Delhi District Court
State vs : Mahinder Singh on 13 April, 2012
IN THE COURT OF SH. SUDHANSHU KAUSHIK, METROPOLITAN
MAGISTRATE02, SOUTHEAST DISTRICT, SAKET COURTS, NEW
DELHI
State Vs : Mahinder Singh
FIR No : 305/04
U/s : 25 of Arms Act
PS : OIA
Date of Institution: 03.01.2006
Date of Judgment reserved for: 13.04.2012
Date of Judgment: 13.04.2012
Brief Details of the case
A. Sl. no. of the case 221/2/06
B. Offence complained of
or proved U/s 25 of Arms Act
C. Date of Offence 16.04.2004
D. Name of the complainant HC Pradeep Kumar
No 227/SD, PSOIA
E. Name of the accused Mahender Singh
s/o Sh Bahadur Singh
r/o A81, 60 Futa road,
Molar Band Extension, Badar
Pur, New Delhi
F. Plea of the accused Pleaded not guilty.
G. Final order Convicted
H. Date of Order 13.04.2012
BRIEF REASONS FOR DECISION:
1.The case of the prosecution is that on 16.04.2004, at around 7.15 pm, at East Gate, VP Singh Camp, Tehkhand, Okhla Industrial Area (OIA), New Delhi, accused Mahinder Singh was found in possession of a 305/04 1/10 country made revolver and a live cartridge without any valid license, in contravention of section 3 of The Arms Act. On the said date, HC Pradeep and Ct. Dharmender posted at PSOIA were on patrolling duty. At around 7.15 pm, during the course of their patrolling duty, they reached TKD village, OIA, New Delhi and saw that a boy was coming from the opposite direction. On seeing the police officials, the boy turned back and started going in the opposite direction. The police officials became suspicious and they apprehended the boy after chasing him. The boy disclosed his name as Mahinder. On carrying out the personal search, one country made revolver and a live cartridge was recovered from the right side pocket of his pants. The information was conveyed to the local police station and SI A.K. Singh arrived at the spot. The country made revolver and live cartridge was seized and on the basis of the original rukka brought to the police station by Ct. Dharmender, the present FIR no 305/04 under Section 25 of Arms Act was registered at police station OIA.
2. The necessary investigation was carried out and the requisite documentation was done. On completion of the investigation, chargesheet was put to the Court. The copies of chargesheet were supplied to accused and charge under Section 25 of Arms Act was framed against him to which he pleaded not guilty and claimed trial.
3. In order to establish its case, the prosecution examined four witnesses.
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PW1 HC Sugan Singh (Duty officer) has mentioned about the registration of the FIR.
PW2 HC Pradeep Kumar (Complainant/First Investigating Officer) has deposed that on 16.04.2006, he was on patrolling duty alongwith Ct Dharmender. He stated that accused was chased and apprehended by them and a country made revolver was recovered from his possession. He has also mentioned about the recovery of a live cartridge from the accused and about the arrival of SI A.K. Singh. He stated that 45 public persons were requested to join the investigation but none agreed and left the spot without disclosing their names and addresses. He stated that the IO prepared the rough sketch of the revolver which is Ex PW2/A and the seized fire arm as well as the live cartridge and sealed them with the seal of 'PK'. The seizure memo is Ex PW2/B. He stated that Ct. Dharmender took the rukka to the police station and returned to the spot alongwith a copy of the FIR. The arrest memo of the accused is Ex PW2/F. The case property carrying the seal of FSL, Hyderabad was produced by the MHC(M) and it was identified by the witness. He stated in his cross examination that before leaving the police station, departure entry was made by him. That accused was apprehended from an isolated place which is far away from the residential colony.
PW3 Inspector Jaswant Singh (Second Investigating Officer) has mentioned that he collected the result from FSL and 305/04 3/10 obtained sanction u/s 39 of the Arms Act.
PW4 HC Dharmender ( recovery witness) has supported the recovery. He has deposed on the lines of PW2 HC Pradeep Kumar. He stated in his cross examination that public persons were requested to join the investigation but they left the spot without disclosing their names and addresses.
