Delhi District Court
State vs . Mohd. Shahid on 31 March, 2022
IN THE COURT OF MS. SHIVLI TALWAR
METROPOLITAN MAGISTRATE - 06, CENTRAL DISTRICT
TIS HAZARI COURTS, DELHI.
FIR No. 60/2017
PS - Civil Lines
U/s - 25/54/59 Arms Act
State Vs. Mohd. Shahid
JUDGMENT
(a) Criminal Case 14762/2018
No.
(b) CNR No. DLCT02-034096-2018
(c) Date of 06.03.2017
commission of
offence
(d) Name of the Ct. Virender
complainant
(e) Name of the Mohd. Shahid s/o Mohd. Saeed r/o House No. 3454,
accused person(s), Gali Thele Wali, Bara Hindu Rao, Delhi his parentage and residence
(f) Offence(s) Section 25/54/59 Arms Act complained of or proved
(g) Plea of the Pleaded not guilty accused
(h) Final Order Acquitted
(i) Date of institution 05.11.2018 of case
(j) Date when Not reserved judgment was reserved
(k) Date of judgment 31.03.2022 SHIVLI Digitally signed by SHIVLI TALWAR TALWAR Date: 2022.03.31 17:39:32 +0530 FIR No. 60/2017 PS Civil Lines State vs. Mohd. Shahid Page No. 1 of 22 Brief reasons for the decision of the case: -
1. The present charge sheet has been filed u/s 25/54/59 Arms Act. The genesis of the prosecution story is that on 06.03.2017 at about 9:30 PM opposite Kela Godown, Main Bulward Road, Ashoka Market, Civil Lines, Delhi, within the jurisdiction of PS Civil Lines, the accused was found in possession of one country made pistol/katta which is in contravention of the notification issued by Delhi Administration.
2. On finding a prima facie case to proceed against the accused, cognizance of the offence was taken by Ld. Predecessor of this Court on 05.11.2018. The provisions of Section 207 Cr.P.C. were duly complied with. Arguments on the point of charge were heard and a formal charge for commission of offence u/s 25/54/59 Arms Act was framed against the accused on 14.02.2020 to which the accused pleaded not guilty and claimed trial.
3. In order to prove its case, the prosecution has examined six witnesses:
PW1 Ct. Narender, PW2 ASI Vinay Pal Singh (MHC(M)), PW3 Ct. Virender (Complainant), PW4 Ct. Sanjay, PW5 ASI Harpal Singh (Duty Officer) and PW6 Inspector Robin Singh (Investigating Officer).
4. The record transpires that during the course of trial, the accused admitted the FSL report and sanction u/s 39 Arms Act and the examination of formal witnesses qua such documents was accordingly dispensed with.
5. The prosecution evidence was closed on 14.12.2021 and the accused Digitally signed by SHIVLI SHIVLI TALWAR TALWAR Date: 2022.03.31 17:39:42 +0530 FIR No. 60/2017 PS Civil Lines State vs. Mohd. Shahid Page No. 2 of 22 was examined u/s 313 Cr.P.C. on 23.12.2021 wherein all incriminating evidence was put to him. The accused submitted that he is innocent and has been falsely implicated in the present case and that the case property was planted upon him. He deposed that he collided with a senior police official near the gate of Bonta park and he was reprimanded by him as he was drunk. Being unaware that the person was a police official, the accused opposed him and in the meantime, two other police officials who were also in civil clothes captured him and took him to PS Civil Lines and beat him mercilessly due to which he sustained multiple injuries and in order to save their skin, they falsely implicated the accused in the present case and planted the katta / country made pistol upon him. The accused opted to lead evidence in his defence and examined one witness: DW1 Dr. Shashi Kant Kumar. The defence evidence was closed on 07.03.2022.
6. At the very outset of deliberations, a brief recapitulation of the testimonies of the witnesses becomes indispensable.
