Delhi District Court
Criminal Case/385/2013 on 24 July, 2015
IN THE COURT OF METROPOLITAN MAGISTRATE-05,
SOUTH-WEST DISTRICT, DWARKA COURTS, NEW DELHI
Presided by: Ms. Manika
State v. Vinod Kumar @ Nilesh
FIR No. 385/13
Police Station : Chhawla
Under Section : 25 Arms Act, 1959
Unique Case ID Number: 02405R0121432014
Date of institution : 08.05.2014
Date of reserving : 15.07.2015
Date of pronouncement: 24.07.2015
JUDGEMENT
a) Serial number of the case : 98/1/14
b) Date of commission of offence : 04.11.2013
c) Name of the complainant : Constable Dinesh,
No. 582/South West
d) Name, parentage and address : Vinod Kumar @ Nilesh,
of the accused S/o Sh. Suresh Kumar,
R/o Village and Post Office
Kair, Police Station Jaffar Pur,
New Delhi.
e) Offence complained of : Section 25 Arms Act, 1959
f) Plea of the accused : Pleaded not guilty
State v. Vinod Kumar @ Nilesh
FIR No. 385/2013 P.S.: Chhawla Page 1 of 15
g) Final order : Acquitted of the offence pun-
ishable under Section 25 of the
Arms Act
h) Date of final order : 24.07.2015
BRIEF FACTS AND REASONS FOR DECISION OF THE CASE
1. Vide this judgement, accused Vinod Kumar @ Nilesh is being acquitted of the offence punishable under Section 25 of the Arms Act, 1959 (hereinafter referred to as 'Act') in this case FIR No. 385/13 po- lice station Chhawla by giving benefit of doubt for the reasons men- tioned below.
CASE OF PROSECUTION
2. Briefly stated, the case of the prosecution as unfolded by the police report under Section 173 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C.') is that on 04.11.2013, at about 02.30 pm, when Constable Dinesh Kumar and Constable Vikas were on patrolling duty in the area and were crossing Taj Pur Road, one secret informer met them and informed that a person would come from the side of Taj Pur Road and he may be carrying illegal weapon. As per the case of prosecution, on receipt of this information, Constable Dinesh, Constable Vikas and secret informer took position near Taj Pur Road and after about 10 minutes, accused Vinod Kumar @ Nilesh, who came from the side of Taj Pur Road, was apprehended by Constable Dinesh and Constable Vikas on the pointing out of secret informer. Thereafter, a cursory search of the accused was State v. Vinod Kumar @ Nilesh FIR No. 385/2013 P.S.: Chhawla Page 2 of 15 conducted during which one loaded country made pistol was recovered from his possession. It is further the case of prosecution that as the accused failed to show any license for the said pistol, information in this regard was given at police station vide DD no. 24A, Ex.PW5/A, on receipt of which, Head Constable Roshan Lal reached at the spot. Accused and the recovered pistol were handed over to Head Constable Roshan Lal by Constable Dinesh and Constable Vikas. Head Constable Roshan Lal unloaded the pistol and two live cartridges were recovered from its chamber. Head Constable Roshan Lal prepared a sketch of the pistol and cartridges, sealed the same in a cloth pullanda and seized them vide seizure memo. Head Constable Roshan Lal recorded the statement of Constable Dinesh, prepared rukka and got the present case registered. The accused was arrested. During the course of investigation, the exhibits were sent to the FSL Rohini for expert opinion. Upon receipt of FSL result, sanction under Section 39 Arms Act was obtained from the concerned Additional Deputy Commissioner of Police.
CHARGE
3. Vide order dated 23.06.2014, charge for the offence punishable under Section 25 of the Act was framed against the accused, who pleaded not guilty and claimed trial.
