Delhi District Court
State vs Madan Lal @Mintu on 8 December, 2023
IN THE COURT OF MS. BHARTI BENIWAL, METROPOLITAN
MAGISTRATE-11, DWARKA COURT, NEW DELHI
FIR No.261/2019
PS Janakpuri
State Vs.Madan Lal @ Mintu
U/s 25/54/59 Arms Act
CNR No. : DLSW020256612020
Cr Case No. : 6144/2020
Date of institution of the case : 25.09.2020
Date of commission of offence : 14.07.2019
Name of the complainant : SI Sandeep Kumar
Name of accused and address : Madan Lal @ Mintu
S/o Sh.Veer Pal Singh
R/o RZA/286, Prem Nagar,
Budh Bazaar Road, Delhi.
Offence complained of : U/s 25/54/59 Arms Act
Plea of the accused : Pleaded not guilty.
Ld. APP for the State : Sh.Amit Sehrawat
Final order : Acquittal
Date of judgment : 08.12.2023
FIR No.261/2019
State vs. Madan Lal @ Mintu Page No. 1 of 19
JUDGMENT
1. The brief facts of the case of the prosecution are that on 14.07.2019 at about 11 : 50 P.M. at Dharam Marg, Near District Park, Janakpuri, Delhi, accused Madan Lal @ Mintu was found in possession of one country made pistol with a live cartridge and after completion of the investigation, charge-sheet was filed against the accused u/s 25/54/59 Arms Act.
2. On receipt of chargesheet, cognizance of offence was taken and accused was summoned. After supply of copy of chargesheet, a formal charge was framed u/s 25/54/59 of Arms Act against the accused to which he pleaded not guilty and claimed trial.
3. Prosecution has examined 4 witnesses to prove its case.
4. Prosecution examined HC Sandeep as PW1. He deposed that on 23.10.2019, he had taken the case property in sealed condition in a plastic box to deposit the same in FSL Rohini vide RC no.193/21/19 and deposited the same there. He handed over FSL receiving copy which he deposited with MHC(M), PS Janakpuri. During transit, no tampering or manipulation was done with the case property. The copy of the RC is Ex.PW1/A. The copy of case property acceptance acknowledgment is Ex.PW1/B. FIR No.261/2019 State vs. Madan Lal @ Mintu Page No. 2 of 19
5. Prosecution examined SI Sandeep as PW2. He deposed that on 14.07.2019, he alongwith W/Ct.Rekha and ASI Vijay were searching the accused persons near District Park. At around 11 : 45 PM, one person was seen coming from the side of Bharti College, who was proceeding towards B1 Market, Janakpuri. The witness informed ASI Vijay about the same. On seeing the police officials, the said person tried to run away. They somehow captured him and asked the reason for running from the spot. On not giving satisfactory reply, witness checked him and recovered one countrymade pistol from his left handside belt line of his pants. He checked the pistol and found one live cartridge in the same. On interrogation, his name was revealed as Madan Lal S/o Veer Pal. Thereafter, the witness prepared sketch of the pistol and the live cartridge by putting the same on a white paper, which is Ex.PW2/A bearing his signatures at point A. Witness took measurements of the pistol and live cartridges and mentioned the same in the sketch. Thereafter, he seized both the country made pistol and live cartridge vide seizure memo Ex.PW2/B bearing his signatures at point A. At the time of seizure, he placed the pistol and live cartridge in a transparent plastic box and prepared a pullanda with the help of Doctor Tape. He further sealed the pullanda with the seal of S.K. Thereafter, the seal after use was handed over to ASI Vijay. The witness prepared Tehrir Ex.PW2/C bearing his signatures at point A and send the same to PS for registration of FIR through ASI Vijay. After some time, ASI Vijay returned to FIR No.261/2019 State vs. Madan Lal @ Mintu Page No. 3 of 19 the spot alongwith ASI Anil Kumar as further investigation was marked to him.
Thereafter, PW1 HC Sandeep handed over the sketch, seizure memo and the sealed case property to IO/ASI Anil Kumar. IO prepared site plan Ex.PW2/D at instance of PW1. Thereafter, IO arrested the accused Madan Lal.
Thereafter, complainant SI Sandeep alongwith W/Ct.Rekha returned to PS in his private vehicle. ASI Anil and ASI Vijay also returned to PS alongwith Case property and accused in car of ASI Anil. IO recorded his statement u/s 161 CrPC.