7. PW1 Ct. Narender deposed that on 06.03.2017, he alongwith Ct.
Virender were on patrolling duty on Government motorcycle bearing registration no. DL 1SN 2570. When they reached near Ashoka Market at around 09:30 PM, they found that on seeing them, accused started running. On suspicion, they managed to apprehend him and on his personal search, one desi katta/ country made pistol was found in his possession. Thereafter, Ct. Virender made a call to PS Civil Lines and informed them about the aforesaid incident and told them to send some IO to investigate the case. After some time, IO SI Robin Singh and Ct. Sanjay came to the spot. Thereafter, IO SI Robin Singh asked SHIVLI Digitally signed by SHIVLI TALWAR TALWAR Date: 2022.03.31 17:39:50 +0530 FIR No. 60/2017 PS Civil Lines State vs. Mohd. Shahid Page No. 3 of 22 the details of accused like his name and address from them. Accordingly, they informed him about the accused. Subsequent to that, IO SI Robin Singh prepared sketch of recovered country made pistol Ex. PW1/A in his presence. IO prepared rukka and sent Ct. Sanjay with rukka to register the FIR in the present case. After some time, Ct. Sanjay came back to the spot along with the copy of FIR, original rukka and certificate u/s 65B Indian Evidence Act and same were handed over to IO. IO carried out the investigation and arrested accused vide arrest memo Ex.PW1/B and personal search of accused was also carried out vide personal search memo Ex.PW1/C. IO also recorded the disclosure statement of accused Ex. PW1/D. The MLC of accused was got conducted from Aruna Asaf Ali Government Hospital vide MLC No. 594/17. The country made pistol was seized by IO in his presence vide seizure memo Ex.PW1/E. The aforesaid country made pistol was wrapped with white cloth and pullanda was prepared and the same was sealed with the seal of 'RS'. The said seal was handed over to Ct. Virender after use. The witness deposed that IO SI Robin Singh also recorded his statement u/s 161 Cr.P.C. The witness correctly identified the accused as well as the case property Ex. P-1 (colly) during his testimony before the Court. The Court observed that the country made pistol was rustic in nature.
During his cross-examination by Ld. Defence counsel, the witness deposed that his patrolling duty started at about 8.55 PM on 06.03.2017 from PS Civil Lines. He further deposed that he did not remember the beat no. for patrolling duty but it was in the area of Ashoka Market of PS Civil Lines. He further deposed that before reaching Ashoka market area, they took a round of the beat area as per Digitally signed by SHIVLI SHIVLI TALWAR TALWAR Date: 2022.03.31 17:39:58 +0530 FIR No. 60/2017 PS Civil Lines State vs. Mohd. Shahid Page No. 4 of 22 the orders. He further deposed that Bulward Road and the road starting before Bara Hindu Rao hospital also came under their beat area only. He further deposed that on noticing them, the accused started running on the footpath going towards Tis Hazari and that they apprehended him before Sabzi Mandi Mortuary on the footpath before Kela (Banana) Godown. He further deposed that at that time, they were on motorcycle. He further deposed that he did not remember the size, dimension and bore of the katta in cms. due to lapse of time. He further deposed that Ct. Virender called the IO at about 9:30 PM. He further deposed that he along with IO, Ct. Sanjay, Ct. Virender took accused for medical examination. He further deposed that he did not recall under whose custody the accused was at the time of medical examination. He further deposed that the katta was recovered from the right hand pocket of wearing lower of accused. He further deposed that it was after 12 midnight that accused was brought to PS. He denied the suggestion that he was not on patrolling duty or that no incriminating object i.e. katta was recovered from the possession of accused. He also denied the suggestion that he along with his team beat the accused on account of consumption of alcohol.
8. PW2 ASI Vinay Pal was the MHC (M) at the relevant point of time.
He proved entry at serial No. 71, mud No. 2255 at page No. 49 of the register No. 19, Malkhana Ex. PW2/A (OSR).
During his cross-examination by Ld. Defence Counsel, the witness deposed that he got transferred in the year 2017 but he did not remember the exact date. He admitted that he never issued any Road Certificate regarding the case property. He also admitted that the case Digitally signed by SHIVLI SHIVLI TALWAR TALWAR Date: 2022.03.31 17:40:04 +0530 FIR No. 60/2017 PS Civil Lines State vs. Mohd. Shahid Page No. 5 of 22 property was not sent to FSL during his tenure.
9. PW3 Ct. Virender is the complainant. He deposed on similar lines as PW1 Ct. Narender. He proved his statement Ex. PW 3/A. The witness correctly identified the accused during his testimony before the Court.
