Delhi District Court
State vs . Arshad & Ors. on 9 January, 2013
IN THE COURT OF SHRI BHUPINDER SINGH:
METROPOLITAN MAGISTRATE: DELHI
State V/s. Arshad & Ors.
FIR No. 182/94
PS: Ashok Vihar
JUDGMENT
A) Date of commission : 22/05/1994
of offence.
B) Name of the complainant : Sh. Surender Mohan
S/o. Sh. Devraj
C) Name of the accused : 1. Arshad
S/o. Sh. Sispal
2. Munabbar Ali
S/o. Sh. Azhar Ali
D) Offence complained of : U/s. 387/506(2)/34 IPC &
27/54/59 Arms Act.
E) The plea of accused : Pleaded not guilty.
F) Final order : Acquitted
G) The date of such order : 09/01/2013
Date of Institution : 05/08/1994
Judgment reserved on : Not reserved.
Judgment announced on : 09/01/2013
State V/s Arshad & Ors. FIR No. 182/94 PS: Ashok Vihar Page No. 1/23
THE BRIEF REASON FOR THE JUDGMENT:-
1. In brief the case of the prosecution is that from 22/05/94 to 06/06/94 at Shop No. WZ-466, Shiv Market, Wazirpur Village within the jurisdiction of PS Ashok Vihar, Delhi both the accused infurtherance of their common intention put Surender Mohan in fear that his son will be kidnapped or he will be killed, thereby dishonestly induced him to deliver Rs.1,00,000/- to the accused. Further that accused Arshad threatened Inspector Sunil Garg to kill him if he came near the accused on the pointing out of a Kirpan and the accused Arshad Ali was also found in possession of Kirpan and used the same for unlawful purpose.
2. After completion of investigation challan was filed by the police U/s 387/506(2)/34 IPC & 27/54/59 Arms Act of which cognizance was taken by this court.
3. Compliance of Sec.207 was carried out and complete set of documents was supplied to the accused persons.
4. Vide order dated 16/11/1994 charge was framed against the accused persons for trial of offence punishable under Section 387/506(2)/34 IPC by Ld. Predecessor of this court. Additional charge was framed against accused State V/s Arshad & Ors. FIR No. 182/94 PS: Ashok Vihar Page No. 2/23 Arshad for the trial of offence punishable under Section 27/54/59 Arms Act by Ld. Predecessor of this Court to which accused persons pleaded not guilty and claimed trial. Thereafter matter was fixed for prosecution evidence.
5. Prosecution has examined 9 witnesses to prove the guilt of accused. A brief scrutiny of the examined witnesses is as below.
PW-1 Surender Mohan is the complainant in the present case. He correctly identified the case property which included four audio cassettes, one letter and one envelope which were exhibited from P - 1 to P - 6.
He was cross examined at length by Ld. Defence Counsel.
PW-2 Manmohan has deposed that he running a cement shop at Shiv Market Wazirpur Village Delhi-52. The complainant Surender Mohan is his brother and told him that on 22/05/94 that he had been receiving threatening calls regarding the kidnap of his son and demand of Ransum of Rs.1,00,000/-, thereafter they went to Police Station on the say day and police officials told them for taping the calls and also for fixing of date, time and place. Further he deposed that on 24.5.94 they went to Dariya Gang Golcha Cinema along with Police Team in the morning at about 10:00am or 11:00am and on that day they all were hiding out. Meanwhile he himself did not remains with his brother on the spot. Further he deposed that after waiting for an hour 30/40 minutes, they came back, when they returned to shop his brother told him in that in front of Moti Mahal two persons topped him and asked for the money. Further he deposed that on 24.05.94 thereafter the telephone calls was being State V/s Arshad & Ors. FIR No. 182/94 PS: Ashok Vihar Page No. 3/23 received by his brother last day they received call on telephone on 05/06/94 and those persons asked and fixed the day for 06/05/94, the spot was at Golcha Cinema pre-fixed, he along with his brother and friend Avtar Singh including four police officials went there, they were in car and one two wheeler scooter on which SHO reached at the spot, both the accused persons present in the court on that day came in TSR at the spot and asked the SHO for Money after two month of conversation. The SHO and other police staff surrounded the accused persons. Further he deposed that the accused persons fled away from the spot at TSR. Further he deposed that the accused Arshad took out the degger which was taken by the police into police possession. The sketch of degger is Ex.PW-2/B. The accused persons were apprehended and TSR was taken into police possession vide memo Ex.PW-2/C. After interrogation the disclosure statement of both the accused persons recorded as Ex.PW-2/D and E respectively. Thereafter the police did written work. They all went to police station Ashok Vihar and he along with his brother came to their home. The personal search of accused Arshad was conducted vide memo Ex.PW-2/F. He also identified the degger as Ex. P-1.
