Delhi District Court
State vs Rakesh Kumar on 24 August, 2011
IN THE COURT OF SH. HEM RAJ: METROPOLITAN MAGISTRATE:
(WEST)09:TIS HAZARI COURTS:DELHI
STATE Vs.RAKESH KUMAR
FIR No : 456/1997
U/S : 25 ARMS ACT
P.S : VIKAS PURI
1. Serial No. of the Case : 65/3/10
2. Unique ID No, of the : 02401R0137201999
3. Date of Commission of Offence : 28.07.1997
4. Date of institution of the case : 03.07.1999
5. Name of the complainant : Sh. Jai Narain
6. Name of accused & address : Rakesh Kumar
S/o Sh.Siya Ram
R/o E193, Phase V, Om Vihar
Uttam Nagar Delhi
7. Offence complained : 25 Arms Act 1959.
8. Plea of Accused : Pleaded Not Guilty.
9. Final Order : Acquitted
10.Date of Final Order : 24.08.2011
J U D G M E N T
1 The prosecution has filed a charge sheet against the accused that on 28.07.1997 at about 10.15 pm at Phase V, Om Vihar, Uttam Nagar, Delhi, the complainant went to call one Lala Lok Man Singh to attend a telephone call for him, but he did not find any response for the same. He found accused Rakesh FIR No.456/1997 STATE V/s RAKESH KUMAR PAGE No.1/30 Kumar and one Ajay sitting in one three wheeler scooter of Ajay in the shop of said Lala Lok Man Singh. Both of them started calling bad names to the complainant and when the complainant went inside the shop and asked them about the reasons for the same. An altercation ensued between them. Hearing the noise of commotion, some people from the neighbourhood gathered there. On seeing them, the said Ajay started his three wheeler and left the spot alongwith accused Rakesh. Later on, complainant Jai Narain saw one countrymade KATTA and three live cartridges lying in front of the shop. The police was called and the complainant raised his doubts on accused Rakesh as the person having the possession of the katta and the live cartridges.
2 After the completion of the investigation a charge sheet under section 25 Arms Act was filed against the accused. In compliance of section 207 Cr PC the copy of the charge sheet along with other documents were supplied to him and later on, vide order dated 04.11.1999, charge for the offence under section 25 Arms Act was framed to which the accused pleaded not guilty and claimed trial. 3 In order to prove its case against the accused, the prosecution examined as many as eight witnesses.
FIR No.456/1997 STATE V/s RAKESH KUMAR PAGE No.2/30 4 PW1 was HC Raj Singh who deposed that on 28.07.1997 he was working as Duty Officer in PS Vikas Puri and registered FIR NO. 456/97 he proved the FIR as Ex. PW1/A. He was not cross examined by the accused. 5 PW2 Ct. Dharamveer Singh deposed that on 15.07.1998 at the instruction of the IO he took one sealed pullanda sealed with the seal of 'SSK' vide RC No. 148/21 to FSL, Malviya Nagar and deposited the same. He handed over the copy of RC to MHC(M). He further deposed that as long as the pullanda remained in his custody no tempering took place.
6 PW3 Retired SI Surat Singh was the first IO of this case who deposed that on 28.07.1997 on receipt of DD No. 34A he alongwith Ct. Hari Om reached at EBlock, PhaseV, Uttam Nagar, Delhi where he met with the complainant Jai Narayan who got his statement Ex. PW3/A recorded to him and also produced one country made pistol and three live cartridges. He prepared the sketch of the pistol Ex. PW3/B which was 41 cm long. He sealed the pistol and cartridges in a pullinda with the seal of SSK. He proved the seizure memo Ex. PW3/E. He proved Ruqqa Ex. PW3/B. He deposed that seal was handed over to Ct. Hari Om. He prepared site plan Ex. PW3/E. He deposed that accused was arrested on the next day vide personal search memo Ex. PW3/F. He handed over FIR No.456/1997 STATE V/s RAKESH KUMAR PAGE No.3/30 the file to the MHC(R) on his transfer. He correctly identified the accused and the case property. He was not crossexamined at all by the accused. 7 PW4 HC Ved Prakash deposed that on 29.06.1998 he was assigned the investigation of this case. As per his direction on 15.07.1998, Ct. Dharamvir took the sealed pullinda sealed with the seal of SSK which contained one country made pistol and three live cartridges to FSL, Malviya Nagar vide RC No. 148/21. Thereafter, he was transferred from the PS. 8 PW5 Ct. Hari Om participated in the investigation with first IO and deposed about the investigation. He deposed on the similar lines what has been deposed by PW3 SI Surat Singh and thus corroborated his testimony. He was not crossexamined by the accused at all.
