Delhi District Court
State vs Parvez @ Pappan on 4 December, 2024
IN THE COURT OF SH. PANKAJ RAI, JMFC-01,
NORTH EAST DISTRICT, KARKARDOOMA COURT, DELHI
STATE VS. PARVEZ @ PAPPAN & ANR.
FIR No. 537 / 2010
POLICE STATION BHAJANPURA
U/s. 382/34 IPC
Date of institution of the case : 24.12.2010
Date of judgment reserved : 26.10.2024
CNR : DLNE020000172010
Date of commission of offence : 01.11.2010 at about 8.10 p.m.
Name of the complainant : Mohd. Irshad
Name and address of accused : 1. Parvez @ Pappan
S/o Sh. Mohd. Ahmed @Munna
R/o Jabbar Garden, Kachhi Colony,
Near Satullabad Chowki,
DLF, PS Loni, UP.
2. Khalid
S/o Sh. Ayub
R/o Jabbar Garden, Kachhi Colony,
Near Satullabad Chowki,
DLF, PS Loni, UP.
Offence complained of : 382 IPC & 25/54/59 Arms Act
Plea of the accused : Pleaded not guilty
Date of Judgment : 04.12.2024
Final order : ACQUITTED
STATE VS. PARVEZ @ PAPPAN & ANR. FIR NO. 537 / 2010 PS BHAJANPURA PAGE NO. 1 / 16
Digitally
signed by
PANKAJ
PANKAJ RAI
RAI Date:
2024.12.04
15:42:45
+0530
JUDGMENT
CASE OF THE PROSECUTION :
1. The prosecution story, in nutshell, is that on 01.11.2010 at about 8.10 p.m. at 5th Pushta downwards towards Bhajanpura, on service road, both the accused namely, Parvez @ Pappan and Khalid (hereinafter referred to as "accused persons") committed theft of Rs.950/- and driving licence from the complainant Mohd. Irshad and that such theft was committed by them after having made preparations for causing hurt or restraint to the complainant in order to commit such theft in order to regain the stolen property. It is also the case of prosecution that one buttondar knife was recovered from the possession of accused Khalid when he was caught on the spot and while the other co-accused Parvez @ Pappan managed to fled way from the spot. Based on the above allegations the present FIR was registered against the accused persons for offence punishable under section 382/34 IPC.
COURT PROCEEDINGS :
2. Investigation was completed and police report in terms of section 173 Cr.P.C was filed under sections 382/34 IPC and under section 25/54/59 Arms Act.
Cognizance was taken and accused was summoned. Provisions of Section 207 Cr.P.C. were complied with after appearance of the accused.
CHARGE :
3. After hearing arguments on point of notice, charge for the offence u/s 382 IPC and u/s.25/54/59 Arms Act was framed against the accused Parvez @ Pappan vide order dated 05.02.2011 to which he pleaded not guilty and claimed STATE VS. PARVEZ @ PAPPAN & ANR. FIR NO. 537 / 2010 PS BHAJANPURA PAGE NO. 2 / 16 Digitally signed by PANKAJ PANKAJ RAI RAI Date:
2024.12.04 15:42:51 +0530 trial. As regards accused Khalid, he was was charged for offence u/s 382 IPC on 25.03.2011 and u/s.25/54/59 Arms Act on 18.07.2024 to which he pleaded not guilty and claimed trial.
EVIDENCE OF THE PROSECUTION :
4. In order to substantiate its case, prosecution has examined six witnesses.
5. PW-1 is the complainant Mohd. Irshad. He deposed that he was an auto driver by profession. That on 01.11.10 at about 8.00 pm he was going from his TSR bearing No.DL1RK-9213 from Shastri Park to Bhajanpura taking the passenger. That when he reached at 5th Pushta, two passengers sitting in said TSR got down and that they were giving very less fare and, therefore, he objected to it.
