Delhi District Court
) Brij Mohan vs Unknown on 28 August, 2008
-:1:-
IN THE COURT OF SH. NARINDER KUMAR
ADDL. SESSIONS JUDGE, FAST TRACK COURT,
ROHINI COURTS : DELHI
SC No. SC No. 21
Date of institution of the case: 12/03/2007
Date for reservation of Order: 28th of August, 2008.
Date of Decision: 28th of August, 2008.
Decision: Acquittal.
STATE
Versus
1) Brij Mohan
S/o Late Sh. Puran Chand
R/o H.No. 2788, Hansa Puri,
Old bus Stand, Tri Nagar,
Delhi-110 035.
2) Naveen Kumar
S/o Late Sh.Puran Chand
H.No. 2788, Hansa Puri,
Old bus Stand, Tri Nagar,
Delhi-110 035.
FIR No. 404/99
P.S. Keshav Puram
U/s. 323, 307, 506 (Part-II) IPC
& Sec 352/34 IPC
-:2:-
JUDGMENT
First the Facts Brij Mohan and Naveen Kumar accused, both brothers, have been facing trial for offences under Sections 323, 307, 506 (Part-II) IPC and under Section 352/34 IPC.
Case of prosecution is that on 11/06/1999 at about 3 p.m. PW Ashwani Kumar was going to his factory from his house on foot. When he reached old bus stand Tri Nagar, he saw Brij Mohan accused giving beatings hurling abuses at a rickshaw puller. Persons from the public present there tried to rescue the rickshaw puller. Thereupon Brij Mohan started slapping persons from the public. He also gave a fist blow and slapped PW Ahswani as well. Thereupon PW Ashwani left for his factory.
Further case of prosecution is that on 11/06/1999 at about 3 p.m., complainant Shashi Kumar was present at his factory No. 2725/204 Multan Nagar, Delhi. After sometime, his brother Ashwani Kumar PW came there and informed as to how Brij Mohan had slapped him. Thereupon, Shashi Kumar accompanied Ashwani Kumar to his (accused) shop situated at the crossing. Brij Mohan was found present at his shop. PW Shashi Kumar enquired from him for having -:3:- slapped his brother. Brij Mohan accused admitted that he had slapped Ashwani Kumar but retorted as to what they could do. Upon this an altercation took place between the accused and Shashi Kumar. In the meanwhile, his brother-co accused Naveen Kumar also reached there Then both the accused started fighting with Shashi Kumar and Ashwani Kumar.
Brij Mohan accused took out a pistol from his belt and threatened PW Shashi Kumar to teach him a lesson and that he (accused) would not allow Shashi to go alive. Then Brij Mohan accused fired at Shashi Kumar from his pistol but Shashi Kumar gave a jerk to his hand as a result of which the fire went upside. Shashi Kumar then made Brij Mohan accused to fall on the ground by grabbing him. In the scuffle, pistol of the accused fell down. PW Ashwani put his foot on the pistol. The occurrence was witnessed by PW Shiv Charan Sharma as well.
Case of prosecution is that ASI Puran Prasad on receipt of call of quarrel received at 03:20 p.m. reached house No. 2788, Old Bus Stand Tri Nagar, Delhi and found some of the police staff already present there. The ASI also found both the accused on the one hand and PW Shashi Kumar and -:4:- PW Ashwani Kumar on the other hand quarreling and grappling with each other. The ASI found a pistol lying by the side of wall of a shop. He picked up the pistol and tried to make both the parties understand that they should not quarrel. After some time SHO, ACP and Incharge of Police Post Shanti Nagar reached the spot. Both the accused entered their house but after sometime came out of the house accompanied by their maid servant Shalu. ASI heard persons present there from the public saying that both the accused and their maid had self inflicted injuries on their person with a view to strengthen their case.
ASI Puran Prasad unloaded the pistol. On unloading it, ASI recovered four cartridges from it. The ASI then seized the pistol and the cartridges, after turning them into two separate parcels.
Both the accused as well as Ashwani Kumar and Shashi Kumar were arrested u/s 107/151 Cr.P.C.
PW Shashi Kumar made statement before the police. Since police did not take any action, the complainant party filed petition before Hon'ble High Court. It was, thereafter that statement of Shashi Kumar was recorded -:5:- again. Ultimately, present case was registered on 31/12/1999. SI Raj Singh, then In-charge, PP Shanti Nagar, on receipt of letter called Shashi Kumar complainant at PS Keshav Puram, made inquiries from him about the incident dated 11/06/99, recorded his statement, then appended endorsement and that is how, case was registered. Constable Lal Chand took Brij Mohan to hospital for his medico legal examination.
Sealed parcels referred to above containing pistol and the cartridges were sent for analysis to CFSL Chandigarh where their contents were analysed.
SI Raj Singh accompanied by complainant Shashi Kumar left for the spot, after registration of the case and at the pointing out of the complainant prepared rough site plan. On completion of investigation, challan was put in court.
After compliance with provisions of Section 207 CrPC, case came to be committed to Hon'ble Court of Session.
Charge Prima facie case having been made out, charge for offences under Sections 323, 307, 506 (Part-II) IPC and -:6:- under Section 352/34 IPC was framed against the accused persons vide order dated 05/09/2003.
Since the accused persons pleaded not guilty and claimed trial, prosecution was called upon to lead evidence. Prosecution Evidence In order to prove its case, prosecution examined following 14 witnesses:-
PW1 Shashi Kumar, PW2 Naresh Chand Sharma, PW5 Ashwani Kumar, PW6 Shiv Charan Sharma have deposed as to the manner in which occurrence took place.
PW3 SI Raj Kumar has deposed about recording of FIR Ex.PW3/A. PW4 Dr. P. Sidambri, Junior Scientific Officer has proved has report Ex.PW4/B regarding analysis of the contents of two sealed parcels received at FSL on 21/07/1999 i.e. pistol and four cartridges. In the opinion of the expert, the pistol had been fired through before it was received in the Laboratory.
PW7 Constable Janak Raj, PW8 SI Dinesh Chand, PW9 ASI Puran Prasad, PW10 Inspector Praveen -:7:- Kumar, PW11 Head Constable Vijay Kumar, PW12 Constable Lal Chand and PW14 SI Raj Singh have deposed about investigation part of prosecution story.
PW13 Sh. Keshav Chander Dwivedi, the then DCP (Licencing) has deposed about passing of order for cancellation of Arms Licence issued in the name of Brij Mohan Sharma.
When examined u/s 313 Cr.PC, the accused persons pleaded in the manner as under:
Plea put forth by Brij Mohan accused:
"Shop of my brother Dharam Dev is situated in the same building where my house is situated. I was running a shop during those days.
