Delhi District Court
Kharak Singh @ Manoj vs The State (Govt. Of Nct Of Delhi) on 22 April, 2015
IN THE COURT OF SH. SANJAY SHARMA : SPECIAL JUDGE (NDPS) /
ADDL. SESSIONS JUDGE, (NORTH-EAST): KARKARDOOMA COURTS, DELHI
Criminal Appeal No. 09/2012
Case ID No. 02402R0354942012
Kharak Singh @ Manoj
S/o Sh. Anoop Singh
R/o Village Raghunathpur,
P.S. Masoori, District Ghaziabad, U.P. ................Appellant
VERSUS
The State (Govt. of NCT of Delhi)
................Respondent
Date of institution : 17.12.2012
Date of reserving order : 21.04.2015
Date of order : 22.04.2015
ORDER
1. The appellant has challenged judgment and order on sentenced dated 04.10.2012 in FIR No. 123/11 under section 25 of the Arms Act, 1959 (Hereinafter referred as 'the Act') whereby he has been convicted for committing offence under section 25 (1-A) of the Act and sentenced to Rigorous Imprisonment for 5 years and fine of Rs. 5000/- and in the event of default, further Rigorous Imprisonment for 6 months.
2. The case of the prosecution was that on 08.05.2011 at about 12.45 p.m., PW-2 HC Pawan Kumar and PW-3 Ct. Sajjad Ali received a secret information in the office of Anti-Robbery Cell (ARC), Shakarpur that one person namely Kharak Singh, a resident of a village in Dasna, Ghaziabad, U.P. was indulging in illicit supply of arms and ammunition and at about 2.00 p.m.-3.00 p.m., he would come at Gokalpuri Flyover, near Ambedkar College, Wazirabad Road, Delhi for supply.
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3. Secret informer informed that if raided, the appellant could be apprehended while supplying illicit arms and ammunition. PW-2 HC Pawan Kumar conveyed the information to Insp. Manoj Pant, ARC, Shakarpur, Delhi. He produced the secret informer before Insp. Manoj Pant who made requisite enquiry from the secret informer and satisfied himself about the credibility of information. Insp. Manoj Pant discussed the secret information with senior officers. He instructed PW-2 HC Pawan Kumar to constitute a raiding party and take appropriate action. PW-2 HC Pawan Kumar formed a raiding party comprising himself, HC Dharmender, PW-3 Ct. Sajjad Ali, PW-4 Ct. Ravinder, PW-5 Ct. Satpal and the secret informer. He made departure entry in the rojnamcha register vide DD No. 8 Ex.PW2/G. At about 1.15 p.m., the raiding team departed from their office in two private vehicles.
4. On the way, PW-2 HC Pawan Kumar made request to 5-6 passers-by at Maujpur Chowk and at the place of information after disclosing his identity and the secret information to join the raiding team but they proceeded on their way after expressing genuine excuses without disclosing their names and addresses. They could not be served with a legal notice for want of time.
5. At about 2.00 p.m., the raiding team reached at the place of information. PW-2 HC Pawan Kumar briefed the members of the raiding team. He positioned the raiding team around the place of information and waited for the appellant.
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6. At about 2.30 p.m., the appellant was seen coming on foot with a black colour bag on his shoulder from the side of Loni Flyover. The secret informer identified him from a distance of 20-25 meter as Kharak Singh and left the spot. The appellant reached at the gate of Ambedkar College and started looking stealthily around him. The appellant was waiting for someone. After 10-15 minutes, the appellant started moving away from there. PW-2 HC Pawan Kumar with the assistance of PW-3 Ct. Sajjad Ali and PW-4 Ct. Ravinder apprehended him alongwith the said bag. PW-2 HC Pawan Kumar disclosed the identity of the members of the raiding team and secret information. On enquiry, the appellant disclosed his name and address as Kharak Singh @ Manoj S/o Sh. Anoop Singh R/o Village Raghunath Pur, PS Masoori, District Ghaziabad, U.P. age 33 years. (The appellant herein)
7. PW-2 HC Pawan Kumar carried out cursory search of the appellant. He removed the said black colour bag from the waist of the appellant. He opened the said bag and checked it. It contained one yellow and black colour printed heavy potly (parcel). It was opened and checked. It contained large quantity of country made pistols and cartridges. The recovered arms and ammunition was counted. It contained five 315 bore country made pistols and three 12 bore country made pistols. All the country made pistols were found loaded. They were unloaded. They contained 20 live 315 bore cartridges and 18 live 12 bore cartridges.
