Delhi District Court
State ............Prosecution vs . on 6 April, 2023
IN THE COURT OF Ms. BHARTI GARG,
METROPOLITAN MAGISTRATE09 SOUTHWEST
DISTRICT, DWARKA COURTS, NEW DELHI
FIR No. 138/14
Police Station Jafarpur Kalan
Under Section(s) 506 (II) IPC and
25/27 Arms Act
Cr. Case no. 7932/2017
CNR no. DLSW020291412017
IN THE MATTER OF:
State ............Prosecution
Vs.
Tappan
S/o Ram Kishan
R/o VPO Khera,
Najafgarh, Delhi ..........Accused
1. Name of complainant : Jyoti
2. Name of accused : Tappan
3. Offences complained of : Under Section 506 (II) of The
Indian Penal Code,1860 and
Sections 25/27 of The Arms
Act, 1959
4. Plea of accused : Not guilty
5. Date of commission of offence : 06.06.2014
6. Date of institution of case : 26.10.2017
7. Date of reserving judgment : 14.03.2023
8. Date of pronouncement : 06.04.2023
9. Final judgment : Acquitted
State Vs. Tappan CNR no. DLSW020291412017 Page no.1/17
Digitally signed
by BHARTI
BHARTI GARG
GARG Date:
2023.04.06
13:05:23 +0530
JUDGMENT:
1. The present case pertains to prosecution of accused in respect of offences punishable under Section 506 (II) of The Indian Penal Code, 1860 and Sections 25/27 of The Arms Act, 1959 (hereinafter referred to as 'IPC' and 'Act' respectively, for brevity).
2. Shorn of unnecessary details, the case of prosecution is that on 06.06.2014 at about 08:10 pm, in front of House no.135, J. P. Kalan New Delhi, accused along with one Suresh, in furtherance of their common intention, threatened the complainant Jyoti to kill her by pointing one country made pistol at her. The complainant shouted and accused fled away. Someone called at 100 number and IO along with Ct. Sudhir reached the spot. In the meanwhile, the husband of complainant namely Manoj also came and IO apprehended the accused. The IO searched the accused whereafter, one country made pistol with two live cartridges were recovered from the pant of the accused, without the accused having any valid licence or permit in that regard. FIR was registered and investigation was undertaken by IO. Suresh was discharged from present case on 17.10.2014 as complainant failed to identify him in TIP. Upon the culmination of investigation, chargesheet was filed against the accused in court.
3. Cognizance was taken of offence u/S 506 (II) IPC and u/S 25/27 Act and the accused was summoned to face trial for said offences. On his appearance, the copy of chargesheet was State Vs. Tappan CNR no. DLSW020291412017 Page no.2/17 Digitally signed by BHARTI BHARTI GARG GARG Date:
2023.04.06 supplied to accused in compliance with Section 207 Cr. P. C.
4. Based on the material filed along with chargesheet, charge was framed against the accused for offences under Section 506 (II) IPC and Sections 25/27 Act to which he pleaded not guilty and claimed trial. The accused admitted the genuineness of FIR no.138/14 dated 06.06.2014 as Ex.P1, TIP proceedings dated 15.10.2014 as Ex.P2, FSL report dated 27.08.2014 as Ex.P3 and FSL report dated 28.08.2014 as Ex.P4, under Section 294 of Cr. P. C.
5. To demonstrate the guilt of accused, the prosecution examined as many as eight witnesses. PW1 Jyoti (complainant) deposed that no incident took place against her and she did not give any complaint to police. She neither identified the accused nor the weapon of offence. As PW1 did not support the case of prosecution on material facts, the Ld. APP was granted permission to put her questions in the nature of cross examination, wherein she denied that the accused had threatened to kill her on 06.06.2014 as well as the contents of her complaint Ex.PW1/A. She further denied that the site plan Ex.PW1/B was prepared at her instance and that sketch Ex.PW1/C and arrest memo Ex.PW1/D were prepared in her presence. She stated that IO had obtained her signatures on few blank papers. The CD containing CCTV footage on record was played wherein she could not identify the place or persons appearing therein. She was not crossexamined by accused despite opportunity.