During his cross-examination by Ld. Defence Counsel, the witness deposed that IO recorded his statement only once at PS. He deposed that he did not remember the time when his statement was recorded by IO and as per his memory, accused was put under custody at about 1:00 AM. He admitted that the statement Ex. PW 3/A was recorded by IO at PS and he put his signatures there only. He deposed that he did not remember how many papers were signed by him on that day. He further deposed that he could not tell the number of beat, however it was Ashoka Market area. He deposed that he did the patrolling of his beat area. He further deposed that very few public persons were present at the time when accused was apprehended by them and that public persons came after the accused was apprehended by him. He further deposed that he did not remember the dimensions or any specific mark on the recovered katta. He denied the suggestion that nothing incriminating was recovered from possession of accused and that the katta was planted by him on the possession of accused or that the documents were prepared in the PS. He also denied the suggestion that the accused was not arrested in the manner as alleged by him. He also denied the suggestion that the police officers mercilessly beat the accused as he was found in drunken condition. He also denied the suggestion that because of the beatings, accused received serious injuries on his body. Digitally signed SHIVLI by SHIVLI TALWAR TALWAR Date: 2022.03.31 17:40:11 +0530 FIR No. 60/2017 PS Civil Lines State vs. Mohd. Shahid Page No. 6 of 22
10. PW4 Ct. Sanjay deposed on similar lines as PW1 Ct. Narender and PW3 Ct. Virender. The witness correctly identified the accused during his testimony before the Court.
During his cross-examination by Ld. Defence Counsel, the witness deposed that on that day, his duty was from 8PM and 8AM. He deposed that he did not remember the time when the said information was received however it was night time. He further deposed that he did not remember the time when they reached at the spot and that as per his memory, they remained at the spot for about 2 to 3 hours. He deposed that he signed all these documents at PS but he could not tell the time of their signing. He further deposed that the medical of accused was got conducted around 1:45 AM as per the time mentioned in MLC. He admitted that neither the accused was apprehended in his presence nor the said katta was recovered from him in his presence. He denied the suggestion that all the proceedings were conducted while sitting in PS and that no rukka was taken by him to the PS. He also denied the suggestion that nothing incriminating was recovered from possession of accused. He also denied the suggestion that the katta was planted by him on the possession of accused or that the documents were prepared in the PS. He also denied the suggestion that the accused was not arrested in the manner as alleged by him. He also denied the suggestion that the police officers mercilessly beat the accused as he was found in drunken condition. He also denied the suggestion that because of the beatings, accused received serious injuries on his body.
11. PW5 ASI Harpal Singh was the Duty Officer at the relevant time. He Digitally signed by SHIVLI SHIVLI TALWAR TALWAR Date: 2022.03.31 17:40:19 +0530 FIR No. 60/2017 PS Civil Lines State vs. Mohd. Shahid Page No. 7 of 22 deposed that on 06.03.2017, his working hours were from 04:00PM to 12:00 midnight. On that day, he was posted as DO and at about 08:52PM, information regarding departure of Ct. Virender alongwith Ct. Narender on government motorcycle DL1 SN2570, for patrolling was recorded vide DD No. 24A dated 06.03.2017. He deposed that he had not brought DD register No. A-2 for the period 23.02.2017 to 25.03.2017 containing the original DD and true certified copy of the same is Ex.PW5/A(OSR). He further deposed that on that day at about 09:40PM, a telephonic information regarding apprehension of one person with country made pistol was received from Ct. Virender. Same was recorded vide DD No. 26A dated 06.03.2017. The said DD was assigned to SI Robin for further action who alongwith Ct. Sanjay went to the spot. He deposed that he had not brought DD register No. A-2 for the period 23.02.2017 to 25.03.2017 containing the original DD and true certified copy of the same is Ex.PW5/B(OSR). He further deposed that on that day at about 11:40PM, Ct. Sanjay brought the Rukka sent by SI Robin Singh for registration of FIR. The witness deposed that he got the FIR No. 60/2017 registered on the basis of Rukka. He further deposed that he took the print out of the FIR in 2 pages and handed over the same to Ct. Sanjay for handing over the same to SI Robin for further investigation, who went to the spot alongwith the FIR. He proved his endorsement