ADMISSION/DENIAL OF DOCUMENTS
4. Vide order dated 29.01.2015, in compliance with the provisions of Section 294 of the Cr.P.C., the accused was called upon to admit or State v. Vinod Kumar @ Nilesh FIR No. 385/2013 P.S.: Chhawla Page 3 of 15 deny the genuineness of sanction under Section 39 Arms Act dated 19.03.2014, which was admitted by the accused and was accordingly exhibited as Ex.P/A/1. In view of the admission made, the evidence of the Sh. Dinesh Kumar Gupta, Additional Deputy Commissioner of Police, South West District, New Delhi was dispensed with.
EVIDENCE OF THE PROSECUTION
5. To prove its case, the prosecution in all examined five witnesses. PW-1 Sh. K.C. Varshney was examined as the Ballistics expert, PW-2 Constable Dinesh Kumar and PW-3 Constable Vikas as recovery witnesses, PW-4 Woman Head Constable Anita as a duty officer and PW-5 Head Constable Roshan Lal as the investigating officer.
STATEMENT / DEFENCE OF THE ACCUSED
6. In his examination under Section 313 Cr.P.C., the accused denied the entire evidence put to him. He categorically stated that he is innocent and has been falsely implicated in the present case. He stated that he along with 14-15 other persons was apprehended from a temple at Goyla Dairy where an altercation had taken place during a meeting. He further stated that thereafter, he was taken to police station Chhawla where the remaining persons were booked in a kalandra, he was made to sit separately and was falsely implicated in the present case as he was earlier also involved in another case of police station Najafgarh concerning the murder of a lady constable wherein he had been acquitted.
State v. Vinod Kumar @ Nilesh FIR No. 385/2013 P.S.: Chhawla Page 4 of 15 ANALYSIS AND FINDINGS
7. The record has been thoroughly and carefully perused. The respective submissions of Sh. Brijesh Kumar, learned Assistant Public Prosecutor for the State and Sh. Amit Mittal, Advocate, learned counsel for the accused have been considered.
8. The case of the prosecution is that on the fateful day accused Vinod Kumar @ Nilesh was found in possession of a country-made pistol and two live cartridges in contravention of the notification issued by the Delhi Administration. In order to bring home the charge against the accused, the prosecution was required to prove beyond reasonable doubt:
(i)That the country-made pistol and two live cartridges allegedly recovered from the possession of the accused are covered within the definition of the terms "arms" and "ammunition" contained in Section 2 of the Act; and
(ii)That the country-made pistol and two live cartridges in question had been recovered from the possession of the accused as alleged.
I. Whether the country-made pistol and live cartridges are covered within the definition of "arms" and "ammunition" under Section 2 of the Act?
9. As regards the aforesaid question, the FSL report Ex.PW1/A, which has also been proved by PW-1 Sh. K.C. Varshney and, even otherwise, is a document admissible in evidence per se, indicates that the country-made/improvised pistol Ex.F1 (Ex.P3) was in working State v. Vinod Kumar @ Nilesh FIR No. 385/2013 P.S.: Chhawla Page 5 of 15 order and test fire was conducted successfully. As far as the cartridges Ex.A1 and Ex.A2 (Ex.P1 and Ex. P2) are concerned, the FSL report labels them as 'live' cartridges and one of the same was even successfully test fired. Thus, clearly the country-made pistol Ex.P3 and live cartridges Ex.P1 and Ex.P2 fall within the definition of the words "arms" and "ammunition" respectively contained in Section 2 of the Act. The first ingredient, therefore, stands established by the prosecution.
II. Whether the illegal arm and ammunition were recovered from the possession of the accused as alleged?
Re: Absence of independent witnesses
10. Evidently, no public witness to the recovery of the country-made pistol and two live cartridges has been either cited or examined by the prosecution. As per PW-3 Constable Vikas, the investigating officer had requested 4-5 public persons to join investigation but none agreed. He has further stated that at the time of apprehension of the accused, public persons were passing by the spot, however, he could not tell as to how many public persons had passed through the spot at the time when the accused had been apprehended by them. He admitted that he did not request any of those public persons to join investigation. PW-5 Head Constable Roshan Lal also stated in his cross-examination that at the time when he was doing the writing work, 4-5 public persons had passed from the road and he had asked those public persons to join the proceedings, however, none of them agreed and left the spot without disclosing their names and State v. Vinod Kumar @ Nilesh FIR No. 385/2013 P.S.: Chhawla Page 6 of 15 addresses. Further, the recovery is alleged to have been effected from Village Goyla, Firni Road, near Water Tank, which is a public place, at about 2.30 pm. Thus, public persons would certainly have been available at the time and place of apprehension of the accused. However, no serious effort for joining public witnesses appears to have been made by the investigating officer or the recovery witnesses despite availability.
