Delhi District Court
Title Of The Case: : State vs . Murli Kumar on 7 February, 2023
IN THE COURT OF MS. SANYA DALAL, MM-I (N/W)
ROHINI COURTS, DELHI
New Case No. : R-530792/16
Title of the case: : State vs. Murli Kumar
FIR No. : 816/2003, PS Sultanpuri
Date of institution : 10.02.2006
Date of reserving Judgment : 07.02.2023
Date of pronouncement : 07.02.2023
JUDGMENT :
(a) The date of commission 15.07.2003
(b)The name of complainant Raj Kumar S/o Sh. Nand Lal R/o H.
No. 328, VPO Dariyapur Kalan, Delhi.
(c) The name of accused Murli Kumar
S/o Sh. Janeshwar Singh
R/o Jhuggi near PS Timarpur,
Delhi.
(d) The offence complained of 25 of the Arms Act, 1959
(e)The plea of the accused Pleaded not guilty
(f)The final order Acquittal
(g)The date of such order 07.02.2023.
JUDGEMENT:
1. The accused has faced trial for offence u/s 25 of the Arms Act, 1959.
2. Stated succinctly, the facts germane for the case of the prosecution are that on 15.07.2003, at about 10.00 AM, at near Rama Vihar Bus Stand, Sultanpuri, Delhi, the accused was found in possession of a loaded country made pistol with two live cartridges without any license or authority in contravention of the provisions of section 25 of the Arms Act, 1959.
FIR No. 816/2003 State v Murli Kumar 1 / 12
3. On the written application of the informant, Sultanpuri P.S. registered, in relation to the above incident, a FIR no. 816/2003 and, after investigation, submitted the charge sheet against the aforementioned accused Murli Kumar for the offence u/s 25 Arms Act, 1959. Cognizance of the offence was taken and the accused entered appearance upon which provisions of Section 207 Cr.P.C. were complied with.
4. Charge u/s 25 of the Arms Act was framed and was read over to accused, in Hindi, on 04.05.2006 to which he pleaded not guilty and claimed trial.
5. The prosecution, in order to prove the case beyond all reasonable doubt, examined 10 witnesses in support of its case during the course of trial.
6. PW1 Raj Kumar deposed that in month of July 2003, he was serving in DTC, Bawana Depot and was discharging the duty of Ticket Checker on that day. He deposed that he alongwith staff started from Begumpur to Karala and at Rama Vihar, bus stand, one bus plying at route no. 114, was stopped and passengers were checked for the ticket. He deposed that one boy was not having valid tickets as the ticket was upto bus stand which was crossed before Rama Vihar Bus stand and he indulged in hot arguments with them. He made call at 100 no. and police came there. He deposed that the boy was found in possession of a loaded country made pistol and two other live cartridges. He deposed that the said pistol and cartridges were put on a paper and sketch was drafted vide Ex. PW1/A. His statement was recorded vide Ex. PW1/B and accused was arrested vide arrest memo Ex. PW1/C. MHCM has produced two sealed envelops sealed with the seal of FSL. The pistol was Ex. P-1, test fire cartridges are Ex. P-2 and Ex. P-3 and live cartridge was Ex. P-4.
The cross-examination of the witness deferred at the request of the defence counsel as the spectacles of the Ld. Defence counsel were damaged.
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7. PW2 Ranvir Singh deposed that during the month of March April 2003, he was serving in DTC, Bawana Depot and was discharging duty of Ticket Checker. He deposed that he alongwith staff started from Prashant Vihar to Kanjhawala and at Rama Vihar Bus Stand, one bus plying at route no. 114 was stopped and passengers were checked for the ticket. One boy was not having ticket and he got alighted from the bus and was found in possession of a country made pistol, police was called who took the possession of said pistol and the accused was arrested. He deposed that his signatures were obtained on some documents. He correctly identified cartridges Ex. PW1/A, sketch memo Ex. PW2/A and arrest memo Ex. PW1/C. Case property was correctly identified by the witness.
The witness was not cross examined despite opportunity given.
8. PW3 ASI Kalu Ram deposed that on 15.07.2003, he received a call from wireless set regarding apprehension of a person at Rama Vihar Bus stand alongwith one pistol and he alongwith his PCR van staff reached at the spot. He deposed that over there DTC bus staff officials produced one person Murli Kumar and DTC conductor Raj Kumar also produced one pistol/katta alongwith three cartridges. In the meantime, IO SI Anil Kumar reached at the spot and custody of accused and case property was handed over to the IO.
During cross-examination, he deposed that IO recorded his statement at about 10.30 AM and he finally left the spot at about 10.40 AM. He deposed that the site plan was prepared in his presence. SI Anil Kumar reached at the spot at about 10.05 AM.