This witness was cross examined by Sh. Arun Sharma Ld. Counsel for all the accused persons where he deposed that the accused persons fled in TSR at a distance of 10-15 steps and only then both the accused apprehended by the police in TSR. Further he deposed that he had stated in his statement U/s 161 CrPC that accused persons run away in TSR from the spot and after chasing they were apprehended. Further he deposed that he also stated to the police about the ransum amount of Rs.1,00,000/-. He further deposed that accused did not demanded any ransum. Further he deposed that he himself not hear the conversation of the cassatte not it was played in his presence further he did not remember whether police prepared State V/s Arshad & Ors. FIR No. 182/94 PS: Ashok Vihar Page No. 4/23 the transcript of the recorded cassette. Further he deposed that his brother give application in writing on 22/05/94 in PS in his presence. Further he deposed that police did not come to meet his brother in his presence but police did not come to mee him since 22/05/94 till the arrest of the accused. Further he deposed that from where the accused took out the degger, again said from the dub, the degger was took out and taken into police possession. Further he deposed that the papers prepared by police at the spot were signed by him and his brother and one Avtar Singh. Further he deposed that no public witness was summoned to those papers and recovery. He denied the suggestion that both the accused persons were arrested from their respective houses. He denied the suggestion that the degger was planted in this case or that subsequently shown to recover from the accused Arshad. Further he denied the suggestion that TSR was wrongly induced in this case with a view to give the safe to the story. Further he denied the suggestion that they had relation with Jarnail and because of him both the accused persons have been falsely implicated in this case. Further he deposed that Money Rs. 50,000/- was arranged by his brother being ransum amount which was given to the police. Further he deposed that the money was in a small bag or in a newspaper wrapper.
PW-3 Sunil Garg Addl. DCP has deposed that on 06/06/94 he was working as SHO PS Ashok Vihar being part of Training Syllabus for IPS. On 06/06/94 he received a complaint made by the complainant in person that he is receiving threatening calls that either he has to pay Rs.1,00,000/- otherwise his son Kakku @ Manish would be kidnapped and he further submitted that he has also received a letter stating that the same should not been informed to State V/s Arshad & Ors. FIR No. 182/94 PS: Ashok Vihar Page No. 5/23 the police otherwise he will face problem.
PW-4 Avtar Singh deposed that about two year back he was operate dupon for brain Hemmerrage and since then his memory has weaken and thus he is not in a position to depose as because of brain hemmerrage he could not remember anything about the incident. But about 5/6 year back his neighbourer Surinder Mohan who was having a paint shop once or twice took him to near Gurdawara, Chandani Chowk, but he did not remember the purpose of their visit.
This witness turned hostile and has not supported the case of the prosecution after being cross examined by the Ld. APP for state.
This witness was cross examined by Sh. Arun Sharma Ld. Counsel for the accused where he deposed that he have seen both the accused persons on that day (day of his examination in chief) only and not before that.
PW-5 Zameel Ahmad deposed that through he did not remember the exact date and month but it was about 8 years ago. Further he deposed that on that day in between 7:30pm he was standing at bus route No.132 near Lal Quila as he had to go to Wazirpur. On that day while he was standing there accused Arshad (correctly identified) on that day, come there and he handed over him one white envelope and he stated to me for handing over the letter to Surender Mohan of Asian Paint and one the next morning at about 9:00am he handed over the letter to Surender Mohan. Further he deposed that after about 20/22 days police called him at PS where he identified the accused Arshad being the same person who handed him over the letter which he State V/s Arshad & Ors. FIR No. 182/94 PS: Ashok Vihar Page No. 6/23 handed over to Surender Mohan. Further he deposed that he had not seen the letter lying inside the envelope which was of white colour.
