Delhi District Court
Fir No. 47/04; State vs . Mohd. Razi & Anr. Page 1 Of 28 on 25 July, 2012
IN THE COURT OF SH. YASHWANT KUMAR : ADDL. SESSIONS
JUDGE03:NW:ROHINI:DELHI
SESSIONS CASE NO. 47/09
FIR No. 47/04
P.S. Paschim Vihar
U/S: 186/353/307 IPC &
25/27/54/59 Arms Act &
4/6 Poison Act
STATE
Versus
(1) MOHD. RAZI
s/o Mohd. Hussain
r/o Mohalla Pesh Thana,
Bachhroom, Distt. Muradabad, UP
(2) MOHD. SHAKIR
s/o Mohd. Rafiq
r/o Mohalla Sarai Treen, Sambhal,
PS Hayat Nagar, Distt. Murabadad, UP
Date of Institution: 05122005
Date of arguments: 20072012
Date of judgement: 25072012
JUDGMENT
1. The case of the Prosecution, in brief, is that on FIR No. 47/04; State Vs. Mohd. Razi & Anr. Page 1 of 28 23012004 at about 5:30 pm, ASI Gopi Ram, posted in Anti Homicide Section of Crime Branch, Prashant Vihar received secret information in the office through secret informer that two persons having illegal poison and illegal weapons would come in District Park, Paschim Vihar, near DTC bus depot, Peera Garhi at about 67 pm and if raised, they can be apprehended. ASI Gopi Ram informed Inspector Ajay Sharma and ACP/AH and a raiding party consisting of SI Satish Kumar, SI Anand Singh, HC Satish Kumar, Ct. Babu Ram, Ct. Surender Singh and ASI Gopi Ram was formed under the supervision of Inspector Ajay Sharma. At about 6 pm, the raiding party along with secret informer left in private vehicle and reached near DTC bus depot at 6:30 pm where 6/7 passersby were requested to join the raiding party after apprising them about the information but all of them left the spot without telling their names and addresses. Without wasting time, ASI Gopi Ram along with raiding party and secret informer reached at Gate no. 1, District Park of Paschim Vihar and after making nakabandi, waited for the suspects. At about 6:45 pm, two persons were seen coming from the DTC bus depot side and came and stood near Gate no. 1 of District Park. Secret informer pointed out towards those persons. When ASI Gopi Ram along with raiding party tried to nab them, both FIR No. 47/04; State Vs. Mohd. Razi & Anr. Page 2 of 28 of them ran in the opposite direction. ASI Gopi Ram along with HC Satish Kumar nabbed one person whose name came to be known as Mohd. Razi r/o Muradabad, UP. The other person, on being challenged by the police party, fired with weapon on the police party and managed to flee from the spot taking advantage of darkness. On search of accused Mohd. Razi, one countrymade pistol along with one live cartridge from the right side waist of the pant of accused were recovered and one white plastic jar containing some substance wrapped in the polythene was also found. Accused Mohd. Razi was holding in his hand a polythene bag and on checking, accused Mohd. Razi told that it contains highly poisonous potassium cyanide whose delivery had to be effected by him along with his boss Shakir resident of Sambhal who had fled from the spot after firing on the police party.
2. It is further the case of the Prosecution that Inspector Ajay Sharma directed SI Sudhir Singh on telephone to reach the spot along with some chemical expert. ASI Gopi Ram handed over the suspect Mohd. Razi along with recovered desi katta and potassium cyanide to SI Sudhir Singh. The substance containing in the plastic jar was got checked through chemical expert Vinod Gupta who told that substance was like potassium cyanide and it FIR No. 47/04; State Vs. Mohd. Razi & Anr. Page 3 of 28 could be confirmed after full fledged laboratory testing. A sample of 0.5 gm of potassium cyanide was taken out and kept in a small plastic jar and the recovered poisonous substance was found to be 725 gms in weight. Sketch of recovered country made pistol and live cartridge were prepared and measurements were taken. Total length of weapon was 10.5'' out of which body was 6'' and barrel was 6.8''. The country made pistol was made of iron fitted with a spring button on the right side and its body contained 7 rivets. The length of the recovered cartridge was 3'' and embedded with KF8MM on its bottom. The country made pistol and cartridge were converted into pullanda and the jar containing poison and jar of sample poison were also converted into pullandas. The pullandas were given Sl. no. 1 to 4. All the pullandas were sealed with the seal of SS. Pullandas were taken into possession and FSL form was filled. FIR was got registered. Accused Mohd. Razi was arrested on 23012004 and his disclosure statement was recorded. During investigation, accused Mohd. Razi took the police party to Mohalla Sarai Tareen, Sambhal, Distt. Moradabad, UP from where accused Mohd. Sakir was brought to Delhi and interrogated. Accused Mohd. Sakir was arrested on 24012004 and his disclosure statement was also recorded. Accused persons were FIR No. 47/04; State Vs. Mohd. Razi & Anr. Page 4 of 28 taken to Aligarh to trace the source of potassium cyanide but the same could not be traced. On 26012004, accused Mohd. Sakir took the police party to District Park, Paschim Vihar but country made weapon could not be recovered. Sanction u/s 39 Arms Act was obtained from DCP/Crime and Railways. On completion of investigation, chargesheet was filed in the court u/s 186/353/307 IPC, 25/27/54/59 Arms Act & 4/6 Poison Act, 1919.