9 PW6 Dr. K.C. Vashney he proved the FSL Report bearing No. FSL/98/F092 dated 17.02.1999 as Ex. PW6/A. He deposed that the said report was prepared by Sh. K.K. Upadhyay, under his supervision and he identified his signatures. He was not crossexamined by the accused. FIR No.456/1997 STATE V/s RAKESH KUMAR PAGE No.4/30 10 PW7 HC Dharamvir deposed that on 16.07.1998, he was posted at PSVikas Puri as MHC(M) and on that day he sent one sealed pullanda sealed with the seal of SSK through the Ct. Dharamvir vide RC No. 148/21/97 who after depositing the same handed over the acknowledged copy of the RC to him. He proved the relevant entry in Register No. 19 as Ex. PW7/A. He was not cross examined by the accused.
11 PW8 Sh. Uday Sahay was the concerned DCP who granted the sanction under Section 39 Arms Act for the prosecution of the accused. He proved the same as Ex. PW8/A. He was not crossexamined by the accused. 12 In his statement under Section section 313 Cr.P.C the accused stated that he has been falsely implicated in the case by the police. He further stated that he was working with one embroider who wanted him to stay with him and on his refusal he was falsely implicated by him in this case with the connivance of the police. He chose not to lead any defence evidence. 13 I have heard the Ld. APP for the State, Sh. Kumar Avinash as well as Ld. LAC for the accused, Sh.Rajiv Mittal. I have also gone through the oral and documentary evidence available on the record carefully. FIR No.456/1997 STATE V/s RAKESH KUMAR PAGE No.5/30 14 It has been submitted by Ld. APP that the prosecution has been able to prove the guilt of accused beyond the reasonable doubt It has been further stated that the testimonies of the prosecution witnesses are reliable and trustworthy which have been able to bring home the guilt of the accused beyond the reasonable doubt.
15 On the other hand, the Ld. LAC Sh. Rajiv Mittal submitted that the prosecution has miserably failed to prove the exclusive possession of the firearm as well as the cartridges with the accused which was essential to be proved. He further submits that since, as per the story of the prosecution only, the accused was sitting in the auto with one Ajay, hence, the accused alone cannot be said to be in the conscious possession of the katta and the cartridges. He further submits that there is an ordinate delay in the sending of the samples and the case property to the FSL which has caused the serious prejudice to the case of the prosecution. He further contended that the prosecution has failed to prove that the sample and the case property remained intact, till they reached at the FSL in as much as, the prosecution has not proved the FSL form and the relevant extracts of the register no. 19. He contented further that documents prepared before the registration of the FIR contained the number of the same which show that the documents were false documents and prepared in order to falsely implicate the accused in this case. He FIR No.456/1997 STATE V/s RAKESH KUMAR PAGE No.6/30 vigorously argued that the seal after its use was not handed over to any independent person and therefore, the possibility of its misuse cannot be ruled out. He further submitted that the only eye witness PW Jai Narain has not been examined in this case and he only could have proved the case of the prosecution. It has been further submitted that there are material contradictions in the oral testimonies and the documentary evidence on the record which rendered the case of the prosecution as doubtful. He further argued that no incriminating material has come on the record against the accused and the prosecution has miserably failed to prove the case beyond reasonable doubt.
16 The accused in the present case has been charged with offences under Section 25 Arms Act 1959. The relevant portion of section 25 of the Arms Act 1959 reads as under:
"25. Punishment for certain offences. ..........................................................
(1B) Whoever(a) acquires, has in his possession or carries any firearm or ammunition in contravention of section 3;.................................."
At this stage it would be proper to have a glance at the Section 35 of the Arms Act 1959 as it provides for the situation when the firearms or the ammunition is found in the joint possession or under the joint control. Section 35 reads as under:
FIR No.456/1997 STATE V/s RAKESH KUMAR PAGE No.7/30 "35. Criminal responsibility of persons in occupation of premises in certain cases.Where any arms or ammunition in respect of which any offence under this Act has been or is being committed are or is found in any premises, vehicle or other place in the joint occupation or under the joint control of several persons, each of such persons in respect of whom there is reason to believe that he was aware of the existence of the arms or ammunition in the premises, vehicle or other place shall, unless the contrary is proved, be liable for that offence in the same manner as if it has been or is being committed by him alone."