... SHO, ACP and Incharge Police Post Shanti Nagar reached my house at about 5.00 p.m. on 11/06/99 after I made a phone call intimating police post Shanti Nagar that Ram Chander, Shashi, Ashwani, Rishi Raj, Sanjay, HC Jagbir, a Sub Inspector whose name I do not know, had entered my house on the same day at about 3.00 p.m./3.15 p.m, given beatings to my maid servant Shalu, my brother Naveen and myself and also taken away my pistol. I may -:8:- mention here that even prior to arrival of ACP, SHO, Incharge of police post, PCR reached my house and took away maid servant Shalu and Naveen for medical examination. Many persons from the public had gathered there in front of my house at that time. When I came out of the house, I found that SHO, ACP and In-charge had also reached there.
I may mention that on that date at about 3/3.15 p.m., the aforesaid persons came to my house and lodged protest that I was making false complaints against them,namely, Ram Chander and his sons. Sanjay, one of the sons of Ram Chander represented that he was son-in-law of Deep Chand, a politician. Thereafter, Ashwani and Shashi caught hold of me, whereas Sanjay took away my pistol from my belt. Rishi Raj gave me beatings with a pointed weapon. Ram Chander hurled abuses at me instigating his sons to give me beatings. Thereupon, they gave me beatings and then ran away.
Police advised me that I should also get myself medico legally examined. Constable Lal Chand removed me from my house to Hindu Rao Hospital where I was medico legally examined at about 7.00 p.m. I narrated the -:9:- occurrence even to the doctor. From the hospital, I reached my home. At that time, ASI Puran Prasad met me at my house. I narrated the entire occurrence to the ASI telling him that I had already narrated the same even to the SHO. The ASI then took me to PS Keshav Puram. I and my brother Naveen were then detained at the lock-up of PS Keshav Puram. I saw Shashi and Ashwani PWs in the lock-up on the same night. I lodged protest with the SHO regarding my detention.
On the next day, I was produced before SEM, Ashok Vihar. I narrated my version before the SEM at that time. When I was released on bail on those proceedings U/s. 107/151 CrPC, I reached home. Ultimately, I went to PP Shanti Nagar where I met SI Dinesh Sharma. The SI took me to the PS where I met Inspector Pradeep Kumar, SHO, in connection with release of my pistol. However, my pistol was not released. Then I reached home.
On 13/06/99, Inspector Pradeep Kumar, SHO, came to my house and removed my brother Naveen Kumar to PP Shanti Nagar. I telephonically talked in-charge of the police post whereupon he assured that no action would be -:10:- taken against Naveen Kumar and that my pistol would also be released. Naveeen Kumar was released by the police in the morning of 14/06/99.
On 15/06/99, I got issued a notice, through my Advocate, to the Higher Police Officers as police had not taken any action against above named persons and the police officials on account of beatings given to me, my brother, main servant and for removal of my pistol. However, no action was taken by the police. Ultimately, writ petition No. 578/99 was filed before the Hon'ble High Court on my behalf. Notice was issued to the opposite party. Thereupon police started threatening me that I should not take cudgles against the them. Police started harassing me. Ultimately police registered a case against Shashi Kumar, Ashwani Kumar and others on 06/09/99. However, the police diluted the offences.
... False case has been got registered by Shashi Kumar in connivance with the police. I may mention here that the complainant party had filed a writ petition for quashing of case FIR NO. 269/99 got registered by me against them, taking up false pleas. That petition was however dismissed by -:11:- Hon'ble High Court.
.. The order was passed without providing me an opportunity of being heard."
Plea put forth by Naveen accused :
"The aforesaid shop used to be run by my brother Dharam Dev and not by me.
... On 11/06/99 at about 3/3.30 p.m., I was present at my house. I heard noise and thereupon came down. At that time, I found Shashi Kumar, Ashwani Kumar, Rishi Kumar, Sanjay, Ram Chander and three-four others present there inside our house. Sanjay represented to my brother Brij Mohan that he was filing false complaints against them. My brother denied this allegation. Sanjay, Shashi, Ashwani and others then started giving beatings to my brother. When I intervened, they gave beatings to me as well. Shashi was having a pointed weapon with me. He inflicted its blow on my left side. Sanjay removed the pistol from the belt of my brother and proclaimed that he would kill my brother. However, Sanjay went out of our house taking the pistol along. Police reached there. I may mention that our maid -:12:- servant Shalu was also given beatings by the aforesaid persons. Police removed me and Shalu to Hindu Rao Hospital where we both were medico legally examined. Thereafter, I and Shalu reached home.
At about 10/11 p.m., police came at our house and took me along to PS Keshav Puram. I found Brij Mohan, my brother, present there in the PS. I was also detained at the PS. On the next day, we were produced before SEM after
2.00 p.m. This is a false case got registered against us by Shashi Kumar and others.
... After my release on bail in proceedings U/s. 107/151 CrPC SHO came to my house and took me along. I was detained at the PS during the night and ultimately released in the morning. We have been falsely implicated."
In defence, DW1 Dharambir has been examined by the accused persons to prove certain entries made in police record.
Discussion
Learned Addl. PP while referring to the
statements of PW1, PW2, PW5 and PW6 submitted that case of the prosecution against both the accused stands duly -:13:- established regarding their participation in the crime. It has further been submitted by learned Addl. PP that investigation part of the prosecution story lends corroboration to the version narrated by the aforesaid four PWs. Reference has also been made to the evidence of expert witness about use of the pistol of Brij Mohan. So it has been argued that both the accused are liable to be convicted and sentenced.
On the other hand, written arguments have been submitted on behalf of the accused in nutshell submitting that prosecution has failed to bring home guilt to any of the accused and as such they are entitled to acquittal as there is delay in recording of the FIR and prosecution has not explained this delay; that statements of star witnesses are contradictory on material aspects; that witnesses have made improvements on various aspects; that prosecution has failed to prove use of any pistol or recovery of any arms and ammunition on the given date, time and place; that police officers tampered with official record to plant recovery of pistol and cartridges so as to falsely implicate the accused. On these grounds, it has been contended that accused persons are entitled to acquittal.
-:14:-
Occurrence is alleged to have taken place on 11/06/99 at about 3.00 p.m., but this case came to be registered more than six month thereafter i.e. on 31/12/99, when statement of Shashi Kumar (complainant) was recorded at Police Post Shanti Nagar. Case of prosecution is that this case came to be registered only after directions issued by Hon'ble High Court on 28/10/99. Copy of concerned writ petition is EX. PW1/D1. It is in the statement of PW Shashi Kumar that his statement was recorded by the police on the same day and for the second time after filing of petition before the Hon'ble High Court. In his cross examination, Shashi Kumar admitted that the petition was filed before the Hon'ble High Court in October 1999. A perusal of statement Ex. PW1/A made before the police would reveal that it was recorded on 31/12/99 and not on the day of occurrence, as stated by PW1 Shashi Kumar.