3. After compliance of Section 207 Cr.P.C., the case was committed to Sessions Court. Charge under Section 186/353/34 IPC was framed against both the accused and charge u/s 307 IPC was framed against accused Mohd. Shakir and separate charges u/s 25/54/59 Arms Act and u/s 6 Poison Act, 1919 were framed against accused Mohd. Razi to which they pleaded not guilty and claimed trial.
4. In order to prove its case, Prosecution has examined 13 witnesses. Statements of accused were recorded u/s 313 Cr.P.C. therein they denied all the allegations made against them. Accused Mohd. Razi opted to lead defence evidence. However, no evidence was led by him and thereafter, the accused closed the defence evidence.
5. I have heard Ld. Defence counsel and the Ld. APP for FIR No. 47/04; State Vs. Mohd. Razi & Anr. Page 5 of 28 State and have perused the entire records.
6. Ld. Counsel for accused has argued that the accused persons have been falsely implicated in this case since no raid was conducted. Secret informer was also not with the raiding party. The person who took the raiding party in the vehicle was not examined. No call on PCR/ 100 number was made by the raiding team members. Neither any recovery was effected from the accused persons nor disclosure statement was made by the accused persons. The case property was not sent with the rukka. All the paper work was done while sitting in the PS. No public witness was joined in the investigation. There are major contradictions in the testimony of PWs. Cyanide is not poison, therefore, report of the FSL is negative since no poisonous content found. The accused have been picked up and charged in this case. The Ld. Counsel for the accused, in support of the arguments, relied upon the judgements reported in the case of Staila Sayyed Vs. State, 2008 (4) JCC 2840 and Ritesh Chakarvarti Vs. State of MP, (2007) 1 Supreme Court cases (Cri) 744.
7. Whereas, the Ld. APP for State has argued that on 23012004, ASI Gopi Ram received secret information that the accused persons having poison would come to District Park, FIR No. 47/04; State Vs. Mohd. Razi & Anr. Page 6 of 28 Paschim Vihar, near Peera Garhi, DTC bus depot at about 67 pm for the supply of poison. The accused persons were also having illegal weapons. Police conducted the raid at the said place and tried to apprehend the accused persons. Accused Mohd. Razi was apprehended at the spot who was carrying desi katta and a live cartridge and also powder i.e. potassium cyanide in a plastic container. The other accused Mohd. Shakir fled away from the spot. Chemical examiner was also called at the spot. As per FSL report Ex. PW1/A, the country made pistol was found in working condition. Even the cartridge was also live. Weapons have been proved by the prosecution witnesses. So far as contradictions are concerned, they are the minor contradictions which do not go to the root of the case. In criminal cases, public witnesses generally do not join the investigation. If there is any fault in investigation, the accused cannot take benefit out of it. In support of his arguments, Ld. APP for State has relied upon the judgements reported in the case of Paramjeet Singh @ Pamma Vs. State of Uttarakhanda, AIR 2011 SC 200; Dhanaj Singh alias Shera and others Vs. State of Punjab, AIR 2004 SC 1920; Khujji alias Surendra Tiwari Vs. State of MP, 1991 CRI.L.J. 2653(1) and State of UP Vs. Krishna Master & Ors., 2010 CRI. L.J. 3889.