11. It is a well settled proposition that non-joining of public witness shrouds doubt over the fairness of the investigation by police. Section 100 (4) of the Cr.P.C. also casts a statutory duty on an official conducting search to join two respectable persons of the society. Same has, however, not been done in the present case. This casts a doubt on the fairness of the investigation. Reliance is placed on the decision of the Hon'ble High Court of Delhi in Pawan Kumar v. The Delhi Administration, 1989 Cri.L.J. 127.
12. 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 version but there are other circumstances too, as discussed hereinafter, which raise suspicion over the prosecution version.
State v. Vinod Kumar @ Nilesh FIR No. 385/2013 P.S.: Chhawla Page 7 of 15 Re: Departure entries not proved
13. As per Chapter 22 Rule 49 of the Punjab Police Rules, 1934, police officials are under a statutory duty to mark their departure and arrival in the register kept in the police station for the purpose. The present case rests entirely on the alleged recovery of case property, i.e. illegal arm and ammunition, from the possession of the accused at the relevant time by police officials namely Constable Dinesh and Constable Vikas, who were allegedly on patrolling duty. The departure entry vide which the aforesaid police officials were patrolling in the area has not been filed or tendered in evidence, let alone being proved. The police report is silent as to the departure entry vide which the aforesaid police officials were patrolling in the area. Moreover, the duty roaster of the aforesaid police officials has also not been placed on record to show that they were on duty on the day of incident.
14. Since public persons were not joined in the investigation, the departure entry of the aforesaid police officials, i.e. Constable Dinesh and Constable Vikas, who were allegedly on patrolling duty when they had apprehended the accused, becomes a vital piece of evidence. However, the entry regarding departure of the aforesaid police officials has not been tendered in evidence, let alone being proved on record. Proof of the said entry is, however, indispensable as the present case rests solely on the alleged recovery made by police officials.
Re: Secret information not proved
15. As per the prosecution's case, while PW-2 and PW-3 were on State v. Vinod Kumar @ Nilesh FIR No. 385/2013 P.S.: Chhawla Page 8 of 15 patrolling duty and were crossing, Tajpur Road, one secret informer had met them and informed that a person would come from the side of Tajpur Road and he may be carrying an illegal weapon. However, the said secret information was neither reduced into writing nor was the same shared with any senior officer. The alleged secret informer has not been cited or examined by the prosecution. The alleged secret information has, therefore, not been proved.
Re: Possibility of misuse of seal of the investigating officer
16. As per the police report, the case property was sealed with the seal of RL and the seal after use was handed over to Constable Dinesh, who is the complainant as well as a recovery witness in the present case. Admittedly, the seal after use was not handed over to any public witness. Moreover, admittedly, in the instant case, no handing over memo had been prepared regarding the seal having been handed over to Constable Dinesh and the seal was not handed over to any independent witness nor was it deposited in the malkhana to assail the possibility of its misuse. Thus, the possibility that the case property may have been tampered with cannot be ruled out. Reliance is placed on the decision of the Hon'ble High Court of Delhi in Abdul Ghaffar v. The State, 1996 JCC 497.
