Delhi District Court
State vs . Irfan Etc. on 3 December, 2012
IN THE COURT OF SHRI DHARMENDER RANA, M.M (NE)
KARKARDOOMA COURTS, DELHI"
FIR No. : 200/98 & (201/98)
U/s : 379/411 IPC & (25/54/59 Arms Act )
P.S : Seelampur
State Vs. Irfan etc.
J U D G E M E N T
1. Sl. No. of the case : 521/12 & (153/11)
2. Date of institution of the case : 20.12.1999 &
(09.06.2000)
3. Name of complainant : Babu Lal S/o Mahi Lal &
( ASI Mahmood Ali)
4. Date of commission of offence : 23.03.1998
5. Name of accused, parentage & address : 1)Irfan S/o Mohd. Rafiq
R/o Village Basoli, PS
Birad, District Baghpat,
U. P.
2) Reham Ilahi S/o
Islamuddin r/o Village
Gona, PS Ratol, District
Baghpat.
6. Offence complained of or proved : 379/411 IPC & (25/54/59
Arms Act)
7. Plea of accused : Accused pleaded not guilty
8. Final order : Acquitted
9. Date of which order was reserved : 29.11.2012
10.Date of pronouncement : 03.12.2012
* ( The data pertaining to FIR No. 201/98 has been described in brackets) BRIEF REASONS FOR THE DECISION OF THE CASE
1. By way of instant common judgment I propose to dispose off the FIR No. 200/98 & 201/98 1 of11 case FIR No. 200/98 & case FIR No.201/98, as the facts in both the case are common.
As per the case of prosecution, in the intervening night of 22.03.199823.03.1998 at about 01:00 AM, the brother of complainant Sh. Babu Lal, namely Basudev, woke up for attending call of nature. He observed that a calf belonging to complainant Babu Lal was being loaded by three persons into a TATA407 vehicle bearing registration No. UP25 7806. He raised alarm upon which complainant and the members of general public gathered at the spot and one accused was apprehended at the spot while others managed to flee from the spot. Someone made a PCR call to the police control room and on the receipt of call, SI Mahmood Ali along with Qurban Ali visited the spot and the accused Irfan, apprehended by the public was taken into custody by them. A countrymade pistol is also reported to have been recovered from accused Irfan.
2. FIR No. 200/98, U/S 379/411/34 IPC, PS Seelampur was registered pertaining to the theft and recovery of the aforesaid calf. FIR No. 201/98, U/S 25/54/59 Arms Act, PS Seelampur was registered pertaining to the recovery of the countrymade pistol.
3. Subsequently, during course of investigation accused Rehman Ilahi was also arrested in the instant matter.
4. Upon conclusion of investigations in both the above mentioned FIR, challan have been filed by the IO alleging the commission of offence U/S FIR No. 200/98 & 201/98 2 of11 379/411 IPC by accused Irfan and Reham Ilahi in case FIR No. 200/98 and offence U/S 25/54/59 Arms Act in case FIR No. 201/98. The accused persons were consequently summoned and documents were supplied to them. A formal charge for the offence U/S 379/411 IPC and 25/54/59 Arms Act was framed against accused Irfan and a formal charge for the offence U/S 379/411 IPC was framed against accused Reham Ilahi. The accused persons have refuted the charges leveled against him and claimed trial.
5. In order to bring home the charge prosecution has examined as many as seven witnesses in case FIR No. 200/98 and 10 witnesses in case FIR No. 201/98.
6. PW1 ASI Jabar Singh is the DO who recorded the case FIR No. 200/98 and has proved the copy of the same Ex. PW1/A. He has also been examined as PW5 in case FIR No. 201/98 who has deposed that on 23.03.1998 at about 05:15 AM, he has registered FIR No. 201/98 and has proved the copy of the same vide Ex. PW5/A.
7. PW2 Ct. Kurban Ali is a police official who accompanied IO SI Mahmood Ali and went to the spot upon receipt of DD No. 21. He met complainant and his brother at the spot who produced Tempo No. UP257806 with a white color calf inside it. Upon the directions of the IO, he got the FIR registered in the instant matter. He has proved the seizure memo of the Tempo Ex. PW2/A and the seizure memo of the calf Ex. PW2/B. However the witness has faltered in identification of accused Irfan FIR No. 200/98 & 201/98 3 of11 and has incorrectly identified accused Reham Ilahi as Irfan.
Ct. Kurban Ali was also examined in FIR 201/98 as PW3 wherein he has testified that a countrymade pistol was recovered from the personal search of accused Irfan. He has deposed that the Katta was seized by the IO/ASI Mahmood Ali vide seizure memo Ex. PW2/A. He has correctly identified the katta Ex. P1.
