Delhi District Court
In A Case Law Reported As Anoop Joshi vs . State 1999(2) on 18 April, 2018
IN THE COURT OF SH. PRANJAL ANEJA
METROPOLITAN MAGISTRATE-01, SHAHDRA DISTRICT,
KARKARDOOMA COURTS, DELHI
State v. Anil @ Sonu @ Matka
FIR No. 164/15
PS: Jafrabad
U/s 25/54/59 Arms Act
a. Serial No. of the case : 84765/16
b. Date of commission of offence : 11.03.2015
c. Date of institution of the case : 07.05.2015
d. Name of complainant : SI Rohit
e. Name of accused : Anil @ Sonu @ Matka
S/o Lt. Shyam Pal Singh
R/o Village-Sherpur Luhara,
PS Chharauli, Dist. Bhagpat,
U.P.
f. Offence complained of : U/s 25/54/59 Arms Act
g. Plea of accused : Pleaded not guilty
h. Arguments heard on : 05.02.2018
i. Final order : Acquittal
j. Date of judgment : 18.04.2018
JUDGMENT
1. Briefly stating, the case as per prosecution is that on 11.03.2015 at about 10.45 am at Main Bhrampuri Road, Near Kalyan Cinema, Delhi, the accused was found in possession of one revolver loaded with six live cartridges and four more live cartridges of 32 bore FIR No. 164/15 PS Jafrabad State V. Anil @ Sonu @ Matka (18.04.2018) Pg No. 1 of 17 without any licence and thereby committed an offence punishable u/s 25 Arms Act.
2. After completion of investigation, charge-sheet was filed. Upon taking cognizance of the offence, accused was summoned and supplied copy of charge-sheet in compliance of section 207 of Cr.P.C. Charge u/s 25 Arms Act was framed on 29.07.2015. Accused pleaded not guilty and claimed trial. There is no mentioned in the order sheet regarding the offence made out against the pillion rider who was allegedly accompanied the accused or as to whether he was released on any bond or not.
3. In order to prove its case the prosecution examined several witnesses who exhibited various documents i.e. ASI Virender Kumar as PW-1, SI Rakesh Kumar as PW-2, HC Gajendra Singh as PW-3, HC Sunil Dutt as PW-4 and IO SI Rohit Kumar as PW-5. Statement U/s 294 Cr.P.C. of accused was recorded on 01.06.2017 whereby he did not dispute FIR (Ex. A1), Sanction U/s 39 Arms Act dated 02.07.2015 (Ex. A2) and FSL result from FSL Rohini (Ex. A3). Thus, the witnesses for said documents were not summoned.
4. PE was closed on 08.01.2018. Statement of accused u/s 313 Cr.P.C was recorded on 05.02.2018. Accused did not opt to lead defense evidence.
5. I have heard the arguments of Ld. APP for the State as well as on behalf of accused through LAC Mr. A.K. Tyagi. I have also gone through the evidence on record.
FIR No. 164/15 PS Jafrabad State V. Anil @ Sonu @ Matka (18.04.2018) Pg No. 2 of 17
6. In order to establish the guilt of the accused, prosecution was under obligation to prove that on 11.03.2015 at about 10.45 am at Main Bhrampuri Road, Near Kalyan Cinema, Delhi, the accused was found in possession of one revolver loaded with six live cartridges and four more live cartridges of .32 bore without any licence.
