Delhi District Court
State vs Pappu on 15 October, 2024
Page 1 of 13
IN THE COURT OF RISHABH KAPOOR:
JUDICIAL MAGISTRATE FIRST CLASS- 05, NORTH
WEST DISTRICT ROHINI COURTS: DELHI
State Vs. : Pappu
FIR No : 214/2013
U/s : 25/54/59 Arms Act
P.S. : Mangolpuri
JUDGMENT:
1. Criminal Case No. : 528065/2016
2. Date of commission of offence : 30.03.2013
3. Date of institution of the case : 06.01.2014
4. Name of the complainant : State
5. Name and parentage of accused : Pappu
S/o Sh. Jai Shankar
6. Offense complained or proved : 25 Arms Act
7. Plea of the accused : Pleaded not guilty
8. Date on which order was reserved : 30.09.2024 9. Final order : Acquitted 10. Date of final order : 15.10.2024 FIR No.214/2013 Digitally signed State Vs. Pappu. RISHABH by RISHABH KAPOOR PS : Mangol Puri 1/13 KAPOOR Date: 2024.10.15 15:27:25 +0530 Page 2 of 13
1. The accused Pappu is facing trial for offence u/s 25 of Arms Act. The genesis of the prosecution story is that on 30.03.2013 at about 02:00 PM at K-Block Sarvodya Bal Vidhyalya, Mangolpuri Delhi, during the course of school assembly, the accused Pappu who was the student in Sarvodya Vidhyalya, Mangolpuri, Delhi, was found in possession of one desi katta. The accused was apprehended by school teacher namely, Sh. J.P. Verma and when he was attempting to get away from the spot, he was over-powered with the help of the other teachers namely, Praveen Kumar and Satish Rana and was handed over to Principal of the School namely Sh. R.D. Bhardwaj. Thereafter, the matter was informed to police and IO SI Robin Tyagi arrived at the spot. The accused was handed over to police and the weapon recovered from him was also seized by the IO. IO also prepared the draft sketch of the weapon and arrested the accused. The personal search of accused was conducted and the investigation was initiated. The alleged weapon recovered from accused was sent to FSL for testing and analysis. After completion of investigation, charge-sheet for trial of accused for the alleged offence was submitted in the Court.
2. Thereafter, the cognizance of the offence was taken by the Court and on the basis of material available on record, the charge Digitally signed FIR No.214/2013 by RISHABH RISHABH KAPOOR State Vs. Pappu. KAPOOR Date:
PS : Mangol Puri 2/13 2024.10.15
15:27:35 +0530
Page 3 of 13
for offence u/s 25 Arms Act was framed against accused to which he pleaded not guilty and claimed trial.
3. In order to establish guilt of the accused, the prosecution has examined eight witnesses in all. After prosecution evidence, the statement of accused u/s 313 Cr.P.C was recorded wherein all the incriminating circumstances were put to the accused. The accused did not lead any evidence in his defence.
4. Ld. APP for State has contended that the prosecution has established the guilt of the accused beyond all reasonable doubts with the help of coherent testimonies of the prosecution witnesses, therefore, the accused deserves to be convicted for the alleged offence.
5. Per contra, Ld. Counsel for accused has contended that the accused has been falsely implicated in the present case. It is also contended that the alleged recovery of weapon was planted on the accused. It is also contended that the fact the police has failed to join in any public person during investigation of the case is self-explanatory that the accused has been falsely implicated in the present case. With these submissions, prayer has been made for acquittal of accused in the present case.
Digitally signedFIR No.214/2013 RISHABH by RISHABH
KAPOOR
State Vs. Pappu. KAPOOR Date: 2024.10.15
15:27:46 +0530
PS : Mangol Puri 3/13
Page 4 of 13
6. Prior to delving into the merits of contentions advanced on behalf of parties, let us briefly discuss the testimonies of the material witnesses in brief.
