Delhi District Court
State vs . Sanjay Chaudhary on 23 August, 2014
IN THE COURT OF SH. HARVINDER SINGH,
METROPOLITAN MAGISTRATE - 03 (WEST),
TIS HAZARI COURTS, DELHI - 110 054.
FIR No.449/1998
PS - Nangloi
State Vs. Sanjay Chaudhary
Unique Case ID No.02401R0081021998
J U D G M E N T
(a) Sr. No. of the case 1323/1/08
(b) Date of offence(s) 19.07.1998
(c) Complainant SI A. S. Rawat, Special Cell, Lodhi Colony, New Delhi.
(d) Accused Sanjay Chaudhary S/o Sh. Mahipal R/o Village Tikri
Kalan, PVC Market Road, New Delhi.
(e) Offence(s) Under Section 467 and 474 of The Indian Penal Code,
1860 and 25 of The Arms Act, 1959.
(f) Plea of accused Pleaded not guilty
(g) Final Order Acquittal
(h) Date of institution 21.05.1998
(i) Date when judgment Not Reserved
was reserved
(j) Date of judgment 23.08.2014
The brief facts of the case are that :
1. The accused has been charge sheeted for committing offences punishable under Section 467 and 474 of The Indian Penal Code, 1860 and under Section 25 of Arms Act, 1959. The allegations against the accused are that on FIR No.449/1998 Page No.1 of 26 19.07.1998 at about 11:00 am at his house at Village Tikri Kalan, Delhi, accused was found in possession of one double barrel gun, one pistol, one rifle and nine cartridges without any permit or valid license in violation of notification issued by Delhi Administration and further that accused forged an Arms License No.578/JDN/94, a valuable security in respect of the abovesaid arms and further that accused was found in possession of abovesaid Arms License No.578/JDN/94 knowing the same to be forged and intending to use the same as genuine. According to the prosecution, accused thereby committed offences punishable under Section 467 and 474 of The Indian Penal Code, 1860 and under Section 25 of The Arms Act, 1959.
2. After completion of investigation, charge sheet was filed. Copy of the challan was supplied to the accused in compliance of Section 207 of The Code of Criminal Procedure, 1973. Charge was framed against the accused under Section 467 and 474 of The Indian Penal Code, 1860 and under Section 25 of The Arms Act, 1959 vide order dated 15.09.2003 to which he pleaded not guilty and claimed trial. PROSECUTION EVIDENCE
3. In order to prove the guilt of accused, prosecution has examined twelve witnesses. PW1 ASI Darshan has proved and exhibited formal FIR Ex.PW1/A. PW1 was examined, not crossexamined by the accused despite opportunity given and was discharged.
FIR No.449/1998 Page No.2 of 26
4. PW2 HC Shri Bhagwan has deposed that on 19.07.1998, he was posted as MHCM at PS Nangloi and on that day, SI Ranbir Singh deposited four pullandas sealed with the seal of 'ASR' vide SL.NO.2604 Ex.PW2/A. On 08.09.1998, case property was sent to FSL, Malviya Nagar, Delhi by SI Anil Kumar vide RC No. 176/21/98 and no tampering was done with the case property till it remained in his custody. PW2 was examined, not crossexamined by the accused despite opportunity given and was discharged.
5. PW3 SI K. K. Upadhyay has deposed that on 08.09.1998, he was working as ballistics expert at FSL, Malviya Nagar, New Delhi. On that day, four sealed parcels sealed with the seal of 'ASR' pertaining to this case were received in the laboratory. The same were examined by him. The seal on the parcels was intact accompanying the FSL form. On opening parcel number 01 it contained one pistol 7.65 mm/.32'' Ex.F1, parcel number 02 contained DBBL gun 12 bore Ex.F2, parcel number 03 contained one rifle shooting 315''/8 mm Ex.F3 and parcel number 04 contained four 7.65 mm/.32'' pistol cartridges Ex.A1 to Ex.A4 and five 8 mm/.315'' cartridges Ex.A5 to Ex.A9. The Ex.F1 to Ex.F3 were found in working order and Ex.A1 to Ex.A9 as ammunition as defined in the Arms Act, 1959. His detailed report is Ex.PW3/A. The parcels were sealed with the seal of BTD4FSL, Delhi Police after FIR No.449/1998 Page No.3 of 26 examination. PW3 was examined, not crossexamined by the accused despite opportunity given and was discharged.