6. PW2 Manoj Kumar stated that around 56 years ago, State Vs. Tappan CNR no. DLSW020291412017 Page no.3/17 Digitally signed by BHARTI BHARTI GARG GARG Date:
2023.04.06 when he reached his home, the police were apprehending the accused and they obtained his signatures on the arrest memo, but he did not know why the accused was arrested. He correctly identified the accused in court but failed to identify the case property. As PW2 also did not support the case of prosecution on material facts, the Ld. APP was granted permission to put him questions in the nature of crossexamination, wherein he was confronted with his previous statement and denied that accused had threatened his wife or that one country made pistol with two live cartridges were recovered from the possession of accused. He further denied that the seizure memo Ex.PW2/A was prepared in his presence and stated that his signatures were obtained by IO on blank paper. The CD containing CCTV footage on record was played wherein he could not identify the place or persons appearing therein. He was not crossexamined by accused despite grant of opportunity.
7. PW4 Rishi deposed that on 06.06.2014 at about 08:10 pm, he was at his mobile shop and saw the accused, whose name was later revealed as Tappan, outside the house of Manoj. The accused abused the complainant and had a pistol which he pointed at her and threatened her. He then called at 100 number. He could not identify the accused present in court. The CD Ex.PW4/A containing six CCTV footages was played. In the first video, the witness identified the door as that of the house of complainant but could not identify the man ringing the doorbell. In the second video, a police official and few persons are seen outside the house of complainant. In the third video, a man State Vs. Tappan CNR no. DLSW020291412017 Page no.4/17 Digitally signed by BHARTI BHARTI GARG GARG Date:
2023.04.06 13:05:58 +0530 wearing printed tee and blue jeans is seen running who the witness stated to be one of the persons who were outside the house of complainant. In the fourth video, a man being apprehended by police and public persons is seen who the witness identifies as the accused. In the fifth video, few family members of complainant are seen and in the sixth video, again a man being apprehended by police is seen who the witness identifies as the accused. He could not identify the case property. As PW4 did not support the case of prosecution on certain facts, the Ld. APP was granted permission to put him questions in the nature of crossexamination, wherein he failed to identify the accused. He was not crossexamined by accused despite opportunity.
8. PW5 Ct. Sudhir deposed that upon receiving DD no.28A on 06.06.2014, he along with IO proceeded to the spot and met the complainant. They heard some noises and saw that the accused was being beaten by public persons. They apprehended him and conducted his search wherein a pistol with two live cartridges were found from back of his belt. IO recorded the statement of complainant, prepared rukka and got the FIR registered through Ct. Dheeraj. The pistol and two live cartridges were seized vide seizure memo Ex.PW2/A and sketch was prepared by IO. Accused was arrested, personally searched vide memo Ex.PW5/A and his disclosure statement was recorded Ex.PW5/B. He correctly identified the pistol as Ex.PW5/P1 and cartridges (one used and one live) as Ex.PW5/P2, contained in pullanda sealed with the seal of VRA. In his crossexamination, State Vs. Tappan CNR no. DLSW020291412017 Page no.5/17 Digitally signed BHARTI by BHARTI GARG GARG Date: 2023.04.06 13:06:09 +0530 PW5 admitted that there were CCTV cameras at the spot. He could not recall the seal with which the case property was sealed or if any fingerprints were lifted by the IO. He stated that the seal was handed over to him. He admitted that he never deposited the seal in malkhana. He stated that he had left the spot at 10:00 pm. The accused was arrested at 11:00 pm and IO had recorded the statement of public persons.
9. PW3 Sunil Kumar deposed regarding preparation of CD of the CCTV footage. PW6 HC Dheeraj deposed that on 06.06.2014, he IO had handed over the rukka to him and he had got the FIR registered. PW7 HC Ajay Kumar deposed regarding the deposit of sealed pullanda at FSL Rohini vide Road Certificate dated 19.06.2014 Ex.PW7/A.
