Delhi District Court
State vs Kesar Ali & Anrs. on 31 January, 2014
1
IN THE COURT OF Ms. VEENA RANI, CHIEF METROPOLITAN
MAGISTRATE , SOUTHEAST DISTRICT, SAKET COURT COMPLEX,
NEW DELHI
Case No. 66/3N
Unique Case I.D. No.02406R0335952010
STATE VERSUS Kesar Ali & Anrs.
FIR No.93/2010
U/s 25/54/59 Arms Act
P. S. Crime Branch
Date of filing of the charge sheet : 20082010
Date of reserving order : 29012014
Date of pronouncement : 31012014
1. Serial Number of the case : 66/2N
2. The date of the commission of the : 24062010
offence
3. The name of the complainant : SI, Rajender Singh
4. The name of the accused person, : (1) Sh.Kesar Ali S/o Sh. Gulam
his parentage and residential Qumar Ahmad, R/o R47, Gali
address No:19, Brahma Puri , Seelam
Pur, Delhi110053
(2) Kishan @ Lalua S/o Hira
Singh, R/o A146, Usman Pur,
Delhi.
5. The offence complained of : Section 25 Arms Act
6. The plea of the accused : Pleaded not guilty
7. The final order : Acquittal
T
8heThe date of the order : 31012014
State Vs. Kesar Ali & Anrs., FIR No:93/2010
2
JUDGMENT
1. Case of the prosecution is that on 24062010, at about 7:45 p.m, at parking Kalindi Kunj, Sarita Vihar, Delhi, within the jurisdictgion of P.S. Crime Branch both accused Kesar Ali & Kishan were found in possession of a Desi Katta with live cartridge, thereby they committed an offence punishable u/s 25/54/59 Arms Act. Hence, they be prosecuted & punished under section 25/45/59 of the Arms Act.
2. The charge was framed on 08102010 against both the accused for the offence punishable u/s 25/54/59 Arms Act to which they pleaded not guilty and claimed trial.
3. The prosecution has examined as much as 8 witnesses in order to prove their case.
4. The accused persons have also examined three DWS in their defence in order to prove their innocence in the present case.
5. It is argued by the Ld. APP for State that the case has been duly proved against the accused person beyond any reasonable doubt and they should be convicted. He argued that competent authority had given its Sanction for prosecution of accused persons by applying its mind to the facts of the case and after State Vs. Kesar Ali & Anrs., FIR No:93/2010 3 considering relevant material and FSL Report. He had argued that the prosecution had been able to successfully prove that accused persons were in possession of Arms and Ammunition without any licence and therefore, they were liable to be held guilty for committing offence U/s 25 of Arms Act. As far as the case of the prosecution is concerned, the accused persons were apprehended with the country made pistols which they could not hold without valid licenses.
6. PW1 SI Rajender Singh, No. 1184D, SOS, Crime Branch, New Delhi deposed that on 24.06.2010 he was posted at SOS, Crime Branch, SLC as SI. On that day HC Om Bir arrested the accused Qamar Abbas in the case FIR No. 91/10 U/s 25 Arms Act and HC Om Bir interrogated the accused and he told that his two friends namely Keshar Ali and Krishan @ Lalwa were coming at Kalindi Kunj at around 7.40 PM on motorcycle CBZ (black colour) bearing no. DL 13SC 1987 and they kept illegal weapon and they were coming for the purpose of robbery in that area. That he alongwith SI Sukhbir Malik, HC Ragender, HC Mahak Singh, Ct. Devender were present at Millionaire Park, Sarai Kale Khan & he informed the Inspector K.P. Singh regarding this matter and on his instruction he/PW1 formed a raiding party consisting of SI Sukhbir Malik, HC Ragender, HC Mahak Singh, Ct. Devender and himself. PW1 State Vs. Kesar Ali & Anrs., FIR No:93/2010 4 further deposed that they left the Millionaire Park at around 7.00 PM in a private vehicle (Qualis) and reached the parking of Kalindi Kunj Park at around 7.20 PM. PW1 requested 78 public persons to join the raiding party but nobody was ready to join the same and they left the spot for citing one reason and another. It is deposed by PW2 that they took the position in the parking of the said park. At about 7.45 PM, one motorcycle CBZ, black colour bearing no. DL 13SC 1987 was coming from Kalindi Kunj and two persons were sitting on the same and they stopped the motorcycle in the parking area. The driver of the motorcycle wore helmet and they were waiting for someone. PW1 alongwith Ct. Devender apprehended the driver of the motorcycle. PW1 deposed that HC Mahak Singh alongwith other members of the raiding party apprehended the pillion rider. PW1 identified the accused Keshar Ali & Krishan @ Lalwa present in the court during his examination. PW1 further deposed that he cursory searched the accused Keshar Ali and found one desi katta from right side dub of his pant and one live cartridge from right side pocket of his pant & HC Mahak Singh made cursory search of the accused Krishan and found one