Delhi District Court
Fir No. 405/2019, Ps : Amar Colony State vs . Danish on 6 May, 2023
FIR No. 405/2019, PS : Amar Colony State Vs. Danish
IN THE COURT OF MS. SHIVANI CHAUHAN
CHIEF METROPOLITAN MAGISTRATE,
SOUTH-EAST DISTRICT, SAKET COURTS,
NEW DELHI.
IN THE MATTER OF :
CNR number. DLSE02-005039-2020
Cr. Cases Registration number. 1115/2020
FIR No. 405/2019
Police Station : Amar Colony, AATS
State Vs. Danish
U/s: 25/27 Arms Act.
Date of Institution : 25.02.2020
Date of reserving the judgment : Not reserved
Date of pronouncement of judgment : 06.05.2023
JUDGMENT
1. Serial No. of the case : 1115/2020
2. Name of the Complainant : Head Constable
Vinod.
3. Date of commission of offence : 30.12.2019.
4. Name of accused person :
Danish S/o Jamaluddin, R/o House
No. C-127, Gali No. 11, J. J. Colony,
Madanpur Khadar, New Delhi. Aged
about 24 years.
5. Offences charged : S. 25 / 27 Arms
Act.
6. Plea of accused : Not guilty
7. Final Order : Acquitted.
Page No. 1 of 22
FIR No. 405/2019, PS : Amar Colony State Vs. Danish
JUDGMENT
1. In the present case, the accused has been facing the trial for the offence punishable under Section 25 / 27, The Arms Act.
2. Brief facts of the case are that on 30.12.2019, Constable Vinod and Constable Arvind were on patrolling duty and at about 11:00 pm, they reached Captain Gaur Marg, Okhla Mandi Red Light when they saw one person in suspicious condition. Constable Vinod along with the help of Constable Arvind apprehended the said person and conducted his cursory search. Upon conducting the search, one country made pistol was recovered from the left side dubb of his wearing trousers. Upon checking the pistol, one live cartridge was recovered from it. Accused was then inquired and he disclosed his name as Danish S/o Jamaluddin R/o House No. C-127, Gali NO. 11, J. J. Colony, Madanpur Khadar, New Delhi, aged about 22 years. Constable Vinod then shared the information with AATS / South East District. Thereafter, Head Constable Desh Raj reached at the spot upon the direction of senior officers and Page No. 2 of 22 FIR No. 405/2019, PS : Amar Colony State Vs. Danish met Constable Vinod and Constable Arvind alongwith accused Danish. Thereafter, Head Constable Desh Raj recorded the disclosure statement of the accused at the spot. Constable Vinod handed over the custody of the accused and the case property recovered from him.
3. The pistol which was recovered from the accused was checked and one live cartridge was found in its barrel. Both the pistol along with cartridge were put in a transparent plastic box and it was sealed with doctor's tape. The box was sealed with the seal of VK. Seal was handed over to Constable after its use. Subsequently, investigation of the case was marked to Head Constable Desh Raj. The accused was arrested. The case property was sent to FSL for ballistic examination. After completion of investigation the charge-sheet was filed in the Court.
4. Cognizance was taken by the Ld Predecessor Court. After compliance of the provisions of Section 207 Cr.P.C, charge for the offence punishable under Section 25/27 Arms Act was framed. The accused pleaded not guilty and claimed Page No. 3 of 22 FIR No. 405/2019, PS : Amar Colony State Vs. Danish trial. Matter was then listed for Prosecution Evidence.
5. Vide his statement U/s 294 Cr.P.C, accused admitted Copy of FIR, Endorsement on rukka, certificate u/s 65B of Indian Evidence Act, DD No. 10,11,12 and GD No. 4A all dated 30.12.2019, FSL report dated 15.03.2021 and Sanction u/s 39 Arms Act vide Ex.A-1, Ex.A-2, Ex.A-3, Ex.A-4 (colly), Ex.A-5 and Ex.A-6 respectively. Consequently witnesses at Serial Numbers 5 from the main charge-sheet and 1 and 2 from supplementary charge-sheet were dropped from list of prosecution witnesses. In addition thereto, the prosecution examined five witnesses in support of its case.
