Delhi District Court
State vs . Amman @ Kashmiri on 24 March, 2022
IN THE COURT OF Ms.VIDHI GUPTA ANAND
METROPOLITAN MAGISTRATE -08 (CENTRAL)
TIS HAZARI COURTS : DELHI
JUDGMENT U/S 355 Cr.PC
a Serial No. of the case : FIR No.: 392/15
Police Station: Kamla Market
(CIS No. 308348/16)
b Date of the commission of the : 12.09.2015
offence
c Name of the Complainant : SI Ramesh Sharma
d Name of Accused person and his : Amman @ Kashmiri
parentage and residence S/o Sh. Gulam Navi
R/o H. No. 2399, Gali Gudriya,
Turakman Gate Chandani, Delhi.
e Offence complained of : U/s 25 Arms Act
f Plea of the Accused and his : Not guilty.
examination (if any)
g Final Order : Acquittal
h Order reserved on : 23.03.2022
i Order pronounced on : 24.03.2022
Brief statement of facts of the case and trial proceedings:
1.The case of the prosecution against the accused Amman @ Kashmiri is that on 12.09.2015 at about 09.15 pm, at Fazil Road, behind kotha No. 40, Kamla Market Delhi, he was found in possession of one desi Katta loaded with one live cartridge and one live cartridge was found in the pocket of his trousers without any licence. On the said allegations, accused was charged with the offence under Section 25 Arms Act.
2. After investigation, charge-sheet was filed against the accused on State Vs. Amman @ Kashmiri FIR No. 392/15 PS Kamla Market 1 of 13 25.10.2016. The copy of charge-sheet was supplied to the accused in compliance of Section 207 Cr.P.C on 29.07.2017. Thereafter, on 03.02.2018, charge was framed against the accused under Section 25 Arms Act to which he pleaded not guilty and claimed trial. Subsequently, prosecution evidence was led and in support of it's version, the prosecution examined five witnesses i.e., Complainant/PW-1 HC Rajeev Kumar, PW-2 Ct. Sudhir Panwar, PW-3 SI Ramesh Kumar, PW-4 ASI Brij Mohan Sharma and PW-5 Ct. Teg Bahadur. The remaining witnesses i.e. Mr. Punit Giri (FSL expert), Ct. Sonu (duty officer in the concerned PS), W/ASI Pushplata (FIR witness), Sh. Chinmay Biswal (ACP to prove sanction u/s 39 Arms Act) and MHC (M) from the concerned PS were dropped from list of witnesses on account of statement of the accused u/s 294 Cr.P.C dated 07.12.2018 wherein he admitted the registration of FIR number 392/15, certificate u/s 65B of Indian Evidence Act, DD No. 35B dated 12.09.2015, DD No. 39B dated 12.09.2018, copy of register No. 21, copy of register No. 19, FSL report and sanctioned under section 39 Arms Act.
3. After the conclusion of the prosecution evidence, statement of accused was recorded u/s 313 Cr.P.C. on 23.11.2019 separately wherein accused claimed to be innocent and denied all the allegations against him. Further, he stated that he has been falsely implicated in the present case as he has been previously involved in other cases.
When questioned as to whether he wanted to lead any evidence in his defence, accused answered in affermative and therefore, the matter was taken up for defence evidence.
4. In order to prove his innocence accused brought only one witness State Vs. Amman @ Kashmiri FIR No. 392/15 PS Kamla Market 2 of 13 namely Mohd. Zahid. After, due examination and cross examnation of the defence witness, vide separate statement of the accused defence evidence was closed on 28.02.2022.
Thereafter, bringing the trial to an end, final arguments were heard from Ld. Counsel for the Accused as well Ld. APP for the State.
Appreciation of Evidence
5. The arguments were addressed by Ld. APP for the State as well as Ld. Counsel for the accused in detail.
Ld. APP for the State argued that the case of the prosecution has been proved beyond all reasonable doubts on account of the unfeterred testimonies of the prime prosecution witnesses included the complainant and IO. Ld. APP for the State further argued that this case merits conviction of the accused as the prosecution case stands firmly on its own footing and merely because of absence of public witnesses, the veracity of public witnesses does not stand negated.
Vehemently, denying the arguments of Ld. APP for the State, Ld. Counsel for the accused argued that the accused has been falsely implicated in the present case and he has been made only a victim of circumstances. It was further argued by Ld. Counsel for the accused that nothing was recovered from the possession of the accused and this is the reason why no independent witness has been brought by prosecution in this matter. Hence, Ld. Counsel for the accused strongly argued for acquittal of the accused in this matter.
Submissions have been duly heard. Record has been carefully perused.
State Vs. Amman @ Kashmiri FIR No. 392/15 PS Kamla Market 3 of 13
6. A detailed scrutiny of the testimonies of the prosecution witnesses has been done and is hereby discussed in detail for quick perusal.