9. PW4 Ram Chander deposed that 10-11 years ago, he was working in DTC depot and was doing ticket checking of DTC buses. He deposed that they went into the bus for ticket checking and found one boy without having any valid ticket and the said boy was de-boarded from the bus for making CFT and was asked to pay Rs. 100/- as fine. The said boy declined and said he did not have money. He deposed that FIR No. 816/2003 State v Murli Kumar 3 / 12 Raj Kumar took casual search of that boy and found two live cartridges and a note of Rs. 20/-. He deposed that Raj Kumar called at 100 No. Police officials came at the spot and took personal search of the accused and found one loaded pistol from the possession of that boy.
Ld. APP for the State cross examined the witness as he was resiling from his previous statement. The witness admitted that the sketch memo and seizure memo Ex. PW1/A and E. PW2/A bears his signature at point B and arrest memo and personal search memo bears the signature at point C. He deposed that he signed all the documents when there was darkness in the PS. Witness failed to identify the accused.
During cross-examination, he deposed that his statement was recorded at PS Sultanpuri between 6.30 to 6.40 PM under the candle light and there was no electricity. He admitted that he did not go through the contents of the documents before signing. No recovery was effected in his presence. He voluntarily stated that Raj Kumar told him about recovery of pistol and live cartridge. Other persons from DTC staff also signed all the documents in the candle light. He deposed that other DTC officials also did not go through the contents of the documents before signing.
10. PW-5 HC Bhagirath deposed that on 15.07.2003 at about 1.20 PM, he received rukka brought by Ct. Krishan and he registered the present FIR vide Ex. PW5/A and made an endorsement on the rukka vide Ex. PW5/B. The witness was not cross examined despite opportunity given.
11. PW-6 Bhola Ram deposed on the same lines as PW4.
Ld. APP for the State cross examined the witness as he was resiling from his previous statement. He deposed that he do not remember whether his statement was recorded or not. Witness was confronted with his statement vide Ex. PW6/DX, whole statement was read over to the witness but he denied the same. He admitted that the seizure memo, arrest memo and personal search memo bears his signature at FIR No. 816/2003 State v Murli Kumar 4 / 12 point E. He deposed that he signed all the documents when there was darkness in the PS. Witness failed to identify the accused.
The witness was not cross examined despite opportunity given.
12. PW7 Rajbir Singh deposed on the same lines as PW6.
13. PW8 Puneet Puri, Assistant Director Ballistic, FSL deposed that on 29.10.2003, he was posted at Forensic Science Laboratories as Sr. Scientist. He deposed that on that day, 2 sealed parcels sealed with the seal of AKP were received in FSL through Ct. Pawan Malik. He deposed that the seals on the parcels were entacted and on opening the parcel no. 1, one countrymade pistol of 0.315 inch bore was taken out and marked as Ex. F-1. He deposed that on opening the second parcel, two 8 mm/0.315 inch cartridges and one 0.303 inch cartridge were taken out and marked as Ex. A1, Ex. A2 and Ex. A3 by him. He deposed that on examination, he found that the coutnry made pistol marked F1 was in working order. Test fire was conducted successfully by using the cartridge marked Ex. F1 was in working order. Test fire was conducted successfully by using the cartridge marked EXA-1. The cartridge marked EX A-2 was test fired through the country made pistol 0.315 inch bore marked EX F-1 in case FSL NO-2003/F-2315 FIR NO- 529/2003 PS Sultan Puri. The cartridge marked EX A-3 was misfired one. The country made pistol marked EX F-1 was a firearm and the cartridges marked EX A-1 to EX A-3 were ammunition as defined in Arms Act 1959. The exhibits were then re sealed with the seal of PP FSL DELHI. Detailed report in this regard is EX PW-8/A. During cross-examination, he denied the suggestion that he had not conducted any test firing or that he had prepared his report in mechanical manner and at the instance of IO.
