Delhi District Court
State vs . Ajay on 9 December, 2015
IN THE COURT OF SH. GAJENDER SINGH NAGAR, MM-04,
WEST DISTRICT, TIS HAZARI COURT,DELHI
STATE Vs. AJAY
FIR No.275/11
PS: MOTI NAGAR
U/S: 25 ARMS ACT
Sr. no. of the case : 136/3/11
Unique Case ID no. : 02401R0571322011
Date of commission of offence : 30.10.2011
Date of institution of the case : 08.12.2011
Name of the complainant : HC Rajeev Kumar
Name of accused and address : Ajay s/o Sh. Chander
Sharma, r/o H-217,
Karampura, New Delhi.
Offence complained of or proved : U/s 25 Arms Act
Plea of the accused : Pleaded not guilty
Final order : Acquitted
Date on which reserved for judgment : 09.12.2015
Date of judgment : 09.12.2015
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JUDGMENT
1. As per prosecution version, on 30.10.2011 at about 03.50 PM at Ganda Nala near Sudamapuri, Moti Nagar HC Rajiv Kumar along with Ct. Jai Prakash and Ct. Shriram while on patrolling duty arrested/apprehended the accused Ajay pursuant to a secret information with a desi katta and one live cartridge in contravention of provision of Arms Act 1959. Accordingly, after the investigation, police filed the present charge sheet against the accused.
2. The prima facie case U/s 25 Arms Act, 1959 was found to be made out against the accused. Accordingly, charge framed against the accused. The accusation was read over and explained to the accused to which he pleaded not guilty and claimed trial.
3. The prosecution got examined six witnesses in support of its case, FIR No.275/11, PS Moti Nagar Page 1/8 which are as follows:-
(1) PW1 Sh. R. Suresh, Senior Scientific Officer (Ballistic) FSL, Rohini, deposed that on 08.11.2011 one sealed parcel sealed with the seal of RK of the present case was received with FSL along with FSL form. The seals on the parcel were intact and in consonance with the annexed copy of the specimen seal. It is stated that on opening of the parcel one country made pistol .315 inch bore and one 8mm/.
315 inch cartridge were found and subsequently marked as Ex. F-1 and A-1 by himself. It is stated that on examination it was found that the country made pistol mark Ex. F1 was in working order. It is further stated that the test fire was conducted successfully by using the cartridges from the laboratory stock. The 8mm/.315 inch cartridge mark A1 was misfired cartridge as there were multiple dent marks on the same. The country made pistol marked Ex. F1 was a firm arm and the cartridge marked A1 was ammunition as defined in Arms Act 1959. The exhibits were then re sealed with the seal of RS FSL, Delhi. His detailed report in this regard is Ex. PW1/8.
(2) Sh. Rishi Pal, IPS, deposed that on 29.11.2011 he was posted as Additional DCP West District, New Delhi, and the case file of the present case containing the copy of the FIR, statement of prosecution witnesses examined during investigation, seizure memo, ballistic report and other documents was placed before him and had gone through the same and satisfied himself that on 30.10.2011 accused Ajay had in his conscious possession one country made pistol of .315 inch bore and one 8mm / .315 misfired cartridge in contravention of section 3 of Arms Act. After satisfying himself I accorded sanction in pursuance of section 39 Arms Act against accused Ajay. The sanction u/s 39 Arms Act was accorded by him for prosecution of the accused Ajay u/s 25 Arms Act is Ex. PW2/A. (3) PW-3 HC Rajiv Kumar deposed that on 30.10.2011 he alongwith Ct. Jai Prakash and Ct. Shriram were on patrolling duty at beat no.4 FIR No.275/11, PS Moti Nagar Page 2/8 (Fun Cinema). It is stated that at about 03:50PM, a secret information was received that a person having illegal weapon was standing at Gandanala near Sudamapuri, Moti Nagar, he (accused) can be apprehended if raid is done immediately. It is stated that on this information, he disclosed the said information to 4 to 5 persons and requested them to join the investigation but none agreed to join the investigation and left the place without disclosing their names and addresses assigning their personal problems without wasting of time, he prepared raiding party and at about 04:05PM, reached at the spot where he saw a person was standing and on the pointing out of the secret informer they tried to apprehend the accused but on seeing them that person tried to run away from that place. Thereafter, they apprehended him after chasing 15 to 20 steps. Accused was formally searched in the presence of the raiding party. It is stated that one desi katta was recovered from his right side dub and one live cartridge was recovered from said katta. It is further stated that on interrogation, he came to know the name of the accused as Ajay. He (witness) prepared a sketch of desi katta and live cartridge which is Ex. PW3/A. It is stated that he measured the katta and found the length of the barrel to be 11.5 cm, the length of the butt was 9 cm. The length of the cartridge was 7.5cm and diameter of bottom was 8 mm. He prepared the pullandas of desi katta and live cartridge separately. Both were sealed with the seal of RK. Form FSL was filled up. Seal after use was given to Ct. Shriram. The same were taken into possession vide seizure memo Ex. PW3/B. He prepared rukka which is Ex. PW3/C and handed over to Ct. Jai Prakash for registration of FIR. Ct. Jai Prakash went to PS, got the FIR registered and came back at the spot along with HC Ashok with copy of the FIR and original rukka. He narrated the whole facts to HC/IO. He handed over the sketch, seizure memo, form FSL, the sealed pullandas and accused to HC Ashok. It is stated that the IO prepared site plan at his instance which is Ex. PW3/D. His supplementary statement was FIR No.275/11, PS Moti Nagar Page 3/8 recorded. The case property is Ex. P1. In his cross examination, this witness could not tell the DD number of his departure entry from the police station. It is stated by him that no legal notice was given to any of the public person who refused to join the investigation.
