Delhi District Court
State vs . Naveen Kumar @ Kalu on 18 January, 2020
IN THE COURT OF SH. MAYANK MITTAL, METROPOLITAN
MAGISTRATE (SHAHDARA), KKD COURTS DELHI
FIR No. 261/08
PS: Seema Puri
U/s. 25 Arms Act
State vs. Naveen Kumar @ Kalu
1. Computer ID NO. : 78908/16
2. Date of institution of case : 01.05.2009
3. Name of the complainant : Ct. Sukhbir Singh
4. Name of the accused, their : Naveen Kumar @ Kalu
parentage, addresses S/o Sh. Sewa Ram
R/o B134, Harsh ViharII
PS Sahibabad,
Ghaziabad, UP
5. Offence complained : U/s 25/54/59 Arms Act
6. The date of judgment : 18.01.2020
7. Order : Acquitted
JUDGMENT
Brief reasons for the decision of the case:
1. In brief, the story of the prosecution is that on 06.09.208, at about 10:00pm, at middle road, N & O Pocket, Dilshad Garden, near Aggarwal Chawal House, Delhi, accused Naveen Kumar @ Kalu was found in possession of one desi pistol/katta of .315 bore alongwith one live cartridge defined as fire arm and ammunition in the Arms Act 1959 without having any license or permit to keep the same and thereby he committed an offence punishable u/s 25 Arms Act, 1959. Upon completion of investigation, the charge sheet was filed against FIR NO. 261/08 PS Seema Puri State vs Naveen Kumar 1 the accused for aforesaid offences on 01.05.2009 and cognizance of offence was taken on the same date.
2. Charge was framed against the accused for offences punish able u/s 25 Arms Act on 08.10.2009, to which the accused pleaded not guilty and claimed trial.
3. During PE, prosecution examined seven witnesses in support of its case.
PW1 is HC Sukhbir(complainant). He deposed that on 06.09.2008, he was on patrolling duty and present at Suraksha Nursing Home. At about 10:00pm, he saw one motorcycle no. DL7S AJ5590 Pulsor Black Colour coming from the side of Kori Coony, two persons were on the motorcycle. They were staring towards one lady present there with bad eye. He rushed to chase the motorcycle on his private motorcycle and he parked his motorcycle in front of the afresaid motorcycle after about covering 50 meters distance. As a result the aforesaid motorcycle fell down and both the motorcyclist run away, somehow he managed to apprehend the person who was driving the aforesaid motorcycle. The pillion rider fled away. On interrogation the person dislcosed his name as Naveen. He took his search and found one loaded desi katta in right dub of the accused. In the meantime, SI Dharam Singh and Ct. Pratap also reached at the spot. He handed over the recovered katta and the accused to SI Dharam Singh. SI Dharam Singh requested 45 passersby to join the investigation but none agreed and left the spot wihtout disclosing their names and addresses. The katta was unloaded and sketch of the FIR NO. 261/08 PS Seema Puri State vs Naveen Kumar 2 katta and cartridge was prepared on a plain paper vide Ex. PW1/A. The katta was also measured. The katta and the cartridge was wrapped in a white cloth and a pullanda was prepared and was sealed with the seal of DS and sezied vide memo Ex. PW1/B. FSL form form was filled up by SI Dharam Singh. Seal after use was handed over to him. His statement Ex. PW1/C was recorded by the IO. IO had prepared rukka and handed over the same to Ct. Pratap for registration of the case. After some time Ct. Pratap came back and handed over the copy of FIR and rukka to SI Dharam Singh. The motorcycle was taken in police possession U/s. 102 Cr.P.C. vide Ex. PW1/D. Site plan was also prepared. Accused was arrested and his personal search was conducted vide memo Ex. PW1/E & PW1/F. Case property was deposited in the malkhana. Witness has corectly idenified the katta and cartridge as Ex.P1 & P2.