17 It is well settled principal of law that the prosecution has to prove the case beyond reasonable doubt and has to stand upon on its own legs. The prosecution also cannot draw any strength from the case of the accused howsoever weak it may be. It is also well settled proposition of criminal law that the accused has a profound right not to be convicted for an offence which is not established by the evidential standard of proof beyond reasonable doubt. It is also well settled principle of law that in a criminal trial the burden of proof always rests upon the prosecution and the same never shifts onto the accused.
Standard of Proof 18 In a recent case reported as Paramjeet Singh @ Pamma Vs. FIR No.456/1997 STATE V/s RAKESH KUMAR PAGE No.8/30 State of Uttarakhand , 2011CRI.L.J.663, Supreme Court, Hon'ble Mr. Justice Dr. B. S. Chauhan, speaking for the Bench, held in para no. 11 and 12 as under:
"11. A criminal trial is not a fairy tale wherein one is free to give flight to one's imagination or fantasy. Crime is an event in real life and is the product of an interplay between different human emotions. In arriving at a conclusion about the guilt of the accused charged with commission of a crime, the court has to judge the evidence by the yardstick of probabilities, intrinsic worth and the animus of witnesses. Every case, in the final analysis, would have to depend upon its own facts. The court must bear in mind that "human nature is too willing, when faced with brutal crimes, to spin stories out of strong suspicions." Though an offence may be gruesome and revolt the human conscience, an accused can be convicted only on legal evidence and not on surmises and conjecture. The law does not permit the court to punish the accused on the basis of a moral conviction or suspicion alone. "The burden of proof in a criminal trial never shifts and it is always the burden of the prosecution to prove its case beyond reasonable doubt on the basis of acceptable evidence." In fact, it is a settled principle of criminal jurisprudence that the more serious the offence, the stricter the degree of proof required, since a higher degree of FIR No.456/1997 STATE V/s RAKESH KUMAR PAGE No.9/30 assurance is required to convict the accused. The fact that the offence was committed in a very cruel and revolting manner may in itself be a reason for scrutinizing the evidence more closely, lest the shocking nature of the crime induce an instinctive reaction against dispassionate judicial scrutiny of the facts and law. (Vide: Kashmira Singh Vs. State of Madhya Pradesh, AIR 1952 SC 159; State of Punjab Vs. Jagir Singh Baljit Singh & Anr. AIR 1973 SC 2407; Shankarlal Gyarasilal Dixit Vs. State of Maharashtra, AIR 1981 SC 765; Mousam Singha Roy & Ors. Vs.State of West Bengal, (2003) 12 SCC 377; and Aloke Nath Dutta & Ors. Vs. State of West Bengal, (2007) 12 SCC 230).
12. In Sarwan Sigh Rattan Singh Vs. State of Punjab, AIR 1957 SC 637, this court observed (Para12) :
"Considered as a whole the prosecution story may be true; but between 'may be true' and 'must be true' there is inevitably a long distance to travel and the whole of this distance must be covered by legal, reliable and unimpeachable evidence (before an accused can be convicted."
Beyond Reasonable Doubt 19 In the judgment of Sucha Singh and Another Vs. State of Punjab, FIR No.456/1997 STATE V/s RAKESH KUMAR PAGE No.10/30 AIR 2003 Supreme Court, the Hon'ble Supreme Court observed as under:
21. Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicion and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punish an innocent. Letting guilty escape is not doing justice according to law. [See Gurbachan Singh v. Satpal Singh and others, AIR 1990 SC 209 : 1990(1) RCR(Crl.) 297 (SC)].
Prosecution is not required to meet any and every hypothesis put forward by the accused.
[See State of U.P. v. Ashok Kumar Srivastava, AIR 1992 SC 840 : 1992(3) RCR(Crl.) 63 (SC)]. A reasonable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case. If a case is proved perfectly, it is argued that it is artificial; if a case has some flaws inevitable because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty persons must be allowed to escape. Proof beyond reasonable doubt is a guideline, not a FIR No.456/1997 STATE V/s RAKESH KUMAR PAGE No.11/30 fetish. [See Inder Singh and Anr. v. State of (Delhi Admn.) (AIR 1978 SC 1091)]. Vague hunches cannot take place of judicial evaluation.
"A judge does not preside over a criminal trial, merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. Both are public duties." (Per Viscount Simon in Stirland v. Director of Public Prosecution (1944 AC (PC) 315) quoted in State of U.P. v. Anil Singh, AIR 1988 SC 1998). Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth.
Possession.
