Delhi District Court
State vs . Gulshan @Ankit@ Fukra on 30 September, 2022
IN THE COURT OF SH. MAYANK AGGARWAL METROPOLITAN
MAGISTRATE : 09 (CENTRAL)
TIS HAZARI COURTS, NEW DELHI
FIR No. 07/2021
PS: Burari
U/s: 25/54/59 Arms Act
State vs. Gulshan @Ankit@ Fukra
JUDGMENT
1. Case No. of the case : 2529/2021
2. Date of Commission of the offence : 03/01/2021
3. The name of the complainant : HC Bal Krishan
4. Name & address of accused : Gulshan @Ankit@ Fukra
: R/o Kh. No 68/2, Gali No 01
: Ajeet Vihar, Burari, Delhi.
5. Date of institution of FIR : 03/01/2021
6. Date of receipt of this case : 27/02/2021
7. The plea of the accused : Pleaded not guilty
8. Date of reserving the case for order : 16/09/2022
9. Date of Decision : 30/09/2022
10. Final order : ACQUITTAL BRIEF STATEMENT OF REASONS FOR DECISION
1. Brief facts of the case as are necessary for the purpose are as Case No. 12352/2017 FIR No. 300/2017 PS Burari State Vs Krishna @ Hema Page 1 of 15 follows:
accused Gulshan @Ankit @ Fukra has been sent to face trial upon the allegations that on 03/01/2021 at about 7:00 PM at RCC Road, Turn Transport Authority towards Mukundpur, Burari, Delhi, the accused was found in possession of one pistol and 2 live cartridges and one empty cartridge without any licence or permit and thereby committed an offence punishable u/s 25 Arms Act.
2. Consequently, an FIR No 7/2021 was registered at PS Burari and the investigation was initiated. Upon completion of investigation charge sheet U/s 173 Cr.P.C. was filed on behalf of the IO and upon consideration of the material available on record, accused was summoned on 01/03/2021. Thereafter, Charge u/s 25 Arms Act was framed against the accused to which he pleaded not guilty and claimed trial.
3. In order to substantiate the allegations, prosecution examined six witnesses.ASI Dinesh (Complainant), was examined as PW1, who allegedly, received the secret information regarding accused coming near the RCC Road, Turn Transport Authority, Burari, Delhi with unauthorised weapon and as a member of raiding party consisting of police officials, caught the accused red handed with unauthorised pistol and cartridges prepared rough sketch, seizure memo, rukka, etc, HC Munish, Ct. Rohtash, Ct. Swayam and Ct. Deepak, who allegedly accompanied PW-1 and witnessed entire proceedings carried out at the spot, were examined as PW-2, PW-3 and PW 4 respectively. HC Dinesh Case No. 12352/2017 FIR No. 300/2017 PS Burari State Vs Krishna @ Hema Page 2 of 15 Kumar, who allegedly collected the case property on 13/01/2021 in sealed condition from Malkhana PS Burari and deposited the same in FSL, Rohini was examined as PW 5. Lastly, the IO, HC Bal Krishan, PW 6, who allegedly reached to the spot after registration of the FIR and carried out further proceedings (i.e. recording of disclosure statement of accused, arresting the accused, preparation of arrest and personal search memo of the accused and preparation of site plan, etc.) was examined. Thereafter prosecution evidence was closed.