7. The testimonies of prosecution witnesses is touched upon in brief as follows:-
7.1 PW1 ASI Virender Kumar deposed that on 11.03.2015 he alongwih SI Rohit, Ct. Krishan, Ct.
Gajender and Ct. Kuldeep were on patrolling duty in the area of PS and at about 10.00 a.m. when they reached at Main Brahampuri Road, near Kalyan Cinema, Delhi one secret informer met to SI Rohit and informed that tow persons who are BC, would come on a black Pulsar Motorcycle having illegal weapon and would go to meet their known person in Seelampur by Main Brahampuri Road. PW-1 further deposed that SI Rohit intimated the said information to them and prepared a raiding party and asked 4-5 public person to join the investigation but none agreed and left the spot without disclosing their names and addresses. PW-1 deposed that at about 10:45 am at the instance of secret informer, they stopped a black colour Pulsar Motorcycle bearing no. UP 14CA 6861 coming from Ghonda Chowk and SI Rohit with the help of Ct. Gajender apprehended the driver Anil @ Sonu @ Matka and Ct. Kuldeep and Ct. Krishan apprehended the pillion rider Avid @ Mota. PW-
FIR No. 164/15 PS Jafrabad State V. Anil @ Sonu @ Matka (18.04.2018) Pg No. 3 of 17 1 further deposed that upon formal search of accused Anit conducted by SI Rohit, one revolver from the right dub of his jeans pant and four liver cartridge .32 bore from his right pocket of pant were was recovered and on opening the Panda of said revolver, six live cartridge of .32 bore were found in side the chamber of barrel of the revolver and on formal search of Abid, one pistol was recovered and found four live cartridge inside the magazine. PW-1 stated that he initiated the separate proceedings against Abid. PW-1 deposed that SI Rohit seized the above said motorcycle, revolver and 10 live cartridges as recovered from accused Anil and prepared rukka and sent Ct. Krishna for registration of FIR and thereafter further proceedings conducted by second IO SI Rakesh. PW-1 correctly identified the accused and case property i.e. revolver and 10 cartridges Ex. P1.
In cross-examination, PW1 stated that personally he had not made any departure entry, perhaps SI Rohit made the same. PW-1 stated that both the accused persons who were sitting on motorcycle and towards them secret informer make a sign, were without helmet. PW-1 admitted that the spot i.e. where the motorcycle of accused stopped, public person were passes through. PW-1 stated that SI Rohit did not get conduct his personal search by any member of raiding party prior making the search of accused and IO asked to public persons to join the investigation of present case prior making personal search of accused. PW-1 admitted that IO did not give any written notice to any public person to FIR No. 164/15 PS Jafrabad State V. Anil @ Sonu @ Matka (18.04.2018) Pg No. 4 of 17 join the investigation. PW-1 deposed that Ct. Krishana went to PS at abou 12.30 p.m. for registration of FIR. PW-1 admitted that sketch memo of case property did not bear his signature and there is no mention of his signature in any document of present case.
7.2 PW-2 is the 2nd IO SI Rakesh Kumar and on 11.03.2015 further investigation of the case was marked to him. PW-2 prepared the site plan at the instance of SI Rohit as Ex. PW2/A, arrested the accused vide memo Ex. PW2/B, conducted personal search vide memo Ex. PW2/C, recorded the disclosure statements of accused as Ex. PW2/D, Ex. PW2/E, Ex. PW2/F and Ex. PW2/G and statement of witnesses and deposited the case property at malkhana and on 27.03.2015, case property i.e. exhibits were sent to FSL Rohini. PW-2 prepared the charge-sheet and submitted before the court and on 23.6.2015, he obtained FSL result and exhibited application for sanction U/s 39 Arms Act as Ex. PW2/H and obtained sanction U/s 39 Arms Act as Mark A and filed supplementary charge-sheet before the court. PW- 2 correctly identified the accused.
In cross-examination, PW-2 stated that he reached at the spot at around 11.30 am to 12.00 noon and admitted that no recovery was effected in his presence and place of incident was a crowded place. PW-2 stated that he asked public persons to join the investigation but none has agreed.
FIR No. 164/15 PS Jafrabad State V. Anil @ Sonu @ Matka (18.04.2018) Pg No. 5 of 17 7.3 PW3 HC Gajendera Singh is also one of accompanied police personnel with the IO who deposed on the line of the PW-1 and supported the case of the prosecution. PW-3 deposed that SI Rohit took the search of accused Sonu and recovered one balck colour revolver from the left side dub and four live cartridge from right side pant pocket. PW-3 further exhibited the documents prepared by the IO SI Rohit i.e. seizure memo of case property as Ex. PW3/A, seizure memo of motorcycle as Ex. PW3/D. PW-3 deposed that IO sealed the case property and prepared rukka and seal after use was handed over to him and rukka was handed over to Ct. Krishan for registration of FIR. PW-3 deposed that after that, further proceedings were conducted by SI Rakesh who prepared the site plan, arrest memo, personal search memo and recorded three disclosure statements of accused Sonu. PW-3 correctly identified the accused.