6. PW4 Inspector Inderjeet Singh has deposed that on 19.08.1998, he was posted as SI in the special Cell of Lodhi Colony and on that day, he alongwith Inspector Jai Singh and IO SI Anil Kumar for the investigation of this case went to Jammu where they visited D.M. Office, Jammu. IO moved an application for obtaining the photocopy of the Arm License Register, 1994 with respect of Sanjay Choudhary S/o Mahipal having Arms License No.578/1994. The same was seized by the IO SI Anil Kumar vide seizure memo Ex.PW4/A and the photocopy is Ex.P1. As per record at Sl No.578/94, there was no entry regarding the license of Sanjay Choudhary and instead of that, there was entry at Sl. No.578/94 in respect of Sh. Nalin Kumar Tokas and at Sl. No.578B/94, there was entry regarding license of one Sh. Hardeep Singh. IO recorded his statement. PW4 was examined, not crossexamined by the accused despite opportunity given and was discharged.
7. PW5 IPS Uday Sahay, Director Information Publicity, Govt. of Delhi has deposed that on 20.01.1999, he was posted as DCP, West Distrct, Delhi and after perusing the copy of present case FIR, statement recorded under Section 161 of The Code of Criminal Procedure, 1973 of present case FIR, Seizure memos, report of Ballistics Unit, FSL, Malviya Nagar, Delhi in the present case FIR, he satisfied FIR No.449/1998 Page No.4 of 26 himself that on 19.07.1998, Sanjay Choudhary S/o Mahipal Singh had in his conscious possession one DBBL Gun, one pistol number 24876/7.65 mm, one rifle number AB963576/.315 bore and nine live cartridges without any valid arms license and accused had managed the arm license which he was carrying by making forged entries to make it appear that he is entitled to carry such weapons thereby contravening the provision of Section 3 of Arms Act, 1959 punishable under Section 25/30 of Arms Act, 1959 and committed offences punishable under Section 420, 468 and 471 of The Indian Penal Code, 1860. His sanction order is numbered 969/SO West Ex.PW5/A. PW5 was examined, crossexamined and was discharged.
8. PW6 Inspector A. S. Rawat, PW7 Inspector Subhash Bakshi, PW8 ASI Jai Prakash and PW11 Ct. Amar Singh have deposed that on 19.07.1998, an information was received by Special Cell, Lodhi Colony that a racket of fake arm license is operating in Delhi and other parts of the country and many persons of Delhi have procured such kind of licenses. On the basis of these licenses, they have purchased arms and ammunition. This information was developed and it was found that one Sanjay Choudhary had obtained fake/forged arms license number 578/JDM/94 issued from Jammu. On the basis of this information, a raiding party comprising of all of them was prepared by PW6 on the directions of senior officers on 19.07.1998. All of them reached at Tikri Village at house of accused. Accused was FIR No.449/1998 Page No.5 of 26 found present in the house. Accused acknowledged about arms license. PW6 asked accused for the license and he produced the license no.578/JDM/94 issued from Jammu. PW6 inspected the license and on inspection of arm license, it was found that accused had purchased one pistol .32 bore, one rifle .315 bore and one double barrel gun 12 bore. Accused also produced the abovesaid weapons on demand. PW6 prepared the sketch of the pistol produced by accused. The dimensions of the said pistol being barrel 13.4 cm having number 24876, total length butt to barrel 14.0 cm and its sketch being Ex.PW6/A. PW6 seized the said pistol vide seizure memo Ex.PW6/B and sealed it with the seal of 'ASR'. Then, PW6 seized the rifle number AB963575 vide seizure memo Ex.PW6/C and seized double barrel gun number 39304/97 vide seizure memo Ex.PW6/D and also sealed both of them separately with the seal of 'ASR'. Seal after use was handed over to PW11 and then, PW6 seized four cartridges of pistol and five cartridges of rifle. On pistol cartridges, KF 7.65 was inscribed and on the rifle cartridges, KF - 96 was inscribed. PW6 seized them vide seizure memo Ex.PW6/E and sealed it with the seal of 'ASR. PW6 then sealed the arms license no.578/JDM/94 vide seizure memo Ex.PW6/F. PW6 filled the FSL form at the spot. PW6 prepared Tehrir Ex.PW6/G for registration of FIR and sent PW11 for the registration of FIR to PS Nangloi. PW11 came back at the spot with the copy of FIR and original Rukka and handed over them to PW6. PW6 prepared site plan FIR No.449/1998 Page No.6 of 26 Ex.PW6/H. PW6 recorded disclosure statement of accused Ex.PW6/J. PW6 arrested accused vide arrest memo Ex.PW6/K and searched him vide memo Ex.PW6/L. PW6 recorded the statement of the witnesses under Section 161 of The Code of Criminal Procedure, 1973 and deposited the case property in the malkhana of PS Nangloi. On 20.07.1998, accused was produced before Court and was remanded to police custody. On 21.07.1998, accused took PW6 and PW7 to Panipat, Kapoor Gun House, Shop No. 18 of Sh. Om Prakash Kapoor. Accused disclosed that he got prepared forged/fake arm license from the Kapoor Gun House and PW6 prepared pointing out memo Ex.PW6/M at the instance of accused. PW6 and PW7 met with Sanjiv Tyagi, the servant of Om Prakash Kapoor and PW6 served notice under Section 160 of The Code of Criminal Procedure, 1973 upon him. On 23.07.1998, the case was handed over to SI Anil Kumar on the directions of senior officers by PW6. PW6, PW7, PW8 and PW11 identified the case properties as Ex.P1 to Ex.P5 in their evidence and have correctly identified the accused in the Court. PW6, PW7, PW8 and PW11 were examined, crossexamined and were discharged.