Accused was present in the court and he was correctly identified by witness. The case property was produced by MHC(M) in a white cloth pullanda bearing seal of FSL Delhi and having details of present FIR. The pullanda was opened after breaking the seal and one transport box was taken out of the same. The plastic container was having the seal of SK on a doctor tape used to seal the same. The container was opened and the same was found containing one country made pistol alongwith one cartridge. The case property was taken out of the same and shown to the witness. The witness correctly identified the case property. Same is Ex.P1.
6. Witness was cross examined by ld. Defence counsel wherein he stated that he left the PS at around 11 PM in his FIR No.261/2019 State vs. Madan Lal @ Mintu Page No. 4 of 19 private car. It was admitted by the witness that he made separate departure entry at the time of leaving the PS. However, the same is not made part of record. The witness could not remember the DD Number of his departure entry. It was admitted by him that no separate seal handing over memo was prepared by him. Witness denied the suggestion that no such memo was prepared as no such seal was ever used. He stated that ASI Vijay left the spot with rukka at about 01 : 30 AM in his private car and returned at the spot at around 3 AM. The witness stated that he did not conduct the personal search/jamatalashi of the accused. Witness voluntarily stated that it was done by the second IO. He did not offer his personal search to the accused before conducting his search. No finger prints from the case property were uplited during investigation. They left the spot finally at around 4 AM. He did not serve any notice to the guard at the gate of Bharti College to join the investigation. Witness voluntarily stated that the gate of college was at a distance of 150 mtrs and the spot was very dark. Witness denied the suggestion that none of the police official visited the spot or that nothing was recovered from the accused or that the case property was planted upon the accused in order to falsely prosecute him. That his statement u/s 161 CrPC was recorded by the IO in PS. That at the time of preparation of seizure memo, no FIR number was mentioned on the top of seizure memo only the DD number was mentioned.
7. Prosecution examined SI Anil Kumar as PW3. He deposed that on 15.07.2019, ASI Vijay came in PS with original rukka and copy of FIR, which he handed over to the witness as FIR No.261/2019 State vs. Madan Lal @ Mintu Page No. 5 of 19 the same was marked to the witness for further investigation. He alongwith ASI Vijay went to the spot. He met SI Sandeep, W/Ct.Rekha and accused Madan Lal on the spot. SI Sandeep handed over him the relevant documents i.e. seizure memo and sketch of the pistol alongwith sealed case property. He prepared site plan at the instance of SI Sandeep which is Ex.PW2/D. He arrested the accused vide arrest memo Ex.PW3/A. He also conducted his personal search vide memo Ex.PW3/B. He recorded disclosure statement of accused vide memo Ex.PW3/C. The medical examination of the accused was got conducted. Case property was deposited in Malkhana.
On the next day, one day PC of the accused was sought from the court as he had disclosed involvement of co- accused Deepak @ Batry. The witness made efforts to search accused Deepak but he was not found. On 25.08.2019, co- accused was arrested but nothing incriminating was recovered from him, therefore, he was got discharged by orders of the Court. During investigation, witness also sent the case property to FSL, Rohini for its examination and he prepared charge sheet and filed the same in court. Accused was present in the court and he was correctly identified by witness.
8. Witness was cross examined by ld. Defence counsel wherein he stated that he did not remember the time when he reached to the spot. He could not tell whether any car was parked at the spot or not. That private car of SI Sandeep was present at the spot when he reached there. However, he could not tell the FIR No.261/2019 State vs. Madan Lal @ Mintu Page No. 6 of 19 make of the same. The witness stated that he reached at the spot in his private vehicle.
He stated that seal of SI Sandeep was with him when he reached at the spot. The letters SK were written on the seal. He did not remember the time when he finally left the spot. Accused was sent to hospital from the spot for medical examination. He did not remember whether he went to hospital for medical examination. He did not remember the name of the police official who had taken the accused for medical examination. He alongwith ASI Vijay returned to PS. He did not serve any notice to the guard at the gate of Bharti College to join the investigation. Witness voluntarily stated that the gate of college was at a distance of 100-150 mtrs and the spot was very dark. Witness denied the suggestion that he alongwith ASI Vijay did not visit the spot or that the case property is falsely planted upon the accused at the instance of SI Sandeep. Witness denied the suggestion that seizure memo and sketch were not prepared at the spot by SI Sandeep or the same was prepared while sitting in PS. Witness denied the suggestion that the site plan was prepared by him at his own instance.