PW1 is cross examined on behalf of accused. During cross examination, PW1 has admitted that the sketch does not reflect the thread (dhaga) which is tied in the safety of trigger. IO did not give notice to any person who refused to join the investigation. She had not asked about the source from where accused procured the katta. He had admitted that in his statement it is written that the katta was recovered from left side. He was confronted with statement Ex. PW1/C where it is so recorded that katta was recovered from right side. He admited that the site plan does not bear his signature. He admitted that the site plan does not show the presence of ladies at the time of the incident. No local persons/residents complained against the accused. He further admitted that local public persons identified the accused. He has further admitted that there is no mention of recovery of cartridge in his statement. He had denied the suggestion that his FIR NO. 261/08 PS Seema Puri State vs Naveen Kumar 3 bike collided with the bike of the accused at the spot. He had voluntarily stated that he put his bike in front of the bike of the accused in order tostop him and theaccused started to runaway after leaving his bike. He had made the departure entry while leaving for patrolling on 06.09.2008 for the spot but the same was not on record. He admitted that in the said DD entry the fact that he was taking his private motorcyle while leaving the police station was not mentioned. He further deposed that the distance between the spot and the police station is about 1/2 km. He admitted that street light has not been shown in the site plan. He admitted that as per the site plan the incident happened in front of the Aggarwal Chawal House and at that time said shop was closed. He has denied the suggestion that the katta has been planted upon the accused or that no recovery of any katta was effected from the accused.
PW2 is HC Magan Pal Singh. He has deposed that in the year 2009 he was working with Addl. DCP late Sh. M.R. Gotwal and he had seen him writing and signing. He had identified the signature of Addl DCP Late Sh. M.R. Gotwal on sanction U/s. 39 Arms Act against accused Naveen Kumar @ Kalu in present FIR as Ex. PW2/A. He was cross examined on behalf of the accused. He had admitted that he has no personal knowledge about the present case.
PW3 is ASI Sunil Kumar. He has deposed that on 06.09.2008 he was posted as Duty Officer at PS Seemapuri. On that day, at about 11.45 PM Ct. Pratap came with a rukka sent by SI Dharam Singh. On the basis of the same, he registered the FIR vide entr no. 36A Ex.PW3/A and on the basis of the same he made endorsement over FIR NO. 261/08 PS Seema Puri State vs Naveen Kumar 4 the rukka Ex.PW3/B. After that he handed over the same to Ct. Pratap.
PW4 is Ct. Pratap. He has deposed that on 06.09.08, he was posted at PS Seemapuri and was on patrolling duty alongwith SI Dharam Singh at Dilshad Garden. During patrolling they reached at O&NPocket, where Ct. Sukhvir met them alongwith accused, at Ag garwal Chawal House. One desi katta was recovered from the posses sion of the accused. After that SI Dharam singh took the statement of Ct. Sukhvir. After that SI Dharam Singh asked public persons to join the investigation but no one agreed and left without disclosing their particulars. After that the katta was unloaded and the sketch of same was prepared vide memo already Ex.PW1/A Katta was also mea sured. The total length was 24 cm., length of butt was of 10 cm., length of body was 9 cm.and length of barrel was 9 cm., length of car tridge was 7.7 cm. The katta and cartridge was wrapped in a white cloth and the pullanda was prepared. Same was sealed with the seal of DS. The seizure memo of the katta and cartridge is already ExPW 1/B and FSL form was filled by SI Dharam Singh. Seal after use was handed over to Ct. Sukhvir Singh. After that SI Dharam Singh pre pared the Tehrir and same was handed over to him. Accordingly, he went to PS and got FIR registered and came back to spot and copy of FIR and rukka was handed over to SI Dharam Singh. After that ac cused was arrested vide arrest memo already Ex.PW1/E and also personal search was conducted vide memo Ex.PW1/F. After that dis closure statement of accused was recorded vide memo Ex.PW4/A and in his disclosure statement, accused stated that he has stolen the motorcycle bearing No. DL7SAJ5590 from Ghaziabad which was FIR NO. 261/08 PS Seema Puri State vs Naveen Kumar 5 also seized vide seizure memo Ex.PW1/B. After that his statement was recorded by the IO.
