Delhi District Court
State vs . Ved Prakash on 10 October, 2011
IN THE COURT OF SH. HEM RAJ: METROPOLITAN MAGISTRATE:
(WEST)09:TIS HAZARI COURTS:DELHI
STATE Vs. VED PRAKASH
FIR No : 761/96
U/S : 25/54/59 ARMS ACT
P.S. : VIKAS PURI
1. Serial No. of the Case : 80/3/10
2. Unique ID No, of the : 02401R0086931998
3. Date of Commission of Offence : 29.12.1996
4. Date of institution of the case : 12.03.1998
5. Name of the complainant : SI Jagbir Singh
6. Name of accused & address : Ved Prakash
S/o Sh. Satish Chand Sharma
R/o Village Akhtiyar Pur, PS Sambhal,
District Muradabad, UP.
7. Offence complained : 25 Arms Act 1959.
8. Plea of Accused : Pleaded Not Guilty.
9. Final Order : Acquitted
10.Date of Final Order : 10.10.2011
J U D G M E N T
1 The case of the prosecution in a nutshell is that during the patrolling PW4 SI Jagbir Singh of PS Vikas Puri was present at near Sonia Cinema, Vikas Puri alongwith PW2 Ct. Raj Kumar, PW3 Ct. Satyawan, PW5 ASI Jeet Singh and PW8 SI Rajesh Kumar when at about 2 pm he received a secret information about FIR No. 761/1996 STATE V/s VED PRAKASH PAGE No.1/25 two boys sitting near Anand Kunj T point, Outer Ring Road having illegal weapons with them. On this information, PW2 prepared a raiding party and after disclosing the secret information to 34 passersby he asked them to join the raiding party but none agreed for the same and went away without divulging their names and addresses. Finding no other alternative, the raiding party reached at the spot at about 2:15 pm and the secret informer pointed out towards two boys who after seeing the police started running from there. PW4 SI Jagbir Singh alongwith the help of PW2 Ct. Rajkumar and PW8 SI Rajesh Kumar managed to apprehend accused Ved Prakash Sharma from whose casual search one country made pistol of 315 bore was recovered from his Right Dubb. Three live cartridges were also recovered from the right pocket of the pants of the accused. The sketch of the said country made pistol was prepared. It was wrapped into a piece of the cloth and the same was converted into a pullanda which was sealed with the seal of "JSG". One separate pullanda of three live cartridges was prepared which was also sealed with the seal of "JSG". The pullandas were given serial numbers 1 and 2 respectively. Both the pullandas were seized vide seizure memo Ex.PW2/B. The seal after use was handed over to Ct. Raj Kumar. Rukka Ex.PW4/A was prepared and it was sent to police station for registration of the FIR through Ct. Raj Kumar, upon which FIR Ex. PW1/A was registered. After the registration of the FIR the further investigation was carried out.
FIR No. 761/1996 STATE V/s VED PRAKASH PAGE No.2/25 2 After the completion of the investigation a charge sheet under section 25 Arms Act,1959 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 05.06.1998, charge for the offence under section 25 Arms Act,1959 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 ten witnesses.
4 PW1 HC Dharambir was the Duty Officer in this case who proved the FIR as Ex. PW1/A. He was cross examined by the accused. 5 PW2 Ct. Raj Kumar deposed that on 29.12.1996 he alongwith SI Jagbir Singh, Ct. Satyawan, ASI Jeet Singh and SI Rajesh Kumar was present at Sonia Cinema, near Anand Kunj T point, Outer Ring Road during the patrolling. At about 2 pm IO / SI Jagbir Singh received a secret information about two boys sitting at T point, Anand Kunj at Outer Ring Road. He further deposed that the secret information was disclosed by the IO to the public persons who were FIR No. 761/1996 STATE V/s VED PRAKASH PAGE No.3/25 requested to join the raiding party but none obliged. Further that at about 2:15 pm at the instance of secret informer, two boys were apprehended who tried to escape from the spot. Their names were revealed as Ved Prakash and Param Singh. On the formal search of the accused Ved Prakash one country made katta was recovered from his right dubb. He further deposed that khaka Ex.PW2/A was prepared. The katta was sealed in a pullanda. Further that three live cartridges were also recovered from the right pocket of the pants of accused Vd Prakash. The pullandas were sealed with the seal of "JSG". He took the rukka prepared by the IO to the PS and got the FIR registered. He proved the jamatalashi of accused as PW2/C. He further deposed that the other boy ran away from the spot and despite efforts he could not be traced. He correctly identified the accused in the Court. He also correctly identified the katta as Ex.P1 and the cartridges as Ex.P2 (colly). 6 The Ld. APP sought permission to crossexamine the witness on certain points. In the cross examination by Ld. APP he admitted that katta and cartridges were recovered in different pullandas which were given serial number 1 and 2 respectively. He further admitted that the seal after use was handed over to him. He was cross examined by the Ld. Counsel for the accused at length. 7 PW3 Ct. Satyawan was the member of the raiding party who FIR No. 761/1996 STATE V/s VED PRAKASH PAGE No.4/25 deposed on the similar lines what has been deposed by PW2 Ct. Raj Kumar and thus corroborated his testimony. He was not crossexamined by the accused at all. 8 PW4 SI Jagbir Singh was the IO of the case who also deposed on the similar lines what has been deposed by PW2 and PW2 and thus corroborated their testimonies. He was not crossexamined by the accused at all. 9 PW5 SI Jeet Singh was involved in the investigation in the raiding party. He also deposed on the similar lines what has been deposed by PW2 , PW3 and PW4 and thus corroborated their testimonies. He was not cross examined by the accused at all.