(4) PW-4 HC Jai Prakash deposed on the same lines as that of PW-3 HC Rajiv Kumar. Apart from that this witness arrested the accused Ajay vide Ex. PW4/A. Personal search of the accused was done vide memo Ex. PW4/B. IO recorded the disclosure statement of the accused vide Ex. PW4/C. Thereafter, he took the accused to the PS and handed over the custody of the accused to Ct. Sukhpal. IO recorded his statement at PS Moti Nagar.
(5) PW-5 SI Rameshwar Oraon was the duty officer on 30.10.2011, who exhibited on record carbon copy of FIR as Ex.PW5/A (OSR) and endorsement on the rukka as Ex.PW5/B. (6) PW-6 HC Pyarelal deposed that on 30.10.2011 HC Rajeev deposited the case property i.e. one pullanda sealed with the seal of RK containing country made pistol and one live cartridge with FSL Form. The same was entered into register no. 19 at serial no. 3317/11 and was deposited in Malkhana. It is further stated that on 08.11.2011 Ct. Jai Prakash was handed over the pullanda sealed with the seal of RK for depositing the same at FSL Rohini vide RC No. 115/21/11 dated 08.11.2011. After depositing the same Ct. Jai Prakash returned the copy of receipt from FSL office to him. The copy of entry no. 3317 is Ex.PW6/A bears my signature at point A (OSR), road certificate Ex. PW6/B and receipt from FSL Ex. PW6/C. On 25.11.2011 he received the result from FSL and handed over the same to IO HC Mewa Ram.
4. Statement of accused U/s 281 Cr.P.C. recorded, in which all the incriminating evidences were put to the accused. The accused controverted and denied the allegations levelled against him. Accused stated that he is innocent and has been falsely implicated in the present case.
FIR No.275/11, PS Moti Nagar Page 4/85. It has been held in case of Sadhu Singh V/s State of Punjab 1997(3) Crime 55 the Hon'ble Punjab & Haryana High Court:-
"In a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubts. It is for the prosecution to travel the entire distance from may have to must have. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused."
6. In the present case none of the recovery witness in his examination-in-chief has stated that he offered his personal search to accused before taking his personal search. Principles of natural justice demanded that accused should have been offered search by recovery witness who allegedly recovered case property from accused and should have reduced this fact into writing which has not been done in present case and which fact diminishes credibility of prosecution version. Reliance being placed on a judgment of Orissa High Court reported as "Rabindernath Prusty Vs. State of Orissa. In this situation, it can be said that search of the accused by above said police officials was incomplete violation of the above said case law and the same can be said to be illegal & motivated.
7. As per prosecution witnesses, the case property was duly sealed with the seal of 'RK' and thereafter, the seal after use was handed over to Ct. Shriram who was none else but a member of the raiding party of the police. The prosecution has failed to place on record any memo/case diary regarding handing over or return of the seal. Furthermore, no public persons were joined the investigation/ recovery for the reasons best known to the investigating agency. Non joining of the public persons to the recovery/investigation despite their availability makes the story of the prosecution doubtful.
In a case law reported as Anoop Joshi V/s State, 1992 (2) C.C. Cases 314 (HC), Hon'ble High Court of Delhi has observed as under:
''18. It is repeatedly laid down by this Court that 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 evident that no such sincere efforts have been made, particularly when we find that FIR No.275/11, PS Moti Nagar Page 5/8 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 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''.
