Delhi District Court
State vs 1. Nooruddin (Abated) on 19 May, 2023
IN THE COURT OF SH. SANJAY SHARMA-II : ADDL. SESSIONS JUDGE-03,
(CENTRAL): TIS HAZARI COURTS, DELHI
SC No. : 27730/2016
FIR No. : 111/2012
Under Section : 399/402/34 IPC
PS : Chandni Mahal
Case ID : DLCT01-001188-2014
State Versus 1. Nooruddin (abated)
S/o Mr. Moinuddin
R/o H. No. 99, Chhatta Lal
Miyan, Chandni Mahal
Delhi.
2. Nafees (on bail)
S/o Mr. Rashid
R/o H. No. 1532
Pahari Darjiyan, Chitli Qabar
Chandni Mahal, Delhi
3. Mohd. Gulfam (abated)
S/o Mr. Islamuddin
R/o H. No. 89, Chhatta Lal
Miyan, Chandni Mahal, Delhi
4. Mohd. Islam (abated)
S/o Mr. Abdul Latif
R/o H. No. 466, Chhatta Lal
Miyan, Chandni Mahal, Delhi
5. Mohsin (on bail)
S/o Mr. Mohd. Akhlaq
R/o H. No. 494, Gali Bahar
Wali, Chhatta Lal Miyan
Darya Ganj, Delhi
6. Akram (P.O.)
S/o Mr. Nasiruddin
R/o H. No. 407, Chhatta Lal
Miyan, Chandni Mahal, Delhi
Date of Institution : 05.02.2015
Date of Arguments : 15.05.2023
Date of Judgment : 19.05.2023
JUDGMENT
FIR No. 111/2012 State vs. Nooruddin & Ors. Page No. 1 of 30 INTRODUCTION:
1. The case of the prosecution is that on 26.07.2012 at about 10.50 p.m. on 1st Floor of H. No. 294, Gali Sujan Rai, Chandni Mahal, Delhi, within jurisdiction of PS Chandni Mahal, the accused persons were making preparation for committing dacoity. Thus, they are prosecuted for offence punishable under Section 399 of 'The Indian Penal Code, 1860' (In short 'IPC').
2. The case of the prosecution is that the accused persons assembled for the purpose of committing dacoity. They are prosecuted for offence punishable under Section 402 IPC.
3. The case of the prosecution is that illegal arms and ammunitions were recovered from Nooruddin, Nafees, Mohsin, Mohd. Gulfam and Mohd. Islam. Thus, they are prosecuted for offence punishable under Section 25 of 'The Arms Act, 1959'. CHARGE-SHEET:
4. The case of the prosecution is that on 26.07.2012, PW-12 SI Ram Niwas alongwith PW-11 Ct. Gagan, while patrolling, received a secret information near Turkman Gate that 5-6 persons would assemble in an under construction house in Gali Sujan Rai for planning to commit dacoity from ATM. PW- 12 SI Ram Niwas alongwith PW-11 Ct. Gagan and the secret informer reached PS Chandni Mahal. He produced the secret informer before SHO, PS Chandni Mahal who satisfied himself regarding credibility of the information. He discussed the matter with ACP, Darya Ganj. Thereafter, he directed PW-12 SI Ram Niwas to take appropriate action. PW-12 SI Ram Niwas constituted a reading team comprising PW-1 HC Shyam Sunder, PW-2 HC Rakesh, PW-3 Ct. Rinku, PW-4 Ct. Praveen, PW-9 Ct.
Jag Pravesh, PW-10 Ct. Amarjit, PW-11 Ct. Gagan and secret informer and proceeded to Gali Sujan Rai, Chandni Mahal, Delhi FIR No. 111/2012 State vs. Nooruddin & Ors. Page No. 2 of 30
5. On 26.07.2012 at about 10.50 p.m., PW-12 SI Ram Niwas alongwith raiding team reached at T-point, Gali Sujan Rai. He requested 2-3 passers-bye to join the proceedings. However, they proceeded on their way after disclosing reasonable excuses without disclosing their names and addresses. He briefed the raiding team. He instructed PW-1 HC Shyam Sunder, who was in civil clothes, to overhear conversation while standing outside the room of the said house. He further instructed him to signal him by placing his hand over his head, if the accused persons were planning for dacoity.
6. On 26.07.2012 at about 11.05 p.m., raiding team had taken position on 1st floor of the said house. PW-1 HC Shyam Sunder positioned himself near door of the room. At about 11.20 p.m., he signaled while placing his hand over his head. PW-12 SI Ram Niwas instructed the raiding team to enter into the said room. PW-1 HC Shyam Sunder pointed towards the accused, namely, Nooruddin. PW-1 HC Shyam Sunder stated that the accused, namely, Nooruddin alongwith the other members was planning to commit dacoity in Axis Bank, Darya Ganj, Delhi and the accused, namely, Nooruddin was giving instructions to other members.
7. PW-3 Ct. Rinku apprehended the accused, namely, Nooruddin. PW-12 SI Ram Niwas conducted his cursory search and recovered a 'country-made pistol' from right dub of his trousers and 'one live cartridge' from right pocket of his trousers and on checking, 'country made pistol' was found loaded with 'one live cartridge'. After taking measurements, PW-12 SI Ram Niwas prepared sketch of recovered 'country-made pistol' and 'two live cartridges' Ex.PW1/A. FIR No. 111/2012 State vs. Nooruddin & Ors. Page No. 3 of 30
8. PW-12 SI Ram Niwas kept 'country-made pistol' Ex.P5 and 'two live cartridges' Ex.P6 in a piece of cloth and converted it into a parcel and sealed it with his seal having impression 'RNY' and seized it vide seizure memo Ex.PW1/B.
9. PW-2 HC Rakesh Kumar apprehended the accused, namely, Mohd. Gulfam. PW-12 SI Ram Niwas conducted his cursory search and recovered a 'country-made pistol' from right dub of his trousers. On checking, it was found loaded with 'four live cartridges'. After taking measurements, PW-12 SI Ram Niwas prepared sketch of 'country-made pistol' and 'four live cartridges' Ex.PW1/C. He kept 'country-made pistol' Ex.P1 and 'four live cartridges' Ex.P2 in a piece of cloth and converted it into a parcel and sealed it with his seal having impression 'RNY' and seized it vide seizure memo Ex.PW1/D.