This witness was cross examined by Sh. Arun Sharma Ld. Counsel for the accused where he deposed that accused Arshad was not known to him prior to that day. Further he deposed that during those days he was working with Mr. Chawla who used to manufacture KALIN at Mukarikpur. He was knowing Surender Mohan as he was residing near to the shop of Surender Mohan. Surender Mohan was known to him for the last 15-16 years. Further he deposed that Surender Mohan Kept the envelop with him and he had not opened the envelope in his presence. Further denied the suggestion that accused Arshad had not handed over him any envelope to deliver Surender Mohan.
PW-6 Ct. Satya Narain deposed that on 06/06/94 he was posted at PS Ashok Vihar as Ct and joined the investigation of the present case along with other staff i.e. Ct. Sushil, Ct. Krishan Kumar, Ct. Tajjib Haider and driver Rishi Parkash. Further he deposed that team was prepared by SI Inderpal at the instance of ACP Suneel Garg and SHO Ashok Vihar. Further he deposed that he was informed that one Surender Mohan having a shop of Paints had received a threatening letter and also received a telephonic call for handing over some money at 9:00am at near Golcha Cinema on 06/06/94 otherwise his son Manish Would be Kidnapped. Thereafter they all the members of the party reached at near Golcha Cinema in the early hours of day at about 9:30am. Thereafter ACP Sunil Garg stood near the scooter with a packet details of which he do not remember and and they all the member of the raiding party hided themselves and took position in a gali. And after about State V/s Arshad & Ors. FIR No. 182/94 PS: Ashok Vihar Page No. 7/23 10-15minutes one TSR came there having two to three persons inside the TSR and one of the occupants came near to Sunil Garg and on receiving the signal they all came outside from their respective position and accused tried to escape and they all gathered around the accused and managed to nab the accused and handed over him to the ACP. Further he deposed that one knife in his possession was recovered during his search.
After being cross examined by the Ld. APP for state he deposed that it is correct that when accused was apprehended he stated that his accomplishes have been waiting for him in TSR No.DL !R-1685 at near the Tailor shop and on instruction he along with Ct. Sushil Kumar and the brother of complainant Manmohan namely Surender and Avtar Singh immediately went towards TSR while Asraf and Ayalam managed to run away from the spot. Accused Munnaver was apprehended at the spot along with TSR. Further he deposed that the sketch of Kirpan was prepared by IO. Further he deposed that seal after use was handed over to Manmohan. Further he deposed that rukka was prepared by IO and case was got registered through him at about 11:30am. He correctly identify the degger as Ex.P-1.
This witness was cross examined by Sh. Arun Sharma Ld. Counsel for the accused where he deposed that he had not seen the letter on that day but the contents of the letter was told to him by the IO, in the letter he was informed that the letter was pertaining to threat. Further he deposed that he do not remember the name of son of Surender Mohan and do not know the telephone number of Surender Mohan. The accused Arshad was apprehended at about 9:30am and the other accused Munnaver was apprehended at a distance of 50 to 100 sqyds after about 15.20minutes of apprehending of Arshad. Further he denied the suggestion that he was not State V/s Arshad & Ors. FIR No. 182/94 PS: Ashok Vihar Page No. 8/23 present in the raiding party. He was informed orally about the threat by the SHO as well as about the brief facts the SHO. Further he deposed that he do not remember whether the memo was prepared with regard to the bundle of currency notes. Further he do not remember whether any signatures of the raiding members were obtained on the currency notes of bundle. He had not seen such bundle or currency notes in the court. He denied the suggestion that after the arrest of the accused Arshad he did not state regarding his accomplish waiting for him in TSR No.DL1R-1685 near tailor shop. Further he denied the suggestion that he deposed falsely at the instance of IO.