Re: Personal search of accused: Formalities not complied with
17. The testimony of all the prosecution witnesses is silent as to whether PW-2 Constable Dinesh and PW-3 Constable Vikas who had conducted the cursory search of the accused Vinod Kumar @ Nilesh State v. Vinod Kumar @ Nilesh FIR No. 385/2013 P.S.: Chhawla Page 9 of 15 had offered their search to the accused before searching him. In the absence of any affirmative testimony, it cannot be assumed that the police officials, who had conducted the personal/cursory search of the accused, had offered their search to the accused before searching him. Since the prosecution has not been able to establish that the police official, who searched and allegedly recovered the illegal arm and ammunition from the accused, did offer their personal search before conducting the search of the accused, the possibility of the said illegal arm and ammunition, which were brought out by the search, having been planted on the accused cannot be ruled out. Thus, this Court is wary in relying upon the version of the prosecution. Reliance is placed on the decision of the Hon'ble High Court of Orissa in Rabindranath Prusty v. State of Orissa, 1984 Cri L. J. 1392.
Re: Other infirmities in the prosecution case
18. PW-5 Head Constable Roshan Lal has deposed that first of all he prepared sketch of the country-made pistol and two live cartridges recovered from accused Vinod Kumar @ Nilesh Ex.PW2/A, seized the arm and ammunition recovered from the accused vide memo Ex.PW2/B and filled form M-29 at the spot and it was thereafter that he prepared the tehrir Ex.PW5/B and sent the same to the police station for registration of FIR through Constable Dinesh. The FIR was, therefore, admittedly registered after the preparation of these documents Ex.PW2/A and Ex.PW2/B. Accordingly, it follows that the number of the FIR would have come to the knowledge of the investigating officer only after a copy of the FIR was delivered to him State v. Vinod Kumar @ Nilesh FIR No. 385/2013 P.S.: Chhawla Page 10 of 15 at the spot by Constable Dinesh. Thus, ordinarily, the FIR number should not find mention in the seizure memo or sketch of country- made pistol and two live cartridges which came into existence before registration of the FIR. However, documents Ex.PW2/A and Ex.PW2/B bear the FIR number and other particulars in the same ink and the same handwriting in which the said documents are prepared. This indicates that FIR number was mentioned on the said documents while preparing the same. Reliance here is placed on the decisions of the Hon'ble High Court of Delhi in Pawan Kumar v. The Delhi Administration, 1989 Cri. L.J. 127 and Mohd. Hashim v. State, 1999 VI AD (Delhi) 569. No explanation has been furnished on record as to how the FIR number and case details have appeared on abovesaid seizure memo and sketch. The same leads one to only one inference that either the said documents were prepared later or that the FIR had been registered earlier in point of time. In both the aforesaid cases a dent is created and unexplained holes are left in the prosecution story, the benefit of which must accrue to the accused.
19. As per the case of prosecution, the case property i.e. the recovered arm and ammunition were deposited in the malkhana and were later on sent to FSL for expert analysis. However, the entire police report is silent as to who had taken the exhibits of the present case to FSL and got the same deposited there. Further neither any entry in the register no. 19 of the malkhana moharrir vide which the case property was deposited in the malkhana nor the Road Certificate vide which the exhibits were deposited in the FSL have been placed on record nor the malkhana moharrir or the official who deposited the State v. Vinod Kumar @ Nilesh FIR No. 385/2013 P.S.: Chhawla Page 11 of 15 case property in the malkhana have been examined as prosecution witnesses.
Re: Contradictions in the testimony of prosecution witnesses
20. There are several contradictions in the testimony of prosecution witnesses on various aspects.
21. While as per PW-2 Constable Dinesh, they had left the police station for patrolling at about 09.00 am, as per PW-3 Constable Vikas he had left the police station for patrolling at about 02.30 pm.
22. As per PW-2 Constable Dinesh, the secret informer had met them at about 02.15 pm, however, as per PW-3 Constable Vikas, the secret informer had met them at about 02.45 pm.
23. While PW-2 Constable Dinesh stated that the secret informer met him at about 02.15 pm and the accused reached at the spot after about 15 minutes of receipt of secret information i.e. about 02.30 pm, contrary to this, PW-3 Constable Vikas deposed that the accused reached at the spot at about 02.50-02.55 pm.