desi katta from right side dub of his pant and one live cartridge from right side pocket of his pant (objected to). It is deposed by PW1 that he unloaded the desi kattas and one live cartridge was found in each desi katta. He prepared the sketch of the desi State Vs. Kesar Ali & Anrs., FIR No:93/2010 5 katta vide memos which are Ex.PW1/A (accused Krishan) and Ex.PW1/B (accused Keshar Ali) which bear his signature at point A. The length of desi katta which was recovered from the possession of accused Keshar Ali was 28 cm, barrel 10.5 cm, butt 8 cm and two cartridges were 8 cm and a mark KF on their bottom. The length of desi katta which was recovered from the possession of accused Krishan was 27 cm, barrel 14.5 cm, butt 11 cm and two cartridges were 7.5 cm and a mark KF on their bottom. PW1 further deposed that he put the desi katta and two live cartridges which was recovered from the possession of accused Keshar Ali in a plastic jar and sealed with the seal of RS and he further put desi katta and two live cartridges which were recovered from the possession of the accused Krishan in a plastic jar and sealed with the seal of RS and seized the desi kattas and live cartridges vide seizure memos which are Ex.PW1/C (accused Keshar Ali) and Ex,PW1/D (accused krishan), both memo bear my signature at point A. PW1 deposed that he filled the FSL Form and put a seal of RS on the same and seal was handed over to HC Mahak Singh and seized the said motorcycle vide seizure memo which is Ex.PW1/E which bears my signature at point A and prepared the tehrir which is Ex.PW1/F which bears his signature at point A and handed over to Ct. Devender for registration of FIR and Ct. Devender went to the police station and he got registration of State Vs. Kesar Ali & Anrs., FIR No:93/2010 6 FIR & returned to the spot with original tehrir and copy of FIR. PW1 deposed that he called the Inspector K.P, Singh and on his instruction, HC Kuldeep came at the spot and PW1 handed both accused persons, case properties, seizure memos, sketch memos, FSL Form and the said motorcycle to him, Ct. Devender handed over the asal tehrir and copy of FIR to HC Kuldeep & HC Kuldeep prepared the site plan at his instance. PW1 deposed that HC Kuldeep recorded his statement and statement of other witnesses & HC Kuldeep arrested and carried out the personal search of both accused and he recorded disclosure statements of the accused persons.
During the cross examination of PW1 MHC (M) produce the case properties in two parcels duly sealed with FSL (RS). The seal of parcel no. 1 broken and a plastic jar is taken out, one desi katta and two fired cartridges were taken out from the jar and the same are shown to the witness and witness has correctly identified the same which were recovered from the possession of the accused Keshar Ali and the same is Ex.P1. Further the seal of parcel no. 2 was also broken and a plastic jar is taken out, one desi katta and two fired cartridges were taken out from the jar and thesame were shown to the witness and witness has correctly identified the same which were recovered from the possession of the accused krishan and the same was exhibited as Ex.P2.
Further during his cross examination by Sh. Vineet Jain, State Vs. Kesar Ali & Anrs., FIR No:93/2010 7 Advocate, Counsel for the accused persons, PW1 deposed as under: "That no DD Entry recorded regarding the information of the accused persons. It is correct that he was also a member of raiding party which was arrested the accused Qamar Abbas. HC Om Bir was also one of the members in the raiding party who was arrested the Qamar Abbas. He do not remember whether the HC Kuldeep was also member of the raiding party who were accused arrested the accused Qamar Abbas. The raiding party who arrested the accused Qamar Abbas consisting of SI Sukhbir Malik, HC Ragender, Ct. Devender, ASI Ravinder, HC Narender, Ct. Vikal, himself and others. PW1 dod not remember the DD Entry regarding the departure from the P.S to apprehend the accused Qamar Abbas.After arrested the accused Qamar Abbas, he alongwith SI Sukhbir Malik, HC Ragender Singh, HC Mahak Singh, Ct. Devender left the spot to apprehend the accused persons in the present case. PW1 further deposed that they traveled in private vehicles ie. Santro and Qualis to apprehend the accused Qamar Abbas & Except these vehicles, they were not using any other vehicle to apprehend the accused Qamar Abbas. It is stated by PW1 that they left the police station to apprehend the accused Qamar Abbas at about 1.30 PM. The distance between police station, Crime Branch and spot from where the accused Qamar Abbas was apprehended about 34 km and travelling by car, one State Vs. Kesar Ali & Anrs., FIR No:93/2010 8 can reach in 15 minutes.
