Delhi District Court
State vs . Manoj 1 Out Of 11 on 9 July, 2009
1
IN THE COURT OF MS. ILLA RAWAT, ASJ
(FTC)-CENTRAL : DELHI.
S. C. No. 36/09
State
Versus
Manoj Kumar
S/o Lekhraj Sharma
R/o Village Lohar li,
P.S. Agola,
Dist. Bulandshahar U.P.
Case arising out of:
FIR No.150/02
P.S. Hauz Qazi
U/s 25/54/59 Arms Act
Date of FIR : 04.07.02
Date of Institution in Sessions Court : 07.03.06
Date on which case received at FTC : 13.03.09
Date of Final Arguments : 09.07.09
Judgment reserved on : 09.07.09
Date of Judgment : 09.07.09
JUDGMENT:
1. Present case has been registered against accused Manoj for possession of fire arm without any licence. Accused Manoj alongwith four other persons was apprehended upon secret information received at Police State Vs. Manoj 1 out of 11 2 Station, Hauz Qazi, that some persons would be collecting near mother dairy booth at Fassil Road, having made preparations to commit dacoity, and planned to commit some dacoity. Upon this information three separate raiding parties of police persons posted at Police Station Hauz Qazi were constituted under Insp. Rakesh Giri and accused Manoj is stated to have been apprehended by police party headed by Ct.Ali Sher and SI Hem Karan. As per case of prosecution one loaded country made pistol and a live cartridge were recovered from the possession of accused Manoj for which present case came to be registered against him besides another case under sections 399/402/34 IPC which has registered against all persons, including accused Manoj, who were apprehended in operations carried out by the police, on that day, pursuant to secret information.
2. After completing investigations charge sheet was filed in the court against the accused before concerned learned Metropolitan Magistrate. Since the alleged recovery of the fire arm, from the accused, in the present case was connected with the other case under sections 399/ 402/ 34 IPC, it appears that after compliance with provisions of State Vs. Manoj 2 out of 11 3 section 207, this case was also committed to sessions court.
3. Primafacie case U/s 25 Arms Act was made out against accused for which charge was framed. The accused did not plead guilty and claim trial.
4. Matter was at the stage of prosecution evidence when it was transferred to Fast Track Court on 13.03.09.
5. In order to prove its case prosecution has examined eight witnesses. Out of these witnesses PW-1, HC Brice Indwar; PW-2, Ct. Uttam Kumar; PW-4, Dr. K. C. Varshney; PW-6, HC Tej Pal and PW-8, Sh. Alok Kumar are formal witnesses.
6. The PW-1, HC Brice Indwar, is the duty officer and he deposed about having registered the case FIR in the present case. The PW-2, Ct. Uttam Kumar, had taken pullanda of the case property to FSL Malviya Nagar and deposed regarding the same. The PW-4 Dr. K.C. Varshney had examined the weapon and cartridge alleged to recovered from possession of accused. He proved his report Ex-PW-4/A and also identified katta as Ex.P-1and the case of fired cartridge Ex.P-2.
7. The PW-6, HC Tejpal, was posted as MHC(M) at Police State Vs. Manoj 3 out of 11 4 Station Hauz Qazi on the relevant time and deposed about having received case property from SI Vijay Pal on 05.07.02 vide entry no. 1484 and about having sent the case property to FSL on 31.07.02 though Ct. Uttam Kamle.
8. The PW-8, Sh. Alok Kumar, had granted sanction u/s 39 Arms Act for prosecution of the accused Manoj and deposed regarding the same.
9. The PW-5, SI Hem Karan had apprehended the accused alongwith Ct. Jai Kumar and PW-3,Ct. Ali Sher while PW-7, SI Vijay Pal had taken over the investigations of the case after registration of the FIR. Thus PW-3, PW-5 and PW-7 are material witnesses in the present case. The PW-5, SI Hem Karan, who was heading the raiding that had apprehended accused Manoj deposed that on that day he was a member of one of the three raiding parties organized by Insp. Rakesh Giri in connection with case FIR no. 147/02 upon receiving information about assembling of five persons for purpose of committing dacoity. 3/4 passersby were asked to join investigations but none agreed. All the accused, including accused Manoj, were found making plans for dacoity and were apprehended by different members of State Vs. Manoj 4 out of 11 5 the raiding party. The PW-5 apprehended accused Manoj with the help of Ct. Jai Kumar and Ct. Ali Sher and recovered one country made pistol loaded with cartridge from front dub of his pant. The PW-5 proved sketch of fire arm and cartridge as Ex-PW-5/A and there seizure memo as Ex- PW-5/B. He also proved rukka as Ex-PW-5/C and stated that after the registration of case further investigations of the case were handed over to SI Vijay Pal. He identified the accused as well as the case property namely fire arm as Ex.P-1 and cartridge as Ex.P-2.
10. During his cross examination PW-5 stated that he was in uniform and that as he had reached the spot after receiving signal he was unable to tell whether all accused were already present near Mother Dairy or had assembled there after arrival of the police. He also stated that Bargad tree where accused had collected had a large canopy and did not have any fencing or light under it. He also stated that he had not heard the conversation between the accused nor did he ask any person to join raiding party before taking search of the accused.