FIR No. 47/04; State Vs. Mohd. Razi & Anr. Page 7 of 28
8. In view of the above arguments of the Ld. Defence counsel and the Ld. APP for the State as well as the judgements relied upon by them, let us examine the evidence led in this case as to whether the accused persons committed the offence as per charges framed against them or whether they have been falsely implicated in this case. PW1 Puneet Puri, Sr. Scientific Assistant, Ballistic, FSL Rohini deposed that on 19022004, one sealed parcel sealed with the seal of SS of case FIR no. 47/04 PS Paschim Vihar was deposited in FSL containing one country made pistol .315 inch bore and one 8 mm/ .315 inch cartridge which were marked as Ex. F1 and A1 by him. He deposed that country made pistol Mark Ex. F1 was in working order and firearm and cartridge Mark Ex. A1 was live and ammunition. He proved his report Ex. PW1/A and identified the country made pistol Ex. P1 and test fired cartridge Ex. P2 in the court. PW2 HC Satbir Singh identified the signatures of Sh. Tejender Luthra, the then DCP, Crime & Railways at point A on sanction order u/s 39 Arms Act dated 31082004 Ex. PW2/A as he had worked in SO Branch in his office. He also brought the official record of the said order.
9. PW3 ASI Jagdish Prasad deposed that on 19022004, he was posted at AntiHomicide Section, Crime Branch and on the FIR No. 47/04; State Vs. Mohd. Razi & Anr. Page 8 of 28 instructions of SI Sukhbir Singh, he took desi katta sealed with the seal of SS and FSL form vide RC no. 284/21/04 dated 19022004 from PS Paschim Vihar and deposited the same at FSL Rohini. On 23022004, he took the sealed pullanda bearing the seal of SS containing sample cyanide from PS Paschim Vihar vide RC no. 287/21/04 and deposited the same at CFSL, Lodhi Road. PW4 ASI Madan Singh deposed that on 23012004, he working as DO at PS Paschim Vihar and HC Balinder Singh brought a rukka sent by SI Sudhir Singh on the basis of which, he registered the FIR Ex. PW4/A and made endorsement on the same Ex. PW4/B.
10. PW5 ASI Satish Kumar deposed that on 23.01.2004, he was posted as HC in the office of Crime Branch in AntiHomicide Section, Prashant Vihar, Rohini, Delhi. At about 6.00 pm, a secret information was received that 23 persons shall come at District Park, Paschim Vihar having poison for supply and they were having illicit weapons and can be apprehended. Inspector Ajay Sharma organized a raiding party comprised of SI Anand Singh, SI Satish Kumar, ASI Gopi Ram, Constable Babu Ram, Constable Surender and PW5. They reached DTC Bus Depot Peera Garhi at 6.30 pm in a private vehicle. Twofour persons were requested to join the raiding party but they refused expressing their inability. They then FIR No. 47/04; State Vs. Mohd. Razi & Anr. Page 9 of 28 went to District Park, Paschim Vihar from gate No. 1. After about ten minutes, two persons were seeing coming from opposite side. ASI Gopi Ram told them that they were to be apprehended. ASI Gopi Ram asked them to stop but they tried to flee away. PW5 and ASI Gopi Ram chased and apprehended one of them whose name later on came to be known as Mohd. Razi (correctly identified). A polythene bag was recovered from the right hand of accused Mohd. Razi. On the formal search of the right pocket of pant of Mohd. Razi, a Desi Katta loaded with a live cartridge was recovered. On checking the polythene bag, a plastic jar having some white colour substance was recovered. Inspector Ajay Sharma called an expert who opined that the substance in the plastic jar was Potassium Cyanide. Five milligrams of sample was taken out from the plastic jar. On measurement, the total substance i.e. Potassium Cyanide was found to be 735 gms. The sketch Ex. PW5/A of the Katta and the cartridge was prepared. The Katta and the cartridge were sealed with the seal of SS and were seized vide memo Exbt. PW5/B. The plastic jar which contained Potassium Cyanide and the sample were kept in separate cloth pullandas and were sealed with the seal of SS and then seized vide separate memos. Seal after use was handed over to PW5. The second person who was FIR No. 47/04; State Vs. Mohd. Razi & Anr. Page 10 of 28 with accused Mohd. Razi had fled away and could not be apprehended on that day. PW5 identified the case property i.e. desi katta as Exbt. P1; cartridge as Exbt. P2 and plastic jar containing some substance as Exbt. P3.