6. Head Constable Vinod Kumar was examined as PW1. He is the complainant in the present case. He deposed that on 30.12.2019, he was posted as Constable at AATS / SED and on that day, he alongwith Constable Arvind were on patrolling duty in the area of Police Station Amar Colony. When they reached near Okhla Mandi Red Light, Captain Gaur Marg, they noticed one person sitting on the footpath on the road going towards Okhla Metro NSI from Lajpat Nagar and he seemed in Page No. 4 of 22 FIR No. 405/2019, PS : Amar Colony State Vs. Danish suspicious condition. Thereafter, he inquired him and he was apprehended. Upon conducting cursory search of the said person, one country made pistol was recovered from the left side dubb of his wearing trousers and upon checking the said pistol, one live cartridge was recovered from it. He revealed his name as Danish S/o Jamaluddin. Thereafter, he informed at office of AATS / SED telephonically. Subsequently, Head Constable Desh Raj reached at the spot and he narrated the whole incident to him. He also handed over the custody of the accused and the case property to Head Constable Desh Raj. Head Constable Desh Raj then prepared rough sketch of the country made pistol and live cartridge in his presence vide sketch memo Ex.PW1/A. Head Constable Desh Raj then put the case property in a plastic box and sealed it with the seal of 'VK'. Thereafter, the case property was taken into police possession vide seizure memo Ex.PW1/B. After the use of seal, it was handed over to Constable Arvind. Head Constable Desh Raj then recorded his statement in this regard for registration of FIR. His statement is Ex.PW1/C and he prepared rukka to Page No. 5 of 22 FIR No. 405/2019, PS : Amar Colony State Vs. Danish get the FIR registered through Constable Arvind. Constable Arvind went to Police Station and got the FIR registered. After registration of the FIR, Constable Arvind returned to the spot and handed over the copy of FIR and original rukka to Head Constable Desh Raj as the investigation of the case was marked to him. Thereafter, IO / Head Constable Desh Raj prepared site plan at the spot at his instance, same is Ex.PW1/D. After interrogation, accused was arrested and his personal search was conducted vide memos Ex.PW1/E and Ex.PW1/F respectively. IO also recorded the disclosure statement of accused in his presence, same is Ex.PW1/G. He identified the accused and the case property before the Court. Case property is now Ex.P-1 (colly).
7. Head Constable Arvind was examined by the prosecution as PW2. He deposed that 30.12.2019, he was posted as Constable at AATS / SED and on that day, he alongwith Constable Vinod were on patrolling duty in the area of Police Station Amar Colony. When they reached near Okhla Mandi Red Light, Captain Gaur Marg, they noticed one person Page No. 6 of 22 FIR No. 405/2019, PS : Amar Colony State Vs. Danish sitting on the footpath on the road going towards Okhla Metro NSI from Lajpat Nagar, who seemed suspicious. Thereafter, Constable Vinod inquired from him and he was apprehended. Constable Vinod conducted cursory search of the said person, and upon checking, one country made pistol was recovered from the left side dubb of his wearing trousers. Constable Vinod checked the said pistol and one live cartridge was recovered from it. The said person revealed his name as Danish S/o Jamaluddin. Constable Vinod then telephonically informed at the office of AATS / SED. Thereafter, IO / Head Constable Desh Raj reached at the spot where Constable Vinod narrated the whole incident to him and handed over the custody of the accused and the case property to IO / Head Constable Desh Raj. IO then prepared rough sketch of the country made pistol and live cartridge in his presence vide sketch memo Ex.PW1/A. Thereafter, IO put the case property in a plastic box and sealed it with the seal of VK. Thereafter, the case property was taken into police possession vide seizure memo Ex.PW1/B. The seal was handed over to him after its use. IO then recorded Page No. 7 of 22 FIR No. 405/2019, PS : Amar Colony State Vs. Danish statement of Constable Vinod and prepared rukka on the same and got the FIR registered through him. After registration of the FIR, he went back to the spot and handed over the copy of FIR and original rukka to the IO / Head Constable Desh Raj. Thereafter, IO prepared the site plan at the spot at the instance of Constable Arvind, same is Ex.PW1/D. After interrogation, accused was arrested and his personal search was conducted in his presence vide memos Ex.PW1/E and Ex.PW1/F respectively. IO also recorded disclosure statement of accused in his presence, same is Ex.PW1/G. He identified the accused and the case property before the Court. Case property is Ex.P-1 (colly).
8. Head Constable Santosh was examined by the prosecution as PW3. He deposed that on 04.01.2020, he was posted as Constable at Police Station Amar Colony and on that day, he received one exhibit in transparent plastic box containing one country made pistol and one live cartridge sealed with the seal of "VK" from the MHC(M) of Police Station Amar Colony to deposit the same before the FSL, Page No. 8 of 22 FIR No. 405/2019, PS : Amar Colony State Vs. Danish Rohini vide RC No. 1536 dated 04.01.2020, same is Mark A. He deposited the exhibits in the FSL, Rohini and collected the acknowledgment of the case acceptance from FSL Rohini, same is Mark B. He then returned to Police Station Amar Colony and handed over the copy of the case acceptance to the MHC(M) of Police Station Amar Colony.