10. PW8 Retired SI Pritpal Singh (IO) deposed as regards the investigation conducted by him, on similar lines as PW5 Ct. Sudhir. He tendered DD No.28A as Ex.PW8/A, rukka as Ex.PW8/B, application for TIP of suspect Suresh as Ex.PW8/C and TIP proceedings as Ex.PW8/D. He additionally stated that he had sealed the case property with the seal of NR and handed over the same to Ct. Sudhir. He deposited the case property at Malkhana. He was crossexamined at length. In the crossexamination, he admitted that there were many public persons at the spot but he did not record statement of any public person. He further admitted that there were CCTV footages at the spot but he did not watch those footages. He also admitted that accused was not visible in the CCTV footage provided by State Vs. Tappan CNR no. DLSW020291412017 Page no.6/17 Digitally signed by BHARTI BHARTI GARG GARG Date:
2023.04.06 complainant. He did not take any action against the persons beating the accused. He stated that the DD vide which he went to spot was regarding firing but no empty cartridge was recovered from the spot. He did not make any enquiry from the caller regarding firing. The person to whom seal NR belonged was not present at the spot and he did not put any document on record to show that seal NR was handed over to him. The seal was deposited at Malkhana on the same day. His own seal had been misplaced but he did not lodge any complaint in that regard. He could not tell as to when his seal was misplaced.
11. On account of the admission made by accused under Section 294 Cr.P.C qua the genuineness of FIR no.138/14 dated 06.06.2014 as Ex.P1, TIP proceedings dated 15.10.2014 as Ex.P2, FSL report dated 27.08.2014 as Ex.P3 and FSL report dated 28.08.2014 as Ex.P4, PWs ASI /DO Karan Singh, HC Sandeep, Sh. Gaurav Gupta, Ld. MM and Sh. Vijay Raj (Assistant Director Ballistics) were dropped from the list of prosecution witnesses and formal proof of these documents was dispensed with. Further, PW Krishan was dropped from the list of prosecution witnesses at the request of Ld. APP as he was a formal witness and further, PW Prabhu Dayal was dropped as he had already expired on 29.11.2020.
12. Thereafter, the prosecution evidence was closed and statement of accused was recorded under Section 281 read with 313 Cr. P. C. All the incriminating circumstances appearing against the accused in evidence were put to him. The accused State Vs. Tappan CNR no. DLSW020291412017 Page no.7/17 Digitally signed by BHARTI BHARTI GARG GARG Date:
2023.04.06 controverted all the allegations levelled against him and stated that he has been falsely implicated. The accused opted to not lead evidence in his defence. Thereafter, defence evidence was closed and the matter was taken up for final arguments.
13. It is argued by the Ld. APP for State that the prosecution has been able to establish the case against accused beyond reasonable doubts. The testimonies of prosecution witnesses are consistent with each other so as to prove the fact of recovery of pistol and ammunitions from the accused. It is further corroborated by the documentary evidence on record. Therefore, it is prayed that the accused be convicted of alleged offence.
14. Per contra, the Ld. Counsel for accused has strenuously urged for acquittal of accused on various grounds. It is argued that no efforts were made by the IO to join the public witnesses which raises doubt over the fairness of investigation. It is urged that there are inherent inconsistencies in the testimonies of material witnesses and hence, the case is not proved against the accused beyond all reasonable doubts.
15. Arguments heard. Record perused. Considered.
16. It is a paramount tenet of criminal law that every accused is presumed to be innocent and cannot be convicted unless the prosecution is able to discharge the initial onus rested upon it beyond all reasonable doubts under Section 101, The Indian Evidence Act, 1872. Thus, the prosecution is under a bounden duty to prove all these points on the aforesaid standard.
State Vs. Tappan CNR no. DLSW020291412017 Page no.8/17 Digitally signed by BHARTI BHARTI GARG GARG Date:
2023.04.06 The failure to do so would necessarily result in acquittal of accused. It has been held by Hon'ble Punjab & Haryana High Court in Sadhu Singh Vs. State of Punjab (1997) 3 RCR (Cri) 421: "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."