10 PW6 Ct. Surender deposed that on 09.05.1997 he took one sealed pullanda from the MHC(M) and deposited the same with FSL, Rohini, Delhi vide RC No.97/21. He was not cross examined by the accused. 11 PW7 ASI Bhoop Singh was the MHC(M) who deposed that on 29.12.1996 SI Jagbir Singh deposited two sealed pullandas with the seal of "JSG" vide entry no.2206. He proved the relevant extracts as Ex.PW7/A. He further deposed that on 09.05.1997 he send the sealed pullandas vide RC no.97/21 FIR No. 761/1996 STATE V/s VED PRAKASH PAGE No.5/25 through Ct. Surender Singh and that the personal search articles of the accused were also deposited and proved the entry of the same as Ex.PW7/B. He was not cross examined by the accused.
12 PW8 SI Rajesh Kumar was also involved in the investigation in the raiding party. He also deposed on the similar lines what has been deposed by PW2 , PW3, PW4 and PW5 and thus corroborated their testimonies. He was crossexamined by the Ld. Counsel for the accused.
13 PW9 examined as PW8 Inspector A.K. Upadhyay who proved the FSL Report as Ex.PW8/A. He deposed that he test fired one of the cartridges from the recovered katta. He correctly identified the pistol, fired cartridge as well as the live cartridges. He was crossexamined by the Ld. Counsel for the accused. 14 PW10 Rajesh Malik was the concerned DCP who granted sanction U/s 39 Arms Act. He proved the same as Ex.PW10/A. He was not cross examined by the accused.
15 In his statement under Section section 313 Cr.PC, the accused stated that he has been falsely implicated in the case by the police. He chose not FIR No. 761/1996 STATE V/s VED PRAKASH PAGE No.6/25 to lead any defence evidence.
16 I have heard the Ld. APP for the State, Sh. Kumar Avinash as well as Ld. Counsel Sh. Pradeep Huda on behalf of the accused. I have also gone through the oral and documentary evidence available on the record carefully. 17 Ld. APP for the State has submitted that the prosecution has been able to prove the guilt of accused beyond the reasonable doubt. He has further submitted 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.
18 On the other hand, the Ld. Defence Counsel Sh. Pradeep Hudda submitted that no independent public witness has been joined in the investigation and in the absence of their testimonies, the police witnesses cannot be relied upon. 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 as the delay has not been explained by 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 FIR No. 761/1996 STATE V/s VED PRAKASH PAGE No.7/25 much as, the prosecution has not proved the FSL form and the relevant extracts of the register no. 21. 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 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. 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. 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. FIR No. 761/1996 STATE V/s VED PRAKASH PAGE No.8/25 Standard of Proof 20 In a recent case reported as Paramjeet Singh @ Pamma Vs. 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, FIR No. 761/1996 STATE V/s VED PRAKASH PAGE No.9/25 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 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."
FIR No. 761/1996 STATE V/s VED PRAKASH PAGE No.10/25 Beyond Reasonable Doubt 21 In the judgment of Sucha Singh and Another Vs. State of Punjab, 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 FIR No. 761/1996 STATE V/s VED PRAKASH PAGE No.11/25 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 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.
