Delhi District Court
State vs Mohd. Firoz Etc on 23 August, 2025
IN THE COURT OF SH. JOGINDER PRAKASH NAHAR
ADDITIONAL SESSIONS JUDGE (FAST TRACK COURT-01)
CENTRAL DISTRICT, TIS HAZARI COURTS, DELHI
CNR No. DLCT01-000744-2012
SC No. 28006/2016
FIR No. 49/2012
U/Sec. 307/392/394/397/411/34 IPC
P.S. Kotwali
STATE VERSUS FIROZ & ANR.
(i) SC No. of the case : 28006/2016
(ii) Date of commission of offence : 03.03.2012
(iii) Name, parentage and address : 1. Mohd. Firoz
S/o Sh. Allah Baksh
Address: H.No. B-263
Gali No. 2, Indira Vihar
Chaman Park,
Mustafabad, Delhi.
2. Mohd. Shahid
S/o Mohd. Shameem
Address: Kushal Park
Puja Colony, Loni
Ghaziabad, U.P.
(iv) Offence complained of : 307/392/394/397/411/34
IPC and Section 25 of
Arms Act, 1959
(v) Plea of the accused : Pleaded not guilty
(vi) Final order : ACQUITTAL
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Date of Institution : 07.06.2012
Date of Judgment reserved on : 18.08.2025
Date of Judgment : 23.08.2025
JUDGMENT
BRIEF FACTS AND REASONS FOR DECISION :-
1. FIR in the present matter was registered on the complaint of SI
Mukesh Kumar vide DD no. 34A dated 03.03.2012 information at about
7:40 PM was received at PS Kotwali, Delhi from Ct. Mohit 2919 PCR that
at Geeta colony bridge on the flyover coming from Lal Quila where two
motorcycle passenger are there. One of the motorcycle passenger was shot
by a pistol. The investigation was marked to SI Mukesh Kumar/PW-8. PW-
8 SI Mukesh Kumar alongwith Ct. Ashok/PW-6 had reached at the spot on
the flyover towards the side going from Hanuman Mandir, Yamuna Bazar
to the loop going towards ITO. The loop meets the Geeta colony flyover
from Shantivan to Geeta colony road. Motorcycle no. DL7S AZ 6638 was
standing which had blood on it and blood was also spilled on the road.
Crime team was called who had taken photographs. No eye witness was
found. The injured was already taken at JPN hospital where PW-2 the
injured/Sh. Navneet Singh aged about 30 years was found. MLC was
obtained by the IO. The injury was done on PW-2 at 7:20 PM who was not
found fit for statement in the hospital. No eye witness was found. FIR
Ex.PW3/B dated 03.03.2012 was registered in the matter at 11:25 PM.
2. The site plan Ex.PW24/A was prepared which was witnessed by SI
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Mukesh Kumar/PW-8. The PCR Form-1 is Ex.PW20/A PW-20 has deposed
that around 7:32 PM a call was received regarding firing took place at
Geeta colony flyover, coming from Lal Quila side, by a person who fled
away after firing. The FIR was registered under Section 307 IPC and
investigation was marked to Insp. Mukesh Kumar Tyagi/PW-24 who had
prepared the site plan and seized the motorcycle of injured PW-2. At the
hospital the IO and Ct. Ashok had reached where the duty Constable had
handed over a sealed parcel containing black colour shirt, blue jean, one
vest and belt of injured/PW-2 to the IO/PW-24. On 04.03.2012 the eye
witness Sh. Parmod Kumar had given his statement and on 05.03.2012 the
injured PW-2/Navneet had given his statement. The bullet was taken out
from the body of injured Navneet/PW-2 which was handed over by Dr.
S.K. Tiwari/PW-11, Max hospital in sealed condition to the IO/PW-24.
3. During investigation both the accused were arrested on 07.03.2012
on information from secret informer and recorded their disclosure
statement Ex.PW19/A (of accused Firoz at page no. 87 of document file)
and Ex.PW19/B (of accused Md. Shahid at page no. 63 of document file).
On the pointing out of accused Firoz a countrymade revolver with two live
cartridges were recovered from H. No. 263, gali no. 2, Indra Vihar, Chaman
Park, Mustafabad, Delhi and from the terrace of the same house a green
colour bag belonging to victim PW-2 was recovered which had contained a
book and photocopy of hand written notes. The motorcycle no. DL 10S
1389 and DL 13SG 6079 was recovered at the instance of accused no. 1
Md. Firoz.
4. At the instance of accused no. 2 Md. Shahid articles were recovered
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from his house near Buland Mosque, Chand market, Kushal park, Puja
colony, Loni, Ghaziabad under the box lying on the Tand. From accused
Shahid currency notes of Rs.500/-, 96 in total and an amount was
Rs.48,000/- wrapped in a paper were recovered. Pointing out memo of both
the accused were prepared in the respective recovery. At the instance of
accused Md. Shahid the JCL was also apprehended who was aged about 17
years. The JCL and accused no. 1 Md. Firoz had refused TIP on
12.03.2012. However accused no. 2 Md. Shahid was duly identified by
witness PW-1 in TIP proceeding dated 14.03.2012. FSL results were
obtained on the clothes and articles of PW-2 and also on the recovered
countrymade pistol. The case was investigated under Section
307/392/397/411/34 IPC and also under Section 27 of Arms Act. The
chargesheet was filed and the accused were summoned.
5. Charge was given to both the accused namely Firoz and Shahid
under Section 307/392/394/34 IPC on 31.08.2012 to which they had
pleaded not guilty and claimed trial. Accused Firoz was further separately
charged under Section 25 of Arms Act on 31.08.2012 to which he had
pleaded not guilty and claimed trial. Further accused Firoz was charged
under Section 397 IPC and accused Shahid was charged under Section 411
IPC on 21.04.2016 to which they had not pleaded guilty and claimed trial.
6. Prosecution has examined PW-1 to PW-27 as entire prosecution
evidence against the accused person. Statement under Section 313 Cr. PC
of both the accused was recorded on 16.04.2024. Accused no. 2 Shahid has
preferred not to lead any evidence in defence. Accused no. 1 Firoz had not
lead DE despite grant of opportunity. Hence DE stands closed by the order
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of this Court on 24.03.2025.
7. Final arguments are heard from both the parties and record perused.
7.1 Ld. Counsel for accused has relied on following citations:
(i) Phool Kumar Vs. Delhi Administration AIR 1975 SC 905
(ii) Dilawar Singh Vs. State of Delhi in Appeal (Crl.) 491 of 2002
(iii) Sher Singh @ Sheru Vs. State NCT of Delhi in Crl. No. A
792/2012
8. Section 25 of Arms Act, 1959 is reproduced hereasunder for ready
reference.
25. Punishment for certain offences.―1[(1) Whoever–(a)
manufactures, sells, transfers, converts, repairs, tests or proves, or
exposes or offers for sale or transfer, or has in his possession for
sale, transfer, conversion, repair, test or proof, any arms or
ammunition in contravention of section 5; or
(b) shortens the barrel of a firearm or converts an imitation
firearm into a firearm in contravention of section 6;
or 2** * * *
(d) brings into, or takes out of, India, any arms or ammunition of
any class or description in contravention of section 11, shall be
punishable with imprisonment for a term which shall not be less
than three years but which may extend to seven years and shall
also be liable to fine.
3[(1A)Whoever acquires, has in his possession or carries any
prohibited arms or prohibited ammunition in contravention of
section 7 shall be punishable with imprisonment for a term which
shall not be less than five years, but which may extend to ten
years and shall also be liable to fine.
(1AA) whoever manufactures, sells, transfers, converts, repairs,
tests or proves, or exposes or offers for sale or transfer or has in
his possession for sale, transfer, conversion, repair, test or proof,
any prohibited arms or prohibited ammunition in contravention of
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section 7 shall be punishable with imprisonment for a term which
shall not be less than seven years but which may extend to
imprisonment for life and shall also be liable to fine.]
4[(1AAA)] Whoever has in contravention of a notification issued
under section 24A in his possession or in contravention of a
notification issued under section 24B carries or otherwise has in
his possession, any arms or ammunition shall be punishable with
imprisonment for a term which shall not be less than 2[three
years, but which may extend to seven years] and shall also be
liable to fine.
(1B) Whoever–(a) acquires, has in his possession or carries any
firearm or ammunition in contravention of section 3; or
(b) acquires, has in his possession or carries in any place specified
by notification under section 4 any arms of such class or
description as has been specified in that notification in
contravention of that section; or
(c) sells or transfers any firearm which does not bear the name of
the maker, manufacturer’s number or other identification mark
stamped or otherwise shown thereon as required by sub-section
(2) of section 8 or does any act in contravention of sub-section (1)
of that section; or
(d) being a person to whom sub-clause (ii) or sub-clause (iii) of
clause (a) of sub-section (1) of section 9 applies, acquires, has in
his possession or carries any firearm or ammunition in
contravention of that section; or
(e) sells or transfers, or converts, repairs, tests or proves any
firearm or ammunition in contravention of clause (b) of sub-
section (1) of section 9; or
(f) brings into, or takes out of, India, any arms or ammunition in
contravention of section 10; or
(g) transports any arms or ammunition in contravention of section
12; or
(h) fails to deposit arms or ammunition as required by sub-section
(2) of section 3, or sub-section (1) of section 21; or
(i) being a manufacturer of, or dealer in, arms or ammunition,
fails, on being required to do so by rules made under section 44,
to maintain a record or account or to make therein all such entries
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as are required by such rules or intentionally makes a false entry
therein or prevents or obstructs the inspection of such record or
account or the making of copies of entries therefrom or prevents
or obstructs the entry into any premises or other place where arms
or ammunition are or is manufactured or kept or intentionally fails
to exhibit or conceals such arms or ammunition or refuses to point
out where the same are or is manufactured or kept, shall be
punishable with imprisonment for a term which shall not be less
than 3[one year] but which may extend to three years and shall
also be liable to fine:
Provided that the Court may for any adequate and special reasons
to be recorded in the judgment impose a sentence of
imprisonment for a term of less than 3[one year].
[(1C) Notwithstanding anything contained in sub-section (1B),
whoever commits an offence punishable under that sub-section in
any disturbed area shall be punishable with imprisonment for a
term which shall not be less than three years but which may
extend to seven years and shall also be liable to fine.
Explanation.―For the purposes of this sub-section, “disturbed
area”means any area declared to be a disturbed area under any
enactment, for the time being in force, making provision for the
suppression of disorder and restoration and maintenance of public
order, and includes any areas specified by notification under
section 24A or section 24B.](2) Whoever being a person to whom sub-clause (i) of clause (a)
of sub-section (1) of section 9 applies, acquires, has in his
possession or carries any firearm or ammunition in contravention
of that section shall be punishable with imprisonment for a term
which may extend to one year, or with fine, or with both. 1[(3)
Whoever sells or transfers any firearm, ammunition or other arms
—
(i) without informing the district magistrate having jurisdiction or
the officer in charge of the nearest police station, of the intended
sale or transfer of that firearm, ammunition or other arms; or
(ii) before the expiration of the period of forty-five days from the
date of giving such information to such district magistrate or the
officer in charge of the police station, in contravention of the
provisions of clause (a) or clause (b) of the proviso to sub-section
(2) of section 5, shall be punishable with imprisonment for a term
which may extend to six months, or with fine of an amount which
may extend to five hundred rupees, or with both.]SC No. 28006/2016
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(4) Whoever fails to deliver-up a licence when so required by the
licensing authority under sub-section (1) of section 17 for the
purpose of varying the conditions specified in the licence or fails
to surrender a licence to the appropriate authority under sub-
section(10) of that section on its suspension or revocation shall be
punishable with imprisonment for a term which may extend to six
months, or with fine of an amount which may extend to five
hundred rupees, or with both.
(5) Whoever, when required under section 19 to give his name
and address, refuses to give such name and address or gives a
name or address which subsequently transpires to be false shall be
punishable with imprisonment for a term which may extend to six
months, or with fine of an amount which may extend to two
hundred rupees, or with both.
9. As per the case of the prosecution on 07.03.2012 accused no. 1
Firoz got recovered one countrymade pistol and two live cartridges from
his house B-263, gali no. 2, Indra Vihar, Chaman park, Mustafabad,
Delhi and the said possession with accused Firoz is found without
licence. The disclosure statement of accused Firoz is Ex.PW19/A. As per
disclosure statement of accused Firoz the gun fire shot was made by the
JCL at the instance of accused Firoz. As per disclosure statement accused
Firoz got recovered green colour bag, one countrymade revolver, bullet
and empty cartridge. The said disclosure statement does not mention that
from which place and occasion accused Firoz can get recovered the
above articles. As per PW-24 Insp. Mukesh Tyagi he had apprehended
the accused Firoz and on interrogation the disclosure statement was
made. After recording their disclosure statement accused Firoz led the
police party to Mustafabad who got recovered one yellow colour
polythene bag beneath the pillow at the first floor of his house. The
polythene bag contain one green colour bag which was having a tag of
‘Diesel’. The bag was found containing some documents, pen etc. which
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was seized vide memo Ex.PW5/A. Thereafter the accused Firoz got
recovered one countrymade pistol and two live cartridges from the same
room of his house. The sketch of pistol and cartridge is Ex.PW5/J which
were seized vide memo Ex.PW5/E. Thereafter accused Firoz took out
two keys of motorcycle from a drawer and got recovered two motorcycle
from a gali allegedly used in commission of offence. The motorcycle
alongwith keys were seized vide memo Ex.PW5/F and Ex.PW5/G.
10. In cross-examination dated 12.01.2016 at first page it is deposed
by PW-24 that at about 10/11 PM on 07.03.2012 a secret informer at
ISBT Kashmere Gate met him and informed him about the whereabouts
of the accused person. Public person had refused to join the investigation
despite asking by the IO. The distance of Khajuri Khas from Kashmere
Gate ISBT is about 4-5 km. PW-24 had reached at Khajuri Khas at about
11:30 or 11:45 PM. Accused was arrested from a public place. Notice
was not given to the public person for their not joining the investigation.
The accused was overpowered by SI Karamvir and HC Rajkumar. The
entire writing work was done at Khajuri Khas while standing near
Jhuggi. First accused Firoz was arrested. PW-24 at page 6 has deposed
that he does not remember the area of house of accused Firoz. It was
multistoreyed. He does not remember that how many floors were there in
the storey. He does not remember that how many staff members
remained outside the house. He does not remember whether the door of
the house is made up of wood or iron or the door was closed or open. He
cannot tell about the number of rooms in the house. He cannot tell the
measurement of the bag which was recovered from the house of accused
Firoz. He does not remember the nature of documents which were
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recovered from the said bag. The entire writing work during such seizure
was done while sitting in the room at the floor of the house of the
accused. He remained at the house of accused for about one hour. They
went on the roof of the room. The family members or neighbours had not
joined in the investigation who were present there. It was suggested by
the ld. Counsel for accused Firoz to PW-24 that all the writing work was
done at the police station which is denied by PW-24.
11. PW-26 Assistant Director Ballistics Sh. Puneet Puri from FSL
Rohini has deposed that on 17.05.2012 he had received two sealed
parcels no. 1 and 2 which contained one countrymade pistol/Ex.F1 of
0.315 inch bore, one improvized cartridge/Ex.A1 and one 8mm/0.315
inch cartridge/Ex.A2. The deformed bullet was marked as Ex.EB1. The
countrymade pistol marked Ex.F1 was in working order. Test fire was
conducted successfully by using cartridge mark A1, A2 and four 8
mm/0.315 inch cartridges were taken from the laboratory stock. The
cases of test fired cartridge are marked as PC1 to PC6 and the five
recovered test fired bullets are marked as PV1 to PV5. It is deposed that
the deformed bullet Ex.EB1 corresponds to the bullet of 8mm/0.315 inch
cartridge. However no opinion could be given whether the deformed
bullet Ex.EB1 had been discharged through the countrymade pistol
Ex.F1. Since the individual characteristics of striations present on
Ex.EB1 the deformed bullet were insufficient for comparison and
opinion. The countrymade pistol marked Ex.F1 was a firearm and the
cartridge mark Ex.A1, Ex.A2 and the deformed bullet are marked as
Ex.EB1 which are ammunition as defined in Arms Act, 1959. The
detailed report is Ex.PW26/A. Hence PW-26 has proved that the
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countrymade pistol recovered was a firearm and the cartridge Ex.A1 and
Ex.A2 and deformed bullet Ex.EB1 were ammunition.
