1999 STATE V/s VIJAY SINGH PAGE No.10/17 ( G.N.C.T. Of Delhi), 2011 VI AD (DELHI)562, I opine that the nonsending the FSL form to the FSL alongwith the samples and not proving the same on the record renders the case of the prosecution doubtful. Accordingly, I find that the contention of the Ld. Counsel for the accused holds good water and I am inclined to go with the same.
FIR No. on the documents prepared prior to its registration:
21 The next argument advanced by Ld. defence counsel was that the seizure memo Ex.PW1/B and the sketch memo Ex.PW1/A were prepared before the registration of the FIR but the same demonstrate that the FIR has been mentioned on the same which reveals that the FIR number was added on those documents later on and the same causes doubt in the story of the prosecution. In the judgment of Giri Raj V/s State 83 (2000) DELHI LAW TIMES 201, the Hon'ble High Court of Delhi held in Para 5 as under:
"The prosecution has not offered any explanation whatsoever as to under what circumstances number of the FIR Ex. PW2/A had appeared on the top of the said documents, which were allegedly on the spot before its registration. This gives rise to two inferences that either the FIR (Ex. PW2/A) was recorded prior to the alleged recovery of the contraband or number of the said FIR was inserted in these documents after its registration. In both the situations, it seriously reflects upon the veracity of the prosecution version and creates a good deal of doubt about recovery of the contraband in the manner alleged by the prosecution. That being so, the benefit arising out of such a situation must necessarily go to the appellant".
The same view was adopted in the case of Mohd. Hashim, FIR No. 633/1999 STATE V/s VIJAY SINGH PAGE No.11/17 Appellant Vs. State, 2000 CRI.L.J 1510, Pawan Kumar Vs. Delhi Administraton,1987 CCC 585 and Mewa Ram Vs. State 2000 CRI.L.J114. In the present case admittedly the seizure memo Ex PW1/B and the sketch of the country made pistol Ex.PW1/A would show that they contained the FIR number on the same but there is no explanation furnished by the prosecution as to how and under what circumstances the same has appeared. The same causes a reasonable doubt in the prosecution story as held in the judgments mention herein above. Therefore, I find great merit in the contention of the Ld. defence counsel and agree with him that the FIR number on the seizure memo and the sketch memo of the case property creates a reasonable doubt in the story of the prosecution.
Handing Over the seal to the member of the Raiding Party:
22 The Ld. defence counsel has further argued vehemently that the seal was handed over to Ct. Sayyed Azas as per the case of the prosecution and the same was not handed over to any independent public person and the misuse of the seal cannot be ruled out especially the seal was always available with one of the member of the raiding party. In the judgment of Ramji Singh V/s State of Haryana 2007 (3) R.C.R. (Criminal) 452, the observations of Hon'ble Punjab and Haryana High Court in Para No. 7 can be reproduced for the sake of the benefit of FIR No. 633/1999 STATE V/s VIJAY SINGH PAGE No.12/17 all:
"The very purpose of giving seal to an independent person is to avoid tampering of the case property. It is well settled that till the case property is not dispatched to the forensic science laboratory, the seal should not be available to the prosecuting agency and in the absence of such a safeguard the possibility of seal, contraband and the samples being tampered with cannot be ruled out".
In Rajesh Jagdamba Avasthi Vs. State of Goa, (2005)9 SCC 773, in para 15 of the judgment in this regard the Hon'ble Supreme Court held as under:
"15............................In these circumstances there is justification in the argument that since the seal as well as the packets remained in the custody of the same person, there was every possibility of the seized substance being tempered with, and that is the only hypothesis on which the discrepancy in weight can be explained. The least that can be said in the facts of the case is that there is serious doubt about the truthfulness of the prosecution case."
While relying upon the judgment of Rajesh Jagdamba Avasthi Vs. State of Goa, (2005)9 SCC 773, in Bijay vs. State ( G.N.C.T. Of Delhi), 2011 VI AD (DELHI)562, Hon,ble Mr. Justice Suresh Kait held in para 34 of the said judgment that:
" after sealing the sample, the seal was not handed over to an independent person, rather he kept with him only, which also creates doubt on the sample whether the samples, were intact and not tempered with."