That in the meantime, due to noise the police reached at the spot. That the other passengers who were sitting in said TSR went away without giving him any fare but the aforesaid one passenger remained there at the spot. That the aforesaid person who stayed there had been exchanged to police and police taken away the aforesaid person with them. That, thereafter, on second day police called him at PS. That on second day when he went to the PS, the Police told him that they had detained the aforesaid person at PS. That police asked for his license and he had given the same to the police. That police obtained his signature on papers and thereafter he came back to his home. He identified his signatures on the seizure memo Ex. PW1/A as well as on the complaint Ex.PW1/B. He further identified his signatures on arrest memo, personal search memo and seizure memo. He also identified accused Khalid in the court. He deposed that he was the passenger of his TSR on the aforesaid date, time and place. However, he has not identified the other accused Parvez @ Pappan in the court. He also identified the case property Ex.P-1 to ExP-3. He was not cross-examined by Ld. Counsel for the accused. STATE VS. PARVEZ @ PAPPAN & ANR. FIR NO. 537 / 2010 PS BHAJANPURA PAGE NO. 3 / 16 Digitally signed by PANKAJ PANKAJ RAI RAI Date:
2024.12.04 15:42:59 +0530
6. PW-2 is HC Satya Pal who was the Duty Officer. He deposed that on 01.11.10 he was posted at PS Bhajanpura as HC when at about 10.20 pm Ct.
Kishanpal sent by SI Vinay Kumar came to the PS and handed over the original rukka to him and that he made endorsement on the same (Ex.PW2/A) bearing his signature. That on the basis of the rukka he registered the present FIR Ex. PW2/B. That, thereafter, he handed over the original rukka and copy of FIR to Ct. Kishanpal to be handed over to Sl Vinay Kumar as investigation of the present case was marked to him.
7. PW-3 is Ct. Kishanpal who went to the spot with the IO and also took rukka to PS for registration of FIR and came back to the spot. He deposed that on 01/11/2010, he was posted as Constable at PS Bhajanpura. That on that day, he alongwith SI Vinay Kumar reached Service Road, Bhajanpura, near CPWD office where HC Balbir met them and who was handling one person and one person with the TSR was also present at the spot. That HC Balbir Singh informed SI Vinay Kumar. That HC Balbir produced one knife to SI Vinay Kumar. That HC Balbir informed the name of the accused as Khalid. That SI Vinay Kumar inquired from the complaint who was present at the spot. That complaint had stated that when he was going to service of his TSR, two person had signalled him to stop and in the result of the same he stopped his TSR and both of the two person had snatched him. That SI Vinay Kumar prepared sketch of recovered knife vide Ex. PW1/A, which bearing his signatures. That IO prepared a pullanda and recovered knife was sealed with the seal of VK. That IO took the pullanda in his possession vide seizure memo Ex.PW1/D, bearing signatures at point B. That, thereafter, IO prepared a rukka and sent him to PS for registration of the FIR. That thereafter, he returned to the spot after registration of the FIR and handed over the copy of the STATE VS. PARVEZ @ PAPPAN & ANR. FIR NO. 537 / 2010 PS BHAJANPURA PAGE NO. 4 / 16 Digitally signed by PANKAJ PANKAJ RAI RAI Date:
2024.12.04 15:43:20 +0530 FIR as well as the original rukka to IO. PW-3 never appeared in the court, thereafter, for his remaining examination-in-chief.