PW4 was cross examined on behalf of the accused. Dur ing cross examination PW4 had admitted that the countrymade pistol was already recovered by Ct. Sukhbir before they reached at the spot. No public witness was produced by Ct. Sukhbir at the time when he produced the said countrymade pistol before the IO. No crime team was called at the spot. The IO had filled up FSL form. No finger print were lifted from the countrymade pistol in my presence. The distance between the police station and the spot is about ½ km. No indepen dent public person was joined when the disclosure statement of ac cused was recorded. The site plan of the spot was prepared by the IO in his presence. The alleged recovered katta was measured in the po lice station, again said he did not recollect exactly as long period has elapsed. He did not know as to how many statement of Sukhbir Singh were recorded. He had stated to the IO in his statement that one car tridge was loaded with the countrymade pistol was recovered. His statement was recorded in the police station. Statement of Ct. Sukhbir was not recorded in his presence. He further deposed that no cre dentials of the accused was recovered from the diggi of motorcycle being use by the accused. The IO did not collect any bill of filling fuel in the motorcycle from any petrol pump which show that the accused had got it filled up. The IO did not examine any such witness who could say that the accused was driving the motorcycle in question when he was apprehended by the police. No finger print of the ac cused were lifted from the bike in his presence. He did not have any knowledge whether the disclosure statement of accused was recorded in his presence. He had denied the suggestion that he did not join the FIR NO. 261/08 PS Seema Puri State vs Naveen Kumar 6 investigation of the present case at any point of time or that he signed all the documents in the PS at the instance of IO.
PW5 is Sh. Puneet Puri, Assistant Director, Ballistics, FSL, Rohini, Delhi. He has deposed that on 16.10.2008, one sealed parcel sealed with the seal of DS of this present case was received in FSL through Ct. Sanjeev and same was marked to him for examination. On opening the parcel, one countrymade pistol of .315 inch bore and one 8mm/.315 inch cartridge were taken out and marked as Ex. F1 and A1 respectively by me. He further deposed that on examination, he found that the countrymade pistol marked Ex. F1 was in working order. Test fire was conducted successfully by using the cartridge marked Ex. A1. The countrymade pistol marked Ex. F1 was a firearm and the cartridge marked Ex. A1 was an ammunition as defined in Arms Act 1959. Exhibits were then sealed with the seal of PPFSLDELHI. His detailed report in this regard was Ex. PW5/A PW5 was cross examined on behalf of accused. During cross examination, he had denied the suggestion that he had not conducted any testfire or prepared the report at the instance of the IO. The report alongwith case property were collected by messenger of the PS concerned.
PW6 is Retd. SI Dharam Singh. He has deposed that on 06.09,.2008, he alongwith Ct. Pratap Singh was present on patrolling duty. At about 10:00pm, They reached in between pocket N &O Dilshad Garden, Delhi, near Suraksha Nursing Home. Ct. Sukhbir Singh was already present on duty and met him there with the FIR NO. 261/08 PS Seema Puri State vs Naveen Kumar 7 accused. He narrated him the entire incident. Ct. Sukhbir produced before him the accused together with one countrymade pistol .315 bore. He checked the said countrymade pistol by unloading the same which was found containing one cartridge of same bore. He had asked the passersby to join the investigation but none agreed and went away. He prepared the sketch of the illegal arm and ammunition on a blank paper already Ex. PW1/A and he had converted both the recovered arm and ammunition into a parcel and sealed the same with the seal of DS and seized vide memo already Ex. PW1/B. He handed over the seal to Ct. Pratap Singh after use. He again stated that he had handed over the seal to Ct. Sukhbir Singh. He had filled up the FSL form at the spot with specimen seal. He recorded statement of Ct. Sukhbir already Ex. PW1/C. He prepared his endorsement on rukka Ex. PW6/A and sent rukka to PS for registration of case FIR through Ct. Pratap Singh at PS Seema Puri vide FIR already EX. PW3/A. He inspected the spot and prepared the site plan of the same Ex. PW6/B. He had also seized a motorcycle from the possession of the accused U/s. 102 Cr.P.C. vide memo already Ex. PW1/D. He arrested the accused vide arrest memo already Ex. PW1/E and also conducted his personal search vide memo already Ex. PW1/F. He interrogated the accused and recorded his disclosure statement already Ex. PW4/A. Thereafter, he alongwith the accused, case property including motorcycle and his staff came back to PS. He sent the accused to lock up. He deposited the case property with MHC(m) concerned. He recorded supplementary statement of Ct. Sukhbir Singh and also recorded statement of relevant witnesses. He further deposed that on the next day, he produced the accused before concerned court. During the course of investigation he sent the exhibits to FSL office for examination and FIR NO. 261/08 PS Seema Puri State vs Naveen Kumar 8 got the same collected from there. After obtaining the FSL report, sanction for prosecution of accused was taken from the competent authority and placed the same on file i.e. already Ex. PW2/A. After completion of investigation he prepared the chargesheet.