4. Following documents were tendered during the evidence of these witnesses -
(i) PW-1/A - Seizure Memo( pistol and cartridges)
(ii) PW-1/B - Rukka
(iii) PW-1/C - Site Plan
(iv) EX.P1(colly) -Case Property
(v) PW-4/A - Sketch of pistol and cartridges
(vi) PW-4/B - Seizure Memo (bike)
(vii) PW-4/C - Arrest Memo
(viii) PW-4/D - Personal Search Memo
(ix) PW-4/E - Disclosure statement
(x) PW-5/A(colly) - RC and FSL Request Letter
(xi) PW-5/B - Acknowledgement letter of FSL Case No. 12352/2017 FIR No. 300/2017 PS Burari State Vs Krishna @ Hema Page 3 of 15
5. Apart from these documents, the accused admitted the genuineness of the following documents u/s 294 Cr.PC, without admitting the content of the same. These documents were exhibited as under -
(I) Ex. AD1 - FIR
(ii) Ex. AD2 - Endorsement on Rukka
(iii) Ex. AD 3 -Certificate u/s 65B Indian Evidence Act
(iv) Ex. AD 4 - DD Entry 4, dated 03/01/2021
(v). Ex. AD 5 - Entry no 1819 of Malkhana Register
(vi). Ex. AD 6- Sanction u/s 39 Arms Act
(vii). Ex. AD 7- Result of FSL
6. Statement of accused was recorded u/s 313 r/w 281Cr.PC, wherein all the incriminating evidence was put to the accused, to which he stated that he has been falsely implicated in this case and recovery of case property has been falsely implanted upon him. Further, the accused did not wish to lead defence evidence and accordingly the matter was fixed for final arguments.
7. It is argued by Ld. APP for the state that on the basis of the material proved on the record, prosecution has been able to prove its case beyond all reasonable doubt, that accused was indeed found in possession of pistol alongwith live cartridges without permit at the said time and place and accordingly submitted that accused be convicted of the offence charged.
8. Per contra, it is vehemently argued by the Ld. LAC for the Case No. 12352/2017 FIR No. 300/2017 PS Burari State Vs Krishna @ Hema Page 4 of 15 accused that, the accused is completely innocent and has been falsely implicated in this accused by way of an implanted recovery. It is further submitted by Ld. Counsel that non joinder of public witness despite availability cast shadow of doubt on prosecution story. It is further argued by Ld. Counsel for the accused that tampering with the contents of the sealed parcel cannot be ruled out as the seal was never handed to the independent witness and through out the investigation remained in the custody of the police personnel. Lastly it is argued by the Ld. Counsel that considering various material inconsistencies in the testimonies of the prosecution witnesses the prosecution has miserably failed to prove its case beyond reasonable doubt and therefore, the accused is entitled to be acquitted of the alleged offence.
9. I have heard the rival submissions and have also carefully gone through the entire material available on record and evidence led on behalf of the prosecution. My findings on the point for determination and brief reasons for the same are now being discussed in following paragraphs.
10. Short point for determination before the court is as under-
"Whether on 03/01/2021 at about 07.00 PM at RCC Road, Turn Transport Authority towards Mukundpur, Burari, Delhi, the accused was found in possession of one pistol and 2 cartridges and one empty cartridge without any licence or permit and Case No. 12352/2017 FIR No. 300/2017 PS Burari State Vs Krishna @ Hema Page 5 of 15 thereby committed an offence punishable u/s 25 Arms Act?"
11. In present case, prosecution was duty bound to prove the possession of the illicit pistol and the cartridges with the accused. Same is sought to be proved by the recovery memo and testimony of the witnesses. But the manner of conducting inquiry, seizure and search etc. on the spot at the time of arrest of the accused and alleged recovery of weapon with live cartridges in this case, makes the prosecution version highly doubtful. Incident is stated to have happened at about 07.00PM and it is admitted by PW-2, PW-3 & PW-4 in their respective cross examinations that public persons were present at the spot, but still no public independent person was cited as a witness in this case. At this stage it is interesting to observe that PW 1 on the aspect of presence of public persons has given a completely different version. PW 1 in his testimony has stated that the place of incident was a solitary place and there was no public person available and even a nearby shop was closed as it was night time.