PW-1 HC Rajeev Kumar deposed that on 12.09.2015 at about 9:00 PM when he along with SI Ramesh and HC Sudhir were on patrolling duty near Police booth No. 4, SI Ramesh Chand received secret information that a person riding on a grey colored scooty can commit an offence. He further deposed that accordingly IO prepared reading party included himself, Ct. Sudhir and PW1 as well as the secret informer. He added that 3-4 passersby were requested to join the reading party but they decline and went away without disclosing their identities. Thereafter, at about 9:15 PM when the raiding party reached at Fazil Road, behind Kotha No. 40, accused closed down coming of the scooty try to run away on seeing the raiding party. He further stated that accused was apprehended at the instance of secret informer and upon his search one countrymade pistol loaded with one live cartridge was recovered from left side dub of his pants and one live cartridge was recovered from right side pocket of his pants. He added that IO removed the cartridge from the barrel of the countrymade pistol and thereafter, measured the said pistol and prepared a sketch memo Ex. PW1/A. He further added that IO seized the said case property by vide seizer memo Ex. PW1/B and also took the possession of scooty vide seizer memo Ex. PW1/C. PW1 also deposed that he had gone to the PS and got the FIR registered and handed over the same to HC Brij Mohan to carry on the further investigation. He added that thereafter, HC Brij Mohan prepared site plan, arrested the accused (vide memo Ex. PW1/D), personally State Vs. Amman @ Kashmiri FIR No. 392/15 PS Kamla Market 4 of 13 searched the accused (vide memo Ex. PW1/E) and recorded his disclosure statement (Ex. PW1/F). PW1 correctly identified the accused in the court as well as the case property i.e. countrymade pistol (Ex. P1), live cartridge (Ex. P2) and dead (tested) cartridge (Ex. P3). He also correctly identified the scooty from the photographs (Ex. P4) placed on record.
During his cross-examination, he admitted that IO did not record names and addresses of passers by / public persons who refused to join the investigation and also no written notice was served upon them.
PW-2 Ct. Sudhir Panwar deposed exactly on the lines of PW1 and reiterated the incident as stated by PW1. He affirmed the documents and case property exibited on record by PW1. He correctly identified the accused in the court room. During his cross examination he also admitted that IO had asked 4-5 persons to join the investigation but all of them refused and left the spot without disclosing the names and addresses. He also affirmed that no written notice was served upon the said persons for not joining the investigation.
PW-3 SI Ramesh Chand is the main IO of this matter. He deposed that on 12.09.2015 he along with Ct. Sudhir and Rajeev Jha, upon receiving secret information prepared a raiding party after giving due information to SHO PS concern and at about 9:15PM apprehended the accused at Fazil Road, behind Kotha No. 40. On the lines of PW1 and PW2 he deposed with respect to the recovery of one countrymade pistol loaded with one live cartridge and another live cartridge from the possession of the accused. He reaffirm the prepartion of sketch memo Ex. PW1/A, seizure memo Ex. PW1/B and Ex. PW1/C. He added that he prepared rukka Ex. PW3/A and State Vs. Amman @ Kashmiri FIR No. 392/15 PS Kamla Market 5 of 13 handed over the same to Ct. Rajeev for registration of FIR. He further stated that after registration of FIR, further investigation was marked to HC Brij Mohan and therefore he handed over the custody of accused and other documents along with case property to him. He also stated HC Brij Mohan inspected the site and prepared site plan at his instance Ex. PW3/B. PW3 also correctly identified the accused in the court as well as the case property i.e. countrymade pistol (Ex. P1), live cartridge (Ex. P2) and dead (tested) cartridge (Ex. P3). He also correctly identified the scooty from the photographs (Ex. P4) placed on record.
During his cross examination he admitted that he did not served any notice to public persons who refused to join the raiding party and also did not note their names and addresses. He further stated that he did not insert the case particulars on the seizure memo and sketch memo of the case property. He stated that he had interrogated the accused with respect to the place from where he had arranged the countrymade pistol and cartridges but no satisfactory reply was received. He admitted that the spot of the incident is a residential area where shops are also located but he did not asked any of the residents to become part of the investigation.