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8. PW-2 HC Pawan Kumar prepared sketches of the recovered contraband after taking measurements thereof. They were given mark A1 to A11. The sketches of 315 bore country made pistols are Ex.PW2/A1 to Ex.PW2/A5 which were given mark A1 to A5. The sketches of 12 bore country made pistols are Ex.PW2/B1 to Ex.PW2/B3 which were given mark A6 to A8. Sketches of 8 live cartridges of 12 bore is Ex.PW2/C1 and sketches of 10 cartridges of 12 bore is Ex.PW2/C2 which were given mark A9 and A10 respectively. Sketches of 20 live cartridges of 315 bore is Ex.PW2/D1 and Ex.PW2/D2 which were given mark A11. The mark A1 to A11 were kept in plastic boxes and the said boxes were closed with white colour tape and sealed with the seal having impression 'RSS'. The recovered printed bed-sheet was kept in the said black colour bag and it was given mark A12 and converted into a cloth parcel which was sealed with the seal having impression 'RSS'. FSL form was filled and seal after use was handed over to PW-3 Ct. Sajjad Ali. PW-2 HC Pawan Kumar seized the entire case property vide seizure memo Ex.PW2/E.
9. PW-2 HC Pawan Kumar prepared tehrir for registration of a case under section 25 of the Arms Act, 1959 and sent it to police station Crime Branch, Nehru Place, New Delhi through PW-4 Ct. Ravinder at about 6.45 p.m.
10. At about 07.30 p.m., PW-1 HC Dalveer Singh got recorded the case FIR Ex.PW1/A on receipt of rukka from PW-2 HC Pawan Kumar through PW-4 Ct. Ravinder.
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11. After registration of FIR, PW-1 HC Dalveer Singh made an endorsement Ex.PW1/B on the original tehrir and further investigation of the case was assigned to PW-10 ASI Bhim Singh. He sent the original tehrir and a copy of FIR to PW-10 ASI Bhim Singh through PW-4 Ct. Ravinder.
12. At about 07.15 p.m., PW-10 ASI Bhim Singh received information regarding apprehension of the appellant and assignment of investigation of this case. He recorded DD No. 11A Ex.PW10/A in that regard. He reached at the place of occurrence where he met PW-2 HC Pawan Kumar. He collected sketches of the arms and ammunition, seizure memo, sealed parcels and form FSL from PW-2 HC Pawan Kumar and prepared site plan Ex.PW2/F at his instance.
13. On the spot, PW-10 ASI Bhim Singh received a copy of FIR and original tehrir from PW-4 Ct. Ravinder. He mentioned FIR number on the documents and site plan. He recorded statement of PW-2 HC Pawan Kumar under section 161 of the Cr.P.C. He arrested the appellant vide arrest memo Ex.PW3/A and conducted his personal search vide personal search memo vide Ex.PW3/B. In the personal search of the appellant, a mobile phone make Reliance and cash amount of Rs.130/- was recovered. He recorded disclosure statement Ex.PW10/B of the appellant. He deposited the case property in malkhana. He made investigation regarding the source of the weapons i.e. Gulzar but he could not be traced. He sent the case property to FSL for forensic examination.
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14. According to FSL Report Ex.PW7/A, the case properties were arms and ammunition under the Arms Act, 1959. PW-7 HC Dharmender obtained sanction under section 39 of the Arms Act Ex.PW8/A from the competent authority and thereafter, he submitted the charge-sheet against the appellant under section 25 of the Arms Act.
15. The appellant was charged for committing offence under section 25 of the Arms Act to which he pleaded not guilty and claimed trial.
16. During the trial, the prosecution examined 10 witnesses as under:-
Name of the witnesses Description of the witnesses PW-1 HC Dalveer Singh Duty Officer, PS Crime Branch, Nehru Place PW-2 HC Pawan Kumar In-charge, Raiding Team PW-3 Ct. Sajjad Ali Recovery witness PW-4 Ct. Ravinder Recovery witness PW-5 Ct. Satpal Recovery witness/Parcel depositor PW-6 HC Jag Narayan In-charge, Malkhana PW-7 HC Dharmender IInd Investigating Officer PW-8 DCP Sanjay Bhatia Competent Authority PW-9 Ct. Deepak Parcel collector PW-10 ASI Bhim Singh Investigating Officer
17. Incriminating circumstances appearing against the appellant were put under section 313 Cr.P.C. He pleaded innocence and claimed false implication.
18. The appellant did not examine any witness in defence evidence.
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19. The appellant has challenged the impugned judgment on the following grounds:
(a) The impugned judgment is vitiated from non-
application of mind and it was passed on conjunctures and surmises and a mechanical manner without application of judicial mind;
(b) Ld. trial Court has not considered the arguments submitted on behalf of the appellant;
(c) Ld. trial Court has not considered that the prosecution has failed to connect the alleged country made pistols and cartridges with the appellant;
(d) Ld. trial Court has not considered material discrepancies, inconsistencies, infirmities and contradictions in the testimony of prosecution witnesses;
(e) No independent witness was associated despite the fact that the spot was located on the main gate of a college and it was a busy area;
(f) There was unexplained delay of 5 hours in registration of FIR;
(g) Intimation of the incident was not given to the police station Gokal Puri which was at a distance of 1 kilometer from the spot;
(h) HC Dharmender who was one of the members of the raiding team was not examined;
(i) Ct. Satpal No. 218 appeared as PW-5 did not depose anything about the raid. He merely deposed about the fact that he had taken the parcels to FSL on 16.05.2011.