9. Prosecution examined SI Vijay Kumar as PW4. He deposed on similar lines as of PW2 SI Sandeep.
10. Witness was cross examined by ld. Defence counsel wherein he stated that he left the PS at around 7-8 PM in private car of SI Sandeep. He left the spot finally at around 4 AM. He FIR No.261/2019 State vs. Madan Lal @ Mintu Page No. 7 of 19 made separate departure entry at the time of leaving the PS. However, the same is not made part of record, therefore, he cannot mention the DD number. None of them from the police staff had got issued any weapon from PS before going to the spot. No separate seal handing over memo was prepared by SI Sandeep. Witness denied the suggestion that no such memo was prepared as no such seal was ever used. He left the spot with rukka at about 01 : 10 AM on foot and returned at around 02 : 15 AM. He alongwith SI Sandeep had apprehended the accused at first. SI Sandeep had conducted the personal search/jamatalashi of the accused. Witness voluntarily stated that it was not prepared by the SI Sandeep. SI Sandeep or he did not offer his personal search to the accused before conducting his search. No finger prints from the case property were uplited during investigation. SI Sandeep did not serve any notice to the guard at the gate of Bharti College to join the investigation. The gate of college was at a distance of 500 mtrs and the spot was very dark. He returned at the spot alongwith ASI Anil in his Car. He did not remember the model of the car. He left the spot alongwith ASI Anil in his Car. At that time accused was also accompnnied with them. He did not know when SI Sandeep left the spot. He did not remember who written the FIR particulars on seizure memo and sketch memo prepared by SI Sandeep. When he signed the seizure memo and sketch memo it was not having FIR particulars. Witness denied the suggestion that none of the police official visited the spot or that nothing was recovered from the accused or that the case property is planted upon the accused in FIR No.261/2019 State vs. Madan Lal @ Mintu Page No. 8 of 19 order to falsely prosecute him. His statement u/s 161 CrPC was recorded by the IO in PS.
11. Vide separate statement recorded u/s 294 Cr.P.C, accused had admitted the documents FSL Report no.10868/BAL/2188/19 Ex.P/A/1, Sanction under Section 39 Arms Act Ex.P/A/2 and FIR No.261/2019 Ex.P/A/3. Hence the above documents were ordered to be read in evidence without its formal proof.
12. No other witness was examined by prosecution and hence, PE was closed and matter was listed for statement of accused.
13. Statement of accused under Section 313 Cr.P.C. was recorded wherein the entire incriminating evidence was put to him. According to him, he has been falsely implicated in the present case. He was taken by the police official for basic inquiry and the weapon was falsely planted upon him. That he was made to sign on some blank papers and all the prosecution witnesses have deposed falsely against him. Accused chose not to lead any evidence in his defence and hence, the matter was put up for final arguments.
14. Final arguments were thereafter heard on behalf of State as well as the accused.
FIR No.261/2019 State vs. Madan Lal @ Mintu Page No. 9 of 1915. After hearing Sh.Amit Sehrawat, Learned Assistant Public Prosecutor for the state and Sh.Lalit Rana, Learned Counsel for the accused and having gone through the case file carefully and meticulously, it is observed by the court that it is the case of prosecution that on the fateful day accused was found in possession of one country made pistol with a live cartridge. The court is of the view that to prove the charge against the accused, the prosecution is required to prove the allegation beyond reasonable doubt.
16. The relevant portion of Arms Act is reproduced as under:
Section 25: Punishment for certain offences:
(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[***]
(c) bring 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 not be less than three years but which may extend to seven years and shall also be liable to fine.FIR No.261/2019 State vs. Madan Lal @ Mintu Page No. 10 of 19
17. As per the prosecution case, the sketch memo of the weapon i.e. Ex.PW2/A and seizure memo Ex.PW2/B were prepared before the preparation of the rukka. However, the said documents contained a DD No.69A which has not been made part of the record. The prosecution has not explained the relevance of writing the aforesaid DD number on the sketch memo as well as on the seizure memo.