8. PW3 Babu Lal is complainant in FIR No. 200/98, he has deposed that around 810 years ago when his brother woke up for urinating, he saw that accused Irfan was attempting to board their calf in a Tempo upon which he raised alarm. Two accomplices of accused Irfan managed to flee from the spot while accused Irfan was apprehended at the spot. A PCR call was made and police came at the spot. The Tempo and calf were seized by the IO vide seizure memo Ex. PW2/A and Ex. PW2/B respectively. He has proved his statement Ex. PW3/A. However, he has refused to identify accused Rahish as perpetrator of offence.
Sh. Babu Lal was also examined as PW1 in case FIR No. 201/98 wherein he has deposed that when he woke up for natural call he observed that some person were catching hold his calf and cow. One of the accused namely Irfan was apprehended at the spot and a countrymade pistol was recovered from him. He has proved the sketch of the same vide Ex. PW1/A.
9. PW4 Basudev is the brother of complainant Babu Lal who has deposed that around 78 years ago about 2:00 AM, he woke up for attending FIR No. 200/98 & 201/98 4 of11 nature's call and he observed that a Tempo was stationed and a calf belonging to his brother was being loaded in that Tempo. Upon his alarm one man was apprehended at the spot.
However, he has refused to identify the accused in the witness box.
10. PW5 HC Banni Singh is the subsequent IO who concluded the investigation and filed the challan in case FIR No. 200/98.
11. PW6 SI Mahmood Ali is the initial IO who carried out initial investigations in case FIR No. 200/98. He has proved the rukka Ex. PW6/A, Site Plan Ex. PW6/B, SI Mahmood has also been examined as PW2 in case FIR No. 201/98. He has testified that a countrymade pistol was recovered, during the personal search of accused Irfan. He has proved the seizure memo of the said countrymade pistol vide Ex. PW2/A and rukka in case FIR No. 201/98 vide Ex. PW2/B. He has also proved the site plan Ex. PW2/C. He has correctly identified the Katta Ex. P1.
12. PW7 Sh. Brijmohan Khandelwal is the Executive Director of the company owning Tempo No. UP257806. He has proved the superdarinama Ex. PW7/A. He has deposed that at the pertinent point of time the said Tempo was given on monthly rental to Rahis Ahmed and Mohd. Ahmed.
He has refused to identify the accused persons in the docket.
13. Ct. Ganga Singh has been examined as PW4 in case FIR No. FIR No. 200/98 & 201/98 5 of11 201/98. He has deposed that vide RC No. 20/21, he has deposited a pullanda at Malviya Nagar.
14. Dr. K. C. Varshney from FSL, Malviya Nagar has been examined as PW6 in case FIR No. 201/98. He examined the countrymade pistol and reported the same to be in working condition. He has proved his report Ex. PW6.
15. Ct. Yogesh is a police official examined as PW7 in case FIR No. 201/98. He has deposed that on 23.08.1998, he accompanied IO SI Sanjay Kumar in investigation of case FIR No. 201/98.
16. Sh. Virender Singh, SSP, Chandigarh has been examined as PW8 in case FIR No. 201/98 who has proved the sanction U/S 39 of the Arms Act vide Ex. PW8/A.
17. SI Sanjay Kumar examined as PW9 in case FIR No. 201/98, carried out the investigations in that case. He has deposed that when they reached at the spot ASI Mahmood Ali produced accused Irfan along with a pullanda of countrymade pistol along with sketch and the seizure memo of the pistol. He prepared the site plan at the instance of ASI Mahmood Ali. He got the pullanda deposited at FSL, Malviya Nagar.
18. SI Aditya Niranjan has been examined as PW10 in case FIR No. 201/98, who concluded the investigations of the said case and filed the challan.
19. Upon conclusion of the prosecution evidence, statement of FIR No. 200/98 & 201/98 6 of11 accused were recorded U/S 313 Cr. P. C wherein they pleaded innocence. Accused had opted not to lead any defence evidence.
20. I have heard the rival submissions and carefully perused the record.
21. In the case at hand, loopholes and inconsistencies are galore in the prosecution version. The Ld. Defence Counsel has ably highlighted numerous dents in the case of the prosecution.
22. Ct. Kurban Ali has failed to make a mention of recovery of any countrymade pistol in his examinationinchief recorded on 23.07.2003, in case FIR No. 200/98. In his crossexamination he categorically testified that the personal search of accused Irfan was conducted at the spot itself and only a sum of Rs. 155/ along with cards were recovered from his personal search. Although he casually mentions that one katta was recovered in his presence, however, he fails to elucidate from whom and when the said katta was recovered. In contradistinction to his stand in FIR No. 200/98, he has testified the recovery of a countrymade pistol from the personal search of accused Irfan in case FIR No. 201/98.
