Delhi District Court
State vs . Ramesh on 1 December, 2012
IN THE COURT OF SH. HEM RAJ: METROPOLITAN MAGISTRATE:
(WEST)09:TIS HAZARI COURTS:DELHI
STATE Vs. RAMESH
FIR No : 174/2004
U/S : 25 ARMS ACT
P.S : VIKAS PURI
1. Serial No. of the Case : 30/03/10
2. Unique ID No, of the : 02401R6111012004
3. Date of Commission of Offence : 18.04.2004
4. Date of institution of the case : 20.12.2004
5. Name of the complainant : SI Rabir Singh
6. Name of accused & address : Ramesh Kumar
S/o Sh. Varidavan
R/o RZ D87, Pratap Garden, Binda Pur,
Delhi.
7. Offence complained : 25 Arms Act 1959.
8. Offence Charged with : 25 Arms Act 1959.
9. Plea of Accused : Pleaded Not Guilty.
10.Final Order : Acquitted
11.Date of Final Order : 01.12.2012
J U D G M E N T
1 The prosecution has filed a charge sheet against the accused on the allegations that on 18.04.2004 at about 2.10 PM at AGI Bus Stop, Main Najafgarh Road, Vikas Puri, Delhi, accused was apprehended at the instance of FIR No. 174/2004 STATE V/s RAMESH KUMAR PAGE No.1/12 the secret informer and was found in possession of one country made Katta without any license thereof. Accordingly, accused was alleged to have committed the offence U/s. 25 Arms Act, 1959. The criminal law was set into motion and the investigation was commenced.
2 After the completion of the investigation a charge sheet under section 25 Arms Act was filed against the accused. In compliance of section 207 Cr. P.C. the copy of the charge sheet along with other documents were supplied to him and later on vide order dated 16.11.2005, charge for the offence under section 25 Arms Act was framed to which the accused pleaded not guilty and claimed trial.
3 In order to prove its case against the accused, the prosecution examined as many as nine witnesses.
4 PW1 ASI Sushila was the DO in this case.
5 PW2 Inspector Ranbir Singh is the first IO of the case who recovered the Katta from the accused.
FIR No. 174/2004 STATE V/s RAMESH KUMAR PAGE No.2/12 6 PW3 Puneet Puri, Senior Scientific Officer (Ballistics). 7 PW4 Jia Lal Parashar for Pt. Narsingh Dass & Sons who deposed about the sale of the cartridges to ASI Lakh Ram.
8 PW5 WHC Laxmi deposited the seal pullinda in the Ballistic Department, FSL, Sector14, Rohini.
9 PW6 HC Vijay Pal was the MHC(M) in this case and deposed about the deposit and transfer of the case property. 10 PW7 HC Satender was involved in the investigation of the case. 11 PW8 ASI Lekh Ram conducted further investigation of the case. 12 PW9 R.S. Yadav, granted the the sanction U/s. 39 Arms Act. 13 In his statement under Section section 313 Cr.P.C the accused stated that he is innocent and has been falsely implicated in the case by the police. He chose not to lead any defence evidence.
FIR No. 174/2004 STATE V/s RAMESH KUMAR PAGE No.3/12 14 I have heard the Ld. APP for the State, Sh. Kumar Avinash as well as Ld. Defence Counsel Sh S.D. Pushkar. I have also gone through the oral and documentary evidence available on the record carefully. 15 It has been submitted by Ld. APP that the prosecution has been able to prove the guilt of accused beyond the reasonable doubt It has been further stated that the testimonies of the prosecution witnesses are reliable and trustworthy which have been able to bring home the guilt of the accused beyond the reasonable doubt.
16 On the other hand, the Ld. Defence Counsel Sh. S.D.Pushkar submitted that the prosecution has miserably failed to prove the case against the accused beyond reasonable doubt.
17 I have gone through the oral and the documentary evidence as well as the material available on the record. In my opinion, the prosecution has miserably failed to prove the case against the accused beyond reasonable doubt on the following grounds:
FIR No. 174/2004 STATE V/s RAMESH KUMAR PAGE No.4/12 Delay in sending the recovered articles to the FSL 18 In the judgment of Modan Singh Vs. State of Rajasthan , (1978)4SCC 435 the effect of the inordinate delay in sending the recovered arms was considered by the Hon,ble Supreme Court in the para 9 of the judgment in the following words:
"9 .........The recovery of the pistol, Ex. 8 from the person of Modan Singh was on the 20th December at the police station itself and the recovery memo is Ex. P. 23. An empty cartridge, a live cartridge and a pistol case was recovered from the house of Modan Singh on the 23rd and the seizure memo was prepared but the prosecution failed to lead evidence that the material objects were properly kept till they were sent to the expert on 621967 by a special messenger. The investigating officers would only say that the material objects were kept sealed upon 14121966. The prosecution is silent as to in whose custody the material objects were till 621967 ...................................... ."