20 In Megh Singh Vs. State of Punjab, AIR 2003 SC 3184 elaborating the concept of possession, His Lordship Hon'ble Mr. Justice Arijit Pasayat observed as under:
"10. The expression `possession' is a polymorphous term which assumes different colours in different contexts. It may carry different meanings in contexually different backgrounds. It is impossible, as was observed in Superintendent and Remembrancer of Legal Affairs, West Bengal v. Anil Kumar Bhunja and others, AIR 1980 SC 52, to work out a completely logical and FIR No.456/1997 STATE V/s RAKESH KUMAR PAGE No.12/30 precise definition of "possession" uniformly applicable to all situations in the context of all statutes.
The words `conscious' means awareness about a particular fact. It is a state of mind which is deliberate or intended.
11. As noted in Gunwantlal v. The State of M.P. (AIR 1972 SC 1756) possession in a given case need not be physical possession but can be constructive, having power and control over the article in case in question, while the person whom physical possession is given holds it subject to that power or control.
12. The word `possession' means the legal right to possession (See Health v. Drown, 1972(2) All ER 561 (HL). In an interesting case it was observed that where a person keeps his fire arm in his mother's flat which is safer than his own home, he must be considered to be in possession of the same. (See Sullivan v. Earl of Caithness, 1976(1) All ER 844 (QBD).
13. Once possession is established the person who claims that it was not a conscious possession has to establish it, because how he came to be in possession is within his special knowledge. Section 35 of the Act gives a statutory recognition of this position because of presumption available in law. Similar is the position in terms of Section FIR No.456/1997 STATE V/s RAKESH KUMAR PAGE No.13/30 54 where also presumption is available to be drawn from possession of illicit articles. This position was highlighted in Madan Lal and anr. v. State of Himachal Pradesh, 2003(6) SCALE 483.
21 In the judgment of Superintendent and Remembrancer of Legal Affairs, West Bengal v. Anil Kumar Bhunja and others, AIR 1980 SC 52, while discussing the concept of the possession the Hon'ble Supreme Court observed as under:
"13. "Possession" is a polymorphous term which may have different meanings in different contexts. It is impossible to work out a completely logical and precise definition of "possession" uniformly applicable to all situations in the contexts of all statutes. Dias and Hughes in their book on Jurisprudence say that if a topic ever suffered from too much the orizing it is that of "possession". Much of this difficulty and confusion is (as pointed out in Salmond's Jurisprudence, 12th Edition, 1966) caused by the fact that possession is not purely a legal concept. "Possession", implies a right and a fact; the right to enjoy annexed to the right of property and the fact of the real intention. It involves power of control and intent to control. (See Dias and Hughes, ibid).
14. According to Pollock and Wright "when a person FIR No.456/1997 STATE V/s RAKESH KUMAR PAGE No.14/30 is in such a relation to a thing that, so far as regards the thing, he can assume, exercise or resume manual control of it at pleasure, and so far as regards other persons, the thing is under the protection of his personal presence, or in or on a house or land occupied by him or in any receptacle belonging to him and under his control, he is in physical possession of the thing".
15. While recognising that 'possession' is not a purely legal concept but also a matter of fact; Salmond (12th Edition, pages 52) describes 'possession, in fact', as a relationship between a person and a thing. According to the learned author the test for determining 'whether a person is in possession of anything is whether he is in general control of it'.
16. In Gunwantlal (ibid), this Court while noting that the concept of possession is not easy to comprehend, held that, in the context of Section 25 (a) of the Arms Act, 1959, the possession of a fire rm must have,firstly, the element of consciousness or knowledge of that possession in the person charged with such offence, and secondly, he has either the actual physical possession of the firearm, or where he has not such physical possession, he has nonetheless a power or control over that weapon. It was further recognised that whether or not the accused had such control or dominion to constitute his possession of the firearm, is a question of fact depending on the facts of each case. In that connection, it was observed : "In FIR No.456/1997 STATE V/s RAKESH KUMAR PAGE No.15/30 any disputed question of possession, specific facts admitted or proved will alone establish the existence of the de facto relation of control or the dominion of the person over it necessary to determine whether that person was or was not in possession of the thing in question".