9. PW9 Sh. Govind Sharma has deposed that in the year 1998, he was posted as JHC, ADM Office, Licensing Branch, Jammu and on 23.05.1998 on the directions of ADM Jammu, he prepared the report/reply for the application for verification of arms license number 578/JDM/94 submitted by Inspector Jai Singh. FIR No.449/1998 Page No.7 of 26 He made reply/report on the same Ex.PW9/A. He further deposed that it was found that no license bearing number 578/JDM/94 was issued in the name of accused. On verification he found that there were two licenses issued at entry number 578 i.e. one with 578A/JDM/94 which was issued in the name of Nahil Kumar Tokas S/o Sukhbir and one in the name of Hardeep Singh. PW9 further deposed that on 13.08.1998, SI Anil Kumar made an application to District Magistrate, Jammu requesting for issuing record of ARM License No.578/94 of Sh. Sanjay Chaudhary which was marked to him by ADC on which he gave report Ex.PW9/B that license No.578/A/JDM stands in name of Nalim Kumar Tokas and No.578/B/JDM stands in the name of Hardeep Singh. PW9 also submitted that no documents regarding application of accused for issuing license was found and as per records no entry bearing number 578/JDM/94 pertaining to accused was there in the record and further no such license was issued to accused. Attested photocopy of the concerned record attested by ADM Jammu is Ex.PW9/C. PW9 was examined, crossexamined and was discharged.
10. PW10 Ganga Dutt Bhagat has deposed that he was posted as ADM (AC Revenue) at Jammu in the year 1994 and there were other ADMs who were delegated the power of ADM by Jammu and Kashmir Government. Sh. Surjeet Singh and Mohan Lal Rana where judicial clerk in his tenure and the record of all licenses were maintained and kept by Surjeet Singh Rana. PW10 deposed that Delhi police did not FIR No.449/1998 Page No.8 of 26 inquired from him in the year 1998. PW10 was examined, crossexamined by Ld. APP for the State, crossexamined by the accused and was discharged.
11. PW12 Inspector Anil Kumar has deposed that on 05.10.1998, he along with Inspector Jai Singh, SI Inderjeet Singh, HC Rambir and other staff went to Jammu to verify Arm License of the accused. He moved an application in the office of District Magistrate (DM) for verification of Arm License. JHC namely Govind Sharma prepared the report on the same and handed over same to him. His application and report of Govind Sharma is Ex.PW9/B. After inquiry, he came to know that at that particular time, when the armed license of accused was alleged to be issued, concerned ADM was G. D. Bhagat, JHC was Surjeet Singh and JC was Mohan Lal. He inquired from all of them and they told him that the arm license of accused was not issued by them and neither the same was in their handwriting. JHC Govind Sharma handed over to him copy of relevant entry in the register of Arm License Ex.PW9/C and he took the same into possession vide seizure memo Ex.PW4/A. He obtained specimen handwriting and signatures of G. D. Bhagat, Surjeet Singh, Mohan Lal and other suspects and send them to FSL for matching. He also deposited the case property at FSL Malviya Nagar. After obtaining FSL result, he obtained sanction under Section 39 of Arms Act, 1959 and recorded statement of witnesses. After completion of investigation, he filed the charge sheet for judicial verdict and after FIR No.449/1998 Page No.9 of 26 obtaining report from FSL regarding documents, he also filed supplementary charge sheet against accused. PW12 was examined, crossexamined and was discharged.