PW-1 J.P. Verma is the complainant and the school teacher, who allegedly apprehended accused with the country- made pistol. He deposed that on 30.03.2013 he was posted as physical education teacher in Sarvodya Bal Vidhyalaya, K-Block Mangolpuri, and on that day, school result was to be declared. He deposed that there was a rule in school that students without uniform would be separated and sent out of the school. He further deposed that all the students gathered in the school ground and at that time, he noticed accused as his shirt was not tugged in and something was found hidden inside his shirt. The accused was asked to come to him to which he pleaded ignorance and upon reaching him, a pistol like object was found hidden inside his shirt. He deposed that in the meantime, teachers namely, Parveen and Satish Rana also came there and the accused alongwith the help of the above-named teacher was taken to Principal's Office. The name of accused was revealed as Pappu and call at 100 number was made by Principal. Thereafter, IO SI Robin Tyagi came to school and recorded his statement Ex. PW-1/A and prepared sketch of katta Ex. PW-1/B. He also identified katta Ex. P-1. Thereafter, he was encountered FIR No.214/2013 Digitally signed by RISHABH State Vs. Pappu. RISHABH KAPOOR PS : Mangol Puri 4/13 KAPOOR Date:
2024.10.15 15:27:55 +0530 Page 5 of 13 with the questions in the nature of cross-examination by Ld. APP for State and admitted that the katta was seized vide seizure memo Ex. PW-1/C, site plan Ex. PW-1/D was prepared, accused was arrested vide arrest memo Ex. PW-1/D, personal search memo of accused Ex. PW-1/E was prepared and his statement Ex. PW-1/F was recorded. During his cross-examination, he denied of having any enmity with the accused.
PW-2 Praveen Kumar is the Teacher in SBV K-Block Mangolpuri, Delhi. He deposed that on 30.03.2013 at about 2:00 PM, teacher J.P. Verma found accused in a suspicious condition and came down from stage to apprehend him but the accused started running outside the school. He deposed that thereafter, J.P. Verma called him and one teacher Satish Rana as he already apprehended the accused. He deposed that J.P. Verma made a cursive search of accused and informed that a pistol was recovered from him. The accused was taken to Principal's Office from where the police was called. He could not identify case property stating that same was not recovered from accused in his presence. Thereafter, he was also encountered with the questions in the nature of cross-examination by Ld. APP for State and denied that he was present at the time of recovery of pistol from accused. Digitally signed by RISHABH RISHABH KAPOOR KAPOOR Date:
2024.10.15 FIR No.214/2013 15:28:03 +0530 State Vs. Pappu.PS : Mangol Puri 5/13 Page 6 of 13
PW-3 Satish Rana is another Teacher from SBV, K-Block, Mangolpuri, Delhi and he also deposed on same lines as that of PW-2. He also deposed that Sh. J.P. Verma came to him at around 2:00 PM on 30.03.2013 and told him that a pistol was recovered from the accused. He could not state about the weapon which was recovered from accused stating that same was not recovered in his presence. He was also encountered with the questions in the nature of cross-examination by Ld. APP for State and denied that the country made pistol was recovered from accused in his presence.
PW-4 R.D. Bhardwaj is the Principal from SBV K-Block, Mangolpuri, Delhi. He deposed that on 30.03.2013 between 2:00 PM to 2:15 PM while he was present in his office, school teachers namely, J.P. Verma, Praveen Kumar and Satish Rana brought one student to his office and told that one suspicious pistol like substance was recovered from him. The name of said student was revealed as Pappu and PCR call at 100 number was made by him. He identified the accused as the above-mentioned student who was handed over to him. He could not identify the country pistol stated to be recovered from accused.
PW-5 HC Parmod deposed that on 11.04.2013 on the directions of IO SI Robin Tyagi, he collected FSL form and pullanda containing country made pistol from MHCM and Digitally signed FIR No.214/2013 by RISHABH State Vs. Pappu. RISHABH KAPOOR KAPOOR Date:
PS : Mangol Puri 6/13 2024.10.15
15:28:12 +0530
Page 7 of 13
deposited the same with FSL.
PW-6 Insp. Robin Tyagi was the IO in the present case. He explained about the proceedings of the investigation conducted by him. Through him, tehrir was exhibited as Ex. PW-6/A. He also deposed of having sealed the country made pistol vide seal of 'RT'. During his cross-examination, he denied that the accused has been falsely implicated in the present case by planting recovery of country made pistol upon him.
