Delhi District Court
State vs . Sandeep @ Terra on 14 January, 2013
IN THE COURT OF SH. HARVINDER SINGH : METROPOLITAN
MAGISTRATE (WEST 03) : DELHI.
FIR No.66/2001
PS Nangloi
State Vs. Sandeep @ Terra
Unique Case ID No.02401R0273582001
J U D G M E N T
(a) Sr. No. of the case 4690/1/09
(b) Date of offence 23.01.2001
(c) Complainant Ct. Harender, No.1026W, PS Nangloi, New
Delhi.
(d) Accused Sandeep @ Terra S/o Late Sh. Ram Kishan R/o
H. No.510, Village Mundka, New Delhi.
(e) Offence Under Section 25, 54 and 59 of Arms Act.
(f) Plea of accused Pleaded not guilty
(g) Final Order Acquitted
(h) Date of institution 20.03.2001
(i) Date when judgment was Not reserved
reserved
(j) Date of judgment 14.01.2013
1. The brief facts of the case are that accused person has been charge sheeted for committing offences under Section 25/54/59 Arms Act. The allegations against the accused person are that on 23.01.2001 at about 12:15 am, near Rani Khera FIR No.66/2001 Page No. 1 of 11 Phatak, Mundka, Nangloi, the accused was found in possession of one desi katta loaded with one live cartridge and one live cartridge was also found in his pant without any permit or license in violation of notification issued by Delhi Administration. According to the prosecution, accused person has committed offences punishable under Section 25/54/59 Arms Act.
2. After completion of investigation, chargesheet was filed. Accused was supplied with copies in compliance of Section 207 Code of Criminal Procedure, 1973. Charge was framed under Section 25 of Arms Act against the accused vide order dated 03.04.2001 to which the accused pleaded not guilty and claimed trial. PROSECUTION EVIDENCE
3. In order to prove its case, prosecution has examined four witnesses. All witnesses are official witnesses. PW1 Ct. Harender has deposed that on 23.01.2001, he alongwith Ct. Jitender, Ct. Rajesh and Ct. Vijender were on patrolling duty in the area Rani Khera Crossing Mundka and while they were present near Rani Khera crossing, they saw the accused Sandeep alongwith your coaccused coming from Kaccha Rasta, West Side. They stopped and apprehended the accused and on his cursory search, they found one loaded Desi Pistol from the Right side dub of his pant. One live cartridge was also recovered from him. They informed the same at PS on FIR No.66/2001 Page No. 2 of 11 which HC Dalbir and HC Harpal Singh came at the spot and he handed over co accused persons alongwith recovered pistol and knives to him. IO prepared a sketch memo of the Desi Pistol and live cartridge which is Ex.PW1/E. The body was having wooden pieces on Butt. IO prepared the pullanda and sealed the same with HPS and the same was seized vide seizure memo Ex.PW1/A. IO prepared the Rukka and case FIR registered. The accused was arrested and his personal search was carried out vide memo Ex.PW1/B. Site plan was prepared. He correctly identified the accused and the case property in the Court. PW1 was examined, crossexamined and was discharged.
4. PW2 Ct. Narveer and PW3 Ct. Rajesh Rana have deposed that on 23.01.2001, they alongwith Ct. Harender and Ct. Vijender were on patrolling duty in the area Rani Khera Crossing Mundka and while they were present near Rani Khera crossing, they saw the accused Sandeep alongwith his coaccused coming from Kaccha Rasta, West Side. They stopped and apprehended the accused and on his cursory search, they found one loaded Desi Pistol from the Right side dub of his pant. One live cartridge was also recovered from him. IO prepared a sketch memo of the Desi Pistol and live cartridge. Pullanda was prepared and sealed the same with HPS and same was seized. IO prepared Rukka and got case FIR registered. Accused was FIR No.66/2001 Page No. 3 of 11 arrested and his personal search was carried out. Site plan was prepared. PW2 and PW3 correctly identified the accused and the case property in the Court. PW2 and PW3 were examined, crossexamined and were discharged.