11. PW6 W/ASI Praveen Bala deposed that on 23012004 she was posted at Antihomicide section, Crime Branch, Prashant Vihar as DO and DD Writer. On that day at about 5:30 pm, ASI Gopi Ram in office received a secret information that two persons at District Park, Paschim Vihar, West District in front of main gate would come for supply of poison between 6 pm to 7 pm and they were having illegal weapons. The aforesaid information was passed over by ASI Gopi Ram to Inspector Ajay Sharma, who on the instructions of ACP, constituted a raiding party consisting of SI Satish Kumar, SI Anand Singh, HC Satish Kumar, Ct. Babu Ram, Ct. Surender, ASI Gopi Ram and secret informer and left in private vehicles. PW6 made entry in register vide DD no. 5 dated 23012004 Ex. PW6/A. On the same day, PW6 also recorded DD no. 6 Ex. PW6/B at about 7 pm when Inspector Ajay Sharma telephonically informed that one person was apprehended with illegal weapon and poison Potassium Cyanide and one person managed to flee away after firing at the police party and asked to FIR No. 47/04; State Vs. Mohd. Razi & Anr. Page 11 of 28 send SI Sudhir Singh along with chemical expert to the spot. PW6 informed SI Sudhir Singh for further necessary action. On the same day at about 7:20 pm, PW6 recorded the departure entry of SI Sudhir Singh, Chemical expert Sh. Vinod Gupta along with HC Balender Singh and Ct. Narender in private vehicle to the spot, main gate no. 1, District Park, Paschim Vihar, Delhi as Ex. PW6/C (OSR).
12. PW7 Inspector Sudhir Singh deposed that on 23012004, he was posted as SI in AntiHomicide Section, Prashant Vihar, Delhi. At about 7:30 pm, on call of Inspector Ajay Sharma, he along HC Balender and private chemical expert Vinod Gupta reached at Gate no. 1, Paschim Vihar on a private vehicle. Inspector Ajay Sharma, ASI Gopi Ram, SI Satish Kumar, HC Satish Kumar and other staff met him at the spot. Accused Mohd. Razi (correctly identified) was also present there. ASI Gopi Ram handed over a plastic jar, a desi katta and a live cartridge to him and produced accused Mohd. Razi. Chemical expert Vinod Gupta after checking the powder in the plastic jar, gave the opinion that it was Potassium Cyanide. Half gram of Potassium Cyanide was taken out as sample from the plastic jar. The plastic jar containing the sample was sealed with the seal of SS and seized by him vide memo Ex. PW7/A. The plastic jar containing the remaining powder of FIR No. 47/04; State Vs. Mohd. Razi & Anr. Page 12 of 28 Potassium Cyanide weighing about 725 gms and polythene bag in which the plastic jar containing Potassium Cyanide was recovered were kept in separate cloth pullandas and sealed with the seal of SS and then seized by him vide memo Ex. PW7/B and PW7/C. The katta and cartridge were kept on a paper and a sketch Ex. PW5/A was prepared. The length of barrel was 6 inch and the length of the butt was 6.8 inch. There was a button on the barrel of the katta with the help of which katta could be opened. There were seven rivets on the butt of the katta. On measurement, the length of the cartridge was 3 inches. KF 8 mm was written on the base of the cartridge. The katta and the cartridge were kept in cloth pullanda and sealed with the seal of SS and then seized vide memo Ex. PW5/B. Seal after use was handed over to HC Satish Kumar. FSL form was filled up. PW7 recorded statement of ASI Gopi Ram Mark A and made endorsement and prepared the rukka Ex. PW7/D and got the FIR registered through Ct. Balender. Accused Mohd. Razi (correctly identified) was arrested vide memo Ex. PW7/E and personal search was conducted vide memo Ex. PW7/F. On interrogation, accused Mohd. Razi gave a disclosure statement Ex. PW7/G.