on the Rukka Ex.PW5/C and FIR Ex.PW5/D. He further deposed that he also issued certificate U/s 65-B of Indian Evidence Act Ex.PW5/E. During his cross-examination by Ld. Defence Counsel, the witness deposed that on 06.03.2017, his duty was to maintain both Rojnamchas A&B. He admitted that staff's arrival and departure SHIVLI Digitally signed by SHIVLI TALWAR FIR No. 60/2017 PS Civil Lines TALWAR State vs. Mohd. Shahid Date: 2022.03.31 17:40:27 +0530 Page No. 8 of 22 (Ravangi &Vapsi) are generally mentioned in Rojnamcha B. He also admitted that the contents of DD No. 24A are of such nature that the entry should be in Rojnamcha B. He further deposed that entries of register No. B regarding arrival and departure are made in register no. A when register no. B is busy with recording other entries at that time. He further deposed that he could not tell as to whether Rojnamcha B was busy in recording which entry on that day at alleged point of time. The witness admitted that DD entries 24A and 26A were in different writing. He denied the suggestion that entry no. 24A was ante timed and adjusted in the register as font size of DD entry 24A was comparatively in small words having less word space. He also denied the suggestion that all the entries were ante timed and that he had not received any Rukka from Ct. Sanjay and that all the proceedings were conducted by the IO while sitting in the PS.
12. PW6 Inspector Robin Singh is the Investigating Officer. He deposed on similar lines as other prosecution witnesses. He deposed that on 06.03.2017, he was on emergency duty from 08:00PM to 08:00AM. He further deposed that he filled the FSL form and prepared the Rukka Ex.PW6/A and prepared the site plan Ex.PW6/B at instance of Ct. Virender. The witness correctly identified the accused during his testimony before the Court. He further deposed that on the next day, they searched for the source of country made pistol at the instance of accused as disclosed by him however, the source could not be found. Thereafter, the accused was presented before the concerned court and was sent to the J/C. He deposed that after few days. he sent the seized country made pistol to FSL for examination. He further deposed that he recorded the statement of MHCM(CP) and Ct. Yogesh through SHIVLI Digitally signed by SHIVLI TALWAR TALWAR Date: 2022.03.31 17:40:35 +0530 FIR No. 60/2017 PS Civil Lines State vs. Mohd. Shahid Page No. 9 of 22 whom the Pullanda was sent to FSL and that after few days, he collected the report of the FSL and presented the same alongwith the entire case file to the concerned DCP for obtaining necessary sanction. After getting the sanction, he prepared the charge-sheet and filed the same before the Court.
During his cross-examination by Ld. Defence Counsel, the witness deposed that he received the DD entry at about 09:45PM. He deposed that the investigation was assigned to him by the order of SHO however, he could not show any order in this regard. He further deposed that he did not apply before court for any PC remand of the accused. He further deposed that he got the MLC of accused conducted and that he had not relied on the MLC of the accused and had not filed the same with the charge-sheet. He further deposed that he could not assign any reason for not relying on the MLC of the accused. He admitted that neither the accused was apprehended nor the recovery was affected in the presence of Ct. Sanjay. He also admitted that the spot was a crowded and busy place and that the place of incident was near to mortuary and petrol pump. He deposed that he did not ask any person from the mortuary and the petrol pump employees to join the investigation. He further deposed that on the day of incident, he remained on the spot till around 1:30AM. He further deposed that first, he went to the hospital from the spot. He further deposed that the accused was lodged in the lock-up at 04:00- 05:00AM. He denied the suggestion that no incident took place in the alleged manner and that nothing incriminating was recovered from the possession of accused and that the alleged katta was planted upon the accused. He also denied the suggestion that the police officers SHIVLI Digitally signed by SHIVLI TALWAR TALWAR Date: 2022.03.31 17:40:43 +0530 FIR No. 60/2017 PS Civil Lines State vs. Mohd. Shahid Page No. 10 of 22 seriously beat the accused and he received serious injuries and to save their skin, they planted the katta upon the accused. He also denied the suggestion that because of this reason, he did not rely upon the MLC of accused and did not file the same with the charge-sheet to conceal his injuries. He also denied the suggestion that he did not visit the place of incident and whole writing work was conducted while sitting in the PS. He also denied the suggestion that he tampered the parcel.
