Delhi District Court
State vs . Rajender @ Ritwa on 22 June, 2012
IN THE COURT OF SH. SAMAR VISHAL, METROPOLITAN MAGISTRATE05,
SOUTHEAST DISTRICT, NEW DELHI
STATE VS. Rajender @ Ritwa
FIR NO: 289/08
P. S. Ambedkar Nagar
U/s 25 Arms Act
Unique ID no. 02406R0432632010
JUDGMENT
Sl. No. of the case and : 255/3 (22.11.2010) Date of its institution : 22.11.2010 Name of the complainant : ASI Tara Chand Date of Commission of offence : 21.6.2008 Name of the accused : Rajender @ Ritwa Offence complained of : Section 25 Arms Act Plea of accused : Not guilty Case reserved for orders : 4.6.2012 Final Order : AQUITTED Date of Judgment : 22.6.2012 BRIEF STATEMENT OF FACTS FOR THE DECISION: State Vs. Rajender @ Ritwa 289/08
1. This is the trial of the accused Rajender @ Ritwa upon the police report filed by P.S. Ambedkar Nagar u/s 25 Arms Act.
2. The prosecution story is that on 21.6.2008 at about 8.10 pm at Bus Stand, Virat, Dakshin Puri, New Delhi accused was found in possession of one country made pistol (Katta) having length of barrel 13 cm and length of body 11 cm and that of butt 8 cm alongwith two live cartridges without any valid license in contravention of Notification of Delhi Administration and he thus thereby committed an offence punishable under Section 25 Arms Act.
3. After completing the formalities, the investigation was carried out in pursuance of which, the chargesheet u/s 25 Arms Act. The charge was framed against the accused u/ s 25 Arms Act to which he pleaded not guilty and claimed trial.
4. Thereafter, in order to prove its case, the prosecution has examined five witnesses.
5. PW 1 Ct. Braham Singh and PW 2 ASI Tara Chand were involved in the investigation and have proved their involvement by deposing that on 20.6.2008 they were on patrolling duty and at about 8 pm they reached at Virat market where secret informer met ASI Tara Chand and informed him that a person is sitting at bus stand of Virat and is waiting for someone having possession of illegal weapon. Thereafter both of them State Vs. Rajender @ Ritwa 289/08 alongwith secret informer went to the spot and on the instance of the secret informer apprehended the accused and recovered one country made pistol alongwith two live cartridges. They proved certain documents like sketch of katta as Ex.PW1/A, seizure memo of katta and live cartridges as Ex.PW1/B, arrest memo of accused as Ex.PW1/C, personal search as Ex.PW1/D.
6. PW 3 is Ms. Shalini Singh who proved sanction u/s 39 Arms Act as Ex.PW3/A.
7. PW 4 is HC Dharam Singh who had sent the recovered arms and ammunition from the accused Rajender to FSL for examination and obtianed sanction u/s 39 Arms Act from the concerned Deputy Commissioner of Police.
8. PW 5 is HC Jayanti Prasad who proved the FIR as Ex.PW5/A upon a rukka as Ex.PW5/B.
9. After recording the evidence of this witness, the prosecution evidence was closed. The accused was examined under the provision of section 313 Cr.P.C. and all the incriminating evidence were put to him to which he answered as incorrect and has opted not to lead defence evidence.
10. I have heard the Ld. APP for State and counsel for accused and perused the record.
11. It is argued by the Ld. APP for State that the recovery of katta from the possession of State Vs. Rajender @ Ritwa 289/08 the accused has been duly proved in this case. The DCP has proved his sanction, FSL report is duly proved and the cumulative effect of the evidence of the prosecution is that the case of the prosecution is proved beyond reasonable doubt.
12. On the other hand, it is submitted by tghe accused that he is innocent and has been falsely implicated in this case.
13. Having dealt with the submissions advanced by both the sides, I proceed to adjudicate upon the most important question involved in the present case: whether the accused is guilty of the offence with which he is charged or not.
14. The accused in the present case has been charged with offences under Section 25 Arms Act, 1959. The relevant portion of section 25 of the Arms Act, 1959 reads as under:
"25 Punishment for certain offences:.................................................................. (1B) Whoever (a) acquirres, has in his possession or carries any firearm or ammunition in contravention of section 3:........................................."