13. PW7 further deposed that accused Mohd. Razi was FIR No. 47/04; State Vs. Mohd. Razi & Anr. Page 13 of 28 taken to Sambhal, Distt. Muradabad in Govt. vehicle. Coaccused Mohd. Shakir (correctly identified) was apprehended from Mohalla Sarai Tareen, Sambhal Muradabad on the pointing out of accused Mohd. Razi. Accused Mohd. Shakir was brought to the O/o Crime Branch and after interrogation, he was arrested vide arrest memo Ex. PW7/H and personal search was conducted vide memo Ex. PW7/I. On interrogation, accused Mohd. Shakir gave disclosure statement Ex. PW7/J. Accused were taken to Aligarh but the source of recovery of Potassium Cyanide could not be recovered. Accused Mohd. Shakir then pointed out the bushes at District Park, Paschim Vihar where he concealed the katta vide pointing out memo Ex. PW7/K. After receipt of result from CFSL Ex. PW7/L, sanction was obtained from DCP u/s 39 Arms Act. He also obtained complaint u/s 195 Cr.P.C. from ACP. PW7 further deposed that he also got recorded DD no. 9 Ex. PW7/M in Roznamcha dated 23/24012004 on return from Muradabad. In response to leading question put by Ld. APP for State, he deposed that he prepared the site plan Ex. PW7/N on the pointing out of ASI Gopi Ram. He deposed that total length of katta was 10.5 inches, the length of barrel was 6.8 inches and length of butt was 6 inches and there was spring button at the right side of katta. PW7 also identified the case property i.e. Desi FIR No. 47/04; State Vs. Mohd. Razi & Anr. Page 14 of 28 katta as Ex. P1; cartridge as Ex. P2; plastic jar containing some substance as Ex. P3; small plastic jar as Ex. P4 in which the sample was kept; polythene bag as Ex. P5 being the same in which the plastic jar containing the powder stated to be Potassium Cyanide recovered from accused Mohd. Razi.
14. PW8 Retd. ACP Ram Kishan deposed that on 30112005, he was posted as ACP in AntiHOmicide Section, Crime Branch, Prashant Vihar and on that day SI Sudhir Singh, IO of the case put up the draft challan and case file of case FIR no. 47/04 for complaint u/s 195 Cr.P.C. After inspection of file and his satisfaction, he prepared a complaint u/s 195 Cr.P.C. Ex. PW8/A. PW9 HC Balinder deposed that on 23.01.2004, he was posted in Anti Homicide Section, Crime Branch, Prashant Vihar as Head Constable and joined the investigation of the case with SI Sudhir Kumar. At about 7.45 pm, he along with SI Sudhir Kumar, HC Narender reached gate No. 1 District Park Paschim Vihar near DTC Bus Depot, Peera Garhi where Inspector Ajay Sharma, SI Satish Kumar, SI Anand Singh, HC Satish, Constable Babu Ram and ASI Gopi Ram met them. Accused Mohd Razi (correctly identified) was produced by ASI Gopi Ram and SI Anand Singh. SI Sudhir Kumar prepared the Rukka and FIR was got registered through PW9. After FIR No. 47/04; State Vs. Mohd. Razi & Anr. Page 15 of 28 registration of the FIR, he returned back at the spot and handed over the copy of the FIR and Rukka to SI Sudhir Kumar. In response to leading question put up by Ld. APP for State, PW9 deposed that SI Sudhir Kumar had recorded the statement of ASI Gopi Ram.
15. PW10 Sh Ajay Sharma deposed that on 23.01.2004, he was posted as Inspector in Anti Homicide Section, Crime Branch, Prashant Vihar. On that day, ASI Gopi Ram received a secret information that two persons having poison would come to District Park Paschim Vihar near Peera Garhi DTC Bus Depot at about 6.00 7.00 pm for the supply of poison and that they were also having illicit weapons and can be apprehended. PW10 organized a raiding party comprising of SI Satish Kumar, SI Anand Singh, ASI Gopi Ram, HC Satish and other police staff. At about 6.00 pm, they left the office at Prashant Vihar in private vehicle and reached the DTC bus depot Peera Garhi at about 6.30 pm with secret informer. Fiveseven passersby were requested to join the raiding party but they refused. At about 6.45 pm, two persons came from the side of District Park and ASI Gopi Ram pointed out that they were the same persons in whose search they had come. They tried to apprehend them but they ran towards opposite directions. PW10 and SI Satish FIR No. 47/04; State Vs. Mohd. Razi & Anr. Page 16 of 28 Kumar chased one boy who was running towards the District Park. While they were chasing him, he fired at them but luckily they escaped. After firing at them, he managed to escape and could not be apprehended. PW10 and SI Satish Kumar returned back towards gate No. 1 where ASI Gopi Ram and HC Satish Kumar had apprehended the accused Mohd. Razi who was carrying a plastic bag in his right hand.