12. Further, though witnesses have stated in their testimony that 4-5 passers by were requested to join, but none of them agreed. But the witnesses did not disclose the names of any such witnesses. Admittedly, no notice was served upon these witnesses, when they refused to join the investigation. The witnesses have failed to bring anything on record, if there was any paucity of time due to which no such notice could be served. Therefore, merely making Case No. 12352/2017 FIR No. 300/2017 PS Burari State Vs Krishna @ Hema Page 6 of 15 bald claim that 4-5 passers by were requested to join but none of them agreed, does not inspire confidence at all, looking at overall facts and circumstances of the case. Therefore it is clear that sincere efforts were not made to join independent witnesses despite their availability which causes a serious dent in the story of the prosecution and all these facts makes the alleged recovery very doubtful. At this stage it is worth pointing out the observation made by Hon'ble High Court of Delhi in Anoop Joshi Vs. State 1999(2) C.C. Cases 314 (HC), regarding the importance of joining independent witness during investigation in a case:
"...It is repeatedly laid down by this court that 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 evident that no such sincere efforts have been made, particularly when we find that shops were open and one or two shopkeepers 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 could have later on taken legal action against such shopkeepers because they could not have Case No. 12352/2017 FIR No. 300/2017 PS Burari State Vs Krishna @ Hema Page 7 of 15 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".
13. Similarly, in Nanak Chand Vs. State of Delhi reported as DHC 1992 CRI LJ 55 it is observed as under:
"...that the recovery is proved by three police officials who have differed on who snatched the Kirpan from the petitioner and at what time. The recovery was from a street with houses on both sides and shops nearby. And, yet no witness from the public has been produced. Not that in every case the police officials are to be treated as unworthy of reliance but their failure to join witnesses from the public especially when they are available at their elbow, may, as in the present case, cast doubt. They have again churned out a stereotyped version. Its rejection needs no Napoleon on the Bridge at Arcola..".
14. Also, in State of Punjab v. Balbir Singh, AIR 1994 SC 1872, the Case No. 12352/2017 FIR No. 300/2017 PS Burari State Vs Krishna @ Hema Page 8 of 15 Hon'ble Supreme Court held as under:
"...It therefore emerges that non-
compliance 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 non-compliance. It is well-settled 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 Case No. 12352/2017 FIR No. 300/2017 PS Burari State Vs Krishna @ Hema Page 9 of 15 provisions or failure was due to lack of time and opportunity to associate some independent witnesses with the search and strictly comply with these provisions."
[Emphasis supplied]
15. Considering the aforesaid observations made by the Higher Courts, the omissions / failure on the part of investigating agency to join independent public witnesses create reasonable doubt in the prosecution story. Further, considering facts and circumstances of the present case in the light of ratio in State of Punjab v. Balbir Singh, AIR 1994 SC, 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.
16. Further, as regards offering of personal search by PW 1 before recovery of the alleged illicit pistol and cartridges is concerned, two members of the raiding party ie PW1 and PW3 have given two different versions. As per PW1 he did not offer his personal search, whereas as per PW 3, PW 1 offered his personal search to a public person and the public person even searched the PW 1, despite that no such public person has been cited as a witness in the case. Evidently, there are serious discrepancies between the testimonies of the witnesses constituting the raiding party and present at the spot regarding the series of events and the manner in which it took place at the spot, which fact further creates considerable doubts regarding the case set up by the Case No. 12352/2017 FIR No. 300/2017 PS Burari State Vs Krishna @ Hema Page 10 of 15 prosecution.
17. Furthermore, apart from the inconsistencies/ contradictions as has been highlighted in the foregoing part of this order, the case of prosecution is fraught with other serious infirmities/contradictions as well. PW 1 in his testimony has stated that after constituting of the raiding party all the police officials constituting the raiding party went to the spot together. Admittedly, the raiding party consisted of 5 police officials. Whereas, PW2 states that he along with PW 1 and 2 other persons went to the spot together in a private vehicle. Similar statement was made by PW 3 and PW 4, that they went along with PW 1 and two other persons. Thus, if PW 2,3 and 4 are to be relied upon then, 4 members of the raiding party went together and if PW1 is to be believed all 5 members went together. Further, none of the witnesses disclosed the make and ownership of the private car. Further as regards, who inquired about the identity of the accused and the time at which the members of the alleged raiding party reach at the spot, the witnesses are at considerable variance. Hence, the above-mentioned infirmities/contradictions create serious dent in the case of the prosecution and substantiates the defence version that there is false implication of the accused in the present case and that the recovery has been falsely planted upon the accused.