9. Assistant Sub-Inspector Yashpal was examined by the prosecution as PW4. He deposed that on 31.12.2019, he was posted as MHC(M) at Police Station Amar Colony and on that day, case property in the present case was brought to him by Head Constable Deshraj in a sealed plastic box. The same was deposited in the Malkhana of Police Station Amar Colony and relevant entries were made by him. Thereafter, he handed over the said case property to Constable Santosh to take the same to FSL, Rohini vide RC No. 04/21/20 dated 03.01.2020. After depositing the same in the FSL, Rohini, Constable Santosh returned to the Police Station Amar Colony and handed over the receipt of the deposit of case property at FSL Rohini to him. On 15.03.2021, Constable Vinod brought the case property in the Page No. 9 of 22 FIR No. 405/2019, PS : Amar Colony State Vs. Danish present case from the FSL, Rohini alongwith FSL report and deposited the same in the Malkhana and he handed over the FSL report to Constable Vinod to handover the same to the Investigating Officer. He also brought the Register No. 19 and 21 before the Court and also submitted the copy of the aforesaid entries before the Court, same were compared with the original entries made in the register. Said entries are Ex.PW4/A(colly)(OSR) and the said entries are in his handwriting.
10. Assistant Sub-Inspector Desh Raj was examined by the prosecution as PW5. He is the Investigating Officer in the present case. He deposed that on 30.12.2019, he was posted as Head Constable at AATS / SED and on that day, he received an information that Constable Vinod and Constable Arvind apprehended one person namely Danish at Captain Gaur Marg, Okhla Mandi Red Light and they had recovered one country made pistol from him. Subsequently, he reached the spot and met the above said police officials along with accused. Constable Vinod then handed over one country made pistol, one Page No. 10 of 22 FIR No. 405/2019, PS : Amar Colony State Vs. Danish live cartridge and the custody of the accused to him. He then inquired Constable Vinod and recorded his statement. He requested some public persons to join the proceedings at the spot. However, none agreed to join the proceedings and left the place without disclosing their personal details. He then prepared the sketch memo of the country made pistol and live cartridge at the spot, same is Ex.PW1/A. He prepared the pullanda of the said case property and sealed the said pullanda with the seal of "VK". He then seized the pullanda of the case property vide seizure memo Ex.PW1/B. He prepared the rukka Ex.PW5/A and handed over the same to Constable Arvind to get the FIR registered at the Police Station. After the registration of the FIR, Constable Arvind returned to the spot and handed over the copy of FIR and original rukka to him as the investigation of the case was marked to him. He then arrested the accused and conducted his personal search vide memos Ex.PW1/E and Ex.PW1/F respectively. He also recorded the disclosure statement of the accused, same is Ex.PW1/G. He also prepared the site plan at the spot Page No. 11 of 22 FIR No. 405/2019, PS : Amar Colony State Vs. Danish Ex.PW1/D and also prepared the FSL form at the spot. They then returned to Police Station Amar Colony and he deposited the case property in the Malkhana of Police Station Amar Colony where he recorded the statement of the witnesses in the present case. During the course of investigation, he got the case property deposited in FSL, Rohini through Constable Satender. After depositing the case property, Constable Satender returned to the Police Station and handed over the copy of case acceptance of the property to him and deposited the original copy of the acknowledgement of the case acceptance in the Police Station Amar Colony. Thereafter, he prepared the charge- sheet and submitted the same before the Court for judicial verdict. During further course of investigation, he obtained the FSL result from FSL, Rohini, already admitted by the accused in his statement u/s 294 Cr.P.C. as Ex.A-5. He then obtained the sanction from the DCP, South-East District u/s 39 Arms Act to prosecute accused Danish for offence punishable u/s 25 Arms Act, same is also admitted by the accused in his statement u/s 294 Cr.P.C. as Ex.A-6. He then prepared supplementary Page No. 12 of 22 FIR No. 405/2019, PS : Amar Colony State Vs. Danish charge-sheet and submitted the same before the Court. He identified the accused before the Court.
11. PE was closed. The statement of the accused under Section 313 Cr.P.C. r/w Section 281 Cr.P.C. The accused denied commission of the offence and stated that he had been falsely implicated in the present case. Accused did not lead any independent evidence in his defence. Hence, the matter was listed for final arguments.
