Delhi District Court
Criminal Case/180/2011 on 25 February, 2013
IN THE COURT OF METROPOLITAN MAGISTRATE-09,
SOUTH-WEST DISTRICT, DWARKA COURTS, NEW DELHI
Presided by: Ms. Manika
State v. Abdul @ Tippu Sultan
FIR No. 180/2011
Police Station : Baba Haridass Nagar
Under Section : 25 Arms Act, 1959
Unique Case ID Number: 02405R0135842012
Date of institution : 10.01.2012
Date of reserving : 23.02.2013
Date of pronouncement: 25.02.2013
JUDGMENT
a) Serial number of the case : 01/05/12
b) Date of commission of offence : 28.10.2011
c) Name of the complainant : Sub Inspector Birender
d) Name, parentage and address : Sh. Abdul @ Tippu Sultan of the accused S/o Shakur Sheikh R/o Jhuggi No.151 W-49, F-
block, Sultan Puri, Delhi
e) Offence complained of : Section 25 Arms Act, 1959
f) Plea of the accused : Pleaded not guilty
g) Final order : Acquitted
State v. Abdul @ Tippu Sultan
FIR No. 180/2011 P.S.: Baba Haridas Nagar Page 1 of 20
h) Date of final order : 25.02.2013
BRIEF FACTS AND REASONS FOR DECISION OF THE CASE
1. Vide this judgment the accused is being acquitted of the offence punishable under Section 25 of the Arms Act, 1959 (hereinafter referred to as 'Act') in this case FIR No. 180/2011 police station Baba Haridas Nagar by giving benefit of doubt for the reasons mentioned below.
CASE OF PROSECUTION
2. Briefly stated, the case of the prosecution as unfolded by the police report under Section 173 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C.') is that on 28.10.2011 at about 06.20 p.m. at Nangloi Road, in front of Dichaun Depot, New Delhi within the jurisdiction of police station Baba Haridas Nagar the accused was found in possession of one country-made pistol and one live cartridge in contravention of the notification issued by the Delhi Administration.
COURT PROCEEDINGS
3. Upon completion of investigation, police report under Section 173 of the Cr.P.C. was filed.
4. The copies of the police report and annexed documents were supplied to the accused in due compliance of Section 207 Cr.P.C.
5. The case was received by way of transfer by this Court on State v. Abdul @ Tippu Sultan FIR No. 180/2011 P.S.: Baba Haridas Nagar Page 2 of 20 02.04.2012.
CHARGE
6. Vide order dated 13.07.2012, charge for the offence under Section 25 of the Act was framed against the accused to which he pleaded not guilty and claimed trial.
ADMISSION/DENIAL OF DOCUMENTS
7. Vide orders dated 13.07.2012 and 01.11.2012, in compliance of the provisions of Section 294 Cr.P.C., the accused was called upon to admit or deny the FIR No. 180/2011 under Section 25 Arms Act police station Baba Haridass Nagar and FSL report dated 14.11.2011 No. F6496, which were admitted by the accused and accordingly exhibited as Ex. P/A/1 and Ex. P/A/2 respectively. In view of the admission made, the evidence of the duty officer Assistant Sub-Inspector Radha Krishan and Dr. N.P. Waghmare, Assistant Director (Ballistics) was dispensed with.
