Delhi District Court
State vs . Parvinder @ Bunty on 7 September, 2022
IN THE COURT OF MS. ARCHANA BENIWAL
CHIEF METROPOLITAN MAGISTRATE:
SOUTH WEST DISTRICT, DWARKA COURT,
NEW DELHI
FIR No. 38/2015
PS Crime Branch SW
State Vs. Parvinder @ Bunty
U/s 25 Arms Act
JUDGMENT
CIS No. : 89/2017
Date of institution of the case : 04.01.2017
Date of commission of offence : 16.03.2015
Name of the complainant : HC Suresh Kumar
No. 226/Crime, PIS No. 28900189,
Inter State Cell, Crime Branch,
Chankyapuri, New Delhi.
Name of accused and address : (1) Parvinder @ Bunty
S/o Sh. Jitender
R/o Village Dahkora,
Tehsil, Bahadurgarh, Distt. Jhajjar,
PS Sadar Bahadur Garh, Haryana
(2) Parveen Kaushik (already
convicted vide order dated
31.07.2018)
Offence complained of : U/s 25 Arms Act
Plea of the accused : Pleaded not guilty.
Final order : Acquittal
Date on which judgment reserved : 21.07.2022
Date of judgment : 07.09.2022
FIR No. 38/2015, PS Crime Branch SW
State Vs. Parvinder @ Bunty Page No. 1 of 13
BRIEF STATEMENT OF THE FACTS FOR DECISION:
1. The brief facts of the case of the prosecution are that on 16.03.2015, at about 02:15 PM, near AFCON Pvt. Ltd., Sector-23, Dwarka, New Delhi accused Parvinder @ Bunty was found carrying one double barrel gun alongwith four live cartridges belonging to co-accused Parveen Kaushik(already convicted) without having any valid Arms License for possessing the same, in contravention to the notification issued by Govt. of Delhi and further the weapon license of co-accused Parveen Kaushik was valid for Haryana only and its term had also expired.
2. IO conducted the investigation. After completion of the investigation, charge-sheet was filed against accused Rishi Raj and Parvinder @ Bunty u/s 25 Arms Act and against accused Parveen Kaushik u/s 29/30 Arms Act. Cognizance of offence was taken and accused Parvinder @ Bunty and Parveen Kaushik were summoned to face trial. Accused Rishiraj was not summoned by the court as he had been placed in column no.12 of the chargesheet and the evidence of his involvement in present offence on record was found insufficient to summon him as an accused in the present case. The copy of chargesheet was supplied under Section 207 Cr.P.C.
3. After giving opportunity to State as well as accused persons for making submissions on charge, a formal charge for offence u/s 25 Arms Act was framed against accused Parvinder @ Bunty and for offence u/s 29/30 Arms Act was framed against accused Parveen Kaushik to which they pleaded not guilty and claimed trial.
4. During trial, vide order dated 31.07.2018, accused Parveen Kaushik pleaded guilty for the offence punishable u/s 29/30 Arms Act. He was FIR No. 38/2015, PS Crime Branch SW State Vs. Parvinder @ Bunty Page No. 2 of 13 convicted and sentenced to pay fine of Rs.2000/- each for the offences punishable u/s 29 Arms Act and 30 Arms Act.