PW-7 Anil Kumar is the official from GSBV K-Block Mangolpuri, Delhi. He produced the original school record of accused pertaining to Class -XI, which is Ex. PW-7/A. PW-8 Ct. Seema is a formal witness who deposed that on 30.03.2013 upon receiving the information regarding apprehension of one student alongwith a country made pistol at K-Block School Mangolpuri, Delhi, she registered DD No. 14PP which is Ex. PW-8/A. The accused vide his statement U/s 294 Cr.PC, also admitted sanction U/s 39 Arms Act Ex. AD-1, Ballistic Report Ex. AD-2, FIR Ex. AD-3, Endorsement on rukka Ex. AD-4 and Certificate U/s 65B Indian Evidence Act Ex. AD-5.
This is the entire evidence on the case record.
Digitally signed RISHABH by RISHABH KAPOOR KAPOOR Date: 2024.10.15 FIR No.214/2013 15:28:21 +0530 State Vs. Pappu. PS : Mangol Puri 7/13 Page 8 of 13
7. The allegations against accused Pappu are that on 30.03.2013 at around 02:00 PM at K-Block, Sarodaya Bal Vidhyalaya, Mangolpuri, Delhi, he was found in possession of one country made pistol without any license or permit to possess the same.
8. In order to establish the guilt of accused, prosecution is primarily relying upon the testimonies of PW-1, PW-2, PW-3 & PW-4. Pertinently, the mere perusal of testimonies of PW-2 and PW-3 would reflect that both the above-named witnesses have clearly rules out that the recovery of alleged country made pistol was effected from accused in their presence and rather both the above-named witnesses coherently deposed that they were informed by PW-1 regarding the recovery of country made pistol from the possession of accused. The detailed and extensive cross-examination of both the above-named witnesses could not yield any fruitful results for prosecution and hence, the testimonies of both the above-named witnesses is of no avail to establish the case of prosecution. Further, it is also evident from the testimony of PW-4 that he did not witness the alleged recovery of country made pistol from possession of accused and rather the accused was taken to him by PWs 1, 2 & 3 after the alleged recovery was effected from him, hence, the factum of FIR No.214/2013 Digitally signed State Vs. Pappu. RISHABH by RISHABH KAPOOR PS : Mangol Puri 8/13 KAPOOR Date: 2024.10.15 15:28:29 +0530 Page 9 of 13 alleged recovery of country made pistol from accused cannot be said to be established from the testimony of PW-4 also. Now, only the testimony of PW-1 has been left, on the basis of which the prosecution is purporting to establish its case. The careful perusal of testimony of PW-1 goes on to suggest that the alleged recovery of country made pistole was affected from accused during the course of school assembly in which a large number of school students and teachers were present but surprisingly, no such school students and other teachers who were alleged present at the time of recovery of alleged country made pistol from accused were associated in the investigation of the case for the reasons unexplained. Even no sincere efforts appear to have been made by the IO to join the aforesaid school students and teachers as the recovery witnesses. No reasonable explanation has come from IO qua reasons for abovementioned crucial lapses on his part. Even the sample seal which was stated to be used by the IO in sealing the alleged country made pistol, has not seen the light of the day. No explanation has been offered by the prosecution as to whom the seal of Mark "RT" belonged. None of the prosecution witnesses have deposed anything regarding the handing over of seal to any of the independent witnesses after its use. Even the testimony of IO examined as PW-6 could not state about handing over of seal to any of the independent FIR No.214/2013 Digitally signed State Vs. Pappu.
