Delhi District Court
3. Title Of The Case : State vs Yusuf Ali on 25 August, 2012
IN THE COURT OF SHRI MANISH YADUVANSHI : ACMM0I
(CENTRAL) : TIS HAZARI COURTS, DELHI.
1. Case No. : 1515/P
2. Unique I.D. No. : 02401R5277402004
3. Title of the Case : State Vs Yusuf Ali
FIR No. 19/2003
PS : Paharganj
U/s 379/411/34 IPC
4. Date of Institution : 19.01.2004
5. Date of reserving judgment : 25.08.2012
6. Date of pronouncement : 25.08.2012
J U D G M E N T :
a) The Sl. No. of the case : 1515/P
b) The date of commission
of offence : 17.01.2003
c) The name of complainant : Sh. Arjun K Odera
S/o Sh. Khima Bhai
R/o Koteshwar Krupa, Chhaya Road,
Near Citizen Tyre, Porbander, Gujarat
d) The name of accused : Yusuf Ali @ Master Ji
S/o Samuel Ali
R/o P84, Satya Vihar, Burari, Delhi.
e) The offence complained of : 379/411 IPC
f) The offence charged with : 411 IPC
FIR NO. 19of 2003 State Vs Yusuf Ali Page
1
of 22
g) The plea of the accused : Pleaded not guilty
h) The final order : Acquitted
i) The date of such order : 25.08.2012
j) The present case came to be registered on following facts:
1. One Sh. Arjun K Odera, resident of Porbander, Gujarat came to the Police Station Paharganj. At the Police Station, he stated that he alongwith a group of 139 children and 17 other members had come to Delhi on 08.01.2003 at behest of West Zone Culture Centre, Udaipur to take part in Republic Day Parade. The delegation was returning to their home town. The complainant was standing before the notice board at the NDLS Reservation Office. At that time, someone committed theft of an amount of Rs. 50,000/ which the complainant was carrying in a polythene bag alongwith another sum of Rs. 10,000/. The amount of Rs. 50,000/ comprised of currency notes of Rs. 500/ each. The same was stolen by cutting his bag. The sum of Rs. 10,000/ was not stolen. He stated that the aforesaid amount was in his possession for obtaining return journey tickets for the group. On registration of the case, the investigation was assigned to PW3/HC Suresh Babbar (now ASI) and subsequently to PW4/SI Ashok Kumar (now Inspector). During the course of investigation, the accused was arrested and an amount of Rs. 30,500/ & one mobile phone were recovered. The investigating Officer filed charge sheet in respect of commission of offence punishable U/s 379/411 IPC.
FIR NO. 19of 2003 State Vs Yusuf Ali Page
2
of 22
2. The accused was charged with committing offence punishable U/s 411 IPC only to the effect that on 17.01.2003 at P84, Satya Vihar, Burari, Delhi, he was found in possession of a sum of Rs. 30,500/ comprising 61 currency notes of Rs. 500/ denomination each. He was also found in possession of photocopy of letter bearing FNo.122/2002ZCC issued by Ministry of Tourism & Culture which property belonged to the complainant. The accused preferred to claim trial. The prosecution relied on 8 witnesses including MHC (M), PS Paharganj.
