Delhi District Court
State vs . Devender 1 Out Of 13 on 9 July, 2009
1
IN THE COURT OF MS. ILLA RAWAT, ASJ
(FTC)-CENTRAL : DELHI.
S. C. No. 34/09
State
Versus
Devinder
S/o Balraj Singh @ Balloo
R/o Village Biloch Pur,
Police Station Hasanpur
Faridabad
Case arising out of:
FIR No.148/02
P.S. Hauz Qazi
U/s 25/54/59 Arms Act
Date of FIR : 05.07.02
Date of Institution in Sessions Court : 26.06.04
Date on which case received at FTC : 13.03.09
Date of Final Arguments : 09.07.09
Judgment reserved on : 09.07.09
Date of Judgment : 09.07.09
JUDGMENT:
1. Present case has been registered against accused Devender for possession of a pistol (Katta) and cartridge, fire arms, without any licence. Accused Devender, along with four other persons was apprehended upon secret information received at police station Hauz Qazi, that some persons would be collecting near Mother Dairy booth at State Vs. Devender 1 out of 13 2 Fassil Road, having made preparations to commit dacoity, and planned to commit some dacoity. Upon this information three separate raiding parties of police persons posted at Police Station Hauz Qazi were constituted under Inspector Rakesh Giri and accused Devender is stated to have been apprehended by police party headed by SI Manoj Sinha. As per case of prosecution one loaded country made pistol and a live cartridge were recovered from the possession of accused Devender for which present case came to be registered against him besides another case under sections 399/ 402/ 34 IPC which was registered against all persons, including accused Devender, who were apprehended in operations carried out by the police, on that day, pursuant to secret information.
2. After completing investigations charge sheet was filed against the accused before concerned learned Metropolitan Magistrate. Since the alleged recovery of the fire arm, from the accused, in the present case was connected with the other case under sections 399/ 402/ 34 IPC, it appears that after compliance with provisions of section 207, this case was also committed to sessions court.
State Vs. Devender 2 out of 13 3
3. Primafacie case U/s 25 Arms Act was made out against accused for which charge was framed. The accused did not plead guilty and claimed trial.
4. Matter was at the stage of prosecution evidence when it was transferred to Fast Track Court on 13.03.09.
5. In order to prove its case prosecution has examined eight witnesses. Out of these PW-1, HC Brice Indwar; PW-3, HC Shivdan Singh; PW-5, K.C. Varshnay and PW-7, HC Tejpal Singh are formal witnesses.
6. The PW-1, Brice Indwar, is the duty officer and he deposed about having registered the case FIR in the present case. The PW-3, HC Shivdan Singh, had taken exhibits in the present case to FSL on 01.08.02 and deposed regarding the same. The PW-5, Sh. K.C. Varshney, had examined the weapon and cartridge alleged to have been recovered from possession of accused. He proved his report as Ex.PW5/A and he also identified the katta as Ex.P-1, its fired cartridge as Ex.P-2 and other cartridges as Ex.P-3.
7. The PW-7, HC Tejpal, was posted as MHC(M) at Police Station Hauz Qazi on 05.07.02 and he deposed regarding factum of case property having been deposited by IO ASI State Vs. Devender 3 out of 13 4 Tejpal Singh with him and about having sent the parcel containing the case property to FSL, for examination, on 01.08.02.
8. The other witnesses examined by the prosecution include PW-6, Insp. Manoj Sinha, who was heading the raiding party which had apprehended the accused and PW- 4, HC Ram Prashad, and PW-8, HC Jagdish Chand, who were members of said raiding party and PW-2 ASI Tej Pal who had taken over the investigations of the case after the registration of FIR in the present case.