20. I have heard arguments of Sh. Harinder Chowdhary, Amicus Curiae for the appellant Kharak Singh @ Manoj and Sh. I.H. Siddiqui, Ld. Addl. PP for the State and carefully considered the material on record.
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21. Sh. Harinder Chowdhary, Amicus Curiae for the appellant submitted that no independent witness was associated during the search and seizure proceedings despite availability. He submitted that no guard or any official was associated from Ambedkar College during recovery proceedings. He submitted that no investigation was done regarding the source of weapons and destination of weapons. He submitted that there was delay of about 5 hours in the registration of FIR. He submitted that mobile phone recovered from the appellant was not seized. He submitted that call details record of the mobile phone of the appellant were not obtained either to trace the source and destination of the weapons nor to fix the location of the appellant. He submitted that PW-5 HC Satpal who was a member of the raiding team has not deposed anything about the alleged raid and recovery. He submitted that the appellant cannot be convicted on the basis of depositions of the police officials in the absence of corroboration from any independent witness.
22. Sh. I.H. Siddiqui, Ld. Addl. PP for the State submitted that no exception can be taken to the depositions of the police officials. He submitted that efforts were made to associate independent persons but no one agreed to join. He submitted that the depositions of the members of the raiding team are consistent and inspire confidence. He submitted that public is generally averse to become witness in criminal cases so as to avoid several visits to the Court and police station.
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23. Sh. I.H. Siddiqui, Ld. Addl. PP for the State further submitted that police officials are competent witnesses and their testimony cannot be discarded on this ground. He submitted that there is no infirmity in the depositions of the members of the raiding team. He submitted that the impugned judgment is a reasoned judgment and it does not warrant any interference by this Court.
24. Before appreciating the evidence on record, it would be appropriate to refer the relevant portion of the impugned judgment, as under:-
"Even otherwise, it is by now well settled that evidence of the official witnesses has to be weighed in the same scale as any other testimony. It is significant to note that there is nothing on the record to show that the official witnesses examined in the present case to prove the search and recovery had any animus or hostility against the accused. In 'Thakur Singh V. State of Punjab' 1996 CRI L.J. 3606 it was held that conviction on basis of evidence of police officials cannot be set aside, where police officials having no hostility towards the accused. Presumption that person acts honestly applies also to police officials.
In the present case, a huge recovery of five country made kattas of .315 bore and three country made kattas of 12 bore was effected from the accused besides the recovery of 38 cartridges has been effected from the possession of the accused. It is most unbelievable that such huge recovery can be planted upon the accused specifically when accused has failed to lead any evidence in his defence and has also failed to bring any material on record by way of cross-examination to show any hostility or enmity towards him for false implication. Mere taking of plea of false implication in itself is not sufficient when there is nothing on record as to why accused would be falsely implicated with such huge recovery. The recovery of five country made kattas of .315 bore and Cr. App. No. 09/2012 Kharak Singh @ Manoj Vs. State Page No. 9 of 27 three country made kattas of 12 bore was effected from the accused besides the recovery of 38 cartridges is duly corroborated by the ballistic report Ex.PW7/A as weapon were found to be in working order. Thus, seeing from any angle, I find that prosecution has been able to establish the charge against the accused from all corner. Therefore, accused is convicted for the offence under section 25 (1-A) Arms Act."
25. In 'Ajmer Singh v State of Haryana', (2010) 3 SCC 746, it was contended that the evidence of the official witness cannot be relied upon as their testimony had not been corroborated by any independent witness. The Hon'ble Supreme Court, rejecting the contention, held as under:-
"16.....It is normally expected that there should be independent evidence to support the case of the prosecution. However, it is not an inviolable rule. Therefore, in the peculiar circumstances of this case, we are satisfied that it would be travesty of justice, if the appellant is acquitted merely because no independent witness has been produced, we cannot forget that it may not be possible to find independent witness at all places, at all times. The obligation to take public witnesses is not absolute, if after making efforts which the Court considered in the circumstances of the case reasonable, the police officer is not able to get public witnesses to associate with the raid or arrest of the culprit, the arrest and the recovery made would not be necessarily vitiated. The Court will have to appreciate the relevant evidence and will have to determine whether the evidence of the police officer was believable after taking due care and caution in evaluating their evidence."
26. Issues arising for consideration are that whether an independent witness was available and whether adequate efforts were made to associate an independent witness to search, seizure and arrest proceedings.