5. The prosecution, in support of its case, has examined seven witnesses.
6. PW-1 Ct. Brijesh Pandey has deposed before the court that on 16.03.2015, at around 12:45 PM, one secret informer visited their office and informed HC Suresh that one person namely Rishiraj who used to carry illegal arms with him and was also involved in one attempt to murder case, will come alongwith his companion on white colour Scorpio bearing No. DL8CAC1092 at around 01:30 PM at Sector-23, Dwarka and if raided, he can be apprehended. Thereafter, HC Suresh produced secret informer before SI Sandeep Yadav who after interrogation, informed Inspector P.C. Yadav regarding secret information. Inspector P.C. Yadav asked SI Sandeep to take appropriate action. Thereafter, SI Sandeep formed the raiding party consisting himself, HC Suresh, HC Bijender, HC Dinesh, HC Dinesh, Ct. Satyawan and Ct. Sandeep including secret informer. SI Sandeep was leading the team. Thereafter, SI Sandeep lodged DD No. 12A regarding departure. They left the office in two vehicles i.e. one Santro and Dezire Swift. PW-1 alongwith SI Sandeep Yadav, HC Suresh and secret informer were sitting in the Dezire Swift and remaining members of the team was in Santro Car. At around 1.25 PM, they reached at Red Light Sector-10, Dwarka, Near Jal Board. SI Sandeep requested four five persons to join the investigation, however, they all refused to join the investigation without disclosing their names and addresses. No notice was served upon them due to paucity of time. At around 01:30 PM, they reached Dwarka Sector-23, Near Red Light and they saw one Scorpio Car bearing No. DL8CAC1092 was stationed near FIR No. 38/2015, PS Crime Branch SW State Vs. Parvinder @ Bunty Page No. 3 of 13 Afcon Company Pvt. Ltd. Secret informer told them that the said car belongs to Rishi but he was not sitting in the said car at that time. However, some other person was sitting in the car. They waited for some time for the arrival of Rishi but he did not come. Thereafter, raiding party moved towards the said car. SI Sandeep enquired from the person who was sitting on the driver seat in the said car. The said person disclosed his name as Parvinder @ Bunty. The said person was having one double barrel gun between his knees. SI Sandeep took cursory search of accused Parvinder and two live cartridges were recovered from right side pocket of his pant. SI Sandeep also checked double barrel gun and found it was containing two live cartridges. SI Sandeep unloaded the double barrel gun. HC Suresh placed all the four recovered cartridges and barrel gun on white paper and measure the same. The total length of the double barrel gun was 56.5 cm, length of the body was 21.5 cm and the length of the butt was 13 cm. The bore of the gun was made of steel light. Design of flowers/leaves was engrafted on the bore. Eagle Santokoo Gun Work was written on the side butt. Length of the cartridge was 12 cm and RC12 Italy was written on the bottom of the cartridges. IO HC Suresh also prepared the sketch of the same vide Ex. PW1/A. Thereafter, IO prepared the pulinda of the recovered articles with the white cloth. IO sealed the same with the seal of SY. IO seized the recovered cartridges and double barrel gun vide seizure memo Ex. PW1/B. IO also seized Scorpio Car vide seizure memo Ex. PW1/C. IO also prepared the FSL form. Seal after use was handed over to him. Thereafter, IO prepared rukka and handed over the same to PW-1 for registration of FIR. Accordingly, he went to PS and got the FIR registered. After registration of FIR, he came back at the spot and handed over copies of FIR alongwith original rukka to HC Sant Raj for further investigation of the present case. HC Suresh handed over case property alongwith the property of the present case and the accused to HC Santraj.
FIR No. 38/2015, PS Crime Branch SW State Vs. Parvinder @ Bunty Page No. 4 of 13 Thereafter, they brought the accused to the office where he was arrested vide arrest memo Ex. PW1/D. He again stated that accused was arrested at the spot thereafter, he was brought to the office. He was duly cross-examined by Ld. Defence counsel.
7. PW-2 Ct. Sandeep has deposed before the court that on 17.04.2015, he deposited one pullanda sealed with the seal of 'SY' and one FSL Form after taking the same from malkhana on the direction of IO, to FSL Rohini vide RC No. 104/21/15. After depositing the same, he handed over counter receipt of the same to MHCM. He was not cross-examined by Ld. Defence counsel despite opportunity.
8. PW-3 ASI Suresh Kumar proved DD No. 12-A regarding departure from police station as Ex. PW3/A, rukka prepared by him as Ex. PW3/B, site plan prepared by HC Sant Raj as Ex. PW3/C and case property i.e. Cartridges and double barrel gun as Ex. P1. He was duly cross-examined by Ld. Defence counsel.
9. PW-4 Sh. Gopal Kishan, Dealing Assistant, Transport Department proved report of Sh. Ashok Kumar, MLO, Zonal Officer as Ex. PW4/A. He was not cross-examined by Ld. Defence counsel despite opportunity.