PW2 complainant/SI Sandeep stated in his evidence that after sealing the pullanda, he had handed over the seal to ASI Vijay. However, he admitted in his cross examination that no handing over memo was prepared by him. PW4 SI Vijay Kumar also admitted in his cross examination that no separate seal handing memo was prepared by SI Sandeep. In absence of the handing over memo, it cannot be said with certainty that the seal was handed over to any other independent person and therefore, the possibility of sample being tampered with cannot be ruled out. Reference may be made to the judgment of Subeg Singh v. State of Haryana, reported as 1992(3) RCR (Criminal) 596. In the judgment titled as Karambir v. State of Delhi reported as 1997 JCC 520, it has been held that absence of proof that the specimen impression of the seal was deposited with MHCM(M) along with case property results in miscarriage of justice and is fatal to the prosecution.
18. In the present matter, it was stated by PW2 SI Sandeep and PW4 SI Vijay Kumar that they had gone out for the purpose of investigation in FIR no.256/2019. However, the prosecution FIR No.261/2019 State vs. Madan Lal @ Mintu Page No. 11 of 19 has not placed any departure entry to show that the complainant alongwith other police official had left the police station. It is also interesting to be noted that SI Sandeep had gone out for the investigation in FIR No.256/2019 and he was not even the investigating officer of that case. This Court has failed to comprehend the presence of complainant at the spot.
19. The present case totally rests upon the alleged recovery of the case property from the possession of the accused at the relevant time. When the public persons were not joined the investigation, then in such case, the arrival and departure entries of the police official i.e. PW2 SI Sandeep and PW4 SI Vijay Kumar who were allegedly present at the spot and apprehended the accused with the case property is a vital piece of evidence have also not been proved on record. The police officials are under the statutory duty to mark their departure and arrival in the register kept for the purpose as per PPR Rules. It is apposite at this juncture to reproduce Chapter 22 Rule 49 of Punjab Police Rules, 1934, provides as under :
"22.49 Matters to be entered in Register no.II - The following matters shall, amongst others, be entered :
(c) The hour of arrival and departure on duty at or from a police station of all enrolled police officers of whatever rank, whether posted at the Police Station or elsewhere with the statement of the nature of their duty. This entry shall be made FIR No.261/2019 State vs. Madan Lal @ Mintu Page No. 12 of 19 immediately on arrival or prior to the departure of the officer concerned and shall be attested by the letter personally by signature or seal.
20. Ld. APP for the State has asserted that the ld. Counsel for accused has not asked any questions relating to the non- production of arrival and departure entries and as such, the prosecution is not obliged to prove the said entries. In the present case, Sh.Lalit Rana, ld. Counsel for accused had specifically asked questions about the departure entries made by the police official before leaving the Police Station but no satisfactory answer was given by any of the police officials. It was open to Ld. Assistant Public Prosecutor to re-examine the witness on this point. The prosecution witness could have also refreshed their memories before the evidence. Thus, it becomes more important and imcumbent in the present case that the arrival and departure entries be proved to corroborate the fact of presence of PW2 SI Sandeep and PW4 SI Vijay Kumar on the spot. More specifically, proving of the arrival and departure entry of the police personnel who apprehended the accused person with case property appears indispensable, as the instant case rests completely on the alleged recovery.
21. There are several other contradictions in the testimony of the witnesses. It is the case of the prosecution that PW2 SI Sandeep and PW4 SI Vijay had left the police station together. In cross examination of PW2, he submitted that he left the police FIR No.261/2019 State vs. Madan Lal @ Mintu Page No. 13 of 19 station at around 12 PM but PW4 stated that they left the police station at round 7-8 PM.
In cross examination of PW2, he stated that ASI Vijay left the spot with rukka at around 01 : 30 AM in private car of SI Sandeep and returned at around 3 PM in the same car. However, PW4 SI Vijay in his cross examination stated that he left the spot at around 01 : 10 PM on foot and returned at around 02 : 15 AM alongwith ASI Anil in his car.
22. It is also come on record that the incident took place at a distance of 100 mtrs from Bharti College and it has been admitted by the witnesses that guard was on duty at the gate. Despite that, the worthy police official did not bother to join the guard in the investigation.
23. In case law reported as "Anoop Joshi Vs. State" 1992 (2) C.C. Cases 314 (HC), High Court of Delhi had observed as under:-
"18. It is repeatedly laid down by this Court in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evidence that no such sincere efforts have been made, particularly when we find that shops were open and one or two shop-keepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the shopkeepers had declined to join the raiding party, the police FIR No.261/2019 State vs. Madan Lal @ Mintu Page No. 14 of 19 could have later on taken legal action against such shopkeepers because they could not have escaped the rigours of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC".