PW-7 HC Shyam Sunder has proved the copy of FIR as Ex. PW-7/A. PW-8 Insp. Inderpal Singh deposed that on 06/06/94 he was posted at PS Ashok Vihar as SI. On that day complainant Surender Mohan came at PS and met the SHO Mr. Sunil Garg. He was called by SHO and asked him to heard the complainant. He recorded the statement Ex.PW-1/A of complainant Surender Mohan. Thereafter a raiding party was prepared alongwith complainant, Ct. Tehjib Ahder, Ct. Sunil Kr, Ct. Satyanarain, Ct. Krishan Pal, one Mr. Manmohan Singh and Avtar Singh and went to Golcha cinema on Govt Vehicle in civil dress, SHO also reached there on his scooter. SHO was having the fake bundles of currency notes amounting to Rs.50,000/- and SHO was wearing T-Shirt of red colour as was directed by accused persons namely Arshad and Munnawar Ali who were present in the court on that day through threatening letter addressed to the complainant. At that time accused Arshad came there and approached the SHO who was in Civil Dress and asked for money. On this SHO made a signal and they immediately State V/s Arshad & Ors. FIR No. 182/94 PS: Ashok Vihar Page No. 9/23 rushed towards him and surrounded the accused Arshad who take out a degger from his right dub of the pant and pointed towards SHO. He over powered the accused with the help of Ct. Tehjib and Ct. Kishanpal. The degger was taken into possession and sketch Ex.PW-2/A was prepared. Further he deposed that a pulanda of knife was prepared and same was sealed with the seal of IP and seized vide memo Ex.PW-2/B. Further he deposed that seal after use was handed over to Manmohan brother of the complainant. Further he deposed that on interrogation accused Arshad disclosed that a other companion were in a TSR No.DL1RA-1685 which was parked nearby M.Usman Tailor. This proceedings observed by the companion of the accused who present near the M.Usman Tailor and they tried to fled away from there on above mentioned TSR. Further he deposed that they were chased by Ct. Sushil Kr, Ct. Satyanarain, Avtar Singh and Manmohan and apprehended accused Munnawar Ali but the companions of the accused succeeded to escape from there. The TSR was also seized vide memo Ex.PW-2/C. Rukka Ex.PW-8/A was prepared by him. Further he prepared the site plan Ex.PW-8/B. Further he deposed that Satyanarain had also reached at Golchad Cinema with copy of FIR and rukka which were handed over to him. The accused persons were interrogated. Complainant also handed over me threatening letter, four audio casettes having the alleged voices of accused and same were sealed with seal of IP and were seized vide memo Ex.PW-2/B. Further the accused were arrested and personally searched vide memos Ex.PW-2/P and Ex.PW-8/C. Further he recorded the disclosure statements of accused persons as per their versions vide memos Ex.PW-2/E and Ex.PW-2/D. Later on he deposited the threatening letter and specimen handwriting of accused Arshad at CFSL office, CBI, CGO Complex, New Delhi. He also identify the degger as Ex.P1. Also identify the threatening State V/s Arshad & Ors. FIR No. 182/94 PS: Ashok Vihar Page No. 10/23 letter and envelop addressed to Surender Asian Paints are Ex.P2, specimen handwritings are Ex.P3 and cassettes are Ex.P4 collectively.
This witness was cross examined by Sh. Arun Sharma Ld. Counsel for the accused persons where he deposed that he had made the departure entry on 06/06/94 at PS Ashok Vihar but he do not remember the DD No. on that day. Further he deposed that he met complainant prior to 06/06/94 as he had visited the PS on 21/0594 with regard to the same threat of this case, DD entry was not made on 21/05/94 in this regard. He had not received any written complaint also on 21/05/94. The complainant came to the PS on 21/05/94 with a letter of threat asking the complainant to come with Rs.1.0 lakhs at Golcha Cinema by wearing red colour T-Shirt, the said letter was taken into police possession on 21/05/94. No statement of accompanied brother of the complainant was recorded on 21/05/94. further he deposed that no memo was prepared with respect to the taking of Ex.P-1/DA. Vol. The same only retained at PS for verification. The letter Ex.P-1/DA remained in my possession through out the investigation. Further he deposed that he has not seen the original of letter Ex.P-1/DA in the file, vol. The same was sent to FSL Chandigarh for comparison. He denied the suggestion that no such original of Ex.P-1/DA was sent to FSL Chandigarh. Further he deposed that it is correct that neither the original nor the copy of the hand writing taken by him from the accused persons were taken by him nor the same was sent to FSL Office. He denied the suggestion that he had managed and precured the threatening letter though there was no original of the same was handed over by the complainant on 21/05/94. further he deposed that it is correct that he had not investigated Jamil before the registration of the case as to from whom he had received the threatening letter. Further he deposed that the complainant handed over him an open letter i.e. not covered in any envelope.