22 In Gunwant Lal Vs State of Madhya Pardesh, AIR 1972 SC 1756, the Hon'ble Supreme Court had considered the question of possession in a case of firearm under Arms Act. The relevant portion of the judgment is reproduced here as under:
"5. What is meant by possession in the context of this section ? Is it that the person charged should be shown to be in physical possession or is it sufficient for the purposes of that provision that he has constructive possession any firearm or ammunition in contravention of Section 3 which prohibits him to be in such possession without a licence. It may be mentioned that under Section 19 of the Arms Act of 1878, an offence corresponding to Section 25 (1) (a) is committed if a person had in his or under his control any arms or ammunition in contravention of Sections 14 and 15 of that Act. The word 'control' under Section 25 (1) (a) has been omitted. Does this deletion amount to the legislature confining the offence only to the case of a person who has physical possession or does it mean that a person will be considered to be in FIR No.456/1997 STATE V/s RAKESH KUMAR PAGE No.16/30 possession of a firearm over which he has constructive possession or over which he exercises the power to obtain possession thereof when he so intends ? If the meaning to be given to the word "possession" is that it should be a physical possession only, then certainly the charge as framed on the facts of the prosecution case will not be sustainable but if the meaning to be given to the word "possession" is wider than that of actual or physical possession then it is possible, if the evidence produced by the prosecution is such as would sustain a finding, that he had constructive possession on 1791966 when hehanded it over to Miroo and Miroo handed it over to Chhaganlal because if it was not seized from Chhaganlal, the appellant could have at any time got back the physical possession of the revolver through Miroo. The possession of a firearm under the Arms Act in our view must have, firstly the element of consciousness orknowledge of that possession in the person charged with such offence and secondly where he has not the actual physical possession, he has nonetheless a power or control over that weapon so that his possession thereon continues despite physical possession being in someone else. If this were not so, then an owner of a house who leaves an unlicensed gun in that house but is not present when it was recovered by the police can plead that he was not in possession of it even though he had himself consciously kept it there when he went out. Similarly, if he goes out of the house during the FIR No.456/1997 STATE V/s RAKESH KUMAR PAGE No.17/30 day and in the meantime someone conceals a pistol in his house and during his absence, the police arrives and discovers the pistol, he cannot be charged with the offence unless it can be shown that he had knowledge of the weapon being placed in his house. And yet again if a gun or firearm is given to his servant in the house to clean it, though the physical possession is with him nonetheless possession of it will be that of the owner. The concept of possession is not easy to comprehend as writers of Jurisprudence have had occasions to point out. In some cases under Section 19 (1) (f) of the Arms Act, 1878 it has been held that the word "possession" means exclusive possession and the word "control" means effective control but this does not solve the problem. As we said earlier, the first precondition for an offence under Section 25 (1) (a) is the element of intention, consciousness or knowledge with which a person possession the firearm before it can be said to constitute an offence and secondly possession but can be constructive, having power and control over the gun, while the person to whom, physical possession is given holds it subject to that power and control. In any disputed question of possession, specific facts admitted or proved will alone establish the existence of the de facto relation of control or the dominion of the person over it necessary to determine whether that person was or was not in possession of the thing in question. In this view it is difficult at this stage to postulate as to what the evidence will be and FIR No.456/1997 STATE V/s RAKESH KUMAR PAGE No.18/30 we do not therefore venture to speculate thereon. In the view we have taken, if the possession of the appellant includes the constructive possession of the firearm in question then even though he had parted with physical possession on the date when it was recovered, he will nonetheless be deemed to be in possession of that firearm. If so, the charge that he was in possession of the revolver on 1791966 does not suffer from any defect particularly when he is definitely informed in that charge that he had control over that revolver. It is also apparent that the words 'on or before' were intended to bring home to the accused that he was not only in constructive possession of it on 1791966 but that he was in actual physical possession of it prior to that date when he gave it to Miroo. It is submitted, however, that the words 'on or before' might cause embarrassment and prejudice to the defence of the accused because he will not be in a position to know what the prosecution actually intends to allege. From a reference of Form XXVIII of Schedule 5 of the Code of Criminal Procedure, the mode of charging a person is that he 'on or about'....did the act complained of. In view or the forms of the charge given in the Schedule to the Code, we think that it would be fair to the appellant if the charge is amended to read 'on or about' instead of on or before' which we accordingly order."