12. Ld. Additional PP for State Sh. Sanjay Kumar Mishra has argued that the prosecution has proved its case beyond reasonable doubts and, therefore, the accused may be convicted. Whereas Ld. Counsel for the accused, on the other hand, has argued that nothing was recovered from the possession of the accused at the time of his arrest and the weapon alongwith live cartridge had been planted upon the accused with intention to send him behind bars and to settle some personal score. He further argued that all prosecution witnesses were fellow police officials and they all are interested witnesses. No independent public person has been made Page No. 13 of 22 FIR No. 405/2019, PS : Amar Colony State Vs. Danish witness for proving the factum of recovery of alleged firearm. Hence, reasonable doubts have been raised on the case of the prosecution. It is prayed that the accused may be given benefit of reasonable doubts and he may be acquitted.
13. I have heard the submissions from both sides and carfully perused the material available on record.
14. It is trite that in criminal jurisprudence, the prosecution is under an obligation to prove its case against the accused beyond reasonable doubt. The standard of proof to be adopted in criminal cases is not merely of preponderance of probabilities but proof beyond reasonable doubts on the basis of cogent, convincing and reliable evidence. It is also well settled that in case of doubt, the benefit must necessarily be given to the accused. It is also settled position of law that whenever there are two views possible, the view which favours the innocence of the accused is to be accepted by the Court.
15. In the present case, the allegations against the accused are that he was found in possession of a illegal weapon without Page No. 14 of 22 FIR No. 405/2019, PS : Amar Colony State Vs. Danish having any valid license which is an offence under Section 25 Arms Act, 1959. It has been alleged that the accused was apprehended at the instance of secret informer and a pistol with four live cartridges were recovered from his possession. In the present case, as the record would reveal, all the prosecution witnesses are police officials. No independent public witness had joined the investigation at any point of time. The witnesses have stated in their examination that the information was shared with public persons and they were asked to join the proceedings, however, none agreed. From a perusal of the record, no serious effort for joining public witnesses appears to have been made. No steps are shown to be taken to note down the names and addresses of those persons who had refused to participate in the proceedings. No notice is shown to be given to those persons. It is a well settled proposition that non-joining of public witness shrouds doubt over the fairness of the investigation by police. Section 100 (4) of the Cr.P.C. also casts a statutory duty on an official conducting search to join two respectable persons of the society. Same has not been done in Page No. 15 of 22 FIR No. 405/2019, PS : Amar Colony State Vs. Danish the present case. This casts a doubt on the fairness of the investigation. In the case titled as Nank Chand Vs. State of Delhi, Crl. Revision No. 169/81, decided on 07.11.1990, 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.''
16. In the present case, non-joining of any public person as a witness creates doubt on the case of the prosecution. However, the fact of non-joining public witnesses is not the only ground to disbelieve the case of the prosecution. This Court is conscious that the prosecution case cannot be thrown out or doubted on the sole ground of non-joining of public witnesses as public witnesses keep themselves away from the Court unless it is inevitable. I get strength from the judgment of the Hon'ble supreme Court of India in Appabhai and another Page No. 16 of 22 FIR No. 405/2019, PS : Amar Colony State Vs. Danish v. State of Gujarat, AIR 1988 SC 696. However, in the present case, it is not only the absence of public witnesses which raises a doubt on the prosecution but there are other circumstances too, as discussed hereinafter, which raise suspicion over the prosecution version.
17. The testimonies of the prosecution witnesses would show that IO Head Constable Desh Raj prepared the rough sketches and then sealed the articles in a transparent box with the seal. He also seized the pistol alongwtih one live cartridge. Thereafter, he prepared the rukka and sent the police official for registration of FIR. It is, therefore, clear that the seizure memo of the case property, the pistol and the live cartridge, and the rough sketch were prepared before the rukka was handed over to the police official for registration of the FIR. The FIR was, therefore, admittedly registered after the preparation of the rough sketch. Accordingly, it follows that the number of the FIR would have come to the knowledge of the investigating officer only after a copy of the FIR was brought to the spot. Thus, ordinarily, the FIR number should not find mention in the Page No. 17 of 22 FIR No. 405/2019, PS : Amar Colony State Vs. Danish seizure memo and the rough sketch which came into existence before registration of the FIR. However, interestingly, the FIR numbers are duly mentioned in the seizure memos. The same indicates that FIR number was mentioned on the said documents while preparing the same. The IO has further admitted during his cross-examination that he had arrested the accused prior to registration of the FIR. However, the FIR Number is mentioned on the arrest memo. Hon'ble High Court of Delhi in Pawan Kumar v. The Delhi Administration, 1989 Cri. L.J. 127, has observed in paragraph 5 as under:
"... Learned counsel for the State concedes that immediately after the arrest of the accused, his personal search was effected and the memo Ex. PW11/D was prepared. Thereafter, the sketch plan of the knife was prepared in the presence of the witnesses. After that, the ruqa EX. PW11/F was sent to the Police Station for the registration of the case on the basis of which the FIR, PW11/G was recorded. The F.I.R. is numbered as 36, a copy of which was sent to the I.O. after its registration. It comes to that the number of F.I.R. 36 came to the knowledge of the I.O. after a copy of it was delivered to him at the spot by a constable. In the normal circumstances, the F.I.R. No. should not find mention in the recovery memo or the sketch plan which had come into existence Page No. 18 of 22 FIR No. 405/2019, PS : Amar Colony State Vs. Danish before the registration of the case. However, from the perusal of the recovery memo, I find that the FIR is mentioned whereas the sketch plan does not show the number of the FIR. It is not explained as to how and under what circumstances the recovery memo came to bear the F.I.R. No. which had already come into existence before the registration of the case. These are few of the circumstances which create a doubt, in my mind, about the genuineness of the weapon of offence alleged to have been recovered from the accused."