In cross-examination, PW-3 was not able to depose regarding departure entry made by him or not, two motorcycle rider wearing helmet or not or whether SI Rohit asked any person to took his personal search prior taking search of accused. PW-3 stated that IO made request to 3-4 public persons to join the investigation of present case prior making personal search of accused. PW-3 admitted that IO did not give any written notice to any public person to join the investigation. PW-3 stated that at about 12.30 p.m. Ct. Kishan went to PS alongwith original rukka for registration of FIR. PW-3 admitted that FIR No. 164/15 PS Jafrabad State V. Anil @ Sonu @ Matka (18.04.2018) Pg No. 6 of 17 on Sketch memo Ex. PW5/A there were no mention of his signature and denied to suggestion that Ex. PW5/A does not bear his signature because the recovery was not effected in his presence.
7.4 PW4 is HC Sunil Dutt who deposed that on 27.03.2015 MHC(M) handed over one sealed pullanda sealed with the seal of RK and vide RC no. 23/21/15, he went to FSL Rohini and e deposited the said pullanda at FSL Rohini and handed over the copy of RC and receipt of case property to MHC(M).
7.5 PW-5 is the 1st IO SI Rohit Kumar who carried out the investigation of the present case and deposed on the lines of PW-1 and PW-3 and supported the case of the prosecution. PW-5 deposed that he carried out the investigation of the present case and prepared the sketch memo of case property i.e. 10 cartridges and one revolver as Ex. PW5/A, sealed the pullanda with his seal of RK, fill-up the FSL for and pulanda was taken into possession vide seizure memo Ex. PW3/A and seized the motorcycle as Ex. PW3/D. PW-5 further deposed that he prepared the rukka Ex PW5/B and got registered the FIR through Ct. Kishan and thereafter, further investigation marked to SI Rakesh who prepared site plan Ex. PW2/A at his instance.
In cross-examination, PW-5 stated that he made departure entry at PS and personal search of accused Sonu was conducted by Ct. Gajender. PW-5 stated that FIR No. 164/15 PS Jafrabad State V. Anil @ Sonu @ Matka (18.04.2018) Pg No. 7 of 17 he did not know if Ct. Gajender gave his personal search to any person before starts searching proceedings of accused Sonu. PW-5 admitted that it was a very crowded place where they stop the motorcycle. PW-5 stated that he had not made request to any public person to join the investigation prior starting proceedings of personal search of Sonu. PW-5 denied to the suggestion that prior personal search of accused, he did not ask public persons to join the investigation because no recovery effected from the possession of accused. PW-5 further stated that Ct. Kishan alongwith second IO came at the spot at about 02.00 to 02.15 p.m. Further PW-5 admitted that there was no mention his signature on site plan Ex. PW2/A.
8. In examination of accused u/s 313 Cr.P.C., he stated that he has been falsely implicated in the present case and he is innocent and the police obtained his signatures on various documents. He further stated that on the day of incident, he had gone to house of one of his friend namely Abid at Mustafabad and police official lifted him from the house of Abid and falsely implicated in the present case and police official also asked money to him but he refused the same and therefore, police implicated him. He did not opt to lead defence evidence.
9. Considering the points contended on behalf of accused, it is observed that there is no independent witness joined in the investigation. In State of Punjab v. Balbir Singh, AIR 1994 SC 1872, the Hon'ble Supreme Court held that:
FIR No. 164/15 PS Jafrabad State V. Anil @ Sonu @ Matka (18.04.2018) Pg No. 8 of 17 "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 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]"
Considering facts and circumstances of the present case, there was no lack of time and opportunity to associate some independent witnesses with the search and strictly comply with the FIR No. 164/15 PS Jafrabad State V. Anil @ Sonu @ Matka (18.04.2018) Pg No. 9 of 17 provisions of Code of Criminal Procedure. Merely mentioning that public persons were requested to joined the investigation is of no avail. Name of those persons are not mentioned. Prosecution has not examined any other independent public witness. Regarding the importance of joining independent witness during investigation in a case like the present one, reliance may be placed on the following case laws:
In a case law reported as Anoop Joshi Vs. State 1999(2) C.C. Cases 314 (HC), Hon'ble High Court of Delhi has observed as under:
"18. It is repeatedly laid down by this court that 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 evident that no such sincere efforts have been made, particularly when we find that shops were open and one or two shopkeepers 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".