9. The PW-6, Insp. Manoj Sinha, was heading one of the three raiding parties which were constituted by Insp. Rakesh Giri pursuant to receipt of secret information, regarding intended assembly of dacoits at Fassil Road, at Police Station Hauz Qazi. He deposed that they all reached Fassil Road at about 9.10 pm and that his raiding party constituted of HC Ram Prashad and Constable. Jagdish besides him. He further deposed that they took position at Ajmeri Gate and on receiving signal from Insp. Rakesh Giri, apprehended accused Devender, who was amongst five persons who had collected at Mother Dairy. One loaded country made pistol State Vs. Devender 4 out of 13 5 and one live round was recovered from possession of accused and these articles were kept in a Pulanda and sealed with the seal of MKS. The FSL form as well as case property was taken into possession vide memo Ex.PW-4/B and after use seal was handed over to HC Ram Prashad. The PW-6 proved rukka prepared by him as Ex.PW-6/A, and further deposed that after preparing the rukka, he got case FIR registered through Ct. Jagdish and that the further investigations of the case were assigned to ASI Tejpal and after said investigating officer reached the spot, site plan, Ex.PW-2/A was prepared by him at the instance of PW-6. The witness identified the case property and the fire arm was exhibited as Ex.P-1 and cartridges as Ex.P-2 and P-3 respectively. He also identified the accused.
10. During his cross examination PW-6 stated that he was not present at the time informer gave information to SHO and that Inspector Rakesh Giri had asked public persons to join investigations on the way to informed place. The PW-6 was unable to state about the measurements of weapon and for identification he stated that katta had a thread rolled over its butt. He also stated that he had not State Vs. Devender 5 out of 13 6 drawn up any memo of return of seal by HC Ram Prashad on next date and that he had finally left the spot at 12.15 pm. He was unable to tell as to who had deposited the weapon in Malkhana or when.
11. The PW-4, HC Ram Prashad, was also one of the members of the raiding party headed by PW-6. He too deposed as to how accused Devender was apprehended from the spot on receipt of signal from Inspector Rakesh Giri. He proved sketch of knife as Ex.PW-4/A and stated that the said sketch had been prepared by him. He also proved the seizure memo of fire arm and cartridge as Ex.PW-4/B and arrest and personal search memos of accused as Ex.PW-2/C and 2/D respectively. The case property as well as accused were duly identified by PW-4.
12. During his cross examination this witness also reiterated that several public persons had been asked by Insp. Rakesh Giri to join investigations but refused. He was unable to tell the position taken by Insp. Rakesh Giri when he had gone to overhear the conversation of accused persons. He rather stated that he was unable to see either the accused or to hear their conversation from the place State Vs. Devender 6 out of 13 7 where he was positioned. According to PW-4 accused were apprehended from the park on receiving signal from Additional SHO and that said place was about 10/15 paces from the place where all the accused had collected.
13. The PW-8, HC Jagdish Chand, who is the other member of raiding party headed by PW-6, deposed on the lines of PW-4 and PW-6. He also stated that he had got case FIR registered at Police Station at instance of SI Manoj Kumar. He too identified accused as well as case property.
14. During his cross examination he denied that team of Insp. Rakesh Giri was not visible from the place where their team was present. He also stated that accused had arrived at the spot after the raiding party had reached and that all the accused had come together on foot. He was unable to tell how many parcels of case property had been prepared at the spot and stated that they had finally left the spot at 2.30 am.
15. The PW-2, SI Tejpal, had taken over the investigations of the case after the registration of FIR. He deposed that on reaching the spot SI Manoj Sinha handed over to him seizure memo of a Katta and a cartridge along with said katta and State Vs. Devender 7 out of 13 8 cartridge and that site plan Ex.PW-2/A was prepared by him at pointing out of SI Manoj Sinha. He proved personal search and arrest memo of accused as Ex.PW-2/B and 2/C; body inspection memo of accused as Ex.PW-2/D; disclosure statement of accused as Ex.PW-2/E and sanction U/S 39 Arms Act which he had obtained from Additional DCP, Central District, as Ex.PW-2/F. He also stated that during the course of investigations, he recorded the statement of witnesses and sent the exhibits in the case to FSL Malviya Nagar through HC Shivdan Singh on 01.08.02.
16. During his cross examination PW-2 stated that he was in uniform and was carrying his service weapon with him and that at that time place of incident was not being accessed by public persons. He also stated that all the writing work was done by him while sitting on stone/bench type structure lying under the Banyan tree and that other Investigating Officers' were busy investigating their respective cases at some distance from him.
17. After prosecution evidence was closed statement of accused was recorded. Accused termed all the incriminating evidence against him to be incorrect. He stated that he had State Vs. Devender 8 out of 13 9 been falsely implicated in the case when he came to meet his sister who stays at Janakpuri near Dilshad Garden. He declined to lead any evidence in his defence despite opportunity having been granted.