Delay in registration of case PW1 Shashi Kumar admitted in his cross-
examination that he filed complaint Ex.PW1/D2 before DCP (North-West). That complaint is on 22/11/1999. In case police did not initiate any action against the accused persons, -:15:- the complainant or his brother should have reported the matter to the police without delay. It is not case of prosecution that any complaint was made by Shashi Kumar or his brother before the police on account of non-registration of any case or their statements or on account of non-recording of their statements. Petition was filed before the Hon'ble High Court in October 1999 i.e. after registration of this case and that too for quashing the FIR. Fact remains that no complaint was filed by any of the two brothers prior to the filing of writ petition Ex. PW1/D1 and filing of complaint Ex. PW1/D2.
A perusal of statement of Ashwani Kumar PW would reveal that he displayed ignorance if his brother Sashi Kumar filed any complaint before the police.
In view of the above discussion, it can safely be said that there is delay in getting the case registered. In the given facts and circumstances, this court comes to the conclusion that prosecution has failed to explain delay in recording of FIR. It is well settled that delay results in embellishment which is creature of afterthought. Bereft of advantage of spontaneity, danger creeps in of an introduction of concocted version, exaggerated account as a result of -:16:- deliberation and consultation. Thus, delay should be satisfactorily explained.
In State of Karnataka v. Mapilla P.P.Soopi, AIR 2004 SC 85, Hon'ble Apex Court observed that unexplained delay in lodging complaint with the police contributes to the doubt in the prosecution version.
OCULAR ACCOUNT NARRATED IN COURT Statement of PW1 Shashi Kumar:
While appearing in court as PW1, Shashi Kumar complainant deposed that on 11/06/99 at 3.00 p.m., his brother Ashwani Kumar came to his factory and informed that Brij Mohan accused had slapped him. Further, according to the witness, he accompanied by his brother Ashwani Kumar reached the shop of Brij Mohan, situated at the crossing, and found Brij Mohan present outside his shop. He asked Brij Mohan as to why he had slapped his brother, whereupon Brij Mohan replied that he had slapped Ashwani Kumar, but questioned as to what he (Shashi Kumar) could do. Upon this, an altercation took place between the witness and Brij Mohan. In the meanwhile, Naveen (accused), brother of Brij Mohan also reached there from his house which is situated at -:17:- the crossing. Both the accused then started fighting with him and his brother Ashwani Kumar, as further stated by the witness.
It is further in the statement of Shashi Kumar that Brij Mohan took out a pistol from the belt and threatened to teach him a lesson and further said that he would not allow him (the witness) to go alive. Brij Mohan fired from the pistol, but as further stated by the witness, he gave a jerk to the hand of Brij Mohan, as a result whereof the shot went upside. According to the witness, he made the accused to fall down . In this scuffle, the pistol also fell down and his brother Ashwani (PW) placed his foot over it.
Statement of PW Ashwani Kumar:
Ashwani Kumar (PW) had stepped into the witness box as PW5 and narrated that on 11/06/99 at 3.00 p.m., while he was going to his factory on foot, on reaching old bus stand, he saw Brij Mohan accused giving beatings to his shop owner. Having seen people gathered there, the witness also stopped there. He saw the accused hurling abuses at rickshaw puller. Persons from the public tried to rescue the rickshaw puller, whereupon the accused spared -:18:- the rickshaw puller, but started slapping persons from the public. Brij Mohan slapped him in addition to have given him a fist blow. Further, according to the witness, he went to the factory and apprised his brother Shashi Kumar of the incident. It was thereafter that both the brothers came to the spot. At that time, his brother Shashi Kumar asked Brij Mohan as to why he had given him beatings. Brij Mohan accused started hurling abuses at Shashi Kumar and also shouted as to what could he do. Naveen Kumar accused also reached there. As further stated by the witness, Brij Mohan then took out a pistol from the belt after raising alarm that he would teach them a lesson, and then pointed out the pistol at his brother Shashi Kumar, while saying that he would not allow him to go alive. Further, according to PW5, in order to save himself, Shashi Kumar, his brother, pulled the hand of Brij Mohan upwards as a result whereof the shot went in the air. The witness further stated that Shashi Kumar, his brother, pulled Brij Mohan from his leg, whereupon he lost his balance and fell down. In that process, the pistol also fell on the ground. According to PW5, he placed his foot over the pistol. -:19:- Delay in recording of statement of Ashwani Kumar In his cross examination PW5 Ashwani Kumar displayed ignorance if police recorded his statement at any time or that he was called by the police to the Police Station at any point of time for recording of his statement. The witness could not admit or deny if at any point of time his statement was recorded. According to the witness, police had made only inquiries from him on 11/06/1999. In view of the above deposition made by PW5 it transpires that witness has not supported the case of prosecution to have made statement before the police.
Who was beaten by Brij Mohan?
Had Brij Mohan beaten any shopkeeper, PW5 could very easily tell as to who was the concerned shopkeeper. In his cross-examination, PW5 could not tell as to which of the shopkeepers was given beatings by Brij Mohan. According to PW5, police reached the spot within 5/10 minutes of the occurrence. Those police officials could tell as to who was the shopkeeper, who was given beatings by Brij Mohan. It is significant to note that none of the police officials examined in this case has deposed about any beating -:20:- to any such shopkeeper or his presence on the given date, time and place when they happened to reach the spot. No shopkeeper came forward to make statement PW5 wants the court to believe that crowd present there included shopkeepers. In such a situation, anyone from the shopkeepers could come forward and make statement as to the manner in which Brij Mohan is alleged to have given beatings to a rickshawpuller and thereafter the persons who intervened and after that PW5 Ashwani Kumar. No statement of any such shopkeeper was recorded. According to PW5, none came forward, in his presence, to make any complaint to the police. No particulars of aforesaid rickshaw puller were made available to the police or have been made available to the court.
Did any quarrel take place in presence of police officials?
Case of prosecution is that one Head Constable and three constables reached the spot first and ASI Puran Prasad reached there later on and that the police officials found both the parties were quarreling with each other. According to PW5 Ashwani Kumar, at the time three police officials reached the spot, no verbal wrangle was going on -:21:- there. This statement of PW5, is therefore, not in consonance with the version narrated by the police officials. Which document was attested by Ashwani Kumar at the spot ?
Seizure memo -copy Ex.PW7/A in respect of recovery of pistol and four live cartridges is stated to have been prepared by ASI Puran Prasad and attested by five police officials. It was not got attested from any witness from the public or atleast from PW1 Shashi Kumar, PW2 Naresh Chand Sharma, PW5 Ashwani Kumar and PW6 Shiv Charan Sharma.