10. PW-9 Ct. Jag Pravesh apprehended the accused, namely, Mohd. Islam. PW-12 SI Ram Niwas conducted his cursory search and recovered a 'country-made pistol' from right dub of his trousers. On checking, it was found loaded with 'one live cartridge'. After taking measurements, PW-12 SI Ram Niwas prepared sketch of 'country-made pistol' and 'one live cartridge' Ex.PW1/E. He kept 'country-made pistol' Ex.P3 and 'one live cartridge' Ex.P4 in a piece of cloth and converted it into a parcel and sealed it with his seal having impression 'RNY' and seized it vide seizure memo Ex.PW1/F.
11. PW-4 Ct. Praveen Kumar apprehended the accused, namely, Nafees. PW-12 SI Ram Niwas conducted his cursory search and recovered a 'button actuated knife' from left dub of his trousers. After taking measurements, PW-12 SI Ram Niwas prepared sketch of 'button actuated knife' Ex.PW1/G. FIR No. 111/2012 State vs. Nooruddin & Ors. Page No. 4 of 30
12. PW-12 SI Ram Niwas kept 'button actuated knife' Ex.P8 in a piece of cloth and converted it into a parcel and sealed it with his seal having impression 'RNY' and seized it vide seizure memo Ex.PW1/H.
13. PW-10 Ct. Amarjit apprehended the accused, namely, Mohsin. PW-12 SI Ram Niwas conducted his cursory search and recovered a 'knife' from right dub of his trousers. After taking measurements, PW-12 SI Ram Niwas prepared sketch of 'knife' Ex.PW1/I. He kept 'knife' Ex.P9 in a piece of cloth and converted it into a parcel and sealed it with his seal having impression 'RNY' and seized it vide seizure memo Ex.PW1/J.
14. PW-11 Ct. Gagan apprehended the accused, namely, Akram. PW-12 SI Ram Niwas conducted his cursory search and recovered a 'plastic rope', measuring around 8 feet, tied around his waist. After taking measurements, PW-12 SI Ram Niwas kept 'plastic rope' Ex.P7 in a piece of cloth and converted it into a parcel and sealed it with his seal having impression 'RNY' and seized it vide seizure memo Ex.PW1/K.
15. PW-12 SI Ram Niwas filled FSL Forms qua recovered country made pistols and cartridges and handed over seal after use to PW-1 HC Shyam Sunder.
16. PW-12 SI Ram Niwas recorded statement of PW-1 HC Shyam Sunder that the accused, namely, Nooruddin was giving instruction to the accused, namely, Mohd. Islam and Mohd. Gulfam to overpower guard. He was giving instruction to the accused, namely, Nafees to keep vigil on ATM from outside. He was giving instruction to the accused, namely, Mohsin to keep vigil in the street while armed with a knife and instructing the accused, namely, Akram to tie the guard.
FIR No. 111/2012 State vs. Nooruddin & Ors. Page No. 5 of 30
17. PW-12 SI Ram Niwas made endorsement for registration of case under Section 399/402 IPC and 25 Arms Act Ex.PW12/A.
18. On 27.07.2012 at about 03.00 a.m., PW-12 SI Ram Niwas handed over rukka to PW-1 HC Shyam Sunder for being taken to PS Chandni Mahal for registration of case.
19. On 27.07.2012 at about 03.20 a.m., PW-6 HC Kanwar Sain, Duty Officer, PS Chandni Mahal, on receipt of rukka from PW-1 HC Shyam Sunder, registered FIR No. 111/2012 under Section 399/402/34 IPC and 25 Arms Act Ex.PW6/A. He assigned further investigation to PW-13 SI Balwant Singh and handed over original rukka and a copy of FIR for being given to PW-13 SI Balwant Singh.
20. On 27.07.2012 at about 05.20 a.m, PW-13 SI Balwant Singh alongwith PW-1 HC Shyam Sunder, on receipt of original rukka and a copy of FIR, reached at the place of incident i.e H. No. 294, 1st Floor, Gali Sujan Rai, Chandni Mahal, Delhi where PW-12 SI Ram Niwas handed him over sketches, seizure memos, sealed parcels and and the accused persons.
21. PW-13 SI Balwant Singh prepared site plan of the place of incident Ex.PW12/B at the instance of PW-12 SI Ram Niwas.
22. On 27.07.2012 at about 05.30 a.m. on 1st Floor of H. No. 294, Gali Katra Sujan Rai, Chandni Mahal, Delhi, PW-13 SI Balwant Singh arrested the accused, namely, Nooruddin vide arrest memo Ex.PW1/L, conducted his personal search vide memo Ex.PW3/A and recorded his disclosure statement Ex.PW3/B. FIR No. 111/2012 State vs. Nooruddin & Ors. Page No. 6 of 30
23. PW-13 SI Balwant Singh arrested the accused, namely, Mohd. Islam vide arrest memo Ex.PW1/M, conducted his personal search vide memo Ex.PW9/A and recorded his disclosure statement Ex.PW9/B.
24. On 27.07.2012 at about 05.40 a.m. on 1st Floor of H. No. 294, Gali Katra Sujan Rai, Chandni Mahal, Delhi, PW-13 SI Balwant Singh arrested the accused, namely, Mohd. Gulfam vide arrest memo Ex.PW1/N, conducted his personal search vide memo Ex.PW2/A and recorded his disclosure statement Ex.PW2/B.
25. On 27.07.2012 at about 05.45 a.m. on 1st Floor of H. No. 294, Gali Katra Sujan Rai, Chandni Mahal, Delhi, PW-13 SI Balwant Singh arrested the accused, namely, Nafees vide arrest memo Ex.PW1/O, conducted his personal search vide memo Ex.PW4/A and recorded his disclosure statement Ex.PW4/B.
26. On 27.07.2012 at about 05.50 a.m. on 1st Floor of H. No. 294, Gali Katra Sujan Rai, Chandni Mahal, Delhi, PW-13 SI Balwant Singh arrested the accused, namely, Mohsin vide arrest memo Ex.PW1/P, conducted his personal search vide memo Ex.PW10/A and recorded his disclosure statement Ex.PW10/B.
27. On 27.07.2012 at about 05.55 a.m. on 1st Floor of H. No. 294, Gali Katra Sujan Rai, Chandni Mahal, Delhi, PW-13 SI Balwant Singh arrested the accused, namely, Akram vide arrest memo Ex.PW1/Q, conducted his personal search vide memo Ex.PW13/A and recorded his disclosure statement Ex.PW13/B.
28. PW-13 SI Balwant Singh deposited the case property in police malkhana.
29. On 22.08.2012, PW-8 Ct. Neeraj Kumar deposited 3 sealed parcels containing firearms and ammunition with FSL, Rohini, Delhi vide acknowledgement Mark PW8/2.