13. In his defence, the accused examined one witness: DW1 Dr. Shashi Kant Kumar. The witness deposed that on 07.03.2017, he was posted as Casualty Medical Officer at Aruna Asif Ali Government Hospital and he made MLC no. 594/2017 Ex. DW1/A of accused Mohd. Shahid. He deposed that he found that injuries mentioned in the local examination at serial no. 1 to 9 were simple in nature and caused by blunt weapon. He further deposed that the injuries were both fresh and old.
During his cross-examination by Ld. APP for the State, the witness admitted that the patient had consumed alcohol before he was brought for MLC. He deposed that except injury at serial no. 6,7 and 9, others were fresh in nature and that the fresh injuries were caused within 24 hours. He deposed that he could not tell the time at which those injuries were inflicted upon the accused. He admitted that as per MLC, the injured was not having any complaint of pain. He also admitted that blunt injuries may be caused by falling of any person, however, he deposed that injury no.2 could be caused by stick. He admitted that accused himself told that he was beaten by the public.
Digitally signed14. This is the entire evidence on case record. by SHIVLI TALWAR SHIVLI Date:
TALWAR 2022.03.31
17:40:50
+0530
FIR No. 60/2017 PS Civil Lines State vs. Mohd. Shahid Page No. 11 of 22
15. I have given a considered thought to the rival submissions made by Ld. APP for the State and Ld. Counsel for accused keeping in view the material available on the judicial file.
16. Ld. APP for the State has contended that prosecution has established the guilt of accused beyond all reasonable doubts and, therefore, the accused deserves to be convicted for the offences in question.
17. Per contra, Ld. Counsel for accused has argued that the accused has been falsely implicated in the present case and the case property has been planted upon him due to his scuffle with the police official. It has been further argued that no independent public witness was asked to join the investigation despite availability and the only witnesses examined by the prosecution are the police officials whose testimonies are not reliable without corroboration by public witnesses. Thus, it has been argued that the prosecution has not been able to prove its case beyond reasonable doubts and the accused is entitled to acquittal.
18. In the aforementioned backdrop, the Court shall now proceed to deliberate upon the evidence appearing on record so as to evaluate if the prosecution has proved its case on the requisite yardsticks or not.
19. Before proceeding with the appreciation of evidence, the cardinal principle of criminal jurisprudence is to be borne in mind, that prosecution has to prove its case beyond all reasonable doubts by leading reliable, cogent and convincing evidence. In order to successfully bring home the guilt of the accused, prosecution is supposed to stand on its own legs and it cannot derive any benefits whatsoever from the weakness, if any, in the defence of accused. It is SHIVLI Digitally signed by SHIVLI TALWAR TALWAR Date: 2022.03.31 17:40:58 +0530 FIR No. 60/2017 PS Civil Lines State vs. Mohd. Shahid Page No. 12 of 22 for the prosecution to travel the entire distance from may have to must have and accused is entitled to benefit of reasonable doubts in the prosecution story and any such doubts in the prosecution case entitles the accused to acquittal.
20. It has been argued by Ld. Counsel for accused that no public witness was joined by the IO during investigation of the present case and at the time of alleged recovery of the case property, despite their availability. Reference is made to the testimony of PW6 Inspector Robin Singh, who during his cross-examination by Ld. Defence Counsel, admitted that the spot was a crowded and busy place and that the place of incident was near to the mortuary and petrol pump. He deposed that he did not ask any person from the mortuary or the petrol pump employees to join the investigation.
Ld. Defence Counsel submits that the prosecution has only examined police officials whose testimonies are not reliable without corroboration by public witnesses. Ld. Defence Counsel has further argued that recovery of case property has been planted upon the accused.
No doubt, it is settled law that the testimony of police witnesses can be relied upon if it inspires confidence of the court but in this case, no plausible explanation has been put forth by the prosecution for failure to join public witnesses during the investigation and specifically at the time of alleged recovery of case property, despite their availability in compliance of Section 100 (4) Cr.P.C. The same brings the seizure under a cloud of doubt.