EVIDENCE OF THE PROSECUTION
8. To prove its case, the prosecution in all examined eight witnesses.
9. PW-1 Head Constable Rakesh is one of the recovery witnesses. He deposed that on 28.10.2011, he along with Sub-Inspector Birender and Constable Devinder were on patrolling duty at Nangloi Road near Dichaun Enclave more. At about 06.00 p.m., one secret informer informed Sub-Inspector Birender that one boy aged about 20-22 years State v. Abdul @ Tippu Sultan FIR No. 180/2011 P.S.: Baba Haridas Nagar Page 3 of 20 wearing a green coloured T-shirt and black coloured lower (pyjama) was sitting at Bus Stand, Dichaun Depot and he was carrying illegal weapons. Sub-Inspector Birender requested to 4-5 passersby to join the investigation but they refused and left without disclosing their addresses. Sub-Inspector Birender prepared a raiding party and they reached at Dichaun Depot bus stand, where at the instance of the secret informer they apprehended a boy whose name was revealed as Abdul @ Tippu Sultan. Sub-Inspector Birender took a cursory search of the accused and found one katta from the right pocket of his pyjama. The investigating officer checked the katta and found one live cartridge inside the same. The investigating officer prepared a sketch of the katta and live cartridge Ex. PW1/A, sealed the katta and live cartridge in a white pullanda with the seal of BSY and seized the same vide seizure memo Ex. PW1/B, filled FSL form, and prepared tehrir and handed over the same to Constable Devinder for registration of the FIR. After registration of FIR Constable Devinder returned to the spot and handed over copy of FIR and original tehrir to the investigating officer. The investigating officer seized one mobile phone make Samsung recovered from the possession of the accused during his personal search vide seizure memo Ex.PW1/C and recorded the disclosure statement of the accused Ex.PW1/D. In the meantime, Assistant Sub-Inspector Dharambir reached at the spot and Sub- Inspector Birender handed over all documents pertaining to the case, the accused and the case property to the second investigating officer Assistant Sub-Inspector Dharambir. Assistant Sub-Inspector Dharambir prepared site plan at the instance of Sub-Inspector State v. Abdul @ Tippu Sultan FIR No. 180/2011 P.S.: Baba Haridas Nagar Page 4 of 20 Birender, arrested the accused vide arrest memo Ex. PW1/E and conducted his personal search vide memo Ex. PW1/F. PW-1 identified the accused in court. He also identified the case property i.e. katta Ex. P-1 and cartridge Ex. P-2 as being the same that were recovered from the possession of the accused.
10. PW-2 Sub-Inspector Birender is the first investigating officer as well as a recovery witness. He deposed on the same lines as PW-1. identified the accused in court. He also identified the case property i.e. katta Ex. P-1 and cartridge Ex. P-2 as being the same that were recovered from the possession of the accused.
11. PW-3 Constable Devinder is also a recovery witness. He supported the testimony of PW-1. He identified the accused in court. He identified the katta Ex. P-1 as well as one empty and one live cartridge Ex. P-2 collectively as those which were recovered from the possession of the accused.
12. PW-4 Head Constable Kishan Lal is the police official who had carried the case property to the forensic science laboratory. He deposed that on 31.10.2011 he had taken the exhibits of the present case from the malkhana vide RC No. 102/21/2011 for depositing the same at Forensic Science Laboratory, Rohini. He deposited the same at FSL, Rohini against proper receipt. He handed over the receipt to the MHC(M) and receiving form to the investigating officer. He deposed that during his custody the case property was not tampered with.
State v. Abdul @ Tippu Sultan FIR No. 180/2011 P.S.: Baba Haridas Nagar Page 5 of 20
13. PW-5 Assistant Sub-Inspector Dharamvir Singh is the second investigating officer. He deposed that on 28.10.2011 the investigation of the present case was marked to him. Original rukka and copy of FIR were handed over to him. He along with Constable Devinder went to the spot, where Sub-Inspector Birender and Head Constable Rakesh met them. Accused was also present there. PW-5 prepared site plan at the instance of Sub-Inspector Birender, arrested the accused vide arrest memo Ex. PW1/E, conducted his personal search vide memo Ex. PW1/F, took into his custody the pullanda sealed with the seal of BSY, recorded the statements of the witnesses and deposited the case property in the malkhana.On 31.10.2011 he sent all exhibits to the Forensic Science Laboratory and after obtaining the result and sanction under Section 39 of the Act from the concerned authority he prepared the challan.