4. The FSL report and the sanction were put to the accused under section 294 Cr PC. He admitted both the documents. Separate statement in that regard was recorded. The statement of the accused was recorded under Section 281 Cr PC read with section 313 Cr. PC. He chose not to examine any defence witness.
5. I have heard Ld. APP for State and Ld. Defence Counsel and carefully gone through the entire material available on record.
6. Ld. APP has contended that prosecution has proved its case beyond shadow of doubt. He has argued that all the material witnesses have entered into witness box and they have fully supported the prosecution's case. He has argued that minor contradictions are bound to appear in any criminal matter and in the case at hand, there is no material contradiction which may create any doubt about the authenticity and veracity of the prosecution case and all the documents have been duly proved.
7. On the other hand, Ld. Defence Counsel has assailed the prosecution's case. He has argued that there is no justification as to why 305/04 4/10 independent witnesses were not joined in investigation. He has also argued that there are material contradictions and discrepancies in the version of the witnesses which makes it evident that the country made revolver and the live cartridge were planted upon accused.
8. I have given my thoughtful consideration to the rival contentions and carefully perused the entire material available on record.
9. There are two recovery witnesses i.e.HC Dharmender (PW4) and HC Pradeep Kumar (PW2). Both of them have deposed on similar lines. The seizure memo of the revolver and live cartridge is Ex. PW2/A. The witnesses have identified their signatures on the said seizure memo at Point 'A' and point 'B' respectively. The case property (recovered revolver and live cartridge) was produced from the Malkhana and it was identified by them as Ex. P1. The sealed pullanda was carrying the seal of FSL. The record reveals that the deposition of these witnesses about the recovery part has gone unrebutted.
10. Ld. Defence Counsel has vehemently argued that accused should be acquitted as there is no public witness to the recovery. Admittedly, no independent public witness has been joined in the investigation. Only police personnel are witnesses to the recovery, however, the said fact itself cannot be the sole ground for discarding their testimony. Statutory desirability in the matter of search and seizure is that there should be support from unbiased and neutral corner. The 305/04 5/10 search before an independent witness imparts much more authenticity and credit worthiness to the search and seizure proceedings. Such safeguard is intended to avoid criticism of arbitrary and highhanded action against police officers. This is to lend credibility to the procedure relating to search and seizure. Indubitably, if the evidence of the official witnesses is found to be credible and coherent, same can alone prove to be foundation for conviction and normally, prosecution case cannot be thrown away straightaway merely because chief plank of evidence is that of official witnesses. However, it puts the Court on guard and the testimony of such official witnesses is, in such a situation, liable to be scrutinized with extra caution. Simultaneously, prosecution has to offer satisfactory explanation for not associating independent witnesses. In such a situation, courts are fully justified in finding out the reasons as to why no such person came forward and whether the investigating agency did its best to persuade independent persons.
11. The police officials have mentioned that they were not having any prior information about the accused and he was apprehended during the course of their patrolling duty. Both of them have stated that accused was apprehended from an isolated place. In such circumstances, the testimony of police personnel cannot be brushed aside merely because no public witness has been joined in investigation. The provisions as provided under Section 100 (4) Cr. PC are only directory and failure to comply with the said provisions will not 305/04 6/10 invariably be fatal for the prosecution's case. It has been held by the Hon'ble Supreme Court in State of Punjab Vs. Balbir Singh reported in AIR 1994 SC 1872 that "The scope of these two sections (section 100 and 165 of Code of Criminal Procedure) have been examined in a number of cases. In Wasan Singh v. State (1981) 2 SCC this Court has clearly held that irregularity in a search cannot vitiate the seizure of the articles. In Suder Singh v. State of Uttar Pradesh, AIR 1956 SC 411, it is held that irregularity cannot vitiate the trial unless the accused has been prejudiced by the defect and it is also held that if reliable local witnesses are not available the search would not be vitiated. In State of Maharashtra v. P.K. Pathak, AIR SC 1224, it is held that absence of any independent person from the locality to witness the search does not affect the trial and the conviction of the accused under the Customs Act. In Radha Kishan v.