Digitally signed by SHIVLI SHIVLI TALWAR
TALWAR Date:
2022.03.31
17:41:05 +0530
FIR No. 60/2017 PS Civil Lines State vs. Mohd. Shahid Page No. 13 of 22
Reference is made to the judgment of Hon'ble Punjab and Haryana High Court in the case of Roop Chand Vs. State of Haryana 1999 (1) CLR 69 wherein it was observed that, "It is well settled principle of the law that the Investigating Agency should join independent witnesses at the time of recovery of contraband articles, if they are available and their failure to do so in such a situation casts a shadow of doubt on the prosecution case. In the present case also admittedly the independent witnesses were available at the time of recovery but they refused to associate themselves in the investigation. This explanation does not inspire confidence because the police officials who are the only witnesses examined in the case have not given the names and addresses of the persons contacted to join. It is a very common excuse that the witnesses from the public refused to join the investigation. A police officer conducting investigation of a crime is entitled to ask anybody to join the investigation and on refusal by a person from the public the Investigating Officer can take action against such a person under the law. Had it been a fact that he witnesses from the public had refused to to join the investigation, the Investigating Officer must have proceeded against them under the relevant provisions of law. The failure to do so by the police officer is suggestive of the fact that the explanation for non-joining the witnesses from the public is an after thought and is not worthy of credence. All these facts taken together make the prosecution case highly doubtful''.
Reference is also made to the judgment in the case titled as Anoop Joshi V/s State, 1992 (2) C.C. Cases 314 (HC) wherein the Hon'ble Digitally signed by SHIVLI SHIVLI TALWAR TALWAR Date: 2022.03.31 17:41:13 +0530 FIR No. 60/2017 PS Civil Lines State vs. Mohd. Shahid Page No. 14 of 22 High Court of Delhi observed that, "It is repeatedly laid down by this Court that in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evident that no such sincere efforts have been made, particularly when we find that shops were open and one or two shop-keepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the shopkeeeprs had declined to join the raiding party, the police could have later on taken legal action against such shopkeepers because they could not have escaped the rigours of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC".
Admittedly, the spot was a crowded and busy place and there was a mortuary and petrol pump in the vicinity. However, for reasons unexplained by the IO, no efforts were made by him to join any person from the mortuary or petrol pump in the investigation of the present case, specially during recovery of case property. This Court is of the considered opinion that in order to lend credibility to the prosecution case and to ensure transparency and fairness during search and seizure, some independent person should have been associated by the IO during investigation. However, no sincere efforts were made by the IO to persuade any public witness to join the investigation and admittedly, no written notice was also served upon any of the public persons. It has also not been mentioned as to what action was taken against those persons who refused to join the investigation.
Digitally signed by SHIVLI SHIVLI TALWAR
TALWAR Date: 2022.03.31
17:41:21 +0530
FIR No. 60/2017 PS Civil Lines State vs. Mohd. Shahid Page No. 15 of 22
21. It has been further argued by Ld. Defence Counsel that DD No. 24A vide which Ct. Virender and Ct. Narender left for patrolling duty on government motorcycle bearing registration No. DL 1 SN 2570 for patrolling on 06.03.2017 was anti time as DD No. 24A and 26A were in different handwriting and DD No. 24A was adjusted in the register as font size of DD No. 24A was comparatively in small words having less word space.
22. It has been further argued by Ld. Defence Counsel that case property has been tampered with as no seal handing over memo was prepared by the IO. Perusal of testimony of prosecution witnesses reflects that pursuant to seizure of case property, IO sealed the case property with the seal of 'RS' and seal after use was handed over to PW3 Ct. Virender. Thereafter, after completion of necessary formalities, the case property was deposited in the Malkhana.
It is pertinent to note that the seal after use was not handed over to any independent person. It was handed over by the IO to PW3 Ct. Virender only. This Court is of the considered opinion that PW3 himself being the complainant and a material recovery witness in the present case would always be interested in the success of the case of the prosecution and thus chances of tampering of case property cannot be ruled out.
Reference is made to the judgment of Hon'ble High Court of Delhi in Safiullah vs State (Delhi Administration) 49 (1993) DLT 193 wherein it was held that:
"It is nowhere the case of the prosecution that the seal after use was SHIVLI Digitally signed by SHIVLI TALWAR TALWAR Date: 2022.03.31 17:41:29 +0530 FIR No. 60/2017 PS Civil Lines State vs. Mohd. Shahid Page No. 16 of 22 handed over to the independent witness Public Witness Even the Public Witness does not utter a word regarding the handing over of the seal after use. Therefore, the conclusion which can be arrived at is that the seal remained with the Investigating Officer or with the other member of the raiding party therefore the possibility of interference or tempering of the seal and the contents of the parcel cannot be ruled out."