In case law Nanak Chand Vs. State of Delhi DHC 1992 CRI LJ 55 it is observed as under:-
FIR No. 164/15 PS Jafrabad State V. Anil @ Sonu @ Matka (18.04.2018) Pg No. 10 of 17 "that the recovery is proved by three police officials who have differed on who snatched the Kirpan from the petitioner and at what time. The recovery was from a street with houses on both sides and shops nearby. And, yet no witness from the public has been produced. Not that in every case the police officials are to be treated as unworthy of reliance but their failure to join witnesses from the public especially when they are available at their elbow, may, as in the present case, cast doubt. They have again churned out a stereotyped version. Its rejection needs no Napoleon on the Bridge at Arcola".
In Sadhu Singh versus State of Punjab, (1997) 3 Crimes 55 (PH) wherein it is held that:
"there can be cases when public witnesses are reluctant to join or are not available. All the same, the prosecution must show a genuine attempt having been made to join public witnesses. It is further held that a stereotype statement of non availability of any public witness will not be sufficient particularly when at the relevant time, it was not difficult to procure the services of public witness."
FIR No. 164/15 PS Jafrabad State V. Anil @ Sonu @ Matka (18.04.2018) Pg No. 11 of 17 Keeping in view of the above authorities, I am of the considered opinion that prosecution has failed to show a genuine effort to make a public witness with regard to the apprehension of accused and alleged recovery of revolver & cartridges from the possession of the accused.
10. Regarding entry and departure of police personnels, Chapter 22 rule 49 of the Punjab Police Rules, is reproduced herein for ready reference:
''22.49 Matters to be entered in Register No. II The following matters shall, amongst others, be entered :(c) The hour of arrival and departure on duty at or from a police station of all enrolled police officers of whatever rank, whether posted at the police station or elsewhere, with a statement of the nature of their duty. This entry shall be made immediately on arrival or prior to the departure of the officer concerned and shall be attested by the latter personally by signature or seal. Note ;- The term Police Station will include all places such as Police Lines and Police Posts where Register No. II is maintained."
At this juncture, it would be relevant to refer to a case law reported as Rattan Lal V/s State, 1987 (2) Crimes 29 in which the Hon'ble Delhi High Court has been held as under:
FIR No. 164/15 PS Jafrabad State V. Anil @ Sonu @ Matka (18.04.2018) Pg No. 12 of 17 "if the investigating agency deliberately ignores to comply with the provisions of the Act the courts will have to approach their action with reservations. The matter has to be viewed with suspicion if the provisions of law are not strictly complied with and the least that can be said is that it is so done with an oblique motive. This failure to bring on record, the DD entries creates a reasonable doubt in the prosecution version and attributes oblique motive on the part of the prosecution."
In the present case, the above said provision has not been complied with by prosecution. PW-5 in his cross-examination stated that he had made the departure entry and though the same has been filed by PW-5 SI Rohit but has not been tendered in evidence for reason best known to the prosecution. Even the IO has not cited the DD writer as witness in the list of prosecution witness annexed with the charge-sheet. Further, the register/record containing the departure entries of police personnels at the spot has also not been produced in the evidence. Thus, the relevant entries regarding the arrival and departure of the police officials have not been proved on record. This raises a doubt regarding the presence of police on the spot and all consequential event such as arrest, seizure, investigation etc.
11. Further observed that the seal after use was not handed over to any independent person. Seal was handed over to Ct.
FIR No. 164/15 PS Jafrabad State V. Anil @ Sonu @ Matka (18.04.2018) Pg No. 13 of 17 Gajendra. It appears that no efforts was made to hand over the seal after use to independent person. I am conscious of precedent laid down by Hon'ble Delhi High Court in Safiullah v. State, 1993 (1) RCR (Criminal) 622, that:
"10. 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."
Hon'ble Punjab & Haryana High Court also held in Ramji Singh v. State of Haryana, 2007 (3) RCR (Criminal) 452, that "7. The very purpose of giving seal to an independent person is to avoid tampering of the case property."
Hence, considering the legal position, the benefit of doubt should be given to the accused.