14. PW-6 Sub-Inspector Ramkishan had brought the record regarding sanction under Section 39 of the Act. He deposed on the basis of record that on 05.12.2011 all the relevant documents i.e. copy of FIR, seizure memo, ballistic report of FSL, statements of witnesses under Section 161 Cr.P.C., etc. were put up before Additional DCP Sh. Paramaditya, who granted sanction dated 05.12.2011 under Section 39 Arms Act Ex. PW-6/A after being satisfied. He identified the handwriting and signatures of the Additional DCP Sh. Paramaditya having worked with him.
15. PW-7 Head Constable Sanjeet is the MHC(M). He deposed that on 28.10.2011 Assistant Sub-Inspector Dharamvir deposited one State v. Abdul @ Tippu Sultan FIR No. 180/2011 P.S.: Baba Haridas Nagar Page 6 of 20 sealed pullanda with the seal of BSY containing one country-made pistol and one live cartridge in the malkhana vide entry made by PW-7 at serial No. 735 in register No. 19 Ex. PW7/A. On 31.10.2011 the case property was handed over to Head Constable Kishan Lal for depositing at FSL, Rohini vide RC No. 102/21/11 Ex. PW7/B.
16. PW-8 lady Constable Rajesh is the DD writer. She deposed that on 28.10.2011 at about 12.00 noon Sub-Inspector Birender Singh alongwith Head Constable Rakesh and Constable Devinder and Constable Virender made their departure entry alongwith government vehicle. The same was written by her in register No. 19 at serial No. 30B. She relied upon the said DD No. 30B vide Ex. PW8/A. STATEMENT / DEFENCE OF THE ACCUSED
17. In his examination under Section 313 Cr.P.C., the accused denied the entire evidence put to him. He categorically stated that he is innocent. He stated that he was lifted from his house while he was taking his meal after having returned from home. He stated that 4 to 5 police officials in civil address came to his house and stated that they had come from police station Nangloi and wanted to interrogate him as he had threatened to kill someone. He stated that he told them that he had not threatened anybody. He stated that he was taken to police station Baba Hari Dass Nagar instead of police station Nangloi and his family members made a phone call on 100 number as they couldnot trace him at police station Nangloi. He stated that the aforesaid police officials gave beating to him at police station Baba Hari Dass Nagar after tying his hands at the back and hanging him upside down. He State v. Abdul @ Tippu Sultan FIR No. 180/2011 P.S.: Baba Haridas Nagar Page 7 of 20 stated that he was questioned as to where all he had committed theft to which he responded that he did not indulge in such activities and carried on the business of scrap (kabari). He stated that the police officials opened a box and brought a pistol out of the same. They kept the pistol in his left hand and a live cartridge in his right hand and took his photograph with the same. He stated that his signatures were obtained on certain papers the contents of which were not known to him. He stated that he has been falsely implicated in the present case. The accused preferred not to lead any evidence in his defence.
ANALYSIS AND FINDINGS
18. The record has been thoroughly and carefully perused. The respective submissions of Sh. Brijesh Kumar, learned Assistant Public Prosecutor for the State and Sh. Amit Kumar Tanwar, Advocate, learned legal aid counsel for the accused have been considered.
19. The case of the prosecution is that on the fateful day the accused was found in possession of a country-made pistol and a live cartridge in contravention of the notification issued by the Delhi Administration. In order to bring home the charge against the accused, the prosecution was required to prove beyond reasonable doubt the recovery of the illegal arm (country-made pistol) and live cartridge from the possession of the accused.
Re: Absence of independent witnesses
20. Evidently, no public witness to the recovery of the country-made pistol and live cartridge has been either cited in the list of witnesses or State v. Abdul @ Tippu Sultan FIR No. 180/2011 P.S.: Baba Haridas Nagar Page 8 of 20 examined by the prosecution. The accused is alleged to have been apprehended and recovery effected from the accused at a bus stand opposite Dichaun bus depot, Nagloi Road, New Delhi at about 06.20 p.m. PW-1 admitted that certain persons had passed by the spot in vehicles. Considering the facts that the spot was a bus stand, its proximity to a bus depot, and also admission of PW-1 that certain public persons had passed by the spot in vehicles, public persons would have certainly been available at the spot.