8. PW-4 is SI Vinay Kumar who is the Investigation Officer of this case. He deposed that on 01.11.2010 he was posted at PS Bhajanpura as SI. That on said day, he was on emergency duty from 08.00 pm to 08.00 am. That after receiving the DD No.38A that one person had apprehended by HC Balbir at Pushta Service Road towards Gamri Road, Gamri, Near CPWD office, Delhi, he along with Const. Krishan Pal reached at the spot where they met HC Balbir alongwith the complainant and accused Khalid. That on inquiry, HC Balbir had produced other accused Khalid and complainant. That upon inquiry the complainant narrated the incident and he recorded his statement already Ex.PW1/B attested by him at point B. That HC Balbir also handed over him one knife resembling like a dagger which was found from the possession of accused Khalid. That he prepared a rough sketch of a said dagger on a paper already Ex.PW1/A bearing his signature at point C. That the total length of the said knife was of 35 cm, length of blade 23 cm and length of handle 12 cm. That the said dagger/knife was seized, vide seizure memo already Ex. PW1/D bearing his signature at point C. That one driving license of the complainant Mohd. Irshad was also produced and seized vide seizure memo Ex. PW1/A bearing his signature at point B. He also identified the said driving licence in the court. That he prepared the rukka Ex.PW4/A bearing his signature at point A and handed it over the same Krishan Pal with the directions to get the case registered at PS. That he prepared the site plan at the instance of Complainant Mohd. Irshad Ex.PW5/B bearing his signature at point A. That Ct. Krishan Pal came back to the spot and handed over him the original rukka alongwith the copy of FIR bearing no. 537/10 for further action. That he formally inquired the accused and recorded his disclosure statement Ex.PW5/C bearing his signature at point A STATE VS. PARVEZ @ PAPPAN & ANR. FIR NO. 537 / 2010 PS BHAJANPURA PAGE NO. 5 / 16 Digitally signed by PANKAJ PANKAJ RAI RAI Date:
2024.12.04 15:43:27 +0530 and the accused was formally arrested vide arrest memo Ex.PW1/B baring his signature at point B. That he further recorded the supplementary statement of complainant Mohd. Irshad and relieved him thereafter. That accused Khalid disclosed in his disclosure statement that he had committed the present crime alongwith his associate co-accused Parvez @ Pappan. That, thereafter, on further investigation at the instance of accused Khalid, he alongwith Ct. KrishanPal reached at Sadulla Bad Colony, Loni where accused Parvez was residing, however, he was not present at the said house. That he tried to search the accused Parvez in nearby locality at the instance of accused Khalid, however, he was not found. That thereafter, he came back to PS where accused Khalid was locked up at PS and the said case property was deposited in malkhana. That on 25.11.2010 at about 07.00 pm, while he was in area patrolling alongwith Ct. Krishan Pal at Bhajanpura Chowk at about 07.45 pm, one Secret informer informed them that the co-accused Parvez who is involved in the present case would come at about 08.15 pm from Usman Pur Road towards Khajuri Chowk and that if immediate raid is conducted, he can be apprehended. That he asked certain passersby to join the investigation and raid party, however, none got agreed after disclosing their reasonable excuses. That thereafter, he reached near Khajuri Chowk where he asked 3-4 passersby to join the investigation and raid party, however, none got agreed after disclosing their reasonable excuses. That thereafter, he alongwith Ct. Krishan Pal and secret informer hide themselves near Khajuri Chowk. That in between 08.15 to 08.30 pm, accused Parvez reached near Khajuri Chowk who was coming from Usman Pur Road towards Khanuri Chowk. That the secret informer indicated towards the accused Parvez and without wasting time, he with the help of Ct. Krishan Pal apprehended accused Parvez. That on cursory search of accused Parvez, one loaded country made pistol was found from his possession which he was carrying STATE VS. PARVEZ @ PAPPAN & ANR. FIR NO. 537 / 2010 PS BHAJANPURA PAGE NO. 6 / 16 Digitally signed by PANKAJ PANKAJ RAI RAI Date:
2024.12.04 15:43:35 +0530 his right pocket his wearing pant (lower). That he unloaded the said country made pistol with the help of safety gauge. That he prepared a rough sketch of said country made pistol and the live cartridge which was unloaded from the said country made pistol on a blank paper which is Ex.PWS/D bearing his signatures. That the length of the barrel of the said country made pistol was of 7.5 cm and the length of body separated from barrel was of 6.2 cm, length of butt was of 5 cm which was in turned shape. That the length of the said live cartridge was of 3.2 cm which was marked with the mark of KF. That he made the formal inquiry from the accused Parvez and recorded his disclosure statement Ex. PW5/E bearing his signatures at point A. That he arrested him formally vide arrest memo Ex.PW5/F bearing his signature at point A. That he also made his personal search, vide personal search memo Ex.PW5/G bearing his signature at point A. That upon the disclosure statement of accused Parvez, the incident/spot memo was prepared at the instance of accused Ex.PW5/H bearing his signature at point A. That FSL Form got filled up. That, thereafter, he came to PS alongwith Ct. Krishan Pal and accused Parvez where he locked up accused Parvez with muffled face and deposited the case property into malkhana. That next day, the accused Parvez was produced before the court and further his TIP got conducted on 04.12.2010 through the complainant and he was correctly identified by him. That the said Country made pistol and the live cartridge were sent to the FSL for the expert report. That after completion of investigation, he prepared the chargesheet and filed it in the court. That on receiving the FSL report, he obtained the sanction under Section 39 Arms Act. That he submitted that FSL report alongwith the sanction before the court, vide application Ex.PW5/I bearing his signature at point A. That he recorded the statement of Ct. Krishan Pal and HC Balbir under Section 161 Cr.PC. He STATE VS. PARVEZ @ PAPPAN & ANR. FIR NO. 537 / 2010 PS BHAJANPURA PAGE NO. 7 / 16 PANKAJ RAI Digitally signed by PANKAJ RAI Date: 2024.12.04 15:43:41 +0530 correctly identified the case property which is already Ex.P1 to Ex.P-3. He correctly identified both the accused persons in the court.