State of Uttar Pradesh, 1963 SC 822, it is held that irregularity in a search would, however, cast a duty upon the Court to scrutinise the evidence regarding the search very carefully. In Matajog Dubey v. H.C. Bahri, AIR 1956 SC 44 it is held that when the salutary provisions have not been complied with, it may, however, affect the weight of the evidence in support of the search or may furnish a reason for disbelieving the evidence produced by the prosecution unless the prosecution properly explains such circumstance which made it impossible for it to comply with these provisions.......
.....This again depends on question whether the official has deliberately failed to comply with these 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."
12. On applying the abovesaid provisions to the present matter, it is evident that the reasons mentioned by the police officials for their failure to join independent witness is to be appreciated in the facts of each case. The explanation tendered by HC Pradeep Kumar and HC 305/04 7/10 Dharmender for not joining public persons cannot be rejected outrightly. Both the recovery witnesses have deposed in sync. Both of them have categorically mentioned that a country made revolver and a live cartridge was recovered from the possession of the accused. The police officials had no information that accused would be found carrying a fire arm and a live cartridge. There was hardly any time with them to join independent witness in the recovery. Both of them have categorically mentioned that public persons were not available at the spot. HC Pradeep Kumar has stated that after SI A.K. Singh reached the spot, efforts were made to join public persons in investigation but none agreed and they left the spot without disclosing their name addresses.
13. There is apathy on the part of general public to associate themselves with the police raids or recoveries. Initially, at the time when the accused was apprehended by HC Pardeep Kumar and Ct. Dharmender, no public person was present at the spot. After the arrival of SI A.K. Singh, efforts were made by the police officials to join public witnesses but none agreed. The record show the police officials have made earnest effort to join independent witnesses. I am of the considered view that there is no impenitent in believing the version of the police officials. There is no reason to doubt the testimony of these witnesses merely because they are police personnel. It has been held by the Hon'ble Supreme Court in Karamjit Singh Vs. State (Delhi Administration) reported in AIR 2003 SC 1311 305/04 8/10 "........The testimony of police personnel should be treated in the same manner as testimony of any other witness and there is no principle of law that without corroboration by independent witnesses their testimony cannot be relied upon. The presumption that a person acts honestly applies as much in favour of police personnel as of other persons and it is not a proper judicial approach to distrust and suspect them without good grounds. It will all depends upon the facts and circumstances of each case and no principle of general application can be laid down....."
14. In the light of the said judgement, the testimony of the police personnel cannot be discarded. HC Pradeep has deposed that after the accused was apprehended, the information was immediately conveyed to the local police station and SI A.K. Singh arrived at the spot. He has mentioned that the entire investigation was done by SI A.K. Singh and the documents were prepared at the spot itself. The FIR has been registered promptly and there is no delay which may create any doubt. The arrest memo of accused has been proved on record as Ex. PW2/F. It further lends support to the version of witnesses that accused was apprehended at the spot. The seized country made revolver and the live cartridge were immediately sealed in a pullanda with the seal of 'MS' and thereafter, the sealed pullanda was sent to APFSL, HYD.
15. In view of the discussions made in abovestated paras, I have reached a conclusion that charge against the accused has been established beyond reasonable doubt. The report of the FSL is on record. It is admissible in terms of section 293 Cr PC. The accused has admitted 305/04 9/10 the said document. In the said report, Sh. G. Raja Gopal Reddy, Assistant Director, FSL Hyderabad, has mentioned that the country made pistol was test fired and it was found in working order. The fire arm was again sealed with the seal of 'APFSL, HYD'. The seal was found intact when the fire arm was produced from the malkhana. These entire chain of events has been proved. It is established that on 16.04.2006, at around 7.15 pm, the accused Mahinder was found in possession of a country made revolver and a live cartridge without carrying a valid license. The accused stands convicted for committing the offence punishable under Section 25 of Arms Act.
Announced in open Court (Sudhanshu Kaushik)
on this day of 13.04.2012 Metropolitan Magistrate
Saket Courts, Delhi
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