Delhi District Court
State vs . Dharmender Kumar @ Madu on 6 January, 2023
IN THE COURT OF MS. ARCHANA BENIWAL
CHIEF METROPOLITAN MAGISTRATE:
SOUTH WEST DISTRICT, DWARKA COURT,
NEW DELHI
FIR No. 01/2016
PS Crime Branch
State Vs. Dharmender Kumar @ Madu
U/s 25 Arms Act
JUDGMENT
CIS No. : 3417/2017
Date of institution of the case : 25.02.2016
Date of commission of offence : 31.12.2015
Name of the complainant : HC Dinesh Kumar
Name of accused and address : Dharmender Kumar @ Madu
S/o Sh. Vinod Kumar
R/o VPO Shikarpur, P.S Chhawla
Najafgarh, Delhi.
Offence complained of : U/s 25 Arms Act
Plea of the accused : Pleaded not guilty.
Final order : Acquittal
Date on which judgment reserved : 13.12.2022
Date of judgment : 06.01.2023
FIR No. 01 of 2016 PS Crime Branch
State Vs. Dharmender Kumar @ Madu Page No. 1 of 11
- :: JUDGMENT :: -
1. The brief facts of the case of the prosecution are that on 31.12.2015, at about 10:00 PM, near Petrol Pump, Opposite Hanuman Temple, Sector-17, Dwarka, New Delhi accused Dharmender Kumar @ Madu was found carrying one countrymade pistol loaded with four live cartridges without any licence, in contravention of Section 3 of Arms Act, 1959. Case was registered against him.
2. IO conducted the investigation. After completion of the investigation, charge-sheet was filed against accused Dharmender Kumar @ Madu u/s 25/54/59 Arms Act. Cognizance of offence was taken and accused Dharmender Kumar @ Madu was summoned to face trial. The copy of chargesheet was supplied to him under Section 207 Cr.P.C.
3. After giving opportunity to State as well as accused for making submissions on charge, a formal charge for offence u/s 25 Arms Act was framed against accused Dharmender Kumar @ Madu to which he pleaded not guilty and claimed trial.
4. The prosecution, in support of its case, has examined four witnesses.
5. PW-1 Puneet Puri, Assistant Director, Ballistics, FSL has deposed before the court that on 05.01.2016, one parcel sealed with the seal of DK alongwith FSL form was received in FSL through Ct. Rajesh and same was marked to him for examination. The seals on the parcel were intact as per the specimen seal provided with FSL form. He further deposed that on opening FIR No. 01 of 2016 PS Crime Branch State Vs. Dharmender Kumar @ Madu Page No. 2 of 11 the parcel, one improvised (countrymade) pistol 7.65 MM bore and four 7.65 MM cartridges marked as Ex F1 and A1 to A4 were taken out. On examination, he found that the improvised pistol marked Ex. F1 was in working order. Test fire was conducted successfully by using the cartridge marked Ex. A1. Cargtridge mark Ex A.4 was misfired one. The improvised pistol marked Ex. F1 was a firearm and cartridges marked Ex. A1 to A4 were ammunition as defined in Arms Act 1959. The exhibits were resealed with the seal of PP FSL Delhi. He gave his detailed report vide Ex PW 1/1.
6. PW-2 HC Dinesh Kumar has deposed that on 31.12.2015 at about 7:30 P.M, a secret informer came to his office and informed that a person namely Dharmender Kumar @ Madu who used to carry illicit weapons and was wanted in a murder case of Chhawla will come with illicit weapon to meet his friend at about 10:30 P.M near petrol pump Sector17, opposite Hanuman Mandir, Dwarka and can be caught if raid was conducted. The said information was further shared with SI Sandeep Kumar who further forwarded this information to Inspector P.C. Yadav. Inspector P.C. Yadav directed them to take immediate action. On the instructions of Insepctor P.C. Yadav, one raiding team was constituted in which HC Suresh, Ct. Sandeep, Ct. Rajesh, Ct. Deepak alongwith him, under supervision of SI Sandeep Yadav, were members. They all were in civil uniform and took their arms and ammuntion from the office. Thereafter, vide DD No. 14 Ex PW 2/A at about 8:00 P.M, they left the office in two private cars, one is Santro and second was Swift Dzire. At about 9:15 P.M they reached at Sector16, Red Light via Dhaula Kuan Palam Flyover, Sector1, Sector13, Dwarka. There, 23 public persons were asked to join the raiding team but none agreed and left the spot after giving reasonable explanations. Due to paucity of time, no FIR No. 01 of 2016 PS Crime Branch State Vs. Dharmender Kumar @ Madu Page No. 3 of 11 notice was served.