9. PW-5 is ASI Ram Gopal. He deposed that on 01.11.2010, he was posted at PS Bhajanpura as MHC(M). That on that day, IO had deposited one sealed pullanda carrying dagger/knife duly sealed with the seal of VK which was seized by him vide seizure memo already Ex.PW1/D and another pullanda carrying one desi katta alongwith one cartridge which was also duly sealed with the seal of VK which were seized by him by seizure memo already Ex.PW1/D. That he had taken the same into his custody and deposited in the malkhana. That he had made the entry with respect to the same at entry no. 3496/10, and particulars of the present case in his own handwriting Ex. PW5/A in register no. 19 bearing his signature at point A. That on 25.11.2010, IO also deposited another sealed pullanda duly sealed with the seal of VK carrying one countrymade pistol and one cartridge which was seized by him by seizure memo Mark X in the present case. That he took the same into his custody and deposited in the malkhana. That he had made entry with respect to the same at entry no. 3632/10 and particulars of the present case in his own handwriting Ex.PWS/B in register no. 19 bearing his signature at point A. That on 10.12.2010, the said case property i.e. countrymade pistol and live cartridge were handed over to Ct. Ramji Lal with direction to deposit the same at FSL, Delhi vide RC No. 120/21/10 dt. 10.12.2010. That he made the entry with respect to the same in his own handwriting Ex.PW5/C in register no. 19. That on 27.12.2010, one sealed parcel alongwith one sealed FSL examination report was handed over to him by HC Jai Pal. That the same was further handed over to the IO by him. That he made entry with respect to the same Ex.PW5/D in register no. 19. He brought the original register no. 19 (storeroom register part-I) which was already seen and returned.
STATE VS. PARVEZ @ PAPPAN & ANR. FIR NO. 537 / 2010 PS BHAJANPURA PAGE NO. 8 / 16 Digitally signed by PANKAJ PANKAJ RAI RAI Date:
2024.12.04 15:43:48 +0530
10. PW-6 is Ct. Ramji Lal. He deposed that on 10.12.2010, he was posted at PS Bhajanpura as Constable. That on that day, he had gone to FSL, Rohini, Delhi for depositing a sealed pullanda seal with the seal of VK vide Road Certificate No. 120/21/10. That after submitting the pullanda in FSL Rohini, he had handed over the receiving and Road Certificate to IO SI Vinay Kumar. That on his direction, he got both the receiving and Road Certificate deposited in the Malkhana. That no fabrication/ manipulation has been done with the pullanda till it remained in his possession. That his statement was recorded by the IO. STATEMENT / DEFENCE OF THE ACCUSED PERSONS :
11. In their statement under Section 313 Cr.P.C., both the accused have pleaded innocence and have claimed that they have been falsely implicated by the police.
They did not opt for leading defence evidence. Hence, the matter was fixed for final arguments.
