Delhi District Court
State vs . Shiv Shakti on 26 November, 2011
IN THE COURT OF SH. SAMAR VISHAL, METROPOLITAN MAGISTRATE05,
SOUTHEAST DISTRICT, NEW DELHI
STATE VS. Shiv Shakti
FIR NO: 310/04
P. S. Ambedkar Nagar
U/s 25 Arms Act
Unique ID no. 02403R0539772006
JUDGMENT
Sl. No. of the case and : 301/3 (11.1.2011)
Date of its institution : 3.9.2004
Name of the complainant : SI Naresh Solanki
Date of Commission of offence : 29.6.2004
Name of the accused : Shiv Shakti, S/o Sh. Kali Dass
Offence complained of : Section 25 Arms Act
Plea of accused : Not guilty
Case reserved for orders : 17.10.2011
Final Order : AQUITTED
Date of Judgment : 26.11.2011
BRIEF STATEMENT OF FACTS FOR THE DECISION:
State Vs. Shiv Shakti 1/1 FIR no. 310/04
1. This is the trial of the accused Shiv Shakti upon the police report filed by P.S. Ambedkar Nagar u/s 25 Arms Act.
2. The prosecution story is that on 29.6.2004 at about 8.20 pm accused was found in possession of one country made pistol (Katta) with two live cartridges of .315 bore in his house i.e at 2nd Floor, H.No. 17/448, DDA Flats, Madangir, New Delhi without any valid license in contravention of Notification of Delhi Administration and he thus thereby committed an offence punishable under Section 25 Arms Act.
3. After completing the formalities, the investigation was carried out in pursuance of which, the chargesheet u/s 25 Arms Act. The charge was framed against the accused u/ s 25 Arms Act to which he pleaded not guilty and claimed trial.
4. Thereafter, in order to prove its case, the prosecution has examined eight witnesses.
5. PW 1 is HC Pritam Singh who proved the FIR of the present case as Ex.PW1/A.
6. PW 2 is SI Suresh Kumar who deposed that he on 29.6.2004 was posted in Special Staff and at around 9.20 pm, the investigation of this case was handed over to him and he was directed to report at H.No. 17/448. He reached there and found SI Naresh Solanki alongwith SI Sanjiv, Ct. Vijay who handed over the custody of the accused as well as seizure memo alongwith katta and live cartridges. He later on, prepared site plan and State Vs. Shiv Shakti 2/2 FIR no. 310/04 arrested the accused vide memo Ex.PW2/B. He is the investigating officer of this case. He sent the katta to FSL, Rohini through HC Rajesh and after completion of the investigation filed the charge sheet.
7. PW 3 is HC Rajesh Kumar who acted as a transporter to convey the katta recovered in the present case with the seal of NKS to FSL.
8. PW 4 is SI Naresh Solanki who is the recovery witness of the katta and as per his deposition on 29.6.2004 he was Chowki Incharge of Saket. For investigation of FIR no. 575/04, PS Ambedkar Nagar at around 7 pm he alongwith Ct. Sanjiv, Ct. Ramesh and Ct. Vijay and some other police officials reached at 17/448 Second Floor, DDA Flats, Madangir where the accused Shiv Shakti was overpowered and interrogated and he disclosed that about the katta in the present case which was recovered at his instance from his bed, same was seized vide memo Ex.PW4/B. They then sent the rukka to the police station and got the FIR registered. The katta and the live cartridges were proved as Ex.P1, P2 and P3 respectively.
9. The next witness is SI Sanjeev Sharma who with PW 4 SI Naresh Solanki went to the house of the accused and as per his testimony the accused got recovered the katta and live cartridges from the head side of the bed beneath the pillow which was sealed with the seal of NKS and same were taken into possession vide memo Ex.PW4/B. Rukka State Vs. Shiv Shakti 3/3 FIR no. 310/04 was sent for registration of FIR.