10. PW-5 ASI Jag Narain proved relevant entry at serial no. 2195 in register no. 19 regarding depositing one sealed pullanda alongwith one Scorpio car bearing registration no. DL8CAC1092 as Ex. PW5/A. The said sealed pullanda was sent to FSL through Ct. Sandeep vide RC 104/21 on 17.04.2016. The said Scorpio car was released on superdari on 14.07.2015. He was not cross-examined by Ld. Defence counsel despite opportunity.
FIR No. 38/2015, PS Crime Branch SW State Vs. Parvinder @ Bunty Page No. 5 of 13
11. PW-6 Sh. Sunil Kumar proved copy of register vide which the licence was issued to Praveen Kaushik as Ex. PW6/A, verification report as Mark-X1 and verification report by the District Magistrate, Rohtak as Ex. PW6/B. He was not cross-examined by Ld. Defence counsel despite opportunity.
12. PW-7 ASI Santraj is the IO of the present case. He deposed that on 16.03.20215, investigation was marked to him after registration of FIR on the basis of complaint of HC Sudesh Kumar. He reached at the spot i.e. Sector- 23, Dwarka, ASCON Pvt. Ltd. where HC Suresh, HC Dinesh, HC Dinesh-II, Ct. Sandeep, SI Sandeep and Ct. Satyawan met him. They had apprehended one accused namely Parvinder @ Bunty. First IO HC Suresh handed over the custody of accused to him and also handed over a sealed pulinda having seal of SY and sketch memo of the arms recovered from the possession of the accused. In the meanwhile, Ct. Brijesh Pandey also came at the spot who gave copy of FIR and original rukka to him. He prepared site plan Ex. PW3/C. IO had also handed over the seizure memo of one Scorpio Car. Scorpio car was also stationed near the spot and he took it in his possession. He arrested accused vide arrest memo Ex. PW1/D and conducted personal search of accused vide personal search memo Ex. PW7/A. He recorded disclosure statement of accused vide Ex.PW7/B. Thereafter, accused was sent to custody of PS Crime Branch, Nehru Place. Thereafter, accused was sent for medical examination. They returned at the office of Crime Branch, Chankya Puri where he recorded statement of recovery witnesses. Thereafter, he conducted raid at the address of co-accused Rishiraj on disclosure statement of accused Parvinder @ Bunty but accused Rishiraj was not found. SI Sandeep obtained 3 days police custody of the accused Parvinder @ Bunty to search for co-accused Rishiraj and they conducted raid as per the address FIR No. 38/2015, PS Crime Branch SW State Vs. Parvinder @ Bunty Page No. 6 of 13 disclosed by accused Parvinder @ Bunty but accused Rishiraj was not found at the said place. Later on accused Rishiraj joined the investigation and he recorded his disclosure statement vide Ex. PW7/C. The seized arm was a licensed weapon in the name of Praveen Kaushik. At the time of recovery, the said license had already expired. He sent notice to Praveen Kaushik to join the investigation. He recorded disclosure statement of accused Praveen Kaushik vide Ex. PW7/D. SI Sandeep verified the license of the accused Praveen Kaushik from the District Magistrate, Rohtak and obtained relevant record from the office of District Magistrate. He verified the ownership of the Scorpio Car bearing no. DL8CAC1092 and came to know that it was in the name of Rishiraj. RC of the said vehicle was seized vide Ex. PW7/E. He came to know that accused has further sold his vehicle to one Sanjeev. The vehicle was released to Sanjeev on superdari by the order of the court. Thereafter, he directed the MHC(M) to send the case property for FSL test and it was sent through Ct. Sandeep who deposited the same in FSL Rohini. He obtained FSL report and obtained sanction u/s 39 Arms Act. He was duly cross-examined by Ld. Defence counsel.
13. Vide separate statement recorded u/s 294 Cr.P.C on 09.10.2015, accused had admitted the documents i.e. FIR No. 38/2015 vide Ex. A1, FSL result vide Ex. A2, sanction u/s 39 of Arms Act vide Ex. A3, superdarinama vide Ex. A4, DD No. 12 dated 16.03.2015 vide Ex.PW3/A and verification report of Arms Licence vide Ex. A5. Hence, the above documents were ordered to be read in evidence without its formal proof and the examination of DO/HC Pramod Kumar, SI Sandeep, Dr. N.P. Waghmare, Concerned Clerk from DM office, Shri Bhisham and Sanjeev Kumar was dispensed with.