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27. The case of the prosecution was that PW-2 HC Pawan Kumar departed from his office at 1.15 p.m. It was further the case of the prosecution that PW-2 HC Pawan Kumar with the raiding team and secret informer reached at the spot at Ambedkar College, near Gokalpuri Flyover, Delhi at 2.00 p.m. It was further case of the prosecution that the appellant was seen coming from the side of Loni Flyover at 2.30 p.m. It means that PW-2 HC Pawan Kumar had 30 minutes to associate an independent witness.
28. Regarding the efforts made by PW-2 HC Pawan Kumar to associate an independent witness, he deposed as under:-
".....At Maujpur Chowk, 5-6 passers-by were asked to join the raiding party but none agreed. After reaching at the spot 5-6 passers-by were also asked to join the raiding party after giving our introduction but all of them also went away without disclosing their names and addresses and telling their excuses. The staff was briefed and after parking the vehicles in front of the Ambedkar College on Road. I alongwith secret informer, Ct. Sajjad, Ct. Ravinder took the position at corner of the gali near main gate Ambedkar College. HC Dharmender and Ct. Satpal had conducted nakabandi from Ambedkar College to Gokal Puri flyover. At about 2.30 p.m., one person was coming on foot from Loni Flyover side with a black colour carry bag hanging on his back and the secret informer went away after pointing out the accused as Kharag Singh. The accused stood at Ambedkar College after passing in front of us....."
29. In his cross-examination, he deposed as under:-
"The public persons were tried to join the investigation firstly at Maujpur chowk. No notice was served upon the public persons who refused to join the investigation and their names were also could not be noted down due to paucity of time.....We reached at Cr. App. No. 09/2012 Kharak Singh @ Manoj Vs. State Page No. 11 of 27 the spot at about 2.00 p.m. Very few persons used to pass in front of the college. Public persons were asked to join the investigation but none agreed....."
30. It is therefore, evident that PW-2 HC Pawan Kumar had sufficient time at his disposal to associate an independent witness. It is further evident that the public persons were available at the spot. Besides a statement that he made efforts to associate passers-by at Maujpur Chowk and at the spot, there is nothing on record to show that reasonable efforts were made to associate public persons. It is further evident that the place of information was located just in front of the main gate of the Ambedkar College. PW-2 HC Pawan Kumar with his raiding team remained present there for about 30 minutes. He did not make any effort to associate any guard/watchman or official/employee of Ambedkar College. PW-2 HC Pawan Kumar preferred stray passers-by over the watchman/guard or official/employee Ambedkar College. It casts doubt on the genuineness of the efforts made by PW-2 HC Pawan Kumar.
31. In Radhey Shyam v State (NCT of Delhi) Criminal Appeal No. 302/2008 decided on 25.04.2011; Hon'ble Delhi High Court observed as under:-
"14......From this, it is evident that Investigating Officer has not made sincere efforts to join the independent witness with permanent address to the raid. It is difficult to accept that a sincere and responsible Investigating Officer would prefer stray persons by over the nearby shopkeepers having permanent address, while investigating such a serious case. No doubt, the failure of the Investigating Officer to join independent witnesses, however, by itself cannot be taken as a circumstance to reject the testimony of the police officials. But, this calls for a cautious approach on the part of the Court while analysing the evidence."
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32. In Mohd. Irfan v Directorate of Revenue Intelligence, Crl. Appeal No. 783/12 decided on 8th November, 2013; Hon'ble Delhi High Court has observed as under:-
"3......Apparently, the complainant's version remained uncorroborated from independent sources/witnesses. Joining of independent public witnesses is not a formality to be performed and sincere attempts were required to be made by the prosecution before apprehension of the accused to procure the public witnesses whose identity /particulars were not doubtful.
4......The vendors/stall owners on the platform No. 8/9 were also not associated in any proceedings...... Except the bald statement of the complainant, there is no evidence worth the name to infer that the appellant
- Mohd. Irfan was apprehended in the manner and at the place described by him. Adverse inference is to be drawn against the prosecution for not examining the independent public witnesses whose existence itself was in doubt."
33. In Inder Dev Yadav v State of NCT, Crl. Appeal No. 545/2011 decided on 01.05.2014; Delhi High Court observed as under:
"4. The appellants' conviction is based upon the testimonies of police personnel/officials alone. No independent public witness was associated at any stage of the investigation. No reasonable or plausible explanation has been offered by SI Bhasker Sharma, In-charge of raiding team and SI Sanjay who took over the investigation subsequently for not associating any public witness despite having ample time and opportunity. The proceedings were conducted at the spot till around 12.00 (night). Non-joining of independent witness to the recovery creates serious doubt about the genuineness of the prosecution case. It is not rule of law but of prudence that public witnesses should be joined. This is desired to lend authenticity and credibility to the search and the recovery. Of course, it is not an absolute rule. The evidence of police witnesses without slightest independent evidence requires to pursue with great care and caution."