State V/s Arshad & Ors. FIR No. 182/94 PS: Ashok Vihar Page No. 11/23The person who photocopied the letter was neither examined nor cited as PW in this case. The case was registered on 06/06/94 and the threatening letter remained with him prior to the registration of case. Further in answering to a specific question he deposed that the contents of the threatening letter was mentioned in the statement of complainant on which the FIR was registered. Further he denied the suggestion that with the collusion of the complainant he had manipulated the fact with respect to the threatening letter. Further he denied the suggestion that intentionally he had not referred the fact that the threatening letter was taken into possession by him on 21/05/94, on 06/06/94 when he was called by SHO at his office that time SHO had not recorded any facts in his hand writing regarding this. Further he deposed that whenever threatening call had been received by complainant between 21/05/94 and 06/06/94 he used to meet him in the police station. Further he deposed that it is correct that statement was not recorded prior to 06/06/94.
This witness was further cross examined by Sh. Arun Sharma on 10/11/09 where he deposed that they were in Govt. Vehicle and the complainant and his family members were in private vehicle and other staff were also in that vehicle and they reached at Golcha Cinema at about 8:45am or 9:00am. Further he deposed that no public person was asked to join the raiding party at Golcha as well as on the way of PS to Golcha. Further he deposed that he do not know who has provided the fake bundle of currency notes of Rs.50,000/- the same are in one packet. Further he deposed that accused Arshad came at the spot on foot and the TSR was stationed at near Usman Tilla on the opposite line of Golchad Cinema accused tried to run away but he was over powered by him. He was 10-12 steps away from SHO. Site plan Ex.PW-8/B was prepared by him. Further he deposed that it is correct that in the site plan he had not shown the position of the raiding members.
State V/s Arshad & Ors. FIR No. 182/94 PS: Ashok Vihar Page No. 12/23Further he deposed that it is correct that Munnbar Ali was not arrested in his presence. All the writing work was don at the spot where the Arshad was apprehended. Accused Munnabar was brought at the said place by the police staff. They remained at about ½ an hours at the spot, people were coming and going at that time. He denied the suggestion that he was not the member of the raiding party. Further he denied the suggestion that degger was planted upon Arshad and the same was not recovered from the possession of the accused. Further he deposed that no information was gone to the PS Daryaganj. The PS Daryaganj is 300 meters away from Golcha Cinema. Further he deposed that no reference of fake currency notes bundle was given in any documents prepared at the spot. No memo was prepared with respect to handing over and taking back the seal used at the spot. The impression of seal was not taken on any separate paper nor on recovery memo though seal belongs to him. Seal was prepared by him privately and was not issued by their department. He do not remember who was the Malkhana incharge at that time. He do not remember the Sr.No. against which the property was deposited into the Malkhana. Further he denied the suggestion that the case property was tempered with and documents were manipulated. Further he deposed that some threatening letter and audio cassettes were handed over to SHO and inturn handed over to him by the SHO. Further he deposed that the memos pertaining to the receiving of threatening letter and of audio cassettes was not having the signature of SHO which is Ex.PW-2/B the same were handed over on 06/06/94. further he deposed that no transcript of the audio cassettes were prepared by him. He denied the suggestion that the cassettes and letters are manipulated. Further he denied the suggestion that the cassettes were tempered with by erasing the contents. Further he deposed that the instrument by which the cassettes were recorded by the State V/s Arshad & Ors. FIR No. 182/94 PS: Ashok Vihar Page No. 13/23 complainant was a telephonic device which was installed at the shop of complainant. He denied the suggestion that no such instrument was having in possession of complainant nor any cassettes was recorded. Further he deposed that no sample voice of any accused was taken by them. Further he denied the suggestion that cassettes were not having any voice which incriminate the accused. He denied the suggestion that disclosure of accused persons were taken forcibly by applying third degree method and their signatures were obtained there on forcibly. Further he denied the suggestion that he had manipulated the documents with respect to the hand writing of accused Arshad. Further he deposed that no permission was obtained from the court for taking of the accused. Further he denied the suggestion that his investigation was not fare. Further he denied the suggestion that false witnesses has been set up in this case. Furher he denied the suggestion that the accused persons are falsely implicated in this case with the collusion of Jamil Ahmed S/o Munna who was having bitter relation with the accused.