14. No other witness was examined by the prosecution and hence, PE FIR No. 38/2015, PS Crime Branch SW State Vs. Parvinder @ Bunty Page No. 7 of 13 was closed.
15. Thereafter, statement u/s 313 Cr.P.C. of the accused was recorded, wherein all the incriminating material that appeared in evidence against him, were put to him to which he stated that he is innocent and has been falsely implicated in this case. Accused opted not to lead defence evidence.
16. Final arguments advanced by Ld. APP for State and ld. counsel for accused heard. Case file perused carefully.
17. After hearing ld. APP for the state and ld. counsel for the accused and having gone through the case file carefully and meticulously, it is observed by the court that it is the case of prosecution that on the fateful day, accused was found in possession of one double barrel gun and four live cartridges without any permit or license. The court is of the view that to prove the charge against the accused, the prosecution is required to prove the allegations beyond reasonable doubt.
18. The relevant portion of Arms Act is reproduced as under:
Section 25: Punishment for certain offences:-
(1) whoever-
(a) Manufactures, sells, transfers, converts, repairs, tests or proves, or exposes or offers for sale or transfer, or has in his possession for sale, transfer, conversion, repair, test or proof, any arms or ammunition in contravention of section 5; or
(b) Shortens the barrel of a firearm or converts an imitation firearm into a firearm in contravention of section 6; or 2[***]
(c) bring into, or takes out of, India, any arms or ammunition of any class or description in contravention of section 11, shall be punishable with imprisonment for a term which not be less than three years but which may extend to seven years and shall also be liable to fine.
19. As per the prosecution case, the seizure memo of the recovered FIR No. 38/2015, PS Crime Branch SW State Vs. Parvinder @ Bunty Page No. 8 of 13 weapon and cartridges vide Ex. PW1/B and seizure memo of the seized Scorpio Car vide Ex. PW1/C was prepared before the preparation of rukka. However, the said documents contain the number of the FIR which shows that either the FIR number was inserted later on or they were prepared before the time they have been shown to be prepared. Furthermore, the weapon and cartridges have been seized by the IO on 16.03.2015 but as per the FSL report, the same have been deposited in the FSL on 17.04.2015. Thus, the chances of tampering with the case property cannot be ruled out and the delay in sending the articles for examination is fatal for the prosecution. While holding so, I am relying upon judgment of Apex Court in Deshraj @ Dass Vs. State 83 (2000) DLT 262, wherein Apex Court while relying upon the judgments of Hon'ble Supreme Court in Baldev Singh vs. State of Punjab 1991 CAR 81 and Santa Singh vs. State of Punjab AIR 1956 SC 526, had held that the delay of 12 days in sending the samples to the CFSL proved fatal to the prosecution.
20. In the rukka Ex.PW3/B as well as in the testimony of all the witnesses, who are police officials it has been stated that police officials did ask some labourers at the nearby construction site at Afcon Pvt. Limited to join the proceedings however they refused citing just reasons. However, it is clear from the testimony of all the police witnesses that no sincere efforts were made to join independent public witnesses in the recovery/investigation of the present case. PW1 has deposed in his cross-examination that all the persons who were asked to join the raiding party were labourers working at the nearby construction site but none agreed to join the investigation. PW1 and PW-3 have also admitted that no notice was issued to them for non- joining the raiding party. Thus, the prosecution has failed to prove that any serious effort was made by any of the police officials of the raiding party FIR No. 38/2015, PS Crime Branch SW State Vs. Parvinder @ Bunty Page No. 9 of 13 including the IO to join public witnesses in the proceedings. It is a well settled proposition that non-joining of public witness shrouds doubt over the fairness of the investigation by police.
21. In case law reported as "Anoop Joshi Vs. State" 1992 (2) C.C. Cases 314 (HC), High Court of Delhi had observed as under:-
"18. It is repeatedly laid down by this Court 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 evidence that no such sincere efforts have been made, particularly when we find that shops were open and one or two shop-keepers 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 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".