PW4 HC Brij Mohan deposed that on 12.09.2015 upon receiving the copy of FIR and marking of investigation to him, he went to the spot i.e. Fazil Road, behind Kotha No. 40 along with Ct. Rajeev where he was handed over with the custody of accused, the seized case property and documents prepared by SI Ramesh Kumar. He also affirmed the preparation of site plan Ex. PW3/B, the arrest and personal search memos Ex. PW1/D and Ex. PW1/E as well as disclosure statement Ex. PW1/F. He State Vs. Amman @ Kashmiri FIR No. 392/15 PS Kamla Market 6 of 13 further deposed that he deposited the case property in Malkhana and on 30.09.2015, the same was sent to FSL for examination vide RC number 118/21 and later FSL report was collected. He further stated that FSL report reflect that the countrymade pistol was found as 'fire Arms' and cartridges were found as 'ammunition' as defined in the Arms Act. Thereafter, PW4 took the sanction for prosecution from DCP concern under section 39 Arms Act on 20.05.2016 and collected the photocopies of relevant entries from register no. 19 and 21. After completion of paper work, PW4 filed the charge sheet at present matter. He correctly identified the transparent plastic box in which the case property had been kept as Ex. P4. He also correctly identified the accused in the court and the scooty Ex. P4.
During his cross examination he admitted that he had asked 3-4 persons to join investigation but they declined the proceedings. He admitted that the spot of the incident is a residential area where shops are also located.Also during his cross examination he stated that he had interrogated the accused with respect to the place from where he had arranged the countrymade pistol and cartridges, and he was told by the accused that the same had been purchased from Turkman Gate, Delhi, from a person from Meerut. He stated that no efforts were made to apprehend the said seller of arms to the accused.
PW5 Ct. Tek Bahadur was a formal witness and deposed that on 30.09.2015 he had taken the Exibits i.e. sealed plastic box stated to be containing countrymade pistol and cartridges from Malkhana and deposited the same in FSL Rohini.
7. It is a settled proposition of criminal law that prosecution is supposed State Vs. Amman @ Kashmiri FIR No. 392/15 PS Kamla Market 7 of 13 to prove its case beyond reasonable doubts by leading reliable, cogent and convincing evidence. Further it is a settled proposition of criminal law that in order to prove its case on judicial file, prosecution is supposed to stand on its own legs and it cannot derive any benefit whatsoever from the weaknesses, if any, of the defence of the accused. Further it is a settled proposition of criminal law that burden of proof of the version of the prosecution in a criminal trial throughout the trial is on the prosecution and it never shifts on to the accused. Also, it is a settled proposition of criminal law that accused is entitled to the benefit of every reasonable doubt in the prosecution story and such reasonable doubt entitles the accused to acquittal.
8. Evaluating the facts and evidence discussed above, at the outset, it comes out that no independent witness was joined in the investigation. The hon'ble supreme court in STATE OF PUNJAB V. BALBIR SINGH AIR 1994 SC 1872, held that :
"It therefore emerges that non-compliance of these provisions i.e. Sections 100 and 165 Cr.P.C. would amount to an irregularity and the effect of the same on the main case depends upon the facts and circumstances of each case. Of course, in such a situation, the court has to consider whether any prejudice has been caused to the accused and also examine the evidence in respect of search in the light of the fact that these provisions have not been complied with and further consider whether the weight of evidence is in any manner affected because of the non-compliance. It is well-settled that the testimony of a witness is not to be doubted or discarded merely on the ground that he happens to be an official but as a rule of caution and depending upon the circumstances of the case, the courts look for independent corroboration. This again depends on question whether the official has deliberately failed to State Vs. Amman @ Kashmiri FIR No. 392/15 PS Kamla Market 8 of 13 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. [Emphasis supplied]"
9. At this stage, it is also crucial to observe that PW1 and PW2 deposed to the effect that the IO SI Ramesh Chand as well as IO HC Brij Mohan had requested 3-4 passersby to be the part of investigation, however, they refused the same. It is pertinent to observe that PW-3 and PW-4 have admitted that the area from where the accused was apprehended was a residential area where shops are also located and despite that no public witness has been joined. Further, no notice has been served to any of the public persons who refused to join the investigation.
It is also pertinent to note that the alleged spot of incident is behind Kotha No.40, which implies that there was ample opportunity with the police official to have the independent witnesses join the investigation. No person from the said Kotha no.40, behind which the incident occurred, has been made to join the investigation in the matter by the IO and no reasons whatsoever have been given for this lapse. Moreover, the witnesses have stated that the information with respect to the accused was given by a secret informer, which again is a vague submission and cannot be relied upon.The reasons given above raise serious doubts at the version of the prosecution.
Considering the above facts, it comes out that there was no lack of time and opportunity with the IO to associate some independent witnesses with the search and strictly comply with the provisions of code of criminal procedure. Merely mentioning that public persons were requested to join the investigation is of no avail. Name of those persons are not mentioned. It State Vs. Amman @ Kashmiri FIR No. 392/15 PS Kamla Market 9 of 13 is not mentioned as to what action was taken against those persons who refused to join the investigation.
The above stated observation of this court is fortified by the observations of the Hon'ble Supreme Court in HEMRAJ VS STATE OF HARYANA (AIR 2005 SC 2110) "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..."