24. In a case law reported as "Roop Chand Vs. The State of Haryana" 1999 (1) C.L.R. 69, the Punjab & Haryana High Court held as under:
"3. I have heard the learned counsel for the parties and gone through the evidence with their help. The recovery of illicit liquor was effected from the possession of the petitioner during noon time and it is in the evidence of the prosecution witnesses that some witnesses from the public were available and they were asked to join the investigation. The explanation furnished by the prosecution is that the independent witnesses were asked to join the investigation but they refused to to so on the ground that their joining will result into enmity between them and the petitioner".
"4. It is well settled principle of the law that the Investigating agency should join independent witnesses at the time of recovery of contraband articles, if they are available and their failure to do so in such a situation casts a shadow of doubt on the prosecution case. In the present case also admittedly the independent witnesses were available at the time of recovery but they refused to associate themselves in the investigation. This FIR No.261/2019 State vs. Madan Lal @ Mintu Page No. 15 of 19 explanation does not inspire confidence because the police officials who are the only witnesses examined in the case have not given the names and addresses of the persons contacted to join it is a very common excuse that the witnesses from the public refused to join the investigation. A police officer conducting investigation of a crime is entitled to ask anybody to join the investigation and on refusal by a person from the public the Investigating Officer can take action against such a person under the law. Had it been a fact that the witnesses from the public had refused to join the investigation, the Investigating Officer must have proceeded against them under the relevant provision of law. The failure to do so by the police officer is suggestive of the fact that the explanation for non-joining the witnesses from the public is an after thought and is not worthy of credence. All these facts taken together make the prosecution case highly doubtful".
25. Non joining of public witnesses despite availability casts a doubt on the fairness of the investigation. Reliance is placed on paragraph 6 of the judgment in Pawan Kumar v. The 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 FIR No.261/2019 State vs. Madan Lal @ Mintu Page No. 16 of 19 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 and this, by itself, is a circumstance throwing doubt on the arrest or the recovery of the knife from the person of the accused."
26. This Court is, however, conscious that the prosecution case cannot be thrown out or doubted on the sole ground of non- joining of public witnesses as public witnesses keep themselves away from the Court unless it is inevitable, as has been held in Appabhai and another v. State of Gujarat, AIR 1988 SC 696. However, in the present case, it is not only the absence of public witnesses which raises a doubt on the prosecution but there are FIR No.261/2019 State vs. Madan Lal @ Mintu Page No. 17 of 19 other circumstances too, as discussed hereinafter, which raise suscpicion over the prosecution version.
27. Further, the prosecution has examined PW1 HC Sandeep who had deposited the case property in FSL, Rohini vide RC No.193/21/19 for examination. Perusal of copy of acknowledgment receipt Ex.PW1/B shows that the same was handed over to the FSL on 23.10.2019. the incident pertains to 14.07.2019 and the case property was sent to FSL after a time gap of 3 months and 9 days. In absence of handing over memo, it appears that the case property remained in possession of the complainant/IO for 3 months and 9 days.
28. It is dogmatic in criminal jurisprudence that the prosecution is under the obligation to prove the case against accused beyond reasonable doubt. The standard of proof is not preponderance of probabilities but proof beyond reasonable doubt on the basis of cogent, convincing and reliable evidence. It is well settled proposition that benefit of doubt goes in favour of accused.
29. Considering the facts that no independent witness was cited or examined, DD entries not proved, seal was not handed over to independent person, case property remained in possession of the complainant for 3 months and 9 days, appearance of FIR, case particulars on the seizure memo and sketch memo and conducting of investigation by the complainant FIR No.261/2019 State vs. Madan Lal @ Mintu Page No. 18 of 19 himself, when kept in juxtaposition to each other, shrouds clouds of suspicion over the prosecution version.
30. Thus, in view of the foregoing analysis, this Court is of the considered opinion that the benefit of doubt ought to be granted to the accused, who is entitled to be exonerated of the charges against him in the present case. The accused Madan Lal is hereby acquitted of the offence punishable under Section 25 of Arms Act.
Pronounced in open Court on this 8th day of December, 2023. This judgment consists of 19 pages and each pages are signed by the undersigned.
(BHARTI BENIWAL) Metropolitan Magistrate-11 South West District, Dwarka Courts New Delhi FIR No.261/2019 State vs. Madan Lal @ Mintu Page No. 19 of 19