FIR No. 111/2012 State vs. Nooruddin & Ors. Page No. 7 of 30
30. On examination, PW-5 Mr. V.R. Anand, Assistant Director (Ballistics), FSL, Rohini, Delhi given opinion that pistols 'Ex.P1', 'Ex.P3' and 'Ex.P5' and cartridges 'Ex.P2', 'Ex.P4' and 'Ex.P6' are firearms and ammunitions under Arms Act, 1959, vide FSL report Ex.PW5/A.
31. On 19.03.2014, PW-7 Dr. Ashok Malik, Addl. DCP, Central District, Delhi given sanction under Section 39 of 'The Arms Act, 1959' for prosecution of the accused persons, namely, Nooruddin, Mohd. Gulfam and Mohd. Islam for committing offence under Section 25 of 'The Arms Act, 1959', vide sanction Ex.PW7/A.
32. The accused, namely, Nafees and Mohsin were in conscious possession of knives in breach of Notification dated 29.10.1980 Ex.PW13/C.
33. On completion of investigation, the accused persons were charge-sheeted under Section 399 and 402 IPC. The accused persons, namely, Nooruddin, Nafees, Mohsin, Mohd. Gulfam and Mohd. Islam were also charged for offence under Section 25 of 'The Arms Act, 1959'.
COMMITTAL PROCEEDING:
34. Vide order dated 30.01.2015, the jurisdictional Magistrate committed the case to the Court of Session. CHARGE:
35. On appraisal of material on record, the accused persons were charged under Section 399 and 402 IPC. The accused persons, namely, Nooruddin, Nafees, Mohsin, Mohd. Gulfam and Mohd. Islam were also charged under Section 25 of 'The Arms Act, 1959'. They pleaded not guilty and claimed trial.
FIR No. 111/2012 State vs. Nooruddin & Ors. Page No. 8 of 30 PROSECUTION EVIDENCE:
36. During trial, the prosecution examined 13 witnesses as under:
The witnesses Description of the witnesses PW-1 HC Shyam Sunder Member of raiding team / recovery witness PW-2 HC Rakesh Kumar Member of raiding team / recovery witness PW-3 Ct. Rinku Kumar Member of raiding team / recovery witness PW-4 Ct. Praveen Kumar Member of raiding team / recovery witness PW-5 Mr. V.R. Anand Proved FSL report PW-6 ASI Kanwar Sain Duty Officer, PS Chandni Mahal PW-7 Dr. Ashok Malik Proved sanction under Section 39 of 'The Arms Act, 1959' PW-8 HC Neeraj Kumar Deposited 3 sealed parcels in FSL PW-9 HC Jag Pravesh Member of raiding team / recovery witness PW-10 HC Amarjit Member of raiding team / recovery witness PW-11 Ct. Gagan Member of raiding team / recovery witness PW-12 Insp. Ram Niwas 1st Investigating Officer PW-13 SI Balwant Singh 2nd Investigating Officer STATUS OF THE ACCUSED NOORUDDIN, MOHD.
GULFAM, MOHD. ISLAM AND AKRAM:
37. During trial, the accused, namely, Nooruddin, Mohd. Gulfam and Mohd. Islam expired and proceedings against them were abated, vide orders dated 19.03.2019, 17.12.2020 and 22.10.2021 respectively.
38. The accused, namely, Akram was declared proclaimed offender on 12.04.2022.
EXAMINATION OF THE ACCUSED PERSONS:
39. Incriminating circumstances appearing in evidence were explained to the accused persons, Nafees and Mohsin, as required under Section 313 Cr.P.C. They denied each and every circumstance appearing in evidence against them. They stated that police officials falsely implicated them and planted arms and ammunitions upon them. They pleaded innocence. FIR No. 111/2012 State vs. Nooruddin & Ors. Page No. 9 of 30 APPEARANCE:
40. I have heard arguments of Mr. Amit Dabas, Ld. Addl. PP for the State and Mr. Saleem Ahmed, Advocate for the accused persons and perused written arguments. CONTENTIONS OF THE PROSECUTION:
41. Ld. Addl. PP for the State contended that the prosecution examined members of the raiding team. He contended that the members of raiding team unequivocally deposed that the accused persons were apprehended from an unoccupied under-construction house alongwith arms and ammunitions while making preparation for committing dacoity in Axis Bank, Darya Ganj, Delhi. He contended that the prosecution witnesses categorically deposed regarding recovery of firearms, ammunitions, knives and a rope from the accused persons. He contended that the prosecution witnesses identified firearms, ammunitions, knives and a rope recovered from the accused persons. He contended that the prosecution witnesses had no enmity with the accused persons. He contended that evidence of the prosecution witnesses is credible and reliable. He contended that there is no contradiction, inconsistency or infirmity in evidence of the prosecution witnesses. He contended that the prosecution has proved recovery of firearms and ammunitions, knives and a rope from the accused persons. He contended that FSL report Ex.PW5/A proved that arms and ammunition, as defined in 'The Arms Act, 1959', were recovered from the accused persons. He contended that the accused persons have not given any explanation regarding their presence in a secluded place alongwith arms and ammunitions. He contended that the prosecution proved sanction Ex.PW7/A for prosecution under section 39 of 'The Arms Act, 1959'.
FIR No. 111/2012 State vs. Nooruddin & Ors. Page No. 10 of 30
42. Ld. Addl. PP for the State contended that PW-12 SI Ram Niwas made effort to associate independent witness. He contended that non-association of any public witness with raiding team cannot be a ground to discard otherwise credible evidence of the prosecution witnesses. He contended that evidence of the prosecution witnesses cannot be doubted on the ground that they are police officials in the absence of any infirmity in their evidence. He contended that the accused persons were making preparation to commit dacoity and they assembled for purpose of committing dacoity and therefore, they are liable to be held guilty under Section 399 and 402 IPC. He contended that the accused persons, namely, Nafees and Mohsin were found in conscious possession of knives in breach of Notification dated 29.10.1980 Ex.PW13/C and therefore, they are also liable to be held guilty for committing offence under section 25 of 'The Arms Act, 1959' for possessing arms without license in breach of Section 4 of 'The Arms Act, 1959'. CONTENTIONS OF THE DEFENCE:
43. Mr. Saleem Ahmed, Ld. Defence Counsel contended that there are material contradictions in the evidence of the prosecution witnesses. He contended that there is no public witness to search and seizure proceedings. He contended that the prosecution has failed to adduce credible evidence to prove that the accused persons were present in the said house or they assembled for making preparation for committing dacoity or they were making planning for committing dacoity or they were apprehended with arms and ammunitions. He contended that the accused persons were falsely implicated. He contended that the prosecution failed to prove its case beyond doubt.