According to PW5 Ashwani Kumar, 3/4 police officials who initially reached the spot prepared one memo and he attested the same. In his cross examination, PW5 could not tell as to in what respect that memo was prepared and got attested from him. The witness was shown memo regarding seizure of pistol and cartridges. He admitted that this memo does not bear his signatures. Prosecution has not placed on record any document bearing attestation of PW5 Ashwani Kumar. So, it goes unexplained as to which document was prepared by police official and in respect of -:22:- which fact.
Place of occurrence As regard the place of occurrence, prosecution version is that occurrence took place in front of shop of Brij Mohan. PW5 Ashwani Kumar deposed in his cross examination to have so stated before the police. A perusal of his statement Ex.PW5/DA made before the police would reveal that therein he stated that occurrence had taken place in front of shop of Templewala. Therein, it does not stand recorded that occurrence took place in front of shop of Brij Mohan.
In view of the above discussion, I find merit in the contention of learned defence counsel that there are material contradictions and improvements in the statement of PW5 Ashwani Kumar which create doubt in the version narrated by him regarding the manner in which the occurrence alleged to have taken place.
Version narrated by PW2 Naresh Chand Sharma PW Naresh Chand Sharma deposed to have witnessed both the limbs of the occurrence i.e. beating of rickshawpuller, slapping of Ashwani by Brij Mohan, and also -:23:- about opening of fire after arrival of Ashwani to the spot in the company of his brother Shashi Kumar.
While assailing the statement of PW2, learned defence counsel has argued that this witness was inimical towards accused, and as such no reliance should be placed on his testimony. It has also been submitted this witness is a made up witness and his presence on the given date, time and place is doubtful.
In his cross examination, PW2 admitted that he is complainant in case FIR No. 194/1999 and 92/2000 u/s 307, 379 of PS Keshav Puram against the accused. The witness admitted that accused stand acquitted in aforesaid two cases.
He further admitted that he is a complainant in case FIR No. 87/2001 against Brij Mohan accused. Factum of his having instituted a civil suit against the accused has also been admitted by the witness. All this puts the court on guard to scrutinize statement of the witness with more care and caution.
So far as the first limb of the occurrence i.e. Brij Mohan having slapped a rickshaw puller, shop keepers, and then slapping of Ashwani Kumar PW is concerned, PW2 -:24:- Naresh Chand Sharma stated in his cross examination that the accused did not cause any beating to any of the 30/35 persons who gathered at the spot. By stating so PW2 has not supported the statement of PW5 Ashwani Kumar, as according to PW5 Brij Mohan slapped not only a rickshaw- puller but also persons from the public. Further according to PW2, none of the persons present there tried to intervene in the matter, or made any statement before the police. It is in the statement of PW2 Naresh that all the shopkeepers present there, were running hardware shops in that area and that they opted to remain there during the entire incident.. PW2 however could not tell name of any of the shopkeepers of the area who had so gathered there. It is not believable that with so many persons present at that time, none of them came forward to save the local shopkeeper or the rickshaw- wala or Ashwani Kumar.
Statements of PW2 Naresh Chand Sharma and PW5 Ashwani Kumar are not in consonance with each other on another important aspect of the matter. As per version narrated by PW5 Ashwani Kumar, the rickshaw puller went away after he was given beatings by Brij Mohan. On the -:25:- other hand, PW2 Naresh Chand Sharma stated that rickshaw puller remained there for 15 minutes. Further according to PW2, Ashwani Kumar returned to the spot again within 5/7 minutes and at that time the rickshaw puller was still being beaten by the accused. However, PW5 Ashwani Kumar and his brother Shashi Kumar (PW1) nowhere stated that they saw Brij Mohan giving beatings to the rickshaw puller on their arrival at the spot.
Case of prosecution is that on return to the spot in the company of his brother Ashwani Kumar, PW1 Shashi Kumar enquired from Brij Mohan as to why he had given beatings to Ashwani Kumar. On the other hand, PW5 Ashwani Kumar stated in his cross examination that no talk took place between his brother Shashi Kumar and Brij Mohan before Brij Mohan slapped his brother. It is pertinent to mention that from this statement of PW5 Ashwani Kumar, it appears to be his version that Brij Mohan had slapped even Shashi Kumar on their arrival at the spot. But this version is not in consonance with the version narrated by PW5 Ashwani Kumar or PW2 Naresh Chand Sharma. PW1 Shashi Kumar and PW2 Naresh Chand Sharma nowhere stated that Brij -:26:- Mohan at any point of time slapped the former (PW1).
So far as firing of shot from the pistol is concerned, case of prosecution is that Brij Mohan took the pistol out of the belt lying tied around his waist. According to PW2 Naresh Chand Sharma, the pistol was not in the belt and rather it was in the dub (fold). Had any pistol been used, PW1 Shashi Kumar and PW5 Ashwani Kumar would not have stated that it was taken out of a belt, and PW2 Naresh Chand Sharma would not have stated that pistol was lying in the fold.
Case of prosecution is that during scuffle, PW1 Shashi Kumar made Brij Mohan to fall down as a result whereof pistol fell at a distance. However, PW2 Naresh Chand Sharma stated that neither Brij Mohan nor Shashi Kumar fell down during the scuffle. Thus, statement of PW2 Naresh Chand Sharma is not in consonance with the version put forth by the prosecution.
As per version put forth by PW1 Shashi Kumar and PW5 Ashwani Kumar, after the pistol fell from the hands of Brij Mohan, PW5 Ashwani placed his foot over the pistol. According to PW2 Naresh Chand Sharma, police reached the spot at about 03:40 p.m.; that both the parties remained at the -:27:- spot from 3 p.m. to 03:40 p.m. PW2 Naresh Chand Sharma explained that Ashwani Kumar placed his foot over the pistol for about 10/15 minutes. PW2 Naresh Chand wants the court to believe that pistol remained lying under the foot of PW5 Ashwani Kumar for about 10/15 minutes. In case of firing of the shot by a person during the occurrence, the opposite party would take all precaution that pistol is again not taken over by the first party so as to avoid its use once again. So the version narrated by PW2 in this regard is unbelievable.
It is significant to note that PW2 Naresh Chand Sharma admitted in his cross examination to have not stated before the police that Ashwani Kumar kept his foot over the pistol. Thus PW2 has improved upon his previous statement in this regard, further creating doubt regarding his presence on the given date, time and place.
Had PW2 witnessed any such occurrence, first of all he would have come to the ground floor, intervened and tried to save the complainant and his brother, as according to him at the time of occurrence he was present on the roof of his house. There is nothing in his statement that he came down or tried to intervene or save the complainant or his -:28:- brother. He could come down on arrival of the police at the spot, but there is nothing to suggest that he came down and contacted the police. In his cross examination, PW2 could not tell as to when his statement was recorded by the police. Thus conduct of PW2 further creates doubt if he actually witnessed any such occurrence on the given date, time and place.