PW1 admitted that they reached the spot at about 2.00 PM but he doesnot remember the exact time but it was evening time when accused Qamar Abbas came at the spot. PW1 further admitted that he has not mentioned in the rukka that I informed Inspector K.P. Singh regarding the information of the accused persons to came at the spot. During his cross examination PW1 further stated that there were 57 persons present at the parking lot & 810 vehicles were also parked including motorcycle and car were parked in the parking lot. PW1 stated that there were no parking attendant manager were present in the parking lot & no statement was recorded or no notice has given to the person who refused to join the investigation. It is stated by PW1 that accused Qamar Abbas not made the sketch of these accused persons, however he told the motorcycle number. PW1 admitted that there is a canteen at the main gate in the Kalindi Kunj Park where they apprehended the accused persons. PW1 stated that except the arrest and disclosure statement of accused persons, all the proceedings were initiated by me on 24.06.2010. PW1 admitted that they arrested the accused person immediately when they reached at the Kalindi Kunj Park. PW1 denied the suggestion that no information was received by them from accused Qamar Abbas for these accused persons to come at the Kalindi Kunj Parking with illegal arms. PW1 further denied that the accused State Vs. Kesar Ali & Anrs., FIR No:93/2010 9 persons were not arrested from alleged date and time and no recovery of desi katta and live cartridges done from the accused persons. PW1 denied that no motorcycle was recovered from accused Keshar Ali. PW1 further denied the suggestion that all the proceedings initiated by him or IO in the police station or that both the accused persons were lifted from their respective houses.
7. PW2 HC Mehak Singh, in his chief examination deposed on the same line as deposed by the PW1.
During his examinationinchief PW2, MHC (M) produce the case property in a parcel no. S5 duly sealed with court seal. Seal was broken and a plastic jar was taken out, one desi katta and two fired cartridges were taken out from the jar and the same were shown to the witness and witness has correctly identified the same which were recovered from the possession of the accused krishan and the same was Ex.P2(colly).
PW2 further deposed that the money recovered from the accused persons were transferred to the PS Adarsh Nagar and said two motorcycles were transferred to PS Adarsh Nagar vide Road No.311/21/10 dt.18082010.
PW 2 admitted in his cross that they reached Kalindi Kunj by a private vehicle i.e Qualish but he did not State Vs. Kesar Ali & Anrs., FIR No:93/2010 10 remember the number of the vehicle. He also did not remember as to who was the owner of the vehicle. The said vehicle was being driven by Sh. Rajender Singh. SI Rajender prepared the seizures like search memo and recovery etc. The accused persons were arrested at around 11.45 pm. The said PW2 also mentioned that they left for the house of the accusedpersons form where the money was recovered."
8. PW3 Ct. Devender, in his examinationinchief, also deposed on the same line as deposed by PW1 and PW2. Opportunity was granted to the accused persons to cross examine PW3 but despite opportunity the cross examination of PW3 was nil.
9. PW4: PW4 Sh. R. Suresh, Senior Scientific Officer, Ballistic, FSL Rohini, Delhi, during his chief examination deposed that on 07.07.2010, two sealed parcel sealed with the seal of 'RS' were received in their laboratory in the present case along with forwarding letter and the same were marked to him for examination and opinion. The seal on the parcels were intact and as per the specimen seal. On opening the parcel No. S4, one country made pistol of .315 inch bore and two cartridges of 8 mm/.315 inch were taken out and marked as F1, A1 & A2 respectively by him. On opening the parcel No. S5, one country made pistol of .315 inch bore and two cartridges of 8 mm/.315 inch were taken out and marked as F2, A3 & A4 respectively by State Vs. Kesar Ali & Anrs., FIR No:93/2010 11 him. PW4 further deposed that on examination, he gave his report which is EX.PW4/A bears his signature at point A. The country made pistols Marked F1 & F2 were in working order and test fire conducted successfully. The cartridges Marked A1 to A4 were live and two cartridges Mark A1 and A2 were test fired through the country made pistol Marked F1 and two cartridges Marked A3 and A4 were test fired through the country made pistol Marked F2. The country made pistols Marked F1 and F2 were fire arms and the cartridges Marked A1 to A4 were ammunition as defined in Arms Act. The exhibits were sent back with the seal of 'FSL RS DELHI' after examination.