12. PW-27 Mr. Aslam Khan, DIG Goa was posted as Addl. DCP-1,
North district, Delhi on 16.03.2016. After perusal of report under Section
173 Cr. PC, report of ballistic expert and seizure memo, he was satisfied
that the Desi Katta 0.315 bore and one improvized cartridge, one 8
mm/0.315 bore cartridge recovered at the instance of accused Md. Firoz
from his house no. B-263, gali no. 2, Indra Vihar, Chaman park,
Mustafabad, Delhi was without licence in contravention of Section 3 of
Arms Act, 1959 r/w Section 25/27 of Arms Act, 1959. Hence sanction
under Section 25 of Arms Act, was granted to the accused Md. Firoz vide
sanction order Ex.PW27/A dated 16.03.2016. HC Kuldeep had produced
the file before PW-27 and he took 30 minutes to peruse the documents.
The file was handed over to HC Kuldeep after grant of sanction. He had
not seen Desi Katta and cartridge and the description of which was seen
by him in the sketch. The PW-27 has proved grant of proper sanction for
prosecution of accused no. 1 Firoz whose testimony remained consistent
and reliable and stands proved on record.
13. PW-1 on 03.03.2012 while going back to his home at about 7-7:15
PM at Geeta colony flyover junction on roads coming from Jamna Bazar
and Lal Quila had seen 3-4 motorcycle from a distance and the person
sitting on those motorcycle were looking backwards towards Lal Quila.
All the assailants were wearing helmets and he could not identify them.
In TIP proceedings he had identified one of the accused namely Shahid.
The PW-1/witness has turned hostile and his statement Mark X dated
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15.05.2012 and the contents thereof were denied by him. Hence PW-1
has turned hostile in his subsequent cross-examination dated 14.01.2013.
PW-2 Sh. Navneet Singh, the injured has deposed in examination-in-
chief dated 14.01.2013 that he cannot identify any of the culprits. He
could not see their face as they fired at him from behind. He is turned
hostile by the ld. APP for the state on the aspect that accused Shahid was
sitting on the bike as a pillion rider.
14. PW-2 Sh. Navneet has deposed at first page of his examination-in-
chief dated 07.11.2012 that he had kept payment in his Pithoo bag of
light brown colour having a tag of ‘Diesel’. Photocopies of some hand
written notes, one book of French learning, one blue pen of make
Uniball and one black pen of make Reynold were also there in the bag.
When he reached 1 km ahead of Shantivan chowk towards Geeta colony
on Geeta colony flyover then he suddenly heard a sound of cracker and a
current like sensation in his body particularly in chest area. His vision
started becoming blurred. At that time two person came near him on a
bike. The pillion rider had shown the gun and snatched his bag. The
speed of bike was less than 20 km per hour. He does not remember the
colour of motorcycle. He parked motorcycle on the side of the road and
sat on the road. Later on PW-1 came there and took him on his bike to
the hospital. He has deposed again further in his examination-in-chief at
page no. 2 that he has mistakenly stated the colour of Pithoo bag as light
brown colour due to lapse of time whereas the bag was of light green
colour which is Ex.P1. He was shown recovered bag in the hospital after
4-5 days. He had not given the bill of the said bag. However the
description of bag was given by him to the police.
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15. Now it has to be seen that whether the recovery of pistol with
cartridge from accused Md. Firoz and the other articles are proved by the
prosecution on record. Hon’ble Supreme Court of India in case titled
Rajesh Vs. The State of Madhya Pradesh on 21 September, 2023 in
Criminal Appeal No(s). 793-794 of 2022 has laid down that independent
and respectable persons are mandatory to join for making search of a
place and seizure of an article. The said panch witness preferably have to
be from the same locality and has further laid down mandatory
requirement under Section 100 Cr. PC for the purpose of valid
panchnama. The law is laid down at para no. 28. Mandatory conditions
for preparation of valid panchnama are laid down which the
investigation officer is obliged to prove during his evidence. The exact
words stated by the accused must be recorded in the disclosure statement
which IO is obliged to depose in evidence. It was further laid down that
even if there is procedural illegality in making the search and seizure
then also the evidence collected would not become inadmissible and all
the circumstances of the case are to be considered if any prejudice had
been caused to the accused. The relevant para are reproduced
hereasunder:
22. Section 26 of the Indian Evidence Act, 1872 (for brevity, ‘the
Evidence Act‘), provides that no confession made by any person
whilst he is in the custody of a police officer shall be proved
against such person, unless it is made in the immediate presence of
a Magistrate. Section 27, thereafter, is in the nature of an exception
to Section 26 of the Evidence Act. It states that, when any fact is
deposed to as discovered in consequence of information received
from a person accused of any offence, in the custody of a police
officer, so much of such information, whether it amounts to a
confession or not, as relates distinctly to the fact thereby
discovered, may be proved. Therefore, it is essential under SectionSC No. 28006/2016
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27 of the Evidence Act that the person concerned must be ‘accused
of an offence’ and being in the ‘custody of a police officer’, he or
she must give information leading to the discovery of a fact and so
much of that information, whether it amounts to a confession or
not, that relates distinctly to the fact discovered, may be proved
against him. In effect, both aspects, viz, being in ‘the custody of a
police officer’ and being ‘accused of an offence’, are indispensable
pre-requisites to render a confession made to the police admissible
to a limited extent, by bringing into play the exception postulated
under Section 27 of the Evidence Act.
23. In this regard, reference may be made to Bodhraj alias Bodha
and others vs. State of Jammu & Kashmir 7, wherein this Court
had observed that the requirement of ‘police custody’ is productive
of extremely anomalous results and may lead to the exclusion of
valuable evidence in cases where a person, after committing a
crime meets a police officer and states the circumstances of the
crime which lead to the discovery of the dead body, weapon or any
other material fact, in consequence of the information thus
received from him, and he is subsequently taken into custody and
becomes an ‘accused’. This Court pointed out that this information,
which would otherwise be admissible, becomes inadmissible under
Section 26 of the Evidence Act as it did not come from a person in
the ‘custody of a police officer’ or rather, came from a person not
in the ‘custody of a police officer’. In other words, the exact
information given by the accused ‘while in custody’, which led to
recovery of the articles can be proved. It was noted that this
doctrine is founded on the principle that if any fact is discovered as
a search was made on the strength of any information obtained
from a prisoner, such a discovery is a guarantee that the
information supplied by the prisoner is true.
(2002) 8 SCC 45
24. Thereafter, in State of Karnataka vs. David Rozario and
another 8, this Court held that information which is otherwise
admissible under Section 27 of the Evidence Act would become
inadmissible, if it did not come from a person in the ‘custody of a
police officer’ or came from a person ‘not in the custody of a
police officer’. It was further held that what is admissible is the
information and not the opinion formed on it by the police officer
and, in other words, the exact information given by the accused
while in ‘custody’ which led to recovery of the articles has to be
proved.
The two essential requirements, per this Court, are that:
(i) the person giving the information must be ‘accused of an
offence’; and (ii) he must be in ‘police custody’.
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25. Again, in Ashish Jain vs. Makrand Singh and others 9, this
Court held that once a confessional statement of the accused is
found, on facts, to be involuntary, it would be hit by Article 20(3)
of the Constitution of India, rendering such a confession
inadmissible. It was further noted that there is an embargo on
accepting self-incriminatory evidence, but if it leads to the
recovery of material objects in relation to a crime, it is most often
taken to hold evidentiary value as per the circumstances of each
case. This Court further cautioned that if such a statement is made
under undue pressure and compulsion from the Investigating
Officer, the evidentiary value of such a statement leading to the
recovery is nullified.
(2002) 7 SCC 728, (2019) 3 SCC 770
26. More recently, in Boby vs. State of Kerala10, this Court
referred to the decision of the Privy Council in Pulukuri Kotayya
vs. King Emperor 11, wherein Section 27 of the Evidence Act had
been considered at length and it was noted that Section 27 provides
an exception to the prohibition imposed by the preceding
provisions and enables certain statements made by an ‘accused’ in
‘police custody’ to be proved. It was observed that the condition
necessary to bring Section 27 into operation is that the discovery of
a fact in consequence of information received from a person
‘accused of any offence’ in the ‘custody of a police officer’ must be
deposed to, and thereupon so much of the information, as relates
distinctly to the fact thereby discovered, may be proved. It was
observed that normally, Section 27 is brought into operation when
a person in ‘police custody’ produces from some place of
concealment some object, such as a dead body, a weapon or
ornaments, said to be connected with the crime, of which the
informant is accused. However, the Privy Council concluded that
the exception to Section 26 added by Section 27 should not be held
to nullify the substance of the provision and it would be fallacious
to treat the ‘fact discovered’ as equivalent to the object produced;
the ‘fact discovered’ embraces the place from which the object is
produced and the knowledge of the accused as to this, and the
information given must relate distinctly to this fact. By way of
example, it was elucidated that information supplied by a Criminal
Appeal No. 1439 of 2009, decided on 12.01.2023. AIR 1947 Privy
Council 67 person in custody that “I will produce a knife
concealed in the roof of my house” does not lead to the discovery
of a knife; as knives were discovered many years ago, but if it
leads to the discovery of the fact that a knife is concealed in the
house of the informant to his knowledge and if the knife is proved
to have been used in the commission of the offence, the fact
discovered is very relevant. Noting this principle, this Court
observed that Section 27 of the Evidence Act requires that the ‘fact
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discovered’ embraces the place from which the object is produced
and the knowledge of the ‘accused’ as to this and the information
given must relate distinctly to the said fact.
Xxxxxxxxxxxx
28. That apart, the manner in which the Investigating Officer (PW-
16) went about drawing up the proceedings forms an important
issue in itself and it is equally debilitative to the prosecution’s case.
In Yakub Abdul Razak Memon vs. State of Maharashtra through
CBI, Bombay 12, this Court noted that the primary intention
behind the ‘panchnama’ is to guard against possible tricks and
unfair dealings on the part of the officers entrusted with the
execution of the search and also to ensure that anything
incriminating which may be said to have been found in the
premises searched was really found there and was not introduced
or planted by the officers of the search party. It was further noted
that the legislative intent was to control and check these
malpractices of the officers, by making the presence of
independent and respectable persons compulsory for search of a
place and seizure of an article. It was pointed out that a panchnama
can be used as corroborative evidence in the Court when (2013) 13
SCC 1 the respectable person who is a witness thereto gives
evidence in the Court of law under Section 157 of the Evidence
Act. This Court noted that Section 100(4) to Section 100(8) Cr.P.C.
stipulate the procedure with regard to search in the presence of two
or more respectable and independent persons, preferably from the
same locality, so as to build confidence and a feeling of safety and
security amongst the public. The following mandatory conditions
were culled out from Section 100 Cr.P.C. for the purposes of a
valid panchnama:
(a) All the necessary steps for personal search of officer
(Inspecting officer) and panch witnesses should be taken to create
confidence in the mind of court as nothing is implanted and true
search has been made and things seized were found real.
(b) Search proceedings should be recorded by the I.O. or some
other person under the supervision of the panch witnesses.
(c) All the proceedings of the search should be recorded very
clearly stating the identity of the place to be searched, all the
spaces which are searched and descriptions of all the articles
seized, and also, if any sample has been drawn for analysis purpose
that should also be stated clearly in the Panchanama.
(d) The I.O. can take the assistance of his subordinates for search
of places.If any superior officers are present, they should also sign
the Panchanama after the signature of the main I.O.
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(e) Place, Name of the police station, Officer rank (I.O.), full
particulars of panch witnesses and the time of commencing and
ending must be mentioned in the Panchnama.
(f) The panchnama should be attested by the panch witnesses as
well as by the concerned IO.
(g) Any overwriting, corrections, and errors in the Panchnama
should be attested by the witnesses.
(h) If a search is conducted without warrant of court under Section
165 of the Code, the I.O. must record reasons and a search memo
should be issued. It was held that a panchnama would be
inadmissible in a Court of law if it is recorded by the Investigating
Officer in a manner violative of Section 162 Cr.P.C. as the
procedure requires the Investigating Officer to record the search
proceedings as if they were written by the panch witnesses
themselves and it should not be recorded in the form of examining
witnesses, as laid down in Section 161 Cr.P.C. This Court
concluded, by stating that the entire panchnama would not be
liable to be discarded in the event of deviation from the procedure
and if the deviation occurred due to a practical impossibility, then
the same should be recorded by the Investigating Officer so as to
enable him to answer during the time of his examination as a
witness in the Court of law.
29. Recently, in Ramanand @ Nandlal Bharti vs. State of Uttar
Pradesh13, a 3-Judge Bench of this Court observed that the
requirement of law that needs to be fulfilled before accepting the
evidence of discovery is by proving the contents of the panchnama
and the Investigating Officer, in his deposition, is obliged in law to
prove the contents of the panchnama. It was further observed that it
is only if the Investigating Officer has successfully proved the
contents of the discovery panchnama in accordance with law that
the prosecution would be justified in relying upon such evidence
and Court may also accept the same. It was held that, in order to
enable the Court to safely rely upon the evidence of the
Investigating Officer, it is necessary that the exact words attributed
to the accused, as the statement made by him, be brought on record
and, for this purpose, the Investigating Officer is obliged to depose
in his evidence the exact statement and not merely say that the
discovery panchnama of the weapon of the offence was drawn up
as the accused was willing to take it out from a particular place.
30. In Khet Singh vs. Union of India 14, this Court held that even
if there is a procedural illegality in conducting the search and
seizure, the evidence collected thereby would not become
inadmissible and the Court would consider all the circumstances to
find out whether any serious prejudice has been caused to the
accused. However, this Court pointed out that if the search and
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seizure were in complete defiance of the law and procedure and
there was any possibility of the evidence collected having been
tampered with or interpolated during the course of such search and
seizure, then that evidence could not be admitted. Though these
observations were made in the context of a search and seizure
under the Narcotic Drugs and Psychotropic Substances Act, 1985,
they would have relevance generally.
16. It was laid in case titled Boby vs State of Kerala on 12 January,
2023 in Criminal Appeal No. 1439 of 2009 that when disclosure was
made by the accused person then before that the first thing IO should
have done was to join two independent witness at the police station itself
and in whose presence the accused should be asked to make appropriate
statement as he may desire. The exact words of the accused are to be
recorded in the statement. It should be first part of panchnama for the
purpose of Section 27 of Evidence Act which is always drawn at PS in
the presence of witness. After completion of first part the police
alongwith accused and the panch witness would proceed to the place as
may be lead by the accused. The article discovered and the entire process
followed it would form second part of panchnama and this is how the
discovery panchnama as contemplated under Section 27 of Evidence Act
has to be prepared. The relevant para are reproduced hereasunder:
16. Insofar as last seen theory is concerned, it will be relevant to
refer to the following observations of this Court in the case of State
of U.P. v. Satish3:
“22. The last-seen theory comes into play where the time-gap
between the point of time when the accused and the deceased were
last seen alive and when the deceased is found dead is so small that
possibility of any person other than the accused being the author of
the crime becomes impossible. It would be difficult in some cases
to positively establish that the deceased was last seen with the
accused when there is a long gap and possibility of other persons
coming in between exists. In the absence of any other positiveSC No. 28006/2016
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evidence to conclude that the accused and the deceased were last
seen together, it would be hazardous to come to a conclusion of
guilt in those cases. In this case there is positive evidence that the
deceased and the accused were seen together by witnesses PWs 3
and 5, in addition to the evidence of PW 2.”
17. It could thus clearly be seen that the last-seen theory comes
into play where the time-gap between the point of time 3 (2005) 3
SCC 114 when the accused and the deceased were last seen alive
and when the deceased is found dead is so small that possibility of
any person other than the accused being the author of the crime
becomes impossible. If the gap between the time of last seen and
the deceased found dead is long, then the possibility of other
person coming in between cannot be ruled out.
Xxxxxxxxx
21. It could thus be seen that Section 27 of the Evidence Act
requires that the fact discovered embraces the place from which the
object is produced and the knowledge of the accused as to this, and
the information given must relate distinctly to the said fact. The
information as to past user, or the past history, of the object
produced is not related to its discovery. The said view has been
consistently followed by this Court in a catena of cases.