Version of occurrence as narrated by PW6 Shiv Charan Sharma :
PW6 Shiv Charan Sharma was running a betel Shop outside temple in the area of Tri Nagar. According to him, on 11/06/99 at about 3.00 p.m., he saw Brij Mohan hurling abuses and threatening a rickshaw puller, while accused Naveen was pushing the rickshaw puller. Further, according to him, Brij Mohan slapped the rickshaw puller, whereupon passersby objected to. PW Ashwani Kumar also came there and asked as to why Brij Mohan was beating the rickshaw puller. Thereupon, accused Naveen slapped Ashwani. Ashwani then went to call his brother. This is what PW6 has deposed about first limb of the occurrence, but this version is not in consonance with the version put forth by the -:29:- prosecution on a material aspect i.e. regarding presence of Naveen accused at that time.
Case of prosecution is that only Brij Mohan accused was present there, while hurling abuses at rickshaw puller. Even PW Ashwani Kumar did not state about presence of Naveen accused at the time the rickshaw puller was being given beatings. PW Ashwani Kumar nowhere stated that he was slapped by Naveen accused. The contradictory version put forth by PW6 while attributing role to Naveen at that time, creates doubt in his version regarding his presence on the given date, time and place.
So far as second limb of the occurrence is concerned, according to PW6, on arrival at the spot in the company of his brother Ashwani, Shashi enquired from Brij Mohan as to why had slapped him, whereupon Brij Mohan took a pistol out of the fold (dub) of his pant and threatened Ashwani that he would shoot him. Shashi then grappled with Brij Mohan, lifted his hand towards the sky and the shot went in the air. Thereafter, Shashi made Brij Mohan to fall on the ground and in that process pistol fell apart near a gutter and Ashwani put his leg on the pistol. Police reached there and -:30:- seized the pistol.
As noticed above, case of prosecution is that Brij Mohan accused had his pistol in the belt tied around his waist, but PW6 has deposed that Brij Mohan took the pistol out of fold (dub) of the pant. So, according to PW6, Brij Mohan did not remove the pistol from the belt and rather it was taken out of the fold (dub) for the pant, which is in contradiction with the prosecution version, and creates doubt regarding the version put forth by the witness about his presence on the given date, time and place.
As per prosecution version, Brij Mohan is alleged to have aimed pistol at both the brothers. PW6 has come forward with the version that Brij Mohan aimed pistol at Ashwani alone and threatened to shoot him. Therefore, in this regard, PW6 has made statement in contradiction with the version narrated by other PWs.
It is in the statement of PW6 that Brij Mohan, his brother Naveen and their maid came out of their house after arrival of the police. At that time, these three persons were having blood stains on their arms.
Present case was registered on the statement -:31:- Ex.PW1/A of Shashi Kumar recorded on 11/06/99. In Ex. PW1/A, Shashi Kumar nowhere stated that Brij Mohan, his brother Naveen and their maid were seen entering their house and coming out of the house after sometime with injuries/blood stains on their person. Even while appearing in court as PW1, Shashi Kumar did not state so.
PW2 Naresh Chand Sharma, the alleged eye- witness also did not state that Brij Mohan and Naveen suffered any injury during the occurrence. He simply stated in his chief examination that during scuffle accused had entered their house and when they came out, he saw injury only on the person of their maid servant. There is nothing in his statement to suggest that maid servant had come out of the house during the occurrence or that she suffered any injury at the hands of any member of the complainant party. PW2 has also not stated that Brij Mohan and Naveen suffered any injury at the hands of the two brothers, namely, Shashi and Ashwani.
PW5 Ashwani Kumar also did not state that Brij Mohan and his brother Naveen suffered any injury during the occurrence or that both of them entered their house or came -:32:- out of the house after sometime. The version narrated by PW5 is that police reached the place of occurrence after sometime and took away him and his brother Shashi and Brij Mohan and Naveen from the spot. He did not state about presence of maid of the accused or that she suffered any injury during the scuffle/occurrence.
It may be mentioned here that according to ASI Puran Prasad and other police officials, after the arrival of SHO, ACP and In-charge of Police Post Shanti Nagar, Brij Mohan and Naveen accused entered their house, but when they came out of the house 5/6 minutes thereafter both of them were accompanied by their maid Shalu. Further, according to the ASI, Brij Mohan, Naveen and Shalu requested him for their medico legal examination as they were having injuries. It is also in his statement that persons from the public who gathered at the spot were saying that accused persons had self inflicted injuries on their person with a view to strengthen their case.
PW 7 Constable Janak Raj, PW8 SI Dinesh Chand, PW10 Inspector Pradeep Kumar, PW11 HC Vijay Kumar and PW12 Constable Lal Chand, who are stated to -:33:- have reached the spot in the company of ASI Puran Prasad, nowhere stated that Brij Mohan and his brother Naveen entered their house or that they came out of the house after sometime with injuries or blood stains on their person.
As noticed above, PW Shashi Kumar and Ashwani Kumar nowhere deposed that Brij Mohan and Naveen accused entered their house and came out accompanied by their maid servant Shalu or that they represented that they be got medico legally examined as they were having injuries on their person or that anyone from the public said that Brij Mohan and Naveen had self suffered injuries.
ASI Puran Prasad did not record statement of any persons from the public in this regard, as admitted by him in his cross examination. In absence of statement of anyone from the public, it is difficult to believe this version put forth by PW6 that Brij Mohan, his brother or their maid servant suffered any injury during the scuffle/occurrence or that Brij Mohan and Naveen accused entered the house or came out of the house accompanied by their maid servant with blood stains on their person.-:34:-
First version as available in DD No.20 dt.11.6.99:
As to time of first incident After the occurrence, DD No. 20 is stated to have been recorded at police post Shanti Nagar. Copy of DD No. 20 is available on record. Therein ASI Puran Prasad got recorded the facts and circumstances leading to recording of this DD entry. It is to the effect that Brij Mohan and his brother Naveen were talking about a dispute with a rickshaw-puller in the morning.
As per version narrated by PW5 Ashwani Kumar, occurrence took place at about 3 p.m. In the given circumstances, it was for the prosecution to explain as to whether incident of slapping of Ashwani Kumar took place at about 3 p.m. as stated by the material witnesses or in the morning as recorded in DD No.20.