In Desh Raj @ Dass V/s State, 83 (2000) DLT 262, while relying upon the judgments of Hon'ble Supreme Court in Baldev Singh vs. State of Punjab 1991CAR 81 and Santa Singh Vs. State of Punjab, AIR 1956 SC 526, the Hon'ble Mr. Justice Dalveer Bhandari as His Lordship then was, took the view that the delay of 12 days in sending the samples to the CFSL proved fatal to the prosecution.
19 As per the facts of the prosecution case, the country made pistol was recovered from the possession of the accused on 18.04.2004 and the same was deposited in the Malkhana on the same day as well. PW6 HC Vijay Pal( MHCM) FIR No. 174/2004 STATE V/s RAMESH KUMAR PAGE No.5/12 and PW8 ASI Lakh Ram deposed to the same. The said pullinda was sent to the FSL through IO ASI Lakh Ram on 13.5.2004. PW3 FSL Expert, Puneet Puri also deposed that the said pullinda was received in the FSL on 13.5.2004. There was a delay of almost 24 days in sending the samples, which remained unexplained on the record. No plausible reason whatsoever has been furnished by the prosecution as to why the sealed pullinda remained in the police station for so long. When the seal was always available with the IO during the said period the tempering of the case property cannot be ruled out. The sending of the sealed pullinda at the earliest would have lent credence to the case of the prosecution enormously. In my opinion, the sending the sealed pullinda to the FSL after this much delay has affected the sanctity of the prosecution case.
Absence of CFSL Form 20 In Desh Raj @ Dass V/s State, 83 (2000) DLT 262, His Lordship Hon'b'e Mr. Justice Dalbeer Bhandari, as His Lordship then, was dealing with a case under Section 402 IPC and 25 Arms Act. In that case, it was held in para 25 that:
" Neither depositing the CFSL form in the Malhkana nor sending it alongwith the sample parcel to the office of the CFSL puts a question mark on the credibility of the prosecution version."
FIR No. 174/2004 STATE V/s RAMESH KUMAR PAGE No.6/12 In Lalman Vs. State 75(1998) DLT 224, it was observed by Delhi High Court as under:
"CFSL form is a valuable safeguard to ensure that the sample is not tempered with till its analysis by the CFSL analyst. The CFSL form should not only br prepared and sealed by the officer making the seizure at the place where the case property is seized from the accused, it should also be sealed by the SHO to whom the sample and case property is handed over and the same should accompany the sample to the CFSL. The purpose of the specimen seal is to compare the same with the seals on the sample parcels meant for analysis and report by CFSL to ensure that the purity of samples are not tempered with. In the absence of the CFSL form, it cannot be said that the purity of the sample remained intact. Benefit of its absence should go the accused."
The same view was taken in Rajan Ali vs. The State( Delhi Administration) 81(1999)DLT 194 by Delhi High Court. In the case of Bijay vs. State ( G.N.C.T. Of Delhi), 2011 VI AD (DELHI)562, Hon'ble Mr. Justice Suresh Kait, also observed the same.
The evidence led by the prosecution in this regard would show that PW 1 Inspector Ranbir Singh deposed that the FSL form was prepared. PW6 HC Vijay Pal MHC(M) also deposed that the FSL form was also deposited with the sealed pullanda in this case. PW8 ASI Lakh Ram also deposed that he was handed over the FSL Form by PW1 Ranbir Singh. However, PW3 Puneet Pure, the FSL Expert did not say anything about the FSL Form. The relevant extracts of register no.21 proved as Ex PW6/B is also silent about the sending the FSL Form to the CFSL along with the sealed pullinda. Hence, it was not clear on the record that whether the specimen seal and the seal on the sealed FIR No. 174/2004 STATE V/s RAMESH KUMAR PAGE No.7/12 pulllinda were similar or not. As held in the aforesaid judgments and especially recently in the case of Bijay vs. State ( G.N.C.T. Of Delhi), 2011 VI AD (DELHI)562, I opine that the nonsending the FSL form to the FSL alongwith the samples and not proving the same on the record renders the case of the prosecution doubtful.
FIR No. on the documents prepared prior to its registration: 21 The seizure memo Ex.PW2/C and the sketch memo Ex.PW2/B were prepared before the registration of the FIR but the same demonstrate that the FIR has been mentioned on the same which reveals that the FIR number was added on those documents later on and the same causes doubt in the story of the prosecution. In the judgment of Giri Raj V/s State 83 (2000) DELHI LAW TIMES 201, the Hon'ble High Court of Delhi held in Para 5 as under:
"The prosecution has not offered any explanation whatsoever as to under what circumstances number of the FIR Ex. PW2/A had appeared on the top of the said documents, which were allegedly on the spot before its registration. This gives rise to two inferences that either the FIR (Ex. PW2/A) 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. That being so, the benefit arising out of such a situation must necessarily go to the appellant".
The same view was adopted in the case of Mohd. Hashim, FIR No. 174/2004 STATE V/s RAMESH KUMAR PAGE No.8/12 Appellant Vs. State, 2000 CRI.L.J 1510, Pawan Kumar Vs. Delhi Administraton,1987 CCC 585 and Mewa Ram Vs. State 2000 CRI.L.J114.