12. Ld. Counsel for accused persons has argued that the prosecution has failed to prove the offence in question. That evidence of PW-1 does not inspire any confidence as he has not supported the case of prosecution. That no independent public person was cited as witness by the prosecution when the incident allegedly took place in a public place. That there are many contradictions in testimonies of the witnesses which goes to the root of the case.
13. On the other hand, Ld. APP submitted that there is no reason to doubt the testimony of complainant and other prosecution witnesses. That the contradictions which have been pointed by the Ld. Counsel for the accused are not material. That the case has been proved against accused persons beyond reasonable doubt.
14. The respective submissions of Ld. Assistant Public Prosecutor for the State and Ld. counsel for both the accused have been considered. The record has been thoroughly and carefully perused.
STATE VS. PARVEZ @ PAPPAN & ANR. FIR NO. 537 / 2010 PS BHAJANPURA PAGE NO. 9 / 16 PANKAJ RAI Digitally signed by PANKAJ RAI Date: 2024.12.04 15:43:55 +0530 ANALYSIS AND FINDINGS:
15. It is trite that in criminal jurisprudence, the prosecution is under an obligation to prove its case against the accused beyond reasonable doubt. The standard of proof to be adopted in criminal cases is not merely of preponderance of probabilities but proof beyond reasonable doubts on the basis of cogent, convincing and reliable evidence. It is also well settled that in case of doubt, the benefit must necessarily be given to the accused. It is also settled position of law that whenever there are two views possible, the view which favours the innocence of the accused is to be accepted by the Court.
16. In the present case, the accused persons have been charged for committing offence punishable under section 382 IPC in furtherance of their common intention. Section 382, IPC provides punishment for committing theft, having made preparation for causing death, or of hurt, or of restraint etc. The Section reads as under:
"382. Theft after preparation made for causing death, hurt or restraint in order to the committing of the theft.--Whoever commits theft, having made preparation for causing death, or hurt, or restraint, or fear of death, or of hurt, or of restraint, to any person, in order to the committing of such theft, or in order to the effecting of his escape after the committing of such theft, or in order to the retaining of property taken by such theft, shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine."
17. Offence under Section 382, IPC is an aggravated form of the offence of theft punishable under section 379, IPC. Theft is defined under Section 378, IPC. The term 'dishonestly' has been defined under Section 24, IPC as doing anything with STATE VS. PARVEZ @ PAPPAN & ANR. FIR NO. 537 / 2010 PS BHAJANPURA PAGE NO. 10 / 16 PANKAJ RAI Digitally signed by PANKAJ RAI Date: 2024.12.04 15:44:01 +0530 the intention of causing wrongful gain to one person or wrongful loss to another. To prove an offence under Section 382, IPC, apart from the ingredients of theft, as defined under Section 378, IPC, it must be proved that the accused had, when committing theft, made preparation for causing death or hurt or restraint, or fear of death or of hurt or of restraint to any person. It must be proved that he made the said preparation either to commit the theft, or to make good his escape or to retain the property so obtained pursuant to theft.