FIR No. 111/2012 State vs. Nooruddin & Ors. Page No. 11 of 30 LAW:
44. Statutory provisions applicable to this case are, as under:
"399. Making preparation to commit dacoity.
-Whoever makes, any preparation for committing dacoity, shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine."
"402. Assembling for purpose of committing dacoity. -Whoever, at any time after the passing of this Act, shall be one of five or more persons assembled for the purpose of committing dacoity, shall be punished with rigorous imprisonment for a term which may extend to seven years, and shall also be liable to fine."
45. In order to sustain a charge under section 399 IPC, the prosecution is required to prove the following ingredients:
(i) Accused persons were 5 or more in number;
(ii) They were making a preparation;
(iii) The preparation was for committing dacoity.
46. The essential ingredients of offence under section 402 IPC are as follows:
(i) There was an assembly of 5 or more persons;
(ii) The purpose of assembly was to commit dacoity;
(iii) Accused was a member of the assembly.
47. Therefore, the prosecution has to prove that the accused persons assembled in a room on 1 st floor of an under- construction house in Gali Sujan Rai, Chandni Mahal, Delhi and they were making preparation to commit dacoity and further, the purpose of assembling was to commit dacoity. BURDEN OF PROOF:
48. It is a cardinal principle of criminal jurisprudence that the burden of proof is always on the prosecution and the accused is presumed to be innocent unless proved guilty.
FIR No. 111/2012 State vs. Nooruddin & Ors. Page No. 12 of 30
49. In Bhagwan Nagannath Markad and Others vs. State of Maharashtra, (2016) 10 SCC 537, Hon'ble Supreme Court of India held, as under:
"18. It is accepted principle of criminal jurisprudence that the burden of proof is always on the prosecution and the accused is presumed to be innocent unless proved guilty. The prosecution has to prove its case beyond reasonable doubt and the accused is entitled to the benefit of the reasonable doubt. The reasonable doubt is one which occurs to a prudent and reasonable man. Section 3 of the Evidence Act refers to two conditions-(i) when a person feels absolutely certain of a fact-"believes it to exist", and (ii) when he is not absolutely certain and thinks it so extremely probable that a prudent man would, under the circumstances, act on the assumption of its existence. The doubt which the law contemplates is not of a confused mind but of prudent man who is assumed to possess the capacity to "separate the chaff from the grain". The degree of proof need not reach certainty but must carry a high degree of probability."
50. In Ashish Batham vs. State of M.P., (2002) 7 SCC 317, Hon'ble Supreme Court of India held, as under:
"8. Realities or truth apart, the fundamental and basic presumption in the administration of criminal law and justice delivery system is the innocence of the alleged accused and till the charges are proved beyond reasonable doubt on the basis of clear, cogent, credible or unimpeachable evidence, the question of indicating or punishing an accused does not arise, merely carried away by the heinous nature of the crime or the gruesome manner in which it was found to have been committed. Mere suspicion, however strong or probable it may be is no effective substitute for the legal proof required to substantiate the charge of commission of a crime and graver the charge is, greater should be the standard of proof required. Courts dealing with criminal cases at least should constantly remember that there is a long mental distance between "may be true" and "must be true"
and this basic and golden rule only helps to maintain the vital distinction between "conjectures" and "sure conclusions" to be arrived at on the touchstone of a dispassionate judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case as well as quality and credibility of the evidence brought on record."
FIR No. 111/2012 State vs. Nooruddin & Ors. Page No. 13 of 30
51. In Sheila Sebastian vs. R. Jawaharaj and Another, (2018) 7 SCC 581, Hon'ble Supreme Court of India held, as under:
"27. A reasonable doubt has already been thoroughly explained in Latesh v. State of Maharashtra wherein "reasonable doubt" has been enunciated by this Court as (at SCC p. 83, para 46) "a mean between excessive caution and excessive indifference to a doubt, further it has been elaborated that reasonable doubt must be a practical one and not an abstract theoretical hypothesis.
28.....Law is well settled with regard to the fact that however strong the suspicion may be, it cannot take the place of proof. Strong suspicion, coincidence, grave doubt cannot take the place of proof. Always a duty is cast upon the courts to ensure that suspicion does not take place of the legal proof....The standard of proof in a criminal trial is proof beyond reasonable doubt because the right to personal liberty of a citizen can never be taken away by the standard of preponderance of probability."
52. In Sujit Biswas vs. State of Assam, (2013) 12 SCC 406, Hon'ble Supreme Court of India held, as under:
"13. Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that "may be" proved, and something that "will be proved". In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason that the mental distance between "may be"
and "must be" is quite large, and divides vague conjectures from sure conclusions. In a criminal case, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between "may be" true and "must be"
true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between "may be" true and "must be" true, the court must maintain the vital distance between mere conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial FIR No. 111/2012 State vs. Nooruddin & Ors. Page No. 14 of 30 scrutiny, based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The court must ensure, that miscarriage of justice is avoided, and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense."
53. The initial burden is upon the prosecution to prove its case through cogent, credible and trustworthy evidence.
54. The prosecution did not examine any public witness to prove the arrest and recovery of firearms and ammunitions, and arms from the accused persons at the place of incident.
55. The prosecution has examined members of the raiding team to prove its case.
56. The police officials are competent witnesses. Their evidence cannot be doubted on the sole premise that there was no public witness to search and seizure proceedings.
57. In Kashmiri Lal vs. State of Haryana, (2013) 6 SCC 595, Hon'ble Supreme Court of India held, as under:
"9. As far as the first submission is concerned, it is evincible from the evidence on record that the police officials had requested the people present in the ''dhaba'' to be witnesses, but they declined to cooperate and, in fact, did not make themselves available. That apart, there is no absolute command of law that the police officers cannot be cited as witnesses and their testimony should always be treated with suspicion. Ordinarily, the public at large show their disinclination to come forward to become witnesses. If the testimony of the police officer is found to be reliable and trustworthy, the court can definitely act upon the same. If in the course of scrutinising the evidence, the court finds the evidence of the police officer as unreliable and untrustworthy, the court may disbelieve him but it should not do so solely on the presumption that a witness from the Department of Police should be viewed with distrust. This is also based on the principle that quality of the evidence weighs over the quantity of evidence....."