14. PW9 Inspector Anil Kumar deposed that on 15.07.2003, on receipt of DD No. 28-B, he alongwith Ct. Krishan Kumar reached at the spot where they met FIR No. 816/2003 State v Murli Kumar 5 / 12 with the DTC bus staff including Rajkumar. He deposed that he handed over the custody of accused Murli Kumar and one countrymade pistol and two live cartridges. On checking, recovered katta(desi pistol) was found containing one live cartridge. He deposed that after that he prepared the sketch of recovered pistol and three live cartridges vide memo already Ex. PW-1/A. Total length of the recovered pistol was 24 cm, barrel length 13 cm, butt length 6 cm and triangle length of body of the recovered katta was 7 cm. The length of each recovered cartridge was 7.5 cm and width was 1.4 cm. He deposed that after that he seized the said katta and three live cartridges vide memo already Ex. PW-2/A , recorded the statement of complainant Sh. Rajkumar vide Ex. PW-1/B and on the basis of the same, he prepared rukka vide Ex. PW-9/A and handed over the same to Ct. Krishan for the registration of FIR. He deposed that he went to the PS and got registered FIR and after sometime he came back to the spot alongwith the copy of FIR and original rukka and handed over the same to him. After that he prepared site plan Ex. PW-9/B, arrested and personally searched the accused vide memos already Ex. PW-1/C and PW-4/A. He deposed that Rajkumar ( DTC bus official) handed over duty roaster register copy( Janch Patar) of dated 15.07.2003 which is mark A and he seized the said copy vide memo Ex. PW- 9/C. He deposed that he recorded the statement of all witnesses. After that he recorded the disclosure statement of the accused vide Ex. PW-9/D. On the basis of disclosure statement of the accused, he prepared pointing out memo Ex. PW-9/E and separate case was registered against him. After that the accused was put into the lockup and the case property was deposited into malkhana. He deposed that during the investigation the case property was sent to FSL and on 26/02/2004, the result of the same was obtained which is already Ex. PW-8/A. He deposed that after that he was transferred from the PS Sultanpuri and he handed over the file of the present case to MHC(R).
During cross-examination, he deposed that he did not remember who had made the call on 100 number. Again said complainant Rajkumar told him that he had made the call on 100 number. He deposed that he received DD entry at 10:30 am FIR No. 816/2003 State v Murli Kumar 6 / 12 and he did not remember the phone number from which the call was made. He deposed that after receiving the call he had left the police station after about 10 minutes. He reached at the spot at about 11:15 am. He deposed that he went to the spot on a motorcycle and at the spot he found around 6-7 persons who were DTC staff. When they reached at the spot the driver of the DTC bus was not present at the spot, however, inspection team was present there. He deposed that he did not remember whether any public persons were present at the spot except the inspection team(DTC staff). He deposed that he prepared sketch of recovered pistol and live cartridges, seizure memo of the same, arrest memo, personal search memo, disclosure statement and site plan at the spot. He investigated the present case till 9:00 pm on that day. He deposed that the recovered pistol was handed over to him by complainant Rajkumar. The said pistol was not covered when the complainant handed over the same to him. He had not carried out any investigation with regard to the finger prints on the recovered pistol. He had seized the same in a pullanda, however, he had not given any specific mark on the recovered pistol and on the pullanda the particulars of the case has been mentioned. The case property was sent to the FSL after about 1 ½ months. Finally, he along with one Constable and the accused reached at the PS at about 09.00 pm. He deposed that he made arrival entry after reaching at PS. He denied the suggestion that case property has been planted upon the accused or that he had not visited the spot on receiving the information of that he had not carried out investigation in this matter and also not recorded the disclosure of the accused at any time.
15. PW10 HC Ashok Lamba had brought the record of sanction u/s 39 Arms Act given by Additional DCP Shr. Manish K. Aggarwal on 30.12.2004 in the present FIR. The said sanction report is Ex. PW10/A. During cross-examination, he deposed that he was not working with Delhi Police in the year 2004. He admitted that he never worked with DCP Sh. Manish Kumar Aggarwal.
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16. Evidence on behalf of the prosecution was closed. The accused was examined u/s 313 Cr.P.C. and the entire incriminating material was put to the accused, to which he stated being falsely implicated. Accused further chose not to lead DE.
17. Final arguments were thereafter addressed by Ld. Counsel for the accused person and by Ld. APP for the State. It was argued by Ld. APP for the State that prosecution has successfully established guilt of accused beyond reasonable doubt, hence he be convicted. While on the other hand, it was argued by Ld. Defence counsel Sh. Deepak Sharma that there is no independent witness which could suggest that the recovery effected as alleged by prosecution was made from the accused. I have heard the Ld. Counsel for the accused person and Ld. APP for the State and have perused the records carefully.
APPRECIATION OF EVIDENCE
18. The primary issue to be decided in the present case is whether the prosecution has been able to prove its case against the accused beyond all reasonable doubt.
19. On a perusal of the oral and documentary evidence led by the prosecution, the following observation emerge :
a. In the present case, no public witness has been examined on behalf of the prosecution in order to assuage its claim. The recovery is alleged to have been done from the accused on 15.07.2003 at about 10.00 AM at Bus Stand, Rama Vihar, Delhi. Now, it is not the case that the place of incident was a deserted place and the place of alleged incident was a Bus Stand and despite the same not even an attempt was made to look for an independent witness. From perusal of the record, no serious effort for joining public witnesses appears to have been made. There is nothing on record to show that the IO had served any notice u/s 160 Cr.P.C. on the public persons who FIR No. 816/2003 State v Murli Kumar 8 / 12 were present at the time when the seizure was effected. The failure to make conscious and serious efforts to give adequate notice to public witnesses is amplified in view of the statutory duty which is imposed u/s 100(4) Cr.P.C. to call upon two respectable persons of the locality to join the search. However, no such notice was served, thereby raising a doubt on the case of the prosecution.
