Delhi District Court
State vs . Madan Choudhary on 10 October, 2011
State Vs. Madan Choudhary
FIR No. 141/99
PS Adarsh Nagar
IN THE COURT OF SH. NEERAJ GAUR, METROPOLITAN
MAGISTRATE-IV ROHINI COURTS, DELHI
Brief reasons for the judgment in the case with following particulars:
State V/s Madan Choudhary
FIR No. 141/99
PS Adarsh Nagar
U/S 25/54/59 of Arms Act
C/N No. 94/99
Unique ID No. 02401R0097531999
Date of Institution: 30.04.1999
Date of commission of offence 04.03.1999
Name of the Complainant HC Kamaljeet Singh.
Name and address of accused Madan Choudhary s/o Sh.
Angan Lal, r/o H. NO. 2009/19,
Tara Nagar, Sonepat (Haryana).
Offence complained of U/S 25/54/59 of Arms Act.
Plea of accused pleaded not guilty
Final Order Acquitted
Date of reserve for orders 10.10.2011
Date for announcing the orders 10.10.2011
Brief Facts and pre-trial procedure:
1. The case of the prosecution is that on 04.03.99 first IO / ASI Kamaljeet Singh was on patrolling duty along with HC Ishwar Singh, Ct. C No. 94/99 Unique ID No. 02401R0097531999 Page No. 1
State Vs. Madan Choudhary FIR No. 141/99 PS Adarsh Nagar Ramphal, Ct. Vinod, Ct. Yashpal, Ct. Anil, Ct. Baljeet and Ct. Ved Parkash. At about 01.10 pm, during patrolling duty he received a secret information that three young boys were sitting below the Railway Line Bridge with the intention to commit some offence and they were having arms and ammunition and if raid would conducted, they could be apprehended. 4 / 5 passersby were requested to join the investigation but none agreed. After preparing raiding party they apprehended all the three boys. First IO / ASI Kamaljeet apprehended the accused Madan Choudhary with the help of Ct. Yashpal from whose possession one loaded desi katta was recovered from the right side dub of his wearing pant. The katta was unloaded and one cartridge was taken out. The katta and cartridge were measured. Sketch of the katta and the cartridge was prepared. Katta and cartridge were seized. Rukka was prepared and on the basis of which FIR was got registered. Further investigation was assigned to HC Ranpal Singh who prepared site plan at the instance of first IO. Accused was arrested and personally searched and after competition of investigation, charge- sheet was filed.
2. On the basis of these allegations, charge U/S 25/54/59 of Arms C No. 94/99 Unique ID No. 02401R0097531999 Page No. 2 State Vs. Madan Choudhary FIR No. 141/99 PS Adarsh Nagar Act was framed against the accused. The accused pleaded not guilty and claimed trial.
Trial
3. To prove the charges, prosecution examined seven witnesses in total whose testimonies are touched upon in brief as under:
(i) PW-1 HC Seva Ram deposed that on 15.04.99 he deposited a sealed pullanda in CFSL.
(ii) PW-2 Ct. Vinod deposed that on 04.03.99 he was on patrolling duty along with first IO / ASI Kamaljeet Singh, HC Ishwar Singh, Ct.
Ramphal, Ct. Yashpal, Ct. Anil, Ct. Baljeet and Ct. Ved Parkash. At about 01.10 pm, during patrolling duty HC Baljeet received a secret information that three young boys were sitting below the Railway Line Bridge with the intention to commit some offence and they were having arms and ammunition and if raid would conducted, they could be apprehended. 4 / 5 passersby were requested to join the investigation but none agreed. After preparing raiding party they apprehended all the three boys. First IO / ASI Kamaljeet apprehended the accused Madan Choudhary C No. 94/99 Unique ID No. 02401R0097531999 Page No. 3 State Vs. Madan Choudhary FIR No. 141/99 PS Adarsh Nagar with the help of Ct. Yashpal and PW-2 from whose possession one loaded desi katta was recovered from the right side dub of his wearing pant. The katta was unloaded and one cartridge was taken out. The katta and cartridge were measured. Sketch of the katta and the cartridge Ex.PW2/A was prepared. Katta and cartridge were seized vide seizure memo Ex.PW2/B. The other accused persons were apprehended, one desi katta was recovered from the possession of the accused Raju and from the search of accused Ramesh one buttondar knife was recovered and the investigation regarding both the accused persons namely Raju and Ramesh were separately conducted by HC Baljeet and HC Ishwar Singh. Further investigation was assigned to HC Ranpal Singh who prepared site plan at the instance of first IO / HC Kamaljeet. Accused was arrested vide memo Ex.PW2/C and personally searched vide memo Ex.PW2/D. The disclosure statement of accused Madan Choudhary is Ex.PW2/E. The accused Madan Choudhary pointed out the bank vide pointing out memo EX.PW2/F. He correctly identified the case property and accused in the court.