22. In a case law reported as "Roop Chand Vs. The State of Haryana"
1999 (1) C.L.R. 69, the Punjab & Haryana High Court held as under:-
"3. I have heard the learned counsel for the parties and gone through the evidence with their help. The recovery of illicit liquor was effected from the possession of the petitioner during noon time and it is in the evidence of the prosecution witnesses that some witnesses from the public were available and they were asked to join the investigation. The explanation furnished by the prosecution is that the independent witnesses were asked to join the investigation but they refused to to so on the ground that their joining will result into enmity between them and the petitioner".
"4. It is well settled principle of the law that the Investigating agency should join independent witnesses at the time of recovery of contraband articles, if they are available and their failure to do so in such a situation casts a shadow of doubt on the prosecution case. In the present case also admittedly the independent witnesses were available at the time of recovery but they refused to associate themselves in the investigation. This explanation does not inspire FIR No. 38/2015, PS Crime Branch SW State Vs. Parvinder @ Bunty Page No. 10 of 13 confidence because the police officials who are the only witnesses examined in the case have not given the names and addresses of the persons contacted to join it is a very common excuse that the witnesses from the public refused to join the investigation. A police officer conducting investigation of a crime is entitled to ask anybody to join the investigation and on refusal by a person from the public the Investigating Officer can take action against such a person under the law. Had it been a fact that the witnesses from the public had refused to join the investigation, the Investigating Officer must have proceeded against them under the relevant provision of law. The failure to do so by the police officer is suggestive of the fact that the explanation for non-joining the witnesses from the public is an after thought and is not worthy of credence. All these facts taken together make the prosecution case highly doubtful".
23. Non joining of public witnesses despite availability casts a doubt on the fairness of the investigation. Reliance is placed on paragraph 6 of the judgment in Pawan Kumar v. The Delhi Administration, 1989 Cri.L.J. 127, wherein the Hon'ble High Court of Delhi had observed as under:
" ... According to Jagbir Singh, he did not join any public witness in the case while according to Kalam Singh, no public person was present there. It hardly stands to reason that at a place like a bus stop near Subhas Bazar, there would be no person present at a crucial time like 07.30 p.m. when there is a lot of rush of commuters for boarding the buses to their respective destinations. Admittedly, there is no impediment in believing the version of the Police officials but for that the prosecution has to lay a good foundation. At least one of them should deposed that they tried to contact the public witnesses or that they refused to join the investigation. Here is a case where no effort was made to join any public witness even though number of them were present. No plausible explanation from the side of the prosecution is forthcoming for not joining the independent witnesses in a case of serious nature like the present one. It may be that there is an apathy on the part of the general public to associate themselves with the Police raids or the recoveries but that apart, at least the I.O. should have made an earnest effort to join the independent witnesses. No attempt in this direction appears to have been made and this, by itself, is a circumstance throwing doubt on the arrest FIR No. 38/2015, PS Crime Branch SW State Vs. Parvinder @ Bunty Page No. 11 of 13 or the recovery of the knife from the person of the accused."
24. 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 but there are other circumstances too, as discussed hereinafter, which raise suspicion over the prosecution version.
25. The seal used for sealing the recovered weapon and cartridges remained with a junior police official only and it has not been proved that the seal was handed over to any other independent public person and therefore, the possibility of case property being tempered with cannot be ruled out. Reference may be made to the judgment of Subeg Singh v. State of Haryana, reported as 1992(3) RCR (Criminal) 596. In the judgment titled as Karambir v. State of Delhi reported as 1997 JCC 520 it has been held that absence of proof that the specimen impression of the seal was deposited with MHCM(M) along with case property results in miscarriage of justice and is fatal to the prosecution.
26. 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 benefit must necessarily be allowed to the accused.
FIR No. 38/2015, PS Crime Branch SW State Vs. Parvinder @ Bunty Page No. 12 of 13
27. Thus, in view of the foregoing analysis, 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. Accused Parvinder @ Bunty is hereby acquitted of the offence punishable under Section 25 of Arms Act.
28. Accused be set at liberty.
Pronounced in the open court on this 07th September 2022 (ARCHANA BENIWAL) Chief Metropolitan Magistrate South West District, Dwarka Courts New Delhi FIR No. 38/2015, PS Crime Branch SW State Vs. Parvinder @ Bunty Page No. 13 of 13