FIR No. 111/2012 State vs. Nooruddin & Ors. Page No. 15 of 30
58. In Ajmer Singh vs. State of Haryana, (2010) 3 SCC 746, Hon'ble Supreme Court of India held, as under:
"19.....It is normally expected that there should be independent evidence to support the case of the prosecution. However, it is not an inviolable rule. Therefore, in the peculiar circumstances of this case, we are satisfied that it would be travesty of justice, if the appellant is acquitted merely because no independent witness has been produced.
20. We cannot forget that it may not be possible to find independent witness at all places, at all times. The obligation to take public witnesses is not absolute, if after making efforts which the Court considered in the circumstances of the case reasonable, the police officer is not able to get public witnesses to associate with the raid or arrest of the culprit, the arrest and the recovery made would not be necessarily vitiated. The Court will have to appreciate the relevant evidence and will have to determine whether the evidence of the police officer was believable after taking due care and caution in evaluating their evidence."
59. It is, therefore, evident that evidence of police officials cannot be discarded on the sole premise that they are police officials and they did not associate any public witness. However, the evidence of police officials should be examined with due caution and circumspection.
60. Having noticed legal principles governing appreciation of evidence of police officials, let us proceed to evidence of police officials.
61. PW-12 SI Ram Niwas is a material witness. He received secret information. He constituted raiding team. He carried out search and seizure proceedings. He prepared rukka Ex.PW12/A for registration of case. He deposed, as under:
"On 26.07.2012, I was posted as In-charge, Police Post Turkman Gate, Delhi. On that day, I alongwith Ct. Gagan was on patrolling duty and I got specific information about assembly of 5-6 criminals in the area of Gali Sujan Rai, Chandni Mahal, Delhi.
FIR No. 111/2012 State vs. Nooruddin & Ors. Page No. 16 of 30 I went to PS Chandni Mahal and informed SHO, PS Chandni Mahal, Delhi about the information who discussed with ACP, Darya Ganj and directed me to act accordingly. Thereafter, I alongwith police personnel namely, HC Shyam Sunder, HC Rakesh, Ct. Rinku, Ct. Gagan, Ct. Jag Parvesh, Ct. Parveen, Ct. Amarjeet and informant proceeded to the place of information i.e. Gali Sujan Rai, Chandni Mahal, Delhi. We left PS Chandni Mahal at about 10.50 p.m. and reached Gali Sujan Rai. There, I requested 2 public persons to join the police proceedings but they refused. Thereafter, I constituted a raiding party consisting of abovesaid police officials and deputed HC Shyam Sunder who was in civil clothes to go on the 1st floor of the building where the accused persons were assembled.
I also briefed HC Shyam Sunder to over hear the conversation of the assembled accused persons and I directed him to give signal to me after hearing the conversation. HC Shyam Sunder accordingly went upstairs in a disguised manner. At about 11.20 p.m., he signaled by waiving his hand over his head. Thereafter, we proceeded ahead and HC Shyam Sunder told that the assembled persons were planning to commit dacoity in Axis Bank, Darya Ganj, Delhi. Thereafter, one of the assembled accused persons was nabbed by Ct. Rinku and he disclosed his name as Nooruddin. I carried out his cursory search and recovered country made pistol from his right side dhub. I checked the said pistol and it was found loaded with one live cartridge. Another live cartridge was found in left side pocket of the accused, namely, Nooruddin. I prepared sketch of recovered pistol and cartridges. The sketch is already Ex.PW1/A. It bears my signature at point 'C'. I kept the pistol and cartridges in a cloth and made a parcel and sealed the same with the seal having impression "RNY". I seized the said parcel vide seizure memo already Ex.PW1/B. It bears my signature at point 'C'. HC Rakesh had apprehended another assembled accused person who disclosed his name as Mohd. Gulfam. I carried out his search and one loaded pistol was recovered from his right side dhub. I checked the pistol and it was found containing 4 live cartridges. I prepared sketch of recovered pistol and cartridges. The sketch is already Ex.PW1/C. It bears my signature at point 'C'. I kept the pistol and cartridges in a cloth and made a parcel and sealed the same with the seal having impression "RNY". I seized the said parcel vide seizure memo already Ex.PW1/D. It bears my signature at point 'C'.
FIR No. 111/2012 State vs. Nooruddin & Ors. Page No. 17 of 30 Ct. Jag Parvesh had apprehended third assembled accused person who disclosed his name as Mohd. Islam. I carried out his search and one loaded country made pistol was recovered from his right side dhub. I checked the pistol and it was found containing one live cartridge. I prepared sketch of recovered country made pistol and cartridge. The sketch is already Ex.PW1/E. It bears my signature at point 'C'. I kept the country made pistol and cartridge in a cloth and made a parcel and sealed the same with the seal having impression "RNY". I seized the said parcel vide seizure memo already Ex.PW1/F. It bears my signature at point 'C'.
Ct. Parveen had apprehended fourth assembled accused person who disclosed his name as Nafees. I carried out his search and recovered one button actuated knife from his left side dub. I prepared sketch of recovered knife. The sketch is already Ex.PW1/G. It bears my signature at point 'C'. I kept the said knife in a cloth and made a parcel and sealed the same with the seal having impression "RNY". I seized the said parcel vide seizure memo already Ex.PW1/H. It bears my signature at point 'C'. Ct. Amarjeet had apprehended fifth assembled accused person who disclosed his name as Mohsin. I carried out his search and recovered one knife from his right side dhub. I prepared sketch of recovered knife. The sketch is already Ex.PW1/I. It bears my signature at point 'C'. I kept the said knife in a cloth and made a parcel and sealed the same with the seal having impression "RNY". I seized the said parcel vide seizure memo already Ex.PW1/J. It bears my signature at point 'C'.
Ct. Gagan had apprehended sixth assembled accused person who disclosed his name as Akram. I carried out his search and recovered one plastic rope tied on his waist. The length of rope was about 8 feet. I kept the said rope in a cloth and made a parcel and sealed the same with the seal having impression "RNY". I seized the said rope vide seizure memo already Ex.PW1/K. It bears my signature at point 'C'. I also filled FSL form in respect of recovered pistols and cartridges. I handed over the seal after use to HC Shyam Sunder. I prepared rukka which is Ex.PW12/A. It bears my signature at point 'A'. At 03.00 a.m., I handed over the rukka to HC Shyam Sunder for registration of FIR. HC Shyam Sunder left for PS Chandni Mahal and after some time, at about 05.20 a.m. he alongwith SI Balwant Singh came to the spot.