21. From a perusal of the record, no serious effort for joining public witnesses appears to have been made by the investigating officer. The prosecution witnesses have maintained that upon receipt of secret information, 3-4 passersby had been requested to join the proceedings, however, none agreed and left without disclosing their names and addresses. However, in their cross-examination, PW-1 as well as PW-2 admitted that no notice was served to the said passersby who had refused to join the investigation. It is a well settled proposition that non-joining of public witness shrouds doubt over the fairness of the investigation by police. Section 100 (4) of the Cr.P.C. also casts a statutory duty on an official conducting search to join two respectable persons of the society. Same has, however, not been done in the present case. This casts a doubt on the fairness of the investigation. Reliance is placed on paragraph 6 of the judgment in Pawan Kumar v. The Delhi Administration, 1989 Cri.L.J. 127, wherein the Hon'ble High Court of Delhi had observed as under:
" ... According to Jagbir Singh, he did not join any public witness in the case while according to State v. Abdul @ Tippu Sultan FIR No. 180/2011 P.S.: Baba Haridas Nagar Page 9 of 20 Kalam Singh, no public person was present there. It hardly stands to reason that at a place like a bus stop near Subhas Bazar, there would be no person present at a crucial time like 07.30 p.m. 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 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 a 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 recoveries but that apart, at least the I.O. 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."
22. This Court is, however, conscious that the prosecution case cannot be thrown out or doubted on the sole ground of non-joining of public witnesses as public witnesses keep themselves away from the Court unless it is inevitable, as has been held in Appabhai and another v. State of Gujarat, AIR 1988 SC 696. However, in the present case, it is not only the absence of public witnesses which raises a doubt on the prosecution version but there are other circumstances too, as discussed hereinafter, which raise suspicion State v. Abdul @ Tippu Sultan FIR No. 180/2011 P.S.: Baba Haridas Nagar Page 10 of 20 over the prosecution version.
Re: Departure entries not proved
23. The present case rests entirely on the alleged recovery of case property, i.e. illegal arm and live cartridge from the possession of the accused at the relevant time by police officials namely Head Constable Rakesh, Sub-Inspector Birender and Constable Devinder. Police officials are under a statutory duty to mark their departure and arrival in the register kept in the police station for the purpose as per the Punjab Police Rules. It is relevant here to reproduce Chapter 22 Rule 49 of the Punjab Police Rules, 1934, which reads as under:
"22.49 Matters to be entered in Register No. II
- The following matters shall, amongst others, be entered:
(c) The hour of arrival and departure on duty at or from a police station of all enrolled police officers of whatever rank, whether posted at the police station or elsewhere, with a statement of the nature of their duty. This entry shall be made immediately on arrival or prior to the departure of the officer concerned and shall be attested by the latter personally by signature or seal.
Note: The term Police Station will include all places such as Police Lines and Police Posts where Register No. II is maintained."
24. In Rattan Lal v. State, 1987 (2) Crimes 29, the Hon'ble High Court of Delhi observed that if the investigating agency deliberately ignores to comply with the provisions of the Act the Courts will have to approach their action with reservations. The matter has to be viewed with suspicion if the provisions of law are not strictly complied with and State v. Abdul @ Tippu Sultan FIR No. 180/2011 P.S.: Baba Haridas Nagar Page 11 of 20 the least that can be said is that it is so done with an oblique motive. The failure to bring on record the DD entries creates a reasonable doubt in the prosecution version and attributes oblique motive on the part of the prosecution.