11. The PW-3, Ct. Ali Sher, was also one of the members of State Vs. Manoj 5 out of 11 6 the raiding party which had apprehended accused Manoj. He too deposed about the manner in which the raiding party of SI Hem Karan apprehended accused Manoj. He proved his signatures on memos Ex PW-3/A to PW-3/E on which he had signed as witness. During his cross examination PW-3 admitted that there was no special mark on the fire arm recovered from the accused. He also expressed ignorance about the conversation between the accused and his associates. He also stated that there was insufficient light at the place where accused were present. Though he added that accused were still visible he did not clarify how the same was possible in absence of sufficient light. He also stated that the writing work was done by the all the members of the raiding party.
12. The PW-7, SI Vijay Pal, had taken over the investigations of the case after registration of the FIR. He deposed about the documents drawn up by him after taking over the investigations of the case. He proved the arrest and personal search memo of accused as Ex-PW-7/A & 7/B; site plan as Ex- PW-7/C; memo vide which accused was interrogated as Ex.PW-3/E. He further stated that during State Vs. Manoj 6 out of 11 7 the course of investigations he had sent case property to FSL and upon his transfer he had handed over the file to MHC(R).
13. After statement of prosecution witnesses was recorded, all incriminating evidence was put to the accused who termed the same to be incorrect and stated that he and his co-accused Sunder had come to purchase cloth for their shop and when they were getting down from bus near ISBT one police Constable stopped them and asked them to accompany him as he had some work. Later they were taken to police station and were implicated in a false case. No witness was examined in his defence by the accused despite opportunity.
14. Final Arguments have been heard. Ld. Addl. P.P. has contended that prosecution has succeeded in proving its case against accused beyond any reasonable doubt and he is liable to be convicted for offence he has been charged with. On the other hand, Ld. Counsel for accused has contended that accused is innocent and has been falsely implicated in the case and that no fire arm was recovered from possession of the accused.
State Vs. Manoj 7 out of 11 8
15. I have heard Ld. Addl. P.P. as well as Sh. F. C. Giri, Ld. Counsel for accused, and perused record as well as testimony of witnesses carefully.
16. Though there is no hard and fast rule that testimony of police witnesses cannot be relied upon for the purpose of drawing conclusion of a the guilt of the accused, however, at the same time court has to be cautious in its approach. As a note of caution whenever in a case independent public witnesses are available, then there should be a genuine effort by the police to join said witnesses in investigations of the case.
17. In case of Pawan Kumar Vs State, 1981 Cr.L.J Delhi recovery of knife was stated to have been effected from the accused without any effort by the police to join any independent witness. It was held by the Hon'ble Delhi High Court that at least the investigating officer should have made an earnest effort to join the independent witnesses and that was a circumstance throwing doubt upon the arrest and recovery of knife from the person of the accused.
18. Further in the case of Sans Pal Singh Vs State of State Vs. Manoj 8 out of 11 9 Delhi, AIR 1999 SC 49, conviction of an accused under Section 5 of the Terrorist and Disruptive Activities (Prevention) Act,1987 read with Section 25 of Arms Act was set aside by Hon'ble Supreme Court since public witnesses, though available, were not associated with the recovery by the investigating Officer.
19. In the present case it is apparent from the testimony of the police witnesses that though several public witnesses were available no genuine effort was made by the concerned Investigating Officers, either before the registration of the FIR or thereafter, to join any public person in the investigations of the case. Mere bald statement of the police witnesses that none from the public was willing to join investigations is not by itself sufficient to absolve the investigating officer of the responsibility of joining independent witnesses in recovery unless it is shown what efforts were made to achieve this end. More particularly whether names and addresses of any such person was noted or whether any notice as per law was served upon them for their failure/ refusal to join investigations and what was the reason given for such refusal. Genuine efforts apparently have not been made by State Vs. Manoj 9 out of 11 10 the investigating officer in the present case to fortify the conclusion of genuiness of recovery by associating independent witnesses in the investigations despite their availability.
20. Moreover the arrest of accused Manoj was affected in the present case pursuant to secret information received at Police Station Hauz Qazi that some persons would assemble at a specified place and were preparing to commit dacoity. This case was registered against accused as a consequence of recovery of firearm from his possession upon his apprehension, alongwith four others, in case FIR 147/02. The arrest of accused has been shown at 1.15 pm on 05.07.02 (there is over writing on the numbers of mentioned time '1.15' as well as words 'pm' which can be read as 'am' as well) in case FIR 147/02 whereas in case FIR 150/02 his arrest is shown at 3 pm on 04.07.02. There is a clear discrepancy in the date and time of arrest of the accused which does not stand explained by the prosecution.
21. Moreover, none of the material witnesses namely PW- 3, Ct. Ali Sher or PW-5 SI Hem Karan gave in description of the case property which enable them to identify the same in State Vs. Manoj 10 out of 11 11 the court. Infact both the witnesses have admitted that there was no special mark on the fire arm recovered from the accused. This is coupled with the fact that although PW-5 states that after sealing the case property he had handed over the seal to Ct. Ali Sher, Ct. Ali Sher does not mention any thing about having received any seal from the IO let alone disclosing about date, time and place when he returned the seal back to the IO. In these circumstances, question of tampering with the case property cannot be ruled out.
22. The nutshell of forgoing discussion is that there are several loop holes in the case of the prosecution to draw any conclusion of guilt against the accused. Thus giving benefit of doubt to accused Manoj he is acquitted of charges U/S 25 Arms Act.
23. Accused is on bail, his bail bond canceled and surety is discharged.
File be consigned to record room.
Announced in the open court today
i.e. on 09.07.09 (ILLA RAWAT)
ASJ, FTC (Central) : Delhi
State Vs. Manoj 11 out of 11