FIR No. 111/2012 State vs. Nooruddin & Ors. Page No. 18 of 30 Further investigation was conducted by SI Balwant Singh. I handed over the documents, case property and custody of the accused persons to IO SI Balwant Singh. IO SI Balwant Singh prepared site plant at my instance which is Ex.PW12/B. It bears my signature at point 'A'. I was relieved from the investigation. The accused persons, namely, Nafees and Mohsin are present in the Court."
62. PW-1 HC Shyam Sunder was a member of raiding team. He had taken rukka to PS Chandni Mahal for registration of case. He is a material witness. He deposed, as under:
"On 26.07.2012, I was posted at PS Chandni Mahal. On that day, SI Ram Niwas asked me to join a raiding party as he was directed by SHO to conduct raid. SI Ram Niwas had already received a secret information that 5-6 persons would gather in under construction building situated in Gali Sujan Rai for planning to commit robbery at KTM. Raiding party was constituted by SI Ram Niwas including me, HC Rakesh, Ct. Jagpravesh, Ct. Amarjeet, Ct. Rinku, Ct. Praveen, Ct. Gagan and Secret informer. All the members of raiding party except myself HC Rakesh and Ct. Jagpravesh were in police uniform. We all left the PS at about 10.30 pm on foot. We all reached in Gali Sujan Rai at about 10.50 pm. All the members of raiding party were briefed by SI Ram Niwas. SI Ram Niwas also asked 2-3 persons to join raiding party but none agreed due to their personal reasons. On reaching near the building, I was instructed by SI Ram Niwas to go on the 1st floor of the building and to overhear the conversation between persons sitting over there. At about 11.05 p.m., I reached on the 1 st floor of the under-construction building. On reaching there, I overheard conversation of persons sitting inside the room. Those persons were not visible to me. I heard those persons were planning to commit robbery at ATM of Axis Bank, Daryaganj. I was instructed by SI Ram Niwas if I found something wrong I would give a signal by waving my hand over my head to SI Ram Niwas. After hearing the conversation of those persons, I had given specified signal to SI Ram Niwas. On receipt of my signal, all the members of raiding team rushed to the first floor of the house where those persons were sitting in the room and planning to commit robbery. All the members of raiding team entered into the room and found six persons were sitting in the said room.
FIR No. 111/2012 State vs. Nooruddin & Ors. Page No. 19 of 30 On reaching inside the room, the name of the person who was apprehended first of all was revealed as Nuroodin S/o Moinuddin. He was apprehended by Ct. Rinku. It was also revealed that accused Nooruddin was giving instruction about the commission of robbery to his other associates. Accused Nooruddin is present today in the Court (correctly identified). HC Rakesh apprehended the accused, namely, Gulfam who is present in the Court (correctly identified). Ct. Jag Pravesh apprehended the accused, namely, Islam who is present in the Court (correctly identified). Ct. Praveen apprehended the accused, namely, Nafees who is present in the Court (correctly identified). Ct. Amarjeet apprehended the accused, namely, Mohsin who is present in the Court (correctly identified). Ct. Gagan apprehended the accused, namely, Akram who is present in the Court (correctly identified). SI Ram Niwas took casual search of accused Nooruddin and one loaded country made pistol was recovered from his right side dub of his pant and one live cartridge was also recovered from the right side pocket of his pant. After recovery the pistol was unloaded. Thereafter, after taking measurement of Katta and cartridge, sketch of the katta and cartridge was prepared which is Ex.PW1/A which bears my signature at point A. Thereafter recovered katta and two recovered cartridges were sealed in clothes parcel with the seal of RNY and taken into police possession vide seizure memo Ex.PW1/B which bears my signature at point A. SI Ram Niwas took casual search of accused Gulfam and one loaded pistol was recovered from his right side dub of his pant. On checking pistol it was found with four live cartridges. After recovery the pistol was unloaded. Thereafter, after taking measurement of pistol and cartridge, sketch of the katta and cartridge was prepared which is Ex.PW1/C which bears my signature at point 'A'. On the barrel of pistol, only for Army supply was engraved and made in USA was also engraved. Thereafter, recovered pistol and 4 recovered cartridges were sealed in a cloth parcels with the seal of RNY and taken into police possession vide seizure memo Ex.PW1/D which bears my signature at point A. SI Ram Niwas took casual search of accused Islam and one loaded country made pistol was recovered from his right side dub of his pant. After recovery the pistol was unloaded.
FIR No. 111/2012 State vs. Nooruddin & Ors. Page No. 20 of 30 Thereafter, after taking measurement of Katta and cartridge, sketch of the katta and cartridge was prepared which is Ex.PW1/E which bears my signature at point A. Thereafter recovered Katta and two recovered cartridges were sealed in clothes parcel with the seal of RNY and taken into police possession vide seizure memo Ex.PW1/F which bears my signature at point A. SI Ram Niwas took casual search of accused Nafees and one knife was recovered from his left side dub of his pant. Thereafter, after taking measurement of knife, sketch of the knife was prepared which is Ex.PW1/G which bears my signature at point A. Thereafter recovered knife was sealed in clothes parcel with the seal of RNY and taken into police possession vide seizure memo Ex.PW1/H which bears my signature at point A. SI Ram Niwas took casual search of accused Mohsin and one choora was recovered from his left side dub of his pant. Thereafter, after taking measurement of choora, sketch of the choora was prepared which is Ex.PW1/I which bears my signature at point A. Thereafter recovered choora was sealed in clothes parcel with the seal of RNY and taken into police possession vide seizure memo Ex.PW1/J which bears my signature at point A. In casual search of accused Akram he was found in possession of a rope which was tied around his waist. I do not remember the length of rope. It was also taken into possession vide Ex.PW1/K bearing my signature at point A. Seal of RNY after use was handed over to me.
Thereafter one rukka was prepared by SI Ram Niwas for registration of the case. It was handed over to me. I took the same to PS Chandni Mahal and I got the FIR registered. After the registration of the FIR further investigation was marked to SI Balwant. I along with SI Balwant reached at the spot. All the accused present in the court were arrested by SI Balwant. Arrest memo of accused Nooruddin is Ex.PW1/L bearing my signature at point A. Arrest memo of accused Islam is Ex.PW1/M bearing my signature at point A. Arrest memo of accused Gulfam is Ex.PW1/N bearing my signature at point A. Arrest memo of accused Nafees is Ex.PW1/0 bearing my signature at point A. Arrest memo of accused Mohsin is Ex.PW1/P bearing my signature at point A. Arrest memo of accused Akram is Ex.PW1/Q bearing my signature at point A and their personal search memos were also prepared."