10. PW 6 is HC Satish Kumar who proved the DD no. 12.
11. PW 7 is Sh. K.C. Vashishtha who proved the FSL report.
12. PW 8 is Sh. Anil Kumar Shukla, DCP who gave sanction for prosecution of accused u/s 39 of Arms Act.
13. After recording the evidence of this witness, the prosecution evidence was closed. The accused was examined under the provision of section 313 Cr.P.C. and all the incriminating evidence were put to him to which he answered as incorrect and has opted not to lead defence evidence.
14. I have heard the Ld. APP for State and counsel for accused and perused the record.
15. It is argued by the Ld. APP for State that the recovery of katta from the possession of the accused has been duly proved in this case. The DCP has proved his sanction, FSL report is duly proved and the cumulative effect of the evidence of the prosecution is that the case of the prosecution is proved beyond reasonable doubt.
16. On the other hand, it has been argued by Ld. Defence counsel that there are various anomalies in the case of the prosecution. There is an overwriting on the FIR at place Mark X. Place of recovery is residential colony, despite that no independent State Vs. Shiv Shakti 4/4 FIR no. 310/04 witnesses has been examined in the present case. The katta was recovered on the disclosure statement of the accused which is Mark A which is the secondary evidence. The katta was not recovered from the possession of the accused and was recovered from his bed and therefore, he cannot be said to be in possession of that katta.
17. Having dealt with the submissions advanced by both the sides, I proceed to adjudicate upon the most important question involved in the present case: whether the accused persons are guilty of the offence with which they are charged or not.
18. 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) acquirres, 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 certain premises. Section 35 reads as under:
"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 State Vs. Shiv Shakti 5/5 FIR no. 310/04 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."
19. 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
20. In a recent case reported as Paramjeet Singh @ Pamma Vs. State of Uttarakhand, 2011 CRI.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 State Vs. Shiv Shakti 6/6 FIR no. 310/04 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 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 State Vs. Shiv Shakti 7/7 FIR no. 310/04 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 Singh Rattan Singh Vs. State of Punjab, AIR 1957 SC 637, Hon'ble Court observed (Para 12):
"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."
Possession
21. 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 Vs. Anil Kumar Bhunja and others, AIR 1980 SC 52, to work out a completely logical and precise definition of "possession" uniformly applicable to all State Vs. Shiv Shakti 8/8 FIR no. 310/04 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 Vs. 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.
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 54 where also presumption is available to be drawn from possession of illicit articles. This position was highlighted in Madan Lal and anr. Vs. State of Himachal Pradesh, 2003 (6) SCALE 483.
22. In the judgment of Superintendent and Remembrancer of Legal Affairs, West Bengal Vs/ 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 State Vs. Shiv Shakti 9/9 FIR no. 310/04 "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 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 recognizing that 'possession' is not a purely legal concept but also a matter of fact: Salmond (12th Edition, pages 52) describes 'possession, in fact', as 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 State Vs. Shiv Shakti 10/10 FIR no. 310/04 possession of a firearm 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 recognized 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 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".
23. 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 State Vs. Shiv Shakti 11/11 FIR no. 310/04 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 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 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 17.9.96 when he handed it over to Miroo and Miroo handed it over to Chhaganlal because if it was not seized from Chhaganlal, the applicant 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 or knowledge 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 State Vs. Shiv Shakti 12/12 FIR no. 310/04 during the 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 pre condition for an offence under Section 25 (1) is the element of intention, consciousness or knowledge with which a person possess 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 we do not therefore venture to speculate thereon. In the view we State Vs. Shiv Shakti 13/13 FIR no. 310/04 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 of 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."
24. In Pabitar Singh Vs. State of Bihar, AIR 1972 SC 1899, while dealing with a question of the joint possession it was observed by the Apex Court that State Vs. Shiv Shakti 14/14 FIR no. 310/04 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. 498A 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 bed 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.