b. Reliance in this regard is placed on paragraph 6 of the judgment in Pawan Kumar v. Delhi Administration 1989 Cri.L.J. 127, wherein the Hon'ble High Court of Delhi had observed as under:
" ... According to Jagbir Singh, he did not join any public witness in the case while according to Kalam Singh, no public person was present there. It hardly stands to reason that at a place like a bus stop near Subhas Bazar, there would be no person present at a crucial time like 07.30 p.m. when there is a lot of rush of commuters for boarding the buses to their respective destinations. Admittedly, there is no impediment in believing the version of the Police officials but for that the prosecution has to lay a good foundation. At least one of them should deposed that they tried to contact the public witnesses or that they refused to join the investigation. Here is a case where no effort was made to join any public witness even though number of them were present. No plausible explanation from the side of the prosecution is forthcoming for not joining the independent witnesses in a case of serious nature like the present one. It may be that there is an apathy on the part of the general public to associate themselves with the Police raids or the recoveries but that apart, at least the I.O. should have made an earnest effort to join the independent witnesses. No attempt in this direction appears to have been made FIR No. 816/2003 State v Murli Kumar 9 / 12 and this, by itself, is a circumstance throwing doubt on the arrest or the recovery of the knife from the person of the accused."
20. The testimony of PW1 at whose instance the present case was registered could not specify the date of the incident. As per PW1, in the month of July 2003, he was serving in DTC, Bawana Depot, as a ticket checker and on that day, he stopped a bus plying on route no. 114 and upon checking the passengers, one boy was found in possession of loaded country made pistol and two live cartridges.
While as per testimony of PW2, in the month of March-April 2003, while he was discharging duty as a ticket checker, he checked one bus plying on route no. 114 and one boy got alighted from the bus and he was found in possession of a country made pistol.
Now the testimony of PW2 is also silent in regard to the date of incident and it does not state anything in regard to the recovery of the live cartridges from the possession of the accused on the relevant day as alleged by the prosecution.
The testimony of PW1 cannot be read in evidence as the cross-examination of said witness was deferred and on a subsequent day when the matter was listed for cross-examination of the said witness, a report was filed that the said witness has expired. Accordingly, PW1 was not cross-examined. Hence, the statement of PW1 cannot be taken into consideration.
The testimony of PW2 is completely silent in regard to the recovery of live cartridges from the possession of the accused however, as per the complaint Ex. PW1/B, two live cartridges were recovered from the possession of the accused on 15.07.2003. On the other hand, as per testimony of PW3 alongwith one pistol, three cartridges were recovered from the accused. Also, as per PW9, who is IO of the case, three live cartridges were recovered from the possession of the accused. The same reflects a clear contradiction within the versions presented by prosecution witnesses.
PW4, PW6 and PW7 clearly stated that the accused was not the person from whom the pistol and live cartridges were recovered.
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21. The rest of the witnesses of the prosecution are the police officials who deposed in regard to investigation carried out by them.
22. Further it is pertinent to note that no handing over memo of seal has been filed by the prosecution which can suggest that the case property remained untampered and intact at the relevant period.
23. It is the settled proposition of law that the testimony of police officials cannot be discarded away merely because of the fact that no public witnesses were examined however, their testimonies should be scrutinized in more detail. If it is found during the course of investigation that the police officials did not even make the endeavor to ask the public witnesses to join the investigation then it would caste a very serious doubt on the testimony of police officials.
The Hon'ble Supreme Court in case of Pradeep Narayan Madgaonkar Vs. State of Maharashtra (1995) 4 SCC255 dealt with the issue of requirement of examination of an independent witness and whether the evidence of a police witness requires corroboration. The Hon'ble Apex Court held that though the same must be subjected to strict scrutiny, however, the evidence of police officials cannot be discarded merely on the ground that they belong to the police force and are entrusted either in the investigation or in the prosecution. However, as far as possible, the corroboration of their evidence on material particulars should be sought.
24. Accordingly, in view of the above observations and discussion, this Court is of the considered opinion that on account of failure of identification of the accused as well as on account of various material contradictions with the testimony of PWs, the prosecution could not establish the guilt of the accused beyond reasonable doubt. The court is of the view that prosecution had failed to discharge its burden of proving its case against the accused.
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25. Accordingly, accused Murli cannot be saddled with criminal liability for offence u/s 25 of the Arms Act. Hence, he stands acquitted.
The bail bonds furnished earlier stands extended towards compliance of section 437A Cr.PC and shall remain in force for the period of six months from today.
26. File be consigned to record room after due compliance.
Announced in open court (SANYA DALAL)
on 07th February, 2023. Metropolitan Magistrate-01
Rohini Courts, Delhi.
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