7. PW2 further deposed that at about 9:40 P.M, they reached at Sector17, opposite Hanuman Mandir near Petrol Pump where they parked their vehicles. SI Sandeep Yadav briefed the team and deputed team members at different directions / position. He was alongwith SI Sandeep and the secret informer. At about 10:00 P.M, a person appeared on foot towards Sector16, Dwarka. Secret informer pointed towards the person and left the spot. Thereafter, they started chasing the said person and apprehended him. The name of the person was revealed as Dharmender @ Madu. Thereafter, he took the cursory search of the accused in which one countrymade pistol was recovered from the left side dub of the pant of accused. Pistol was opened by him and four live cartridges were found inside the magazine of the pistol. He measured the pistol and cartridges. The length of barrel of pistol was 10 cm, length of body was 16.8 cm and length of butt was 9.6 cm and triangle length of the pistol was 20.3 cm. Pistol was made of iron material and wooden piece were fixed on the butt with the help of twotwo screws. Length of each cartridges was 2.5 cm and word KF 7.65 was engraved on the base of the cartridges. He prepared sketch memo of recovered pistol and cartridges Ex. PW2/B and kept case property in one white cloth pulinda and sealed the same with the seal of DK. After use seal was handed over to Ct. Rajesh. He filled FSL Form. Recovered case property in sealed pulinda was seized vide seizure memo Ex. PW2/C. Thereafter, he prepared rukka Ex. PW2/D and handed over the same to Ct. Rajesh for registration of FIR. PW-2 further deposed that he informed telephonically to duty officer regarding apprehension of the accused and recovery of weapon which was written as DD No. 15 Ex. PW2/E. Duty officer informed him that the second IO HC FIR No. 01 of 2016 PS Crime Branch State Vs. Dharmender Kumar @ Madu Page No. 4 of 11 Kartar was appointed for further investigation. HC Kartar reached at the spot. He handed over apprehended accused, recovered and sealed case property and its seizure memos. Thereafter, Ct. Rajesh also reached at the spot and handed over copy of FIR and original rukka to HC Kartar. HC Kartar prepared site plan at his instance Ex. PW2/F. Thereafter, he left the spot on the instructions of IO HC Kartar. PW-2 further deposed that in the next morning at about 5.00 am, IO recorded his statement. He has correctly identified the accused as well as case property Ex. P-1 (Colly). PW-2 was cross-examined by Ld. Defence counsel.
8. PW3 ASI Kartar Singh deposed before the court that on 31.12.2015, he was informed by the Duty Officer of Crime Branch that investigation of the present case was marked to him vide DD No. 15 Ex. PW3/A. After receiving the said information at about 11.30 P.M, he reached at the spot where Crime Team member HC Dinesh, HC Suresh, Ct. Sandeep, Ct. Deepak, Ct. Rajesh and SI Sandeep Yadav met him. SI Sandeep was the supervisor of the team and HC Dinesh was the first IO of the case. They had produced one apprehended accused namely Dharmender @ Madu before him and also produced sealed pulinda having seal of DK and its seizure memo. He prepared site plan at the instance of HC Dinesh Ex. PW2/F. Ct. Rajesh also reached at the spot and handed over copy of FIR and original rukka to him. He made entry of FIR No. and case particulars on the memos prepared by the first IO HC Dinesh Kumar. Thereafter, he arrested the accused vide memo Ex. PW3/ B. Personal search of accused was conducted vide memo Ex. PW3/C. Disclosure statement of accused was recorded by him vide memo Ex. PW3/D. Thereafter, they along with accused and case property reached Pushp Vihar Office, case property was deposited in Malkhana. Thereafter, he reached at the office at Chanakya Puri along with accused and FIR No. 01 of 2016 PS Crime Branch State Vs. Dharmender Kumar @ Madu Page No. 5 of 11 team member. Accused was sent for medical examination. He recorded statement of witnesses. PW-3 further deposed that later on, he sent the seized case property and FSL Form to FSL through Ct. Rajesh vide RC No. 5/2021. Ct. Rajesh went to FSL Rohini and got deposited the case property. He returned the office and handed over deposition slip and RC of the case property. Copy of the RC is marked as MarkX. He recorded supplementary statement of Ct. Rajesh and statement of ASI Jag Narayan (MHC(M). He verified the parcha No. 12 of the accused and collected FSL Result and got permission of the sanction U/s 39 Arms Act. Thereafter, he prepared the charge sheet and submitted before the court. He was crossexamined by Ld. Defence counsel.