Case of prosecution is that ASI Puran Prasad arrested PWs Shashi Kumar, Ashwani Kumar, and Brij Mohan and Naveen Kumar on the other hand, on 11/06/99 and proceeded against him against them under Section 107/151 Cr.PC and ultimately kalandara was presented before Special Executive Magistrate, Ashok Vihar. Copy of -:35:- DD No. 20 was annexed to the kalandara. DD No. 20 was got recorded by ASI Puran Prasad at Police Post Shanti Nagar at 08:30 p.m on return to the police post. There is no explanation as to under what circumstances the ASI accompanied by others reached the police post at 8.30 p.m. after having reached the spot at about 3.20 p.m and having left the spot soon after their arrest DD No.20 being the first document containing version of prosecution gains significance. As per contents of DD No. 20, ASI Puran Prasad reached old bus stand, House No. 2788, Tri Nagar, Delhi for investigation in respect of DD No. 13 recorded at PP Shanti Nagar at 3.20 p.m.. This DD No. 13 was recorded after receipt of information that there was incident of firing.
ASI Puran Prasad has appeared in court as PW9 and narrated as to what did he observe on reaching the disclosed place. According to PW9 ASI Puran Prasad on reaching there, he found two parties quarreling with each other. In one of the parties, there were Brij Mohan and Naveen whereas in the other party there were Ashwani and Shashi Kumar. Further according to the witness both the -:36:- parties were grappling with each other; that he found pistol lying by the side of wall of the shop; that he picked up the pistol and kept it with him, he tried to make both the parties understand that they should not quarrel.
From the above statement of PW9 ASI Puran Prasad, it would transpire that he nowhere deposed about use of pistol by Brij Mohan in his presence.
It has appeared in the statement of PW9 ASI Puran Prasad that some of the staff of the police station were already found present at the old bus stand Tri Nagar at the time he reached there. A perusal of DD No.20 reveals names of the police staff already found present there as Constable Janak Raj, Constable Vijay Kumar and Constable Lal Chand. HC Karan Singh was also allegedly present there.
Prosecution has not examined Head Constable Karan Singh and Constable Lal Chand who were also allegedly present at the spot when ASI Puran Prasad reached there. Only Constable Janak Raj and Constable Vijay have been examined. Let's see as to what they stated about their arrival at the spot and as to what did they witness on reaching the spot.
-:37:-Version narrated by PW7 Ct. Janak Raj Constable Janak Raj has appeared in court as PW7. According to him, on 11/06/1999, on receipt of this message regarding some quarrel near 2788, bus stand, he accompanied by constable Lal Chand, Constable Vijay Kumar and ASI Puran Prasad reached premises No. 2788. In this way, Constable Janak Raj has made statement in contradiction with the statement of ASI Puran Parshad as he wants the court to believe that all of them had come to the aforesaid place together, but the ASI has deposed to have come there alone and not in the company of the constables.
In his cross examination, PW7 constable Janak Raj stated to have left the police station vide DD No.13. According to the constable, information regarding quarrel was received when they were in the market. On the other hand, as noticed above, ASI Puran Prasad did not state that he was patrolling in the area at the time he received information/call of some quarrel. According to the ASI he left the police station, on receipt of call of quarrel.
This goes to show that statement of PW7, to have accompanied ASI Puran Prasad, is not in consonance with -:38:- the version narrated by the ASI.
According to Constable Janak Raj, on reaching , they found 20/25 persons present there and further that there was quarrel between two parties. According to him, pistol was lying near House No. 2788 and that the same was taken into possession by ASI Puran Prasad, then turned into a parcel alongwith its magazine and four cartridges. The witness also deposed about sealing of the parcel with the seal bearing impression PK and preparation of memo EX.PW7/A. The witness identified the pistol Ex.P1 and cartridges P2 to P5, produced in court.
The constable did not specify as to the role played by each of the accused or the complainant party. PW7 nowhere stated that Brij Mohan had taken out any pistol or opened fire from it or that the shot went in air because of the intervention of the complainant party or that the pistol fell down in his presence.
Then there is statement of PW11 Head Constable Vijay Kumar. According to ASI Puran Prasad, he was one of the police officials found present at the spot at the time he reached there. But PW11 also did not depose about use of -:39:- pistol by Brij Mohan in firing shot or that the shot went in air because of the intervention of the complainant party or that the pistol fell down. According to PW11, many persons from the public who had gathered there told them that a quarrel had taken place and that they had heard about sound of firing. Further according to the witness, a pistol was found lying near a wall.
In this regard, PW11 put forth explanation that senior police officers who reached there directed them to disperse the crowd and that since he started obeying the directions he could not know as to under what circumstances the pistol was found lying there. It was suggested to PW11 in his cross examination that he had stated before the Investigating Officer about falling down of pistol during scuffle. Although the witness denied to have so stated before the Investigating Officer, it stands so recorded in his statement, and there is no explanation as to how it came to be recorded therein when he had not seen pistol falling down during scuffle. The fact makes presence of PW11 on the given date time and place highly doubtful.
-:40:-Version regarding seizure of pistol and cartridges from the spot becomes doubtful Learned defence counsel has contended that pistol of Brij Mohan was not seized by ASI Puran Prasad from the spot in the manner narrated by the PWs and that rather it was taken away by one of the member of the complainant party and police has manipulated/forged record to show recovery of pistol from the spot so as to prove that it was used by Brij Mohan on the given date, time and place.
It is case of the prosecution that ASI Puran Prasad and other police officers reached the spot at about 03:30 p.m. DD No. 20 came to be recorded at Police Post Shanti Nagar at 08:50 p.m. A perusal of DD No. 20 as depicted in Ex.DW1/E would reveal that the following sentences have been inserted therein lateron:
"It is also to report that pistol No. 619461 and four live cartridges have also been recovered from accused Brij Mohan and that some were seized vide a recovery memo after turned them into a parcel seized with seal bearing impression 'PK'."
Case of the prosecution is that both the parties -:41:- were proceeded against under Section 107/151 Cr.PC on presentation of kalandara based on what was recorded in DD No.20. Both the parties were produced before Special Executive Magistrate. According to ASI Puran Prasad, copy of DD No.20 was annexed to that kalandara. The factum of seizure of pistol and four live cartridges from the spot was not mentioned in the kalandara dated 11/06/1999. ASI Puran Prasad has admitted that addition was made in DD No. 20. But no such addition was made in the copy of DD No. 20 attached to the kalandara. Had any pistol and four live cartridges been seized by ASI Puran Prasad, this fact must have been found mention in DD No.20 its copy attached to the kalandara and in the kalandara as well. However, as noticed above, this fact was inserted later on in the original DD entry No.20. ASI Puran Prasad could not tell as to who had made this addition in DD No.20. The ASI further admitted to have not informed SI Dinesh Chander, Incharge of the Police Post about this addition in DD entry. Prosecution has failed to place on record copy of DD entry ( generally called Mussanna) prepared in carbon process alongwith the original. Same is stated to have been misplaced during the period -:42:- record was shifted from one place to the other. Had the Mussanna been produced, it could be gathered if any such addition was made in the DD entry soon after its recording or much lateron. From all this, it appears that factum of seizure of the pistol and four live cartridges was inserted in the original DD entry subsequently and the same adversely affects the case of prosecution.