3. PW1/HC Jaswinder stated on oath that on 17.01.2003, he was in the investigation of this case with IO/SI Ashok Kmar (Now Inspector/PW4) and Ct. Ombir (PW2). At the Parcel Gate, NDLS at about 06.30 PM, a secret informer met PW4 and informed that a thief who committed theft of Rs. 50,000/ from IRCA Building Compound on 15.01.2003 is present in the same Campus and he may commit theft again. The police party alongwith secret informer went to IRCA Building where at the instance of the secret informer, a person who is the accused in this case, was apprehended. PW4 interrogated the said accused who made a disclosure statement (Ex.PW1/A) on which PW1 signed. Subsequently upon pointing out of the accused, police party reached his house at Satya Vihar, Burari from where a sum of Rs. 30,500/ was recovered. The amount was found wrapped in a photocopy paper. One mobile phone make Samsung and one receipt of mobile phone was also recovered. PW4 prepared a 'pullanda' of the aforesaid articles and sealed with the seal of 'AK'. The seal was given to Ct. Ombir (PW2). The case property was seized vide seizure memo (Ex.PW1/B). The accused was FIR NO. 19of 2003 State Vs Yusuf Ali Page 3 of 22 medically examined. After this, the police team returned to the Police Station where PW4 recorded their statements. The case property i.e., one mobile phone, one receipt in the name of Yusuf Ali in respect of purchase of mobile phone and photocopy of letter written by Sh. P.S.Sarin, Under Secretary to the Government of India was shown to the witness who identified the same. The photocopy of the currency notes and empty polythene bag were also produced. The witness was duly cross examined by the defence.
4. Ct. Ombir (PW2) supported PW1. This witness has also signed on the disclosure statement (Ex.PW1/A) and arrest memo of the accused (Ex.PW2/A). This witness also stated that "the case property which were sealed with the seal of 'AK' was handed to me". The case property was not produced to this witness for the purpose of identification.
5. PW3/ASI Suresh Babbar had done part of the investigation of this case on 15.01.2003. According to him, on the said date, the complainant handed over one plastic bag which was sealed with the seal of 'AK'. The same was taken into police possession vide memo (Ex.PW3/A). As per the seizure memo, it was pertaining to the polythene bag which was cut from bottom.
6. PW4/SI Ashok Kumar conducted investigations in this case on 17.03.2003. he supported PW1 and 2. The witness had signed the arrest memo as well as disclosure statement of accused. He had also signed on the seizure memo FIR NO. 19of 2003 State Vs Yusuf Ali Page 4 of 22 (Ex.PW1/B). The case property i.e., receipt of purchase of mobile phone, photocopy of 61 currency notes and letter of Ministry of Tourism & Culture were identified by the witness as Ex.PW4/B, Ex.P1, Ex.P2 and Ex.P3 respectively. The witness was duly cross examined by Ld. Defence Counsel. No further PWs were produced by the prosecution. The complainant namely Arjun K Odera, Duty Officer/WASI Neelam and PW Naresh Keshwani were not produced by the prosecution.
7. The incriminating evidence against the accused was explained to the accused Yusuf Ali in his statement U/s 281 Cr.P.C read with Section 313 Cr.P.C. The accused submitted that he did not commit any theft as alleged. He denied recovery from his house. He claims false implication. According to him, officials from PS Paharganj picked him from his house who took him to the PS where he was made to sign some blank papers and some written papers. The accused did not produce any evidence in support of his defence.
8. I have heard Ld. APP for State and Sh. J.S.K.Aggarwal, Ld. Defence Counsel.
9. Ld. Counsel submitted that the complainant has not been examined in this case in support of proof regarding his complaint. The complainant was not produced in the court for identification of the recovered articles. It was also argued that only police officials have been examined as witnesses to the event of FIR NO. 19of 2003 State Vs Yusuf Ali Page 5 of 22 recovery of articles allegedly stolen. Ld. Defence Counsel also submitted that the public witness namely Naresh Keshwani was not examined towards the proof of sale of mobile phone make Samsung to the accused. It was argued that the prosecution has failed in establishing firstly, that the articles were recovered at the instance of the accused and secondly, that the articles recovered were stolen from the possession of the complainant.
10. Ld. Counsel also argued that in the instant case, the First Information Report which also consisted of the statement of the complainant has not been proved. Ld. Defence Counsel took the arguments further by submitting that the FIR on record of this case is not an FIR for the purposes of section 154 of the Code of Criminal Procedure 1973; hereafter called 'the Code'. As per section 154 of the Code;
"154. Information in cognizable cases (1) Every information relating to the cognizable offence, if given orally to an officer incharge of Police Station, shall be reduced to writing by him or under his discretion, and to be read over to the informant; (2) and every such information whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it................."