17. Before delving into merits, it is pertinent to give a brief outline of offences for which the accused persons have been tried. A person is said to have committed the offence of criminal intimidation under Section 506(II) IPC if s/he threatens another person with any injury with the intent to cause alarm to that person. Secondly, Section 3(1) read with Section 25(1B)(a) of the Act penalises the possession of arm or ammunition without holding a valid licence and lastly, Section 27 of the Act proscribes using the arms in contravention with the provisions of Act.
As regards Section 506(II) IPC:
18. It is imperative to note that the ocular evidences of PW1 Jyoti, PW2 Manoj and PW4 Rishi assume utmost significance to prove the indictment against the accused in the present case as PW1 had allegedly been threatened by accused and the other two witnesses had witnessed the incident. Nonetheless, not a slight insinuation can be discerned in the testimonies of PW1 and PW2 against the accused. PW1 State Vs. Tappan CNR no. DLSW020291412017 Page no.9/17 Digitally signed by BHARTI BHARTI GARG GARG Date:
2023.04.06 completely turned voltefaced and stated that nothing had happened in her presence and no incident, as such, took place against her. She in fact, stated that her signatures were obtained on blank papers and even failed to identify the accused as well as the case property. Moreover, PW1 denied having made the complaint Ex.PW1/A on the basis of which FIR was registered, which casts a fatal blow to prosecution case.
19. Similarly, PW2 merely stated that he had seen the police apprehending the accused when he reached his house but did not depose anything as regards the alleged criminal act of accused. He also could not identify the case property and stated that his signatures were taken by police on blank papers. He further stated nothing about the use of pistol or recovery of cartridges from the accused. Moving further, while PW4 stated that he had seen one person, whose name was later revealed as Tappan, threatening the complainant with a pistol, however, the same is of little relevance in as much as he failed to identify the accused as the said assailant.
20. All the other witnesses examined by prosecution are police officials who did not actually see the incident. As is evident from the testimony of PW4, the CCTV footage on record also did not capture the alleged incident of use of pistol by accused for threatening the complainant. The only time where the accused is visible in the said footage is when he was being apprehended by police. Likewise, the IO also admitted in his crossexamination that accused could not be seen in the CCTV State Vs. Tappan CNR no. DLSW020291412017 Page no.10/17 Digitally signed by BHARTI BHARTI GARG GARG Date:
2023.04.06 13:07:04 +0530 footage provided by complainant. In this manner, there is absolutely no material, either direct or circumstantial, on record to prove that accused had criminally threatened to kill the complainant on the relevant date. In such an event, the occurrence of incident on the date and in the manner described by the prosecution cannot be said to have been established beyond all reasonable doubts against the accused. Hence, the charge of Sections 506(II) IPC is not proved against the accused.
As regards Sections 25/27 Arms Act:
21. It is now to be ascertained if the evidence adduced by prosecution is compelling enough to prove that one country made pistol and two live cartridges were recovered from the possession of accused. First and foremost, as noted hereinabove, none of the public witnesses deposed anything about the use or recovery of pistol and bullets from the accused. Having said that, all the remaining witnesses to prove the recovery proceedings are police officials.
22. The court is cognizant of the wellsettled legal proposition that the prosecution case cannot be disbelieved merely on the basis that all the witnesses are police officials and that the testimony of police witnesses can be relied upon to convict the accused, however, their evidence needs to be weighed in light of the varied facts and circumstances of each case. Reliance in that regard is placed upon the judgment of Hon'ble Supreme Court of India in Tahir Vs. State (Delhi) (1996) 3 SCC State Vs. Tappan CNR no. DLSW020291412017 Page no.11/17 Digitally signed by BHARTI BHARTI GARG GARG Date:
2023.04.06 338, wherein it has been observed as hereinunder:
"6. Mr. D. D. Thakur, the learned senior counsel appearing for the appellant, submitted that PW4 to PW7 on whose evidence the conviction has been recorded were all police officials and in the absence of any independent witness to corroborate them, it was not safe to rely upon their testimony to sustain the conviction of the appellant. We cannot agree. In our opinion no. infirmity attaches to the testimony of police officials, merely because they belong to the police force and there is no. rule of law or evidence which lays down that conviction cannot be recorded on the evidence of the police officials, if found reliable, unless corroborated by some independent evidence. The Rule of Prudence, however, only requires a more careful scrutiny of the evidence, since they can be said to be interested in the result of the case projected by them. Where the evidence of the police officials, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it can from basis of conviction and the absence of some independent witness of the locality to lend corroboration to their evidence does not in any way affect the creditworthiness of the prosecution case."
