Delhi District Court
State vs . Sandeep Kumar on 15 May, 2012
IN THE COURT OF SH. DEEPAK SHERAWAT
METROPOLITAN MAGISTRATE, SOUTH DISTRICT
SAKET COURTS, NEW DELHI
FIR No. 626/2008
P.S. Malviya Nagar
U/s 25 Arms Act
State Vs. Sandeep Kumar
JUDGMENT :
a. Sl. No. of the case : 19/3M
b. Date of Institution : 04.07.2009
c. Date of Commission of Offence : 20.08.2008
d. Name of the complainant : Ct. Harbir Singh
No. 2226/SD
e. Name of the accused and his : Sandeep Kumar
parentage and address S/o Tula Ram
R/o H.no.99, Chirag
Delhi, New Delhi
f. Offence complained of : U/s 25 Arms Act
g. Plea of the accused : Pleaded not guilty
h. Order reserved : 15.05.2012
i. Final Order : Acquitted
j. Date of such order : 15.05.2012
1. The accused in this case was sent up for trial for the
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commission of offence U/s 25 Arms Act.
2. The facts in brief are that on 20.08.2008, Ct. Harbir while patrolling along with Ct. Dev Lagan through DD no. 35B at about 7.00 p.m., reached Shaheed Bhagat Singh College road where the accused was found in suspicious condition as he was taking fast steps. Thereafter they asked him to stop but the accused tried to escape. On suspicion, accused was apprehended and on his search, one buttondar knife was recovered his possession. Thereafter information was sent to Police Station through phone and ASI Gopi Chand came at the spot to whom the accused alongwith the case property was handed over. Thereafter present case FIR was registered in PS Malviya Nagar. During the investigation site plan was prepared. Statement of witnesses were recorded. Accused was arrested and after completing the other formal investigation, the challan was presented before the court for trial.
3. A prima facie case having been made out against the accused, charge was framed against the accused on 05.07.2010 under section 25 Arms Act to which he pleaded not guilty and claimed trial.
4. To prove its case against the accused, the prosecution has examined four witnesses namely HC Sher Singh as PW1, Ct. Harbir as PW1(a), Ct. Dev Lagan as PW3 and SI Gopi Chand as PW4.
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5. PW1 HC Sher Singh has testified that on 20.08.2008, on receipt of rukka through Ct. Dev Lagan, he recorded the present case FIR which is Ex. PW1/A. He put his endorsement on rukka vide Ex. PW1/B. Accused did not prefer to cross examine PW1.
6. PW1(a) Ct. Harbir has testified that on 20.08.2008, while patrolling alongwith Ct. Dev Lagan through DD no. 35B, at about 7.00 p.m., they reached Shaheed Bhagat Singh College road where one person present in the court was found in suspicious condition as he was taking fast steps so they asked him to stop but he tried to escape from there on hearing their voice. Thereafter on suspicion, accused was apprehended and on search of accused, one buttondar knife was recovered from his possession alongwith four mobile phones and a purse alongwith documents and cash. Thereafter information was sent to PS through phone and ASI Gopi Chand reached the spot to whom the accused alongwith the case property was handed over. PW1(a) further testified that the name of accused was revealed as Sandeep Kumar. IO recorded his statement which is Ex. PW1/A. After measurement of knife, sketch of knife was prepared vide Ex. PW1/B. Knife was put into white cloth and a pullanda was prepared vide memo Ex. PW1/C. PW1(a) further testified that cash of Rs. 6000/, four mobile phones make of Sony Ericsson and Nokia were sealed u/s 102 Cr.P.C. vide memo Ex. PW1/D. Thereafter IO prepared the tehrir and Ct. Dev Lagan got the case registered. Thereafter IO prepared the site plan at his instance. Accused FIR NO. 626/2008 PAGE 3 OF PAGE 8 PS MALVIYA NAGAR was arrested and his personal search was conducted vide memos Ex. PW1/E and F. Disclosure statement of accused was recorded vide memo Ex. PW1/G. PW1(a) correctly identified the case property which are Ex. P1, P2 and P3 respectively.
In his cross examination, PW1(a) has deposed that IO had asked several public persons to join the proceedings but they refused.
7. PW3 Ct. Dev Lagan also deposed the same facts as deposed by PW1(a).
Accused did not prefer to cross examine PW3.
8. PW4 ASI Gopi Chand has testified that on 20.07.2008, as per the directions of SHO, he reached the spot of occurrence i.e. Chirag Delhi Road, opposite Bhagat Singh College where Ct. Harbir and Ct. Dev Lagan handed over him the accused alongwith one illegal buttondar knife, four mobile phones and some cash. Thereafter he recorded the statement of Ct. Harbir. Sketch of knife was prepared by him vide Ex. PW1/B. The knife was put into a pullanda and the same was sealed with the seal of GCN and the seal after use was handed over to Ct. Harbir. The pullanda was taken into possession and seized vide memo Ex. PW1/C. Thereafter he prepared the rukka on the statement of Ct. Harbir Singh and FIR was got registered through Ct. Dev Lagan vide his endorsement Ex. PW4/A. Thereafter he prepared the site plan at the instance of Ct. Harbir which is Ex. PW4/B. PW4 further testified that after interrogation, FIR NO. 626/2008 PAGE 4 OF PAGE 8 PS MALVIYA NAGAR accused was arrested and his personal search was conducted vide memo Ex. PW1/E and 1/F. The other recovered articles were also seized vide memo Ex. PW1/D. PW4 further testified that accused also made a disclosure statement which is Ex. PW4/C wherein he disclosed about many incidents of theft committed by him.