Xxxxxxxxxxxxxxxxxxxxxxxx
25. A three-Judges Bench of this Court recently in the case of
Subramanya v. State of Karnataka7, has observed thus:
“82. Keeping in mind the aforesaid evidence, we proceed to
consider whether the prosecution has been able to prove and
establish the discoveries in accordance with law. Section 27 of the
Evidence Act reads thus:
“27. How much of information received from accused may be
proved.– Provided that, when any fact is deposed to as discovered
in consequence of information received from a person accused of
any offence, in the custody of a police officer, so much of such
information, whether it amounts to a confession or not, as relates
distinctly to the fact thereby discovered, may be proved.”
83. The first and the basic infirmity in the evidence of all the
aforesaid prosecution witnesses is that none of them have deposed
the exact statement said to have been made by the appellant herein
which ultimately led to the discovery of a fact relevant under
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Section 27 of the Evidence Act.
84. If, it is say of the investigating officer that the accused
appellant while in custody on his own free will and volition made a
statement that he would lead to the place where he had hidden the
weapon of offence, the site of burial of the dead body, clothes etc.,
then the first thing that the investigating officer should have done
was to call for two independent witnesses at the police station
itself. Once the two independent witnesses would 7 2022 SCC
OnLine SC 1400 arrive at the police station thereafter in their
presence the accused should be asked to make an appropriate
statement as he may desire in regard to pointing out the place
where he is said to have hidden the weapon of offence etc. When
the accused while in custody makes such statement before the two
independent witnesses (panch-witnesses) the exact statement or
rather the exact words uttered by the accused should be
incorporated in the first part of the panchnama that the
investigating officer may draw in accordance with law. This first
part of the panchnama for the purpose of Section 27 of the
Evidence Act is always drawn at the police station in the presence
of the independent witnesses so as to lend credence that a
particular statement was made by the accused expressing his
willingness on his own free will and volition to point out the place
where the weapon of offence or any other article used in the
commission of the offence had been hidden. Once the first part of
the panchnama is completed thereafter the police party along with
the accused and the two independent witnesses (panch witnesses)
would proceed to the particular place as may be led by the accused.
If from that particular place anything like the weapon of offence or
blood stained clothes or any other article is discovered then that
part of the entire process would form the second part of the
panchnama. This is how the law expects the investigating officer to
draw the discovery panchnama as contemplated under Section 27
of the Evidence Act. If we read the entire oral evidence of the
investigating officer then it is clear that the same is deficient in all
the aforesaid relevant aspects of the matter.”
xxxxxxxxxxx
32. It will further be relevant to refer to the following observations
of this Court in the said case:
“71. ……The provisions of Section 27 of the Evidence Act are
based on the view that if a fact is actually discovered in
consequence of information given, some guarantee is afforded
thereby that the information was true and consequently the saidSC No. 28006/2016
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information can safely be allowed to be given in evidence because
if such an information is further fortified and confirmed by the
discovery of articles or the instrument of crime and which leads to
the belief that the information about the confession made as to the
articles of crime cannot be false…..”
33. A perusal of paragraph 71 of the said judgment would reveal
that the Court has reiterated that the two essential requirements for
the application of Section 27 of the Evidence Act are that (1) the
person giving information must be an accused of any offence and
(2) he must also be in police custody. The Court held that the
provisions of Section 27 of the Evidence Act are based on the view
that if a fact is actually discovered in consequence of information
given, some guarantee is afforded thereby that the information was
true and consequently the said information can safely be allowed to
be given in evidence.
17. In the present case the law laid down and discussed above for
discovery panchnama in the first and second part is not followed by the
IO. This therefore creates caution and it has to be seen that whether by
not following the procedure prejudice has been caused to the accused.
By not following due procedure itself creates prejudice against the
accused and therefore the evidence of prosecution witness has to be read
with caution. PW-5 HC Raj Kumar at page 1 of his examination-in-chief
has deposed that on 07.03.2012 when he was with the investigating team
then both the accused involved in the present case were found at Khajuri
Chowk road leading to Loni standing at the corner. On identification of
informer the said boys were apprehended. Accused started running after
looking at the police party. PW-19/SI Karamvir Singh has deposed in his
examination-in-chief dated 01.04.2015 that first they went to ISBT
where they met with a secret informer from where they took the secret
informer with them to Khajuri Chowk. Two person on the information of
secret informer were apprehended. Same is the deposition of PW-24
Insp. Mukesh Tyagi at page no. 2 of his examination-in-chief. It is
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deposed by PW-4 at page 2 of cross-examination dated 12.01.2016 that
he had asked the public person to join the investigation on 07.03.2012
but none had agreed. It is admitted as correct at page 4 of same cross-
examination that the place where the accused were arrested is a thickly
populated area having hawkers and shopkeepers. He did not note down
the name and address of such person whom he asked to join the
investigation. The entire writing work was done at Khajuri Khas Chowk
while standing near Jhuggi.
18. PW-5 at second page of his examination-in-chief dated 01.05.2013
has deposed that Firoz has taken the raiding party to the first floor of his
house where from the head of the bed one countrymade pistol and two
live cartridge were recovered which were seized vide memo Ex.PW5/E.
The room was found open. Thereafter accused Firoz has taken the police
party to the ground floor from where in one drawer Firoz has taken out
the keys of the motorcycle. In cross-examination by ld. APP for the state
it is deposed by PW-5 as correct that one bag of make ‘Diesel’ which
contained documents was also recovered from the roof of the house of
accused Firoz. It contained some document, some page notes and a book
of French learning which was seized vide memo Ex.PW5/K. Both PW-5
and PW-9 has deposed that before arrest of both the accused public
person were asked to join the investigation but none had joined.
19. Ld. Counsel for the accused has argued that the exclusive
possession of the house in question is not shown with the accused. It is
submitted that there is no other evidence on the basis of which it can be
said that the possession of the house was with the accused person. It is
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deposed by PW-2 at second page of his cross-examination dated
01.05.2013 that when accused Firoz had taken police party at first floor
of the house at that time the room was found open. Therefore before
reaching of the police party at the spot the room at first floor was open. It
is incumbent on the part of investigating agency to show that accused
Firoz was in exclusive possession of the said house at first floor from
where pistol was recovered so that it can be seen that accused was in
conscious possession of the recovery. It was held in case titled Karan
Sajnani, West Bengal Vs. State of Telangana and Anr. on 25 July, 2025
from Hon’ble High Court for the State of Telangana in Criminal
Revision Case No. 2309 of 2015 that the possession contemplated under
Section 25 of Arms Act, 1959 is conscious possession. “Men’s-rea”
which is knowledge of such possession is essential. Mere custody
without “men’s-rea” would not amount to an offence under Arms Act.
The relevant para of which is reproduced hereasunder:
07. With the above submissions, the learned counsel for the
petitioner-accused No.1 while praying to set aside the impugned
order, he relied upon a decision rendered by the High Court of
Delhi at New Delhi in Birendra Shukla v. The State (Govt. of NCT
of Delhi) and another 2018 SCC OnLine Del 10218, wherein it
was held at Paragraph Nos.7, 9, 10 that:
“7. It is a settled proposition of law that possession under Section
25 of the Arms Act refers to not only physical possession but also
the requisite mental element i.e. mens rea of conscious possession.
Mere custody without mens rea would not constitute an offence
under the Arms Act. Conscious possession of a fire
arm/ammunition is a necessary ingredient of the statutory offence
entailing strict liability on the offender.
9. In the absence of the conscious possession of live cartridge,
which cannot be used for any purpose, Section 45(d) of the Arms
Act would not be applicable and it would be justified to end all
such proceedings to secure the ends of justice.
10. Perusal of the record shows that the subject case is clearly
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covered by the decisions referred to above and the principle of law
laid down by the Supreme Court. There isn’t sufficient evidence or
reasonable ground of suspicion to justify conscious possession of
the live cartridges recovered from the baggage of the petitioner.
There is no material on record to show that the petitioner was
conscious of the possession of the live cartridge.”
08. Further, he relied upon a decision rendered by the High Court
of Bombay at Goa in Manohar Singh Dasauni v. State of Goa,
Through Verna Police Station 2023 SCC OnLine Bom 1775
wherein at Paragraph No.11 held that:
“11. In the case of M.A. Latif Shahrear Zahedee v. State Of
Maharashtra, (supra), the Division Bench of this Court again dealt
with a similar question wherein the petitioner therein was found in
possession of live cartridges and was prosecuted for the offence
under Sections 3 and 25 of the Arms Act. The contention of the
petitioner was that he has offered valid explanation for the five live
cartridges and one empty cartridge found in his toilet kit pouch. He
produced arms licence issued to his brother. The Court observed
that such possession cannot be called as conscious possession as
required under Sections 3 and 25 of the Arms Act. It was also
observed that bare perusal of Sections 3 and 25 of the Arms Act
clearly reveals that the term “possession” used therein refers to
conscious possession and not unconscious possession or
inadvertent possession. Mere possession of the firearm or
ammunition would not constitute offence under Sections 3 and 25
of the Arms Act. The essential requirement is the knowledge of
possession or power or control over the arm or ammunition when
not in actual possession.”
09. On the other hand, learned Assistant Public Prosecutor
appearing for the State-respondents contended that there are triable
issues in the matter and there is no illegality or irregularity
committed by the learned Magistrate in dismissing the discharge
application filed by the petitioner- accused No.1. Hence, there are
no grounds to interfere with the impugned Order passed by the
learned Magistrate and prayed to dismiss this Criminal Revision
Case.
10. A bare perusal of the contents of the charge sheet reveals that
the Police have mechanically invoked Sections 25(1)(a) and 25(1-
A) of the Act, the former being cited on the first page and the latter
on the concluding page. However, the sole allegation against the
petitioner-accused No.1 is that he was found in possession of live
ammunition, which was allegedly recovered from his bag during
security checking at Rajiv Gandhi International Airport,
Shamshabad. There is no further material indicating any misuse or
unlawful intent associated with such possession. In view of facts
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State Vs. Firoz & Anr. Page 24 of 70
and circumstances of the case, it is relevant to extract Sections
25(1)(a) and 25(1-A) of the Act, which reads as under:
“25(1)(a) Whoever (a) [manufactures, obtains, procures,] sells,
transfers, converts, repairs, tests or proves, or exposes or offers for
sale or transfer, or has in his possession for sale, transfer,
conversion, repair, test or proof, any arms or ammunition in
contravention of section 5; or 25(1-A) Whoever acquires, has in his
possession or carries any prohibited arms or prohibited
ammunition in contravention of section 7 shall be punishable with
imprisonment for a term which shall not be less than [seven years
but which may extend to fourteen years] [Inserted by Act 42 of
1988, Section 5 (w.e.f. 27.5.1988.] and shall also be liable to fine.”
11. A plain reading of the aforesaid provisions of the Act, indicates
that Section 25(1)(a) prescribes the penalty for manufacturing,
selling, transferring, converting, repairing, testing, or possessing
any firearm or ammunition in contravention of the provisions of
Section 5 of the Act. In essence, this provision pertains to
unauthorized dealings in arms and ammunition. On the other hand,
Section 25(1-A) specifically relates to the illegal possession,
acquisition, or carrying of prohibited arms or ammunition in
violation of Section 7 of the Act. It mandates a minimum
punishment of seven years’ rigorous imprisonment, which may
extend to fourteen years, thereby reflecting the gravity of offences
involving prohibited arms or ammunition.
12. A bare perusal of Section 25 of the Arms Act, 1959 clearly
indicates that the term “possession” as used therein contemplates
conscious possession, and not mere inadvertent or unconscious
possession. Mere physical custody of a firearm or ammunition,
without the requisite mental element, does not attract the penal
provisions of Section 25 of the Act. The essential requirement to
constitute an offence under this provision is the existence of mens
rea, i.e., knowledge of such possession or control over the firearm
or ammunition, even in the absence of actual physical possession.
The term “possession” under Section 25 encompasses both
physical control and conscious awareness. Thus, mere custody
without mens rea would not amount to an offence under the Act.
Conscious possession is a necessary ingredient to establish
criminal liability under this statutory provision. In the present case,
there is no material on record to indicate that the petitioner-accused
No.1 had conscious knowledge of the possession of the live
ammunition. Further, there is no sufficient evidence or reasonable
ground to suspect that the petitioner knowingly carried the said
ammunition with the requisite mental intent.
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20. Therefore the duty to prove the conscious possession is on the
prosecution when the house was open at the first floor and the ownership
of the house is also not proved on record by the prosecution then it
cannot be said that the one countrymade pistol and two live cartridge
were in conscious possession of the accused Firoz. The above doubt is
further substantiated by not following due procedure by investigating
agency discussed above under Section 27 of Indian Evidence Act in
regard to preparing of panchnama. Therefore it has become incumbent
on the part of IO to join public witness before conducting raid as ample
time was available to join public witness record disclosure statement of
accused person and thereafter to discover the incriminating articles as
per due procedure. Panchnama is therefore required to be prepared. The
hawkers and passersby were available as per deposition of prosecution
witness at the time of arrest of accused Firoz at 6:30 PM vide memo
Ex.PW5/A. The disclosure statement of accused Firoz is Ex.PW19/A. In
the disclosure statement at last page it is recorded that accused Firoz can
get recovered live and empty cartridge. It does not mention the address
from which the live and empty cartridge could be recovered. The fact
discovered are not equivalent to the object produced the fact discovered
embrace the place from where the object is produced and the knowledge
of the accused as to this. Therefore the mentioning the place from where
the object is to be recovered is an essential requirement. Only after that
it has to be seen whether the object recovered on the basis of facts
discovered was actually used in the commission of offence or not. The
disclosure statement as made by the accused is insufficient to supply
necessary ingredient to connect the object discovered to the place of
discovery. In absence of this connection the place of discovery is not a
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fact discovered as per disclosure statement Ex.PW19/A. On this account
also the recovery of pistol and two live cartridge from accused Firoz has
become doubtful as they are not proved as per requirement of Section 27
of Evidence Act, 1872. Further, the above lacunae show that it was
incumbent on the part of IO to join public witness beforehand which was
also mandatory requirement of law in committing such search and
seizure and to prepare panchnama. The non joining of public witness
when they were available and moreso when sufficient time was
available with the IO to join the panchnama witness in the facts and
circumstances of the case creates doubt in the case of the prosecution.
The relevant citation for non-joining of public witness titled Mustakeen
@ Bhura vs. State (Govt. of NCT Delhi) on 2nd November, 2020 in
CRL. A. 419/2018 & CRL. M. (BAIL) 6459/2020 at para no. 56, 62, 63,
65, and 69 are reproduced hereasunder:
56. It is a settled principle of law that the prosecution has to stand
on its own legs and cannot draw strength from the lacuna in the
defence case. The appellant may have taken a wrong defence, but it
was for the prosecution to prove its case. In “Sharad Birdhichand
Sarda Vs. State of Maharashtra”, Criminal Appeal No. 745 of 1983
decided on 17.07.1984 by the Supreme Court of India it has been
held that the absence of explanation and /or post explanation, or a
false plea taken by an accused was not sufficient to convict the
accused. It was observed in this case that “it is well settled that the
prosecution must stand or fall on its own legs and it cannot derive
any strength from the weakness of the defence”. This is trite law
and no decision has taken a contrary view. What some cases have
held is only that:
“where various links in a chain are in themselves
complete, then a false plea for a false decence may be
called for aid only to lend assurance to the Court. In
other words, before using the additional link it must be
proved that all the links in the chain are complete and do
not suffer from any infirmity. It is not the law that where
there is any infirmity or lacuna in the prosecution case,SC No. 28006/2016
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State Vs. Firoz & Anr. Page 27 of 70
the same could be cured or supplied by a false defence
or a plea which is not accepted by the Court.” In the
instant case, we have already held that PW 11 is not an
eye witness of this case. Considering PW 11 to be the
eye witness of this case, and throwing all settled
principles of law relating to TIP to winds, constable
Kuldeep was joined in the raiding party alongwith secret
informer and other police officials for apprehending the
accused persons of the incident which took place on
6.3.2011, but PW 11 has categorically stated to PW 44
SI Bhim Sain that appellant Arshad was not involved in
the crime which took place on 6.3.2011, but despite that
his disclosure statement was recorded and recovery of
Rs. 40,000/- was effected from him. No doubt, the
appellant has not been able to give proper explanation as
to how he was in possession of Rs. 40,000/-, but burden
was upon the prosecution to prove that the appellant was
involved in the crime which took place on 6.3.2011,
which the prosecution has miserably failed to do, as
discussed hereinabove. Therefore, the Ld. Trial Court
was not correct in drawing presumption against the
appellant Arshad U/s 114 of the Indian Evidence Act and
to convict him. The only evidence which remains on
record against appellant Arshad is his disclosure
statement which is not admissible in evidence. Apart
from this, there is not even an iota of evidence against
appellant Arshad to connect him with the crime which
took place on 6.3.2011.
