Delhi District Court
State vs . Rahil on 23 August, 2012
IN THE COURT OF SH. HEM RAJ: METROPOLITAN MAGISTRATE:
(WEST)09:TIS HAZARI COURTS:DELHI
STATE Vs. RAHIL
FIR No : 183/03
U/S : 25 ARMS ACT
P.S : VIKAS PURI
1. Serial No. of the Case : 81/10
2. Unique ID No, of the : 02401R6325022004
3. Date of Commission of Offence : 03.05.2003
4. Date of institution of the case : 04.02.2004
5. Name of the complainant : SI Ranbir Singh
6. Name of accused & address : Rahil S/o Rias Ahmad Beg
R/o F2, Madi Pur,
J. J. Colony, 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 : 23/8/2012
J U D G M E N T
1 The prosecution has filed a charge sheet against the accused on the allegations that on 03.05.2003 at about 9.55 PM at in front of Oxford Sr. Sec. School, Vikas Puri, Delhi, the accused was apprehended and on his search one country made pistol loaded with one live cartridge was recovered without any FIR No. 183/03 STATE V/s RAHIL PAGE No.1/13 license thereof. Accordingly, accused was alleged to have committed the offence U/S 25 Arms Act, 1959.
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 PC the copy of the charge sheet along with other documents were supplied to him and later on, vide order dated 29.4.2005 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 eight witnesses.
4 PW1 Gurender Singh was the MHC(M). He deposed that on 03.05.2003, one motorcycle bearing no. DL4SAJ7465 and one parcel sealed with the seal of RS and FSL form were deposited by HC Sushil and the relevant entry was made in register no. 19 vide entry no. 196103. He proved the relevant entry as Ex.PW1/A. He further deposed that on 25.06.2003 the pistal was sent to CFSL Chandigarh vide RC no. 9/21/03 through HC Sunil and one 19.08.2003, one sealed pullanda with the report was deposited by Ct. Joginder in the malkhana.
He was crossexamined by Ld. Counsel for accused.
FIR No. 183/03 STATE V/s RAHIL PAGE No.2/13 5 PW2 HC Vijay Pal was DO in this case who proved the FIR as
Ex.PW2/A and the endorsement on the rukka as Ex.PW2/B. He was crossexamined by the accused.
6 PW3 SI Ranbir Singh was the first IO of the case. He deposed about the recovery of the country made pistol from the accused. He proved the sketch of the country made pistol and cartridge as Ex.PW3/A. He prepared the CFSL form of the katta and he prepared the seizure memo as Ex.PW3/B. He also proved the seizure memo of motorcycle as Ex.PW3/C and also proved the tehrir as Ex.PW3/D. He correctly identified the country made pistol and empty cartridge as Ex.P1 and P2 respectively.
He was crossexamined at length by Ld. Counsel for accused. 7 PW4 Dr. P Siddambary was the Ballistic expert. He proved his report his report as Ex.PW4/A. He deposed that the country made pistol was in a working condition and the cartridge was test fired in the laboratory. He correctly identified the country made pistol and the test fired cartridge.
He was not crossexamined by the Ld. Counsel for accused.
8 PW5 Ct. Sushil Kumar was also involved in the patrolling duty. He FIR No. 183/03 STATE V/s RAHIL PAGE No.3/13
deposed about he investigation in this case. He identified the photographs of the motorcycle as Ex. P1 to P4 respectively.
He was not crossexamined by the accused.
9 PW6 David Lalrinsanga was the Additional DCP (West) who granted the sanction u/s 39 of Arms Act for the prosecution of the accused. He proved his sanction as Ex.PW6/A. He was not crossexamined by the accused.
10 PW7 Retired SI Sita Ram was the second IO of the case who concluded the investigation and filed the charge sheet.
He was not crossexamined by Ld. Counsel for accused.
11 PW8 HC Sushil Kumar reached at the spot after registration of the FIR as he was handed over investigation in this case. He deposed that the investigation carried out by him. He proved the site plan as Ex.PW8/A and arrest memo as Ex.Pw8/B. He was crossexamined by Ld. Counsel for accused.
12 In his statement under Section section 313 Cr.P.C the accused FIR No. 183/03 STATE V/s RAHIL PAGE No.4/13
stated that he has been falsely implicated in the case by the police. He further stated that he was innocent and was not found in the possession of the loaded country made pistol as alleged by the prosecution. He led defence evidence. 13 The accused examined one Noor Ahmed Khan as DW1 who deposed that he alongwith the accused were beaten by the police officiols and after some time he was set free and later on he informed the family members of the accused. He was crossexamined by the Ld APP.