11. Ld. Counsel submitted that the perusal of the carbon copy of FIR reveals that though it has been signed by the officer Incharge/Duty Officer namely W/ASI Neelam, it has not been signed by informant namely Sh. Arjun K FIR NO. 19of 2003 State Vs Yusuf Ali Page 6 of 22 Odera.
In support of his contention, Ld. Counsel relied on judgment titled "Jay Engineering Works ltd. & Ors. Vs State of West Bengal and Ors" reported in AIR 1968 Calcutta 707 (V5585). In this special bench of 6 judges of the Hon'ble Culcutta High Court, the purport of section 154 Cr.P.C was also considered. The relevant portion is extracted below: "More elaborate argument was addressed by him when on Chapter XIV, he contended for his proposition that duties enjoined by Sections 154 and 157 Cr.P.C are discretionary because in the first telephonic or telegraphic information has been held to be not an FIR for the reason that Section 154 requires that it "shall be signed by the person giving it", and in the other (Section 157), action of the Police Officer is dependent on "reason to suspect". Both these contentions have to be stated only to be rejected for the reason that the provisions in those two Sections do not given any discretion at all though they contemplate that the Police Officer may act differently in different circumstances, act he must in one way or the other".
"The terms of Section 154 are imperative. This Section clearly enjoins three duties:
(1) Every information shall be reduced to writing; if given orally shall be read over to informant after it has been reduced to writing.
FIR NO. 19of 2003 State Vs Yusuf Ali Page
7
of 22
(2) Whether given in writing or reduced to writing shall be signed by the person giving it.
(3) Substance thereof shall be entered in a book in such form as State government may prescribe.
There is duty certainly to read over to informant oral information reduced to writing and written information being signed by person given it. But the duty to enter in the prescribed book every information is not dependent on these requirements being fulfilled. That prescribed book is the General Diary Book of the Police Station".
"Those requirements of signature of the person giving information may have to be fulfilled later, if information was received over telephone or by telegraph. That may affect admissibility of value of the document in a criminal trial. But that has nothing to do with the duty of police. Large volume of judicial decisions cited by Mr. Dutt are not relevant to the point we are considering in this case. They are all on the point whether the information so recorded will be admissible in evidence in criminal trial or will be hit by Section 162 Cr.P.C as statement of police after investigation has commenced".
12. During the course of arguments, this court felt it necessary to call the MHC (R) to produce original FIR of this case and also call for register No.19 in FIR NO. 19of 2003 State Vs Yusuf Ali Page 8 of 22 original. However, despite service of notice of this court, the concerned MHC (R) as well as MHC (M) PS Paharganj has failed to appear. The matter was already part heard, the FIR was not proved as per law and the aforesaid lapse was a lacuna left by the prosecution which conferred upon the accused a valuable right. The court, therefore, did not resort to section 311 Cr.P.C and proceeded to hear further arguments.
13. Ld. Defence Counsel also argued that in the present case, no sincere efforts were made by the PWs 1, 2 & 4 for joining independent public witnesses despite availability.
14. Ld. APP for State, on the contrary, argued that nonjoining of public witnesses or absence of proof of FIR did not affect the prosecution's case in the fact and circumstances of this case as the recovery was effected pursuant to disclosure statement made by the accused.