Preparation of rough site plan regarding seizure of pistol and cartridges :
In case of recovery of an incriminating material, generally a rough site plan is prepared. In this case, prosecution has relied on rough site plan Ex. PW14/C depicting the place of occurrence with point "A" as the place from where the police seized the pistol. This site plan was prepared on 31/12/99. Occurrence is alleged to have taken place on 11/06/99. There is no explanation as to why no rough site plan was prepared on 11/06/99 itself when the police officials/officers happened to reach the spot and remained there for sufficient time. Delay in preparation of rough site plan further adversely affects the case of prosecution regarding seizure of the pistol and cartridges from -:43:- the spot.
It is also significant to note that position of the parties is generally depicted in rough site plan in support of ocular account narrated by the witnesses before the Investigating Officer. However, rough site plan Ex. PW14/C does not depict position of either of the party so as to lend support to the version of prosecution.
Withholding of original recovery memo regarding seizure of pistol and cartridges- admissibility of secondary evidence :
As noticed above, case of prosecution is that pistol and the cartridges were turned into parcels, then sealed and seized vide a recovery memo prepared by ASI Puran Prasad and attested by Inspector Pradeep Kumar, ASI Dinesh Chand, Constables Janak Raj, Vijay Kumar and Lal Chand. It was for the prosecution to place on record the original seizure memo. However, in this case, prosecution has placed on record only a carbon copy of seizure memo Ex. PW1/PD1 also exhibited as Ex. PW7/A. There is no explanation as to where is the original seizure memo. ASI Puran Prasad, who is -:44:- stated to have seized this incriminating material, admitted in his cross examination that recovery memo remained with him and that at the time he handed over the case file, he had obtained its receipt from the police official against deposit of seizure memo. However, the witness could not produce any such receipt regarding delivery of seizure memo to any such police official. The fact remains that prosecution has not placed on record original seizure memo. Before leading secondary evidence, it was for the prosecution to establish loss of original seizure memo. When prosecution has not been able to lead secondary evidence regarding loss of the original, prosecution cannot be permitted to place reliance on its carbon copy, as rightly contended on behalf of the accused.
Who had prepared the seizure memo ?
It is in the statement of ASI Puran Prasad that seizure memo was prepared by SI Dinesh at his dictation. SI Dinesh has appeared in court as PW8. It is in his statement that ASI Puran Prasad recovered a pistol from outside H.No. 788, and on unloading the magazine, recovered four live -:45:- rounds from it, sealed them and then seized the parcels vide memo Ex. PW1/PD1-Ex. PW7/A. In his cross examination, the witness admitted that it does not stand recorded in his statement U/s. 161 CrPC that pistol was recovered from along side H.No. 2788. SI Dinesh further admitted in his cross examination to have not stated anywhere that he had prepared the seizure memo of the pistol at the dictation of ASI Puran Prasad. So, SI Dinesh Chand has not supported statement of ASI Puran Prasad to the effect that the original seizure memo was prepared by him.
Had any such seizure memo been prepared on the given date, time and place i.e. on 11/06/99 at about 3.20 p.m., it must have been bearing signatures of all the five attesting witnesses. It has been rightly pointed out by learned defence counsel that copy of the seizure memo Ex. PW1/PD1-Ex. PW7/A bears signatures only of two, out of the five attesting witnesses, and it remains unexplained as to why this memo is not bearing signatures of remaining three witnesses, namely, Constables Janak Raj, Vijay Kumar and Lal Chand. This fact further creates doubt in the version of prosecution regarding preparation of seizure memo at the -:46:- spot and seizure of pistol and the cartridges on the given date, time and place.
Arrival of SI Dinesh Chand on the given date, time and place is found doubtful.
Case of prosecution is that SI Dinesh Chand reached the spot and attested seizure memo regarding seizure of pistol and the cartridges. While appearing as PW8, SI Dinesh Chand deposed that on receipt of PCR call on wireless set, he reached the spot at about 3.45 p.m. and that pistol and magazine containing four live rounds were seized in his presence vide memo Ex. PW7/A. It has been contended by learned defence counsel that from the statement of DW1 HC Dharambir, it stands established on record that SI Dinesh Chand did not reach the spot on the given date and time, and as such the prosecution version regarding his arrival and preparation or attestation of seizure memo at the spot, becomes doubtful.
According to DW1 HC Dharambir, on 11/06/99, SI Dinesh Chand left the PP Shanti Nagar at 9.00 a.m. for Tis Hazari Courts vide entry available in Ex. DW1/A and returned -:47:- from court at 4.40 p.m. vide entry No. 15 in Ex. DW1/B. Thereafter, SI Dinesh Chand left the Police Post at 9.02 p.m. in connection with patrolling vide entry No. 22 recorded in Ex. DW1/C and arrived at the police post at 11.45 p.m. vide entry No. 24 recorded in Ex. DW1/D. It stands recorded in entry No. 15 available in Ex. DW1/B that SI Dinesh Chand returned to the police post after attending court in bail matter. There is no mention in it that the Sub Inspector left for old bus stand, Tri Nagar, on his way back from court to the police post. Therefore, it becomes doubtful if SI Dinesh Chand visited the spot on 11/06/99 or attested seizure memo, copy whereof is Ex. PW7/A. No rough sketch of firearm and ammunition was prepared In suchlike cases, in case of recovery of any incriminating material, rough sketches of the firearms and ammunitions are prepared. However, in this case, ASI Puran Prasad did not prepare any such sketch of the pistol, its magazine or the live rounds. Non-preparation of rough sketches of the firearm and the ammunition further creates about their seizure on the given date, time and place. -:48:- What steps were taken to rule out possibility of tampering with firearm and ammunition ?
According to PW9 ASI Puran Prasad, pistol and the cartridges were turned into two separate parcels which were then sealed with the seal bearing impression "BK" and thereafter seized.
It is in the statement of PW9 ASI Puran Prasad that the pistol and the cartridges were seized by him under directions of the SHO. PW10 Inspector Pradeep Kumar, the concerned SHO, admitted to have reached the spot on 11/06/99 and to have found ASI Puran Prasad, SI Dinesh Chand, some Constables and some Head Constables present there. Further, according to the SHO, ASI Puran Prasad produced before him one pistol, four live cartridges alongwith one magazine telling him that he had found the same at the spot. The witness then deposed about seizure of the pistol, magazine and live rounds vide memo Ex. PW1/PD1-Ex. PW7/A, but the witness nowhere stated that the pistol and the cartridges were seized by the ASI under his directions.