9. PW-2 (wrongly numbered) SI Rajesh Kumar deposed on the same lines as PW-2 SI Dinesh Kumar and PW-3 ASI Kartar Singh. He was cross- examined by Ld. defence counsel.
10. Vide separate statement recorded u/s 294 Cr.P.C, accused had admitted the documents i.e. FIR No. 1/2016, endorsement of rukka by DO HC Jai Pal on complaint, certificate u/s 65B Indian Evidence Act issued by DO HC Jai Pal, Sanction u/s 39 Arms Act and road certificate. Hence, the above documents were ordered to be read in evidence without its formal proof and the examination of PWs at serial nos. 3, 5 and 6 i.e. HC/DO Jaipal Singh, HC Jag Narain and DCP/Crime was dispensed with. No other witness was examined by the prosecution and hence, PE was closed.
11. 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 was innocent and had been falsely FIR No. 01 of 2016 PS Crime Branch State Vs. Dharmender Kumar @ Madu Page No. 6 of 11 implicated in this case. Accused opted not to lead defence evidence.
12. Final arguments advanced by Ld. APP for State and ld. counsel for accused heard. Case file perused carefully.
13. 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 pistol and three live cartridges without a valid arms licence. 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.
14. 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.
15. As per the prosecution case, the seizure memo of the case property vide Ex. PW2/C was prepared before the preparation of rukka Ex PW 2/D. However, the said document contains the number of the FIR which shows that either the FIR number was inserted later on or it was prepared before the time it has been shown to be prepared.
FIR No. 01 of 2016 PS Crime Branch State Vs. Dharmender Kumar @ Madu Page No. 7 of 11
16. In the rukka Ex.PW 2/D as well as in the testimony of all the witnesses, who are police officials it has been stated that public persons were present at the spot where accused was apprehended. 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. The public persons were present at the spot when raid was conducted however they refused to join the raiding party and no notice was served to them on their refusal to join the investigation. Thus, the prosecution has failed to prove that any serious effort was made by any of the police officials of the raiding party 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.
17. 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".
18. 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 FIR No. 01 of 2016 PS Crime Branch State Vs. Dharmender Kumar @ Madu Page No. 8 of 11 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 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".
19. 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 FIR No. 01 of 2016 PS Crime Branch State Vs. Dharmender Kumar @ Madu Page No. 9 of 11 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 or the recovery of the knife from the person of the accused."
20. 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.
21. As regards the seal, it is stated by PW-3 that the seal on the pullinda was of 'DK' and the seal was handed over to Ct. Rajesh after use. He admitted that no returning or handing over memo of seal was prepared. The case property was seized and sealed on 31.12.2015 and the same was deposited in FSL on 05.01.2016. Considering these circumstances, 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 FIR No. 01 of 2016 PS Crime Branch State Vs. Dharmender Kumar @ Madu Page No. 10 of 11 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.
22. 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.
23. 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. The accused Dharmender Kumar @ Madu is hereby acquitted of the offence punishable under Section 25 of Arms Act.
Digitally signed by ARCHANA24. Accused be set at liberty. ARCHANA BENIWAL BENIWAL Date:
Pronounced in the open court on this 2023.01.06
16:52:52 +0530
06th January 2023
(ARCHANA BENIWAL)
Chief Metropolitan Magistrate
South West District, Dwarka Courts
New Delhi
FIR No. 01 of 2016 PS Crime Branch
State Vs. Dharmender Kumar @ Madu Page No. 11 of 11