15. I have considered rival contentions. The only charge against the accused is of committing offence punishable U/s 411 Cr.P.C. Factually speaking, the complainant namely Arjun K Odera never appeared in the witness box. There is no direct evidence of identification of the amount/currency notes allegedly recovered from the house of the accused. The only relation between the currency notes recovered from the house of the accused with the fact of the same to have been stolen from the possession of the complainant is the disclosure statement of FIR NO. 19of 2003 State Vs Yusuf Ali Page 9 of 22 the accused (Ex.PW1/A). During the course of investigations of this case, no attempt was made by the IO for judicial TIP of the recovered currency notes and the letter (Ex.P3). In fact, the prosecution has not explained as to how letter (Ex.P3) is the stolen property. The FIR only speaks of theft of currency notes. It does not make any reference to letter (Ex.P3). Although, the currency notes at the time of their recovery mere wrapped in a photocopy paper, but the complainant never mentioned so in the FIR. The prosecution did not produce the original currency notes in the court. It was not explained as to whether the same were released on 'superdari' during the investigations. Nevertheless, the fact remains that the currency notes of Rs. 30,500/ were never produced in the court and were never put to the main witness/complainant as he never appeared in the witness box. The defence also tried to take advantage of this fact. The IO/PW4 admitted in his cross examination that there is no specific mark on the recovered currency notes. He further denied the suggestion of the defence that such currency notes are easily available in bank and post offices. However, the complainant's statement in the FIR do not provide the necessary description about the manner in which the currency notes were kept in the polythene bag. The polythene bag was also not produced in the court. The IO never examined the complainant with respect to collection of details as to whether the currency notes were kept in packets or were in the form of a bundle etc. The IO never inquired as to whether the stolen currency notes were having any tag of any particular bank or not. The IO did not examine any relevant official from West Zone Culture Centre, Udaipur towards establishment of the fact as to who had given the currency notes to the FIR NO. 19of 2003 State Vs Yusuf Ali Page 10 of 22 complainant and in which form. There is no iota of evidence on the regard of this case regarding actual identification of the recovered currency notes with that of the stolen ones. As stated earlier, the only evidence is the disclosure statement (Ex.PW1/A) pursuant to which the alleged recovery was made.
16. Coming to aspect of recovery, it is the contention of the defence that the recovery witnesses i.e., PW1, PW2 and PW4 had not joined any independent public member to their team. In this regard, the accused was apprehended upon receipt of secret information by PW4. The said secret information was not received in writing or shared with any senior officials. As per the witnesses, they were at the Parcel Gate of NDLS at the time of receipt of such information. They were in the investigation in this case. No relevant departure entry was produced on record.
As per PW1, public persons were coming and going. He admits that no public persons were asked to join the proceedings at NDLS where the accused was apprehended. The same is the version of PW2.
17. Further, as per IO, secret informer had met him at 06.30 PM and remained with him till 07.00 PM. Between 07.00 PM to 08.00 PM, the police party did writing work i.e., recording the statement of the accused, taking his search etc. They left NDLS at around 08.00 PM and recovered the stolen articles from the house of the accused at about 09.00 PM. They left the house of the accused at about 10.00 PM and returned to the PS. They had traveled from NDLS FIR NO. 19of 2003 State Vs Yusuf Ali Page 11 of 22 to house of the accused in the car of the IO which he was driving. As per PW1, they reached Satya Vihar, Burari within one hour. At the time of reaching upon the house of the accused i.e., about 09.00 PM, his wife and his daughter were present. The IO obtained the thumb impression of the wife of the accused on the arrest memo. No other documents were signed by the wife of the accused. As per this witness, the police remained at the house of the accused for one hour. At the house of the accused, the IO prepared the seizure memo whereas other five documents were prepared by him at IRCA Building. PW1 had signed on three documents i.e., arrest memo, pointing out memo and disclosure statement.
18. As per PW2, the police team reached the house of the accused at about 08.30 PM. 23 papers were prepared by the IO at the house of the accused while four papers were prepared by the IO at IRCA building. PW2 admits that the wife of the accused and his daughter were present at the house of the accused. The IO/PW4 also admits that at the house of the accused, only his wife and minor children were present.
Now, in this scenario , the secret information was to the effect that the offender in case FIR No. 19/2003, PS Paharganj was present at IRCA Building as per PW4. As per PW1, secret information was more specific that a thief who committed theft of Rs. 50,000/ from IRCA Building Compound on 15.01.2003 was present in the same Campus and he may commit theft again. Similar is the version given by PW2.
