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2006 DIGILAW 2203 (DEL)

SHASHI SHEKHAR TYAGI v. STATE OF DELHI

2006-11-28

J.M.MALIK

body2006
J. M. MALIK, J. ( 1 ) THE learned Trial Court sentenced the appellant to undergo rigorous Imprisonment for a period of ten years and to pay a fine in the sum of rs. 1,00,000/-, failing which he was to further undergo Simple Imprisonment for two years for having possession of 800 grams Charas under Section 20 (b) (ii) of ndps Act. He was further sentenced to undergo Rigorous Imprisonment for a period of two years and to pay a fine in the sum of Rs. 10,000/- and in default of fine he was to undergo Simple Imprisonment for six months for possessing ganja weighing 1. 850 kilograms. Both the sentences were to run concurrently. Aggrieved by that order, the appellant has preferred this appeal against the order passed by learned Additional Sessions Judge. The facts germane to the prosecution case are these. On 09. 05. 1999 at about 1. 20 PM at Kela Godown, Inner road, Shalimar Bagh within the bounds of Police Station Shalimar Bagh, the appellant was nailed with the abovesaid contraband which he had kept in a bag in two different packets. The appellant has already undergone imprisonment for more than seven years. Constable Dharmender Kumar, PW1, Darshan Singh, Head constable PW3, Amleshwar Rai, SI PW5 and Dharmender, Constable PW9 are the witnesses to the recovery of abovesaid contraband. ( 2 ) LEARNED counsel for the respondent vehemently argued that the case against the appellant stands proved without ifs and buts. He opined that the link evidence adduced by the prosecution is also complete and the witnesses of recovery of abovesaid contraband from the possession of the accused have supported the prosecution case in tandem. ( 3 ) HOWEVER, the evidence led by the prosecution, as to who had written the FIR number and other particulars on the seizure memo etc. and recovered parcel bristles with glaring incongruities. First the FIR or rukka without bearing the FIR number, is sent to the duty officer, who after registering it, supplies the FIR number. The constable who brings back the rukka to the spot conveys the FIR number to the first Investigating Officer, thereafter FIR number is either written by the first Investigating Officer or the second Investigating Officer as the case may be, on the recovery memo, notice under Section 50 Cr. P. C. , personal search memo, arrest memo etc. The constable who brings back the rukka to the spot conveys the FIR number to the first Investigating Officer, thereafter FIR number is either written by the first Investigating Officer or the second Investigating Officer as the case may be, on the recovery memo, notice under Section 50 Cr. P. C. , personal search memo, arrest memo etc. ( 4 ) IN this case Amleshwar Rai, SI, initially investigated the case. In his cross-examination, he made the following statement. This witness handed over the rukka to Constable Dharmender and he went to the Police Station at about 3. 15 PM along with the case property, CFSL form and samples etc. The constable came back to the spot at about 4. 50 PM along with SI Inder Lal. Rukka, seizure memo and notice under Section 50 were written by Amleshwar Rai, si. His statement was recorded, subsequently, by Inder Lal SI at Police station. The particulars on the parcel from which Charas was recovered, were written by this witness in his handwriting. Amleshwar Rai, SI explained that all the particulars were written by him at Police Station, though the investigation was handed over to SI Inder Lal at the spot. He deposed that he went to the MHC (M) in routine. He told him that there is apprehension of mixing up the case property so he should mention the FIR number on the parcel on the same day at about 6. 00 PM. He admitted that while he mentioned the FIR number on parcel, he did not seek permission from the SHO in writing. He admitted that mhc (M) is under the direct control of the SHO and he acts as per the directions of the SHO. He stated that MHC (M) handed over the parcel to him of his own accord, though this fact was not recorded in his statement under Section 161 Cr. P. C. , nor this fact was mentioned in his case diary. He admitted that he was not the Investigating Officer of the case at the time of taking of the parcel from MHC (M) because at that time SI Inder Lal was investigating the case. He explained that Inder Lal, SI was not present when he mentioned the FIR number on the parcel after handing over the parcel to him by the MHC (M ). He admitted that FIR number on the parcel Ex. He explained that Inder Lal, SI was not present when he mentioned the FIR number on the parcel after handing over the parcel to him by the MHC (M ). He admitted that FIR number on the parcel Ex. PW1/a is in his handwriting. He admitted that when he handed over the seizure memo to the SHO, the FIR number was not mentioned on the seizure memo. He explained that FIR number was mentioned on the seizure