RISHABH by RISHABH
PS : Mangol Puri 9/13 KAPOOR
KAPOOR Date: 2024.10.15
15:28:40 +0530
Page 10 of 13
public persons. Thus, the seal was not handed over to any independent witness. There is nothing on record to suggest that IO had made efforts to handover the seal to any independent witness. Further, no handing over memo is on record to show the genuineness of fact of actual handing over of seal by IO to any of the independent witnesses. Assumingly, IO had handed over the seal to some independent person after its use, still there is no taking over memo on record to show as to when the seal was taken back by IO or if it remained with him forever. The contradictions in the versions of the above named PWs hints that the custody of sample seal was breached. In such a factual backdrop, the possibility of tampering with the case property cannot be ruled out. Moreover, it is not even the case of the prosecution that the seal was not within the reach of the IO and thus, there was no scope of tampering of case property. In this regard, judgment in case titled as Ramji Singh Vs. State of Haryana 2007 (3) RCR (CRIMINAL) 452, may be adverted to, wherein it was observed in paragraph 7 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. In the present case, the seal of Investigating Officer-Hoshiar Singh bearing impression HS was available with Maha Singh, a junior police official and that of Deputy Superintendent Digitally signed FIR No.214/2013 by RISHABH RISHABH KAPOOR State Vs. Pappu. KAPOOR Date:
PS : Mangol Puri 10/13 2024.10.15
15:28:49 +0530
Page 11 of 13
of Police remained with Deputy Superintendent of Police himself. Therefore, the possibility of tampering with seals as well as seized contraband and samples cannot be ruled out."
9. Similarly, Hon'ble High Court of Delhi in Safiullah v. State, (1993) 49 DLT 193, had observed:
"9. ... The seal after use were kept by the police officials themselves therefore the possibility of tempering 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 tempered with. The prosecution could have proved from the CFSL form itself and from the road certificate as to what articles were taken from the Malkahana. Once a doubt is created in the preservation of the sample the benefit of the same should go to the accused..."....
10. It is nowhere the case of the prosecution that the seal after use was handed over to the independent witness, therefore, the conclusion which can be arrived at is that the seal remained with the Investigating Officer or with the other member of the raiding party therefore the possibility of interference or tempering of the seal and the contents of the parcel cannot be ruled out.
Thus, in light of the aforesaid discussion, the possibility of misuse of seal and tampering of case property cannot be ruled out. The above discrepancies pointed out in the versions of prosecution witnesses coupled with the omissions on the part of IO, casts doubt on the fairness of the investigation conducted by the police and gives strength to the version of the accused that he FIR No.214/2013 Digitally signed by RISHABH State Vs. Pappu. RISHABH KAPOOR PS : Mangol Puri 11/13 KAPOOR Date:
2024.10.15 15:28:58 +0530 Page 12 of 13 has been falsely implicated in the present case by planting recovery on him.
11. It was incumbent on the part of prosecution to establish the recovery of the alleged country made pistol, from the possession of accused Pappu with some cogent and reliable evidence so as to fix the liability of accused for the alleged offence. It is worthwhile to mention that Section 100(4) Cr.P.C.
casts a duty upon the police to call upon two or more independent public persons of the locality in which the place of search is situated. It is also incumbent on the part of police to make such independent public persons including the school students and teachers as witnesses to the search which has to be conducted by the police. The police has however, failed to join upon such two or more independent public persons at the time when the search of accused was made, despite availability of said public persons on the spot. These facts further casts serious doubts on the version of prosecution and also create doubts on the credence of the search proceedings of accused during which the recovery of alleged country made pistol has been stated to be affected.
12. In view of the discussion made above, this Court is of the FIR No.214/2013 Digitally signed by RISHABH State Vs. Pappu. RISHABH KAPOOR PS : Mangol Puri 12/13 KAPOOR Date:
2024.10.15 15:29:05 +0530 Page 13 of 13 considered view that the prosecution has failed to establish beyond all reasonable doubts that on the given date, time and place accused Pappu was found in possession of one country made pistol therefore, the accused deserves to be acquitted for the alleged offence. The accused Pappu is accordingly acquitted for offence u/s 25 Arms Act.
13. The bail bonds, if any furnished by accused at the time of commencement of trail stands canceled. Surety, if any stands discharged. Documents, if any shall be returned to its rightful owner as per rules. Endorsement, if any stands canceled. Case property if any, shall be disposed off after expiration of period to assail this judgment and in case of appeal, as per the directions of Ld. Appellate Court. Case file be consigned to record room after due compliance.
Digitally signedRISHABH by RISHABH KAPOOR KAPOOR Date: 2024.10.15 Announced in the open court 15:29:15 +0530 on 15th Day of October, 2024. (Rishabh Kapoor) JMFC-05 North West District Rohini Courts, Delhi.
FIR No.214/2013 PS : Mangol Puri 13/13