18. Further, as per evidence on record, the seal after use was not given to any independent public person. Even, no seal handing over memo is on record. Hence, considering the legal position, the benefit of doubt should be Case No. 12352/2017 FIR No. 300/2017 PS Burari State Vs Krishna @ Hema Page 11 of 15 given to the accused, as tampering with case property in such a scenario cannot be ruled out. The reliance is placed on the judgment of Ramji Singh Vs. State of Haryana 2007 (3) R.C.C. (Criminal) 452, wherein it is held that-
"...The very purpose of giving seal to an independent person is to avoid tampering of the case property. It is well settled that till the case property is not dispatched to the forensic science laboratory, the seal should not be available to the prosecuting agency and in the absence of such a safeguard the possibility of seal, contraband and the samples being tampered with cannot be ruled out..."
19. Similarly, Hon'ble Delhi High Court in Safiullah v. State, 1993 (1) RCR (Criminal) 622, held that -
...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 Case No. 12352/2017 FIR No. 300/2017 PS Burari State Vs Krishna @ Hema Page 12 of 15 sample the benefit of the same should go to the accused..."
20. Further, it is worth pointing out at this stage that, it is an admitted case of the prosecution that the sketch (khaka) of the alleged recovered pistol and cartridges (EX. PW4/A) and the seizure memo of the same (Ex.PW1/A) was prepared by PW1 before the registration of the FIR, despite that the said documents bears the FIR No. and no explanation has been put forth by the prosecution as to how and under what circumstances the said FIR No got mentioned on the said documents when admittedly the said documents were prepared prior in time. At this stage it is worthwhile to reproduce the observations made in the judgment of Giri Raj V/s State 83 (2000) DLT 201, wherein it was held that "5. The prosecution has not offered any explanation whatsoever as to under what circumstances number of the FIR Ex.
PW2/A had appeared on the top of the said documents, which were allegedly on the spot before its registration. This gives rise to two inferences that either the FIR (Ex. PW 2/A) was recorded prior to the alleged recovery of the contraband or number of the said FIR was inserted in these documents after its registration.
Case No. 12352/2017 FIR No. 300/2017 PS Burari State Vs Krishna @ Hema Page 13 of 15In both the situations, it seriously reflects upon the veracity of the prosecution version and creates a good deal of doubt about recovery of the contraband in the manner alleged by the prosecution. That being so, the benefit arising out of such a situation must necessarily go to the appellant".
21. From the aforesaid discussion, it is apparent that the manner in which the inquiry, seizure and search etc. has been conducted on the spot at the time of alleged recovery of weapon along with cartridges, it makes the prosecution version highly doubtful. It is cardinal principle of criminal jurisprudence that an accused is presumed to be innocent. The burden lies on the prosecution to prove the guilt of accused beyond reasonable doubt. The prosecution is under a legal obligation to prove each and every ingredient of offence beyond any doubt, unless otherwise so provided by any statute. This general burden never shifts, it always rests on the prosecution. It is for the prosecution to travel the entire distance from may have to must have. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused.
22. Therefore, in view of the discussions made herein above and the facts and circumstances of the present case, in considered opinion of the court, the Case No. 12352/2017 FIR No. 300/2017 PS Burari State Vs Krishna @ Hema Page 14 of 15 prosecution has failed to prove the guilt of the accused beyond reasonable doubt. Hence, accused Gulshan @ Ankit @ Fukra stands acquitted of the offence under section 25/54/59 of Arms Act, he has been charged with. Ordered accordingly.
(Announced in open Court on 30th of September, 2022 (MAYANK AGGARWAL) MM-09/Central/THC The judgment contains 15 pages and all the pages bears my signatures.
(MAYANK AGGARWAL) MM-09/Central/THC Case No. 12352/2017 FIR No. 300/2017 PS Burari State Vs Krishna @ Hema Page 15 of 15