5. PW4 ASI Harpal Singh has deposed that on 23.01.2001, he was posted as HC at PS Nangloi. On that day, he received D.D.No.8A copy of which is Ex.PW4/A. Thereafter, he went to the spot i.e. near Rani Khera crossing, where he met with Ct. Rajesh, Ct. Narveer, Ct. Harender and Ct. Bijender. Ct. Harender handed over to him accused Sandeep alongwith one loaded Desi Pistol and one live cartridge. He recorded the statement of Ct. Harender which is already exhibited as Ex.PW1/D bearing his signatures at point 'X'. Thereafter, he prepared a sketch memo of the Desi Pistol and live cartridge which is already Ex.PW1/E bearing his signatures at point 'X'. The body was having wooden pieces on Butt. He prepared the pullanda and sealed the same with HPS and the same was seized vide seizure memo already Ex.PW1/A bearing his signatures at point 'X'. He prepared the Rukka and handed it over to Ct. Rajesh who went to the PS and got the case registered FIR and came back at spot along with copy of FIR, original Rukka and handed over same to him. He arrested the accused and his personal search was carried out vide memo already Ex.PW1/B bearing his signatures at point 'X'. He recorded the disclosure statement FIR No.66/2001 Page No. 4 of 11 of accused Sandeep which is already exhibited as Ex.PW1/C bearing his signatures at point 'X'. He prepared the site plan at the instance of Ct. Harender which is exhibited as Ex.PW4/B bearing his signatures at point 'X'. He recorded statement of witnesses. Thereafter, they went to PS Nangloi where case property was deposited in malkhana and accused was lodged in lockup. After completion of investigation, he filed the charge sheet for judicial verdict. He identified the accused and the case property in the Court. Case property is already Ex.P1 Ex.P2 and Ex.P3. PW4 was examined, crossexamined and discharged.
STATEMENT OF ACCUSED
6. After closure of prosecution evidence, the statement of the accused was recorded under Section 313 of Code of Criminal Procedure, 1973. Incriminating evidence was put to the accused. Accused denied all the allegations and stated that he is innocent and has been falsely implicated in this case. The accused opted not to lead any evidence in his defence.
7. Final arguments heard. Record is perused.
8. In the present case, accused has been charged for committing an offence under Section 25 of Arms Act. In order to prove the guilt of the accused, prosecution has to prove that the accused was found having one desi katta loaded with one live FIR No.66/2001 Page No. 5 of 11 cartridge and one live cartridge was also found with the accused without any license or permit in contravention of notification issued by Delhi Administration and thereby committed an offence under Section 25 of Arms Act. As per the case of the prosecution, the accused was caught with one desi katta loaded with one live cartridge and one live cartridge was also found on 23.01.2001 at about 12:15 am, near Rani Khera Phatak, Mundka, Nangloi. The spot is a busy public place with a busy road. Hence, there must be number of public persons/vehicles present at the spot at the time of alleged recovery. However, the witnesses have not deposed regarding any concrete effort to join public witnesses made by them at the time of affecting the alleged recovery of country made pistol, despite their availability on the spot.
9. Public witnesses were admittedly not joined in investigation though available. The testimony of official witnesses does not find any corroboration from any independent source. In my view, the nonjoining of public witness is fatal to the prosecution case, particularly when no reasonable explanation has been given by prosecution for not joining public witnesses.
In case titled as "Roop Chand Vs. State of Haryana" reported as CC Cases 3 (HC), it was held as that where the police has failed to join independent witnesses in the investigation despite their availability and further failed to take action against those who refused to take part in investigation nor their names were noted FIR No.66/2001 Page No. 6 of 11 down by the police, the explanation of the police for not joining independent witnesses is an afterthought and liable to be rejected.
In the case of "Hem Raj v. State of Haryana" AIR 2005 SC 2110, it has been observed that : "The fact that no independent witness though available, was examined and not even an explanation was sought to be given for not examining such witness is a serious infirmity in the prosecution case. Amongst the independent witnesses one who was very much in the know of things from the beginning was not examined by the prosecution. Nonexamination of independent witness by itself may not give rise to adverse inference against the prosecution. However, when the evidence of the alleged eye witnesses raise serious doubts on the point of their presence at the time of actual occurrence, the unexplained omission to examine the independent witness would assume significance." In the case of "Sahib Singh v. Sate of Punjab" AIR 1997 SC 2417, it has been held as under : "Having gone through the record we find much substance in each of the above contentions. Before conducting a search the concerned police officer is required to call upon some independent and respectable people of the locality to witness the search. In a given case it may so happen that no such person is available or, even if available, is not willing to be a party to such search. It may also be that after joining the search, such persons later on turn hostile. In any of these eventualities the evidence of the police officers who conducted the search cannot be disbelieved solely on the ground that no independent and respectable witness was examined to prove the search but if it is found as in the present case that no attempt was even made by FIR No.66/2001 Page No. 7 of 11 the concerned police officer to join with him some persons of the locality who were admittedly available to witness the recovery, it would affect the weight of evidence of the Police Officer, though not its admissibility."