PW6 was cross examined on behalf of accused. During cross examination, PW6 had deposed that he had prepared the site plan of the spot at the instance of Ct. Sukhbir. The alleged illegal arms and ammunition was given to him by Ct. Sukhbir. He did not get examined the finger print of accused on the recovered pistol. Aggarwal Rice store/shop was closed at the time when he was conducting the investigation. He had prepared the sketch of arms and ammunition first. He had obtained the signature of witnesses on the sketch at the spot. He added the particulars of case on sketch later on. He admitted that red encircled Mark Y mentions 908. He has voluntarily deposed that same is clerical mistake as the date of preparation was mentioned on the same as 06.09.2008 under my signature. At the time of preparation of sketch, only three persons were present namely Ct. Sukhbir, accused and Ct. Pratap also present there at that time. Accused did not disclose the source from where he arranged the illegal arms and ammunition despite interrogation nor he revealed destination to which he was carrying the same. He denied the suggestion that he had planted the alleged recovered arm and ammunition upon the accused and that is why factum of collection and the destination to which it was being carried was not investigated by him. He had denied the suggestion that on the next day, the shopkeepers told that they used to open the shops till 11:00pm or that no such incident had taken place there. He stayed at the spot for about 3 ½ hours. He had not placed the copy of entries of register FIR NO. 261/08 PS Seema Puri State vs Naveen Kumar 9 no.19 on record. He admitted that the copy of FSL form having specimen of seal is not available on record. Distance between the police station and the spot is about more than 200 meters.
PW7 is SI Arun Kumar. He had deposed that on 10.10.2008, he was posted as MHC(M)_ at PS Seema Puri. On that day, as per direction of the IO he got deposited the exhibits with FSL vide RC NO. 239/21 through Ct. Sanjeev. After deposit of the exhibits Ct. Sanjeev brought the receipt copy of RC and gave him the same. He was cross examined on behalf of the accused. During cross examination he had deposed that he did not recollect as to what was the initials of the seal. No other document was sent with the pullanda including FSL form.
4. Thereafter, PE was closed. Statement of accused u/s 313 CrPC was recorded on 23.10.2019 wherein, the accused stated that he was innocent and has committed no offence. Accused did not lead any evidence in his defence.
5. During final arguments, Ld. APP has prayed for conviction of the accused stating that the prosecution has been able to prove its case beyond reasonable doubt. It is stated by Ld. APP that testimony of the IO as well as police officials is coherent and there is no doubt in the evidence led by the prosecution.
As opposed to it, ld counsel for accused has submitted that story of prosecution is not only inconsistent but it also unreliable and full of contradictions. Ld. Counsel for accused has pointed out the contradictions in the story and evidence of the prosecution and has submitted that the accused is required to be acquitted.
FIR NO. 261/08 PS Seema Puri State vs Naveen Kumar 10
6. I have heard the arguments and perused the record.
7. It is the cardinal principle of Criminal Justice delivery system that the prosecution has to prove the guilt of accused person beyond reasonable doubts. No matter how weak the defence of accused is but, the golden rule of the Criminal Jurisprudence is that the case of the prosecution has to stand on its own leg.
8. Now, I consider the points contended by the Ld. Counsel for the accused one by one. Ld. Counsel for accused argued that no independent witness was joined in the investigation. First of all, I consider the legal position on this point. In State of Punjab v. Balbir Singh, AIR 1994 SC 1872, the Hon'ble Supreme Court held that:
It therefore emerges that noncompliance of these provisions i.e. Sections 100 and 165 Cr.P.C. would amount to an irregularity and the effect of the same on the main case depends upon the facts and circumstances of each case. Of course, in such a situation, the court has to consider whether any prejudice has been caused to the accused and also examine the evidence in respect of search in the light of the fact that these provisions have not been complied with and further consider whether the weight of evidence is in any manner affected because of the noncompliance. It is wellsettled that the testimony of a witness is not to be doubted or discarded merely on the ground that he happens to be an official but as a rule of caution and depending upon the circumstances of the case, the courts look for independent corroboration. This again depends on question whether the official has deliberately failed to comply with these provisions or failure was due to lack of time and opportunity to associate some FIR NO. 261/08 PS Seema Puri State vs Naveen Kumar 11 independent witnesses with the search and strictly comply with these provisions. [Emphasis supplied]
9. IO has admitted it to be correct that public persons were coming and going from the spot when he was conducting the investigation , however no public person was joined nor any notice was given to any public person. Considering facts and circumstances of the present case, there was no lack of time and opportunity to associate some independent witnesses with the search and strictly comply with the provisions of Code of Criminal Procedure. Merely mentioning that public persons were requested to join the investigation is of no avail. Even name of those persons are not mentioned. Hence, the above mentioned creates doubt on the case of the prosecution.