Furthermore, in case titled ROOP CHAND V/S STATE OF HARYANA, 1999 (1)C.L.R 69, the Hon'ble High Court of Punjab & Haryana held as following:
"...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 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 he witnesses from the public had refused to to join the investigation, the Investigating Officer must have proceeded against them under the relevant provisions 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 State Vs. Amman @ Kashmiri FIR No. 392/15 PS Kamla Market
10 of 13 worthy of credence. All these facts taken together make the prosecution case highly doubtful..."
10. Moving further, this Court is conscious of precedent laid down by Hon'ble Delhi High Court in SAFIULLAH V. STATE, 1993 (1) RCR (CRIMINAL) 622, that :
"The seals after use were kept by the police officials themselves. Therefore the possibility of tampering 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 tampered with. ..... Once a doubt is created in the preservation of the sample the benefit of the same should go to the accused."
The case property in the present matter was lying in the Maalkhana of the same police station where the police officials having the possession of seal were posted. There was ample opportunity for tampering with the case property. Hence, considering the legal position, the benefit of doubt should be given to the accused.
11. Besides all this, in the present case, the aforesaid lapse on the part of police officials assumes significance on account of another grave contradiction apparent in the document Ex. PW1/A. The sketch memo of the knife Ex. PW1/A and seizure memo of the knife Ex. PW1/B bear the number of FIR. As per the rukka and testimony of witnesses, the sketch memo of the knife and seizure memo were prepared prior to registration of FIR. If that be so then it is questionable as to how Ex. PW-1/A and Ex. PW1/B bear the FIR number. This gives rise to two inferences that either the FIR was recorded prior to the alleged recovery of the case property or number of the said FIR was inserted in the document after its registration.
State Vs. Amman @ Kashmiri FIR No. 392/15 PS Kamla Market 11 of 13 In both the situations, it seriously questions the veracity of the prosecution version and creates a good deal of doubt about the recovery of the case property in the manner alleged by the prosecution. That being so, the benefit arising out of such a situation must necessarily go to the accused.
In this regard, reference can is also made to the judgment of Hon'ble High Court of Delhi in case titled as "MOHD HASIM V/S STATE" 1999 VI AD (DELHI) 569 wherein it was observed:
"...documents prepared before registering the FIR bears FIR numbers, meaning thereby either FIR was recorded posterior in time or that documents were prepared after the recording of FIR, and in both cases, prosecution case would collapse."
12. Further, in order to ensure fair investigation, the prosecution witnesses must have offered their personal search to some independent witness. However, as no such precaution was taken by IO the doubt as to the false plantation of the case property upon the accused cannot be ruled out. In "S. L. GOSWAMI VS. STATE OF M. P", 1972, CRI.L.J 511 (SC), the Hon'ble Supreme Court held:
"... in our view, the onus to proving all the ingredient of an offence is always upon the prosecution and at no stage does it shift to the accused. It is no part of the prosecution duty to somehow hook the crook. Even in case where the defence of the accused does not appear to be credible or is palpably false that burden does not become any the less. It is only when this burden is discharged that it will be for the accused to explain or controvert the essential elements in the prosecution case, which would negative it. It is not however for the accused even at the initial stage to prove something which has to be eliminated by the prosecution to establish the ingredient of the offence with which he is charged, and even if the onus shifts upon the accused and State Vs. Amman @ Kashmiri FIR No. 392/15 PS Kamla Market 12 of 13 the accused has to establish his plea, the standard of proof is not the same as that which vests upon the prosecution..."
This also raises doubt about the recovery of the said case property from the present accused and strengthens the possibility of planting of the case property upon the accused.
Conclusion :
13. The onus and duty to prove the case against the accused was upon the prosecution and the prosecution must establish the charge beyond reasonable doubt. It is also a cardinal principle of criminal jurisprudence that if there is a reasonable doubt with regard to the guilt of the accused is entitled to benefit of doubt resulting in acquittal of the accused. Reference may also be made to the judgment titled as Nallapati Sivaiah V. Sub Divisional Officer, Guntur Reported As Viii(2007) Slt 454(Sc).
14. In view of above said discussion, the prosecution has failed to prove the guilt of the accused beyond reasonable doubts. Accordingly, Accused Amman @ Kashmiri is acquitted of the charges u/s 25 Arms Act framed in the present case. Case property be confiscated to the State. Same be destroyed.
File be consigned to Record Room subject to compliance of section 437-A Cr.PC.
Announced in the open court (VIDHI GUPTA ANAND) on 24.03.2022 Metropolitan Magistrate-08 Central District, Tis Hazari Courts/Delhi [This judgment contains 13 signed pages] [This judgment has been directly typed to dictation.] State Vs. Amman @ Kashmiri FIR No. 392/15 PS Kamla Market 13 of 13