62. We are aware that there is no rule of law or evidence, which
lays down that unless and until the testimony of the police
official is corroborated by some independent evidence, the same
cannot be believed. But it is a Rule of Prudence, that a more
careful scrutiny of the evidence of the police officials is required,
since they can be said to be interested in the result of the case
projected by them.
63. In the instant case, we have already observed hereinabove in
the judgment that PW 11 Ct. Kuldeep who has been projected as
an eye witness by the IO of this case, is not an eye witness and
has been planted in order to “solve” the case. Therefore, we have
find it hard to believe the testimonies of the police officials in the
absence of corroboration from any public witness, looking into
the facts and circumstances of this case and also the manner in
which the IO and the SHO have conducted themselves. For the
sake of repetition, the IO had made no efforts to join the public
witnesses. Had he made any such efforts, then the things wouldSC No. 28006/2016
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have been different, but in the instant case, the manner in which
the investigation has been done and the non joining of any public
witnesses reduces the arrest and search of the appellant
untrustworthy, and the same does not inspire confidence.
65. We fail to understand as to why a person who had allegedly
killed a man and is the BC of the area would be carrying with
him all the articles mentioned hereinabove with him, that too
after 11 days of the incident. In our opinion, 11 days were
sufficient for the appellant Mustakeem to get rid of these articles
but, strangely enough, as per the prosecution, he was roaming
around with all this stuff of the deceased attached to his chest. It
is also a matter of common sense that whenever an offence is
committed in the jurisdiction of a police station, as a matter of
routine, the concerned SHO places suspicion on the local goons
and specially BC of the area. So, when such is the situation, we
fail to digest the theory of the prosecution that on the day of his
arrest-which is after 11 days of the date of the incident, appellant
Mustakeem would be carrying with him the articles of the
deceased. There would have been record of the accused
maintained in the Police Station and the same could be used to
identify him and establish his involvement. Where was the
necessity of involving a secret informer?
69. In order to connect the appellant Mustakeem with the
offence, again the Ld. Trial Court has raised presumption U/s 114
(a) of the Indian Evidence Act. The presumption U/s 114 (a) of
the Indian Evidence Act may be available if the goods in
question found in possession of the person in question after the
theft, are proved to be stolen property. Unless the goods are
proved to be stolen property, the presumption U/s 114 (a) of the
Act is not available. In the instant case, the prosecution has not
been able to prove that it was the appellant who had committed
the offence on the date of the incident as alleged by the
prosecution. It was also not justified on the part of the Ld. Trial
Court to draw presumption U/s 114 (a) of the Evidence Act as the
possession, if any, cannot be said to be recent possession.
Therefore, if the prosecution has not been able to prove that the
sum of Rs. 70,000/- which according to the prosecution was
allegedly recovered from the appellant Mustakeem, was the
looted amount, the appellant cannot be convicted with the crime
by raising presumption U/s 114 (a) of the Indian Evidence Act.
21. Hence it is held that prosecution has failed to prove recovery of
the pistol and two live cartridge from the accused Firoz.
SC No. 28006/2016
FIR No. 49/2012
State Vs. Firoz & Anr. Page 29 of 70
22. Another fact and circumstance of the case is to be seen whether
the prosecution is able to connect discovery of one green colour bag
having tag of ‘Diesel’, one book of French learning authored by Mahitha
Ranjit and Monika Singh, with some handwritten notes. The book also
contain the name of witness/PW-2 Navneet Singh, PGDMIB/23IILL,
CMS Greater Noida which were identified correctly by PW-2. That it is
the same bag and book of French learning with photocopy of notes
robbed from his possession alongwith currency notes. The bag is Ex.P1,
photocopy of handwritten notes are collectively Ex.P2. Book of French
learning is Ex.P3. PW-2 has deposed that he had mistakenly stated that
colour of bag being light brown due to lapse of time. Whereas the colour
of bag is light green which is Ex.P1. The recovered bag was shown to
the PW-2 at the hospital after 4-5 days of the incident. The bill of the bag
was not given by him to the police. It noted that the above bag of make
‘Diesel’ is made by a company and same is commonly available in the
market place. In absence of necessary invoice and identification in
deposition by PW-2 is doubtful. PW-2 in his deposition claimed that it is
of brown colour and again said it is of green colour which creates doubt
in the case of the prosecution. It is commonly available article ownership
of which is not proved on record.
23. It is deposed by PW-5 in cross-examination dated 01.05.2013 at
page 5 that at the ground floor there was a factory. In front of house of
accused there was L-shape street. At first floor there is one room beside
wash and toilet. Double bed was lying in the room. A woman was
available there. No statement of the woman was recorded. The witness to
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FIR No. 49/2012
State Vs. Firoz & Anr. Page 30 of 70
seizure memo of bag and papers is PW-5 and the seizure memo is
Ex.PW5/K. The seizure memo of currency note is Ex.PW5/H. The PW-5
has not deposed in his examination-in-chief that after being led to Puja
colony by accused Shahid the seizure memo Ex.PW5/K was prepared. In
fact only during cross-examination by ld. APP for the state PW-5 has
deposed that the seizure memo Ex.PW5/K was prepared that the bag had
contained some documents, some page notes and a book of French
learning. However he does not depose that the seizure memo was
prepared at the spot at the first floor in the house where the accused
Firoz has allegedly taken at Mustafabad, near Karawal Nagar, Delhi.
Insp. Parveen Ahlawat/PW-16 has deposed that Ex.PW5/K bears his
signature however he does not depose that where it was prepared. He
cannot tell the time taken by him in preparing pulandas and doing
sealing of weapon, photocopies and book. He cannot tell the size of
Pithoo bag from which photocopies and one book were recovered. He
cannot tell anything about the book. He cannot tell who prepared the
pulanda and sealed the pulanda. He cannot tell whether any member of
raiding party had signed the pulanda. He cannot tell in which language
accused Firoz had signed on the sketch of pistol, cartridge and seizure
memo of pistol. He cannot tell if any team member has signed the
pulanda/parcel. He cannot tell where all the writing work was done and
in what manner. PW-19 SI Karamvir has deposed in his examination-in-
chief that Ex.PW5/K the seizure memo bears his signatures. After
seizure they came down at the ground floor. After coming at the ground
floor both the motorcycles alongwith keys were taken into possession
vide seizure memo ExPW5/F and Ex.PW5/G. If the seizure memo
Ex.PW5/K was prepared earlier to seizure memo Ex.PW5/F and
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FIR No. 49/2012
State Vs. Firoz & Anr. Page 31 of 70
Ex.PW5/G then such seizure memo are not prepared chronologically in
the manner the investigation was conducted. This therefore creates doubt
in preparation of seizure memo Ex.PW5/K at the spot itself. Hence the
seizure memo was not prepared at the spot and it was prepared
somewhere else for the reason that Ex.PW5/F and Ex.PW5/G must have
been prepared prior to Ex.PW5/K. In case titled Mustkeem @ Sirajudeen
Vs. State of Rajasthan on 13 July, 2011 Equivalent citations: AIR 2011
Supreme Court 2769, 2011 (11) SCC 724 it was laid down that if the
recovery memo were prepared at the police station itself then they loose
their sanctity. It was also laid down that the lacunae in hand-writing in
which memo are prepared are required to be explained by the
prosecution when the whole case rest on circumstantial evidence. The
relevant para of which are reproduced hereasunder:
24. In fact, the recovery of the weapons on disclosure of the
Appellants itself becomes doubtful. The witness of Recovery
Memo P.W.1 -Mohd. Ayub Khan was declared hostile and another
witness P.W.10 – Chittar admitted that signatures were obtained on
the memos and annexures at the Police Station itself. It is also
pertinent to mention here that P.W.1 – Mohd. Ayub Khan was
residing 4 Kms. away from the place of recovery and P.W.10 –
Chittar was residing 8 Kms. away from the place of recovery and
were also declared hostile.
Prosecution failed to establish as to why none of the local persons
were called to be the witnesses.
The conduct of the prosecution appears to be extremely doubtful
and renders the case as concocted, to falsely implicate the
Appellants.
Recovery Memos also reflect that there were overwriting on the
same which has not been explained by P.W.16 – Diwakar
Chaturvedi (Investigating Officer). He admitted that memos and
annexures were prepared in his own handwriting but also admitted
in his cross examination that the same were in a different
handwriting. This lacuna should have been explained by the
prosecution more so when the whole case rested only on
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FIR No. 49/2012
State Vs. Firoz & Anr. Page 32 of 70
circumstantial evidence. Thus looking to the matter from all angles
we are of the considered opinion that it would not be safe and
proper to hold the Appellants guilty for commission of offence.
25. It is too well settled in law that where the case rests squarely on
circumstantial evidence the inference of guilt can be justified only
when all the incriminating facts and circumstances are found to be
incompatible with the innocence of the accused or the guilt of any
other person. No doubt, it is true that conviction can be based
solely on circumstantial evidence but it should be decided on the
touchstone of law relating to circumstantial evidence, which has
been well settled by law by this Court.
Xxxxxxxxxxxxxxxx
27. With regard to Section 27 of the Act, what is important is
discovery of the material object at the disclosure of the accused but
such disclosure alone would not automatically lead to the
conclusion that the offence was also committed by the accused. In
fact, thereafter, burden lies on the prosecution to establish a close
link between discovery of the material objects and its use in the
commission of the offence. What is admissible under Section 27 of
the Act is the information leading to discovery and not any opinion
formed on it by the prosecution.
28. If the recovery memos were prepared at the Police Station itself
then the same would lose its sanctity as held by this Court in Varun
Chaudhary Vs. State of Rajasthan reported in AIR 2011 SCC 72.
29. The scope and ambit of Section 27 were also illuminatingly
stated in AIR 1947 PC 67 Pulukuri Kotayya & Ors. Vs. Emperor
reproduced hereinbelow:-
“…it is fallacious to treat the ‘fact discovered’ within the section as
equivalent to the object produced; the fact discovered embraces the
place from which the object is produced and the knowledge of the
accused as to this, and the information given must relate distinctly
to this fact. Information as to past user, or the past history, of the
object produced is not related to its discovery in the setting in
which it is discovered. Information supplied by a person in custody
that ‘I will produce a knife concealed in the roof of my house’ does
not lead to the discovery of a knife; knives were discovered many
years ago. It leads to the discovery of the fact that a knife is
concealed in the house of the informant to his knowledge, and if
the knife is proved to have been used in the commission of the
offence, the fact discovered is very relevant. But if to the statement
the words be added ‘with which I stabbed A’ these words are
inadmissible since they do not relate to the discovery of the knife
in the house of the informant.”
SC No. 28006/2016
FIR No. 49/2012
State Vs. Firoz & Anr. Page 33 of 70
The same were thereafter restated in another judgment of this
Court reported in 2004 (10) SCC 657 Anter Singh Vs. State of
Rajasthan.
30. The doctrine of circumstantial evidence was once again
discussed and summarised in 2008 (3) SCC 210 Sattatiya @Satish
Rajanna Kartalla Vs. State of Maharashtra in the following terms:
“10. ..It is settled law that an offence can be proved not only by
direct evidence but also by circumstantial evidence where there is
no direct evidence. The court can draw an inference of guilt when
all the incriminating facts and circumstances are found to be totally
incompatible with the innocence of the accused. Of course, the
circumstance from which an inference as to the guilt is drawn have
to be proved beyond reasonable doubt and have to be shown to be
closely connected with the principal fact sought to be inferred from
those circumstances”.
24. Hence the recovery as shown by the prosecution is found to be
doubtful. Another fact to be noted is that PW-19 has deposed in first
page of his examination-in-chief that when they had reached at the house
of accused first he got recovered countrymade pistol and two live
cartridge kept in yellow colour bag which were kept beneath the cushion
under the head side of the first floor. Whereas PW-24 Insp. Mukesh
Tyagi at second page of his examination-in-chief has deposed that in one
yellow colour bag beneath a pillow was kept a bag at the first floor
containing one green colour bag on which was having a tag of ‘Diesel’.
The bag was found containing some documents and one pen. Thereafter
accused Firoz got recovered one countrymade pistol and two live
cartridge from the same room in his house. Hence according to PW-24
the countrymade pistol was not recovered from the yellow colour bag
and polythene kept under the pillow and it was recovered from some
where else from the same room. Hence this creates doubt about recovery
of such articles from accused Mohd. Firoz.
SC No. 28006/2016
FIR No. 49/2012
State Vs. Firoz & Anr. Page 34 of 70
25. In such circumstances of the case it is held that prosecution has
failed to prove that accused Mohd. Firoz was in conscious possession of
pistol with live cartridge. There is also doubt in recovery of photocopy of
hand written notes, book of learning French language and pen from the
accused Firoz in view of contradictory deposition on behalf of
prosecution witness. The disclosure statement does not record in exact
words where the articles were kept by the accused person. Public witness
are not joined in the matter and due procedure was not followed which
again creates doubt in the case of prosecution. In case titled Kattavellai
@ Devakar vs The State of Tamil Nadu on 15 July, 2025 in Criminal
Appeal No. 1672 of 2019 (Coram:3) it was laid down that extra-judicial
confession is a weak type of evidence. As a rule of caution Court has to
look for an independent reliable corroboration. The recovery should be
unimpeached and should not be shrouded with element of doubt. The
relevant para are reproduced hereasunder:
17. The evidence of PW-5 stands extracted in toto, supra. On
independent analysis, while we acknowledge the point of view of
the High Court that no two persons can act in the same manner, we
are unable to record our agreement with the findings returned qua
this witness. It is a settled proposition of law that if two
interpretations of a given situation are possible, the one favouring
the accused will be taken. But, at the same time, the principle in
judging the conduct of a person is the reasonable man test. The
examination that we must undertake is whether the act of PW-5
satisfies this understanding. Certain questions, therefore, arise.
First and foremost, why did he not inform anyone about the
occurrence between the 14th and the 20th; Second, having seen
that the Appellant-convict was threatening D1 and D2, and finding
that D1 did not pick up the phone when this witness called after
coming down the hill-ordinarily should have raised sufficient
concern in PW-5 to have taken further steps, for instance, himself
intervening, to support D1 and D2 against the actions of the
Appellant-convict, or alerting the forest rangers of unruly
behaviour, contacting police authorities or informing them of the
SC No. 28006/2016
FIR No. 49/2012
State Vs. Firoz & Anr. Page 35 of 70
near theft/threat they had received as also seen others receiving et
cetera; yet further when Bhagyalakshmi informed PW-5, that on
the next day D2 did not attend college, yet again there was no
action on part of PW-5 – In fact, stoic silence, any which way. He
testified that they assumed that the Appellant-convict would let D1
and D2 go, as he did to them, and that they would have gone off
into the woods to get married. Striking quite the opposite tone, in
his cross-examination it appears that there had been no discussio It
is also unclear that a man, who by his own admission, has been in
the past involved in petty crimes would take stolen articles not
only back to his own home but also give one of them to be pledged
in order to get money – the natural question is that once he has
stolen the said chain, it would be easier to dispose it of and get
whatever money it is worth rather than using it as collateral to get
money from other, more legitimate sources leaving open the
possibility of it being traced back.n whatsoever of this possibility.
The question then is how such an assumption could be justified.