12. Now, I consider the observation made by Hon'ble Delhi High Court in Giri Raj v. State, 83 (2000) DLT 201. In the present case, the seizure memo of motorcycle Ex.PW3/D and seizure memo of weapon Ex.PW3/A bears the number of FIR. At the time of the seizure, FIR number was not available and therefore, FIR number could not have figured on the seizure memos. The existence of FIR number on FIR No. 164/15 PS Jafrabad State V. Anil @ Sonu @ Matka (18.04.2018) Pg No. 14 of 17 the above two seizure memos suggests that they were prepared after the registration of FIR and are therefore ante-timed. It is not the case of prosecution that FIR number was later appended/mentioned upon these memos. This erodes the credibility of the witnesses who have stated that the seizure memos were prepared on the spot and before the registration of FIR. That being so, the benefit arising out of such a situation must necessarily go to the accused.
13. Further, it is noted that sketch memo was signed by PW-5 SI Rohit but not signed by any other accompanying police personnel.
14. It is observed that in cross-examination PW-2 SI Rakesh sated that he reached at the spot at around 11.30 a.m. to 12.00 Noon but it is worthwhie to mention here that the time of sending rukka is 12.25 p.m. and as per PW-5 SI Rohit, 2nd IO SI Rakesh reached at the spot at around 02.00-02.15 p.m. Thus, the version of 2 nd IO SI Rakesh as to the time of his reaching at the spot is not substantiated from the record and neither by the witness PW-5 SI Rohit who led the raiding party which creates doubt about the presence of IO SI Rakesh at the spot and apprehension of the accused at the spot by the police personnels.
15. Furthermore, it also came on record that 1st IO/PW5 or accompanying police personnel PW-1 and PW-3 did not give their personal search to any one before checking the accused. Further, there is material contradiction coming out in the testimonies of prosecution witnesses as PW-1 ASI Virender Kumar and PW-3 Ct. Gajendra stated in their testimonies that personal search of accused was conducted by IO SI Rohit however, IO SI Rohit (PW-5) in his FIR No. 164/15 PS Jafrabad State V. Anil @ Sonu @ Matka (18.04.2018) Pg No. 15 of 17 testimony deposed that personal search of accused was conducted by PW-3 Ct. Gajendra. Further, it is noted that PW-1 ASI Virender Kumar and PW-3 Ct. Gajendra stated in their testimonies that IO made request to public persons to join the investigation before making the personal search of the accused but nothing of this sort is stated in the FIR. It is also noted that in cross-examination, PW-5 IO/SI Rohit stated that he had not made request to any public person to join the investigation prior to the personal search of accused. When the raiding members took the personal search of the accused then they must have offered their personal search to someone so that the possibility of false plantation of the property could be ruled out. In the present case no such precaution was taken by the IO and as such the possibility of false planting the case property upon the accused could not be ruled out.
In the judgment titled as S.L.Goswami v. State of M.P reported as 1972 CRI.L.J.511(SC) the Hon'ble Supreme Court held:
"...... In our view, the onus to proving all the ingredients 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 cases 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 FIR No. 164/15 PS Jafrabad State V. Anil @ Sonu @ Matka (18.04.2018) Pg No. 16 of 17 even at the initial stage to prove something which has to be eliminated by the prosecution to establish the ingredients of the offence with which he is charged, and even if the onus shifts upon the accused and the accused has to establish his plea, the standard of proof is not the same as that which rests upon the prosecution..........................."
16. In view of the above appreciation of evidence, no confidence is inspired to record any conviction in this case. It is the cardinal principle of criminal justice delivery system that the prosecution has to prove the guilt of accused beyond reasonable doubts. No matter how weak the defence of accused is, but the golden rule of criminal jurisprudence is that the case of the prosecution has to stand on its own legs. It is evident from the above analysis that prosecution has failed to establish that the accused committed the offence charged upon him.
17. Accordingly, the accused Anil @ Sonu @ Matka is acquitted in this case.
Dictated directly on the
Computer System and
Announced in the open (PRANJAL ANEJA)
Court on 18.04.2018 Metropolitan Magistrate-01
Digitally
Shahdra District, Karkardooma
signed by Courts, Delhi
PRANJAL
ANEJA
PRANJAL Location: karkardooma
ANEJA Courts, Delhi
Date:
2018.04.18
17:02:08
+0530
FIR No. 164/15 PS Jafrabad State V. Anil @ Sonu @ Matka (18.04.2018) Pg No. 17 of 17