PW-9 S.L. Mukhi deposed that he is working as Director Truth Lab B-1/132, Safdarjung Enclave, New Delhi before joining to this case he was working as Principal Scientific Officer, Sr. Scientific Officer Gr-I and Gr.-2 in CFSL since January 1972. further he deposed that certain documents vide letter No.525/SHO/AV dtd.22/07/94 referred by SHO PS Ashok Vihar were examined by him with the help of scientific equipment and after a thorow scientific examination and comparison he arrived at the opinion that hand writing evidence points to the writer of the specimen. Hindi Writing marked S-1 to S-5 being the person responsible for writing the questioned Mark-Q-1 to Q-3. Further he deposed that to arrive at this opinion he had detailed his State V/s Arshad & Ors. FIR No. 182/94 PS: Ashok Vihar Page No. 14/23 reasons in his report No.CFSL/94/D-876 which is Ex.PW-8/A consists of four pages and bears his signatures at point A. Further he deposed that documents referred above in his opinion mark- Q1 and Q-2 are Ex.PW-9/B, Q-3 on Ex.PW-9/C (both objected to by Ld. Def. Counsel being the mode of proof) and specimens considered by him during his examination and referred in his opinion Ex.PW-9/A are Ex.PW-9/D1 to D-5 (objected to by Ld. Def. Counsel being the mode of proof).
This witness was cross examined by Sh. Arun Sharma Ld. Counsel for the accused where he deposed that Ex.P-9/B and C were sent together. Document Ex.PW-9/B was not inside the envelop Ex.PW-9/B. He had received only Ex.PW-8/B, C and Ex.PW-9/D1 to D-5. Further he deposed that the case particulars are not written on Ex.PW-9/B and C and neither bears the signatures of the IO. Further he deposed that in his chief dtd.06/01/10 he had exhibited his report as Ex.PW-8/A inadvertently now it has to be read as Ex.PW-9. Further he deposed that whenever the person tries to adopt the writing of the another person it becomes a double process first of all he has to hide his own individual charactersticks and secondly he has to copy the charactersticks of another person which is not possible exactly there may be a superficial similarity in the formation of certain character however, the individual charactersticks will remain the same. Further he denied the suggestion that there will be similarities in the individual hand writing charactersticks. Further he deposed that he had mentioned in his report that therese documents have been examined with the help of scientific equipment however, he had not mentioned the name of equipments. Further he denied the suggestion that I had given his report under the influence of the IO of this case.
State V/s Arshad & Ors. FIR No. 182/94 PS: Ashok Vihar Page No. 15/236. P.E. was closed and thereafter statement of accused was recorded under section 313 Cr.P.C, to which the accused denied the charge and claimed to have been falsely implicated in this case. They declined to lead evidence in defence. Thereafter the matter was fixed for final arguments. Written arguments were filed by Ld. Defence Counsel.
7. 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 persons beyond the reasonable doubt.
8. Per contra Ld. Defence Counsel has argued that the prosecution has miserably failed to prove the case beyond reasonable doubt. He further submits that the accused persons have been falsely implicated in this case.
9. I have heard the arguments advanced by Ld. APP for the State as well as Ld. Counsel for the accused persons and have gone through the evidence and the material available on record.
10. It is well settled principal of law that the prosecution has to prove the State V/s Arshad & Ors. FIR No. 182/94 PS: Ashok Vihar Page No. 16/23 case beyond reasonable doubt and has to stand upon on its own legs. The prosecution also cannot draw any strength from the case of the accused howsoever weak it may be. It is also well settled proposition of criminal law that the accused has a profound right not to be convicted for an offence which is not established by the evidential standard of proof beyond reasonable doubt. It is also well settled principle of law that in a criminal trial the burden of proof always rests upon the prosecution and the same never shifts onto the accused.