18. Final Arguments have been heard. Ld. Addl. P.P. has contended that prosecution has succeeded in proving its case against accused beyond any reasonable doubt and he is liable to be convicted for offence he has been charged with. On the other hand, Ld. Counsel for accused has contended that accused is innocent and has been falsely implicated in the case and that no fire arm was recovered from possession of the accused.
19. I have heard Ld. Addl. P.P. as well as Sh. F. C. Giri, Ld. Counsel for accused, and perused record as well as testimony of witnesses carefully.
20. Though there is no hard and fast rule that testimony of police witnesses cannot be relied upon for the purpose of drawing conclusion of the guilt of the accused, however, at the same time court has to be cautious in its approach. As a note of caution whenever in a case independent public witnesses are available, then there should be a genuine effort State Vs. Devender 9 out of 13 10 by the police to join said witnesses in investigations of the case.
21. In case of Pawan Kumar Vs State, 1981 Cr.L.J Delhi recovery of knife was stated to have been effected from the accused without any effort by the police to join any independent witness. It was held by the Hon'ble Delhi High Court that at least the investigating officer should have made an earnest effort to join the independent witnesses and that was a circumstance throwing doubt upon the arrest and recovery of knife from the person of the accused.
22. Further in the case of Sans Pal Singh Vs State of Delhi, AIR 1999 SC 49, conviction of an accused under Section 5 of the Terrorist and Disruptive Activities (Prevention) Act,1987 read with Section 25 of Arms Act was set aside by Hon'ble Supreme Court since public witnesses, though available, were not associated with the recovery by the investigating Officer.
23. In the present case it is apparent from the testimony of the police witnesses that though several public witnesses were available no genuine effort was made by the State Vs. Devender 10 out of 13 11 concerned Investigating Officers, either before the registration of the FIR or thereafter, to join any public person in the investigations of the case. Mere bald statement of the police witnesses that none from the public was willing to join investigations is not by itself sufficient to absolve the investigating officer of the responsibility of joining independent witnesses in recovery unless it is shown what efforts were made to achieve this end. More particularly whether names and addresses of any such person was noted or whether any notice as per law was served upon them for their failure/ refusal to join investigations and what was the reason given for such refusal. Genuine efforts apparently have not been made by the investigating officer in the present case to fortify the conclusion of genuiness of recovery by associating independent witnesses in the investigations despite their availability.
24. Moreover the arrest of accused Devender was affected in the present case pursuant to secret information received at Police Station Hauz Qazi that some persons would assemble at a specified place and were preparing to commit dacoity. This case was registered against accused as a State Vs. Devender 11 out of 13 12 consequence of recovery of firearm from his possession upon his apprehension, alongwith four others, in case FIR 147/02. The arrest of accused has been shown at 12.30 am on 05.07.02 in case FIR 147/02 whereas in case FIR 148/02 his arrest is shown at 11.10 pm on 05.07.02. There is a clear discrepancy in the date and time of arrest of the accused which does not stand explained by the prosecution.
25. There are other material contradictions as well in the case put forth by the prosecution. According to PW-6 the katta recovered from the possession of the accused had thread rolled over its butt. This, however, is neither reflected from Ex.PW-4/A, sketch of the knife, nor any other prosecution witness has described the case property, namely katta Ex.P-1, to be having this distinctive mark of identification. All these loose pieces in evidence led by the prosecution make the case as put forth by it unreliable. When this coupled with the fact that no genuine effort was made by concerned police officers to join any independent witnesses in recovery, though several persons were present at the spot, it is not possible to draw any conclusion of guilt of the accused based only on testimony of the police State Vs. Devender 12 out of 13 13 witnesses.
26. In my opinion prosecution has completely failed to prove its case under Section 25 Arms Act against accused in the present case and accordingly accused Devender is acquitted of charges U/s 25 Arms Act.
27. Accused is on bail. His bail bond canceled and surety is discharged.
File be consigned to record room.
Announced in the open court today
i.e. on 09.07.09 (ILLA RAWAT)
ASJ, FTC (CENTRAL)/DELHI
State Vs. Devender 13 out of 13