23 In Pabitar Singh Vs. State of Bihar, AIR 1972 SC 1899, while FIR No.456/1997 STATE V/s RAKESH KUMAR PAGE No.19/30 dealing with a question of the joint possession it was observed by the Apex Court that when a quarter was in the joint possession of two persons and at the time of the recovery of the firearm one was present he cannot be held liable for the possession of the firearm. The facts of the said case need to be recapitulated here as under:
Shiva, the appellant and one Ram Ashray Sharma were in joint occupation of quarter No. 490A of the Loco Colony at Gaya. Some confidential information was conveyed by Bishrampore police station to the Kotwali police station at Gaya that stolen properties connected with a dacoity were lying concealed in the aforesaid quarter. Consequently Rama Shankar Upadhyaya Station House Officer, Gaya Kotwali police station raided the quarter at 5.45 a.m. on November 5, 1962. He took with him two witnesses P.W. 1 Vijay Kumar Dubey and P.W. 5 Deonadan Ram. The quarter was found locked from outside. Ram Ashray Sharma was reported to be on duty. He was sent for and he opened the outer lock of the quarter with his key. It was alleged that when the search was made inside the quarter, the appellant was found in the quarter, concealing himself in the kitchen room which was bolted from inside. That room was got opened. A country made gun was found lying in between two bricks on the top of which a tin containing flour in a bag covered with a brass thali was placed. The bad FIR No.456/1997 STATE V/s RAKESH KUMAR PAGE No.20/30 room was searched and two live 12 bore cartridges were found wrapped in small cloth. These had been placed behind a framed picture of Lord Shiva.
24 It was further held that "In the present case the quarter was admittedly in joint occupation of both the appellant and Ram Ashray Sharma. It is true that at the time of the raid Ram Ashray Sharma, was not present but the mere presence of the appellant was not sufficient to make him guilty of the offence unless the court could come to the conclusion that there was reason to belive that he was aware of the existence of the gun in the premises. If the view of the courts below is accepted that the appellant had concealed himself after having locked the kitchen when the raid took place and that he was in exclusive possession of the kitchen it might have been possible in the light of other facts and circumstances to come to the conclusion that the conditions laid down in S. 35 were satisfied."
25 Now coming back to the facts of the case of the prosecution the accused Rakesh and one Ajay was sitting in one auto in the shop and suddenly they left the shop in the same auto. Further that the complainant did not see any of them in the possession of the case property. Rather, when they left the spot then only the complainant noticed the fire arm and the cartridges lying at the spot. Now the question which arises for consideration is that whether the accused can be said to be in the possession or the joint possession of the same. As discussed herein above that the joint possession is the question of fact and a person can be FIR No.456/1997 STATE V/s RAKESH KUMAR PAGE No.21/30 said to have been in the joint possession of a thing and it is only the quality of the evidence which would decide the same. It would depend upon the evidence led in the case. The question which further requires consideration is that whether the prosecution has been able to bring such evidence on the record. But in my considered opinion, there is nothing on the record to suggest that the accused can be said to be in the joint possession of the same. A careful perusal of the complaint itself would show that the complainant nowhere stated that the fire arm and the cartridges were thrown from the auto wherein the accused alongwith one Ajay was sitting. As per the complainant the fire arm and the cartridges were found lying at the spot when the accused had already left the spot. Therefore, in my considered opinion the prosecution has miserably failed to prove the possession of the recovered firearm and the cartridges with the accused.
Delay in sending the recovered articles to the FSL 26 In the judgment of Modan Singh Vs. State of Rajasthan , (1978)4SCC 435 the effect of the inordinate delay in sending the recovered arms was considered by the Hon, ble Supreme Court in the para 9 of the judgment in the following words:
9 .........The recovery of the pistol, Ex. 8 from the person of Modan Singh was on the 20th December at the police station itself and the FIR No.456/1997 STATE V/s RAKESH KUMAR PAGE No.22/30 recovery memo is Ex. P. 23. An empty cartridge, a live cartridge and a pistol case was recovered from the house of Modan Singh on the 23rd and the seizure memo was prepared but the prosecution failed to lead evidence that the material objects were properly kept till they were sent to the expert on 621967 by a special messenger. The investigating officers would only say that the material objects were kept sealed upon 14121966. The prosecution is silent as to in whose custody the material objects were till 621967 ...................................... ." In Desh Raj @ Dass V/s State, 83 (2000) DLT 262, while relying upon the judgments of Hon'ble Supreme Court in Baldev Singh vs. State of Punjab 1991CAR 81 and Santa Singh Vs. State of Punjab, AIR 1956 SC 526, the Hon'ble Mr. Justice Dalveer Bhandari as His Lordship then was, took the view that the delay of 12 days in sending the samples to the CFSL proved fatal to the prosecution. In Valsala Vs. State of Kerala 1993 Crimes 276(SC) and later in State of Gujarat Vs. Ismail U Haji Patel (2003)12 SCC 29, the Hon'ble Supreme Court held that the delay per se would not be material. What had to be established was that the seized articles were in proper custody and in the proper form and that the sample sent to the chemical analyst for testing was the same that was seized.