In the case of "D. V. Shanmugham v. State of A.P.", AIR 1997 SC 2583 it has been observed as under : "It also appeared from the evidence of PW2 and PW8 that there were several other people who witnessed the occurrence and they are not the residents of that locality. If such independent witnesses were available and yet were not examined by the prosecution and only those persons who are related to the deceased were examined then in such a situation the prosecution case has to be scrutinised with more care and caution." In the case of "Pawan Kumar Vs. The Delhi Administration", 1989 Cr.LJ 127 Delhi, in which it was observed as follows : "Kalam Singh has to admit that at the time of the arrest and recovery of the knife, there was a lot of rush of public at the bus stop near Subhash Bazar. 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 Subhash Bazar, there would be no person present at a crucial time like 7.30 pm 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 have 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 FIR No.66/2001 Page No. 8 of 11 though number of them were present. No plausible from the side of the prosecution is forthcoming for not joining the Independent witnesses in case of a 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 IO 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 or the recovery of the knife from the person of the accused.'' In the case of "Sadhu Singh Vs. State of Haryana" 2000 (2) CC Cases HC 73, the Court took note of the fact that public witnesses were not joined in investigation to acquit the accused.
In the case of "Massa Singh Vs. State of Punjab" 2000 (2) C.C. Cases HC 11, conviction was set aside on the ground that it was obligatory on the part of investigating officer to take assistance of independent witnesses to lend authenticity to the investigation conducted by him. It was observed as under : "The recovery has been effected from a public place. The Investigating Officer could have taken the trouble to associate an independent witness to get the attestation of such independent witness regarding the authenticity of the investigation conducted by him. This aspect of the case has not been properly appreciated by the Court below."
In the case of "Chanan Singh Vs. State" 1986 Crl. Rev. No.720 (P&H) 94, it was held that it was obligatory on the part of the police to join independent FIR No.66/2001 Page No. 9 of 11 witnesses and the statement of official witness that witnesses refused to join investigation was rejected as an afterthought.
In the cases of "Gurbel Singh Vs. State of Punjab" 1991 Crl. Rev. No. 504 (P&H) and "Dhanpat Vs. State of Punjab" 2000 (1) CC Cases HC 52, it has been held that nonjoining of independent witnesses is fatal to the prosecution case and accused is entitled to benefit of doubt.
10. There are other inconsistencies on the record which have not been explained. According to the depositions of prosecution witnesses, the case property was first seized, sketch of one desi katta loaded with one live cartridge and also one live cartridge was prepared and then Rukka was sent for registration of FIR. Thus, according to the witnesses, FIR was registered after seizure of one desi katta loaded with one live cartridge and one live cartridge and after the sketch was prepared. However, the seizure memo and sketch bears the FIR number. At the time of the seizure, FIR number was not available and therefore, FIR number could not have figured on the seizure memo or on the sketch. The existence of FIR number on seizure memo suggests that the seizure memo was prepared after the registration of FIR and is therefore antetimed. This erodes the credibility of the witnesses who has stated that the seizure memo was prepared on the spot and before the registration of FIR No.66/2001 Page No. 10 of 11 FIR.
11. In view of the aforementioned facts and circumstances, I am of the opinion that prosecution has failed to prove its case against the accused beyond reasonable doubt. I give benefit of doubt to the accused. Accused Sandeep @ Terra is accordingly acquitted. Bail bonds are cancelled and sureties are discharged. Original documents of Sandeep @ Terra be released to him against acknowledgment. Original documents of surety, if any, be returned to him after cancellation of endorsement. Case property be confiscated to the State and be destroyed after expiry of period of appeal.
12. File be consigned to Record Room, after due compliance. Announced in the open Court on January 14, 2013.
(HARVINDER SINGH) MM03/THC (West), Delhi/14.01.2013 FIR No.66/2001 Page No. 11 of 11