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34. In Om Prakash v State, Crl. Appeal No. 453/2014 decided on 23.05.2014; Hon'ble High Court of Delhi observed as under:-
"70. As regards the absence of independent witnesses, PWs-1 and 6 have contradicted PW-10 and have stated that no attempt had been made to associate any independent witnesses at the spot. It is not disputed that the place of alleged apprehension of the Appellant on 9th July, 2011 was crowded. It was outside a temple at around 8.30 p.m., when aarti and pooja usually takes place. In the circumstances, the failure to even record the names of the public witnesses who allegedly refused to join the raid, creates a reasonable doubt on the truthfulness of the prosecution version, especially that of PW-10. The trial Court has observed: "So it is held that public witnesses were definitely available at the spot in large numbers because recovery was effected from the bank of outer ring road but despite it not a single public witness was joined."
71. Routinely, no attempt is being made by the police in such cases to associate public witnesses. In the absence of clear evidence to show that a sincere effort was made, the Court should not simply accept the proposition that generally in such cases no member of the public comes forward to help the prosecution. In Ajmer Singh vs. State of Haryana (2010) 3 SCC 746, it was held that in such circumstances the Court will have to determine whether the evidence of the police officer "was believable after taking due care and caution in evaluating their evidence". In the present case, given the shoddy investigation, the failure to associate any independent witness constituted an additional factor to disbelieve the case of the prosecution."
35. On careful examination of the evidence, oral and documentary, on record, it is evident that the case of the prosecution suffers from glaring discrepancies, inconsistencies, omissions and contradictions.
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36. The case of the prosecution was that on 08.05.2011 at 12.45 p.m., PW-2 HC Pawan Kumar and PW-3 Ct. Sajjad Ali received secret information in their office at Crime Branch, Shakarpur, Delhi that the accused would be reaching near Ambedkar College, near Gokal Puri Flyover, Wazirabad Road between 2.00 p.m. to 3.00 p.m. to supply huge quantity of arms and ammunition and thereafter, PW-2 HC Pawan Kumar conveyed the secret information to Insp. Manoj Pant, Anti- Robbery Cell, Shakarpur, Delhi and produced the secret informer before him who discussed the matter with his senior officers and directed PW-2 HC Pawan Kumar to form a raiding team and conduct a raid. However, Insp. Manoj Pant has not been examined by the prosecution. He was not cited as a prosecution witness. No explanation was put forth for his non- examination. In his examination-in-chief, PW-2 HC Pawan Kumar has not deposed that he had produced the secret informer before Insp. Manoj Pant and he made enquiry from the secret informer. PW-3 Ct. Sajjad Ali also maintained silence on this aspect.
37. The case of the prosecution was that PW-2 HC Pawan Kumar with PW-3 Ct. Sajjad Ali, PW-4 Ravinder, PW-5 Ct. Satpal and PW-7 HC Dharmender departed from their office at Crime Branch, Shakarpur in their private vehicles at 1.15 p.m. on 08.05.2011 vide departure entry DD No. 8 Ex.PW2/G. In his deposition, PW-2 HC Pawan Kumar stated as under:-
Cr. App. No. 09/2012 Kharak Singh @ Manoj Vs. State Page No. 15 of 27 ".....The private vehicles were of mine I-10 number DL 8CT 0524 and the other was black colour I-10 of Ct. Ravinder. I do not remember its registration number. I was driving my I-10 car and the other was driven by Ct. Ravinder....."
38. PW-4 Ct. Ravinder deposed as under:-
".....The private vehicles were of HC Pawan I-10 and the other was black colour I-10 of myself. The registration No. of my I-10 car is DL 7CL 2457. HC Pawan was driving his I-10 car and I was driving my I-10 car....."
39. It is evident that the registration number of the said vehicles are not mentioned in the DD No. 8 Ex.PW2/G. It is further evident that the fact that raiding team departed in the vehicles i.e. I-10 belonging to PW-2 HC Pawan Kumar and PW-4 Ct. Ravinder is not mentioned in the DD No. 8 Ex.PW2/G.
40. It is an admitted case of the prosecution that the PW-2 HC Pawan Kumar had received a secret information that the appellant would be coming near Ambedkar College, near Gokalpuri Flyover, Wazirabad Road, Delhi to supply huge quantity of arms and ammunition. It is natural that the raiding team would be visiting the spot alongwith their arms and ammunition.
41. PW-2 HC Pawan Kumar, the In-charge of the raiding team deposed as under:-
".....I was having my pistol with me alongwith my IO bag. Ct. Ravinder and Ct. Sajjad were also having pistols....."
42. However, PW-3 Ct. Sajjad deposed as under:-
".....I do not remember if I was having any weapon with me or not....."
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43. PW-4 Ct. Ravinder deposed as under:-
".....I do not remember if I was having any weapon with me or not....."
44. The fact that PW-2 HC Pawan Kumar, PW-3 Ct. Sajjad Ali and PW-4 Ct. Ravinder had taken weapons with them is also not mentioned in the DD No. 8 Ex.PW2/G. There is no record that the arms and ammunition carried by them was issued from the malkhana on that day.