24. While as per PW-2 Constable Dinesh, they had apprehended the accused after chasing him for a distance of about 100 meters, as per PW-3 Constable Vikas, they had apprehended the accused when he had reached at a distance of about five meters from them.
25. PW-2 Constable Dinesh Kumar deposed in his examination in chief that the accused was apprehended on the pointing out of the secret informer, however, in his cross-examination he contradicted State v. Vinod Kumar @ Nilesh FIR No. 385/2013 P.S.: Chhawla Page 12 of 15 himself by stating that while they remained at the spot, the secret informer left after giving the information to them.
26. As per PW-2 Constable Dinesh, the secret informer met him at about 02.15 pm and the accused reached at the spot after about 15 minutes of receipt of secret information i.e. 02.30 pm and the information regarding the apprehension of the accused was given to the police station within 15 minutes of his apprehension i.e. by 02.45 pm. In contrast, as per PW-3 Constable Vikas, information to the police station was given at about 03.00 pm.
27. While as per PW-3 Constable Vikas, Constable Dinesh took rukka at about 04.30-04.45 pm and returned to the spot at about 05.20 pm, as per PW-5 Head Constable Roshan Lal, he had sent the tehrir at about 04.45 pm and Constable Dinesh returned to the spot after getting the case registered at about 06.00 pm. Contrary to this, as per PW-2 Constable Dinesh, it took him about 15 minutes in reaching the police station from the spot with rukka, he remained in the police station for about 10 minutes and returned to the spot after getting the case registered after about 15 minutes, meaning thereby that it took him about 40 minutes in returning to the spot after getting the case registered.
28. While as per PW-2 Constable Dinesh, they had returned to the police station after completion of all the proceedings at about 04.45 pm, as per PW-3 Constable Vikas he reached at the police station at about 05.35 pm and as per PW-5 Constable Roshan Lal, he reached at the police station at about 09.00 pm. State v. Vinod Kumar @ Nilesh FIR No. 385/2013 P.S.: Chhawla Page 13 of 15
29. While as per PW-3 Constable Vikas, the writing work was completed by the investigating officer Head Constable Roshan Lal by 05.20 pm, as per PW-5 Head Constable Roshan Lal, he had conducted the writing work till about 07.00 pm.
30. The aforesaid contradictions in the testimony of prosecution witnesses raise doubt on the credibility of the prosecution story.
CONCLUSION
31. The facts that no independent witness was cited or examined, secret information has not been proved, the possibility of misuse of the seal of the investigating officer has not been ruled out, the appearance of FIR number and case particulars on the sketch of the arm and ammunition and seizure memo of the case property, and the contradictions in the testimony of prosecution witnesses, when kept in juxtaposition to each other, cast a cloud of suspicion over the prosecution version. In view of the aforesaid, the possibility of the country-made pistol and two live cartridges having been planted upon the accused and false implication of the accused in the present case cannot be ruled out.
32. It is trite in criminal jurisprudence that the prosecution is under an obligation to prove its case against the accused beyond reasonable doubt. The standard of proof to be adopted in criminal cases is not merely of preponderance of probabilities but proof beyond reasonable doubt on the basis of cogent, convincing and reliable evidence. It is also well settled that in case of doubt, the State v. Vinod Kumar @ Nilesh FIR No. 385/2013 P.S.: Chhawla Page 14 of 15 benefit must necessarily be allowed to the accused.
33. Thus, 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 is hereby acquitted of the offence punishable under Section 25 of the Act. Case property be confiscated to State as per rules.
34. Necessary bail bond and surety bond under Section 437A Cr.P.C. along with passport size photographs and proofs of residence of the accused as well as the surety and proof of soundness of the surety have been furnished by the accused and accepted.
35. File be consigned to record room.
Announced in open Court on 24.07.2015 (MANIKA) Metropolitan Magistrate-05 (South-West), Dwarka Courts, New Delhi 24.07.2015 State v. Vinod Kumar @ Nilesh FIR No. 385/2013 P.S.: Chhawla Page 15 of 15