12. The genuineness of FSL report regarding the specimen handwriting and signatures Ex.C1 was admitted by the accused in admission/denial of documents done under section 294 of The Code of Criminal Procedure, 1973 without prejudice to his defence and contentions in course of prosecution evidence. In this matter, summons were repeatedly issued for production of arms license register through ordinary process, through DCP of area of Nangloi, through District Magistrate/Collector of Jammu, through DCP Nangloi to District Magistrate/Collector of Jammu, but in vain. Retired Inspector Jai Singh appeared before the Court on 09.11.2012 and stated on oath that he never remained posted in Special Cell during his career. ASI Om Prakash appeared before the Court on 22.05.2013 and submitted that he never remained posted in Special Cell in the year 1999 and also never participated in the investigation of the present matter. On 27.06.2013, on admission of FSL report Ex.C1 by the accused, the Ld. APP for the State submitted that only PW6 be summoned for crossexamination as his examination was not complete. On 15.07.2013 after crossexamination of the PW6, prosecution evidence was closed.
STATEMENT OF ACCUSED FIR No.449/1998 Page No.10 of 26
13. After closure of prosecution evidence, the statement of accused person was recorded under Section 313 of The Code of Criminal Procedure, 1973 read with Section 281 of The Code of Criminal Procedure, 1973. Incriminating evidence was put to him. Accused person denied all the allegations and stated that he is innocent and has been falsely implicated in this case and submitted that his license is genuine one. Accused opted not to lead evidence in his defence.
14. Thereafter, matter was fixed for final arguments and during course of final arguments, Ld. APP for the state moved an application under Section 311 of The Code of Criminal Procedure, 1973 for calling further some of the witnesses mentioned in the application. The said application was allowed on 26.04.2014 after getting reply of the defence side and after hearing both sides at length. The witnesses number eight and fifteen as per list of witnesses were summoned through IO and witnesses number nine, thirteen and fourteen were summoned through Chief Secretary, Jammu and Kashmir Government as suggested by Ld. APP for the State, but in vain as report of IO was received that witnesses number eight and fifteen have already expired and report on summons through Chief Secretary were received back with the report that Chief Secretary Office has refused to receive them. In those circumstances, further evidence was again closed on 05.08.2014 and the matter was again fixed for final arguments.
FIR No.449/1998 Page No.11 of 26
15. Final arguments heard. Record is perused.
APPRECIATION OF FACTS/CONTENTIONS/ANALYSIS & FINDINGS
16. In this matter, it is not in dispute that on 19.07.1998, the accused was found in possession of one double barrel gun Ex.P2, one pistol Ex.P1, one rifle Ex.P3, cartridges Ex.P4 (collectively), cartridges Ex.P5 (collectively) and license Ex.P10 as the accused has admitted in his statement under Section 313 of The Code of Criminal Procedure, 1973 read with Section 281 of The Code of Criminal Procedure, 1973 that the same were recovered from his possession as alleged. PW3 Sh. K. K. Upadhyay, the ballistics expert was not crossexamined by the accused person, so it is also not in dispute that the case property Ex.P1 to Ex.P5 are arms and ammunition as defined by The Arms Act 1959. In view of the evidence of prosecution witnesses PW3, PW6, PW7, PW8 and PW11 and the admission of the accused, it stands proved on record that the arms and ammunition in question and alleged license were recovered from the possession of the accused on 19.07.1998.
17. It is fairly admitted by the prosecution during oral arguments that it has not been successful in proving that license Ex.P10 was forged by accused as there is no evidence to that effect on record. Now, the only question remains to be decided is whether the prosecution has been successful in proving that license Ex.P10 is a forged FIR No.449/1998 Page No.12 of 26 document and the accused was in the possession of the same knowing that the same is forged one and he fraudulently and dishonestly used the same as genuine one. 18(a) It is the contention of the prosecution that it has come on record in the evidence of PW4, PW9 and PW12 that there exists no license in the name of the accused issued by the A.D.M., Jammu in the year 1994 of entry 578/JDM/94. It is further the contention of the prosecution that Ex.PW9/C is itself sufficient to prove that there exists no license in the name of the accused issued by the concerned Jammu authority. It is further contention of the prosecution that the FSL report Ex.C1 proves that Ex.P10 bear fake signatures of PW10 on it. It is contention of the prosecution that since, the accused is resident of Delhi and he got prepared an arms license from Jammu which could not have been possible and further since no evidence has been bought on record by defence to prove that he in fact applied to the authorities of Jammu and got issued license in question, therefore, it can be inferred that accused had knowledge that he is in possession of a fake arms license and further since he has bought arms and ammunition on the basis of fake license, therefore, he is liable to be convicted for offence punishable under section 474 of The India Penal Code, 1860 and for offence punishable under section 25 The Arms Act 1959.