Reference is also made to the judgment of Hon'ble Punjab and Haryana High Court in Ramji Singh v. State of Haryana, 2007 (3) RCR (Criminal) 452, wherein it was held that, "The very purpose of giving seal to an independent person is to avoid tampering of the case property."
In the present case, the possibility of tampering of case property cannot be ruled out as it was lying in the same Malkhana where the police official having possession of the seal was posted.
23. It has been further pointed out by Ld. Defence counsel that FSL form as well as Road Certificate of sending the case property to FSL has not been placed on record by the prosecution. Reference is also made to the testimony of PW2 ASI Vinay Pal who was the MHC(M) at the relevant point of time, who during his cross-examination by Ld. Defence counsel, admitted that he never issued any Road Certificate regarding the case property and that the case property was not sent to FSL during his tenure.
24. It is further pertinent to note that seizure memo of the katta/ country Digitally signed by SHIVLI SHIVLI TALWAR TALWAR Date: 2022.03.31 17:41:37 +0530 FIR No. 60/2017 PS Civil Lines State vs. Mohd. Shahid Page No. 17 of 22 made pistol Ex. PW1/E as well as sketch memo of katta/ country made pistol Ex. PW1/A bear the number and particulars of the present FIR. As per the rukka Ex. PW6/A and testimonies of prosecution witnesses, the seizure memo and sketch memo of katta/ country made pistol were prepared prior to the registration of FIR. If that be the case, the prosecution has not offered any explanation whatsoever as to how number and other particulars of the present FIR are mentioned on the seizure memo and sketch memo of katta/ country made pistol in the same ink and handwriting as the remaining contents of these documents.
Reference is made to the judgment of Hon'ble High Court of Delhi in Giri Raj vs State 83 (2000) DLT 201 wherein it was held that, "The number of the FIR (Ex. PW-2/A) given on the top of the aforesaid documents is in the same ink and in the same handwriting, which clearly indicates that these documents were prepared at the same time. The prosecution has not offered any explanation whatsoever as to under what circumstances number of the FIR (Ex. PW-2/A) had appeared on the top of the said documents, which were allegedly prepared on the spot before its registration. This gives rise to two inferences that either the FIR (Ex. PW-2/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 Digitally signed by SHIVLI SHIVLI TALWAR TALWAR Date: 2022.03.31 17:41:43 +0530 FIR No. 60/2017 PS Civil Lines State vs. Mohd. Shahid Page No. 18 of 22 appellant."
25. It has been further argued by Ld. Defence Counsel that site plan has not been duly proved by the prosecution. It has been pointed out that as per the testimony of PW6 IO Inspector Robin Singh, he prepared the site plan Ex. PW6/B at the instance of Ct. Virender. However, the same does not bear the signatures of Ct. Virender.
Perusal of the site plan reveals that it does not bear the signatures of PW3 Ct. Virender at whose instance it was allegedly prepared. Thus, the prosecution has failed to prove at whose instance the site plan was prepared, which casts a serious shadow of doubt on the case of prosecution.
26. Another contradiction has been pointed out by Ld. Defence Counsel.
It has been pointed out that PW4 Ct. Sanjay, during his cross- examination by Ld. Defence Counsel, admitted that neither the accused was apprehended in his presence nor was the katta recovered from the accused in his presence. However, seizure memo of katta Ex. PW1/E bears the signature of Ct. Sanjay. No explanation regarding the same has been offered by the prosecution.
27. It is also pertinent to note that PW1 Ct. Narender did not offer his personal search prior to taking the search of accused. This Court is of the considered opinion that PW1 must have offered his personal search to some independent witness, however, no such precaution was taken by PW1. Thus, chances of false plantation of the case property cannot be ruled out. Digitally signed by SHIVLI SHIVLI TALWAR TALWAR Date:
2022.03.31 17:41:51 +0530 FIR No. 60/2017 PS Civil Lines State vs. Mohd. Shahid Page No. 19 of 22
28. It is also pertinent to note that no efforts were made by any of the police officials to lift the chance finger prints from the katta/ country made pistol in question. Had any such efforts been made, there would have been scientific evidence in the present case which would have been crucial for the case of prosecution. However, no such efforts were made to collect this scientific evidence for reasons unexplained by the IO.