45. It was an admitted case of the prosecution that the appellant was expected to be carrying huge quantity of arms and ammunition. It was natural that PW-2 HC Pawan Kumar, the In-charge of the raiding team would be carrying sealing material with him in his IO bag. PW-2 HC Pawan Kumar deposed as under:-
".....The cloth/tape and seal were in my IO bag....."
46. PW-2 HC Pawan Kumar has not deposed that the plastic boxes in which 8 country made pistols and 38 cartridges were kept and sealed was brought by PW-3 Ct. Sajjad Ali from a feriwala (hawker).
47. PW-4 Ct. Ravinder deposed as under:-
"The entire case property except the black coloured bag was kept in transparent small plastic boxes which was brought by Ct. Sajjad Ali from a feriwala and sealed with the seal of RSS after closing them with the white colour tape....."
48. PW-3 Ct. Sajjad Ali deposed as under:-
"The entire case property except the black coloured bag was kept in transparent small plastic boxes which was brought by me from a feriwala and sealed with the seal of RSS after closing them with the white colour tape....."
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49. There is no explanation as to why the said feriwala has not been examined as a prosecution witness. There is no receipt regarding purchase of 11 plastic boxes is on record. Even there is no kacchi receipt regarding purchase of said 11 boxes. PW-3 Ct. Sajjad Ali has not stated the amount paid by him for purchasing the said 11 boxes to the said feriwala. There is no evidence on record that the amount spent by PW-3 Ct. Sajjad Ali for purchasing the 11 plastic boxes was got reimbursed from the department.
50. A perusal of DD No. 8 Ex.PW2/G shows that the fact that PW-2 HC Pawan Kumar carried his IO bag with him is not mentioned therein. There is no evidence on record that MHC (M) had issued IO bag to PW-2 HC Pawan Kumar on 08.05.2011.
51. The case of the prosecution was that PW-2 HC Pawan Kumar prepared rukka and sent it to the Duty Officer, Crime Branch, Nehru Place, New Delhi for registration of FIR through PW-4 Ct. Ravinder at 6.45 p.m. It was further case of the prosecution that PW-1 HC Dalveer Singh, Duty Officer recorded the FIR Ex.PW1/A and sent it to PW-10 ASI Bhim Singh through PW-4 Ct. Ravinder at the spot. However, in the meanwhile, PW-10 ASI Bhim Singh reached at the spot and conducted investigation.
52. According to PW-10 ASI Bhim Singh, he reached at the spot on receipt of information from PW-2 HC Pawan Kumar after making departure entry DD No. 11 ExPW10/A. Cr. App. No. 09/2012 Kharak Singh @ Manoj Vs. State Page No. 18 of 27
53. PW-10 ASI Bhim Singh deposed, on the aspect as to how he reached at the spot, as under:-
"On 08.05.2011, I was posted at ARC Crime Branch, Shakapur, Delhi. On that day, I had recorded DD No. 11 at about 7.15 p.m. after receiving information from HC Pawan in regard of apprehension of accused Kharag Singh @ Manoj with weapon and ammunition. I reached at the spot i.e. Wazirabad Road near Gokalpuri flyover Ambedkar College. Copy of DD No. 11A is Ex.PW10/A....."
54. A perusal of DD No. 11 Ex.PW10/A shows that at about 7.15 p.m. on 08.05.2011, PW-10 ASI Bhim Singh received an information at Narcotic Cell/ARC, Shakarpur, Delhi from PW-2 HC Pawan Kumar through telephone regarding apprehension of the appellant with arms and ammunition and assignment of investigation of the case to him. Thereafter, PW-10 ASI Bhim Singh proceeded to the spot at Ambedkar College, near Gokal Puri Flyover, Wazirabad Road.
55. However, testimony of PW-2 HC Pawan Kumar is conspicuously silent on this aspect.
56. It remained a mystery as to how PW-10 ASI Bhim Singh came to know about the entrustment of the investigation to him. PW-2 HC Pawan Kumar did not inform him, as he has not stated anything in this regard in his deposition. PW-1 HC Dalveer Singh, Duty Officer, PS Crime Branch, Nehru Place has also not deposed that he had given the said information to PW-10 ASI Bhim Singh. PW-2 HC Pawan Kumar in his cross- examination, deposed that information of apprehension of the appellant was given to Insp. Manoj Pant at 3.00 p.m. Cr. App. No. 09/2012 Kharak Singh @ Manoj Vs. State Page No. 19 of 27
57. According to PW-2 HC Pawan Kumar, PW-10 ASI Bhim Singh with Ct. Ravinder reached at the spot. Relevant portion of his deposition is as under:-
"Thereafter, I prepared the rukka and got the case registered through Ct. Ravinder who came back at the spot alongwith carbon copy of FIR and original rukka and ASI Bhim Singh....."