The High Court held this exploration to be valid and possible but
then the record speaks differently. These circumstances, taken
cumulatively, appear to be sufficient enough to ring alarm bells and
yet he sat quietly and waited till the 20th May 2011 to inform any
of the investigating authorities or any other person in regards to
what he had seen at the hill. Can this be termed as the conduct of a
reasonable man or, in other terms be so plausible that it be chalked
out to differences in human behaviour. Considering the above
discussion, we find the testimony of PW-5 who is the star witness
of the prosecution to be full of holes, stretches and surmises. With
far too much emphasis being given on the possibility of such an
action being reasonable. Knowing both the victims, having seen
them be threatened, finding them missing from everyday activity
and even out of contact, and yet not even uttering so much as a
whisper to anybody, is hard to conceive as reasonable. In our
considered view, therefore, there are sufficient holes in the
testimony of PW-5 for it to be cast in doubt. This then takes us to
the question as to whether he is a witness worthy of credence and
his testimony believable. We are afraid not so. Particularly, as he
himself admits having been repeatedly questioned by all the
investigating officers.
Xxxxxxxxxxx
Circumstance Three: Arrest, Confession and Recovery Arrest
xxxxxxxxxxx
Confession
22. The appellant convict made two confession statements before
the police authorities, Ex. P.8 dated 28th May, 2011 and Ex. P.75
dated 31st May, 2012. The evidentiary value of such a confession
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FIR No. 49/2012
State Vs. Firoz & Anr. Page 36 of 70
has been considered many a times before this Court. In Nikhil
Chandra Mondal v. State of W.B.21 B.R Gavai, J., (as his Lordship
then was) discussed the law as follows :
(2023) 6 SCC “16. It is a settled principle of law that extra-judicial
confession is a weak piece of evidence. It has been held that where
an extra-judicial confession is surrounded by suspicious
circumstances, its credibility becomes doubtful and it loses its
importance. It has further been held that it is well-settled that it is a
rule of caution where the court would generally look for an
independent reliable corroboration before placing any reliance
upon such extra-judicial confession. It has been held that there is
no doubt that conviction can be based on extra-judicial confession,
but in the very nature of things, it is a weak piece of evidence.
17. Reliance in this respect could be placed on the judgment of this
Court in Sahadevan v. State of T.N. [Sahadevan v. State of T.N.,
(2012) 6 SCC 403 :
(2012) 3 SCC (Cri) 146] This Court, in the said case, after
referring to various earlier judgments on the point, observed thus :
(SCC pp. 412-13, para 16)
“16. Upon a proper analysis of the abovereferred judgments of this
Court, it will be appropriate to state the principles which would
make an extra-judicial confession an admissible piece of evidence
capable of forming the basis of conviction of an accused. These
precepts would guide the judicial mind while dealing with the
veracity of cases where the prosecution heavily relies upon an
extra-judicial confession alleged to have been made by the
accused:
(i) The extra-judicial confession is a weak evidence by itself. It has
to be examined by the court with greater care and caution.
(ii) It should be made voluntarily and should be truthful.
(iii) It should inspire confidence.
(iv) An extra-judicial confession attains greater credibility and
evidentiary value if it is supported by a chain of cogent
circumstances and is further corroborated by other prosecution
evidence.
(v) For an extra-judicial confession to be the basis of conviction, it
should not suffer from any material discrepancies and inherent
improbabilities.
(vi) Such statement essentially has to be proved like any other fact
and in accordance with law.”
23. Keeping in view the aforesaid principles of law, we have
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State Vs. Firoz & Anr. Page 37 of 70
perused both the confessions. In the first confession dated 28th
May, 2011 after giving a background of his upbringing and also
previous involvement in petty crimes, coming to the instant crime
he admitted that he struck a blow on D1 who, as a result thereof,
started bleeding. PW-54, to some extent corroborates this stating
that he had recovered sand both with and without blood near the
corpse of D2. However, contrary to this version of events, PW-28
who is the Scientific Officer at the Regional Laboratory states that
from the material recovered, there was no blood to be found. The
confessional statement records that having hacked the body of D2,
he threw the severed limbs in the nearby bushes but, it is a matter
of record that despite an extensive search, they could not be
located. It is also unclear that a man, who by his own admission,
has been in the past involved in petty crimes would take stolen
articles not only back to his own home but also give one of them to
be pledged in order to get money – the natural question is that once
he has stolen the said chain, it would be easier to dispose it of and
get whatever money it is worth rather than using it as collateral to
get money from other, more legitimate sources leaving open the
possibility of it being traced back.
24. That apart, we find that the record is silent as to why there was
a need to record a second confession more than a year after the
date of offence. The Deputy Superintendent of Police upon order
of the Additional Director General of Police, CBCID, Chennai,
commenced investigation in the matter following the latter’s order
dated 13th August, 2011 and, thereafter, enquired and examined
various witnesses. Given that the Appellant- convict was already in
custody, the recording of a second confession without any reason
therefor, or clearly stating that the Appellant-convict upon his own
volition wished to give a second confession, in our view, is
unjustified. As recorded supra, it has been held that if the
circumstances surrounding the recording of the confession are
suspicious, placing reliance thereon is totally unsafe, and that too
without any corroboration. We find there to be an apparent lack of
corroboration to any of the statements made by the Appellant-
convict and as such, find that the confessions are truly unreliable.
This is, of course, over and above the settled position of law that
confessions made to a police officer are wholly inadmissible as
evidence in a Court of law.
Recovery
25. The Courts below have found that since, in the confessions
given by the Appellant-convict, certain information regarding the
location of material objects was divulged, that limited portion of
the confession becomes admissible according to Section 27 of the
Indian Evidence Act,1872. That is the correct proposition in law.
Reference may be made to some judgments of this Court as
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State Vs. Firoz & Anr. Page 38 of 70
follows :
25.1 Surya Kant J., writing for a Bench of three Hon’ble Judges of
this Court in Bijender v. State of Haryana22, held as under :
“16. We have implored ourselves with abounding pronouncements
of this Court on this point. It may be true that at times the court can
convict an accused exclusively on the basis of his disclosure
statement and the resultant recovery of inculpatory material.
However, in order to sustain the guilt of such accused, the recovery
should be unimpeachable and not be shrouded with elements of
doubt. [Vijay Thakur v. State of H.P., (2014) 14 SCC 609 : (2015)
1 SCC (Cri) 454] We may hasten to add that circumstances such as
:
(i) the period of interval between the malfeasance and the
disclosure;
(ii) commonality of the recovered object and its availability in the
market;
(iii) nature of the object and its relevance to the crime;
(iv) ease of transferability of the object;
(v) the testimony and trustworthiness of the attesting witness
before the court and/or other like factors, are weighty
considerations that aid in gauging the intrinsic evidentiary value
and credibility of the recovery. (See : Tulsiram Kanu v. State
[Tulsiram Kanu v. State, 1951 SCC 92 : AIR 1954 SC 1] , Pancho
v. State of Haryana [Pancho v. State of Haryana, (2011) 10 SCC
165 : (2012) 1 SCC (Cri) 223] , State of Rajasthan v. Talevar [State
of Rajasthan v. Talevar, (2011) 11 SCC 666 : (2011) 3 SCC (Cri)
457] and Bharama Parasram Kudhachkar v. State of Karnataka
[Bharama Parasram Kudhachkar v. State of (2022) 1 SCC 92
Karnataka, (2014) 14 SCC 431 : (2015) 1 SCC (Cri) 395] )
17. Incontrovertibly, where the prosecution fails to inspire
confidence in the manner and/or contents of the recovery with
regard to its nexus to the alleged offence, the court ought to stretch
the benefit of doubt to the accused. It is nearly three centuries old
cardinal principle of criminal jurisprudence that “it is better that
ten guilty persons escape, than that one innocent suffer” [ W.
Blackstone, Commentaries on the Laws of England, Book IV, c. 27
(1897), p. 358. Ed. : see R. v. John Paul Lepage, 1995 SCC OnLine
Can SC 19.] . The doctrine of extending benefit of doubt to an
accused, notwithstanding the proof of a strong suspicion, holds its
fort on the premise that “the acquittal of a guilty person constitutes
a miscarriage of justice just as much as the conviction of the
innocent”.
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FIR No. 49/2012
State Vs. Firoz & Anr. Page 39 of 70
(Emphasis supplied) 25.2 Earlier in K. Chinnaswamy Reddy v.
State of A.P.23, a three-Judge Bench had summarised the situation
as under:
“Pulukuri Kotayya v. King-Emperor [ (1946) 74 IA 65] where a
part of the statement leading to the recovery of a knife in a murder
case was held inadmissible by the Judicial Committee. In that case
the Judicial Committee considered Section 27 of the Indian
Evidence Act, which is in these terms:
“Provided that, when any fact is deposed to as discovered in
consequence of information received from a person accused of any
offence, in the custody of a police officer, so much of such
information, whether it amounts to a confession or not, as relates
distinctly to the fact thereby discovered, may be proved.” 1962
SCC OnLine SC 32 This section is an exception to Sections 25 and
26, which prohibit the proof of a confession made to a police
officer or a confession made while a person is in police custody,
unless it is made in immediate presence of a Magistrate. Section 27
allows that part of the statement made by the accused to the police
“whether it amounts to a confession or not” which relates distinctly
to the fact thereby discovered to be proved. Thus even a
confessional statement before the police which distinctly relates to
the discovery of a fact may be proved under Section 27. The
Judicial Committee had in that case to consider how much of the
information given by the accused to the police would be admissible
under Section 27 and laid stress on the words “so much of such
information … as relates distinctly to the fact thereby discovered”
in that connection. It held that the extent of the information
admissible must depend on the exact nature of the fact discovered
to which such information is required to relate. It was further
pointed out that “the fact discovered embraces the place from
which the object is produced and the knowledge of the accused as
to this, and the information given must relate distinctly to this
fact”.
26. In the preceding paragraph, we have considered the law laid
down by this Court on that issue. Let us now consider the
circumstances in which the recovery was made from the locations
as disclosed. It cannot be questioned that such recovery would be
relevant since the Appellant-convict could have affected the
recovery only if he had specific knowledge of the location. This,
however, in our view, is not sufficient to take the recovery of the
objects as a circumstance against the Appellant convict. This we
say for the reason that the objects recovered also have to be
verified and tested. Now, this was not done. His statement is said
to have led to the recovery of – (i) a sickle, (ii) a jute bag, (iii) a
green coloured lungi, (iv) a blue colour checked shirt, and (v) a red
and yellow colour striped towel from his house.
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27. How any and/or all of these articles related to the alleged
murder of two victims and rape of one of them is unda chain of
such a design is readily available in stores. emonstrated from the
record. None of the relatives of either D1 or D2 have testified to
any of these belongings being that of the victims.
28. Still further, we would separately deal with the recovery of
each of the articles relating to the guilt of the Appellant-convict:
(a) Sickle- The sickle, M.O. 18, has not been sent for FSL-in other
words, on what basis is it established that this very sickle was used
to hack the victims? Also, sickle is an easily available item for a
person like the accused whose work is to cut coconut. No blood
was found on the weapon. Even the doctor doesn’t state that the
injuries on the body of the deceased could have been caused with
the same. There is a total disconnect with the weapon and the
injuries resulting into death. None has also testified the weapon to
be owned by the Appellant-convict.
(b) Semen or Blood- There is no forensic report as to the recovery
of either semen or blood on the clothes so recovered; the manner in
which it was preserved and kept in whose custody.
(c) Jute Bag- There is no identification of the owner and possessor
of the jute bag.
(d) Black bag, a different box and a book- recoveries were also
made of a black bag, a different box, and a book -M.Os.23, 24 and
25, from the bushes near Karuppasamy Temple. These items, too,
were not verified or ownership established. In other words, how
they are to be considered to be the ‘material objects’ for the
purpose of this case? More so, when these items were recovered on
the basis of confessional statement of the accused himself, as
recorded by PW-52, but the confessional statement is in itself not
reliable, even otherwise to what effect.
(e) Gold chain – Further, insofar as the gold chain is concerned, it
is the uncontroverted testimony of PW-16 that a chain of such a
design is readily available in stores. That apart, the testimony of
PW-18 reveals that she came into possession of the said chain
through her adopted daughter, who is the wife of the Appellant
convict. Such wife, namely Pavithra, was not examined to establish
the chain’s ownership or the source of such acquisition on her part.
The parents of D-2 have indeed identified the chain (M.O.10) as
hers, but we record our surprise that only the chain was produced
before them for identification and none of the other material
allegedly recovered at the instance of the Appellant-convict. Be
that as it may, even if the identification of the chain by the parents
of D2 is taken at face value, even then, to affix the gauntlet of guilt
upon the Appellant-convict on this count alone, would be entirely
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unwarranted.
Xxxxxxxxxxxxxxxxx
26. Hence there are many doubts in the case prosecution. Conscious
possession of the accused is also not established. Accordingly accused
Firoz is acquitted under Section 25 of Arms Act, 1959.
27. Section 395 IPC provides punishment for dacoity. It was held in
case titled State of Maharashtra v. Joseph Mingel Koli (1997) 2 Crimes
228 (Bom) that when robbery is either committed or an attempt to
commit it is made by five or more person than all such persons, who are
present or aiding in its commission or in an attempt to commit it, would
commit the offence of dacoity. The said definition is laid down u/Sec.
391 IPC. It is laid down in case titled Ganesan v. State represented by
Station House Officer in Crl. Appeal no. 903/2021 from Hon’ble
Supreme Court of India dated 29.10.2021 at para no. 12.3 that as per
Section 397 IPC if at the time of committing robbery or dacoity, the
offender uses any deadly weapon, or causes grievous hurt to any person
or attempts to cause death or grievous hurt to any person, the
imprisonment with which such offender shall be punished shall not be
less than seven years. It was further held at para no. 12.4 that the only
difference between robbery and dacoity would be number of persons
involved in co-jointly committing or attempt to commit a robbery. It was
further held that the word used u/Sec. 390, 392 to 395, 397 and 398 of
IPC is ‘offender’. It was further held that for the aforesaid act the
accused cannot be convicted on the basis of constructive liability and
only the ‘offender’ who ‘uses any deadly weapon……’ can be punished.
However u/Sec. 391 IPC ‘dacoity’ and Section 396 IPC which is dacoity
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and murder then the accused can be convicted on the basis of
constructive liability. The necessary ingredients of dacoity u/Sec. 397
IPC were laid down at para no. 12.6 of the above judgment titled
Ganesan v. State (supra) and the relevant para is reproduced hereasunder:
12.2 To appreciate the aforesaid submissions the relevant provisions with
respect to ‘robbery’ and ‘dacoity’ are required to be referred to. The relevant
provisions would be Section 390 IPC to Section 398 IPC which read as
under:
“390. Robbery.–In all robbery there is either theft or extortion.
When theft is robbery.–Theft is “robbery” if, in order to the
committing of the theft, or in committing the theft, or in carrying
away or attempting to carry away property obtained by the theft, the
offender, for that end voluntarily causes or attempts to cause to any
person death or hurt or wrongful restraint, or fear of instant death or
of instant hurt, or of instant wrongful restraint. When extortion is
robbery.–Extortion is “robbery” if the offender, at the time of
committing the extortion, is in the presence of the person put in fear,
and commits the extortion by putting that person in fear of instant
death, of instant hurt, or of instant wrongful restraint to that person or
to some other person, and, by so putting in fear,induces the person so
put in fear then and there to deliver up the thing extorted.
Explanation.–The offender is said to be present if he is sufficiently
near to put the other person in fear of instant death, of instant hurt, or
of instant wrongful restraint.
391. Dacoity.–When five or more persons conjointly commit or
attempt to commit a robbery, or where the whole number of persons
conjointly committing or attempting to commit a robbery, and persons
present 1.Subs. by Act 26 of 1955, s. 117 and the Sch., for
“transportation for life” (w.e.f. 1-1-1956). 99 and aiding such
commission or attempt, amount to five or more, every person so
committing, attempting or aiding, is said to commit “dacoity”.
392. Punishment for robbery.–Whoever commits robbery shall be
punished with rigorous imprisonment for a term which may extend to
ten years, and shall also be liable to fine; and, if the robbery be
committed on the highway between sunset and sunrise, the
imprisonment may be extended to fourteen years.
393. Attempt to commit robbery.–Whoever attempts to commit
robbery shall be punished with rigorous imprisonment for a term
which may extend to seven years, and shall also be liable to fine.