29. It has been further contended by Ld. Defence Counsel that all documents of the present case were prepared in the police station and not at the spot of alleged incident and the accused has been falsely implicated in the present case. Reference is made to the testimony of PW3 Ct. Virender, who during his cross-examination by Ld. Defence Counsel, deposed that IO recorded his statement only once at the PS. Reference is also made to the testimony of PW4 Ct. Sanjay, who during his cross-examination by Ld. Defence Counsel, deposed that he signed all the documents at PS.
30. Ld. Defence Counsel submits that accused has been falsely implicated in the present case due to the scuffle with a police official near the gate of Bonta park. He further submits that pursuant to the said scuffle, accused was beaten mercilessly by the police officials of PS Civil Lines due to which he sustained multiple injuries. He further submits that PW6 IO Inspector Robin Singh, during his cross- examination by Ld. Defence Counsel, admitted that he got the MLC of accused conducted, however, he had not relied upon the same and not filed it alongwith the charge sheet. He further deposed that he could not assign any reason for not relying on the MLC of accused.
SHIVLI Digitally signed by
SHIVLI TALWAR
TALWAR Date: 2022.03.31
17:41:57 +0530
FIR No. 60/2017 PS Civil Lines State vs. Mohd. Shahid Page No. 20 of 22
Ld. Defence Counsel further submits that MLC of accused Ex. DW1/A has been duly proved by DW1 Dr. Shashi Kant, who deposed that the injuries sustained by the accused were both fresh and old. It has been further pointed out that during his cross-examination by Ld. APP for the State, DW1 deposed that the fresh injuries were caused within 24 hours and that injury no. 2 i.e. multiple bruises all over back, could be caused by a stick. Thus, it has been argued that the accused was beaten by the police officials, and in order to save their skin, they falsely implicated the accused in the present case and planted the katta / country made pistol upon him.
31. It has been further argued by Ld. Defence Counsel that the fact that IO did not apply before the Court for obtaining PC remand of the accused in order to trace out the source of weapon further strengthens the contention of defence that the case property has been planted upon the accused.
32. Thus, there are major lacunaes in the case of the prosecution. The aforementioned lacunaes and contradictions surfacing from the testimonies of various prosecution witnesses makes it extremely doubtful that on the fateful day, the accused was found in possession of katta/ country made pistol at the alleged time and place. Furthermore, the recovery of case property from the possession of accused has also not been proved by the prosecution beyond reasonable doubts since no independent public witnesses have been joined during the investigation and at the time of alleged recovery of case property, thereby diluting the case of the prosecution.
33. Thus, in light of the discussion made above, this Court is of the firm SHIVLI Digitally signed by SHIVLI TALWAR TALWAR Date: 2022.03.31 17:42:06 +0530 FIR No. 60/2017 PS Civil Lines State vs. Mohd. Shahid Page No. 21 of 22 view that prosecution has failed to establish the charge levelled against the accused beyond shadow of doubt. Thus, the accused cannot be held liable for the offence with which he has been charged. Accordingly, accused Mohd. Shahid is acquitted in the present case for the offence punishable u/s 25/54/59 Arms Act.
34. The bail bonds, if any, furnished by the accused at the time of commencement of trial stand cancelled. Surety, if any, stands discharged. Documents, if any, shall be returned to its rightful owner as per rules. Endorsement, if any, stands cancelled. Case property, if any, shall be disposed of as per rules after expiration of period to assail this judgment and in case of appeal, as per the directions of Ld. Appellate Court. Case file be consigned to the record room after due compliance.
Digitally signed by SHIVLI TALWAR SHIVLI Date:
TALWAR 2022.03.31
17:42:15
ANNOUNCED IN OPEN COURT +0530
on : 31.03.2022
(SHIVLI TALWAR)
MM-06(C)/THC/Delhi/31.03.2022
FIR No. 60/2017 PS Civil Lines State vs. Mohd. Shahid Page No. 22 of 22