25. Since public persons were not joined in the investigation, the arrival and departure entries of the police officials, i.e. Head Constable Rakesh, Sub-Inspector Birender and Constable Devinder, who allegedly had apprehended the accused with case property being on patrolling duty, become vital pieces of evidence. In the instant case, the prosecution has bought on record DD No. 30B dated 28.10.2011 Ex. PW8/A. To prove the said entry, one lady Constable Savita had been cited as a witness in the police report. However, during trial, in her place PW-8 lady Constable Rajesh was examined on the submission on behalf of the State that the name of lady Constable Savita, who was duty officer on 29.10.2011 had been mentioned in the list of witnesses by mistake. Proof of the said entries is indispensable as the present case rests solely on the alleged recovery made by the police officials. Perusal of DD No. 30B dated 28.10.2011 Ex. PW8/A reveals that the same contains overwriting as regards the number of the government vehicle on which the departure of the police officials concerned is recorded therein. The same is not even initialled by any person. In view of the aforesaid, the aforesaid departure entry cannot be said to have been proved. The prosecution has, therefore, failed to prove that the police officials concerned were actually present in the area at the relevant time in connection with their patrolling duty. In view of the aforesaid decision of the Hon'ble High Court Delhi, failure State v. Abdul @ Tippu Sultan FIR No. 180/2011 P.S.: Baba Haridas Nagar Page 12 of 20 of the prosecution to prove the departure entries creates a reasonable doubt in the prosecution version.
Re: Possibility of misuse of seal of the investigating officer
26. As per the testimonies of the prosecution witnesses, the case property was sealed by the investigating officer with the seal of BSY. The seal is stated to have been handed over to Head Constable Rakesh after use. However, no memo was prepared with respect to handing over of the aforesaid seal. Further, the seal in the present case was not handed over to any independent witness nor was it deposited in the malkhana to assail the possibility of its misuse. Thus, the possibility that the case property may have been tampered with cannot be ruled out. Reliance is placed on the decision of the Hon'ble High Court of Delhi in Abdul Ghaffar v. The State, 1996 JCC 497.
Re: Personal search of accused: Formalities not complied with
27. The testimony of all the recovery witnesses is silent as to whether PW-2 Sub-Inspector Birender, who had conducted the cursory search of the accused, had offered his search to the accused before searching him. In the absence of any affirmative testimony, it cannot be assumed that the police official, who had conducted the personal/cursory search of the accused, had offered his search to the accused before searching him.
28. In paragraph 10 of the judgment in Rabindranath Prusty v. State of Orissa, 1984 Cri L. J. 1392, the Hon'ble High Court of Orissa State v. Abdul @ Tippu Sultan FIR No. 180/2011 P.S.: Baba Haridas Nagar Page 13 of 20 observed as under:
"The next part of the prosecution case is relating to the search and recovery of Rs. 500/- from the accused. One of the formalities that has to be observed in searching a person in that the searching Officer and others assisting him should give their personal search to the accused before searching the person of the accused. ... This rule is meant to avoid the possibility of implanting the ob- ject which was brought out by the search. There is no evidence on record whatsoever that the raiding party gave their personal search to the accused be- fore the latter's person was searched. Besides the above, it is in the evidence of P. Ws. 2 and 5 that the accused wanted to know the reason for which his person was to be searched and the reason for such search was not intimated to the accused. No independent witness had witnessed the search. In the above premises, my conclusion is that the search was illegal and consequently the conviction based thereon is also vitiated." (emphasis sup- plied)
29. In view of the aforesaid observation of the Hon'ble High Court of Orissa, in the instant case, since the prosecution has not been able to establish that the police official, who searched and allegedly recovered the illegal arm and live cartridges from the accused, did offer his personal search before conducting the search of the accused, the possibility of the said illegal arm and live cartridges, which were brought out by the search, having been planted on the accused cannot be ruled out. Thus, this Court is wary in relying upon the version of the prosecution.
State v. Abdul @ Tippu Sultan FIR No. 180/2011 P.S.: Baba Haridas Nagar Page 14 of 20 Re: Seal on case property not intact
30. When the case property was produced in the Court for the first time, during the examination of PW-1, it was observed by the Court that all the four seals on the flap of the envelope containing the case property, i.e. country-made pistol and live cartridge, were broken. No daily diary entry in this regard has been furnished on record. No explanation has been tendered for production of the case property in such a (unsealed) condition. Thus, the possibility of the case property having been tampered with and its false implication on the accused cannot be ruled out.