Opportunity was granted to the accused persons to cross examine PW4 but despite opportunity the cross examination of PW4 was also nil.
10. PW5 :Statement of HC Jagnarain, No. 15/Crime, PS Crime Branch, New Delhi. He testified that on 24.06.2010 he was posted at PS Crime Branch as Duty Officer from 8 pm to 8 am and at about 10 pm I received a Rukka sent by SI Rajender through Ct. Devender Singh and on the basis of which the above mentioned FIR was registered by him. Copy of FIR is EX. PW 5/A bearing his signature at point A and he also made endorsement on Rukka EX. PW 5/B bearing his signature at State Vs. Kesar Ali & Anrs., FIR No:93/2010 12 point A. The original FIR was seen and returned. The said PW5 was not crossexamined by the defence.
11. PW6: ASI Kuldeep Singh, No.1050 Crime, Special Unit, Sunlight Colony, Crime Branch, New Delhi. He has testified that on 24.06.2010, he was posted as HC at SOS Crime Branch, Sunlight Colony. He was present at Millenium Park along with IO of case FIR NO.91/10, PS Crime Branch. He conducted the investigations on the directions of Inspector K.P. Singh. He went to the Kalindi Kunj, where SI Rajender, SI Sukhbir Malik, HC Ravinder, Ct. Devender, HC Nayak Singh & two persons whose names were disclosed as Kesar Ali & Krishan @ Lalwa. SI Rajender Singh handed over to him, the accused persons along with seal pulandas of recovered Arms & Ammunition from the possession of the accused persons & one Motorcycle bearing no. DL 13 SC 1987 CBZ. He prepared the site plan at the instance of SI Rajender which is exhibited as Ex.PW6/A, bearing his signature at point A. Ct. Devender reached the spot with copy of the FIR & original Rukka. Both the accused persons were arrested and their personal search was conducted vide memo exhibited as Ex.PW2/A, Ex.PW3/A, Ex.PW3/B & Ex.PW1/B, all bearing his signature at point B. He also recorded the disclosure statement of the accused persons already exhibited as Ex.PW1/C, bearing his signature at point B and State Vs. Kesar Ali & Anrs., FIR No:93/2010 13 exhibited as Ex.PW6/B bearing my signature at point B. Both the accused persons were identified by PW6 in the court.
PW6 has further testified that thereafter, the police team and accused went to the house of accused Krishan at his instance at Usmanpur, Delhi, where one motorcycle bearing no. DL 13 SA 1185 was recovered at instance of the accused Krishan which was used in commission of offence. The motorcycle was seized vide memo Ex.PW2/D bearing his signature (PW6) at point C. On the first floor of the house of the accused, he got recovered Rs.70,000/ being the looted amount. The amount was seized vide memo exhibited as Ex.PW2/E bearing PW6 signature at point B. From there they went to Brahmpuri, at the instance of the accused Kesar Ali at his house. At his house, accused Kesar Ali got recovered Rs.80,000/ from his Almirah being looted amount and the same were seized vide Ex.PW2/F, bearing signature of PW6 at point C. Both the recovered amount was sealed in the Pulandas separately with the seal of S.M. They all came back at PS - Crime Branch. The case property were deposited in the Malkhana and the accused persons were brought to the office of the Crime Branch. The accused persons were interrogated. The sanction for prosecution of accused persons was obtained from the competent authority State Vs. Kesar Ali & Anrs., FIR No:93/2010 14 under Arms Act. PW6 prepared the challan against the accused persons and filed it in the court through Incharge Crime Branch.