22 After considering evidence on the record I am on the considered opinion that the prosecution has miserably failed to prove the case against the FIR No. 761/1996 STATE V/s VED PRAKASH PAGE No.12/25 accused beyond the reasonable doubt for the following reasons: A Absence of Independent Public Witnesses:
In the present case the prosecution has not examined any independent public witnesses despite their availability which throws doubt on the genuineness of the prosecution case. As per testimony of the prosecution witnesses it has been sought to be shown by the prosecution that no public person joined the investigation. None of them has been cited as witness in this case. It implies that the public persons were present at the spot. Now as per material on record and the testimonies of prosecution witnesses it is clear that no serious attempt was made by the concerned police officials i.e, the IO of the case to get independent public persons to join the police proceedings of investigation despite availability of such witnesses. In circumstances like the present one, if members of the public had in reality refused to assist the members of the police party, they could have served the said passerby/public witnesses with a notice in writing to join the police proceedings. At least in these facts and circumstances of the case, in my opinion, the police officials concerned must have asked the passersby/public persons available at the spot of the arrest of the accused by serving them a notice in writing and further in case of their refusal, the concerned police people must have taken action against them under Section 187 IPC. Facts and circumstances FIR No. 761/1996 STATE V/s VED PRAKASH PAGE No.13/25 of the case suggests that no sincere efforts were made by police officials concerned to join independent public witnesses.
AA In case law reported as " Anoop Joshi Vs. State" 1992(2) C.C. Cases 314(HC), High Court of Delhi had observed as under: "18. It is repeatedly laid down by this Court in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evidence that no such sincere efforts have been made, particularly when we find that shops were open and one or two shopkeepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant.
In case any of the shopkeepers had declined to join the raiding party, the police could have later on taken legal action against such shopkeepers because they could not have escaped the rigors of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC".
AB. In a case law reported as "Roop Chand Vs. The State of Haryana" 1999 (1) C.L.R. 69, the Punjab & Haryana High Court held as under: "3. I have heard the learned counsel for the parties and gone through the evidence with their help. The recovery of illicit liquor was effected from the possession of the petitioner FIR No. 761/1996 STATE V/s VED PRAKASH PAGE No.14/25 during noon time and it is in the evidence of the prosecution witnesses that some witnesses form the public were available and they were asked to join the investigation. The explanation furnished by the prosecution is that the independent witnesses were asked to join the investigation but they refused to do so on the ground that their joining will result into enmity between them and the petitioner".
"4. It is well settled principle of the law that the Investigating Agency should join independent witnesses at the time of recovery of contraband articles, if they are available and their failure to do so in such a situation casts a shadow of doubt on the prosecution case. In the present case also admittedly the independent witnesses were available at the time of recovery but they refused to associate themselves in the investigation. This explanation does not inspire confidence because the police officials who are the only witnesses examined in the case have not given the names and addresses of the persons contacted to join it is a very common excuse that the witnesses from the public refused to join the investigation. A police officer conducting investigation of a crime is entitled to ask anybody to join the investigation and on refusal by a person from the public the Investigating Officer can take action against such a person under the law. Had it been a fact that the witnesses from the public had refused to join the investigation, the Investigating Officer must have proceeded against them under the relevant provisions of law. The failure to do so by the police officer is suggestive of the fact that the explanation for nonjoining the witnesses from the public is an after thought and is not worthy of credence. All these facts FIR No. 761/1996 STATE V/s VED PRAKASH PAGE No.15/25 taken together make the prosecution case highly doubtful". AC. In case law reported as "Sadhu Singh Vs. State of Punjab" 1997(3) Crime 55 the Punjab & Haryana High Court had observed as under: "5. In a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubts. It is for the prosecution to travel the entire distance from 'may have' to 'must have'. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused".
"6. In the present case, the State examined two witnesses namely, Harbans Singh ASI who appeared as PW1 and Kartar Singh, PW2. Both the witnesses supported the prosecution version in terms of the recovery of opium from the person of the petitioner, but there was no public witness who had joint. It is not necessary in such recoveries that public witnesses must be joined, but attempt must be made to join the public witnesses. There can be cases when public witnesses are reluctant to join or are not available. All the same, the prosecution must show a genuine attempt having been made to join a public witness or that they were not available. A stereo type statement of nonavailability will not be sufficient particularly when at the relevant time, it was not difficult to procure the service of public witness. This reflects adversely on the prosecution version".
FIR No. 761/1996 STATE V/s VED PRAKASH PAGE No.16/25 Delay in sending the recovered articles to the FSL B. 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 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 FIR No. 761/1996 STATE V/s VED PRAKASH PAGE No.17/25 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.