Re: Case property not intact
31. Further, as per the prosecution version, one 'live' cartridge was recovered from the possession of the accused. However, when the case property was produced in the Court for the first time during the examination of PW-1, it was observed that the cartridge Ex. P-2 was empty. No daily diary entry in this regard has been furnished on record. No explanation has been tendered for production of the case property in such a condition. Thus, the possibility of the case property having been tampered with and its false implication on the accused cannot be ruled out.
Re: Other infirmities in the prosecution case
32. PW-2 Sub-Inspector Birender has deposed that he prepared sketch of the country-made pistol and live cartridge Ex. PW1/A, seized the case property vide seizure memo Ex. PW1/B, filled form M-29 and State v. Abdul @ Tippu Sultan FIR No. 180/2011 P.S.: Baba Haridas Nagar Page 15 of 20 thereafter, prepared the rukka Ex. PW2/A and sent the same to the police station for registration of FIR through Constable Devinder. It is, therefore, clear that the sketch of the country-made pistol and live cartridge as well as seizure memo were prepared at the spot before the rukka was sent to the police station for registration of the FIR. The FIR was, therefore, admittedly registered after the preparation of these documents Ex. PW1/A and Ex. PW1/B. Accordingly, it follows that the number of the FIR would have come to the knowledge of the investigating officer only after a copy of the FIR would have been delivered to him at the spot by Constable Devinder. In fact, in the present case, copy of the FIR was delivered to the second investigating officer rather than Sub-Inspector Birender, who is the first investigating officer. Thus, ordinarily, the FIR number should not find mention in the seizure memo or sketch of country-made pistol and live cartridge which came into existence before registration of the FIR. However, interestingly, the seizure memo Ex. PW1/B as well as sketch of the country-made pistol and live cartridge Ex. PW1/A bear the FIR number and case details in the same ink and the same handwriting in which the said documents are prepared. The same indicates that FIR number was mentioned on the said documents while preparing the same. Reliance here is placed on the decision of the Hon'ble High Court of Delhi in Pawan Kumar v. The Delhi Administration, 1989 Cri. L.J. 127, wherein it was observed in paragraph 5 as under:
"... Learned counsel for the State concedes that immediately after the arrest of the accused, his personal search was effected and the memo Ex. PW11/D was prepared. Thereafter, the sketch State v. Abdul @ Tippu Sultan FIR No. 180/2011 P.S.: Baba Haridas Nagar Page 16 of 20 plan of the knife was prepared in the presence of the witnesses. After that, the ruqa EX. PW11/F was sent to the Police Station for the registration of the case on the basis of which the FIR, PW11/G was recorded. The F.I.R. is numbered as 36, a copy of which was sent to the I.O. after its registration. It comes to that the number of F.I.R. 36 came to the knowledge of the I.O. after a copy of it was delivered to him at the spot by a constable. In the normal circumstances, the F.I.R. No. should not find mention in the recovery memo or the sketch plan which had come into existence before the registration of the case. However, from the perusal of the recovery memo, I find that the FIR is mentioned whereas the sketch plan does not show the number of the FIR. It is not explained as to how and under what circumstances the recovery memo came to bear the F.I.R. No. which had already come into existence before the registration of the case. These are few of the circumstances which create a doubt, in my mind, about the genuineness of the weapon of offence alleged to have been recovered from the accused."