23. Having said that, the testimonies of PW5 Ct. Sudhir and PW8 Retired SI Pritpal ought to be scrutinized closely on this point. Nonetheless, minute reading of their depositions reveals stark variations on material points, which impels the court to look for other corroborative evidence before holding the accused guilty. Now, PW5 stated that he did not deposit the seal in Malkhana. On the other hand, PW8 stated that the seal was so deposited on the same day. Further, contrary to the version of PW5 that IO had recorded the statements of public persons on the spot, the latter stated he did not do so.
24. Moreover, according to PW5, he had left the spot at about 10:00 pm. In such a case, it is inconceivable as to how he could state that the accused was arrested by IO at 11:00 pm or State Vs. Tappan CNR no. DLSW020291412017 Page no.12/17 Digitally signed by BHARTI BHARTI GARG GARG Date:
2023.04.06 that his brother was informed about the arrest. PW5 could not even tell as to which seal was used to seal the case property. The IO stated that the case property was sealed with the seal of NR, however, added that this seal did not belong to him. He was further unable to disclose as to whom the seal NR belonged to or when his own seal was misplaced. The circumstance of his using the seal of another person was also not documented at any point in time.
25. Furthermore, both PW5 and PW8 admitted that there were CCTV cameras at the spot, but the IO did not seize the same for reasons best known to him. The fact that he made efforts to seize the CCTV footage of the house of complainant, but not the one that would have evinced the seizure proceedings, and accorded much needed corroboration, further tarnishes the veracity of prosecution case. It has also come on record that IO had got conducted the medical examination of accused after he was beaten by public persons. Be that as it may, the MLC of accused is not adduced in evidence. Apparently, the IO also did not take any action those public persons who were allegedly beating the accused.
26. In addition to this, it is reflected from the perusal of DD no.28A Ex.PW8/A that first information was received at police station regarding the firing of bullets at the spot, nevertheless, none of the witnesses deposed that any person, let alone the accused, had fired bullets. The IO also stated that he did not find any empty cartridge at the spot nor did he enquire the PCR caller State Vs. Tappan CNR no. DLSW020291412017 Page no.13/17 Digitally signed by BHARTI BHARTI GARG GARG Date:
2023.04.06 about this crucial fact. The arrest memo also does not bear the mention of place from where the accused was arrested. These material incongruities and the failure of police witnesses to give answers to rudimentary facts renders their presence at the time of recovery and in consequence, their credibility, altogether dubious.
27. Moving further, it is noteworthy that although the IO stated that the seal was handed over by him to Ct. Sudhir, however, the seal handing over memo has not been prepared. Also, the seal was not handed over to any independent person or deposited at the Malkhana, rather, was handed over to one of the recovery witnesses of same police station. Therefore, the possibility of tampering cannot be ruled out. At this juncture, reliance is sought from the judgment of Hon'ble High Court of Delhi in Safiullah Vs. State (Delhi Admn.) (1993) 25 DRJ 248, wherein it was observed: "Moharrar Malkhana appearing in Court nowhere staled that he seat the article to the Chemical Examiner along with the CFSL form. This aspect assumes importance particularly when the seal used was not banded over to an independent witness.The seal after use were kept by the police officials themselves therefore the possibility of tempering with the contents of the sealed parcel cannot be ruled out. It was very essential for the prosecution to have established from stage to stage the fact that the sample was not tempered with. The prosecution could have proved from the CFSL form itself and from the road certificate as to what articles were taken from the Malkhana. Once a doubt is created in the preservation of the sample the benefit of the same should go to the accused."