In his cross examination, PW4 has testified that it was the written direction for him vide DD no. 38A but the copy of the said DD has not been placed on record. PW4 further testified that he requested some public persons to join the investigation but none of them get ready and no written notice was served upon them.
9. After closing of prosecution evidence, statement of accused was recorded U/s 281 of Code of Criminal Procedure Code,1973 r/w 313 Cr.P.C. In his statement, accused denied to have committed the offence and claimed to have been falsely implicated in this case. Accused further denied to lead any defence evidence.
10. I have heard the Ld. APP for the State and the Ld. Counsel for the accused and have also perused the record.
11. In this case, the prosecution is required to establish beyond reasonable doubt that the accused was in possession of the arms without any valid license. All the witnesses produced by the prosecution are police officials. In the present case, PW1(a) and PW2 are the material FIR NO. 626/2008 PAGE 5 OF PAGE 8 PS MALVIYA NAGAR witnesses as recovery has been effected by them from the possession of the accused. PW1 is the duty officer who recorded the FIR Ex. PW1/A and PW4 is the IO of the case who done all the documentary proceedings.
12. In the present case, no public witness has been associated with the investigation. No independent witness has been joined at the time of the arrest of the accused and recovery of the weapon. PW1(a) and PW 4 during their cross examination have deposed that request was made to public persons to join the proceedings but they refused the same. On the other hand, PW2 has not deposed a single word in this respect. All the witnesses to the recovery being police official, such recovery does not inspire confidence. Similar view has been expressed by the Supreme Court in Sanspal Singh v. State of Delhi, (1998) 2 SCC 371 and the Delhi High Court in Staila Sayyed v. State, (Delhi)2008(4) JCC 2840.
13. Further it needs to be noted that the sketch memo and the seizure memo regarding the weapon bear the number of FIR. The prosecution has not offered any explanation whatsoever as to under what circumstances number of the FIR has appeared on the top of the aforesaid documents, which were allegedly prepared on the spot before the registration of the FIR. This gives rise to two inferences that either the FIR was recorded prior to the alleged recovery of the contraband or number of the said FIR was inserted in these documents after its registration. In both the situations, it seriously reflects upon the veracity FIR NO. 626/2008 PAGE 6 OF PAGE 8 PS MALVIYA NAGAR of the prosecution version given by the aforesaid witnesses and creates a good deal of doubt about the recovery in the manner alleged by the prosecution. Reliance may be had to the decision of the Delhi High Court in Lalji Shukla v. State, (Delhi) 2000(1) R.C.R.(Criminal) 305.
14. Again, there is nothing on record to prove that the seal with which the parcel containing the article of recovery was sealed was handed over to any independent witnesses after use. In this case, PW3 and PW4 both have testified that the seal after use was handed over to Ct. Harbir/PW1(a) whereas PW1(a)/Ct. Harbir has not deposed a single word in this respect. In such circumstances possibility of tampering with contents of sealed pullanda cannot be ruled out. It was very essential for the prosecution to have established that sealed pullanda was not tampered with. In this respect, the decision of the Delhi High Court in Safiullah v. State (Delhi Administration), Delhi 1993(1) R.C.R. (Criminal) 622 may be referred to.
15. Moreover, no DD entry in respect of PW1(a) and PW3 is proved on record to establish that they were actually present in the area at the relevant time in connection with patrolling of the area. PW1(a) and PW3 both in their testimony have deposed that on the day of incident, they were on patrolling duty vide DD entry no. 35B but neither the said DD has been placed on record nor the same has been proved. Thus the presence of these witnesses at the alleged time itself is rendered doubtful. This view FIR NO. 626/2008 PAGE 7 OF PAGE 8 PS MALVIYA NAGAR has been expressed by the Delhi High Court in Shekhar v. State of NCT of Delhi, (Delhi) (D.B.) 2008 Cri.L.J. 3258.
16. All these infirmities in the prosecution evidence seriously reflects on the veracity of prosecution case the benefit whereof must go to the accused.
17. In the result, I find that Prosecution has failed to prove its case against the accused beyond reasonable doubt and he is given the benefit of doubt and therefore accused Sandeep Kumar is acquitted for the offence punishable U/s. 25 of Arms Act for which he stands charged.
Announced in the Open Court (DEEPAK SHERAWAT)
On 15.05.2012 Metropolitan Magistrate
South District/New Delhi
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