PW8 SI Dinesh Chand did not specify as to how many parcels were sealed. He simply stated that pistol and -:49:- magazine were seized after turning them into parcels. SI Dinesh Chand could not tell as to who was having the seal, used in sealing the parcels. He displayed ignorance as to whom the seal was given after its use.
ASI Puran Prasad nowhere deposed as to whom the seal was given after the parcels were sealed. There is nothing on record to suggest that after use of seal in sealing the parcels, it was handed over by ASI Puran Prasad to anyone else.
PW10 Inspector Pradeep Kumar deposed that seal used in sealing the firearm and the ammunition belong to him and that he had handed it over to the ASI for the purpose of sealing and collected the same from the ASI later on. However, the witness could not tell as to when he had received the seal from the ASI. According to the SHO, no memo was prepared at the time of delivery of the seal to the ASI or at the time he collected it from the ASI. All this again creates doubt in the version of prosecution in the manner in which investigation proceedings were conducted and as a result, it becomes doubtful if any pistol and cartridges were seized or sealed on the given date, time and place. At the -:50:- same time, it can be said that prosecution has failed to rule out possibility of tampering with the case property.
Two sealed parcels are stated to have been delivered at FSL on 21/07/99. Their contents were analysed by PW4 Dr. P. Sidambri, who then opined that pistol had been fired before it was received in the laboratory.
Prosecution has also failed to examine the concerned MHC(M), who dealt with the case property during the period it remained lying deposited in the malkhana. Although, learned counsel for complainant submitted at the time of framing of charge, Court observed that there was entry in the relevant register about deposit of pistol in the malkhana, in the given facts and circumstances, it was duty of the prosecution to examine the concerned MHC(M) to prove relevant entries made in register No.19 and Road certificate regarding dispatch of the case property to FSL for analysis. Concerned MHC(M) has not been examined.
HC Gurdeep Singh, who is stated to have taken the sealed parcels to FSL on 21/07/99 has also not been examined.
Non-examination of the concerned MHC(M) and -:51:- the constable who took the parcels to the FSL further adversely affects the case of prosecution as with his non- examination it has failed to rule out possibility of tampering with the case property before the same reach safe hands at FSL. Therefore, prosecution cannot take any advantage of report Ex. PW4/B submitted by the expert witness that shot had been fired through the pistol before it reached the laboratory.
Non-recovery of any empty cartridge :
It is significant to note that no empty cartridge was recovered from the spot. Case of prosecution is that soon after the shot was fired from the pistol, when Brij Mohan was going to use the pistol in firing the shot, aiming at the two brothers Shashi Kumar and Ashwani Kumar, they intervened and the shot went in air and thereafter the pistol fell down in the scuffle. In the given circumstances, had any shot been fired from the pistol, the empty cartridge must have been recovered from the pistol or from the spot. However, no empty cartridge was recovered. It remains unexplained as to why no such empty cartridge could be recovered. Non- -:52:- recovery of empty cartridge creates a doubt in the version of prosecution witnesses about use of pistol by Brij Mohan accused on the given date, time and place.
Furthermore, there is nothing in the report of the expert witness as to the approximate time that elapsed between firing of shot from this pistol and its analysis in the laboratory. As a result of the above discussion, report Ex. PW4/B given by the expert that shot was found to have been fired through pistol before it reached the laboratory, does not come to the aid of prosecution to connect Brij Mohan accused with commission of crime.
Non-Lifting of any Finger Print from the Pistol As noticed above, case of prosecution is that pistol was used by Brij Mohan in opening fire during the occurrence but the shot went in the air because of intervention by the complainant and his brother. As discussed above, prosecution has failed to establish seizure of pistol and live cartridges from the spot, beyond doubt. Furthermore, in such like circumstances whenever a weapon is alleged to have been used, it is for the police to preserve the weapon so as to establish its unlawful use by the culprits and so as to -:53:- connect the culprit with the crime. In this regard lifting of finger prints is one of the significant modes of investigation to connect the culprit with the crime. However, in this case, admittedly no finger print was picked up/lifted from the pistol alleged to have been recovered from the spot. In absence of any finger print or analysis thereof with the specimen finger print of Brij Mohan, it can safely be said that the said pistol was used by him at the given date, time and place.
In view of the above discussion, this court comes to the conclusion that prosecution has miserably failed to establish firing of shot from the pistol and seizure of the pistol, its magazine and the cartridges from the spot on the given date and time.
Conclusion In view of the above findings, this court comes to the conclusion that prosecution has not been able to bring home guilt to any of the accused for any of the offence for which they have been facing trial. Consequently, while extending the benefit of doubt, both the accused, namely, Brij Mohan and Naveen Kumar are acquitted in this case.
While imparting the judgment, it may be mentioned -:54:- here that during pendency of the case applications under Section 340 Cr.P.C were filed by Brij Mohan complainant for initiating action against the police officials / officers on the ground that DD No.20 dated 11/06/1999 recorded at Police Post Shanti Nagar of Police Station Keshav Puram was fabricated by inserting the factum of seizure and sealing of a pistol and four live cartridges. It has been contended on behalf of applicant Brij Mohan that this factum was falsely introduced in DD entry with a view to seek his conviction and that of his brother for the offences u/s 307 IPC.
Learned Addl. PP has submitted that this is not a case of any forgery of DD No.20 and that sentence regarding seizure and sealing of the pistol and the four cartridges was written therein, keeping in view the fact that the pistol and the cartridges were actually recovered from the accused-applicant and as such the application is liable to be dismissed.
It is true that in his statement made in court as PW9, ASI Puran Prasad has admitted that initially the factum of seizure and sealing of the pistol and four live cartridges was not there in DD No.20 and in this respect addition was made by a police official at his instance.-:55:-
Inspector Pradeep Kumar, then SHO of Police Station Keshav Puram has come and deposed in his statement that he had enquired in this regard from ASI Puran Prasad and found that his conduct was bonafide and as such no further action was taken.
As discussed above, this court has doubted prosecution version regarding recovery of the pistol and the cartridges. Since only benefit of doubt has been extended to the accused persons, I do not deem it expedient, in the interest of justice to initiate any action for insertion of the factum of seizure and sealing of pistol and four live cartridges in, DD No. 20. Therefore, the prayer made by Brij Mohan in these applications under the provisions of Section 340 Cr.PC is declined.
Case property i.e. the pistol belonging to Brij Mohan be returned to him, subject to production of Arms Licence, whereas the remaining case property be destroyed in -:56:- accordance with rules on expiry of period of appeal/revision, if none is preferred or subject to decision thereof.
File be consigned to record room.
Announced in Open Court on dated 28th of August, 2008 ( Narinder Kumar ) Additional Sessions Judge Fast Track Court Rohini : Delhi 28-08-2008