Delhi District Court
State vs Vrijesh @ Vijju Etc on 23 November, 2024
IN THE COURT OF HARSHAL NEGI
JUDICIAL MAGISTRATE FIRST CLASS-02, DWARKA COURT, NEW
DELHI
FIR No.: 401/2011
PS: Dabri
U/s: 323/342/506/34 IPC & 25/54/59 Arms Act
Case no. 428041/2016
State
Vs.
1. Ravinder Sharma
S/o Late Sh. Sohan Lal Sharma
R/o RZ-22, Q Extension,
Uttam Vihar, Uttam Nagar.
2. Sandeep Kumar
S/o Sh. Maan Singh
R/o H. No. 145, B Block,
Bhagwati Vihar, Uttam Nagar, New Delhi.
&
3. Krishna Yadav
S/o Sh. Ravinder Yadav
R/o F-354, Gali no. 85, Mahavir Enclave,
Phase III, New Delhi-110059. ..... Accused persons
S. No. of the case : 428041/2016
The date of offence : 13.12.2011
The name of the complainant : Pappu
The name of the accused : Ravinder Sharma, Sandeep
Kumar and Krishna Yadav.
The offence complained : 323/342/506/34 IPC & 25/54/59 Arms
Act
The plea of the accused : Pleaded not guilty
Argument heard on : 21.10.2024
The date of order : 23.11.2024
The final order : Acquittal
FIR No.: 401/2011 State versus Vrijesh @ Vijju & Ors. Page No. 1 of 14
Brief Facts
1. The case of the prosecution is that the complainant Pappu on 13.12.2011 at around 1-1.15 pm met with accused Vir Singh and objected his actions of harassment to the sister of his friend. On that accused Vir Singh called Krishna who came along with his friends Vrijesh, Sandeep and Ravinder and assaulted him. Thereafter, they all took him to the house of Vrijesh House No E-261 Mahavir Enclave. Accused Vrijesh, Krishna, Sandeep and Ravinder locked him in a room and gave him beatings. Accused Vrijesh then call 100 number and ASI Ali Ahmed came. ASI Ali Ahmed searched the accused persons and one desi katta was found in possession of accused Krishna. An FIR No 401 of 2011 came to be registered at PS Dabri. Investigation was handed over to ASI Ali Ahmed and then to HC Ramesh Kumar, who filed the chargesheet.
2. On completion of investigation, a chargesheet was filed against the Ravinder, Vrijesh, Sandeep, Krishna and Vir Singh. After taking cognizance of the offence, the accused persons were summoned to face trial.
3. On their appearance, a copy of chargesheet along with documents were supplied to the accused persons in terms of Section 207 of the Code of Criminal Procedure (hereinafter referred to as 'CrPC'). On finding prima facie case, following charges were framed against the accused person's:
i. Charges under Section 323/342/34 against accused Ravinder, Brijesh, Sandeep, Krishna and Vir Singh ii. Charge under Section 25/54/59 Arms Act against accused Krishna.
4. All the accused persons pleaded not guilty and claimed trial.
5. During the course of the trial accused Brijesh stopped appearing and was declared proclaimed offender on 30.06.2018. Further, accused Veer Singh also expired during the course of trial. Thus, the matter proceeded against accused FIR No.: 401/2011 State versus Vrijesh @ Vijju & Ors. Page No. 2 of 14 Ravinder, Sandeep and Krishna.
6. The prosecution in total made 11 witnesses and examined 5. Prosecution failed to secure the presence of the victim Pappu i.e. witness at serial no 1, despite repeated opportunities and thus witness at serial no 1 was dropped from the list of witnesses.
7. Statement of the accused Ravinder, Sandeep and Krishna were recorded under Section 294 CRPC and they admitted the following:
i. FIR No 401/2011 PS Dabri Ex P1.
ii. DD No 76B dated 20.10.2011 PS Bindapur Ex P2.
iii. FSL report dated 30.07.2012 Ex P3.
iv. Mlc No 25384 of injured Pappu dated 13.12.2011 DDU Hospital along
with X ray requisition form Ex Y1 (Colly).
8. In furtherance of the statement under Section 294 CRPC of accused Ravinder, Sandeep and Krishna, the witnesses at serial no 5, 7, 8 were dropped. Further at the request of Ld APP witness at serial no 2 was also dropped from the list of witnesses.