During the crossexamination PW6 admitted that he was verbally ordered to conduct the investigation in the present case. PW6 further admitted that he alongwith the team had gone to the house of the accused Krishan in the Private Qualis vehicle. However, he did not know as to who was the owner of the said vehicle. The Qualis was already present at Kalindi Kunj. PW6 also did not know who had arranged the said vehicle and who was driving the said vehicle. No notice was given to the public person in regard of joining the investigation. However, the suggestions of the defense counsels were denied which pertained to the factum of the recovery of arms from the accused persons. It was denied by PW6 that no incriminating Arms & Ammunition were recovered from the possession of the accused persons. It was also denied by PW6 that recovered Arms & ammunition had been planted upon the accused persons. It was also denied that accused Kesar Ali had been lifted from his house on 22.06.2010.
PW6 recorded the disclosure statement of the accused in his own hand writing. First, the disclosure State Vs. Kesar Ali & Anrs., FIR No:93/2010 15 statement of the accused Krishan was written. It took 1520 min. to write the disclosure statement of accused Krishan. The recovery of money which related to a different case FIR was informed to the concerned P.S. the next day, however, no site plan was prepared in that regard.
It has been admitted by PW6 that they reached the house of the accused Kesar at about 02:00 AM in the night, however, the local police was not informed before effecting the recovery from the house of the accused Kesar. The Chowkidar was requested to join the investigation with respect of the recovery of the amount from the houses of both the accused persons but no one joined the investigation being late in night. The case property was deposited at about 03:00 AM. The copy of entry of register no.19, vide which the case property was deposited in the Malkhana was not placed on record. A few suggestions were denied by PW6. /it was denied that PW6 had obtained the signatures of accused persons on blank papers. It was further denied that a false case had been prepared against the accused persons inconnivance with the police of PSAdarsh Nagar.
12. PW 7: Sh. Sanjay Tyagi, Additional DCPI, New Delhi District testified that on 18.08.2010 he was working and posted as Additional DCP Crime. He was also empowered as the State Vs. Kesar Ali & Anrs., FIR No:93/2010 16 competent authority to grant the sanction for the prosecution under Arms Act. The case file alongwith FSL report, seizure memo and statement of witnesses besides case diaries were produced before him. After going through them carefully and perusal of the records, PW7 granted the sanction for the prosecution of the accused Kesar Ali and Krishan @ Lalwa under section 39 Arms Act. The said sanction is now Ex. PW 7/A bearing his signature at point A. However, it has been admitted by PW7 that the Case property was not produced before him at the time of granting of sanction.
13. PW 8: HC Jag Narain No. 15 Crime, Posted at PS Crime Branch. PW8 has stated that on 24.06.2010 he was working and posted as MHC(M) at PS Crime Branch and HC Kuldeep Singh had deposited the case property i.e two sealed pullindas of arms and ammunition alongwith two other sealed pullindas containing currency notes of Rs. 70,000/ and 80,000/ besides two motorcycles bearing no. DL 13SA 1185 and DL 13SL1987. The same was deposited and the entry was made in the Register No. 19 vide serial no. 203/10. Copy of which is Ex. PW 8/A. The original was seen and returned. The motorcycle and the sealed pullindas of the currency notes were sent to PS Adarsh Nagar vide RC No. 311/21/10 on 18.08.2010 through SI /IO Krishan Lal. RC is now Ex. PW 1/A1 (OSR). The sealed State Vs. Kesar Ali & Anrs., FIR No:93/2010 17 pullindas of arms and ammunitions were sent to FSL Rohini through HC Kuldeep vide RC No. 245/21/10 on 07.07.2010 copy of which is now Ex. PW 8/B (OSR). HC Kuldeep handed over me the receipt after depositing the same in FSL Rohini which is now Mark Z1. Original Register No. 19 seen and returned. PW8 has admitted during his crossexamination that the case property was deposited at the night time but he did not remember the exact time. Only HC Kuldeep came to him to deposit the case property and he cannot say if he was accompanied by any other person or official. He remained there for about half an hour. The entries were made in the register no. 19 but the signatures of HH Kuldeep were not obtained in register no. 19.
14. PW2(A): HC Vinod Kumar, No. 403/NE, Complaint Branch, DCP Officer, Silampur, brought the original record pertaining to the facts dated 22.06.2010 received by his office at 9.53 pm. Photocopy of the same is Ex. DW2/A (original was seen and returned). He however, admitted in his cross that he had no personal knowledge about the facts of this case.
15. The Statement of accused Kesar Ali and statement of accused Krishan @ Lalwa were recorded on 2132013. They wanted to lead evidence in their defence.