The fact that the FIR number is mentioned on the aforementioned documents and that there is no explanation for the same, causes a reasonable doubt in the prosecution story as held in the judgments mention herein above.
Handing Over the seal to the member of the Raiding Party: 22 In the judgment of Ramji Singh V/s State of Haryana 2007 (3) R.C.R. (Criminal) 452, the observations of Hon'ble Punjab and Haryana High Court in Para No. 7 can be reproduced for the sake of the benefit of all:
"The very purpose of giving seal to an independent person is to avoid tampering of the case property. It is well settled that till the case property is not dispatched to the forensic science laboratory, the seal should not be available to the prosecuting agency and in the absence of such a safeguard the possibility of seal, contraband and the samples being tampered with cannot be ruled out".
In Rajesh Jagdamba Avasthi Vs. State of Goa, (2005)9 SCC 773, in para 15 of the judgment in this regard the Hon'ble Supreme Court held as under:
"15............................In these circumstances there is justification in the argument that since the seal as well as the packets remained in the custody of the same person, there was every possibility of the seized substance being tempered with, and that is the only hypothesis on which the discrepancy in weight can be explained. The least that can be said in the facts of the case is that there is serious doubt about the truthfulness of the prosecution case."
FIR No. 174/2004 STATE V/s RAMESH KUMAR PAGE No.9/12 PW1 IO Ranbir Singh deposed that the seal after use was handed over to PW7 Ct. Satender. However, it is beyond comprehension as to why the seal was handed over to PW7 especially when as per the case of the prosecution the independent public persons were present at the spot. While relying upon the judgment of Rajesh Jagdamba Avasthi Vs. State of Goa, (2005)9 SCC 773, in Bijay vs. State ( G.N.C.T. Of Delhi), 2011 VI AD (DELHI)562, Hon,ble Mr. Justice Suresh Kait held in para 34 of the said judgment that:
" after sealing the sample, the seal was not handed over to an independent person, rather he kept with him only, which also creates doubt on the sample whether the samples, were intact and not tempered with."
In the judgment of Noor Aga V/s State of Punjab, 2008 (10) SCR 379 which was a case under NDPS Act, the seal was not deposited in malkhana and no explanation was furnished in this regard, the Hon'ble Apex Court held that it was difficult to hold that the sanctity of the recovery was ensured.
Considering the aforementioned propositions of law as settled by the aforementioned judgments it is amply clear that the same has affected the prosecution case and the same cannot be relied upon so as to return the finding of the conviction of the accused.
23 From the perusal of the oral and the documentary evidence led by FIR No. 174/2004 STATE V/s RAMESH KUMAR PAGE No.10/12 the prosecution, I am of the considered view that there are inherent material contradictions on the record which has rendered the case of the prosecution as unbelievable and unworthy of any credence. As per the case, the country made pistol was recovered from the right dubb of the pants of the accused underneath the TShirt. The rukka Ex. PW2/B and the siezure memo Ex PW4/B also mentioned the same. PW1, first IO Ranbir Singh also deposed the same. However, PW7 Ct. Satender deposed in contradiction that the same was recovered from the right side pocket of the pants of the accused. There is clear contradiction in the oral and the documentary evidence in this regard. In Satinder Singh Vs. State (NCT of Delhi) 69(1997) DLT577, it was held as under:
"that the oral evidence which is contrary to the documentary evidence ought not to be relied upon. Hence, in my considered opinion, this inordinate delay of almost one year in sending the case property to the FSL has proved fatal to the cause of the prosecution, especially so when there is no explanation has been put forth in this regard. As held by the aforesaid propositions of law I have no hesitation in holding that due to said reason the prosecution case becomes doubtful and consequently falls short of being proved beyond reasonable doubt.
Hence, in view of the aforementioned oral and the documentary evidence on the record especially considering the contradictions in the same I am not inclined to rely upon the case of the prosecution. The prosecution has failed to travel the distance from may to must which is the golder principle of criminal jurisprudence before the accused can be convicted.
24 Therefore, in view of the discussions made herein above and the FIR No. 174/2004 STATE V/s RAMESH KUMAR PAGE No.11/12 facts and circumstances of the present case, in my considered opinion, the prosecution has failed to prove the guilt of the accused beyond reasonable doubt. Hence, the accused Ramesh Kumar stands acquitted of the offence under Section 25 Arms Act, he has been charged with. He be set at liberty forthwith. His previous bail bonds and surety bond stand canceled and discharged respectively. Original documents, if any, lying on the record be returned to the previous surety after the cancellation of the endorsement, if any, against the acknowledgment. However, B/Bs furnished by the accused for the purpose of Section 437A Cr.P.C. shall remain extended for a period of six months from today. Case property be destroyed after the expiry of the period of the appeal. File be consigned to Record Room.
ANNOUNCED IN THE OPEN COURT (HEM RAJ)
TODAY i.e on 1 December, 2012
ST
MM09:WEST:THC
01.12.2012.
.
FIR No. 174/2004 STATE V/s RAMESH KUMAR PAGE No.12/12