33. In paragraph 4 of Mohd. Hashim v. State, 1999 VI AD (Delhi) 569, the Hon'ble High Court of Delhi observed:
"... Surprisingly, the secret information (Ex. PW7/A) received by the Sub-Inspector Narender Kumar Tyagi (PW-7), the notice under Section 50 of the Act (Ex. PW5/A) alleged to have been served on the appellant, the seizure memo (Ex. PW1/A) and the report submitted under Section 57 of the Act (Ex. PW7/D) bear the number of the FIR (Ex. PW4/B). The number of the FIR (Ex. PW4/B) given on the top of the aforesaid documents is in the same ink and in the same handwriting, which clearly indicates that these State v. Abdul @ Tippu Sultan FIR No. 180/2011 P.S.: Baba Haridas Nagar Page 17 of 20 documents were prepared at the same time. The prosecution has not offered any explanation as to under what circumstance number of the FIR (Ex. PW4/B) had appeared on the top of the aforesaid documents, which were allegedly prepared on the spot. This gives rise to two inferences that either the FIR (Ex. PW4/B) was recorded prior to the alleged recovery of the contraband or number of the said FIR was inserted in these documents after its registration. In both the situations, it seriously reflects upon the veracity of the prosecution version and creates a good deal of doubt about recovery of the contraband in the manner alleged by the prosecution."
34. In the instant case as well, no explanation has been furnished on record as to how the FIR number and case details have appeared on the seizure memo Ex. PW1/B and sketch of country-made pistol and live cartridge Ex. PW1/A. The same leads to only one inference that either the said documents were prepared later or that the FIR had been registered earlier in point of time. In both the aforesaid cases a dent is created and unexplained holes are left in the prosecution story, the benefit of which must accrue to the accused.
Re: Contradictions in the testimony of prosecution witnesses
35. There are material contradictions in the testimony of prosecution witnesses.
36. As per PW-1, they were patrolling in a car and he could not tell as to whether the same was an official or private vehicle. However, as per PW-2, they were patrolling in a QRT gypsy bearing registration No. DL2CAL 8511. Further, PW-3 stated that the recovery witnesses State v. Abdul @ Tippu Sultan FIR No. 180/2011 P.S.: Baba Haridas Nagar Page 18 of 20 i.e. PW-1, PW-2 and PW-3 were patrolling on two motorcycles together.
37. While as per PW-1, Constable Devinder left the spot for registration of FIR at about 08.15 p.m. and as per PW-2 as well the rukka was handed over to Constable Devinder at about 08.15 p.m., PW-3 Constable Devinder stated that he left the spot for registration of FIR at about 07.45 p.m.
38. PW-1 stated in his cross-examination that no public persons had gathered at the place of occurrence. PW-3, on the other hand, admitted that some public persons were present at the spot.
39. The aforesaid contradictions in the testimony of prosecution witnesses raise doubt on the credibility of the prosecution story.
CONCLUSION
40. The facts that no independent witness was cited or examined, daily diary entry regarding departure of the recovery witnesses have not been proved, case property was not produced in an intact condition, the appearance of FIR number and case particulars on the sketch of the weapon and seizure memo of the case property, and the contradiction in the testimony of prosecution witnesses, when kept in juxtaposition to each other, cast a cloud of suspicion over the prosecution version. In view of the aforesaid, the possibility of the country-made pistol and live cartridge having been planted upon the accused and false implication of the accused in the present case cannot be ruled out.
State v. Abdul @ Tippu Sultan FIR No. 180/2011 P.S.: Baba Haridas Nagar Page 19 of 20
41. It is trite in criminal jurisprudence that the prosecution is under an obligation to prove its case against the accused beyond reasonable doubt. The standard of proof to be adopted in criminal cases is not merely of preponderance of probabilities but proof beyond reasonable doubt on the basis of cogent, convincing and reliable evidence. It is also well settled that in case of doubt, the benefit must necessarily be allowed to the accused.
42. Thus, this Court is of the considered opinion that the benefit of doubt ought to be granted to the accused, who is entitled to be exonerated of the charges against him in the present case. The accused is hereby acquitted of the offence punishable under Section 25 of the Act. Case property be confiscated to State as per rules.
43. File be consigned to record room.
Announced in open Court on 25.02.2013.
(MANIKA) Metropolitan Magistrate-09 (South-West), Dwarka Courts, New Delhi 25.02.2013 State v. Abdul @ Tippu Sultan FIR No. 180/2011 P.S.: Baba Haridas Nagar Page 20 of 20