Delhi District Court
State vs . Dinesh Kumar on 5 June, 2014
IN THE COURT OF MS CHETNA SINGH METROPOLITAN
MAGISTRATE-02 (SOUTH) NEW DELHI
STATE Vs. Dinesh Kumar
FIR NO. 417/09
U/s : 25 Arms Act
P.S. : Malviya Nagar
Date of Institution : 17.12.2009
Date on which case reserved for Judgment : 05.06.2014
Date of judgment : 05.06.2014
JUDGMENT
1.FIR No. of the case : 417/09
2.Date of the Commission : 07.08.2009
of the offence
3.Name of the accused : Dinesh Kumar S/o Kadam Singh
: R/o H. No. 363, Harijan Basti, Village
: Mandi, Mehrauli, New Delhi.
4.Name of the complainant : HC Sanjeev Kumar, No. 1861/SD,
: PS Malviya Nagar, New Delhi.
5.Offence complained of : 25 Arms Act
6.Plea of accused : Pleaded not guilty
7.Final order : Acquitted
FIR No. 417/09 State Vs. Dinesh Kumar 1/10
BRIEF FACTS
The story of the prosecution is that on 07.08.2009 at about 5:30 PM at Chirag Delhi, Ganda Nala near MCD office, New Delhi, within the jurisdiction of PS Malviya Nagar, accused Dinesh Kumar was found in possession of one loaded country made pistol and two live cartridges (as per seizure memo), without any permit or valid license in contravention of the notification issued by Delhi administration in this regard and thereby accused committed an offence punishable u/s 25/54/59 Arms Act.
On the basis of the said allegations and on the basis of the complaint of the complainant, an FIR bearing number 417/09 under section 25/54/59 Arms Act was lodged at Police Station Malviya Nagar.
After investigation, charge-sheet under section 173 Cr.P.C was filed on 17.12.2009.
On the basis of the charge-sheet, a charge for the offence punishable under section 25 Arms Act was framed against the accused Dinesh Kumar and read out to the said accused person, to which he pleaded not guilty and claimed trial on 28.06.2011.
APPRECIATION OF EVIDENCE To prove its case, prosecution has examined the following witnesses:
PW-1 Ct. Sandeep Kumar was examined on 13.10.2011 and deposed that on 07.08.2009 he was posted at PS Malviya Nagar and on that day he along with Ct. Manmohan, Ct. Santosh and HC Sanjeev Kumar was checking the vehicles at Ganda Nala, Chirag Delhi by putting barricades and at about 5.30pm one white colour Swift Dezire Car came FIR No. 417/09 State Vs. Dinesh Kumar 2/10 and same was stopped and driver of the car came out and started running but he was apprehended and on his checking one loaded country made pistol and one live cartridge was recovered from his right hand pocket of pant. Thereafter, his name was revealed as Dinesh. Total length of katta was 21.5cm, barrel was 11.8cm, body was 12.5cm and cartridges were of 7.2cm long. IO requested some public persons to join the investigation but none of them agreed and left the place on justified grounds. Sketch memo of country made pistol and two live cartridge were prepared vide Ex.
PW-1/A. Case property was sealed with the seal of SK and same was seized vide Ex. PW-1/B. Maruti was taken into possession vide seizure memo Ex. PW-1/C. Disclosure statement of the accused was recorded vide Ex. PW-1/D. Tehrir was prepared and case was got registered through Ct. Santosh. Accused was arrested and his personal search was conducted vide Ex. PW-1/E and F respectively. He further deposed that accused failed to show any documents of the said car and accused disclosed that he has stolen the said vehicles. He further identified the case property which is Ex. P-1, P-2 and 3.
This witness was cross examined by Ld. Defence counsel for the accused wherein he stated that he joined his duty in the year 2000 and he had joined the investigation of this case on 07.08.2009 and his duty hours were from 5pm to 10pm. He further stated that it took 30-40 minutes to reach the place where barricades were put from PP. He further stated that the accused was alone in the car and accused was apprehended at the distance of 30 to 50 meters but he does not remember who caught the accused. He further stated that one pulanda which is already Ex. PW-1/B was prepared at the spot. He further deposed that he does not remember the colour of clothes of accused. He further stated that it took 4-5 hours in FIR No. 417/09 State Vs. Dinesh Kumar 3/10 whole process. He denied the suggestion that nothing was recovered from the possession of the accused or that recovery has been planted upon the accused or that all the documents have been prepared at the PS or that the above said car was not recovered from accused or that car was already lying at PS. He further denied the suggestion that he is deposing falsely to falsely implicate the accused in this case.