9. During the course of the trial the prosecution examined the following witnesses:
i. ASI Ramesh was examined as PW1. He stated that on 25.12.2011, the present case file was marked to him for further investigation. During investigation, the earlier IO had already seized the katta. He sent the said katta to FSL for examination. On 07.12.2012, he arrested one of the accused namely Vir Singh vide memo Ex.PW1/A bearing his signatures at point A. After obtaining the result from FSL, he obtained the permission u/s 39 Arms Act from the Additional DCP and after completion of the investigation he filed the charge sheet before the Court. He cannot identify the accused Vir Singh, who is present in the Court today due to lapse of time. (At this stage, Ld. APP wants to cross-examine the witness on the point of identity. Heard. Allowed.) FIR No.: 401/2011 State versus Vrijesh @ Vijju & Ors. Page No. 3 of 14 ii. In his cross-examination Ld. APP for the State specifically point the finger towards accused Vir Singh and suggest that he had arrested the Vir Singh who is present in the Court today. Witness states that now he can identify accused Vir Singh. iii. In his cross examination carried out by Ld Counsel for the accused PW 1 denied that he had not arrested the accused Vir Singh so he could not identify the accused Vir Singh. He do not know the exact date when he sent the katta to FSL. He also do not know when the FSL report received by him. During investigation, he recorded the statement of Ct. Ratan Lal. But he do not know the date, month, time and year when he recorded the statement of Ct. Ratan Lal. He affirmed that he had not recorded the statement of any public person regarding the present case. He do not know when he have received the permission from concerned DCP under Section 39 Arms Act. He do not know the exact address but he arrested accused Vir Singh from Binda Pur area on 07.12.2012 at around 7:00pm. He affirmed that many public persons were passing from that location at that time. No public person was made party to arrest. He do not enquire the name and address of the any public person. He denied that accused Vir Singh was taken in custody from his house while he was sleeping. Personal search of accused was not conducted. He arrested the accused on the identification of the complainant. Statement of the complainant was recorded. He denied that all the proceedings were manipulated in the PS due to which he do not know any facts of the case. He denied that accused have been falsely implicated. He denied that he is deposing falsely.
FIR No.: 401/2011 State versus Vrijesh @ Vijju & Ors. Page No. 4 of 14 iv. Ct Rattan Lal was examined as PW2. He stated that on 30.05.2012, he was posted at PS Dabri. On that day, he obtained one sealed pulanda with the seal of AAK from MHC(M) for depositing the same in FSL Rohini. He deposited the same vide RC no. 115/21/12 dated 30.05.2012. He deposited the same and obtained the acknowledgement and handed over the same to MHC(M) till the time the sealed pulanda was remaining in his possession, the seal of the same remained intact.
v. In his cross-examination PW 2 stated that he deposited the acknowledgment at MHCM on the same date i.e 30.05.2012. He denied that he is deposing falsely.
vi. ASI Pushpa was examined as PW3. He stated that on 13.12.2011, he was posted at PS Dabri as Duty Officer. On that day his duty hours were from 8:00am to 4:00pm. At about 3:00pm, he have received DD entry no. 29A. On the basis of the DD entry, he registered the present case same is Ex.PW3/A (OSR). He made an endorsement on the DD entry which is Ex.PW3/B. After registration of the case, he handed over DD entry to Ct. Sandeep to be handed over to ASI Ali Ahmad for investigation of the case. vii. In his cross-examination PW 3 stated that he do not know who has brought the rukka on 13.12.2011 for registration of DD entry. He denied that he is deposing falsely.
viii. IO ASI Ali Ahmed was examined as PW 4. He stated that on 13.12. 2011, on receipt of DD No. 29A, he alongwith Ct. Siriom reached at the spot E-261, Mahavir Enclave-III where complainant Pappu and other four persons met them. Pappu told that all the four accused persons namely Ravinder, Brijesh, FIR No.: 401/2011 State versus Vrijesh @ Vijju & Ors. Page No. 5 of 14 Sandeep, Krishna Yadav gave him beating. Their personal search was got conducted. One country made pistol was recovered from the possession of accused Krishna Yadav. It was found unloaded. Public persons were asked to join the investigation but none agreed. He prepared sketch of country made pistol on a white paper vide memo ExPW4/A bears his signature at point A. He prepared the seizure memo of country made pistol by putting the same in white clothes and sealed it with seal of AAK vide memo ExPW4/B bears his signature at point A. The detailed description of country made pistol is mentioned in seizure memo of said pistol. Seal after use was handed over to Ct. Siriom. Thereafter, he recorded the statement of the complainant Pappu vide memo ExPW4/M. He prepared rukka and made endorsement on the same. Endorsement is ExPW4/C bears his signature at point A. He handed over the rukka to ct. Siriom and sent him to the PS for registration of FIR. In the meantime, Ct Vikram came at the spot and he sent the complainant Pappu to DDU hospital for his medical examination with const. Vikram. After that ct. Siriom came back from PS after registration of the case and handed over him copy of FIR and original rukka. After interrogation, he arrested all four accused persons namely Ravinder, Sandeep, Brijesh and Krishna Yadav are present in the court. Arrest memo of accused Sandeep is ExPW4/D bears his signature at