FIR No.456/1997 STATE V/s RAKESH KUMAR PAGE No.23/30 27 As revealed from the prosecution story the firearm and the live cartridges were recovered on 28/7/97 which were sealed on the very same day.
Ex PW7/A which is the relevant page of the storeRoom Register(Part1) shows the same were deposited in the Malkhana on the same day. However, same also shows that the case property was sent to FSL (DP) Malviya Nagar on 16/7/1998. There is an inordinate delay of almost one year in sending the same to the FSL. The reasons for the same has not been explained by the prosecution. There is nothing in the testimonies of the prosecution witnesses also regarding the same. Moreover, there is a contradiction about the fact when the case property was actually sent to the FSL. PW 2 Ct. Dharambir Singh who deposited the case property with the FSL mentioned the date on which he took the case property as 15/7/1998. However, he has been contradicted by PW7 who was the concerned MHC(M) who deposed that the case property was sent on 16/7/1998 through PW2. In Satinder Singh Vs. State (NCT of Delhi) 69(1997) DLT577, it was held that the oral evidence which is contrary to the documentary evidence ought not to be relied upon. Hence, in my considered opinion, this inordinate delay of almost one year in sending the case property to the FSL has proved fatal to the cause of the prosecution, especially so when there is no explanation has been put forth in this regard. As held by the aforesaid propositions of law I have no hesitation in holding that due to said reason the prosecution case becomes doubtful and consequently FIR No.456/1997 STATE V/s RAKESH KUMAR PAGE No.24/30 falls short of being proved beyond reasonable doubt.
Absence of CFSL Form 28 In Desh Raj @ Dass V/s State, 83 (2000) DLT 262, His Lordship Hon'b'e Mr. Justice Dalbeer Bhandari, as His Lordship then, was dealing a case under Section 402 IPC and 25 Arms Act. In that case, it was held in para 25 that " Neither depositing the CFSL form in the Malhkana nor sending it alongwith the sample parcel to the office of the CFSL puts a question mark on the credibility of the prosecution version."
29 In Lalman Vs. State 75(1998) DLT 224, it was observed that "CFSL form is a valuable safeguard to ensure that the sample is not tempered with till its analysis by the CFSL analyst. The CFSL form should not only br prepared and sealed by the officer making the seizure at the place where the case property is seized from the accused, it should also be sealed by the SHO to whom the sample and case property is handed over and the same should accompany the sample to the CFSL. The purpose of the specimen seal is to compare the same with the seals on the sample parcels meant for analysis and report by CFSL to ensure that the purity of samples are not tempered with. In the absence of the CFSL form, it cannot be said that the FIR No.456/1997 STATE V/s RAKESH KUMAR PAGE No.25/30 purity of the sample remained intact. Benefit of its absence should go the accused." The same view was taken in Rajan Ali vs. The State( Delhi Administration) 81(1999)DLT 194 by Delhi High Court. Recently in the case of Bijay vs. State ( G.N.C.T. Of Delhi), 2011 VI AD (DELHI)562, Hon'ble Mr. Justice Suresh Kait, also observed the same. Reverting to the facts of the case and the evidence led in this regard the same would show that PW3 Retired SI Surat Singh was the first IO of this case who reached at the spot alongwith PW5 Ct. Hari Om. None of them testified that the CFSL Form was also prepared at the spot. PW7 MHC(M) HC Dharamvir though deposed that the case property was sent to the FSL through PW2 Ct. Dharamvir. However, the CFSL form has not been proved on the record. As held in the aforesaid judgments and especially recently in the case of Bijay vs. State ( G.N.C.T. Of Delhi), 2011 VI AD (DELHI)562, I opine that the nonsending the FSL form to the FSL alongwith the samples and not proving the same on the record renders the case of the prosecution doubtful and, I am not inclined to rely upon the same so as to convict the accused.