18(b) On the other hand, it is the contention of the defence that the prosecution has miserably failed to prove that license in question is a fake one. It is contention of FIR No.449/1998 Page No.13 of 26 the defence that the arms register has not been brought on record by the prosecution and is merely relying upon a copy of the register. It is further contention of the defence that PW10 has not supported the case of the prosecution and he has not denied his signatures on Ex.P10. It is further contention of the defence that mere FSL report is itself not sufficient to prove the case of the prosecution that it does not bears the signatures of PW10 and therefore, is fake one. It is further contention of the defence that the license of the accused is genuine one and therefore, accused should be acquitted in this case.
18.1 This Court has considered the contentions of both sides. First, this Court takes up the matter qua evidence of PW10 and the FSL report Ex. C1. PW10 has not supported the case of the prosecution and has denied in his crossexamination by Ld. APP for the State that on 11.08.1998, one police official from Delhi police came to his house and showed him one license no. 578/JDM/94 on which their were forged signatures of PW10. He further denied that on said day, after careful examination, he told police official that said license does not bear his signatures. He further denied that his statement under Section 161 of The Code of Criminal Procedure, 1973 was recorded by the IO. He also did not depose that his specimen signatures or handwriting were taken by the IO in this case. In his crossexamination by defence he deposed that on the basis of the approval of the DM, the licenses for whole territory of FIR No.449/1998 Page No.14 of 26 India used to be issued by him. He further deposed that he cannot say with certainty that signatures on Ex.P10 are his signatures or not. Though, it has been recorded in crossexamination of PW10 by Ld. APP for the State, at one point that license is shown to the witness to identify his signatures, but he says that signatures at point 'A' on Ex.P10 are not his signatures, but the same appears to be a typing mistake as is clear from further crossexamination of PW10 by Ld. APP for the State after the said recording. Ex.C1 has been stated to have been prepared on the basis of the specimen handwriting and signatures taken by PW12 of PW10, accused, alleged Surjeet Singh, Mohan Lal and other suspects. The PW12 has not exhibited the specimen handwritings and signatures of PW10, accused and other alleged persons in his evidence which were sent for comparison to FSL on which FSL report Ex.C1 was prepared.
18.2 The guiding lamp posts which are followed invariably by Courts across India qua the evidence of a handwriting expert are two judgments of Hon'ble Supreme Court of India.
In matter of Shashi Kumar Vs. Subodh Kumar cited as AIR 1964 SC529 the Hon'ble Supreme Court of India held as under :
"(21) .............. Besides it is necessary to observe that expert's evidence as to handwriting is opinion evidence and it can rarely, if ever, take the place of substantive evidence. Before acting on such evidence it is usual to see if it is corroborated either by clear direct evidence or by circumstantial evidence. In the present case all the probabilities FIR No.449/1998 Page No.15 of 26 are against the expert's opinion and the direct testimony of the two attesting witnesses which we accept is wholly inconsistent with it."
In the matter of "Murari Lal Vs. State of MP" cited as AIR 1980 SC 531, the Hon'ble Supreme Court of India held as under : "We are firmly of the opinion that there is no rule of law, nor any rule of prudence which has crystallized into a rule of law, that the opinion evidence of a handwriting expert must never be acted upon, unless substantially corroborated. But, having due regard to the imperfect nature of the science of identification of handwriting, the approach should be one of caution. Reasons for the opinion must be carefully probed and examined. All other relevant evidence must be considered. In appropriate cases corroboration must be sought. In cases where the reasons for the opinion are convincing and there is no reliable evidence throwing a doubt, the uncorroborated testimony of a handwriting expert may be accepted."
18.3 The relevant provisions regarding proving handwriting or signatures of any person are Section 45, 46 and 47 of The Indian Evidence Act, 1872. The Sections 45 to 47 of The Indian Evidence Act, 1872 put together recognize following modes of proving handwriting and signatures : (1)By the evidence of the writer himself whose handwriting or signatures are in question, (2)By the opinion of the experts in handwriting, (3)By the evidence of the person who is acquainted with the handwriting of the person in question.