58. In his cross-examination, PW-2 HC Pawan Kumar deposed as under:-
"Rukka was prepared at about 6.45 p.m. FIR was got registered through Ct. Ravinder who came back at the spot at about 9.30-9.45 p.m....."
59. PW-3 Ct. Sajjad Ali, the recovery witness deposed as under:-
"Thereafter, HC Pawan prepared the rukka and got the case registered through Ct. Ravinder who came back at the spot alongwith carbon copy of FIR and original rukka and ASI Bhim Singh....."
60. PW-4 Ct. Ravinder who had taken the rukka to PS Crime Branch, Nehru Place, New Delhi is the material witness. He deposed as under:-
"Thereafter, HC Pawan prepared the rukka and got the case registered through me and I came back at the spot alongwith carbon copy of FIR and original rukka and ASI Bhim Singh...."
61. In his cross-examination, PW-4 Ct. Ravinder deposed as under:-
".....Rukka was given to me and I returned back at about 9.30 p.m. at the spot....."
62. It is evident from perusal of the depositions, as stated above that PW-10 ASI Bhim Singh reached at the spot with PW-4 Ct. Ravinder at about 9.30 p.m. Cr. App. No. 09/2012 Kharak Singh @ Manoj Vs. State Page No. 20 of 27
63. However, PW-10 ASI Bhim Singh has contradicted PW-2 HC Pawan Kumar, PW-3 Ct. Sajjad Ali and PW-4 Ct. Ravinder on this aspect. According to him, he reached at the spot alone on his motorcycle at about 8.00 p.m. to 8.15 p.m. and PW-4 Ct. Ravinder handed him over the original rukka and a copy of FIR at the spot at about 9.30 p.m. There is no explanation as to why PW-2 HC Pawan Kumar, PW-3 Ct. Sajjad Ali and PW-4 Ct. Ravinder have made false statement that PW-10 ASI Bhim Singh with PW-4 Ct. Ravinder reached at the spot at about 9.30 p.m. In order to dispel any doubt on this aspect, it would be appropriate to have a glance of the depositions of PW-10 ASI Bhim Singh as under:-
".....Ct. Ravinder came at the spot after registration of FIR at PS Crime Branch, Nehru Place and handed over the carbon copy of FIR with original rukka to me....."
In his cross-examination, PW-10 ASI Bhim Singh stated as under:-
"After receiving the information from HC Pawan Kumar within 45 minutes-1 hour I reached at the spot by my own motorcycle. No one accompanied me.....Ct. Ravinder who had got registered the FIR had reached at the spot at 9.30 p.m....."
64. According to PW-2 HC Pawan Kumar, he did the writing work at the spot under mercury light. Relevant portion of the deposition of PW-2 HC Pawan Kumar is as under:-
"The writing work was done while sitting on the footpath near Ambedkar College in mercury light....."
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65. The case of the prosecution was that the appellant was apprehended at about 2.30 p.m. on 08.05.2011 and the rukka was prepared at about 6.45 p.m. It means the sealing of the case property, preparation of the seizure memos etc. and rukka was completed by 6.45 p.m. In the month of May, the sunlight is available till 7.00 p.m. and as such, there was no necessity for PW-2 HC Pawan Kumar to prepare the documents under the mercury light. PW-2 HC Pawan Kumar has made false statement in this regard.
66. Moreover, no mercury light is shown in the site plan Ex.PW2/F. The footpath/the place where PW-2 HC Pawan Kumar prepared the document is also not shown in the site plan. In the site plan, an office of the Jal Board and Godown of a gas agency is shown. However, no member of the recovery deposed anything about the presence of the said offices in their statements. The site plan Ex.PW2/F appears to be a false document.
67. According to PW-2 HC Pawan Kumar, he had filled form FSL at the spot. However, PW-6 HC Jag Narayan, In- charge, malkhana has not stated anything regarding deposit of FSL form in the malkhana. A copy of register No. 19 containing entry No. 108/11 Ex.PW6/A does not make mention of the deposit of form FSL in the malkhana. It merely reproduced the contents of the seizure memo. Acknowledgement receipt issued by FSL, Rohini merely mentions the receipt of 11 sealed parcels. It is silent about the deposit of form FSL.
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68. PW-2 HC Pawan Kumar handed over the seal after use to PW-3 Ct. Sajjad Ali at the spot. However, PW-2 HC Pawan Kumar and PW-3 Ct. Sajjad Ali have not stated anything about the return of the seal.
69. Admittedly, PW-2 HC Pawan Kumar used a seal having impression 'RSS'. He has not stated anything as to from where he had arranged the said seal.
70. It is an admitted case of the prosecution that PW-5 Ct. Satpal was the member of the raiding team. However, he has not deposed anything about the raid in question.
71. PW-7 HC Dharmender was also the member of the raiding team. He has also not deposed anything about the raid in question.