16. PW10 further deposed that on formal search, a 38 bore Desi Katta was recovered from dub of accused. The Katta was unloaded and a live cartridge was brought out. The polythene bag contained a powder in a plastic container. Accused Mohd. Razi disclosed that the plastic container contained Potassium Cyanide and the name of the second person who had fled away after firing at the police party was Mohd. Shakir. PW10 identified the accused Mohd. Shakir present in court (correctly identified). PW10 called SI Sudhir Singh at the spot telephonically who came at the spot with a chemical expert. SI Sudhir Singh prepared the sketch Ex. PW5/A of Desi Katta and live round. The Katta and the round were kept in a pullanda and sealed with the seal of SS and then seized vide memo Exbt. PW5/B. Sample of Potassium Cyanide was taken out from plastic container. The plastic container containing Potassium FIR No. 47/04; State Vs. Mohd. Razi & Anr. Page 17 of 28 Cyanide and the sample were kept in separate pullandas and sealed with the seal of SS and then seized vide memo Exbt. PW7/A. PW10 identified the Desi Katta Ex. P1 and used cartridge as Exbt. P2, plastic jar containing the substance as Exbt. P3 and plastic jar containing the remnant sample as Exbt. P4. In response to leading question put up by Ld. APP for State, PW10 deposed that Katta recovered was of .315 bore and that accused Mohd. Razi disclosed that Mohd. Shakir was his boss and had come for making delivery of Pottasium Cyanide. He also deposed that Katta was recovered from the right dub of pant of accused Mohd. Razi.
17. PW11 HC Rajpal Singh deposed that on 23.01.2004, he was posted at PS Paschim Vihar as MHCM. On that day, SI Sudhir Singh deposited one sealed pullanda sealed with the seal of SS containing one country made pistol and a cartridge, one another pullanda sealed with the seal of SS containing sample of Potassium Cyanide, one another pullanda sealed with the seal of SS containing white powder (Pottasium Cyanide) and one another sealed pullanda sealed with the seal of SS containing polythene bag and the personal search of accused accused Mohd. Razi in which respect, he made entry at serial No. 3200 in Register No. 19 as Exbt. PW11/A (OSR). On 19.02.2004, the exhibit containing FIR No. 47/04; State Vs. Mohd. Razi & Anr. Page 18 of 28 country made pistol and cartridge duly sealed were sent to FSL Rohini through HC Jagdish Prasad vide RC No. 284/21/04 who on return, handed over the receipt to him. On 23.02.2004, the plastic jar containing sample white powder (Potassium Cyanide) duly sealed was sent to CFSL Lodhi Road through HC Jagdish Prasad who on return, handed over the receipt to him. On 27.07.2006, the FSL result already exhibited as Exbt. PW1/A in respect of the country made pistol and live cartridge was received along with exhibit duly sealed with the seal of PP FSL DELHI. On 14.06.2004, the FSL result Exbt. PW7/L of the sample white powder (Potassium Cyanide) was received along with exhibit of sample sealed with the seal of PN CHM DIV CFSL CBI NEW DELHI.
18. PW12 Sh. Tejinder Luthra, Joint CP, Special Branch, Delhi Police, New Delhi deposed that on 31.08.2004, he was posted as DCP, Crime & Railway, Delhi and on that day, IO of the present case produced draft report of 173 Cr. PC, statement of prosecution witnesses recorded under Section 161 Cr. PC and the documents relied upon by the police including FSL report and seizure memo. Accused was found in possession of country made pistol of .315 bore along with one live cartridge without valid arm license in contravention of Section 3 of Arms Act, 1959. After perusing the FIR No. 47/04; State Vs. Mohd. Razi & Anr. Page 19 of 28 aforesaid documents, PW12 accorded sanction under Section 39 Arms Act dated 31082004 Ex. PW2/A against accused Mohd. Razi son of Mohd. Hussain, resident of Mohalla Pesh Thana, Bachhroom, District Moradabad, Delhi for prosecution under Section 25 Arms Act. PW13 Ms. Meena Sharma, Lab Assistant, CFSL, CBI identified the handwriting of Sh. P. Nath, SSO (Chemistry) CFSL on report Ex. PW7/L.