The last mode of course is Section 73 of The Indian Evidence Act, 1872 i.e. comparison by the Court itself of the handwriting or signatures in question with FIR No.449/1998 Page No.16 of 26 admitted handwriting or signatures, but the rule of prudence requires that such route should not be normally recourse to by the Courts.
18.4 In view of the above said judgments it is clear that the opinion of the expert as to handwriting can never take the place of substantive evidence and needs corroboration by either clear or direct evidence or by circumstantial evidence in type of cases like the present one. The evidence of the witness whose handwriting or signatures are in dispute is the best evidence as to prove signatures or handwriting in question as being real or fake one. In the present matter, the PW10 whose signatures at Ex.P10 have been opined to be forged one by the handwriting expert in Ex.C1 has not denied with certainty that his signatures on Ex.P10 are not his signatures. He even denied the suggestion of Ld. APP for the State that he had told the IO that the signatures on Ex.P10 does not appears to be his signatures. He did not even depose that his specimen signatures were ever taken by the IO. In case of opinion of handwriting expert which is not a 100% perfect science, there is always danger of error as human judgment is fallible. Human knowledge is limited and is imperfect and further no man can ever master all the knowledge of any of the sciences. In these circumstances, where PW10 has not denied with certainty that Ex.P10 does not bear his signatures, have not deposed that his specimen signatures or handwriting were ever taken by IO and PW10 has not exhibited the specimen handwriting and signatures FIR No.449/1998 Page No.17 of 26 which were sent by him to FSL, mere opinion of handwriting expert in the form of Ex.C1 is itself not sufficient to prove that the signatures of PW10 on Ex.P10 are fake signatures.
18.5 In matter of "Harijana Thirupala & Ors. Vs. Public Prosecutor, High Cou rt of Andhra Pradesh, Hyderabad" (2002) 6 SCC 470, Hon'ble Supreme Court of India has observed : "11. In our administration of criminal justice an accused is presumed to be innocent unless such a presumption is rebutted by the prosecution by producing the evidence to show him to be guilty of the offence with which he is charged. Further if two views are possible on the evidence produced in the case, one indicating to the guilt of accused and the other to his innocence, the view favourable to the accused is to be accepted. In cases where the Court entertains reasonable doubt regarding the guilt of the accused, the benefit of such doubt should go in favour of accused. At the same time, the Court must not reject the evidence of the prosecution taking it as false, untrustworthy or unreliable or fanciful grounds or on the basis of conjectures and surmises. The case of the prosecution must be judged as a whole having regard to the totality of evidence. In appreciating the evidence, the approach of the Court must be integrated not truncated or isolated. In other words, the impact of the evidence in totality on the prosecution case or innocence of the accused has to be kept in mind in coming to the conclusion as to the guilt or otherwise of the accused. In reaching a conclusion about the guilt of accused, the Court has to appreciate, analyse and assess the evidence placed before it by the yardstick of probabilities, its intrinsic value and the animus of witnesses. It must be added that ultimately and finally the decision in every case depends upon the facts of each case."
In matter of "Ajodhya Prosad Vs. State of Orrisa" cited as 1985 Cr. L. J. 1401, Hon'ble Supreme Court of India has held that conviction based solely on an experts opinion particularly of handwriting experts, is not permissible. FIR No.449/1998 Page No.18 of 26 18.6 In view of abovesaid case law and discussions in the opinion of this Court, mere Ex.C1 is itself not sufficient to prove that Ex.P10 bears fake signatures of PW10.
19. Now, this Court takes up the issue of certified copy Ex.PW9/C of register produced in the Court. The said copy is stated to be a certified copy of the alleged arms register. It is not in dispute that arms register is a public document within the meaning of Section 74 of The Indian Evidence Act, 1872. 19.1 The relevant provisions regarding the copy which can be said to be certified copy of public documents and its sufficiency are Section 76 and 77 of The Indian Evidence Act, 1872. The same are herein produced for the sake of clarity.
Section 76 Certified copies of public documents : -
"Every public officer having the custody of a public document, which any person has a right to inspect, shall give that person on demand a copy of it on payment of the legal fees therefore, together with a certificate written at the foot of such copy that it is a true copy of such document or part thereof, as the case maybe and such certificate shall be dated and subscribed by such officer with his name and his official title, and shall be sealed, whenever such officer is authorized by law to make use of a seal; and such copies so certified shall be called certified copies.