28. The other lacunas which have crept into the investigation, as discussed hereinafter, in cumulation with State Vs. Tappan CNR no. DLSW020291412017 Page no.14/17 Digitally signed by BHARTI BHARTI GARG GARG Date:
2023.04.06 circumstances noted in the foregoing paragraphs, gives rise to the possibility of the alleged case property having been falsely planted on the accused. There is no evidence on record to suggest that prior to effecting search of accused, any of the police witnesses had offered their search or that the accused was granted any opportunity to search them before his search. Further, the bare reading of FIR reveals that the sketch of arm and ammunitions and their seizure memo were already prepared before the FIR was registered. In such an event, it is inconceivable as to how these two important pieces of documentary evidences depict the FIR number. The perusal thereof further manifests that the FIR number has been written in the same continuity with other contents of the documents in the same ink at the same time. No plausible explanation has been rendered by the IO in that regard.
29. It was held by Hon'ble High Court of Delhi in Pawan Kumar Vs. Delhi Administration 1989 Cri.L.J. 127 that the mentioning of FIR in seizure memo prepared prior to the registration of FIR leads to the inference that either the FIR was recorded before the alleged recovery or that the FIR number was inserted in the documents later on subsequent to its registration. In both the situations, a serious dent is created in the veracity of prosecution case. The relevant paragraph is reproduced hereinbelow: "Most importantly in the present case, the case property has been seized vide seizure memo Ex PW 1/B and thereafter FIR was registered. It means that the seizure memo was prepared at State Vs. Tappan CNR no. DLSW020291412017 Page no.15/17 Digitally signed by BHARTI BHARTI GARG GARG Date:
2023.04.06 the spot before the registration of FIR. Interestingly, the seizure memo Ex. PW 1/B bears the FIR number and case details in the same ink with which the document is prepared which indicates that the FIR number was inserted while preparing the document. The FIR is admittedly registered later after the preparation of this document. No explanation has been furnished on record as to how the FIR registration number has appeared on this document. It leads to only one inference either the document is prepared later or the FIR has been registered earlier in point of time. Both the situations create dents and leave unexplained holes in the prosecution story, the benefit of which must accrue to the accused."
30. Similarly, in Mohd. Hashim Vs. State 1999 51 DRJ 532, it was held that: "The number of the FIR (Ex. PW4/B) given on the top of the aforesaid documents is in the same ink and in the same handwriting, which clearly indicates that these documents were prepared at the same time. The prosecution has not offered any explanation as to under what circumstances number of the FIR (Ex.PW4/B) had appeared on the top of the aforesaid documents, which were allegedly prepared on the spot. This gives rise to two inferences that either the FIR (Ex.PW4/B) 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."
31. In light of the abovestated legal position, the documentary evidence adduced by prosecution also suffers from serious infirmities and adds up to the pile of contradictions emerging in the prosecution case. The testimonies of police officials do not inspire the confidence of this court in the absence of any other corroborative material on record, thereby leading to the irresistible conclusion that the accused is entitled to benefit of doubt. Consequently, the charge of Sections 25/27 of the Act is also not made out against the accused beyond the shadow of State Vs. Tappan CNR no. DLSW020291412017 Page no.16/17 Digitally signed by BHARTI BHARTI GARG GARG Date:
2023.04.06 reasonable doubts.
Conclusion:
32. Resultantly, since the prosecution has failed in proving its case beyond reasonable doubts against the accused, the accused Tappan S/o Ram Kishan R/o VPO Khera, Najafgarh, Delhi is held not guilty and hereby acquitted of the offence punishable under Sections 506(II) of The Indian Penal Code, 1860 and Sections 25/27 of The Arms Act, 1959.
Digitally signedPronounced in open court in the by BHARTI
BHARTI GARG
presence of accused on 06.04.2023.
GARG
Date:
2023.04.06
13:08:10 +0530
(Bharti Garg)
MM09/South West District
Dwarka Court/New Delhi/06.04.2023
It is certified that this judgment contains seventeen pages and each page has been signed by the undersigned.
Digitally signedBHARTI by BHARTI GARG GARG Date: 2023.04.06 13:08:19 +0530 (Bharti Garg) MM09/South West District Dwarka Court/New Delhi/06.04.2023 State Vs. Tappan CNR no. DLSW020291412017 Page no.17/17