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394. Voluntarily causing hurt in committing robbery.–If any person,
in committing or in attempting to commit robbery, voluntarily causes
hurt, such person, and any other person jointly concerned in
committing or attempting to commit such robbery, shall be punished
with 1 [imprisonment for life], or with rigorous imprisonment for a
term which may extend to ten years, and shall also be liable to fine.
395. Punishment for dacoity.–Whoever commits dacoity shall be
punished with 1 [imprisonment for life], or with rigorous
imprisonment for a term which may extend to ten years, and shall also
be liable to fine.
396. Dacoity with murder.–If any one of five or more persons, who
are conjointly committing dacoity, commits murder in so committing
dacoity, every one of those persons shall be punished with death, or 1
[imprisonment for life], or rigorous imprisonment for a term which
may extend to ten years, and shall also be liable to fine.
397. Robbery, or dacoity, with attempt to cause death or grievous hurt.
–If, at the time of committing robbery or dacoity, the offender uses
any deadly weapon, or causes grievous hurt to any person, or attempts
to cause death or grievous hurt to any person, the imprisonment with
which such offender shall be punished shall not be less than seven
years.
398. Attempt to commit robbery or dacoity when armed with deadly
weapon.–If, at the time of attempting to commit robbery or dacoity,
the offender is armed with any deadly weapon, the imprisonment with
which such offender shall be punished shall not be less than seven
years.”
12.3 As per Section 390 IPC, for ‘robbery’ there is either theft or extortion.
When in the committing of the theft, or in committing the theft, or in
carrying away or attempting to carry away property obtained by the theft,
the offender, voluntarily causes or attempts to cause to any person death or
hurt or wrongful restraint or fear of instant death or of instant hurt, or of
instant wrongful restraint the theft can be said to be ‘robbery’. In similar
situation the ‘extortion’ can be said to have committed ‘robbery’. As per
explanation to Section 390 IPC the offender is said to be present if he is
sufficiently near to put the other person in fear of instant death, of instant
hurt, or of instant wrongful restraint.
Section 391 IPC defines ‘dacoity’. When five or more persons
conjointly commit or attempt to commit a robbery, the accused then
can be said to have committed the ‘dacoity’.
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As per Section 392 IPC whoever commits robbery shall be punished
with rigorous imprisonment for a term which may extend to ten years
and shall also be liable to fine. However, if the robbery is committed
on the highway between sunset and sunrise, the imprisonment may be
extended to fourteen years. As per Section 393 IPC even an attempt to
commit robbery is punishable with rigorous imprisonment for a term
which may extend to seven years with fine. As per Section 394 IPC if
any person, in committing or in attempting to commit robbery,
voluntarily causes hurt, such person, and any other person jointly
concerned in committing or attempting to commit such robbery, shall
be punished with imprisonment for life or with rigorous imprisonment
for a term which may extend to ten years and shall also be liable to
fine.
Section 395 IPC provides for punishment for ‘dacoity’. Whoever
commits dacoity shall be punished with imprisonment for life or with
rigorous imprisonment for a term which may extend to ten years and
shall also be liable to fine. In case of dacoity with murder if any one
of five or more persons, who are conjointly committing dacoity,
commits murder in so committing dacoity, every one of those persons
shall be punished with death, or imprisonment for life, or rigorous
imprisonment for a term which may extend to ten years with fine.
As per Section 397 IPC if at the time of committing robbery or
dacoity, the offender uses any deadly weapon, or causes grievous hurt
to any person, or attempts to cause death or grievous hurt to any
person, the imprisonment with which such offender shall be punished
shall not be less than seven years. Similarly, if, at the time of
committing robbery or dacoity the offender is armed with any deadly
weapon, the imprisonment with which such offender shall be punished
shall not be less than seven years.
12.4 On conjoint reading of the aforesaid provisions, commission of
‘robbery’ is sine qua non. The ‘dacoity’ can be said to be an exaggerated
version of robbery. If five or more persons conjointly commit or attempt to
commit robbery it can be said to be committing the ‘dacoity’. Therefore, the
only difference between the ‘robbery’ and the ‘dacoity’ would be the
number of persons involved in conjointly committing or attempt to commit
a ‘robbery’. The punishment for ‘dacoity’ and ‘robbery’ would be the same
except that in the case of ‘dacoity’ the punishment can be with
imprisonment for life. However, in the case of ‘dacoity with murder’ the
punishment can be with death also. However, in a case where the offender
uses any deadly weapon or causes grievous hurt to any person, or attempts
to cause death or grievous hurt to any person the imprisonment with which
such offender shall be punished shall not be less than seven years. Learned
Counsel appearing on behalf of the appellants have rightly submitted that to
bring the case within Section 397 IPC, the offender who uses any deadly
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weapon, or causes grievous hurt to any person shall be liable for minimum
punishment under Section 397 IPC. Section 392 and Section 390 IPC are
couched in different words. In Sections 390, 394, 397 and 398 IPC the word
used is ‘offender’. Therefore, for the purpose of Sections 390, 391, 392,
393, 394, 395, 396, 397, 398 IPC only the offender/person who committed
robbery and/or voluntarily causes hurt or attempt to commit such robbery
and who uses any deadly weapon or causes grievous hurt to any person, or
commits to cause death or grievous death any person at the time of
committing robbery or dacoity can be punished for the offences under
Sections 390, 392, 393, 394, 395 and 397 and 398 IPC. For the aforesaid the
accused cannot be convicted on the basis of constructive liability and only
the ‘offender’ who ‘uses any deadly weapon….’ can be punished. However,
so far as Section 391 IPC ‘dacoity’ and Section 396 IPC – ‘dacoity with
murder’ is concerned an accused can be convicted on the basis of
constructive liability, however the only requirement would be the
involvement of five or more persons conjointly committing or attempting to
commit a robbery – dacoity/dacoity with murder.
12.5 At this stage, the decision of this Court in Shri Phool Kumar (Supra) is
required to be referred to. In the aforesaid decision this Court has observed
and considered Sections 397 and 398 IPC and on interpretation of the
aforesaid provisions, it is observed and held in paragraphs 5 to 7 as under:
“5. Section 392 of the Penal Code provides: “Whoever commits
robbery shall be punished with rigorous imprisonment for a term
which may extend to ten years, and shall also be liable to fine; and, if
the robbery be committed on the highway between sunset and sunrise,
the imprisonment may be extended to fourteen years.” The sentence of
imprisonment to be awarded under Section 392 cannot be less than
seven years if at the time of committing robbery the offender uses any
deadly weapon or causes grievous hurt to any person or attempts to
cause death or grievous hurt to any person: vide Section 397. A
difficulty arose in several High Courts as to the meaning of the word
“uses” in Section 397. The term “offender” in that section, as rightly
held by several High Courts, is confined to the offender who uses any
deadly weapon. The use of a deadly weapon by one offender at the
time of committing robbery cannot attract Section 397 for the
imposition of the minimum punishment on another offender who had
not used any deadly weapon. In that view of the matter use of the gun
by one of the culprits whether he was accused Ram Kumar or
somebody else, (surely one was there who had fired three shots) could
not be and has not been the basis of sentencing the appellant with the
aid of Section 397. So far as he is concerned he is said to be armed
with a knife which is also a deadly weapon. To be more precise from
the evidence of PW 16 “Phool Kumar had a knife in his hand”. He
was therefore carrying a deadly weapon open to the view of the
victims sufficient to frighten or terrorize them. Any other overt act,SC No. 28006/2016
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such as, brandishing of the knife or causing of grievous hurt with it
was not necessary to bring the offender within the ambit of Section
397 of the Penal Code.
6. Section 398 uses the expression “armed with any deadly weapon”
and the minimum punishment provided therein is also seven years if at
the time of attempting to commit robbery the offender is armed with
any deadly weapon. This has created an anomaly. It is unreasonable to
think that if the offender who merely attempted to commit robbery but
did not succeed in committing it attracts the minimum punishment of
seven years under Section 398 if he is merely armed with any deadly
weapon, while an offender so armed will not incur the liability of the
minimum punishment under Section 397 if he succeeded in
committing the robbery. But then, what was the purport behind the
use of the different words by the Legislature in the two sections viz.
“uses” in Section 397 and “is armed” in Section 398. In our judgment
the anomaly is resolved if the two terms are given the identical
meaning. There seems to be a reasonable explanation for the use of the
two different expressions in the sections. When the offence of robbery
is committed by an offender being armed with a deadly weapon which
was within the vision of the victim so as to be capable of creating a
terror in his mind, the offender must be deemed to have used that
deadly weapon in the commission of the robbery. On the other hand, if
an offender was armed with a deadly weapon at the time of attempting
to commit a robbery, then the weapon was not put to any fruitful use
because it would have been of use only when the offender succeeded
in committing the robbery.
7. If the deadly weapon is actually used by the offender in the
commission of the robbery such as in causing grievous hurt, death or
the like then it is clearly used. In the cases of Chandra Nath v.
Emperor [AIR 1932 Oudh 103] ;Nagar Singh v. Emperor [AIR 1933
Lah 35] and Inder Singh v. Emperor [AIR 1934 Lah 522] some overt
act such as brandishing the weapon against another person in order to
overawe him or displaying the deadly weapon to frighten his victim
have been held to attract the provisions of Section 397 of the Penal
Code. J.C. Shah and Vyas, JJ. of the Bombay High Court have said in
the case of Govind Dipaji More v. State [AIR 1956 Bom 353] that if
the knife was used for the purpose of producing such an impression
upon the mind of a person that he would be compelled to part with his
property, that would amount to ‘using’ the weapon within the meaning
of Section 397. In that case also the evidence against the appellant was
that he carried a knife in his hand when he went to the shop of the
victim. In our opinion this is the correct view of the law and the
restricted meaning given to the word “uses” in the case of Chand
Singh [ILR (1970) 2 Punj and Har 108] is not correct.”
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12.6. The aforesaid view has been subsequently reiterated by this Court in
the case of Dilawar Singh (Supra) and in paragraphs 19 to 21 it is observed
and held as under:
“19. The essential ingredients of Section 397 IPC are as follows:
1. The accused committed robbery.
2. While committing robbery or dacoity
(i) the accused used deadly weapon
(ii) to cause grievous hurt to any person
(iii) attempted to cause death or grievous hurt to any person.
3. “Offender” refers to only culprit who actually used deadly weapon.
When only one has used the deadly weapon, others cannot be awarded
the minimum punishment. It only envisages the individual liability and
not any constructive liability. Section 397 IPC is attracted only against
the particular accused who uses the deadly weapon or does any of the
acts mentioned in the provision. But the other accused are not
vicariously liable under that section for acts of the co-accused.
20. As noted by this Court in Phool Kumar v. Delhi Admn. [(1975) 1
SCC 797 : 1975 SCC (Cri) 336 : AIR 1975 SC 905] the term
“offender” under Section 397 IPC is confined to the offender who uses
any deadly weapon. Use of deadly weapon by one offender at the time
of committing robbery cannot attract Section 397 IPC for the
imposition of minimum punishment on another offender who had not
used any deadly weapon. There is distinction between “uses” as used
in Sections 397 IPC and 398 IPC. Section 397 IPC connotes something
more than merely being armed with deadly weapon.
21. In the instant case admittedly no injury has been inflicted. The use
of weapon by offender for creating terror in mind of victim is
sufficient. It need not be further shown to have been actually used for
cutting, stabbing or shooting, as the case may be. [See Ashfaq v. State
(Govt. of NCT of Delhi) [(2004) 3 SCC 116 : 2004 SCC (Cri) 687 :
AIR 2004 SC 1253].”
28. The prosecution of both the accused Mohd. Firoz and Mohd.
Shahid is under Section 392/394/34 IPC and accused Mohd. Firoz is also
charged under Section 397 IPC. The first ingredient prosecution is
required to prove that accused person have committed theft. The
discussion of law and evidence under Section 25 of Arms Act, 1959
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made above is equally applicable under the present case and the same is
not repeated herein for the sake of brevity. It is already held above that
prosecution has failed to prove the recovery of pistol with live cartridge
and photocopies of hand written notes, Pithoo bag of make ‘Diesel’,
book of learning French language and the pen from the possession of
accused Firoz.
29. Now it has to be seen that whether recovery was effected in the
present matter from accused Shahid. The seizure memo of recovery of
currency notes is Ex.PW5/H vide which Rs.48,000/- were recovered
from accused Shahid of Rs.500/- denomination each. Total of 96
currency notes were recovered. The currency notes were wrapped in
paper and photocopy notes over which it was written with ink ‘Navneet
Singh PGDM-IB23’. At the other end of paper there were some
signature. Plastic rubber band was also covering the note. PW-1 has
deposed that he could not identify the accused person as they were
wearing helmet. The PW-1 was declared hostile by the prosecution and
he has denied his statement under Section 161 Cr. PC Mark X dated
15.05.2012. He has turned hostile to the fact that accused Shahid was the
same person who was driving bike on which pillion rider was sitting.
The pillion rider had fired at the complainant/PW-2 Navneet. PW-2 has
also turned hostile to the case of prosecution that accused Shahid had
driven the motorcycle and pillion rider had shot at him. PW-2 was
carrying Rs.2,65,280/- which were allegedly robbed by the accused out
of which only Rs.48,000/- were recovered. It is deposed by PW-2 that he
could not see the culprit as they fired on him from behind and therefore
he cannot recognize their face. He was unable to identify the culprit.
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However he identifies the 96 currency notes and photostate notes in
which Navneet Singh is mentioned. The currency notes and photostate
notes are Ex.P3 (colly).
30. The recovery of articles has to be seen in the light of citation
Kattavellai @ Devakar vs The State of Tamil Nadu (supra). There is no
specific identification marks on the currency notes. Nor it is proved on
record that the accused person were incapable to possess amount of
Rs.48,000/- keeping in view their standard of living and circumstances
of their well being. The alleged currency notes were recovered from
accused no. 2 Shahid. PW-5 has deposed that accused Shahid has taken
out the amount beneath the Buksa on the Tand which were seized vide
memo Ex.PW5/H. Prosecution has produced SI Parveen Ahlawat, SI
Karamvir and HC Raj Kumar/PW-5 as witness to the same. However in
the seizure memo Ex.PW5/H it is mentioned that the amount was
recovered from inside the box and not from beneath the box. In the
disclosure statement Ex.PW19/B it is stated that the accused Shahid can
get recovered the money which he has hidden in his house. As per
disclosure statement the accused Shahid had told the accused Firoz that
money was not found in the bag. He had given Rs.14,000/- to JCL and
thereafter the remaining money was hidden by him in his house. It is
noted that the total amount allegedly robbed is Rs.2,65,280/- whereas
after accounting the amount of Rs.14,000/- and Rs.48,000/- there is no
account of Rs.2,03,280/-. Had the disclosure being true then the entire
remaining amount should have been recovered from accused Shahid.
Further, it is not proved on record that if Rs.14,000/- could be recovered
from JCL. PW-19 SI Karamvir has deposed that Rs.48,000/- were
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recovered from the box kept in the house on the Tand in the house of
accused Shahid. Hence deposition of PW-5 and PW-19 is contradictory
whether the amount was recovered from beneath the box or whether it
was recovered from inside the box. Both PW-5 and PW-19 does not
depose that the currency notes were recovered with a paper covering it
wrapped in a white photostate notes/pages having name of Navneet
Singh mentioned on it. Insp. Parveen Ahlawat deposed as PW-16 who
has also deposed that currency notes were kept beneath the box on the
slab in the house and he had not deposed that they were kept inside the
box. The PW-24 Insp. Mukesh Tyagi has deposed that he had not
informed local police/U.P. police before conducting search at the house
of accused Shahid. He cannot tell number of person present at the house
of accused Shahid though they were present. It is deposed that he had
asked the person present at the house of accused Shahid to join the
investigation but none has joined. PW-19 has also deposed that some
lady was also present at the house.