FIR No. 111/2012 State vs. Nooruddin & Ors. Page No. 21 of 30
63. PW-3 Ct. Rinku, PW-4 Praveen Kumar, PW-9 Ct. Jag Pravesh, PW-10 Ct. Amarjit and PW-11 Ct. Gagan were also members of the raiding team. They also deposed more and less on the lines of depositions of PW-12 SI Ram Niwas and PW-1 HC Shyam Sunder.
64. The issue before the Court is whether the evidence of the police officials is consistent, credible and inspiring.
65. The issue before the Court is whether the public witnesses are available and no serious effort was made to join them in the raiding team and search and seizure proceedings and the nature of impact of non-association of independent witnesses on the case of the prosecution.
66. Whether there are material contradictions, inconsistencies and infirmities in the case of the prosecution of such a magnitude that it affects of its core.
67. In Vadivelu Thevar & Anr. vs. State of Madras, AIR 1957 SC 614, Hon'ble Supreme Court of India held, as under:
"11.....Hence, in our opinion, it is a sound and well- established rule of law that the court is concerned with the quality and not with the quantity of the evidence necessary for proving or disproving a fact. Generally speaking, oral testimony in this context may be classified into three categories, namely:
(1) Wholly reliable.
(2) Wholly unreliable.
(3) Neither wholly reliable nor wholly unreliable.
12. In the first category of proof, the court should have no difficulty in coming to its conclusion either way - it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the court equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial....."
FIR No. 111/2012 State vs. Nooruddin & Ors. Page No. 22 of 30
68. On examination of the prosecution evidence, this Court is of the opinion that it is evident that the case of the prosecution suffers from such material contradictions, inconsistencies and infirmities rendering it wholly unreliable.
69. The case of the prosecution is that on 26.07.2012, PW-12 SI Ram Niwas alongwith PW-11 Ct. Gagan was patrolling near Turkman Gate and he received secret information from an informer that 5-6 persons would assemble in an under- construction house in Gali Sujan Rai, Chandni Mahal for planning to commit dacoity from ATM and thereafter, he disclosed the said information to SHO, PS Chandni Mahal who discussed it with ACP, Darya Ganj and instructed him to take appropriate action. It is further case of the prosecution that PW- 12 SI Ram Niwas constituted a raiding team and proceeded to Gali Sujan Rai, Chandni Mahal, Delhi. It is further case of the prosecution that PW-12 SI Ram Niwas positioned the raiding team in the said house and instructed PW-1 HC Shyam Sunder to overhear conversation and signal him, if the accused persons are found planning to commit dacoity. It is further case of the prosecution that PW-12 SI Ram Niwas requested 2-3 persons to join the raiding team. However, they proceeded to their way after disclosing reasonable excuses. It is further case of the prosecution that PW-1 HC Shyam Sunder signaled the raiding team and thereafter, the accused persons were apprehended alongwith arms and ammunitions. It is further case of the prosecution that PW-12 SI Ram Niwas seized arms and ammunitions, vide seizure memos and prepared rukka for registration of case. It is further case of the prosecution that after registration of case, PW-13 SI Balwant Singh arrested the accused persons and deposited case property in police malkhana.
FIR No. 111/2012 State vs. Nooruddin & Ors. Page No. 23 of 30 MATERIAL CONTRADICTIONS AND INFIRMITIES:
70. There is no DD entry regarding recording of secret information in police station. There is no DD entry regarding departure of the raiding team. PW-1 HC Shyam Sunder has not stated the exact words heard by him. The site plan of the place of incident Ex.PW12/B does not reflect the position of the members of the raiding team and PW-1 HC Shyam Sunder.
According to PW-9 Ct. Jag Pravesh and PW-10 Ct. Amarjit, they were carrying weapons. However, the prosecution has neither produced nor proved relevant registers pertaining to allocation of weapons to the raiding team.
MODE OF REACHING AT THE PLACE OF INCIDENT:
71. There are contradictions pertaining to the mode of reaching at the place of incident. PW-1 HC Shyam Sunder stated that they all left police station on foot. PW-2 HC Rakesh Kumar stated that they went to the spot on foot. However, PW-4 Ct.
Praveen Kumar stated that some of the police officers went on foot and some of them went by their own vehicles like motorcycles etc. AVAILABILITY AND EFFORTS MADE TO ASSOCIATE PUBLIC PERSONS TO THE RAIDING TEAM AND SEARCH AND SEIZURE PROCEEDINGS:
72. There is overwhelming evidence that the place of incident was located in a densely populated area having residences and shops around it. However, PW-12 SI Ram Niwas did not make any effort to associate any permanent resident or shopkeeper to the raiding team or search and seizure proceedings. PW-13 SI Balwant Singh, Investigating Officer did not make any effort to join any independent witness to the arrest of the accused persons.
FIR No. 111/2012 State vs. Nooruddin & Ors. Page No. 24 of 30
73. PW-1 HC Shyam Sunder stated that the entire area from PS to the spot is a thickly populated area. He stated that there were many shops and residential houses on both sides of the road. He stated that market used to remain open till 11.30 p.m. and people used to roam in the area. He stated that no permanent resident or the shopkeeper was asked to become the witness. PW-2 HC Rakesh Kumar stated that the way leading to the spot from PS is a very busy place and there were many shops and houses on the way. PW-3 Ct. Rinku Kumar stated that there were many houses around the said house and there were shops on both sides of the road, and many persons used to remain the street till late hours. PW-4 Ct. Praveen Kumar stated that there were residential houses and some shops adjacent to the said houses. He stated that public persons used to remain in the street and road even in night hours. He stated no permanent resident of the locality was asked to join the raiding team. PW-9 Ct. Jag Pravesh stated that SI Ram Niwas had not requested residents of nearby houses to join investigation. PW-10 Ct. Amarjit stated that the spot was situated in thickly populated area and there were many shops and residential houses in the said area.
However, SI Ram Niwas had not requested any person from residential houses to join the raiding team. PW-12 SI Ram Niwas stated he had not asked shopkeepers and residents to join the proceedings.
EXTENT OF CONSTRUCTION OF THE SAID HOUSE:
74. There are material contradictions in the depositions of the prosecution witnesses pertaining to the extent of construction of the said house. PW-1 HC Shyam Sunder stated that the said house was constructed up to first floor.