point A, of accused Ravinder Sharma is ExPW4/E bears his signature at point A, of accused Krishna Yadav is ExPW4/F bears his signature at point A, of accused Brijesh is ExPW4/G bears his signature at point A. Personal search of accused ie Krishna Yadav, Ravinder Sharma, Sandeep Kumar and Brijesh were also taken vide memo FIR No.: 401/2011 State versus Vrijesh @ Vijju & Ors. Page No. 6 of 14 ExPW4/H to ExPW4/K respectively bears his signature at point A. He prepared the site plan at the instance of complainant vide memo ExPW4/L bears his signature at point A. He recorded statement of complainant u/s 161 CrPC. After the medical examination of accused persons, they were taken to police lock up. Case property was deposited in the malkhana. After that he handed over case file to second IO as he was transferred. ix. In his cross examination PW 4 stated that he reached the spot at about 3.20 pm. He do not know when he recorded the statement of Pappu. He also do not remember the time when he left the spot lastly. He was on spot alongwith two const. namely Siriom and Beat const. Vikram. No any other police official was there. The length of katta was 25 cm and the length of barrel was 11 cm and the length of butt was 8.5 cm. He affirmed that the spot was rushed place. He have not recorded the statement of other public witnesses. He also did not serve any notice to any public persons. He do not know the name of public witnesses who were present there. Vol. (He had asked the public persons to join the investigation but none joined without disclosing their names and address). He do not remember the time when he asked the public witnesses to join the investigation due to lapse of time. He did not offer his personal search to accused persons. He denied that the country made pistol was not recovered from accused Krishna Yadav. He denied that country made pistol was planted by the police or that no recovery was made from accused Krishna Yadav. He do not remember the time when he prepared pulanda on white paper due to lapse of time. He do not remember when he prepared the seizure memo. He affirmed that he had not recorded the FIR No.: 401/2011 State versus Vrijesh @ Vijju & Ors. Page No. 7 of 14 statement of other witnesses except Pappu. He do not remember the time when he prepared the rukka. Vol. (He prepared the rukka at 5.30 pm). He do not remember the time when ct. Siriom returned at the spot after registration of FIR. He do not remember how much time was spent in all proceeding. He denied that he had not reached at the spot, hence he is not able to tell the time. Site plan was not signed by any witness. Seizure memo was signed by the complainant and witnesses. He do not remember the time when he prepared the arrest memo of the accused persons. Vol. (It was about 6/6.30 pm). He do not remember the time when he prepared the jamatalashi of accused persons. All the accused persons were wearing pant and shirt. He do not remember the colour of clothes worn by accused Krishna Yadav. He prepared site plan at the instance of complainant. He denied that he did not prepared site plan at the instance of complainant, hence he do not taken his sign on site plan. He denied that accused Brijesh is not present in court today. He prepared all the proceedings sitting on the road but he do not remember the width of the said road. Road light was there. It was winter season. All the proceedings were done sitting on the land on the spot. He denied that all the proceedings were done in PS and he was not present at the spot. He denied that no pistol was recovered from accused Krishna Yadav and the said pistol was planted by police. He denied that he is deposing falsely.
x. Joint CP Sh R K Pandey was examined as PW 5. He stated that on 24.11.2012, he was posted as Additional DCP, SW District, New Delhi. On that day, he have perused the documents alongwith the entire file of the present case including FSL report, FIR and other FIR No.: 401/2011 State versus Vrijesh @ Vijju & Ors. Page No. 8 of 14 relevant statement and documents. On the basis of these documents, he was convinced that the accused Krishan Yadav was in conscious and exclusive possession of a country made pistol in violation of 3 Arms Act. On the basis of these documents and the powers conferred upon him by Section 39 Arms Act, he sanctioned the prosecution and trial of the accused by the competent court u/s 25 Arms Act. The said order u/s 25 Arms Act is Ex.PW5/1 bearing his signatures and stamp at point A. The FSL report regarding the said pistol is already Ex.P3. xi. Opportunity was given to accused persons to cross-examine PW 5, however, no cross examination was carried out.
10. Prosecution evidence was thereafter closed and statement of the accused persons were recorded under Section 313 CRPC r/w Section 281 CRPC. All the accused persons denied the allegations against them and chose not to lead any defence evidence.
11. It is argued by Ld. APP for the State that it is clear from the evidence on record the accused persons committed the offence for which they have been charged. He has thus, submitted that the prosecution has proved its case beyond reasonable doubt against the accused and he be, therefore, held guilty and convicted for the above-said offence.
12. Per contra, Ld. Counsel for the accused persons have argued that the State has failed to establish its case beyond reasonable doubt and since nothing incriminating has appeared against the accused persons and they be, therefore, acquitted for the offences charged.
13. I have heard the Ld. APP for the State and Ld. Defence counsel at length, perused the record, gone through the relevant provisions of law and given my thoughts to the matter.