10. Further, the seal after use was not handed over to any independent person. Seal after use was handed over to a policed official. It appears that no efforts was made to hand over the seal after use to independent person. I am conscious of precedent laid down by Hon'ble Delhi High Court in Safiullah v. State, 1993 (1) RCR (Criminal) 622, that:
"10. The seals after use were kept by the police officials themselves. Therefore the possibility of tampering with the contents of the sealed parcel cannot be ruled out. It was very essential for the prosecution to have established from stage to stage the fact that the sample was not tampered with. ..... Once a doubt is created in the preservation of the sample the benefit of the FIR NO. 261/08 PS Seema Puri State vs Naveen Kumar 12 same should go to the accused."
Hon'ble Punjab & Haryana High Court also held in Ramji Singh v. State of Hayana, 2007 (3) RCR (Criminal) 452, that "7. The very purpose of giving seal to an independent person is to avoid tampering of the case property."
11. Hence, considering the legal position, the benefit of doubt should be given to the accused. Further, it is also came on record that PW1 and PW4 did not offer their personal search prior to taking the search of accused. PW1 and PW4 must have offered their personal search to some independent witness. No such precaution was taken by PW1 and PW4. The doubt as to the false plantation of the case property cannot be ruled out.
12. In the judgment titled as "S.L.Goswami v. State of M.P"
reported as 1972 CRI.L.J.511(SC) the Hon'ble Supreme Court held: "...... In our view, the onus to proving all the ingredients of an offence is always upon the prosecution and at no stage does it shift to the accused. It is no part of the prosecution duty to somehow hook the crook. Even in cases where the defence of the accused does not appear to be credible or is palpably false that burden does not become any the less. It is only when this burden is discharged that it will be for the accused to explain or controvert the essential elements in the prosecution case, which would negative it. It is not however for the accused even at the initial stage to prove something which has to be eliminated by the prosecution to establish the ingredients of the offence with which he is charged, and even if the onus shifts upon the accused and the accused has to establish his plea, the standard of proof is not FIR NO. 261/08 PS Seema Puri State vs Naveen Kumar 13 the same as that which rests upon the prosecution..........................."
13. In the chargesheet as well as in the statement of complainant it has been mentioned that deshi katta (deshi pistol) was recovered from the left side of the accused, however PW1 in his examination in chief has stated that the katta was recovered from right dhub of the accused when the counsel for accused has confronted this fact to the PW1 in his cross examination PW1 has not furnished any clarification.
14. Further, the site plan does not bear the signature of complainant though the FIR was registered on the statement of complainant and it was the complainant only who had seen the accused persons coming on motorcycle when desi pistol was found from the possession of the accused.
15. Neither any of the ladies mentioned in the complaint of complainant were examined as witness to the incident nor they had been shown in the site plan and nor any place has been shown in the site plan where those ladies were standing when the complainant has recovered the deshi pistol from the accused.
16. The onus and duty to prove the case against the accused was upon the prosecution and the prosecution must establish the charge beyond reasonable doubt. It is also a cardinal principle of criminal jurisprudence that if there is a reasonable doubt with regard to the guilt of the accused the accused is entitled to benefit of doubt resulting in acquittal of the accused. Reference may also be made to the judgment titled as Nallapati Sivaiah v. Sub Divisional Officer, Guntur reported as VIII(2007) SLT 454(SC).
FIR NO. 261/08 PS Seema Puri State vs Naveen Kumar 14
17. In view of above said discussion, the prosecution has failed to prove the guilt of the accused beyond reasonable doubt. Accordingly, I acquit the accused Naveen Kumar of the charges framed in the present case.Original documents be returned to the rightful claimant. Superdarinama stands cancelled.
18. File be consigned to Record Room after due compliance.
Announced in open court
on 18.01.2020 (MAYANK MITTAL)
Metropolitan Magistrate06
Shahdara Distt., KKD Courts,Delhi
MAYANK
MITTAL
Digitally signed by
MAYANK MITTAL
Date: 2020.02.29
12:34:31 +0530
FIR NO. 261/08 PS Seema Puri State vs Naveen Kumar 15