FIR No. 111/2012 State vs. Nooruddin & Ors. Page No. 25 of 30
75. PW-2 HC Rakesh Kumar, PW-3 Ct. Rinku Kumar and PW-10 Ct. Amarjit could not state the number of floors of the said building. PW-11 Ct. Gagan stated that the under-
construction house was 3-4 storey building. PW-12 SI Ram Niwas stated the said property was two storey building i.e. ground and first floor. PW-13 SI Balwant Singh stated that the property where the accused persons were apprehended was four storey building with ground floor, as per site plan. According to the site plan of the place of incident Ex.PW12/B, the said building was constructed upto 4th floor.
PRESENCE OF LIGHT IN THE SAID ROOM AND PLACE WHERE THE PROCEEDINGS WERE CONDUCTED:
76. There are contradictions on the aspect of availability of light in the room in the said house as well as the place where PW-12 SI Ram Niwas prepared sketches, seizure memos and rukka. PW-1 HC Shyam Sunder stated that there was light in the said room and all the proceedings were conducted in the said room while sitting on the floor. PW-2 HC Rakesh Kumar stated that there was some light on the construction site. PW-3 Ct.
Rinku Kumar stated that light was on in the said room and the house and the writing work was done at the spot. PW-4 Ct. Praveen Kumar stated that there was a temporary light arrangement in the said house. PW-12 SI Ram Niwas stated there was sufficient light at 1 st floor of the said building. However, PW-9 Ct. Jag Pravesh stated that there was darkness outside the said room. PW-10 Ct. Amarjit stated that there was no light in the said house and SI Ram Niwas conducted proceedings under street light on the road. PW-11 Ct. Gagan stated that there was no electricity in the aforesaid under- construction house.
FIR No. 111/2012 State vs. Nooruddin & Ors. Page No. 26 of 30 EFFORTS MADE TO CALL FAMILY MEMBERS OF THE ACCUSED PERSONS:
77. All the accused persons are residents of Chandni Mahal area. It has come in the evidence that some of them are BC of the said area. It has also come in the evidence that most of them were already known to the members of the raiding team.
However, the secret information is silent about their names. The raiding team remained at the place of incident since 11.00 p.m. on 26.07.2012 to 05.30 a.m. on 27.07.2012. However, none of their family members were either called or visited the place of incident. Moreover, there are material contradictions pertaining to the efforts and mode of information of apprehension of the accused persons to their family members. PW-1 HC Shyam Sunder stated that some constable went to call family members of the accused persons but they did not come. PW-3 Ct. Rinku Kumar stated that the accused persons were residents of the same locality. PW-4 Ct. Praveen Kumar stated that some of the accused persons were residing in the locality of Chandni Mahal and no family member was called at the spot. However, they were informed telephonically. PW-9 Ct. Jag Pravesh stated that SI Ram Niwas did not inform family members of accused persons about their arrest in his presence. PW-10 Ct. Amarjit stated that Mr. Nadeem, brother of the accused, namely, Mohsin was informed about his arrest through phone. However, he had not visited the spot. PW-12 SI Ram Niwas stated that he had not called family member of any of the accused persons. PW-13 SI Balwant Singh stated that he had not called family member of any of the accused persons at the spot. These contradictions make the case of the prosecution pertaining to apprehension of the accused persons at the place of incident doubtful.
FIR No. 111/2012 State vs. Nooruddin & Ors. Page No. 27 of 30 NON-EXAMINATION OF IN-CHARGE MALKHANA AND DELAY IN SENDING OF CASE EXHIBITS TO FSL:
78. According to the case of the prosecution, PW-12 SI Ram Niwas handed over seal after use to PW-1 HC Shyam Sunder.
PW-12 SI Ram Niwas and PW-1 HC Shyam Sunder deposed to this effect. However, the case of the prosecution is silent regarding the period during which the said seal remained with PW-1 HC Shyam Sunder. There is considerable delay in deposit of seized firearms and ammunitions with FSL for their examination. PW-13 SI Balwant Singh has not stated as to when he had deposited the case property in police malkhana. The case property was sent to FSL for forensic examination on 22.08.2012. As such, the case property remained in police malkhana for around one month. There is no explanation for such delay in sending the case property to FSL. The prosecution has not examined In-Charge, malkhana to prove that the case property was properly preserved and was not amenable to tampering. There is no investigation regarding the source of firearms and ammunitions. Non-examination of In-Charge, malkhana and delay in sending of the case exhibits to FSL for forensic examination make the case of the prosecution vulnerable.
79. The evidence of the prosecution witnesses is quite sketchy, wavering and inconsistent. The entire evidence of the prosecution pertaining to sequence of events from the receipt of secret information to the arrest of the accused persons does not inspire confidence. The evidence of the prosecution witnesses is 'wholly unreliable'. Therefore, the prosecution failed to prove that the accused persons assembled in the said house with arms and firearms for making preparation to commit dacoity.
FIR No. 111/2012 State vs. Nooruddin & Ors. Page No. 28 of 30
80. The prosecution miserably failed to bring home charges under Section 399 and 402 IPC as well as 25 of 'The Arms Act, 1959' against the accused persons, namely, Nafees and Mohsin.
CONCLUSION:
81. The accused persons, namely, Nafees and Mohsin are acquitted from offences under section 399 and 402 IPC as well as 25 of 'The Arms Act, 1959'. Digitally signed by SANJAY SANJAY SHARMA SHARMA Date:
2023.05.22 17:59:10 +0530 Announced in the open Court SANJAY SHARMA-II on this 19th May, 2023 Addl. Sessions Judge-03 (Central) Tis Hazari Courts, Delhi FIR No. 111/2012 State vs. Nooruddin & Ors. Page No. 29 of 30 State vs. Nooruddin & Ors.
CNR No.: DLCT01-001188-2014 SC No. 27730/2016 FIR No. 111/2012 PS Chandni Mahal 19.05.2023 Present : Mr. Amit Dabas, Ld. Addl. PP for the State.
Mr. Saleem Ahmed, Advocate with the accused persons, namely, Nafees and Mohsin.
Vide separate judgment announced in the open Court, the accused persons, namely, Nafees and Mohsin are acquitted from offences under Section 399 and 402 IPC as well as 25 of 'The Arms Act, 1959'. The accused persons are admitted to bail on furnishing personal bond in the sum of Rs. 10,000/- each as required under Section 437A Cr.P.C. Personal bond furnished and accepted. Bail bond shall remain in operation for a period of six months.
Digitally
File be consigned to record room. signed by
SANJAY
SANJAY SHARMA
SHARMA Date:
2023.05.22
17:59:25
+0530
Sanjay Sharma-II
ASJ-03, Central District
Tis Hazari Courts, Delhi
19.05.2023
FIR No. 111/2012 State vs. Nooruddin & Ors. Page No. 30 of 30