12. In a criminal trial the burden to prove the guilt of the accused beyond the reasonable doubt is strictly on the prosecution. In Sarwan Singh Rattan Singh Vs. State of Punjab, AIR 1957 SC 637, Hon'ble Supreme Court observed (Para 12):
"Considered as a whole the prosecution story may be true: but between 'may be true' State Vs. Rajender @ Ritwa 289/08 and 'must be true' there is inevitably a long distance to travel and the whole of this distance must be covered by legal, reliable and unimpeachable evidence (before an accused can be convicted."
15. Now in the facts of the present case although the witnesses had tried to prove the case of the prosecution as depicted but considering some conspicuous effects in the recovery of the contraband and subsequent investigation, I am not convinced that in the present case there is sufficient evidence which can convict the accused under Arms Act on the following considerations.
16. The first is that there appears to be a deliberate and conspicuous failure on the part of the police to join public witness despite having an advance information regarding the culpability of the accused. In the case of Anoop Joshi Vs. State 1992 (2) C.C. Cases 314 (HC), Hon'ble High Court of Delhi has observed as under;
" 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 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."
17. During the investigation of the case no public witnesses were joined nor State Vs. Rajender @ Ritwa 289/08 there are seems to be any sincere efforts made in this regard, when it was possible to do so, which makes the case of the prosecution weak and suspicion. Since all the witnesses are police personnels and the necessary safeguards in the investigation has not been followed by the investigating officer, I am of the view that chances of false implication cannot be ruled out at the instance of the police. Katta is such a small thing which can be hidden in a pocket and easily available in market thus can be easily planted.
It is true evidence is to be weighed and not counted but in this case whatever evidence has been produced by the prosecution is not sufficient to fortify the edifice of the prosecution case and the prosecution has failed to prove all the links. In case where the prosecution has failed to prove all the links, the benefit of doubt has been given to the accused.
18. Not only this, there is also delay in sending the above articles to FSL. The katta was recovered on 21.6.2008. However, it was sent to FSL on 29.5.2009. Delay in sending the recovered articles to the FSL
19. In the judgment of Modan Singh Vs. State of Rajasthan, (1978)4SCC 435 the effect of the inordinate delay in sending the recovered arms was considered by the Hon,ble Supreme Court in the para 9 of the judgment in the following words:
9 .........The recovery of the pistol, Ex. 8 from the person of Modan Singh was on State Vs. Rajender @ Ritwa 289/08 the 20th December at the police station itself and the recovery memo is Ex. P. 23.
An empty cartridge, a live cartridge and a pistol case was recovered from the house of Modan Singh on the 23rd and the seizure memo was prepared but the prosecution failed to lead evidence that the material objects were properly kept till they were sent to the expert on 621967 by a special messenger. The investigating officers would only say that the material objects were kept sealed upon 14.12.1966. The prosecution is silent as to in whose custody the material objects were till 6.2.1967 ......................................." In Desh Raj @ Dass V/s State, 83 (2000) DLT 262, while relying upon the judgments of Hon'ble Supreme Court in Baldev Singh vs. State of Punjab 1991 CAR 81 and Santa Singh Vs. State of Punjab, AIR 1956 SC 526, the Hon'ble Court took the view that the delay of 12 days in sending the samples to the CFSL proved fatal to the prosecution. In Valsala Vs. State of Kerala 1993 Crimes 276(SC) and later in State of Gujarat Vs. Ismail U Haji Patel (2003)12 SCC 29, the Hon'ble Supreme Court held that the delay per se would not be material. What had to be established was that the seized articles were in proper custody and in the proper form and that the sample sent to the chemical analyst for testing was the same that was seized.
20. In Satinder Singh Vs. State (NCT of Delhi) 69(1997) DLT577, it was held that the oral evidence which is contrary to the documentary evidence ought not to be relied State Vs. Rajender @ Ritwa 289/08 upon. Hence, in my considered opinion, this inordinate delay in sending the case property to the FSL has proved fatal to the cause of the prosecution, especially so when there is no explanation has been put forth in this regard. As held by the aforesaid propositions of law I have no hesitation in holding that due to said reason the prosecution case becomes doubtful and consequently falls short of being proved beyond reasonable doubt.