As per the IO, the distance between the place of incident and the place FIR NO. 19of 2003 State Vs Yusuf Ali Page 12 of 22 where secret information was received was only 500 yards. The accused was apprehended and on his search Rs. 53 and a wrist watch only were recovered. As per PW2 who actually conducted the personal search of the accused, only a wrist watch was recovered. PW2 admitted that no blade or any other weapon was recovered from the possession of the accused. It is matter of record that as per the FIR and the disclosure statement (Ex.PW1/A), the accused committed theft of the currency notes by cutting polythene bag belonging to the complainant at the bottom with the help of a blade. It is also a matter of record that as per the secret information, the accused was present at the IRCA Building with an intention to commit similar kind of offence. However, no blade was recovered from him.
19. The IO submits in his cross examination that before the accused was apprehended, he was standing at one place and was seeing here and there in suspicious manner. Evidently. He was alone at the time when he was apprehended.
During cross examination of PW1, he was faced with 34 court questions. As per his replies, the accused was arrested at the spot in Campus of IRCA and at that time, member of police party and public persons were present. The factum of arrest of the accused was disclosed to his wife. Perusal of arrest memo (Ex.PW2/A) reveals that the accused was arrested at 07.00 PM on 17.01.2003. The wife of the accused was not available before 09.00 PM. Still, the arrest memo is bearing thumb impression of the wife of the accused. As to how aforesaid happened is not explained by the witnesses of the prosecution. It is not a FIR NO. 19of 2003 State Vs Yusuf Ali Page 13 of 22 case of the prosecution that the thumb impression of the wife of the accused was not obtained after 09.00 PM when the police party reached at the accused's house on a document i.e., Arrest Memo which was earlier prepared at 07.00 PM. The defence has been very specific in cross questioning the IO to the effect that the documents of this case were not prepared at IRCA Building or at the house of the accused. The fact that thumb impression of the wife of the accused is present on a document which was prepared much prior to her availability at 07.00 PM is disturbing and gives rise to suspicion that the defence is correct.
This is so as the IO was not even aware of very important fact which he would have know by default. Firstly, the IO is not aware of the time when he recorded the disclosure statement of the accused. Secondly, the IO could not tell the name of owner of the car in which he traveled to the house of the accused although it was borrowed by him from his friend. Thirdly, the IO was unable to recall as to whether the key of the Almirah was taken from the wife of the accused or not. Fourthly, the IO could not tell as to whether there was construction going on in the other houses in the lane where the house of the accused was situated, although, he had stated that the adjoining and front house of the accused were under construction.
20. The iron Almirah from which the money was recovered was stated to be on ground floor of the house of the accused by PW4. However, as per PW1, the house of the accused was a single storey building only.
FIR NO. 19of 2003 State Vs Yusuf Ali Page
14
of 22
21. Taking note of the aforesaid contradictions, the court gets compelled to look for further corroboration to the testimony of the recovery witnesses. However, the police team did not join any independent member from public or neighborhood of the accused. According to the IO, he did not make any public witness as a party to the proceedings at the time of recovery of money because it was winter season and no men was visible. This does not seem to be the actual reason as there was ample time with the police party to have atleast initiated their efforts to make the recovery more credible by seeking persons of presence of public persons. The accused was already in their possession and there was no emergency to conduct an immediate raid. It is on record that the police party reached to the house of the accused at around 09.00 PM and the recovery was effected at around 09.00 PM only. The said proximity of time between the police party reaching the house of the accused and conducting the search left no time with them to actually initiate any genuine steps for seeking help from public persons. On the contrary, one of the participants to the raiding party i.e., PW1 admits that no neighbor of the accused was called to join the proceedings at the time of raid on the house of the accused.
22. Accordingly, there is no explanation on record as to why this omission was made. This casts doubt about sincere efforts made by the investigating officer to join independent witnesses. In ROOP CHAND VS. STATE OF HARYANA 1990 (1) CLR 69 it was observed that such explanations are unreliable.