31. PW-16 Insp. Praveen Ahlawat has deposed in cross-examination
dated 19.10.2015 that they all had left together from the house of
accused. He has deposed in examination-in-chief dated 09.09.2015 that
the currency notes were kept beneath the box on the slab in the house
and he does not say that it was wrapped in a paper having name of PW-2
written on it. The currency notes were loose notes which were converted
into single wad. PW-19 has deposed that the currency notes were
recovered from box kept in Tand in the house and he also does not
depose that it was wrapped in a paper on which name of PW-2 was
written. At page 9 of cross-examination dated 09.07.2015 it is deposed
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that the currency notes were not wad of bank. PW-24 in his cross-
examination dated 12.01.2016 at page 2 has deposed that he cannot tell
the number of person present at the house of accused Shahid and he had
asked the person residing in the house of accused Shahid to join the
investigation but none had agreed. PW-9 in cross-examination dated
01.04.2015 at first page has deposed that he had signed the disclosure
statement made by the accused. However he does not remember in how
many pages the disclosure statement was made. PW-9 in cross-
examination dated 09.07.2015 at page 5 has deposed that father of
accused Shahid was present in the room who was ill but he does not
remember about other relatives. He does not know who was the owner of
the complex nor does he remember landlord/owner and other occupants
were examined. PW-24 in cross-examination dated 12.01.2016 cannot
tell the number of person present at the house of accused Shahid.
However it is admitted that they were present. PW-5 does not remember
if any other relative of accused Shahid were present in the room. PW-24
has deposed that he had asked the person residing in the house of
accused Shahid to join the investigation but none had agreed. In view of
above circumstance recovery of currency notes with the accused Shahid
has become doubtful in the background of non-joining of public witness.
The requirement of Section 100 Cr. PC r/w Section 27 of Indian
Evidence Act, 1872 is not observed.
32. The accused Firoz had refused to participate in TIP proceedings
for the reason that he was not present at the spot of occurrence. This is
no reason for not joining the TIP proceedings and therefore if the other
circumstance of the case necessitates then adverse inference can be
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drawn against the accused Firoz vide Ex.PW23/B. The TIP proceedings
against accused Shahid are Ex.PW23/E who was correctly identified by
the witness Parmod Sharma/PW-1 who has turned hostile to the case of
prosecution. He has deposed that he does not identify the assailants as
they were wearing helmets. It is deposed that he had identified accused
Shahid at the instance of police officials on the assurance that police will
not harass him thereafter. He has deposed that he could not see the face
of any of the bike riders. In his statement under Section 161 Cr. PC PW-
1 has stated that the driver of the motorcycle had lifted their helmet and
they were looking around on the back side ld. APP for the state has
cross-examined PW-1 to this aspect. The statement under Section 161
Cr. PC Mark X was recorded on 15.05.2012 is denied by the witness.
Two statements are recorded of this witness. One on 04.03.2012 and
another on 15.05.2012. There is no reason to record two statement of the
same witness in a gap of about two months. PW-1 has deposed that he
had seen 3-4 motorcycle from a distance and the said motorcycle
occupants were looking backwards towards Lal Quila.
33. According to the case of prosecution motorcycle DL10S1389 and
DL13SG6079 were used during commission of offence. PW-14 has
deposed that he has two motorcycle DL10S1379 and another motorcycle
DL13SD7646. He was told by his mother that on 06.03.2012 the
neighbour who is accused Firoz had taken motorcycle no. DL10S1379 in
the evening and returned it after 1-2 ½ hr. Accused has not taken
motorcycle on 03.03.2012. Hence there is difference in number of
motorcycle used and the alleged motorcycle were not taken on the date
of offence. PW-17 Ms. Kanti has deposed that she has motorcycle no.
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DL10S1389 and another motorcycle no. DL13SD7646. On 03.03.2012
her son Moninder had taken the motorcycle DL13SD7646 to his office
and on the same day the motorcycle no. DL10S1389 was standing at the
house only. The motorcycle was not given to anyone. On 06.03.2012
around 5 PM accused has taken motorcycle no. DL10S1389. Hence the
prosecution through its witness has failed to connect the above
motorcycle with the accused person. PW-18 Naushad Ansari has deposed
that motorcycle no. DL13SG6079 belongs to him. On 1-2 occasion Firoz
has taken the motorcycle from him but in the March 2010 accused Firoz
has not taken his motorcycle. He is cross-examined by ld. APP for the
state. It is deposed that he did not state to the police that on 03.03.2012
accused Firoz has taken his motorcycle for going to market. He was
confronted with his statement under Section 161 Cr. PC Ex.PW18/A.
Hence it cannot be said with certainity that the accused person have used
the said motorcycles during commission of offence.
34. PW-2 has deposed that he was shown the recovered bag in the
hospital after 4-5 days of the incident. Though it was required that TIP of
the bag could have been conducted. PW-2 had not given bill of the said
bag to the police. Further, when the bag was shown to PW-2 in the
hospital after 4-5 days then it must be without having any seal on it
whereas in the evidence of PW-2 (at page no. 345 of evidence file and
page no. 2 of examination-in-chief) the pulanda of one green colour bag
having tag of ‘Diesel’ was found sealed with the seal ‘MP’. Hence when
the said pulanda was sealed at the spot itself then how it can be shown to
PW-2 in the hospital after 4-5 days and this creates doubt in the case of
prosecution about recovery of said bag from the house of accused Firoz.
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It is argued on behalf of ld. counsel for accused that accused no. 1 and 2
are not known to each other and there is no relationship between them
since prosecution has claimed relationship of uncle and nephew between
them. PW-19 at page 7 of his cross-examination has deposed that the
yellow colour bag was recovered from the roof of the house of the
accused Firoz which was made of plastic and it was of green colour.
Whereas PW-9 has deposed that the accused has taken police party to the
roof of the house an he had taken out green colour bag having red colour
Patti. On the one side ‘Diesel’ was mentioned. PW-16 at second page of
his examination-in-chief dated 09.09.2015 does not depose that accused
Firoz got recovered one bag of make ‘Diesel’ from the roof of the house.
His deposition appears to show that bag was recovered from the first
floor of the room which was already open. In cross-examination at page
4 dated 09.09.2015 it is deposed that the bag was of yellow/brown colour
and was of cloth type. He cannot tell the size of Pithoo bag from which
photocopy and one book was recovered. The case of the prosecution in
the chargesheet is that the green colour bag was recovered from terrace
in which there was a book and photocopy notes. They were sealed at the
spot itself. The seal which was found open after 4-5 days when the
alleged bag was shown to PW-2. Hence the above infirmities goes to the
root of the case of the prosecution which create doubt in the recovery of
pistol, Pithoo bag of green colour, one book with photocopy of notes
from the house accused Firoz.
35. PW-1 has failed to depose about the role of each of the accused.
PW-2 does not know about the accused as he was attacked from behind
and he could not see face of the accused. According to PW-2 the pillion
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rider had shown gun to him and snatched his Pithoo bag. The PW-2 has
deposed contradictorily. In his examination-in-chief at one page he has
deposed at one place that his Pithoo bag is of light brown colour and
then he had after lengthy examination-in-chief has deposed that the
Pithoo bag is of light green colour and he has mistakenly said that it was
light brown colour. Hence the identity of Pithoo bag remained in dispute
and its recovery is doubtful. The accused person and their identity also
remained in doubt that what specific role was played by them. PW-1 is
star witness. He has identified accused no. 2 Shahid in TIP proceedings.
However it is settled law that merely on the basis of TIP proceedings
conviction cannot be granted against the accused as TIP evidence in
itself is a weak type of evidence and which cannot stand alone without
support of other evidence as available on record. It was laid down in case
titled Ramesh Vs. State of Karnataka from Hon’ble Supreme Court of
India in Criminal Appeal No. 629 of 2005 on 27 July, 2009 Equivalent
citations: AIR 2009 SC (SUPP) 2189, 2009 (15) SCC 35 that only one
identification cannot eliminate the possibility of pointing out being
purely through chance and for this reason it is insufficient to establish
the charge. The relevant para is reproduced hereasunder:
17. We have noticed hereinbefore the respective dates of
arrest of accused No.5 and accused No.3 respectively. It is
difficult to conceive that accused No.5 would still be
available so that the Investigating Officer could ask the
witnesses to come to the police station. There is nothing to
show that she was in custody of the police for more than 30
days. A presumption must be drawn that by that time, she was
in judicial custody. It is also wholly unlikely that names of all
the accused person would be disclosed during commission of
the offence by one another. It furthermore appears to be
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caught while they were indulging in illicit sex and all of them
came from behind and the first attack was on the back of his
neck, still conversations would not only took place by and
between PW3 and the accused persons; the former even in
that condition would be able to follow the same.
18. Mr. Chaudhary would submit that in all cases, it is not
necessary to hold test identification parade. That may be so.
In a case of this nature, the test identification parade would
have been meaningless as appellant were shown to PW3 in
the police station. Appellant was shown to PW3 at the police
station. He was identified in court also. Reliance has been
placed by Mr. Chaudhary on Malkhansingh & Ors. v. State of
M.P. [JT 2003 (5) SC 323 : 2003 (5) SCC 746], wherein this
Court opined:
‘The evidence of mere identification of the accused person at
the trial for the first time is from its very nature inherently of
a weak character. The purpose of a prior test identification,
therefore, is to test and strengthen the trustworthiness of that
evidence. It is accordingly considered a safe rule of prudence
to generally look for corroboration of the sworn testimony of
witnesses in court as to the identity of the accused who are
strangers to them, in the form of earlier identification
proceedings. This rule of prudence, however, is subject to
exceptions, when, for example, the court is impressed by a
particular witness on whose testimony it can safely rely,
without such or other corroboration. The identification
parades belong to the stage of investigation, and there is no
provision in the Code of Criminal Procedure, which obliges
the investigating agency to hold, or confers a right upon the
accused to claim, a test identification parade. They do not
constitute substantive evidence and these parades are
essentially governed by Section 162 of the Code of Criminal
Procedure. Failure to hold a test identification parade would
not make inadmissible the evidence of identification in court.
The weight to be attached to such identification should be a
matter for the courts of fact. In appropriate cases it may
accept the evidence of identification even without insisting on
corroboration.’
18.1. It was furthermore held:
‘It is no doubt true that much evidentiary value cannot be
attached to the identification of the accused in court where
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glimpse of the person identified or who had no particular
reason to remember the person concerned, if the identification
is made for the first time in court.’
19. Judged by the aforementioned legal principles laid down
therein, in our opinion, the identification of appellant PW3 in
court cannot be held to be trustworthy.
19.1. Reliance has also been placed by Mr. Chaudhary on a
judgment of this Court in Asharfi & Ors. v. The State [AIR
1961 All. 153], wherein it was held that identification by only
one person may not be relied upon stating:
‘Hence, only one identification cannot eliminate the
possibility of the pointing out being purely through chance
and for this reason is insufficient to establish the charge.’
19.2. In Heera & Anr. v. State of Rajasthan [JT 2007 (9) SC
175 : 2007 (10) SCC 175], a test identification had been held
in presence of a Civil Judge and a Judicial Magistrate. The
said decision, therefore, is not applicable.
19.3. In Ravindra Laxman Mahadik v. State of Maharashtra
[1997 Criminal Law Journal 3833] in a case involving
Section 395 of the Code of Criminal Procedure, it was
opined:
‘I find merit in Mr. Mooman’s submission that it would not be
safe to accept the identification evidence of Manda Sahani.
Manda Sahani in her examination-in-chief stated that on the
place of the incident, there was no light. In her cross-
examination (para 6) she stated that it was dark at the place of
the incident but, slight light was emanating from the building
situate on the shore. The distance between the building and
the place where Manda Sahani and her husband were looted
has not been unfolded in the evidence. The learned trial Judge
has observed that the evidence of Vinod Sahani is that the
incident took place at a distance of about 100 ft. from the
Gandhi statute, where the meeting was held. What he wanted
to convey was that hence there must have been light at the
place of incident in my view, on the face of the definite
statement of Manda that it was dark as there was only slight
light, and bearing in mind that the incident took place at 9.30
p.m. in the month of February, 1992, it would not be safe to
conclude that there was sufficient light on the place of the
incident enabling Manda Sahani to identify the appellant.’SC No. 28006/2016
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19.4. The decision of the Allahabad High Court in Asharfi lal
(supra) was followed therein.
19.5. In Kanan & Ors. v. State of Kerala [AIR 1979 SC 1127],
this Court held:
‘It is well settled that where a witness Identifies an accused
who is not known to him in the Court for the first time, his
evidence is absolutely valueless unless there has been a
previous T. I. Parade to test his powers of observations. The
Idea of holding T. I. Parade under Section 9 of the Evidence
Act is to test the veracity of the witness on the question of his
capability to identify an unknown person whom the witness
may have seen only once. If no T. I. Parade is held then it will
be wholly unsafe to rely on his bare testimony regarding the
identification of an accused for the first time in Court.’
20. As identification of PW3 is highly doubtful, in our
opinion, having regard to the nature of other evidences
brought on record by the State, i.e., purported recovery of a
tarpaulin by itself cannot be said to be sufficient to convict
the appellant for a charge of such grave offence.
36. Hence the prosecution has failed to prove that the accused persons
have committed theft. The possession of arm is also not proved on record
as discussed above under Section 25 of Arms Act, 1959. it is also not
proved that which of the accused has used fire arm. As per the case of
prosecution the fire arm was used by the JCL and it was recovered from
accused Firoz. The recovery of article are found doubtful. The fire-arm is
not proved having been recovered from accused Firoz. There are
material inconsistencies in deposition of witness of prosecution in
recovery of articles which are fire-arm/countrymade gun with two live
cartridges, cash for a sum of Rs.48,000/-, photocopy of hand written
notes, book of learning French language and pen etc. Hence the evidence
of forensic expert Sh. Puneet Puri, Asstt. Director Ballistics that the
countrymade pistol mark Ex.F1 and the live cartridge A1 and A2, first
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recovered test fire bullet TB1 to TB5, test fire cartridge mark PC1 to
PC6, deform bullet marked Ex.EB1 corresponds to the bullet 8 mm/.315
inch cartridge does not help the case of the prosecution. It is deposed by
PW-26 that the deformed bullet Ex.EB1 discharged through
countrymade pistol mark Ex.F1 has individual characterstics of striations
which are insufficient for comparison and opinion. The pistol Ex.F1 was
a fire-arm and the cartridge mark Ex.A1 and A2 and the deformed bullet
mark Ex.EB1 were ammunition as defined in Arms Act, 1955. The
detailed FSL report is Ex.PW26/A on record. It is the case of the
prosecution that the gun was used by the JCL and not by the accused
Firoz and therefore the principle of constructive liability does not apply
in the present case under Section 397 IPC against accused Firoz and
Shahid. Hence the charge on this account alone on accused Firoz stands
unproved on record.
37. PW-13 Dr. K. Dutta has proved MLC of PW-2 Ex.PW10/A and
the nature of injuries are reported as dangerous. PW-10 is Dr. Arvind has
proved injuries on PW-2 measuring about 1.5x1cm at the level of T10-
T11 about 1 inch away from middle arm on right side back, air bubbles
are seen with respiration and no exit wound was seen. Bullet was filled
in second left inter postal space. MLC was prepared by Dr. Shilpi. Hence
the injuries are proved on PW-2/the injured and the prosecution has
successfully proved on record that the bullet injury was suffered by PW-
2 on 03.03.2012 at about 7:20 PM. The use of gun and thereby causing
bullet injury is use of deadly weapon which was therefore to cause
grievous hurt. It was in knowledge of accused person that use of gun can
cause grievous hurt. It was specifically intended to cause on PW-2 only.
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Hence second ingredient of Section 397 IPC and also of Section 392 Cr.
PC are proved on record. However the first and third ingredient of
Section 392 IPC that the theft was committed or that the act was
committed in order to commit theft by the accused persons has remained
doubtful for the reason discussed above. Hence it has become doubtful
that the accused person had committed the above act. Prosecution has
failed to prove that the accused person had committed offence under
Section 392/394 and that accused no. 1 Firoz has committed offence
under Section 25 of Arms Act and Section 397 IPC. Hence it is held
accused are entitled to benefit of doubt in the present case.
38. Both the accused are also charged under Section 307 IPC. The
prosecution has to prove that the accused has intention to commit murder
and the act done by the accused. The relevant citation in this regard is
The State of Madhya Pradesh Vs. Kanha @ Omprakash on 4th February,
2019 Criminal Appeal No. 1589 of 2018 (Arising out of Special Leave
Petition (CRL) No. 1433 of 2013) from Hon’ble Supreme Court of India.