FIR No.: 401/2011 State versus Vrijesh @ Vijju & Ors. Page No. 9 of 14 Findings of the Court
14. Before embarking on the analysis and appreciation of the statements and evidences on record it is apposite to state that to bring home the guilt of the accused in any criminal matter beyond the shadow of reasonable doubt the burden rests always upon the prosecution. The burden of proof on the prosecution is heavy, constant and does not shift. The case of the prosecution needs to stand on its own footing failing which benefit of doubt ought to be given in favour of the accused. Needless to say, in this case also, with or without defense evidence, the prosecution has to establish its case beyond reasonable doubt. On the touchstone of the above settled legal proposition the facts of the present case are to be analysed.
Section 323/342/34 IPC
15. Accused Ravinder, Sandeep and Krishna have been charged under Section 323/342/34 IPC.
16. Section 323 IPC states:
Punishment for voluntarily causing hurt. --Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.
17. Section 342 IPC states:
Punishment for wrongful confinement.--Whoever wrongfully confines any person shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.
18. The case of the prosecution is that the complainant Pappu on 13.12.2011 at around 1-1.15 pm met with accused Vir Singh and objected to his actions of harassment to the sister of his friend. On that accused Vir Singh called Krishna FIR No.: 401/2011 State versus Vrijesh @ Vijju & Ors. Page No. 10 of 14 who came along with his friends Vrijesh, Sandeep and Ravinder and assaulted him. Thereafter, they all took him to the house of Vrijesh House No E-261 Mahavir Enclave. Accused Vrijesh, Krishna, Sandeep and Ravinder locked him in a room and gave him beatings. However, the prosecution failed to ensure the attendance of the complainant who is also the victim of the incident. Despite repeated opportunities to the prosecution, the presence of the complainant could not be secured. Thus, nothing on record came at the end of the prosecution to establish the allegations levelled against the accused persons. Although the accused persons during the course of trial admitted the MLC No 25384 of injured complainant pappu, however, in absence of any testimony of the injured complainant pappu, the MLC by itself does not establish that the hurt has been caused to the injured by accused persons.
19. Thus, in light of the above discussions which throws doubt on the authenticity of the prosecution version, this court is of the opinion that prosecution has failed to prove its case beyond reasonable doubt. The accused Ravinder, Sandeep and Krishna are, therefore, acquitted of the offence u/s 323/342/34 IPC.
Section 25/54/59 Arms Act.
20. Accused Krishna has been charged under Section 25/54/59 Arms Act. 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 FIR No.: 401/2011 State versus Vrijesh @ Vijju & Ors. Page No. 11 of 14
(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.
21. In the case in hand, the incident took place at the house of accused Vrijesh. Perusal of the testimony of PW-4/IO reveals that he categorically stated that there were residential houses and public persons were passing by. That he had also asked public persons to join the investigation, but none of them had agreed. Thus, it is not the case of the prosecution that no public person was present at or near the spot of recovery. However, it is equally true that no steps are shown to have been taken to note down the names and addresses of those persons. It is a well settled proposition of law that non-joining of public witness throws doubt over the fairness of the investigation by police. Section 100 (4) of the CrPC also casts a statutory duty on an official conducting search to join two respectable persons of the society. However, no public person has been joined by the IO in the present case.
22. 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 FIR No.: 401/2011 State versus Vrijesh @ Vijju & Ors. Page No. 12 of 14 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".
23. In a case titled as Nanak Chand Vs. State of Delhi, 1990 SCC OnLine Del 469 , Hon'ble High Court of Delhi has observed as under:
"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 (Emphasis supplied).
24. In the present case also, non-joining of any public person as a witness creates doubt on the case of the prosecution.
25. Further, the seal remained with a police official only and it has not been proved that the seal was handed over to any other independent public person and therefore, the possibility of sample 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 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. Furthermore, the case property was never brought on record.
26. 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 FIR No.: 401/2011 State versus Vrijesh @ Vijju & Ors. Page No. 13 of 14 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.
27. 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 Krishna, who is entitled to be exonerated of the charges against him in the present case. The accused Krishna is hereby acquitted of the offence punishable under Section 25 of Arms Act. Digitally signed by HARSHAL HARSHAL NEGI Announced in the open court on 23.11.2024. NEGI Date:
2024.11.23 16:29:30 +0530 (Harshal Negi) JMFC-02/Dwarka Court, New Delhi, 23.11.2024 It is certified that the present judgment runs into 14 pages and each page bears my signature. Digitally signed by HARSHAL HARSHAL NEGI NEGI Date: 2024.11.23 (Harshal 16:29:36 Negi) +0530 JMFC-02/DwarkaCourt, New Delhi, 23.11.2024 FIR No.: 401/2011 State versus Vrijesh @ Vijju & Ors. Page No. 14 of 14