Further, in his crossexamination in case FIR No. 200/98, he has admitted that he had not seen the IO carrying any plastic scale or measuring anything in his presence whereas in his crossexamination in case FIR No. 201/98, he testified that the katta was measured with a 6'' Plastic Scale by the IO.
FIR No. 200/98 & 201/98 7 of11 Further more, he has also faltered in identification of the accused in case FIR No. 200/98 and has incorrectly identified accused Raham Ilahi as Irfan.
There is another startling fact in the testimony of Ct. Kurban Ali. In his crossexamination in case FIR No. 201/98, the witness has testified that he does not remembers when the departure entry was made at PS or when he left the police station or what else was recovered from the personal search of accused Irfan apart from the katta. However, in his crossexamination in FIR No. 200/98, he has testified that Rs. 155/ and cards were recovered from the personal search of accused Irfan. He further testified that he remained in the police station till about 03:30 AM. Interestingly, his testimony in case FIR No. 201/98 was recorded on 21.05.2002 and his testimony in case FIR No. 200/98 was recorded on 23.07.2003. The witness is silent about his mystical recovery of the memory about forgotten facts in the case in which he deposed later.
23. The star witness Babu Lal, who is complainant in case FIR No. 200/98, is also inconsistent in his testimony before the court. In case FIR No. 200/98, he has deposed that his brother woke up to urinate while in case FIR No. 201/98, he has testified that it was he who woke up to attend the call of nature.
In case FIR No. 200/98, he fails to endorse the recovery of any katta from accused Irfan whereas in case FIR No. 201/98, he has testified that a countrymade pistol was recovered from the accused Irfan.
FIR No. 200/98 & 201/98 8 of11 Further, in his examinationinchief recorded in case FIR No. 201/98, he fails to endorse the presence of his brother Basudev at the spot.
Besides, contrary to the stand of the IO, he has testified that the documents were prepared by the IO/police officials in the police station.
He has also refused to identify accused Reham Ilahi as perpetrator of the offence.
24. The testimony of complainant Babu Lal inevitably depends for its corroboration upon the testimony of his brother Basudev. Basudev in his testimony recorded in case FIR No. 200/98 has refused to identify the accused persons as perpetrator of the offence. In his crossexamination, he has given a clean chit to the accused persons and has categorically stated that the accused who were present in the court are not the person apprehended at the spot.
Further, he has also refused to endorse the presence of the accomplices of accused at the spot. He has also refused to identify the number of the Tempo used in the commission of the offence to be UP257806. In his crossexamination, he has admitted the suggestion that on the date of the incident, his brother Babu Lal did not owned any calf. He again vacillated in his reexamination by the Ld. APP and has testified that his brother owned a calf.
25. SI Mahmood Ali in his crossexamination has volunteered that a countrymade pistol was recovered from the Tempo contrary to his stand in case FIR No. 201/98 that the countrymade pistol was recovered from the right FIR No. 200/98 & 201/98 9 of11 dub of the pant of the accused Irfan.
26. The Ld. Defence Counsel has also highlighted a very important query regarding the time of the registration of the FIR in both the cases. Admittedly, case FIR No. 200/98, regarding the alleged theft of the aforementioned calf was registered in the police station at about 02:30 AM while the case FIR No. 201/98 regarding the recovery of countrymade pistol was registered at about 05:15 AM. A gap of about 02:0002:30 hours in registration of the two FIRs regarding the simultaneous recoveries of incriminating articles calls for an explanation which is lacking in the instant case.
27. Further more, it is but obvious that consequent upon the alarm/ hue and cry of complainant Babu Lal and his brother Basudev, the persons from the neighbourhood must have gathered at the spot. No palpable explanation has been tendered on behalf of the prosecution regarding the non joining of independent and neutral public persons in the investigations of the instant cases.
28. In a criminal trial, the onus remains on the prosecution to prove the guilt of accused beyond all reasonable doubts and benefit of doubt, if any, must necessarily go in favour of the accused. 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.
FIR No. 200/98 & 201/98 10 of11 29 As a cumulative effect of all the points discussed above, I am of
the opinion that a reasonable shadow of doubt is cost upon the prosecution version. Accused Irfan and Reham Ilahi deserves the benefit of doubt. Accused Irfan and Reham Ilahi accordingly stands acquitted for the charges U/S 379/411 & U/s 25/54/59 Arms Act leveled against them. Dictated & Announced in the open Court on 03.12.2012 ( DHARMENDER RANA ) METROPOLITAN MAGISTRATE(NE) KKD COURTS, SHAHDARA, DELHI FIR No. 200/98 & 201/98 11 of11