Explanation Any officer who by the ordinary course of official duty, is authorized to deliver such copies, shall be deemed to have the custody of such documents within the meaning of this section."
Section 77 Proof of documents by production of certified copies : "Such certified copy may be produced in proof of the contents of the public documents or parts of the public documents of which they purport to be copies." FIR No.449/1998 Page No.19 of 26 19.2 In view of above provisions, a copy of a public document must be issued on payment of legal fee and should be attached with the certificate containing following particulars :
1. That it is the true copy,
2. The date of the issue of the copy,
3. The name of the officer and his official title,
4. The seal of the office, if there is any and ;
5. It must be dated.
When a copy contains the particulars mentioned above we shall call it a certified copy.
19.3 The copy in hand Ex.PW9/C has been endorsed as P/C Attested and is not certified as being true copy. Though, it bears the seal of the office of the person issuing and his signatures, but the name of the person issuing the same is not mentioned and the date/year mentioned is incomplete. So, it is clear that the Ex.PW9/C does not satisfy the requirements of a certified copy of a public document in terms of Section 76 of The Indian Evidence Act, 1872. The original license registered was never produced before the Court. The objection by defence to the exhibition of PW9/C was taken at the time of its exhibition in the evidence of PW9. FIR No.449/1998 Page No.20 of 26 19.4 In judgment of "Hari Chand Vs. Bachan Kaur" cited as AIR 1971 Punjab 355, it has been held that if certified copy is defective, the objection to the same has to be taken at the trial Court at the time of its exhibition.
In judgment of "Shiv Kumar Gupta Vs. State" cited as 131 (2006) DELHI LAW TIMES 499, in similar matter, the Hon'ble High Court of Delhi held that where the original register has not been produced and only two pages of the same has been produced and exhibited, it cannot be said that exhibit/license is a forged one. 19.5 In view of the above since the Ex.PW9/C is not a certified copy in terms of Section 76 of The Indian Evidence Act, 1872 and objection to the same was taken by the defence at the time of its exhibition, the onus was shifted upon prosecution to bring the original register for comparison. As far as oral evidence of PW4, PW9 and PW12 is concerned, the same is also contradictory. The PW9 has deposed that on 23.05.1998 on directions of ADM Jammu, he prepared report/reply Ex.PW9/A on application of Inspector Jai Singh and further that again PW12 and other police officials came to Jammu on 13.08.1998 and he issued report Ex.PW9/B on the application of PW12 which was marked to him by ADC whereas PW12 has deposed that he went to Jammu with PW4, Inspector Jai Singh etc. on 05.10.1998. PW4 has deposed that he alongwith PW12 and Inspector Jai Singh went to Jammu on 19.08.1998. In these circumstances, oral evidence of PW4, PW9 and PW12 qua FIR No.449/1998 Page No.21 of 26 verification of the register and the alleged verification reports are even more doubtful one. In the present circumstances, where the prosecution has failed to bring the original register for comparison despite objection been taken to the exhibition of Ex.PW9/C, the oral evidence of the witnesses being contradictory, Ex.PW9/C and oral deposition of PW4, PW9 and PW12 are not sufficient to prove that there exists no entry in the Arms License Register in the name of the accused. 19.6 In matter of "Mousam Singh Roy Vs. State of West Bengal" cited as (2003) 12 SCC 377, Hon'ble Supreme Court of India has held : "27. Before we conclude, we must place on record the fact that we are not unaware of the degree of agony and frustration that may be caused to the society in general and the families of victims in particular, by the fact that a heinous crime like this goes unpunished, but then the law does not permit the Courts to punish the accused on the basis of moral conviction or on suspicion alone. The burden of proof in 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."
"........................It is also a settled principle of criminal jurisprudence that more serious the offence, the stricter the degree of proof, since a higher degree of assurance is required to convict the accused."
In matter of "Swarn Singh Rattan Singh Vs. State of Punjab" cited as 1957 Cr. J. J. 1014, it was observed that : "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 distance must be covered by legal, reliable and unimpeachable evidence before an accused can be convicted."
FIR No.449/1998 Page No.22 of 26 19.7 In view of all the above discussions, it is clear that the prosecution has not been successful in proving its case beyond shadow of doubt that license Ex.P10 is a fake license.