Absence of CFSL Form
21. In Desh Raj @ Dass V/s State, 83 (2ourt000) DLT 262, Hon'b'le court was dealing a case under Section 402 IPC and 25 Arms Act. In that case, it was held in para 25 that " Neither depositing the CFSL form in the Malhkana nor sending it alongwith the sample parcel to the office of the CFSL puts a question mark on the credibility of the prosecution version."
22. In Lalman Vs. State 75(1998) DLT 224, it was observed that "CFSL form is a valuable safeguard to ensure that the sample is not tempered with till its analysis by the CFSL analyst. The CFSL form should not only be prepared and sealed by the officer making the seizure at the place where the case property is seized from the accused, it should also be sealed by the SHO to whom the sample and case property is handed over and the same should accompany the sample to the CFSL. The purpose of State Vs. Rajender @ Ritwa 289/08 the specimen seal is to compare the same with the seals on the sample parcels meant for analysis and report by CFSL to ensure that the purity of samples are not tempered with. In the absence of the CFSL form, it cannot be said that the purity of the sample remained intact. Benefit of its absence should go the accused." The same view was taken in Rajan Ali vs. The State( Delhi Administration) 81(1999)DLT 194 by Delhi High Court. Recently in the case of Bijay vs. State ( G.N.C.T. Of Delhi), 2011 VI AD (DELHI)562, Hon'ble Mr. Justice Suresh Kait, also observed the same. Reverting to the facts of the case and the evidence led in this regard the same would show that none of the prosecution witness testified that the CFSL Form was also prepared at the spot nor has been proved on the record. As held in the aforesaid judgments and especially recently in the case of Bijay vs. State ( G.N.C.T. Of Delhi), 2011 VI AD (DELHI)562, I opine that the nonsending the FSL form to the FSL alongwith the samples and not proving the same on the record renders the case of the prosecution doubtful and, I am not inclined to rely upon the same so as to convict the accused.
Handing Over the seal to the member of the Raiding Party:
23. In the judgment of Ramji Singh V/s State of Haryana 2007 (3) R.C.R. (Criminal) 452, the Hon'ble Punjab and Haryana High Court held in Para No. 7 as "The very purpose of giving seal to an independent person is to avoid State Vs. Rajender @ Ritwa 289/08 tampering of the case property. It is well settled that till the case property is not dispatched to the forensic science laboratory, the seal should not be available to the prosecuting agency and in the absence of such a safeguard the possibility of seal, contraband and the samples being tampered with cannot be ruled out". In Rajesh Jagdamba Avasthi Vs. State of Goa, (2005)9 SCC 773, in para 15 of the judgment in this regard the Hon'ble Supreme Court held as under:
"15............................In these circumstances there is justification in the argument that since the seal as well as the packets remained in the custody of the same person, there was every possibility of the seized substance being tempered with, and that is the only hypothesis on which the discrepancy in weight can be explained. The least that can be said in the facts of the case is that there is serious doubt about the truthfulness of the prosecution case." PW1 Ct. Bharam Singh deposed that the seal after use was handed over to him . It is beyond comprehension as to why the seal was handed over to PW1. While relying upon the judgment of Rajesh Jagdamba Avasthi Vs. State of Goa, (2005)9 SCC 773, in Bijay vs. State ( G.N.C.T. Of Delhi), 2011 VI AD (DELHI)562, Hon,ble Court held in para 34 of the said judgment that " after sealing the sample, the seal was not handed over to an independent person, rather he kept with him only, which also creates doubt on the sample whether the samples, were intact and not tempered with.
State Vs. Rajender @ Ritwa 289/08
24. Therefore, in view of the discussions made herein above and the facts and
circumstances of the present case, in my considered opinion, the
prosecution has failed to prove the guilt of the accused beyond reasonable doubt. Hence, the accused Rajender @ Ritwa stands acquitted of the offence under Section 25 Arms Act, he has been charged with.
Announced in the open court (Samar Vishal)
on 22 June, 2012
nd
Metropolitan Magistrate05,
South East, New Delhi
State Vs. Rajender @ Ritwa 289/08