The relevant para of which is reproduced hereasunder:
10 Section 307 of the Penal Code reads thus:
“307.Attempt to murder.–Whoever does any act with such
intention or knowledge, and under such circumstances that, if he by
that act caused death, he would be guilty of murder, shall be
punished with imprisonment of either description for a term which
may extend to ten years, and shall also be liable to fine; and if hurt
is caused to any person by such act, the offender shall be liable
either to imprisonment for life, or to such punishment as is
hereinbefore mentioned.
Attempts by life convicts.–When any person offending under this
section is under sentence of imprisonment for life, he may, if hurt is
caused, be punished with death.
Illustrations
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(a) A shoots at Z with intention to kill him, under such
circumstances that, if death ensued, A would be guilty of murder. A
is liable to punishment under this section.
(b) A, with the intention of causing the death of a child of tender
years, exposes it in a desert place. A has committed the offence
defined by this section, though the death of the child does not
ensue.
(c) A, intending to murder Z, buys a gun and loads it. A has not yet
committed the offence. A fires the gun at Z. He has committed the
offence defined in this section, and, if by such firing he wounds Z,
he is liable to the punishment provided by the latter part of the first
paragraph of this section.
(d) A, intending to murder Z, by poison, purchases poison and
mixes the same with food which remains in A’s keeping; A has not
yet committed the offence in this section. A places the food on Z’s
table or delivers it to Z’s servants to place it on Z’s table. A has
committed the offence defined in this section.” The first part of
Section 307 refers to “an act with such intention or knowledge, and
under such circumstances that, if he by that act caused death, he
would be guilty of murder”. The second part of Section 307, which
carries a heavier punishment, refers to hurt‟ caused in pursuance of
such an „act‟. 11 Several judgements of this Court have interpreted
Section 307 of the Penal Code. In State of Maharashtra v Balram
Bama Patil1, this Court held that it is not necessary that a bodily
injury sufficient under normal circumstances to cause death should
have been inflicted:
“9…To justify a conviction under this section it is not essential that
bodily injury capable of causing death should have been inflicted.
Although the nature of injury actually caused may often give
considerable assistance in coming to a finding as to the intention of
the accused, such intention may also be deduced from other
circumstances, and may even, in some cases, be ascertained
without any reference at all to actual wounds. The section makes a
distinction between an act of the accused and its result, if any. Such
an act may not be attended by any result so far as the person
assaulted is concerned, but still there may be cases in which the
culprit would be liable under this section. It is not necessary that
the injury actually caused to the victim of the assault should be
sufficient under ordinary circumstances to cause the death of the
person assaulted. What the Court has to see is whether the act,
irrespective of its result, was done with the intention or knowledge
and under circumstances mentioned in this section. An attempt in
order to be criminal need not be the penultimate act. It is sufficient
in law, if there is present an intent coupled with some overt act in
execution thereof.” (Emphasis supplied) This position in law wasSC No. 28006/2016
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followed by subsequent benches of this Court. In State of M P v
Saleem2, this Court held thus:
(1983) 2 SCC 28 (2005) 5 SCC 554 “13. It is sufficient to justify a
conviction under Section 307 if there is present an intent coupled
with some overt act in execution thereof. It is not essential that
bodily injury capable of causing death should have been inflicted.
The section makes a distinction between the act of the accused and
its result, if any. The court has to see whether the act, irrespective
of its result, was done with the intention or knowledge and under
circumstances mentioned in the section. Therefore, an accused
charged under Section 307 IPC cannot be acquitted merely because
the injuries inflicted on the victim were in the nature of a simple
hurt.” (Emphasis supplied) In Jage Ram v State of Haryana3, this
Court held that to establish the commission of an offence under
Section 307, it is not essential that a fatal injury capable of causing
death should have been inflicted:
“12. For the purpose of conviction under Section 307 IPC, the
prosecution has to establish
(i) the intention to commit murder; and
(ii) the act done by the accused.
The burden is on the prosecution that the accused had attempted to
commit the murder of the prosecution witness. Whether the
accused person intended to commit murder of another person
would depend upon the facts and circumstances of each case. To
justify a conviction under Section 307 IPC, it is not essential that
fatal injury capable of causing death should have been caused.
Although the nature of injury actually caused may be of assistance
in coming to a finding as to the intention of the accused, such
intention may also be adduced from other circumstances. The
intention of the accused is to be gathered from the circumstances
like the nature of the weapon used, words used by the accused at
the time of the incident, motive of the accused, parts of the body
where the injury was caused and the nature of injury and severity of
the blows given, etc.” The above judgements of this Court lead us
to the conclusion that proof of grievous or life-threatening hurt is
not a sine qua non for the offence under Section 307 of the Penal
Code. The intention of the accused can be ascertained (2015) 11
SCC 366 from the actual injury, if any, as well as from surrounding
circumstances. Among other things, the nature of the weapon used
and the severity of the blows inflicted can be considered to infer
intent.
Xxxxxxxxxx
16 The evidence establishes that the injuries were caused by a fire-
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arm. The multiplicity of wounds indicates that the respondent fired
at the injured more than once. The fact that hurt has been caused by
the respondent is sufficiently proven. The lack of forensic evidence
to prove grievous or a life-threatening injury cannot be a basis to
hold that Section 307 is inapplicable. This proposition of law has
been elucidated by a two-judge bench of this Court in Pasupuleti
Siva Ramakrishna Rao v State of Andhra Pradesh4 :
“18. There is no merit in the contention that the statement of
medical officer that there is no danger to life unless there is
dislocation or rupture of the thyroid bone due to strangulation
means that the accused did not intend, or have the knowledge, that
their act would cause death. The circumstances of this case clearly
attract the second part of this section since the act resulted in Injury
5 which is a ligature mark of 34 cm × 0.5 cm. It must be noted that
Section 307 IPC provides for imprisonment for life if the act causes
“hurt”. It does not require that the hurt should be grievous or of any
particular degree. The intention to cause death is clearly
attributable to the accused since the victim was strangulated after
throwing a telephone wire around his neck and telling him that he
should die. We also do not find any merit in the contention on
behalf of the accused that there was no intention to cause death
because the victim admitted that the accused were not armed with
weapons. Very few persons would normally describe the Thums up
bottle and a telephone wire used, as weapons.
That the victim honestly admitted that the accused did not have any
weapons cannot be held against him and in favour of the accused.”
(Emphasis supplied)
17 In the present case, the nature of the injuries shows that there
were eleven punctured wounds. The weapon of offence was a
firearm. The circumstances of the case clearly indicate that there
was an intention to murder. The presence of 11 punctured and
bleeding wounds as well as the use of a fire arm leave no doubt that
there was an intention to murder. Thus, the second part of Section
307 of the Penal Code is attracted in the present case. The
judgement of the High Court overlooks material parts of the
evidence and suffers from perversity. (2014) 5 SCC 369 18 Hence,
we set aside the judgement of the High Court and restore the order
of conviction by the Trial court under Section 307 of the Penal
Code as well as the sentence awarded of rigorous imprisonment of
3 years and a fine of Rs. 1000. xxxxxxxxxxx
39. It is already held above that the injury of gun shot was caused upon
PW-2. When the gun shot injury was caused on PW-2 then it has to be
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seen whether death of human being was attempted. The prosecution has to
show through medical evidence that what was the danger to the life of the
victim and in which portion of the body the injury was caused. The injury
of gun shot was on the right side near middle portion of the arm. The said
injury was not caused on the left side portion of the arm where it was
dangerous to life. The injury was allegedly caused from point blank range
and the accused person had not opted to cause injury on left side which is
near heart. It shows that accused person did not want to kill PW-2. There
is no opinion of the doctor that by such injury on such portion of the body
death is likely to be caused on PW-2. The PW-2 was not fit for statement
when he was initially admitted in the hospital. He was admitted on
03.03.2012 and was found fit for statement on 06.03.2012. The discharge
from hospital has not happened in terms of grievous injury defined under
Section 320 IPC. It is not proved on record that the victim had remained
admitted in the hospital for space of 20 days or remained in severe body
pain for such space of 20 days. It is also not proved that any hurt was
caused which can endanger life. Hence the first ingredient under Section
307 IPC is stood proved on record. Since there was knowledge with the
accused that grievous injury can be caused under Section 307 IPC it is not
necessary that the grievous injury should actually had been caused.
However prosecution has failed to prove on record that the alleged gun
shot injury on PW-2 was attempted by accused person for the reason
discussed under Section 392/394/397 IPC. When the prosecution has
failed to prove that the act was done by accused person on PW-2. Thus the
intention of causing such death on the accused person has still remained
unproved and therefore it is held that prosecution has failed to prove
necessary ingredient under Section 307 IPC.
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40. The prosecution has also charged the accused no. 2 under Section
411 IPC. The necessary ingredients of which are detailed in the citation
titled as Shiv Kumar vs. The State of Madhya Pradesh Criminal Appeal
No.153 of 2022.
13. Section 411 IPC:
“411. Dishonestly receiving stolen property.- Whoever dishonestly
receives or retains any stolen property, knowing or having reason
to believe the same to be stolen property, shall be punished with
imprisonment of either description for a term which may extend to
three years, or with fine, or with both.”
The penal Section extracted above can be broken down into four
segments namely: Whoever, I. Dishonestly; II. Receives or retains
any stolen property; III. Knowing; or IV. Having reason to believe
the same to be stolen property, shall be punished with
imprisonment of either description for a term which may extend to
three years, or with fine, or with both.
14. “Dishonestly” is defined under Section 24 of the IPC as,
“Whoever does anything with the intention of causing wrongful
gain to one person or wrongful loss to another person, is said to do
that thing “dishonestly”. The key ingredient for a crime is, of
course, Mens Rea. This was nicely explained by Justice K. Subba
Rao in the case of Dr. Vimla v. Delhi Administration4 in the
following paragraphs: –
“9A. A Full Bench of the Madras High Court, in Kotamraju
Venkatraadu v. Emperor [(1905)ILR 28 Mad 90, 96, 97] had to
consider the case of a person obtaining admission to the
matriculation examination of the Madras University as a private
candidate producing to the Registrar a certificate purporting to
have been signed by the headmaster of a recognized High School
that he was of good character and had attained his 20th year. It was
found in that case that the candidate had fabricated the signature of
the headmaster. The court held that the accused was guilty of
forgery. White, C.J., observed:
“Intending to defraud means, of course, something more than
deceiving.” He illustrated this by the following example:
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“A tells B a lie and B believes him. B is deceived but it does not
follow that A intended to defraud B. But, as it seams to me, if A
tells B a lie intending that B should do something which A
conceives to be to his own benefit or advantage, and which, if
done, would be to the loss or detriment of B, A intends to defraud
B.” The learned Chief Justice indicated his line of thought, which
has some bearing on the question now raised, by the following
observations:
“I may observe, however, in this connection that by Section 24 of
the Code person does a thing dishonestly who does it with the
intention of causing wrongful gain or wrongful loss. It is not
necessary that there should be an intention to cause both. On the
analogy of this definition, it might be said that either an intention
to secure a benefit or advantage on the one hand, or to cause loss
or detriment on the other, by means of deceit is an intent to
defraud.”
But, he found in that case that both the elements were present.
Benson, J. pointed out at p. 114:
“I am of opinion that the act was fraudulent not merely by reason of
the advantage which the accused intended to secure for himself by
means of his deceit, but also by reason of the injury which must
necessarily result to the University, and through it to the public from
such acts if unrepressed. The University is injured, if through the
evasion of its bye-laws, it is induced to declare that certain persons
have fulfilled the conditions prescribed for Matriculation and are
entitled to the benefits of Matriculation, when in fact, they have not
fulfilled those conditions for the value of its examinations is
depreciated in the eyes of the public if it is found that the certificate
of the University that they have passed its examinations is no longer
a guarantee that they have in truth fulfilled the conditions on which
alone the University professes to certify them as passed, and to
admit them to the benefits of Matriculation.”
Boddam, J., agreed with the learned Chief Justice and Benson, J.
This decision accepts the principle laid down by Stephen, namely,
that the intention to defraud is made up of two elements, first an
intention to deceive and second the intention to expose some person
either to actual injury or risk of possible injury; but the learned
Judges were also inclined to hold on the analogy of the definition of
“dishonestly” in Section 24 of the Code that intention to secure a
benefit or advantage to the deceiver satisfies the second condition.”
15. To establish that a person is dealing with stolen property, the
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“believe” factor of the person is of stellar import. For successful
prosecution, it is not enough to prove that the accused was either
negligent or that he had a cause to think that the property was
stolen, or that he failed to make enough inquiries to comprehend the
nature of the goods procured by him. The initial possession of the
goods in question may not be illegal but retaining those with the
knowledge that it was stolen property, makes it culpable.
Xxxxxxxxx
21. In Trimbak vs. State of Madhya Pradesh5, this Court discussed
the essential ingredients for conviction under Section 411 of the
IPC. Justice Mehr Chand Mahajan, in his erudite opinion rightly
observed that in order to bring home the guilt under Section 411
IPC, the prosecution must prove,
“5. (1) that the stolen property was in the possession of the accused,
(2) that some person other than the accused had possession of the
property before the accused got possession of it, and
(3) that the accused had knowledge that the property was stolen
property….”
Xxxxxxxx
23. That apart, the disclosure statement of one accused cannot
be accepted as a proof of the appellant having knowledge of utensils
being stolen goods. The prosecution has also failed to establish any
basis for the appellant to believe that the utensils seized from him
were stolen articles. The factum of selling utensils at a lower price
cannot, by itself, lead to the conclusion that the appellant was aware
of the theft of those articles. The essential ingredient of mens Rea is
clearly not established for the charge under Section 411 of IPC. The
Prosecution’s evidence on this aspect, as they would speak of the
character Gratiano in Merchant of Venice, can be appropriately
described as, “you speak an infinite deal of nothing.”6
24. In a case like this, where the fundamental evidence is not
available and the law leans in appellant’s favour, notwithstanding
the concurrent finding, the Court has to exercise corrective
jurisdiction as the circumstances justify. As such, taking a cue from
Haryana State Industrial Development Corporation vs. Cork
Manufacturing Co7., the exercise of extraordinary jurisdiction
under Article 136 is found to be merited to do justice to the
appellant who was held to be guilty, without the requisite evidence
to establish his mens rea in the crime.
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41. The prosecution has to prove that the accused person have received
dishonestly a stolen property. In the present case it is already discussed
above that the prosecution has failed to prove that the property was
allegedly recovered from the possession of the accused person. Further,
whether this property belongs to the PW-2 is also not proved on record.
Though it is proved on record that the book of French learning belong to
PW-2 on which his name and course of study is written but its recovery
in itself is doubtful from accused Firoz. The identification mark on
currency notes are also not proved on record and there is contradictory
version of prosecution witness about the place from where the alleged
currency notes were recovered from the house of accused Shahid.
Knowledge of such property with the accused that it was a stolen
property is therefore not proved on record. In such view of the matter the
basic ingredient under Section 411 IPC remained unproved on record
against the accused Shahid. The reason discussed above in the body of
judgment are not repeated herein for the sake of brevity and same be read
as part and parcel of the present issue.
42. In such view of the matter, it is held that prosecution has failed to
prove all the charges levelled against accused person. Hence accused no. 1
Mohd. Firoz and accused no. 2 Mohd. Shahid stands acquitted for the
offence under Section 307/392/394/397/411/34 IPC and Section 25 of
Arms Act, 1959. The earlier personal bond of the accused person stands
cancelled and surety bond stands discharged. The documents, if any, be
returned to the surety and endorsement on security documents is allowed to
SC No. 28006/2016
FIR No. 49/2012
State Vs. Firoz & Anr. Page 69 of 70
be de-endorsed. In terms of Section 481 of BNSS/437A Cr. P.C, accused
person have furnished their bail bond as directed which will be in force for
period of six months from the date of this judgment. Case property be
confiscated to the State.
File be consigned to Record Room.
Digitally signed
Announced in the open Court JOGINDER by JOGINDER
PRAKASH
on 23.08.2025. PRAKASH NAHAR
NAHAR Date: 2025.08.23
15:49:46 +0530
(JOGINDER PRAKASH NAHAR)
ADDITIONAL SESSIONS JUDGE (FTC-01)
CENTRAL/TIS HAZARI COURT
DELHI
SC No. 28006/2016
FIR No. 49/2012
State Vs. Firoz & Anr. Page 70 of 70
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