(iii) PW-3 W/ASI Parveen Bala Sharma was the Duty officer in the present case who proved registration of FIR as Ex.PW3/A. C No. 94/99 Unique ID No. 02401R0097531999 Page No. 4 State Vs. Madan Choudhary FIR No. 141/99 PS Adarsh Nagar
(iv) PW-4 K.C. Varshney, Sr. Scientific Officer deposed that on 15.04.99 one sealed parcel sealed with the seal of KU was deposited in his laboratory in case FIR no. 141/99. On examination, it was found that the country made pistol was in working order and the cartridge Ex.A1 was live and was test fired through the country made pistol. The country made pistol was a firearm and the cartridge was an ammunition under the Arms Act, 1959. His report is Ex.PW4/A and observation sheet is Ex.PW4/B.
(v) PW-5 Ct. Ram Pal Kaushik deposed that on 15.04.99 he deposited a sealed pullanda in CFSL.
(vi) PW-5 & PW-7 deposed that on 04.03.99 they were on patrolling duty along with HC Ishwar Singh, Ct. Ramphal, Ct. Anil, Ct. Baljeet and Ct. Ved Parkash. At about 01.10 pm, during patrolling duty PW-5 received a secret information that three young boys were sitting below the Railway Line Bridge with the intention to commit some offence and they were having arms and ammunition and if raid would conducted, they could be apprehended. 4 / 5 passersby were requested to join the investigation but none agreed. After preparing raiding party they apprehended all the three boys. PW-5 apprehended the accused Madan Choudhary with the help of C No. 94/99 Unique ID No. 02401R0097531999 Page No. 5 State Vs. Madan Choudhary FIR No. 141/99 PS Adarsh Nagar PW-7 and PW-2 from whose possession one loaded desi katta was recovered from the right side dub of his wearing pant. The katta was unloaded and one cartridge was taken out. The katta was measured and total length of katta was 25.2 cms, barrel was 14 cms, body was 11.4 cms, the length of butt was 6.3 cms and the katta was made up of iron. The cartridge was also measured and was of 7.9 cms. Sketch of the katta and the cartridge Ex.PW2/A was prepared. Katta and cartridge were seized vide seizure memo Ex.PW2/B. The other accused persons were apprehended, one desi katta was recovered from the possession of the accused Raju and from the search of accused Ramesh one buttondar knife was recovered and the investigation regarding both the accused persons namely Raju and Ramesh were separately conducted by HC Baljeet and HC Ishwar Singh. PW-5 prepared the rukka Ex.PW5/A. Further investigation was assigned to HC Ranpal Singh who prepared site plan Ex.PW5/B at the instance of PW-5 / HC Kamaljeet. Thereafter the PW-5 was relieved. PW-7 further deposed that accused was arrested vide memo Ex.PW2/C and personally searched vide memo Ex.PW2/D. The disclosure statement of accused Madan Choudhary is Ex.PW2/E. The accused Madan C No. 94/99 Unique ID No. 02401R0097531999 Page No. 6 State Vs. Madan Choudhary FIR No. 141/99 PS Adarsh Nagar Choudhary pointed out the bank vide pointing out memo EX.PW2/F. He correctly identified the case property and accused in the court.
(vii) PW6 HC Ranpal deposed that on 04.03.99 on receiving of rukka and copy of FIR went to the spot along with Ct. Vinod Kumar where he met first IO / HC Kamaljeet and Ct. Yashpal and accused was in their custody. HC Kamaljeet handed over the custody of the accused, case property and seizure memo. He prepared the site plan Ex.PW5/B at the instance of first IO. He further stated that accused was arrested vide memo Ex.PW2/C and personally searched vide memo Ex.PW2/D. The accused Madan Choudhary pointed out the bank vide pointing out memo EX.PW2/F. Statement of accused and defence
4. After closure of prosecution evidence , the statement of accused U/S 313 CrPC was recorded. He stated that he was innocent and has been falsely implicated by planting case property upon him. No evidence in defence was led.