18. In Mohd. Hashim v. State, 1999 VI AD (Delhi) 569, the Hon'ble High Court of Delhi has observed:
"... Surprisingly, the secret information (Ex. PW7/A) received by the Sub-Inspector Narender Kumar Tyagi (PW-7), the notice under Section 50 of the Act (Ex. PW5/A) alleged to have been served on the appellant, the seizure memo (Ex. PW1/A) and the report submitted under State v. Om Prakash Section 57 of the Act (Ex. PW7/D) bear the number of the FIR (Ex. PW4/B). The number of the FIR (Ex. PW4/B) given on the top of the aforesaid documents is in the same ink and in the same handwriting, which clearly indicates that these documents were prepared at the same time. The prosecution has not offered any explanation as to under what circumstance number of the FIR (Ex. PW4/B) had appeared on the top of the aforesaid documents, which were allegedly prepared on the spot. This gives rise to two inferences that either the FIR (Ex. PW4/B) was recorded prior to the alleged recovery of the contraband or number of the said FIR was Page No. 19 of 22 FIR No. 405/2019, PS : Amar Colony State Vs. Danish inserted in these documents after its registration. In both the situations, it seriously reflects upon the veracity of the prosecution version and creates a good deal of doubt about recovery of the contraband in the manner alleged by the prosecution."
19. In the present case also, the explanation given by the police officials for the FIR Number and case details on the documents Seizure Memo, Rough Sketch and Arrest memo are not reliable. The same leads to only one conclusion that either the said documents were prepared later on or that the FIR had been registered earlier in point of time. In both the aforesaid cases, a reasonable doubt has been raised on the case of the prosecution.
20. While PW1 and PW2 have deposed that several public persons were available at the spot, PW5 had deposed that no public person was available at the spot. No seal handing over memo was prepared. The seal might have remained with the IO himself and the possibility that the case property was not tampered can not be ruled out. The accused was arrested prior to registration of the FIR as categorically admitted by the IO Page No. 20 of 22 FIR No. 405/2019, PS : Amar Colony State Vs. Danish during his cross-examination. The concerned police officer had seized the weapon from the accused with bare hands. No chance print of accused were taken to match with fingerprints found on the weapon. The Crime team was also not called for taking chanceprint of the accused. The same was a vital piece of evidence which would have connected the accused to the weapon allegedly seized from him. This is another major lacuna in the case of the prosecution which goes to the very root of the case. Thus, the possibility that the case property might have been tampered with cannot be ruled out. Further, the possibility that the case property was planted upon the accused can also not be ruled out. As discussed in preceding paragraphs, there are several other loopholes in the testimony of the prosecution's witnesses which hit the very roots of the prosecution's case. When the main pillars of the case of prosecution have fallen, it would be futile to look to the pillars which stand and try and ascertain whether the structure can be salvaged. In these circumstances, doubt has arisen on the case of the prosecution, benefit of which must necessarily be extended to the accused. Page No. 21 of 22 FIR No. 405/2019, PS : Amar Colony State Vs. Danish In the light of discussion in the preceding paragraphs, it is held that the prosecution has failed to prove its case beyond the pales of reasonable doubt. Accordingly, benefit of doubt is extended to the accused Danish and he is acquitted for commission of offence u/s 25 / 27 Arms Act. Ordered accordingly.
Pronounced in the open Court on 06.05.2023.
(SHIVANI CHAUHAN) CHIEF METROPOLITAN MAGISTRATE SOUTH EAST, SAKET COURTS:
NEW DELHI.Page No. 22 of 22