14 I have heard the Ld. APP for the State, Sh. Kumar Avinash as well as Ld. Defence Counsel Sh R. Kumar. 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 submitted that the FIR No. 183/03 STATE V/s RAHIL PAGE No.5/13
prosecution has miserably failed to prove the case against the accused beyond reasonable doubt. He further submits that there is an ordinate delay in the sending of the samples and the case property to the FSL which has caused the serious prejudice to the case of the prosecution. He further contended that the prosecution has failed to prove that the sample and the case property remained intact, till they reached at the FSL in as much as, the prosecution has not proved the FSL form. He contented further that documents prepared before the registration of the FIR contained the number of the same which show that the documents were false documents and prepared in order to falsely implicate the accused in this case. He vehemently argued that the seal after its use was not handed over to any independent person and therefore, the possibility of its misuse cannot be ruled out. It has been further submitted that there are material contradictions in the oral testimonies and the documentary evidence on the record which rendered the case of the prosecution as doubtful. He further argued that no incriminating material has come on the record against the accused and the prosecution has miserably failed to prove the case beyond reasonable doubt.
Delay in sending the recovered articles to the FSL 17 The Ld. Defence Counsel has argued firstly that the prosecution has not sent the seized country made pistol and the live cartridge urgently to the FSL FIR No. 183/03 STATE V/s RAHIL PAGE No.6/13 and the same remained in the malkhana at the police station and manipulation thereof cannot be ruled out. 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.
18 As per the facts of the prosecution case, the country made pistol and the live cartridge was recovered from the possession of the accused on 03.05.2003 and the same was deposited in the Malkhana on the same day as well. PW1 MHCM HC Gurender Singh and PW8 HC Sushil Kumar, who was the IO of the FIR No. 183/03 STATE V/s RAHIL PAGE No.7/13 case, deposed to the same. PW1 proved the relevant extracts of Register no.19 showing the relevant entry about the deposit of the same. He also deposed that on 25.6.2003 the case property in the sealed condition was sent to the CFSL Chandigarh. Clearly there is a delay of one month twenty two days in the same. The prosecution has not proved the relevant entry of the register no. 21 which shows the transfer of the case property from the malkhana to the CFSL. No explanation has come forth on the record as to why the sealed pullinda was kept in the malkhana for the said period. The seal was always remained available with the IO and the case property was available in the malkhana. The oral depositions of the prosecution witnesses have not been corroborated by the documentary evidence for the reasons best known to them. Hence, I opine that the inordinate delay of one month and twenty two days in sending the sample to the CFSL without any explanation renders the case of the prosecution doubtful.
Absence of CFSL Form 19 The Ld. defence counsel has further argued that the prosecution has not proved the CFSL Form in this case which renders the case of the prosecution doubtful and due to which the prosecution case suffers from inherent infirmities. 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 FIR No. 183/03 STATE V/s RAHIL PAGE No.8/13 402 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."
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 3, the first IO SI Ranbir Singh has deposed that he prepared the CFSL form prior to the seizing of the case property. He was corroborated in this regard by PW1 HC Gurender Singh who was the MHCM. However, in the cross examination he admitted that there was no entry of the deposit of the CFSL form in the relevant extracts of the register no 19 and merely reproduced the contents of the seizure memon. PW4 Dr. P Siddambry nowhere stated that sealed FIR No. 183/03 STATE V/s RAHIL PAGE No.9/13 pullinda was received alongwith the CFSL Form. Further the relevant extracts of the relevant entry would show that CFSL form was not handed over to HC Sushil along with the sealed pullinda. Hence, the story of the prosecution that the CFSL form was deposited and also handed over to be deposited in the CFSL finds no corroboration from the material available on the record. In view of the evidence led on the record does not inspire any confidence and the same is palpably false on the face of it. Hence, in view of the settled propositions of law as enunciated from the abovementioned pronouncements I decline to believe the prosecution story. Accordingly, I find that the contention of the Ld. Counsel for the accused holds good water and I am inclined to go with the same.
Handing Over the seal to the member of the Raiding Party:
20 The Ld. defence counsel has further argued that the PW5 the first IO of the case, handed over the seal to PW4 Ct. Harish and the same was not handed over to any independent public person and the misuse of the seal cannot be ruled out especially the seal was always available with one of the member of the raiding party. 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:
FIR No. 183/03 STATE V/s RAHIL PAGE No.10/13 "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."
PW3 SI Ranbir Singh deposed that the seal after use was handed over to PW5 Ct. Sushil Kumar who also corroborated the version of the PW3. However, it is beyond comprehension as to why the seal was handed over to PW5 especially when as per the case of the prosecution the independent public persons were present at the spot which has been deposed by IO SI Ranbir Singh. 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 FIR No. 183/03 STATE V/s RAHIL PAGE No.11/13 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. The contention of the Ld. Defence Counsel has merits in the same and same deserves to be accepted.
21 From the perusal of the oral and the documentary evidence led by 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. 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 FIR No. 183/03 STATE V/s RAHIL PAGE No.12/13 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 golden principle of criminal jurisprudence before the accused can be convicted.
22 Therefore, in view of the discussions made herein above and the 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 Rahil 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 23 August, 2012 rd
MM09:WEST:THC
23.08.2012.
FIR No. 183/03 STATE V/s RAHIL PAGE No.13/13