Roop Chand V/s The State of Haryana,1999 (1) C.L.R 69, the Hon'ble Punjab & Haryana High Court held as under:-
It is well settled principle of the law that the Investigating Agency should join independent witnesses at the time of recovery of contraband articles, if they are available and their failure to do so in such a situation casts a shadow of doubt on the prosecution case. In the present case also admittedly the independent witnesses were available at the time of recovery but they refused to associate themselves in the investigation. This explanation does not inspire confidence because the police officials who are the only witnesses examined in the case have not given the names and addresses of the persons contacted to join. It is a very common excuse that the witnesses from the public refused to join the investigation. A police officer conducting investigation of a crime is entitled to ask anybody to join the investigation and on refusal by a person from the public the Investigating Officer can take action against such a person under the law. Had it been a fact that he witnesses from the public had refused to to join the investigation, the Investigating Officer must have proceeded against them under the relevant provisions of law. The failure to do so by the police officer is suggestive of the fact that the explanation for non-joining the witnesses from the public is an after thought and is not worthy of credence. All these facts taken together make the prosecution case highly doubtful''.
8. In the present case, PW-2 IPS Sh. Rishi Pal had accorded Sanction in pursuance of Section 39 of Arms Act for prosecution of accused as ExPW2/A, as per Ex.PW2/A the same was accorded after being satisfied on perusal of statement of prosecution witnesses, seizure memo, ballistic report and other documents. Further it is nowhere FIR No.275/11, PS Moti Nagar Page 6/8 stated in the Sanction Order U/s 39 Arms Act that the case property was produced before Additional Deputy Commissioner of Police. In such situation, the sanction is not proper as per law, reliance being placed on the judgment reported as Raju Dubey Vs. State of M.P, 11 (1998) CCR 205 Madhya Pradesh, High Court, wherein it is held that:
"It is important to mentioned that sanction 39 of the Arms Act is not a mere formality. Under this Section a person can not be prosecuted without the previous sanction of the District Magistrate with respect of any offence U/section 3, Arms Act. To my mind, the sanction must be given by the Authority concerned after fully satisfying that an offence is prima facie made U/s 3. In order to make up its mind the Authority concerned must see the relevant documents as well as the instrument which must be produced before the Sanctioning Authority at the time of granting, sanction. Unless the Sanctioning Authority looks itself the instrument in respect of which sanction is sought, he can not be said to have any idea as to whether the possession of the weapon was illegal or the instrument was actually recovered within the definition given in section 2. It is therefore, emphasized that it is mandatory for the authorities seeking sanction to produce the instruction before the Sanctioning Authority and the Sanctioning Authority must itself satisfy that instrument is such which is covered within the definition given in the Act".
9. No DD entry has been filed on record to prove that HC Rajiv Kumar along with Ct. Jai Prakash and Ct. Shri Ram were infact on patrolling duty, on the date of arrest of the accused/ recovery of the arms. Further the alleged secret information on the basis of which alleged raid was conducted was not written down anywhere, such secret information was not even shared with any senior official of the police.
10. The seizure memo of the katta and cartridges allegedly prepared prior to registration of FIR are bearing number of FIR on top of it. Further, the FIR number and other particulars on the top of these documents and the entire document is in the same handwriting. These fact shows that the same might have been prepared after registration of FIR while sitting in police station.
11. Hence, on the basis of the material available on record and also for FIR No.275/11, PS Moti Nagar Page 7/8 non-joining of public persons to the incident that the accused was found in possession of one desi katta with one live cartridge (as alleged by the prosecution), the story of prosecution becomes doubtful and the benefit of doubts certainly goes in favour of the accused. Further the sanction U/s 39 Arms Act is not proper. Accordingly, taking into consideration all the facts and circumstances of the case, accused Ajay is acquitted from the charges punishable U/s 25 Arms Act.
12. Fresh bail/surety bond has been furnished by the accused in compliance of section 437-A Cr.P.C. Same is accepted. File be consigned to record room after due compliance.
ANNOUNCED IN THE OPEN (GAJENDER SINGH NAGAR) COURT ON 09.12.2015 MM-04 (WEST)/DELHI
Containing 8 pages all signed by the presiding officer.
(GAJENDER SINGH NAGAR) MM-04 (WEST)/DELHI FIR No.275/11, PS Moti Nagar Page 8/8