11. In a recent case reported as Paramjeet Singh @ Pamma Vs. State of Uttarakhand, 2011CRI.L.J.663, Supreme Court, Hon'ble Mr. Justice Dr. B. S. Chauhan, speaking for the Bench, held in para no. 11 and 12 as under:
"11. A criminal trial is not a fairy tale wherein one is free to give flight to one's imagination or fantasy. Crime is an event in real life and is the product of an interplay between different human emotions. In arriving at a conclusion about the guilt of the accused charged with commission of a crime, the court has to judge the evidence by the yardstick of probabilities, intrinsic worth and the animus of witnesses. Every case, in the final analysis, would have to depend upon its own facts. The court must bear in mind that "human nature is too willing, when faced with brutal crimes, to spin stories out of strong suspicions." Though an offence may be gruesome and revolt the human conscience, an accused can be convicted only on legal evidence and not on surmises and conjecture. The law does not permit the court to punish the accused on the basis of a moral conviction or suspicion alone. "The burden of proof in a criminal trial never shifts and it is always the burden of the prosecution to prove its case beyond reasonable doubt on the basis of acceptable evidence." In fact, it is a settled principle of criminal jurisprudence that the more serious the offence, the stricter the degree of proof State V/s Arshad & Ors. FIR No. 182/94 PS: Ashok Vihar Page No. 17/23 required, since a higher degree of assurance is required to convict the accused. The fact that the offence was committed in a very cruel and revolting manner may in itself be a reason for scrutinizing the evidence more closely, lest the shocking nature of the crime induce an instinctive reaction against dispassionate judicial scrutiny of the facts and law. (Vide: Kashmira Singh Vs. State of Madhya Pradesh, AIR 1952 SC 159; State of Punjab Vs. Jagir Singh Baljit Singh & Anr. AIR 1973 SC 2407; Shankarlal Gyarasilal Dixit Vs. State of Maharashtra, AIR 1981 SC 765; Mousam Singha Roy & Ors. Vs. State of West Bengal, (2003) 12 SCC 377; and Aloke Nath Dutta & Ors. Vs. State of West Bengal, (2007) 12 SCC 230).
12. In Sarwan Sigh Rattan Singh Vs. State of Punjab, AIR 1957 SC 637, this court observed (Para12) :
"Considered as a whole the prosecution story may be true; but between 'may be true' and 'must be true' there is inevitably a long distance to travel and the whole of this distance must be covered by legal, reliable and unimpeachable evidence (before an accused can be convicted)."
13. After considering evidence on the record I am on the considered opinion that the prosecution has miserably failed to prove the case against the accused beyond the reasonable doubt. There are several loop holes in the story of the prosecution.
14. There is major contradictions in the testimony of the complainant/PW-1 Surender Mohan. His testimony was recorded twice. In his examination in State V/s Arshad & Ors. FIR No. 182/94 PS: Ashok Vihar Page No. 18/23 chief recorded on 12.02.1998 PW-1 Surender Mohan deposed that on 24.05.1996 accused present in the court met him at Dariyaganj and enquired whether he had brought the amount whereas in his examination in chief recorded on 04.06.1999 he did not depose this fact. In his cross examination by Ld. Defence Counsel PW-1 Surender Mohan deposed on 24.05.1996 that the accused present in the court did not meet him.
15. Further in his cross examination PW-1 Surender Mohan deposed that he was not present at the spot and was standing other side of the road and that his brother i.e. PW-2 Man Mohan was with the police team at the spot. Per contra PW-2 Man Mohan deposed that he along with his brother and friend Avtar Singh including four police officials went to the spot.
16. Though the complainant identified the cassettes and were exhibited in the court yet neither the tape recordings were played in the court nor their transcript was filed. No expert was examined to prove the voice resemblance of the accused with the recorded conversation. In his cross examination by Ld. Defence Counsel PW-1 Surender Mohan deposed that neither the date has been recorded in any conversation nor the description of the persons making calls were recorded in cassette and admitted that he had not asked about the descriptions of the persons. There is no evidence on record with regard to the fact that the accused persons ever made any telephone call to the complainant. The complainant has not mentioned even his telephone number on which he received the threatening call. No call record has been produced on record to show that there was any telephonic conversation between the State V/s Arshad & Ors. FIR No. 182/94 PS: Ashok Vihar Page No. 19/23 complainant and the accused persons. Transcripts of the conversation recorded on audio cassette was neither produced in the court nor was sent to FSL for the scientific voice comparison with the sample voice of the accused taken by the IO to prove the allegations against the accused beyond any reasonable doubt.
17. PW-1 Surender Mohan has deposed that the FIR was already recorded before proceeding to the spot. Per contra PW-6 Ct. Satya Narayan in his cross examination by Ld. APP deposed that IO prepared the rukka which was taken by him to the PS and got an FIR registered. This fact was affirmed by PW-7 and PW-8. As per the testimonies of PW-6, PW-7 and PW-8 the dagger and TSR was first seized and the the rukka was prepared which was sent for registration of FIR. This according to the witnesses FIR was registered after seizure of dagger and TSR. However, the seizure memo bears the FIR No. It is obvious then at the time of seizure. FIR No. was not available and therefore, FIR No. could not have figured on the seizure memo. The very fact that the FIR No. finds mention on the seizure memo suggests that the seizure memo was prepared after the registration of FIR and is therefore, anti timed. This erodes the credibility of the witnesses who have stated that the seizure memo was prepared on the spot and before the registration of FIR.