19. The Ld. Counsel for the accused argued that there are contradictions in the testimonies of the witnesses of the prosecution, therefore, it shall not be safe to convict the accused persons on the basis of the uncorroborated testimonies of the police witnesses. Let us discuss whether there are contradictions in the testimonies of PWs. In his examination in chief, PW5 deposed that at about 6 pm secret information was received and he along with the raiding team members reached DTC Bus Depot, Peera Garhi at 6:30 pm in private vehicle. Whereas, PW6 in her chief deposed that on 23012004, at about 5:30 pm ASI Gopi Ram in office received secret information and they left in private vehicles. Meaning thereby, there is contradiction between the time, one witness says 6:30 pm and the other witness says 5:30 pm. There is also a contradiction about the vehicle in which they went since one witness FIR No. 47/04; State Vs. Mohd. Razi & Anr. Page 20 of 28 says by "vehicle" and other witness says by "vehicles". PW5 deposed in his examination in chief that ASI Gopi Ram chased the accused persons at the spot and apprehended accused Mohd. Razi. The other accused who was with accused Mohd. Razi had fled away and could not be apprehended on that day. Whereas, PW6 deposed in her examination in chief that one person managed to flee away after firing at the police party. PW10 in his examination in chief also deposed that they tried to apprehend the accused persons but they ran towards opposite directions. Here also, different versions are coming from the mouth of PW5, PW6 and PW10.
20. During crossexamination by Ld. APP for State, PW5 deposed that he cannot say that accused Mohd. Razi and his companion were coming from the side of DTC bus depot towards gate no. 1, District Park at about 6:45 pm. He was confronted with portion A to A of statement Mark PW5/A where it was so recorded. PW5 further deposed that he does not know that accused Mohd. Shakir resident of Sambal, fled away after firing at the police party. PW5 was confronted with portion B to B of statement Mark PW5/A where it was so recorded. During crossexamination by Ld. Defence counsel, PW5 deposed that they went in a car and he was not FIR No. 47/04; State Vs. Mohd. Razi & Anr. Page 21 of 28 carrying any weapon. PW5 also deposed in his crossexamination that informer did not accompany them to the spot. Here I take a pause. If informer did not go along with the raiding party, then how raiding party could identify that the accused are the same persons. PW5 further deposed in his crossexamination that he came back to the office at Prashant Vihar in a car. 45 persons of police staff also returned with him at Prashant Vihar office but he could not tell their names. It is strange that 45 police officials returned along with PW5 who is also police official but he does not know the name of even single police official. PW5 further deposed in cross examination that he returned back the seal after about a month and he made no arrival entry at the PS. In my view, if the seal was kept with PW5 and returned after one month, it creates doubt about authenticity of the seal.
21. During crossexamination, PW7 deposed that he cannot tell the time when Chemical Examiner was called. Chemical examiner reached there between 8 to 9 pm. They went at the spot in a private car of a known person. PW7 did not record the statement of said known person nor made him witness. PW7 admitted that they were not carrying any weapon or wireless set and they were emptyhanded. PW7 further admitted in cross FIR No. 47/04; State Vs. Mohd. Razi & Anr. Page 22 of 28 examination that case property was not sent to PS with rukka. The sealing material was in the IO box. PW7 also admitted that he did not inform the local police. PW7 could not tell the distance of house of accused Mohd. Razi from the border of Sambal. PW7 did not remember whether the house of Mohd. Shakir was a single storey or a double storey house or whether there were houses on the left and right side of the house of accused Mohd. Shakir. It is again surprising fact that PW7 even could not tell a single word about the location of the house of accused Mohd. Shakir. PW7 further admitted in his crossexamination that he did not inform the local police before bringing accused to the office of Crime Branch. During crossexamination, PW10 deposed that he met the informer when they were leaving for the raid at about 5 pm. It is strange that raiding team members had gone to the spot in four wheeler private vehicle but PW10 did not remember the number and make of vehicle and even he could not recall the name of the driver. PW10 further admitted in his crossexamination that they tried to search for the empty shell but same could not be recovered due to night hours. Thereafter, he did not make efforts to locate the empty shell. PW10 also admitted in crossexamination that they did not make any complaint in the local PS regarding the incident of firing upon them. FIR No. 47/04; State Vs. Mohd. Razi & Anr. Page 23 of 28
22. It is not a case where the accused were apprehended by chance. If the prosecution story is to be believed, police had advance information of coming of the accused persons at a particular place. Thus, police had sufficient time and opportunity to join independent persons in the raiding party. However, this was not done. PW5 in his crossexamination deposed that no notice in writing was served to the public persons on their refusal to join the raiding party. However, the learned APP argued that the witnesses including first IO Inspector Ajay Sharma deposed that on reaching DTC bus depot Peera Garhi at about 6:30 pm with secret informer, 57 passersby were requested to join the raiding party but they had refused to join raiding party. PW10 admitted that no notice was served on the public persons who refused to join the raid. Admittedly, the names and address of those persons were not noted which is also reflecting from the statements given by the PWs during their crossexamination. The explanation given that public persons had refused to join the raiding party therefore is not acceptable and looks flimsy. In the case of State of Rajasthan Vs. Teja Singh 2001 (II) AD (SC) 125, the Hon'ble Supreme Court held that the failure of the prosecution to examine independent witnesses though available is fatal for their case. In the case title State of Punjab Vs. FIR No. 47/04; State Vs. Mohd. Razi & Anr. Page 24 of 28 Gurdyal Singh 1992 (1) RCR (DB) 646, Roop Chand Vs. State of Haryana 1989 (2) RCR 504 and State of Punjab Vs. Sukhdev Singh 1992 (3) RCR 311, it was held by the Hon'ble Court that where the IO has failed to even note down the names and addresses of the persons, who have refused to join as public witnesses, coupled with the fact that no action was taken against them, the case is rendered doubtful.