State Vs. Kesar Ali & Anrs., FIR No:93/2010 18
16. The defense DW 1 Sh. Moazzam s/o Sh. Gulam Qamar Ali r/o Q29/2, Baram Puri Delhi 53. Has stated that on 22.06.2010 some police officials visited our house and lifted my younger brother Kesar Ali. He asked them why they were taking his brother but police officials had not given any explanation in this regard. He sent a fax to the Commissioner of Police which is Ex. DW 1/A bears his signature at point A. The receipts of the fax of is mark A. The witness DW1 has affirmed during his cross that it was around 08 or 09 PM when my brother Kesar Ali was lifted from my house by the 56 police officials who were in uniform he did not remember their names. Police officials lifted his brother for the purpose some inquiry. At around 099.30 he sent a fax message to the Commissioner of Police of Delhi. I DW1 also visited a near by PS i.e New Usman Pur but the police officials did not listen to him.
17. DW 2 Sh. Sanjay s/o Sh. Jai Prakash r/o F41, Naya Gaon , New Usaman Pur , Second Pusta, Delhi53 has stated that on 21.06.2010 some police officials visited the house of accused Krishan @ lalwa who is was his neighbour and lifted him . DW2 asked them why they were taking him but police officials had not given any explanation in this regard. The said witness DW2 has also mentioned in his crossexamination that it was State Vs. Kesar Ali & Anrs., FIR No:93/2010 19 around 04 or 05 PM when Krishan was lifted from his house by the 56 police officials who were not in uniform . Police officials had refused to disclose the reason for taking away Krishan from his house.
18. The DE was closed on the Joint Statement of accused Kesar Ali S/o Sh. Gulam Kamar Ali and Krishan S/o Sh. Hira Lal on 11.09.2013.
19. I have heard ld. Counsel for the accused persons and Ld. APP for the state.
20. The present case emanated from another FIR No. 91 of 2010 where Qamar Abbas @ Suhial was arrested on 24.06.2010. It was on his disclosure that the information of the present accusedpersons were obtianed. The PW1 & PW2 have testified that S.I. Rajinder Singh prepared the tehrir (Ex. PW1/F) which was handed over to Ct. Devender for the registrstion of FIR who went to the police station and got the FIR registered. Thereafter Ct. Devendar returned to the spot with original tehrir and copy of the FIR.There are certain procedural aspects which create doubt over the prosecution theory.
21. No independent public witnesses have beenjoined at the time of State Vs. Kesar Ali & Anrs., FIR No:93/2010 20 recoveryor during investigation despite their easy availability as the place where the alleged recovery had been affected was a publicplace. It is argued that merely a general allegation /averment that IO had asked few public persons to join the investigation but they had refused to participate and left the place was not sufficient to evade the mandatory requirement of law of joining public witnesses.It is submitted that no written notice was given to those persons who had refused to join the investigation nor their particulars were recorded and the bald allegations of witnesses and IO in this regard were of no legal consequence.
(a) The mentioning of FIR Number on sketch memos and seizure memos clearly shows that these memos were prepared after registration of FIR and not prior to registration of FIR as alleged in the prosecution story. This fact clearly shows that all the proceeding have been done at the police station and not at the spot as alleged by PWs.
(b) All the points raised by the defence are material points which can not be
over looked just on the ground that testimonies of all the witnessesare almost identical and on the lines of prosecution case. In the present case, only general allegations were being made that IO had made efforts to join public State Vs. Kesar Ali & Anrs., FIR No:93/2010 21 witnesses but nothing materialhad come on record to show the same such as the names of the persons who were asked to join the proceeding etc. Though, it is not the case that police witnesses were not material witnesses or on their sole testimonies accused could not have been convicted but it is well settled that in the absence of any independent witness,the contradictions in the testimonies though minor in nature should also be viewed seriously as decided in Kuldeep Singh Vs State of Haryana, 2004(4) R CR 103 wherein it was held that: Recovery effected at a place where independent witness were available but not joined Discrepanciesin statement of official witnesses Discrepancies assume importance when no independent witness was joined.
In Passi @ Parkash V State of Haryana, 2001(1) RC R 435 wherein it was held that:
Discrepancies in statement of witnesses assumed importance due to non joining with independent witness. Had an independent witness been joined these discrepancies would not have affected the State Vs. Kesar Ali & Anrs., FIR No:93/2010 22 prosecution.