72. One of the most crucial aspect of the case is that PW-7 HC Dharmender was the member of the raiding team. It is beyond comprehension as to how the investigation of the case was assigned to him.
73. The case of the prosecution was that PW-2 HC Pawan Kumar and PW-3 Ct. Sajjad Ali received the secret information that the appellant would be coming at Ambedkar College, Gokal Puri to supply huge quantity of arms and ammunition to someone. However, no person had come to receive the recovered arms and ammunition from the appellant. It means the secret information was false. It generates suspicion on the credibility of the secret information.
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74. It is an admitted case of the prosecution that a mobile phone Reliance was recovered from the personal search of the appellant. However, no Call Details Record of the said mobile was obtained or examined.
75. In his disclosure statement, the appellant disclosed that he had received the arms and ammunition from one Gulzar, who used to sell flowers in front of Dasna Jail. He disclosed that he came to Delhi to supply the said arms and ammunition to one Rahis. However, there is no investigation about the source and destination of the illicit arms and ammunition recovered from the appellant.
76. PW-10 ASI Bhim Singh, regarding the investigation made to trace the source of the arms and ammunition, stated as under:-
"On 09.05.2011 the accused was produced in the Court and one day PC was obtained. No success was get in regard of the source from where accused Kharag Singh bring the illegal weapon and ammunition and to whom he used to supply the illegal weapons and ammunition."
77. PW-10 ASI Bhim Singh has not produced any departure entry regarding his visit to Dasna Jail for ascertaining the source of the arms and ammunition. He has not placed on record any permission of the senior officers for leaving the station. There is no arrival entry in any police station of Dasna, U.P. It means no investigation was done regarding the source and destination of the arms and ammunition.
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78. According to PW-2 HC Pawan Kumar, he remained at the spot for 8 hours and Gokal Puri police station was about 1 kilometer from the place of the apprehension of the appellant. There is no explanation as to why PS Gokal Puri was not informed about the apprehension of the appellant.
79. Before parting with, it would be appropriate to consider one more aspect of the case. According to PW-2 HC Pawan Kumar, PW-10 ASI Bhim Singh recorded statement of PW-3 Ct. Sajjad Ali and PW-4 Ct. Ravinder alongwith his statement at the spot at about 10.00 p.m. The statements of PW-3 Ct Sajjad Ali and PW-4 Ct. Ravinder could not have been recorded in his presence as in their statements under section 161 Cr.P.C. they have made statement about the arrest of the appellant and deposit of case property in the malkhana. All these facts had taken place after departure of PW-2 HC Pawan Kumar from the spot. He has also deposed similarly in his cross-examination, as under:-
"The information of arrest to the relatives of the accused was might be given by ASI Bhim Singh as I had left the spot after recording my statement by him."
80. PW-10 ASI Bhim Singh has deposed that he recorded the statement of PW-3 Ct. Sajjad Ali and PW-4 Ct. Ravinder during the investigation. From perusal of the statements under section 161 Cr.P.C., it is evident that the said statements were recorded on 09.05.2011 and not on 08.05.2011.
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81. Ld. trial Court has not considered the prosecution evidence in proper perspective. It has not taken into account in serious discrepancies, lapses and inconsistencies in the prosecution case. Ld. trial Court has committed serious error of law by ignoring glaring discrepancies in the prosecution case while recording a judgment of conviction.
82. In view of the discrepancies, inconsistencies, contradictions and lapses in the investigation, this Court is of the opinion that there are serious doubts about the authenticity of the prosecution case.
83. It appears that it was a planted case. The recovery of the arms and ammunition had not taken place in the manner and on the date, time and place as alleged by the prosecution.
84. Accordingly, the appeal filed by the appellant is accepted. The impugned judgment and order on sentence is hereby set-aside.
85. The appellant is hereby acquitted from the offence under section 25 (1A) of the Arms Act.
86. In the peculiar facts and circumstances of the case, as observed above during the discussion, this Court directs the Commissioner of Police to conduct an enquiry against HC Pawan Kumar Malik and other members of the raiding team and appropriate action be taken, after fixing their responsibility.
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87. It is a matter of concern that Sh. Sanjay Bhatia, Addl. DCP, Crime & Railways granted sanction for the prosecution of the appellant without applying his mind. It was expected from him that he should have applied his mind to the broad features of the case of the prosecution before granting sanction for the prosecution of the appellant.
88. Commissioner of Police is directed to make available the action taken report to this Court within a period of 30 days from today. Till the continuance of the enquiry, no case should be assigned to HC Pawan Kumar for investigation.
89. A copy of this order be sent to the office of Commissioner of Police.
90. A copy of this order be sent to Ld. trial Court alongwith trial Court record for information and necessary compliance.
Announced in the open court SANJAY SHARMA on this 22nd day of April, 2015. Special Judge NDPS (N/E) ASJ/KKD Courts/Delhi.
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