PW-2 HC Santosh Kumar was examined on 07.12.2011 and deposed that on 07.08.2009 he along with Ct. Manmohan, Ct. Sandeep and HC Sanjeev Kumar was checking the vehicles at Ganda Nala, Chirag Delhi by putting barricades and at about 5.30pm one white colour Swift Dezire Car came and same was stopped and driver of the car came out and started running but he was apprehended and on his checking one loaded country made pistol and one live cartridge was recovered from his right hand pocket of pant. Total length of katta was 21.5cm, barrel was 11.8cm, body was 12.5cm and cartridges were of 7.2cm long and beneath the cartridge it was written 8 MM KF and on another it was written 8MM KP. Sketch memo of country made pistol and two live cartridge were prepared vide Ex. PW-1/A. Case property was sealed with the seal of SK and same was seized vide Ex. PW-1/B. Sea after use was handed over to Ct. Sandeep. Maruti was taken into possession vide seizure memo Ex. PW-1/C. Disclosure statement of the accused was recorded vide Ex. PW-1/D. Tehrir was prepared and case was got registered. Accused was arrested and his personal search was conducted vide Ex. PW-1/E and F respectively. He further deposed that accused failed to show any documents of the said car and accused disclosed that he has stolen the said vehicles. He further identified the case property which is Ex. P-1, P-2 and 3.
FIR No. 417/09 State Vs. Dinesh Kumar 4/10 This witness was cross examined by Ld. Defence counsel for the accused wherein he stated that he joined the investigation of this case at about 5pm and at about 5.30pm they had seen the Maruti car coming from their front side. He further deposed that he remained at the spot for about one hour. He further deposed that he does not remember the exact time for which they remained on the spot and he does not remember the time when he reached the PS. He further deposed that the seizure memo of katta and cartridge and car was prepared at the spot. He denied the suggestion that on the relevant day they were not checking any vehicle by putting barricades or that nothing was recovered from the possession of the accused or that recovery has been planted upon the accused or that all the documents have been prepared at the PS or that the above said car was already lying at PS. He further deposed that public persons were asked to join the investigation but they refused and no notice was issued to them. He further denied the suggestion that he is deposing falsely or that the accused has been falsely implicated in this case. He denied the suggestion that his statement was recorded on next day at PS or that he is telling the wrong measurement of the katta as katta was not recovered nor seized in his presence or that disclosure statement of the accused was not recorded in his presence. He further denied the suggestion that he was not joined the investigation of said case as he was not present at the spot of incident as he was busy in some other case which is related to DD no. 33- A dated 07.08.2009, PS malviya Nagar.
PW-3 HC Sheo Narayan Yadav who is a formal witness was examined on 08.06.2012 and proved the FIR Ex. PW-3/A and endorsement on the basis of rukka vide Ex. PW-3/B (OSR).
FIR No. 417/09 State Vs. Dinesh Kumar 5/10 This witness was not cross examined by Ld. Defence counsel for the accused despite opportunity given.
PW-4 HC Narender Singh was examined on 07.12.2012 and deposed that on 07.08.09 he was posted as MHC(M) at PS Malviya Nagar and on 21.08.09 he handed over the case property of the present case (duly sealed) to be deposited at FSL Rohini vide RC No.100/21 to Ct. Narender. As long as the case property remained with him, same was not tempered with. He further deposed that he had brought in court the original register No. 19 and the copy of the same is Ex. PW4/A (OSR).
This witness was cross examined by Ld. Defence counsel for the accused wherein he stated that the case property of the present case was handed over to him on 07.08.09 and it was containing one pullanda. He admitted that the case property was handed over to him by HC Sanjeev.
PW-5 HC Narender Singh was examined on 07.12.2012 and deposed that on 21.08.09 he had received case property of the present case (duly sealed) from Malkhana vide RC No. 100/21 and he had deposited the same at FLS Rohini vide FSL No.2009/F 3302. As long as the case property remained with him same was not tempered with.
This witness was cross examined by Ld. Defence counsel for the accused wherein he stated that the case property was handed over to him by MHC(M) HC Ravinder. He further deposed that as the case property was sealed, he does not what was it containing and he was handed over only one single pullanda. He denied the suggestion that the pullanda was tempered by him. The pullanda was sealed with the seal of SK and particulars of the present was written on it but he does not remember the date.