In the case of "PREM SINGH VS. STATE" 1996 CRI. L. 3604 FIR NO. 19of 2003 State Vs Yusuf Ali Page 15 of 22 (DELHI) and in case of "PAWAN KUMAR VS. DLEHI ADMN" 1989 CRLJ 0127 DEL, it has been observed as under: "Kalam Singh has to admit that at the time of arrest and recovery of knife, there was a lot of rush of public at the bus stop near Subhash Bazar. According to Jagbir Singh, he did not join any public witness in the case while according to Kalan Singh, no public person was present there. It hardly stands to reason that at a place like a bus stop near Subhash Bazar, there would be no person present at a crucial time like 7:30 pm when there is a lot of rush of commuters for boarding the buses to their respective destinations. Admittedly, there is no impediment in believing the version of the police officials but for that the prosecution has to lay a good foundation. At least one of them should have deposed that they tried to contact the public witnesses or that they refused to join the investigation. Here is a case where no effort was made to join any public witness even though number of them were present. No plausible explanation from the side of the prosecution is forthcoming for not joining the Independent witnesses in case of serious nature like the present one. It may be that there is an apathy on the part of the general public to associate themselves with the police raids or the FIR NO. 19of 2003 State Vs Yusuf Ali Page 16 of 22 recoveries but that apart, at least the IO should have made an earnest effort to join the independent witnesses. No attempt in this direction appears to have been made and this, by itself, is a circumstance throwing doubt on the arrest or the recovery of the knife from the person of the accused".
23. In the case of "Hem Raj Vs State of Haryana" AIR 2005 SC 2010, it has been observed that : "The fact that no independent witness though available, was examined and not even an explanation was sought to be given for not examining such witness is a serious infirmity in the prosecution case. Amongst the independent witnesses one who was very much in the know of things from the beginning was not examined by the prosecution. Non examination of independent witness by itself may not given rise to adverse inference against the prosecution. However, when the evidence of the alleged eyewitnesses raise serious doubts on the point of their presence at the time of actual occurrence, the unexplained omission to examine the independent witness would assume significance."
24 In the case of "Sahib Singh Vs State of Punjab" AIR 1997 SC 2417,
FIR NO. 19of 2003 State Vs Yusuf Ali Page
17
of 22
it has been held as under:
"Having gone through the record, we find much
substance in each of the above contentions. Before conducting a search, the concerned police officer is required to call upon some independent and respectable people of the locality to witness the search. In a given case, it may so happen that no such person is available or, even if available, is not willing to be a party to such search. It may also be that after joining the search, such persons later on turn hostile. In any of these eventualities, the evidence of the police officers who conducted the search cannot be disbelieved solely on the ground that no independent and respectable witness was examined to prove the search but if it is found - as in the present case - that no attempt was even made by the concerned police officer to join with him some persons of the locality who were admittedly available to witness the recovery, if would affect the weight of evidence of the Police Officer, though not its admissibility."
25. In the case of "D.V.Shanmugham Vs State of A.P" AIR 1997 SC 26583", it has been observed as under: "It also appeared from the evidence of PW2 and PW8 that there were several other people who witnessed the occurrence and they are not the residents of that locality. If FIR NO. 19of 2003 State Vs Yusuf Ali Page 18 of 22 such independent witnesses were available and yet were not examined by the prosecution and only those persons who are related to the deceased were examined then in such a situation, the prosecution case has to be scrutinized with more care and caution".
26. In the case of "Massa Singh Vs State of Punjab" 2000 (2) CC Cases HC 11, conviction was set aside on the ground that it was obligatory on the part of investigating officer to take assistance of independent witnesses to lend authenticity to the investigation conducted by him. It was observed as under: "The recovery has been effected from a public place. The investigating officer could have taken the trouble to associate an independent witness to get the attestation of such independent witness regarding the authenticity of the investigation conducted by him. This aspect of the case has not been properly appreciated by the Court below."