BA. The prosecution story is that the firearm and the live cartridges were recovered on 29/12/96 which were sealed on the very same day. As per the testimony of PW7 ASI Bhoop Singh reveals that the same were also deposited lin the Malkhana on the same day. However, he alongwith PW6 have deposed that the case property was sent to FSL on 09/05/1997. There is an inordinate delay of almost five months 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. PW4 SI J agbir Singh, the IO of the case deposed that he sent the case property through PW7 Ct. Surender Singh on 1/5/1997. Hence, in my considered opinion, this inordinate delay of almost five months in sending the case property to the FSL has proved to FIR No. 761/1996 STATE V/s VED PRAKASH PAGE No.18/25 be 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. Furthermore, the FSL report EX PW8/A would show that the case property was received in the FSL on 9/5/1997 which is contrary to the oral testimonies of the prosecution witnesses. 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. Accordingly I hold that there is a major contradictions in the oral and the documentary evidence of the prosecution which rendered the case of the prosecution as unbelievable, unworthy of any credence and unrelieable.
Absence of CFSL Form: Link Evidence C. 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." In Lalman Vs. State 75(1998) DLT 224, FIR No. 761/1996 STATE V/s VED PRAKASH PAGE No.19/25 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 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 there is nothing in the evidence to show that any FSL form was prepared at the spot or was sent to the FSL alongwith the sample seals for the comparison. None of the witnesses including the IO has testified that the CFSL Form was also prepared at the spot. PW7 MHC(M) ASI Bhoop Singh though deposed that the case property was sent to the FSL through PW6 Ct. Surender but nothing was deposed by them FIR No. 761/1996 STATE V/s VED PRAKASH PAGE No.20/25 about the sending the FSL form also to the CFSL. As such, 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:
D. 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. 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 FIR No. 761/1996 STATE V/s VED PRAKASH PAGE No.21/25 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 PW2/B and the sketch of the country made pistol Ex PW2/A 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 on them. 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:
E. 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 FIR No. 761/1996 STATE V/s VED PRAKASH PAGE No.22/25 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." As per the oral testimonies of the prosecution witnesses the seal after use was handed over to PW2 Ct. Raj Kumar. It is beyond comprehension as to why the seal was handed over to him especially when the public witnesses were present near the spot. 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 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". Hence, in my considered opinion, when the seal was kept by one of the members of the raiding party, therefore, there was every opportunity for the prosecution to misuse the seal to temper with the case property. In view of the propositions of the law laid down FIR No. 761/1996 STATE V/s VED PRAKASH PAGE No.23/25 by the aforesaid judgments, I am not inclined to believe the evidence led by the prosecution in this regard as the same is not believable.
CONTRADICTIONS F. Further more, there are material contradictions in oral and the documentary evidence led by the prosecution. On the one hand PW4 SI Jagbir Singh deposed that the case property was send to FSL, Malviya Nagar through Ct. Surender whereas PW6 Ct. Surender contradicted him by saying that he took the case property FSL, Rohini. Further PW2 Raj Kumar deposed that two boys were apprehended at the spot whereas PW3 Ct. Satyawan deposed that second boy managed to flee from the spot. He further deposed that one knife was recovered from the possession of the second accused for which separate proceedings were conducted. However, the oral testimonies did not find any support from the documentary evidence on the record in as much as there is nothing in the rukka Ex.PW4/A regarding the same. Moreover, Ct. Satyawan deposed that the sketch of cartridges was also made by the IO but no sketch of the cartridges is available on the record which belies his deposition. As per the case of the prosecution, the katta was recovered from the right dub of the accused and the cartridges were recovered from the right side pocket of the pants of the accused, however, SI Jeet Singh deposed that both were recovered from the right FIR No. 761/1996 STATE V/s VED PRAKASH PAGE No.24/25 side pocket of the pants of the accused. The aforesaid oral and documentary evidence are antitheses to each other which casts a reasonable doubt that either the witnesses have not deposed correctly or that they were not present at the time of investigation or that the investigation was not carried out in the manner as purported to have been shown by the prosecution. Be that as it may, in my considered opinion, the same has created a reasonable doubt in the story of the prosecution and the benefit thereof must be given to the accused, which I have accordingly extend to the accused.
23 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 Ved Prakash stands acquitted of the offence under Section 25 Arms Act, he has been charged with. He be set at liberty forthwith. His earlier B/Bs are canceled. S/B are discharged. However, his bail bonds furnished for the purpose of Section 437A Cr.P.C. are extended for a period of six months from today. File be consigned to Record Room.
ANNOUNCED IN THE OPEN COURT (HEM RAJ)
TODAY i.e. ON 10 OCTOBER, 2011 MM:09:WEST:THC
TH
10.10.2011
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FIR No. 761/1996 STATE V/s VED PRAKASH PAGE No.25/25