FIR No. 417/09 State Vs. Dinesh Kumar 6/10 PW-6 Puneet Puri being Senior Scientific Officer (Ballistic) FSL, was examined on 29.08.2013 and deposed that he was working in FSL Delhi from last 18 years and he had worked with Krishan Chand Varshney (Assistant Director, Ballistics). At this stage, FSL report no. 2009/F3302 dated 14.10.2009 shown to the witness and witness had identified the signature of the concerned examiner i.e. Krishan Chand Varshney, same report is Ex. PW-6/A which has been prepared and signed by Krishan Chand Varshney.
This witness was cross examined by Ld. Defence counsel for the accused wherein he stated that the FSL has not been prepared in his presence and no pulanda of the concerned case has been opened in his presence. He further deposed that Examiner had not put signature on the report in his presence however, he can identify his signature as he is colleague.
As all the witnesses except PW HC Sanjeev Kumar (stated to have expired) have been examined by the prosecution, no further PE was required to be conducted. Hence, PE was ordered to be closed on 13.02.2014. After closing of prosecution evidence, the statement of accused under section 313 r/w section 281 Cr.P.C was recorded on 05.06.2014. In his statement, the accused stated that he has been falsely implicated in this case. He further stated that he does not want to lead defence evidence.
The main arguments of Ld. Defence Counsel can be summarized as follows:
● Non-joinder independent witnesses despite availability casts a serious doubt over the truthfulness of prosecution story.
FIR No. 417/09 State Vs. Dinesh Kumar 7/10 ● Accused was falsely implicated in the present case.
The main arguments of Ld. Prosecutor can be summarized as follows:
● Sufficient materials are available on record to prove the guilt of accused.
● People do not want to get involve in police cases. Notice could not be served due to paucity of time.
Arguments of both sides heard and record perused.
REASONS FOR DECISION It is clear from the evidence on record that there is no public witness to the recovery, which is essential in such cases where recovery in itself forms the sole ground for conviction of the accused.
It is to be noted that the present case that recovery was made from a public place being Chirag Delhi, Ganda Nala near MCD Office, New Delhi and there was sufficient opportunity to join public witnesses to substantiate the factum of recovery of the case property from the accused.
Failure to join public witnesses can prove fatal in such like cases and my this view is further fortified by the judgments mentioned below:
In the state of Rajasthan Vs. Teja Singh 2001 (II) AD (SC) 125, Hon'ble Supreme Court held:
The failure of the prosecution to examine independent witnesses though available is fatal for their case.
FIR No. 417/09 State Vs. Dinesh Kumar 8/10 In the case titled State of Punjab Vs. Gurdyal Singh 1992 (1) RCR (DB) 646, Roop Chand Vs. State of Haryana 1989 (2) RCR 504 and State of Punjab Vs. Sukhdev Singh 1992 (3) RCR 311, it was held by the Hon'ble Court that:-
Where the IO has failed to even note down the names and addresses of the persons, who have refused to join a public witnesses, couple with the fact that no action was taken against them, the case is rendered doubtful.
The court would also like to refer to the judgment titled Ritesh Chakarvarti Vs. State of Madhya Pradesh, (SC) 2006 (4) R.C.R (Criminal) 480 the division bench of Honorable Justices Sh. S.B.Sinha and Sh. Dalveer Bhandari observed:
"If it was a busy place, the officers would expectedly ask those to be witnesses to the seizure who were present at the time in the place of occurrence. But, not only no such attempt was made, even nobody else who had witnessed the occurrence was made a witness. Even their names and addresses had not been taken. Illustration (g) appended to Section 114 of the Indian Evidence Act reads thus: "The court may presume-
(a)***
(b)***
(c)***
(d)***
(e)***
(f)***
(g) that evidence which could be and is not produced would, if produced, be unfavourable to the person who holds its."
An adverse inference, therefore, could be FIR No. 417/09 State Vs. Dinesh Kumar 9/10 drawn for non-examination of material witnesses." (emphasis supplied) In absence of a public witness to the recovery and also in absence of an explanation as to why a public person was not joined, the prosecution has failed to prove the recovery of the county made pistol from the accused beyond reasonable doubt.
Thus, the prosecution has not been able to prove the guilt of the accused beyond reasonable doubt.
In the light of the above discussion, accused Dinesh Kumar is acquitted for the offence u/s 25 Arms Act.
Previous bail bond in compliance of section 437-A Cr.P.C. to remain in force for a period of 6 month from today. File be consigned to record room.
Announced in the Court (CHETNA SINGH) on 05.06.2014 MM-02(SD)/ 05.06.2014
Certified that this judgment contains 10 pages and each page bears my signatures.
(CHETNA SINGH)
MM-02(SD)/ 05.06.2014
FIR No. 417/09 State Vs. Dinesh Kumar 10/10