memo in the evening. He admitted that seizure memo Ex. PW1/a was in the custody of Investigating Officer SI Inder Lal, when he mentioned the FIR number. He deposed that IO recorded his statement under Section 161 Cr. P. C. and subsequently he mentioned the FIR number on the seizure memo. He admitted that after writing the FIR number on the seizure memo, his supplementary statement under Section 161 Cr. P. C. was not recorded. He could not say whether these facts were mentioned by Inder Lal SI in his case diary. ( 5 ) HIS account of that part of incident does not cohere with second investigating officer. In his cross-examination Inder Lal SI stated that case property and seizure memo were already handed over to SHO before the case was entrusted to him. He testified that the seizure memo was given to him by the sho at about 5. 30 PM. He explained that thereafter the seizure memo remained in his custody. He clearly, specifically and unequivocally stated that when he was given the seizure memo by the SHO, the FIR number had already been mentioned on it. He explained that no alteration or addition was made by him or by anybody else after the seizure memo was handed over to him by the SHO. He deposed that ex. PW1/a was handed over to him by SI Amleshwar Rai along with the other papers when he took over the investigation immediately after registration of FIR. He deposed that copy of FIR remained with him and he asked SI Amleshwar Rai to hand over the investigation immediately when he reached the spot. He categorically denied that all the proceedings were done at the Police Station. ( 6 ) INSPECTOR Manohar Singh, SHO, PW4, in his cross-examination deposed that he had deposited the parcel with MHC (M) at about 3. 45 PM-4. 00 PM. Badru Ram HC was posted as malkhana mohharer. He categorically denied that all the proceedings were done at the Police Station. ( 6 ) INSPECTOR Manohar Singh, SHO, PW4, in his cross-examination deposed that he had deposited the parcel with MHC (M) at about 3. 45 PM-4. 00 PM. Badru Ram HC was posted as malkhana mohharer. He does not state anything to corroborate the version of Amleshwar Rai, SI. He stated that SHO had deposited the case property with him. In his cross-examination Constable Dharmender, PW-9, stated that particulars of the case were written by the SHO on the pullanda. It is thus clear that prosecution evidence is a thicket of contradictions. ( 7 ) SUCCINCTLY stated, it is not understood as to how Amleshwar Rai could have written the FIR number and other particulars after the investigation of this case was assigned to Inder Lal, SI. The statement made by Amleshwar rai, SI smacks of a fig leaf job. The witness indulged in hubble-bubble and did not clarify the position to the satisfaction of this Court. The alacrity with which he kept changing stance gave one the impression that he thought that the entire world was composed of morons. How it was possible to write the FIR number afterwards when Inder Lal, SI, denied having given him the seizure memo to write the FIR. It is also not understood as to how he was able to write the particulars of the case including the FIR number after the case property was deposited with the MHC (M ). MHC (M) is required to record each detail, whenever, the case property is given to anybody after its deposit with the MHC (M ). If somebody wants to write or disturb or touch the case property, the permission of sho is required and the malkhana mohharer is also required to make an entry in this regard on the malkhana register No. 19. The investigation of this case was handled in a most ham-handed fashion. The conduct of the first investigating officer does not go to scoth the doubts about this case. ( 8 ) IN a recent authority reported in Ritesh Chakarvarti Vs. State of madhya Pradesh 2006 (9) SCALE 644 at Page 652 it was held in paras 42 and 43 that :"42. There is another aspect of the matter which cannot be lost sight of. ( 8 ) IN a recent authority reported in Ritesh Chakarvarti Vs. State of madhya Pradesh 2006 (9) SCALE 644 at Page 652 it was held in paras 42 and 43 that :"42. There is another aspect of the matter which cannot be lost sight of. While dealing with a case of grave nature like the present one, there is always a danger that conjectures and suspicion may take the place of legal truth. 43. In Mousam Singha Roy and Others v. State of West Bengal (2003) 12 SCC 377 , this Court held :"it is also a settled principle of criminal jurisprudence that the more serious the offence, the stricter the degree of proof, since a higher degree of assurance is required to convict the accused. " ( 9 ) IN the light of above discussion, the prosecution case goes in a tizzy. The appellant is accordingly given the benefit of doubt and is hereby acquitted. Copy of this judgment be sent to Jail Superintendent, who is hereby directed to set the appellant at liberty, forthwith, if no more required in any other case. Lower court record be sent back forthwith, with a copy of the judgment.