23. The Ld. Counsel for the accused also argued that the recovery witnesses are police officials and no public witness was joined in the recovery. The police officials are only interested in the success of their story and therefore the testimonies of police officials cannot be believed without corroboration. In my considered opinion, statutory desirability in the matter of search and seizure is that there should be support from unbiased and neutral corner. The search before an independent witness imparts much more authenticity and credit worthiness to the search and seizure proceedings. Such safeguard is intended to avoid criticism of arbitrary and highhanded action against police officers. This is to lend credibility to the procedure relating to search and seizure. In the present case, the explanation for not associating independent witnesses is not satisfactory more so when they were available right at the elbow. In FIR No. 47/04; State Vs. Mohd. Razi & Anr. Page 25 of 28 the case of Nanak Chand Vs. State of Delhi 1991 JCC 1, in a case under Section 25 Arms Act, the Hon'ble High Court held that the recovery is proved by three police officials who have differed on who snatched the Kirpan from the petitioner and at what time. The recovery was from a street with houses on both sides and shops nearby. And, yet no witness from the public has been produced. Not that in every case the police officials are to be treated as unworthy of reliance but their failure to join witnesses from the public especially when they are available at their elbow, may, as in the present case, cast doubt. They have again churned out a stereotyped version. Its rejection needs no Napoleon on the Bridge at Arcola. In Staila Sayyed Vs. State 2008 (4) JCC 2840, it was held that there was nonjoining of public witness at the time of arrest of accused and recoveries. All the witnesses to the recoveries were police officials. Such recoveries do not inspire confidence. Therefore, in the present case, major contradictions have been found in the testimony of PWs and further the presence of recovery witnesses at the spot and the recovery of country made pistol, cartridge and poisonous substance from the accused in their presence in the manner stated by them appears to be doubtful. It seriously reflects upon the veracity of the prosecution version and FIR No. 47/04; State Vs. Mohd. Razi & Anr. Page 26 of 28 creates a good deal of doubt about the recovery of country made pistol, cartridge and poisonous substance in the manner alleged by the prosecution. Vinod Gupta, Chemical Expert who was called at the spot on 23012004 also told after checking the substance contained in the plastic jar that the substance was like potassium cyanide and it could be confirmed after full fledged laboratory testing. Moreover, PW13 has categorically deposed in her examinationinchief that Cyanide itself is not a compound, therefore, it was not possible to say that compound mentioned in the report Ex. PW7/L is a poison or not. The judgements relied upon by the Ld. APP for State are not applicable to the facts and circumstances of the present case. In Vikramjit Singh @ Vicky Vs. State of Punjab, 2007 (1) CC Cases (SC) 35, it was held by the Hon'ble Supreme Court that where two views of a story appeared to be probable, the one that was contended by the accused should be accepted.
24. In view of my aforesaid discussion, I am of the considered opinion that prosecution has failed to prove its case against the accused persons beyond reasonable doubt, the benefit of which goes to the accused persons. Accordingly, both accused namely Mohd. Razi and Mohd. Shakir are acquitted. Bail bonds of FIR No. 47/04; State Vs. Mohd. Razi & Anr. Page 27 of 28 accused are cancelled. Their sureties are discharged. Documents of sureties, if any, be released after cancellation of endorsement. Case property be confiscated to the State after expiry of period of limitation for filing appeal. File be consigned to Record Room.
(YASHWANT KUMAR) ADDL. SESSIONS JUDGE:NW03:ROHINI:DELHI.
ANNOUNCED IN THE OPEN COURT on 25072012 FIR No. 47/04; State Vs. Mohd. Razi & Anr. Page 28 of 28