18. In the present case, star witness i.e. complainant Mohd. Irshad, (PW-1), in his testimony has simply deposed that on 01.11.2010 at about 8:00 p.m. he was going from Shastri Park to Bhajanpura from his TSR and that he was carrying passengers with him in his TSR and that when he reached fifth pushta, the two passengers got down from the TSR and that they were giving him less fare and hence, he objected to the same. He also deposed that due to noise, the police also reached the spot in the meantime. He further deposed that the other passengers who were sitting in the TSR got down without giving the fare but one of the said passenger remained there at the spot and that he was handed over to police, who had taken him away with them. He identified accused Khalid in the court. The identification of co-accused Parvez in the TIP is only a corroborative piece of evidence and it is not a substantive evidence. It is important to note that complainant has failed to identify the co-accused Parvez in the court. The complainant has not deposed anything in his examination-in-chief against any of the accused persons that either of them had dishonestly removed any movable property from out of his possession and that it was done with preparations to cause death (hurt or restraint) or fear of death (hurt or restraint) while committing theft. To bring home an offence under section 382 IPC, prosecution has to prove the STATE VS. PARVEZ @ PAPPAN & ANR. FIR NO. 537 / 2010 PS BHAJANPURA PAGE NO. 11 / 16 PANKAJ RAI Digitally signed by PANKAJ RAI Date: 2024.12.04 basic ingredients of offence of theft as provided under section 379 IPC, which are clearly lacking herein. The version of complainant as PW-1 was altogether different from what has been stated in the rukka and FIR. Pertinently, PW-1 had deposed that he was called to the PS next day and upon his visit there, the police asked for his licence and that he has given the same to the police. This statement of complainant by itself creates doubt over the case of the prosecution that the accused persons had committed theft of Rs.950/- and driving licence of the complainant. It is implicit in this statement that the driving licence was already in the possession in the complainant till the next day and that he was asked in the PS by the police officials to hand over the driving licence to the police next day. There is no explanation from the prosecution as to why the driving licence was not seized on the spot on the very day of the alleged incident and why the police waited till the next day. Moreover, CW-1 has also deposed that police had obtained his signatures on the papers and that, thereafter, he came back to his home. The complainant has also deposed that the police also obtained his signatures on the complaint Ex.PW1/B. These statements of complainant further create a grave doubt regarding the genuineness and bonafides of the proceedings conducted by the police including the preparation of arrest memo, personal search memo, seizure memo etc. that these documents may not have been prepared at the spot. Despite the crime alleged to have taken place at public road, there is no independent public person who has witnessed the alleged crime in question. It is interesting to note that despite the complainant clearly deposing against the projected case of prosecution and not affirming the prosecution story, to the effect that he had seen accused persons snatching his property on the relevant day, time and place in question, he was not declared as hostile by the prosecution. In the absence of his testimony, testimonies of other prosecution witnesses which is hearsay in nature, STATE VS. PARVEZ @ PAPPAN & ANR. FIR NO. 537 / 2010 PS BHAJANPURA PAGE NO. 12 / 16 Digitally signed by PANKAJ PANKAJ RAI RAI Date:
2024.12.04 15:44:15 +0530 even if believed will not remove the doubts, pertaining to the presence and wrongful actions of the accused persons in this case. That being so, the court has no option but to give the benefit of doubt to accused persons as the prosecution has not been able to prove the charge under section 382 IPC against both the accused persons beyond reasonable doubt.
19. Now coming to the other charge under section 25 Arms Act, it is to be noted that initially the charge under said section was framed only against accused Parvez only vide order dated 05.02.2011, however, on 18.07.2024 the charge was framed against accused Khalid for possession of button actuated knife as the case of prosecution was that said knife was recovered from the possession of accused Khalid and not from the possession of co-accused Parvez. Even in reference to this charge, it is evident that the complainant, PW-1, has nowhere deposed that any of the accused persons had shown any knife (dagger) or any other weapon to him during the course of alleged crime in question. He even failed to identify the other accused namely, Parvez before the court. There is nothing in the evidence of complainant as to which of the accused persons had shown knife to him. Though he has identified Ex.P1 to Ex.P3 in the court, however, he has not deposed that any of the accused persons shown these weapons to him or that they were recovered from the possession of accused Khalid. No independent public person was associated during the recovery proceedings. There is nothing on record to show that any notice was served to public persons to join the proceedings. In Pradeep Narayana v. State of Maharashtra AIR 1995 SC 1930 it was held that failure of police to join witness from locality during the search create doubts about fairness of investigation, benefit of which has to go to the accused. Similarly, in Kuldeep Singh v. State of Haryana 2004 (4) RCR, 103 and Passi @ Prakash v. State of STATE VS. PARVEZ @ PAPPAN & ANR. FIR NO. 537 / 2010 PS BHAJANPURA PAGE NO. 13 / 16 PANKAJ RAI Digitally signed by PANKAJ RAI Date: 2024.12.04 15:44:22 +0530 Haryana 2001 (1) RCR 435, it was held that whenever any recovery in connection with place of commission of offence is made, public persons must be made witnesses.