State Vs. Shiv Shakti 15/15 FIR no. 310/04
25. 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."
26. Now coming back to the facts of the present case when some police personnel in connection with some other case went to the house of the accused, he was arrested and he disclosed that there was one katta also in his house which is hidden beneath the pillow of his bed. I have gone through the disclosure statement in consequence of which this katta has been recovered. The disclosure statement is mark X and is a carbon copy of the document. It is clear that the original disclosure statement was never brought or proved on record. There is no reason why the secondary evidence be relied for relying on secondary evidence, the conditions of section 65 of the Indian Evidence Act should have State Vs. Shiv Shakti 16/16 FIR no. 310/04 to be fulfilled. Leaving aside this technical argument even if the contents of the disclosure statement is read as a whole, it simply says that he has placed the cash and the katta in his house and he can get it recovered. He has made certain other confessions which are not related to this case and are not relevant. In this disclosure statement, the place from where he got recovered the katta is not mentioned. It was one of the argument of defence counsel relying on the evidence of the witness PW 4 SI Naresh Solanki that he did not try to find out whether the house i.e 17/448 belongs to the accused or not. During the investigation, the investigating officer has not even bothered to find out the real owner or the possessor of this house from where this katta was recovered which means that on record it is also not proved that the house no. 17/448 from where the katta was recovered belongs or was in possession of the present accused. There is no evidence that the premises was occupied by the accused to fix criminal responsibility u/s 35 of the Arms Act as discussed above.
27. Not only this, there is also delay in sending the above articles to FSL. The katta was recovered on 29.6.2004. However, it was sent to FSL on 12.7.2004.
Delay in sending the recovered articles to the FSL
28. 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 State Vs. Shiv Shakti 17/17 FIR no. 310/04 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 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 14.12.1966. The prosecution is silent as to in whose custody the material objects were till 6.2.1967 ......................................." 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 1991 CAR 81 and Santa Singh Vs. State of Punjab, AIR 1956 SC 526, the Hon'ble Court 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 State Vs. Shiv Shakti 18/18 FIR no. 310/04 chemical analyst for testing was the same that was seized.
29. 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 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 falls short of being proved beyond reasonable doubt.
Absence of CFSL Form
30. In Desh Raj @ Dass V/s State, 83 (2ourt000) DLT 262, Hon'b'le court 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."
31. 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 be prepared and sealed by State Vs. Shiv Shakti 19/19 FIR no. 310/04 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 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 none of the prosecution witness testified that the CFSL Form was also prepared at the spot nor has 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 :
State Vs. Shiv Shakti 20/20 FIR no. 310/04
32. 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 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. 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 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 and the sketch of the country made pistol 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.
State Vs. Shiv Shakti 21/21 FIR no. 310/04 Handing Over the seal to the member of the Raiding Party:
33. In the judgment of Ramji Singh V/s State of Haryana 2007 (3) R.C.R. (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." PW4 SI Naresh Solanki deposed that the seal after use was handed over to SI Sanjeev Sharma . It is beyond comprehension as to why the seal was handed over to PW5 especially when the other family members were [resent in the house and State Vs. Shiv Shakti 22/22 FIR no. 310/04 the seal could be handed over to them till the deposition of the katta to FSL. While relying 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 Court 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.
34. One more discrepancy pointed out by counsel for accused in the FIR Ex.PW1/A is the overwriting by a different pen. This fact was admitted by the duty officer while he was under examination. He admitted that the the FIR Ex.PW1/A bears number as 910 at portion X and there is overwriting at portion X. He has also admitted that he changed the FIR no. 310 as his pen got struck. This does not seems to be plausible explanation.
35. 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 Shiv Shakti stands acquitted of the offence under Section 25 Arms Act, he has been charged with.
Announced in the open court (Samar Vishal)
on 26 November, 2011
th
Metropolitan Magistrate05,
South East, New Delhi
State Vs. Shiv Shakti 23/23 FIR no. 310/04