Arguments and appreciation of evidence in the light of legal propositions:
C No. 94/99 Unique ID No. 02401R0097531999 Page No. 7
State Vs. Madan Choudhary FIR No. 141/99 PS Adarsh Nagar
5. Having touched upon the statements of PWs, I shall consider the rival contention of parties. Accused has highlighted several infirmities in investigation which are being discussed hereunder alongwith the explanations therefore advanced by Ld. APP for the State.
6. It is firstly highlighted by accused that the IO has not joined any independent public witness despite availability. Admittedly, several public witnesses were present at the time of apprehension of accused and while completing the formalities at the spot but none of the public witnesses was even requested to become witness. This casts doubt about sincere efforts made by the IO to join independent witnesses. In Roop Chand v/s State of Haryana reported in 1990 (1) CLR 69, it was observed that such explanations that the public persons refused to join the proceedings are unreliable and in Pradeep Narayan V/S State of Maharashtra reported in AIR 1995 S.C. 1930 held that failure of police to join witness from locality during search creates doubt about fairness of the investigation benefit of which has to go to the accused.
7. It is settled proposition of law that Sub Section 4 of Section 100 CrPC is directory provision, however, explanation of non joining of C No. 94/99 Unique ID No. 02401R0097531999 Page No. 8 State Vs. Madan Choudhary FIR No. 141/99 PS Adarsh Nagar independent witness should be plausible. The explanation put forward by the prosecution for non joining of independent witness appears to be implausible for reason that there was ample time with the IO at least to note down the particulars of the persons who refused to join the investigation. The same creates doubt regarding the fairness of the investigation.
8. It is also noteworthy that the most crucial part of the investigation has been conducted by the complainant HC Kamaljeet even before registration of FIR. Since, he was present at the spot alongwith other police officials, no explanation has been put forth by the prosecution as to why despite availability, the investigation was not handed over to some other senior officer. In such case, as observed by Hon'ble Supreme Court in the case titled as Megha Singh V/S State of Haryana reported in 1995 Crl. L. J. 3988 and as held in the case titled as Sunil V/S State reported in 1999 (1) JCC 85 (Delhi) benefit of doubt is to be given to the accused.
9. It is also highlighted by accused that on the recovery Memo, the FIR number finds mention and it has not been explained by the prosecution. Admittedly, these documents were prepared before registration of FIR. When documents are prepared before registration of FIR and it contains the FIR C No. 94/99 Unique ID No. 02401R0097531999 Page No. 9 State Vs. Madan Choudhary FIR No. 141/99 PS Adarsh Nagar number, then interference has to be drawn that either FIR was recoded prior in time or the documents were prepared later on and in such cases, benefit of doubt is to be given the the accused.
10. It is next pointed out by accused that the seal was kept by the police officials themselves and was not handed over to any independent person and prosecution has also failed to prove that the case property remained intact and was not tampered with till the time it was produced in the Court which was more important when the seal remained with the police official of the same police station.
11. All the lapses in investigation, discussed herein above creates a doubt on the very recovery of one loaded desi katta from the possession of accused. The lapses are material one and cannot be ignored. It is settled proposition of law that if the investigation suffers from taint then the entire prosecution case becomes open to serious doubts and challenges. The material is insufficient to record a finding of guilt of the accused and the safer course available is to acquit the accused giving him a benefit of doubt.
12. It is noteworthy that no effort at all was made by the police to ascertain the source from where the alleged weapon was acquired by the C No. 94/99 Unique ID No. 02401R0097531999 Page No. 10 State Vs. Madan Choudhary FIR No. 141/99 PS Adarsh Nagar accused. No explanation is coming forthwith on such effort so not made. This lapse in investigation certainly accrues a benefit in favour of accused.
13. The prosecution has failed to prove the Sanction U/S 39 of the Arms Act which is mandatory.
Conclusion
12. In view of the above said discussion, the prosecution has failed to prove the guilt of the accused beyond reasonable doubt. Accordingly, I acquit the accused Madan Choudhary for the offence U/S 25/54/59 of Arms Act.
13. The Bail Bond stands cancelled and surety for the accused stands discharged. Any endorsement placed on the documents of the surety may accordingly, be cancelled. The original documents of the surety, if retained on record be returned against acknowledgment. File be consigned to record room.
Announced in open court (Neeraj Gaur)
today i.e. 10.10.2011 Metropolitan Magistrate-IV/NW
Rohini Courts, Delhi
C No. 94/99
Unique ID No. 02401R0097531999 Page No. 11