20. From the overall testimonies of the prosecution witnesses, it clearly surfaces that the IO has not associated any public witness at the time of arrest and seizure of alleged knife from accused Khalid or at the time of recovery of country made pistol with live cartridge from accused Parvez @ Pappan, despite availability of public persons. There is a possibility that it was a chance recovery. However, at the time and place from where accused was apprehended and when the formalities were being completed, there was no dearth of public persons. But the reason of non-joining such public witnesses, whose evidence would otherwise be in the nature of best evidence, is not plausible. Complainant has not supported the case of prosecution. All the remaining witnesses examined are the police witnesses and interested witness. It is also an admitted position that the official witnesses had not offered their personal search prior to searching the accused Khalid before the alleged recovery. These facts cast a serious doubt about the sincere efforts made by the IO to join the independent witnesses. Further, an order in writing to such witnesses can also be issued by the IO. However, in the present case it surfaces that such mandatory provisions have not been complied by the IO for the reasons unexplained. There is failure on the part of investigation agency as well as IO to join public witness. These factors points that the investigation of the case is not conducted by the IO in the proper manner.
21. Further, it is also pertinent to note that the seal, used for seizure of the weapon in question also was not handed over to any independent person and even no efforts were made by the IO to hand over the same, after use, to any STATE VS. PARVEZ @ PAPPAN & ANR. FIR NO. 537 / 2010 PS BHAJANPURA PAGE NO. 14 / 16 PANKAJ RAI Digitally signed by PANKAJ RAI Date: 2024.12.04 15:44:28 +0530 independent person. The importance of the seal not being handed over to some independent person in such cases has been laid down by Hon'ble Delhi High Court in Safiullah v. State 1993 (1) RCR (Criminal) 622 wherein it was held that:-
"10. The seals after use were kept by the police officials themselves. Therefore the possibility of tampering with the contents of the sealed parcel cannot be ruled out. It was very essential for the prosecution to have established from stage to stage the fact that the sample was not tampered with. .....Once a doubt is created in the preservation of the sample the benefit of the same should go to the accused."
22. Having noted the legal position as aforesaid with regards the crucial nature of the task of the seal being handed over to any independent person, in the present case it is seen that the case property was lying in the Malkhana of the same police station, where police officials having the possession of seal were posted. As such therefore, there were ample opportunities for tampering with the case property. If that be so, the inherent veracity of the claims as put forth by the state gets clouded, with the benefit of doubt enuring to the advantage of the accused.
23. In view of the discussion made above and taking into account the above discussed lapses in the investigation of the case, serious doubts are casted on the alleged recovery from possession of any of the accused persons and benefit of same deserves to be given to accused persons. Accordingly, they deserve to be acquitted for offence u/s 25 Arms Act as well.
24. To sum up, both the accused persons namely, Parvez @ Pappan and Khalid are hereby acquitted from the charge of offence punishable under section 382 IPC as well as from the charge under section 25 Arms Act.
STATE VS. PARVEZ @ PAPPAN & ANR. FIR NO. 537 / 2010 PS BHAJANPURA PAGE NO. 15 / 16 PANKAJ RAI Digitally signed by PANKAJ RAI Date: 2024.12.04 15:44:36 +0530
25. The bail bonds, if any furnished by accused at the time of commencement of trial stands 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 off after expiration of period to assail this judgment and in case of appeal, as per the directions of Ld. Appellate Court.
File be consigned to record room after due compliance as per rules.
PANKAJ Digitally signed
by PANKAJ RAI
RAI Date: 2024.12.04
15:44:44 +0530
Announced in the (PANKAJ RAI)
Open Court on 04.12.2024 Judicial Magistrate First Class-01
NE, KKD Courts, Delhi
It is certified that this judgment contains sixteen (16) pages and each page bears my signature. PANKAJ Digitally signed by PANKAJ RAI Date: RAI 2024.12.04 15:44:50 +0530 (PANKAJ RAI) Judicial Magistrate First Class-01 NE, KKD Courts, Delhi STATE VS. PARVEZ @ PAPPAN & ANR. FIR NO. 537 / 2010 PS BHAJANPURA PAGE NO. 16 / 16