In Pawan Kumar Vs Delhi Admn. 1987 CC. Cases 585(HC) wherein it has been held that:
In the normal circumstances, the FIR number should not find mention on the recovery memo or the sketch plan which had come into existence before the registration of the case.
However, from the perusal of therecovery memo, I find that the FIR is mentioned whereas the sketch plan does not show the number of FIR.
It is not explained as to how and under what circumstances, the recovery memo came to bear the FIR number which had already come into existence before the registration of the case.
These are few of the circumstances which created a doubt about the genuineness of the weapon of offence alleged to have been recovered from the accused. If in the recovery memo description of the weapon shows defers or did not find mentioned in the sketch plan, it creates a doubt about the identify of the weapon State Vs. Kesar Ali & Anrs., FIR No:93/2010 23 from the accused. It was also held that where the IO does not make any attempt to make any public witness despite the presence of large number of persons on the spot and no plausible explanation comes from the side of prosecution in forth coming for non joining of independent witnesses in a case of serious nature like 25 Arms Act, it creates a doubt on the arrest and the recovery of the weapon from the person of the accused.
Furthermore Chapter 22 rule 49 of Punjab Police Rules, 1934 provides that : 22.49-matters to be entered in register no. II. 'the following Matters shall amongst others be entered, 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 police station or elsewhere with a statement of the nature of their duty. This entry shall be made immediately on arrival or prior to departure of officerconcerned and shall be attested by latter personally by signature or seal'.
22. In the present case the above said provision appears to have not been complied with.
In my opinion prosecution was under an State Vs. Kesar Ali & Anrs., FIR No:93/2010 24 obligation to prove on record the abovesaid DD entries, so as to prove the possibility of availability of PWS at the place of apprehension of accused.
The Issue of the grant of sanction also deserves a serious consideration. According to S.39 of the Arms Act:
23. Previous sanction of the district magistrate necessary in certain cases - No prosecution shall be instituted against any person in respect of any offence under section 3 without the previous sanction of the district magistrate."
As is apparent from the aforesaid provision, there can be no institution of prosecution without a valid sanction. It has been held in the decisions by the Supreme Court as also by the High Court that obtaining of sanction is not a mere formality and it has to be proved that it was granted by the competent authority after applying his mind. It should be demonstrated that the fire arms or the weapon pertaining to which sanction was prayed for, was actually taken to the concerned authority and that the said authority after looking at all the relevant papers and applying his mind, granted the necessary sanction. It has been held in the decisions by the Supreme Court as also by the High Court that obtaining of sanction is not a mere formality and it has to be proved that it was granted by the competent authority State Vs. Kesar Ali & Anrs., FIR No:93/2010 25 after applying his mind. It should be demonstrated that the fire arms or the weapon pertaining to which sanction was prayed for, was actually taken to the concerned authority and that the said authority after looking at all the relevant papers and applying his mind, granted the necessary sanction.
From the testimony of PW7 it has become manifestly clear that DCP while according the sanction under section 39 of Arms Act for prosecution of the accused, he himself had not seen the weapon in question, which fact itself goes against the very spirit of the said Section which provides that from the material produced before him (which must essentially include the recovered weapon as well) the DCP concerned should accord his sanction after duly applying his mind to the facts of that particular case. The plea of breaking of seal of IO in such a situation has no value in it because it can be re sealed again with the seal of DCP himself and then it would attain and acquire greater credibility.
In the case of Nanhey (supra), relied upon by the counsel for the respondent, it was observed that sanction was not intended to be an automatic formality and the object of the provision of sanction was that the authority giving the sanction, should be able to consider for itself the State Vs. Kesar Ali & Anrs., FIR No:93/2010 26 evidence, before it comes to a conclusion that the prosecution in the circumstances be sanctioned or forbidden.
Not only this, but also, even no compliance of Section 37 of Arms Act as well as Section 100 of Cr.P.C. was made in the present case as the seized weapon alongwith its seizure memo was never so produced before the learned Metropolitan Magistrate concerned for his inspection. Even the notification, the violation of which had been alleged in the present case was also never placed on judicial record.
Hence, all these short falls appearing in the story of prosecution are sufficient enough to cast a dent in the story of prosecution and its authenticity and genuineness and casts a serious shadow of doubt and suspicion over the same.