In the judgment of Noor Aga V/s State of Punjab, 2008 (10) SCR 379 which was a case under NDPS Act, the seal was not deposited in malkhana and no explanation was furnished in this regard, the Hon'ble Apex Court held that it was difficult to hold that the sanctity of the recovery was ensured. FIR No. 633/1999 STATE V/s VIJAY SINGH PAGE No.13/17 Considering the aforementioned propositions of law as settled by the aforementioned judgments it is amply clear that the same has affected the prosecution case and the same cannot be relied upon so as to return the finding of the conviction of the accused. The contention of the Ld. Defence Counsel has merits in the same and same deserves to be accepted.
23 From the perusal of the oral and the documentary evidence led by the prosecution, I am of the considered view that there are inherent material contradictions on the record which has rendered the case of the prosecution as unbelievable and unworthy of any credence. The contradictions in the story of the prosecution can be detailed out as under:
A It is the case of the prosecution that the katta was recovered in the polythene bag and the pullanda was prepared by keeping the katta in the polythene and then covered by the cloth. First IO PW2 deposed the same. However, PW6 MHC(M) deposed that one polythene in the sealed condition was deposited in the malkhana. Similarly PW4 K. C. Varshney did not say anything about the polythene in his report as well as in the testimony in the court. Nor the said polythene has been produced in the court.
FIR No. 633/1999 STATE V/s VIJAY SINGH PAGE No.14/17 B The information about the apprehension of the accused was reduced in writing vide DD no. 57B Ex.Pw8/A, however, the said DD has no mention of the fact that accused was apprehended on a rikshaw and the name of the rikshaw puller which is the case of the prosecution. No explanation has been furnished by the prosecution in this regard.
C There is also no mention of rikshaw puller Salim in the statement of Laxman Ex.PW1/C and rukka Ex.PW2/A. Again no explanation has come on the record in this regard. I am failed to understand as to why the aforementioned documents which were contemporaneous of the events taking place, are silent about the presence of the rikshaw puller Salim. There are clear contradictions in the oral and the documentary evidence in this regard. In Satinder Singh Vs. State (NCT of Delhi) 69(1997) DLT577, it was held as under:
"that the oral evidence which is contrary to the documentary evidence ought not to be relied upon. Hence, in my considered opinion, this inordinate delay of almost one year in sending the case property to the FSL has proved fatal to the cause of the prosecution, especially so when there is no explanation has been put forth in this regard. As held by the aforesaid propositions of law I have no hesitation in holding that due to said reason the prosecution case becomes doubtful and consequently falls short of being proved beyond reasonable doubt.
FIR No. 633/1999 STATE V/s VIJAY SINGH PAGE No.15/17 Hence, in view of the aforementioned oral and the documentary evidence on the record especially considering the contradictions in the same I am not inclined to rely upon the case of the prosecution. The prosecution has failed to travel the distance from may to must which is the golden principle of criminal jurisprudence before the accused can be convicted.
24 Moreover, the prosecution has failed to produce the independent public witness, the rikshaw pullar Salim. In the absence of his testimony, I am not ready to rely upon the testimony of police officials as no reasonable explanation has been furnished by the prosecution as to why Salim could not be produced. Had it been the case of the prosecution that Salim has expired then the same would have the different story. Summons to PW Mohd. Salim could not be served even after the efforts from the DCP (W). Accordingly, the prosecution case cannot be said to be free from the reasonable doubt.
25 Therefore, in view of the discussions made herein above and the facts and circumstances of the present case, in my considered opinion, the prosecution has failed to prove the guilt of the accused beyond reasonable doubt. Hence, the accused Vijay Singh is acquitted of the offence under Section 25 Arms Act, he has been charged with. He be set at liberty forthwith. His previous bail bonds and surety bond stand canceled and discharged respectively. Original FIR No. 633/1999 STATE V/s VIJAY SINGH PAGE No.16/17 documents, if any, lying on the record be returned to the previous surety after the cancellation of the endorsement, if any, against the acknowledgment. However, B/Bs furnished by the accused for the purpose of Section 437A Cr.P.C. shall remain extended for a period of six months from today. Case property be destroyed after the expiry of the period of the appeal. File be consigned to Record Room.
ANNOUNCED IN THE OPEN COURT (HEM RAJ)
TODAY i.e on 8 August, 2012
th
MM09:WEST:THC
08.08.2012.
.
FIR No. 633/1999 STATE V/s VIJAY SINGH PAGE No.17/17