FIR No. on the documents prepared prior to its registration: 30 In the judgment of Giri Raj V/s State 83 (2000) DELHI LAW TIMES 201, the Hon'ble High Court of Delhi held in Para 5 as "The prosecution has not offered any explanation whatsoever as to under what circumstances number FIR No.456/1997 STATE V/s RAKESH KUMAR PAGE No.26/30 of the FIR Ex. PW2/A had appeared on the top of the said documents, which were allegedly on the spot before its registration. This gives rise to two inferences that either the FIR (Ex. PW2/A) was recorded prior to the alleged recovery of the contraband or number of the said FIR was inserted in these documents after its registration. In both the situations, it seriously reflects upon the veracity of the prosecution version and creates a good deal of doubt about recovery of the contraband in the manner alleged by the prosecution. That being so, the benefit arising out of such a situation must necessarily go to the appellant". The same view was adopted in the case of Mohd. Hashim, Appellant Vs. State, 2000 CRI.L.J 1510, Pawan Kumar Vs. Delhi Administraton,1987 CCC 585 and Mewa Ram Vs. State 2000 CRI.L.J114. In the present case admittedly the seizure memo Ex PW3/C and the sketch of the country made pistol Ex PW3/B would show that they contained the FIR number on the same but there is no explanation furnished by the prosecution as to how and under what circumstances the same has appeared. The same causes a reasonable doubt in the prosecution story as held in the judgments mention herein above.
Handing Over the seal to the member of the Raiding Party: 31 In the judgment of Ramji Singh V/s State of Haryana 2007 (3) R.C.R. FIR No.456/1997 STATE V/s RAKESH KUMAR PAGE No.27/30 (Criminal) 452, the Hon'ble Punjab and Haryana High Court held in Para No. 7 as "The very purpose of giving seal to an independent person is to avoid tampering of the case property. It is well settled that till the case property is not dispatched to the forensic science laboratory, the seal should not be available to the prosecuting agency and in the absence of such a safeguard the possibility of seal, contraband and the samples being tampered with cannot be ruled out". In Rajesh Jagdamba Avasthi Vs. State of Goa, (2005)9 SCC 773, in para 15 of the judgment in this regard the Hon'ble Supreme Court held as under:
"15............................In these circumstances there is justification in the argument that since the seal as well as the packets remained in the custody of the same person, there was every possibility of the seized substance being tempered with, and that is the only hypothesis on which the discrepancy in weight can be explained. The least that can be said in the facts of the case is that there is serious doubt about the truthfulness of the prosecution case." PW3 Retd. SI Surat Singh deposed that the seal after use was handed over to PW5 Ct. Hari Om who also corroborated the version of the PW3. It is beyond comprehension as to why the seal was handed over to PW5 especially when the complainant Jai Narain was also present there. While relying FIR No.456/1997 STATE V/s RAKESH KUMAR PAGE No.28/30 upon the judgment of Rajesh Jagdamba Avasthi Vs. State of Goa, (2005)9 SCC 773, in Bijay vs. State ( G.N.C.T. Of Delhi), 2011 VI AD (DELHI)562, Hon,ble Mr. Justice Suresh Kait held in para 34 of the said judgment that " after sealing the sample, the seal was not handed over to an independent person, rather he kept with him only, which also creates doubt on the sample whether the samples, were intact and not tempered with.
32 Further more, in this case the star witness of the prosecution i.e the complainant namely Jai Narain has not been examined despite the number of the opportunities. The case of the prosecution hinges upon his testimony. Sans his testimony it could not have been proved on the record that the accused was found in the possession of the firearm and the live cartridges as alleged against him. The testimonies of the other witness are either with regard to the investigation or the formal witnesses and their testimonies alone cannot prove the case against the accused as it was the complainant whose testimony would have been helpful in clinching the case of the prosecution and bring home the guilt of the accused. Accordingly, in the absence of the testimony of the complainant the prosecution story has not been proved beyond reasonable doubt.
33 It is beyond the comprehension as to why there is no investigation regarding FIR No.456/1997 STATE V/s RAKESH KUMAR PAGE No.29/30 the said Ajay when he was also allegedly found sitting in the auto alongwith the accused Rakesh. No investigation was carried out in this regard. No steps, whatsoever, were taken by the IO in this regard. No steps were taken by the IO to get him declared as proclaimed offender. Charge sheet has not been filed showing Ajay as proclaimed offender. The case is shredded with doubts and smacks the irresponsible attitude of the investigating agency. 34 Therefore, in view of the discussions made herein above and the facts and circumstances of the present case, in my considered opinion, the prosecution has failed to prove the guilt of the accused beyond reasonable doubt. Hence, the accused Rakesh stands acquitted of the offence under Section 25 Arms Act, he has been charged with. He be set at liberty forthwith. His bail bonds are canceled and surety bonds are discharged. The case property be destroyed. File be consigned to Record Room.
ANNOUNCED IN THE OPEN COURT (HEM RAJ)
TODAY i.e. ON 24TH AUGUST, 2011 MM:09:WEST:THC
DELHI:24.08.2011
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FIR No.456/1997 STATE V/s RAKESH KUMAR PAGE No.30/30