Reliance has also been placed by the learned Defence Counsel on the ratio of the case titled as "Abdul Sattar & Anr. Vs. State", reported in 2009 (4) JCC 3179 (Del.) wherein it has been held by our own Hon'ble High Court of Delhi that in the absence of a notification being placed or proved on record by the prosecution, it would be difficult to conclude that the State Vs. Kesar Ali & Anrs., FIR No:93/2010 27 possession of the recovered weapon from an accused was actuallyin contravention of Section 5 of the Arms Act, which is one of the main ingredients for offence punishable under Section 25 of the Arms Act.
The prosecution however, has neither placed nor proved any such Notification. Thus, in the absence of any evidence to that effect, it is difficult to conclude that the possession of above recovered knife and dagger by the respective appellants was in contravention of Section 5 of the Arms Act, which is one of the main ingredients for offence punishable under Section 25 of Arms Act.
24. As per Judgment of Manpreet Singh vs. State 2004 (1) JCC 1 it was held that:
"seal after sealing not handed over to the independent witness creates doubts and also not joining the independent witness creates doubt and violation of Section 100 (4) Cr.P.C."
25. In case titled as State of Haryana Vs. Ram Singh 2002 SCC (CRL) 351 Hon'ble Apex court had observed that when disclosure, discoveries and arrest are made in the absence of State Vs. Kesar Ali & Anrs., FIR No:93/2010 28 independent witness it creates a doubt or suspicion which must go to thebenefit to the accused.
That if there are material contradictions in the statements of witnesses and no documentary proof of DD entry, then the prose cution case is not free from shadow of the doubts and failed to prove its case beyond any reasonable doubts then prosecution had failed as held in Satish Kumar vs. State 2013 (JCC) 441.
26. In case titled as Prithivi Pal Singh @ Munna Vs. State of Delhi 2000 Law Suit (Delhi) 197 it was held in Para 6 that:
"that the provision of the Code of Criminal Procedure relating to search, seizure or arrest apply to search, seizure and arrest under the act also to the extent they are not inconsistent with the provisions of the act.
Thus while conducting search and
seizure, in addition to the safeguard provided under
Cr.P.C., the safe guard provided under the act are also required to be followed. It is well settled that failure to comply with the provisions of the Code of Criminal Procedure in respect of search and seizure and particularly those of sections 100, 102, 103, 164 per se does not vitiate the trial under the Act. But it has to be borne in State Vs. Kesar Ali & Anrs., FIR No:93/2010 29 mind that conducting a search and seizure in violation of statutory safeguardwould be violative of the reasonable fair and just procedure...................."
27. In Menka Gandhi Vs. Union of India it was held that when the statue itself provides for a reasonable, fair and just procedure, it must be honoured. Thus an accused has right to reasonable fair and just procedure. The statutory provisions embodied in section 41 to 55 and\ section 57 of the Act and Sections 100, 102, 103 and 165 of the Cr.P.C. Fair and reasonable, fair and just proper.
28. Section 43 of the act read alongwith sub section 4 of the Section 100 Cr.P.C. contemplates that search should as far as practicable be made in presence of two independent and respectable witnesses of the locality and if the designated officers fail to do so, the onus would be on the prosecution to establish that the association of such witnesses was not possible on the facts and circumstances of a particular case." "............. thus, the statutory desirability in the matter of search and seizure is that there should be two or more independet and respectable witnesses.
29. In view of above mentioned judgments, I am of the opinion State Vs. Kesar Ali & Anrs., FIR No:93/2010 30 that merely on the basis of routine identical statements of police witnesses, it would not be safe to hold accused guilty as there are above mentioned shortcomings in the case of prosecution which cast a doubt and makes the accused entitled for every benefit of doubt, hence I am of the opinion that prosecution has failed to prove its case beyond reasonable doubt against the accused persons and accused persons namely Kesar Ali & Kishan @ Lalua are stands acquitted for the offence U/s 25/54/59 Arms Act. Their bail bonds and surety bonds stand cancelled and discharged. Original Documents of surety, if any, be returned to its rightful claimant(s) after cancellation of endorsement on the same. File be consigned to record room after completion of other necessary formalities in this regard.
Announced in the open court on this 31st day of January, 2014.
(VEENA RANI) Chief Metropolitan Magistrate:
SouthEast, Saket Courts, ND State Vs. Kesar Ali & Anrs., FIR No:93/2010