Hon'ble High Court of Delhi has held in Giri Raj V/s State 83 (2000) DELHI LAW TIMES 201, that "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.
State V/s Arshad & Ors. FIR No. 182/94 PS: Ashok Vihar Page No. 20/23PW2/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".
18. Further the fake currency notes which were allegedly given by the accused persons by the PWs were not produced before the court at any point of time. Even the source of their procurement was not disclosed. The ownership of the TSR bearing registration No. DL 1 RA 1685 in which the accused persons are alleged to have come has not been ascertained and also there is nothing on record to suggest whether it was being driven by one of the accused persons or by anyone else. If it was hired by the accused persons, the auto driver should have been made a witness which has not been done. PW-4 Avtar Singh on being cross examined by the Defence Counsel denied seeing the accused persons before that day.
19. The threatening letter Ex. PW-9/B was sent to FSL for comparing the same with that of the writing of accused Arshad but the handwriting sample of the accused Arshad was not taken before the court but in the police station in the presence of two witnesses Manmohan and Avtar Singh. But these witnesses never deposed about the fact of writing of the accused Arshad being taken in their presence. Accordingly, the letter cannot be taken into account to link the accused Arshad as its writer.
State V/s Arshad & Ors. FIR No. 182/94 PS: Ashok Vihar Page No. 21/2320. It is cardinal principle of criminal jurisprudence that an accused is presumed to be innocent. The burden lies on the prosecution to prove the guilt of accused beyond reasonable doubt. The prosecution is under a legal obligation to prove each and every ingredient of offence beyond any doubt, unless otherwise so provided by any statute. This general burden never shifts, it always rests on the prosecution. (Daya Ram v. State of Haryana, (P&H) (DB) ,1997(1) R.C.R.(Criminal) 662).
21. In a criminal trial, the burden of proving everything essential to the establishment of the charge against an accused always rests on the prosecution and there is a presumption of innocence in favour of the accused until the contrary is proved. Criminality is not to be presumed, subject of course to some statutory exceptions. It was observed in Partap v. State of U.P., (SC) 1976 A.I.R. (SC) 966 that while prosecution required to prove its case beyond a reasonable doubt, accused can discharge his onus by establishing a mere preponderance of probability. In Vijayee Singh v. State of U.P., (SC) 1990(3) S.C.C. 190 it was again held that in criminal cases burden is always is on prosecution and never shifts. In Nasir Sikander Shaikh v. State of Maharashtra, (SC) 2005 Cri.L.J. 2621 and Jarnail Singh v. State of Punjab, (SC) 1996(1) R.C.R.(Criminal) 465 it was held that it is cardinal principle of criminal jurisprudence that an accused is presumed to be innocent and burden lies on prosecution to prove the guilt of accused beyond reasonable doubt. Prosecution is under legal obligation to prove each and every ingredient of the offence beyond any doubt, unless otherwise so State V/s Arshad & Ors. FIR No. 182/94 PS: Ashok Vihar Page No. 22/23 provided by the Statute. (AIR 1962 SC 605 relied). Accused is not expected to prove his innocence to the hilt. If prosecution story is doubtful, benefit of doubt must go to the accused.
22. Prosecution is under legal obligation to prove each and every ingredient of the offence alleged against the accused beyond any reasonable doubt. Suspicion how so ever strong it may be, cannot replace the standard of proof required to establish the guilt of the accused. In the present case, the prosecution has miserably failed to discharge its onus. The evidence available on record is not sufficient to substantiate the guilt of the accused. Accordingly the accused deserves acquittal.
23. It is ordered accordingly.
(Bhupinder Singh) Metropolitan Magistrate Rohini Courts : Delhi Announced in the open court on January 09th, 2013.
It is certified that this judgment contains 23 pages and each page is signed by me.
(Bhupinder Singh) Metropolitan Magistrate Rohini Courts : Delhi Date: 09/01/2013 State V/s Arshad & Ors. FIR No. 182/94 PS: Ashok Vihar Page No. 23/23