27. In the case of "Chanan Singh Vs State" 1986 Crl. Rev. No.720 (P&H) 94, it was held that it was obligatory on the party of the police to join independent witnesses and the statement of official witness that witnesses refused to join investigation was rejected as an afterthought.
FIR NO. 19of 2003 State Vs Yusuf Ali Page
19
of 22
28. In the cases of "Gurbel Singh Vs State of Punjab" 1991 Crl. Rev. No.504 (P&H) and "Dhanpat Vs State of Punjab" 2000 (1) CC Cases HC 52, it has been held that nonjoining of independent witnesses is fatal to the prosecution case and accused is entitled to benefit of doubt.
At the same time, I am also reminded of the aspect that so far the arguments in respect of non joining of public witness is concerned, it is well settled law that 'the case of the prosecution cannot be thrown away merely on the ground that public witnesses have not been joined. Reliance is placed upon the judgment titled "Ambika Prasad & Anr Vs. State" reported in 2002 (2) Crimes 63 SC wherein it has been held 'Independent persons are reluctant to be a witness or to assist the investigation. In any case,if independent persons are not willing to cooperate with the investigation, prosecution cannot be blamed at and it cannot be a ground for rejecting the evidence of injured witnesses'.
29. Reliance is also placed upon judgment titled Appa Bhai Vs. State of Gujrat reported in AIR 1988 SC 696 wherein it is observed, " These days people in the vicinity where the occurrence took place avoid to come forward to give evidence and civilized persons are in sensitive when crime is committed in their presence and they withdraw both from the victim and vigilance' Here it would be appropriate to refer the case law reported as "Sadhu Singh Vs. State of Punjab" 1997(3) Crime 55 the Punjab & Harayana High Court wherein it was observed as under: FIR NO. 19of 2003 State Vs Yusuf Ali Page 20 of 22 "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 the accused".
30. In such cases, the court has to observe as to whether sincere efforts were made by the police team to join independent witnesses and if not, then whether further corroboration to testimonies of police witnesses is required. I have already pointed out that police party had two occasions to join public persons. Firstly, at IRCA building and secondly, before conducting raid. The explanation given by PWs is not plausible. Further, there are contradictions in their testimonies as pointed above.
31. Lastly, the factum of nonproving the FIR also goes against the prosecution. I have already pointed out that the concerned MHC (R) failed to appear in this case despite receipt of notice of appearance with the original FIR register. The judgment of the Hon'ble High Court of Culcutta in "Jay Engineering Works ltd.(supra)", clearly delineates the effect of an unsigned FIR. Perusal of carbon copy of FIR on record indicates that it bears the signature of the person who prepared it but it does not have either thumb impression or signature FIR NO. 19of 2003 State Vs Yusuf Ali Page 21 of 22 of the informant. This becomes more important in view of the fact that the first information itself which is given by the complainant is recorded only in the FIR. The same is not proved. The court did not have the occasion to peruse the original FIR, however, if it was signed by informant, then impression of same would appear on its carbon copy also like that of the official who recorded it.
32. In the result, I am of the considered view that the present case was instituted on the basis of a documents not in accordance with section 154 of the Code in which no attempt was made to establish the identity of the recovered articles except a mere disclosure statement of the accused, the articles were never actually identified by the complainant in the court. Furthermore, the recovery in the present case is shrouded under doubts.
33. In this view of the matter, the accused is acquitted by giving him benefit of doubts. His PB/SB are extended in compliance of section 437A Cr.PC.
File be consigned to record room.
Announced in the open court (MANISH YADUVANSHI) on 25.08.2012 ACMM01 DELHI
It is certified that this judgment contains 22 (twentytwo) Pages and each page bears my signature.
(MANISH YADUVANSHI)
ACMM01 DELHI
FIR NO. 19of 2003 State Vs Yusuf Ali Page
22
of 22