20. Though not relevant since in view of above discussions prosecution has not been successful in proving that Ex.P10 is a fake license, but is quite necessary in the given facts and circumstances of the case to decide the contention of the prosecution that since accused was resident of Delhi and he got issued license from Jammu and also procured arms and ammunition on the basis of the same, therefore, it can be inferred that accused had knowledge that license in question Ex.P10 is a fake license. This Court has considered the said contention of the prosecution. It has come on record in the form of evidence of PW9 and PW10 that arms licenses for all India basis used to be issued by the Jammu Authority to people who were not even residents of State of Jammu and Kashmir. In view of the same, this Court sees no force in the contention of the prosecution that it can be inferred that accused had knowledge that the license in question is a fake one only due to the fact that accused is resident of Delhi and he had in his possession license issued from Jammu authority. 20.1 Section 14 of The Indian Evidence Act, 1872 makes relevant all facts showing the existence of state of mind, such as intention, knowledge etc. when the existence of such state of mind is in issue or is a relevant fact. There can be no direct FIR No.449/1998 Page No.23 of 26 evidence as to state of mind, but state of mind can be inferred from all the other external and collateral facts by presumptive inferences from those facts. It is the case of the prosecution itself that the accused himself produced the license in question on demand. The accused also produced the arms and ammunition on demand. The accused had purchased the arms and ammunition from a license arms dealer and not from grey market. The accused did not try to run away. Neither seals and other material for preparation of fake license were recovered from the accused nor it alleged that he himself prepared the license. All these facts tend to show that the accused had no knowledge that license in question is a fake one. In these circumstances, it appears to the Court as has been the case of the prosecution itself that some racket was operating which got issued licenses to thousands of persons pan India from the authority of Jammu some being genuine and some being fake one which were otherwise not easily issued by other authorities of India. It appears to be case where the present accused was lured like many others to get issued Arms license from Jammu authority by arms license dealers. No investigation has been done by the investigating agency deliberately to unearth the real conspirators and the persons involved in preparation of fake licenses who duped persons willing to get issued arms licenses. The IO though once took the accused to the office of the arms dealer through whom he stated to have got issued the license in question, but he did nothing except FIR No.449/1998 Page No.24 of 26 giving a notice to the employee of the said arms dealer without any follow up. Had IO has done proper investigation in this matter, this case would have unearth the racket going on between the officials of Jammu Authority and the arms dealers across India of duping persons willing to get issued arms licenses. It appears that no investigation was deliberately made by the investigating agency as to whether the seals and the other papers used in the preparation of Ex.P10 were real or fake one. The investigation was also deliberately not made by the investigating agency as to how the license in question was renewed and how different licensing authorities of Punjab allowed the accused to purchase the weapons in question. As far as contentions of the prosecution that accused has not brought any evidence to show that he in fact applied for license to the concerned Jammu authority or any other relevant documents is concerned, it is well settled principle of criminal law that prosecution has to stands on its own legs and cannot take support from the weakness of the case of the defence, so there is no force in this contention of the prosecution. Reference in the said context can be made to the judgments of Hon'ble Supreme Court of India in matters of "Suchand Pal Vs. Phani Pal" (2003) 11 SCC 527 and "Narender Kumar Vs. State (NCT of Delhi)" (2012) 7 SCC 171. In the present circumstances, it can also not be inferred that the accused had the knowledge that the license in question is a fake one, even if prosecution had been successful in proving that Ex.P10 is a fake license, FIR No.449/1998 Page No.25 of 26 therefore, cannot be held liable for offence punishable under Section 474 of The India Penal Code, 1860 for this reason also. Since, prosecution has not also been successful in proving that license in question is a fake one, therefore, the accused is also entitled to benefit of doubt for offence punishable under Section 25 of The Arms Act, 1959.
21. Now, the question before this Court is what should be the fate of the case property. Since, in this matter the prosecution has not been successful in proving that license Ex.P10 is a fake license and the benefit of the same is going to be conferred upon the accused and its not the case that the accused has disproved the case of the prosecution by positive evidence to establish that license in question is a genuine one, therefore, the case property shall remain confiscated to State and be disposed off as per rules after the expiry of period of appeal.
22. In view of discussions above, in the opinion of this Court, prosecution has not been successful in proving its case beyond shadow of reasonable doubt, therefore, accused is hereby given benefit of doubt and is acquitted for offences punishable under Section 467 and 474 of The Indian Penal Code, 1860 and for offence punishable under Section 25 of The Arms Act, 1959.
Announced in the open Court on August 23, 2014.
(HARVINDER SINGH) M.M.03/THC (West), Delhi/23.08.2014 FIR No.449/1998 Page No.26 of 26