Delhi District Court
State vs . Davinder on 5 September, 2014
STATE vs. DAVINDER
IN THE COURT OF SH. SUNIL BENIWAL, ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE (SHAHDARA), KKD COURTS DELHI.
FIR No. 302/2007
PS : Anand Vihar
U/s 25 ARMS ACT
State vs. Davinder
a) Serial No. of the case : 02402R076402007
b) Date of Institution : 29.11.2007
c) Date of commission of offence : 23.05.2007
d) Name of complainant : ASI Zaheer Ahmed
No.3583/D
e) Name of the accused, and : Davinder
parentage and address S/o Sh. Tejpal @ Teja
R/o Villa ge
Mubarakpur, PS
Bhuwanpur, Distt.
Meerut, U.P.
f) Offence complained of : U/s 25 Arms Act
g) Plea of the accused : Pleaded not guilty
h) Date of judgment reserved : 05.09.2014
i) Final order : Acquittal
j) Date of such Order : 05.09.2014
JUDGEMENT
1. The case of prosecution is that on 23.05.2007, ASI Zaheer Ahmed, ASI Mazid Khan, Ct. Naresh and Ct. Munesh were on patrolling duty and they were present at CBD Ground, Surajmal Vihar picket. In the meanwhile ASI Majid Khan received a secret information that the FIR NO.302/2007 PS Anand Vihar PAGE 1/5 STATE vs. DAVINDER accused was standing at petrol pump, CBD Ground and waiting for some of his associate and can be apprehended if raided. Thereafter ASI Majid Khan, ASI Zaheer Ahmed, Ct. Rakesh Tyagi constituted a raiding party including the secret informer and raided the accused on which he took out a country made pistol and threatened them not to apprehend him. the police party apprehended the accused and recovered the abovesaid county made pistol of .315 bore and two live cartridges from the pocket of his wearing pant. Thereafter ASI Zaheer Ahmed prepared rukka and sent Ct. Naresh Chand to PS for registration of case FIR and FIR no.302/2007 was registered in PS Anand Vihar against the accused U/S 25 Arms Act. Statement of witnesses were recorded, site plan was prepared, accused was arrested and after completion of all necessary investigation challan U/S 173 Cr. P.C was presented in the court for trial.
2. Accused was summoned to face trial so copy of challan as required U/S 207 Cr.P.C, was supplied to him. Thereafter case was fixed for consideration of charge.
3. After hearing arguments and on perusal of record, Charge for the offence under section 25/27/54/59 Arms Act was framed against the accused on 13.08.2008. Thereafter case was fixed for prosecution evidence.
FIR NO.302/2007 PS Anand Vihar PAGE 2/5
STATE vs. DAVINDER
4. In support of its case, prosecution has produced and examined five witnesses i.e. PW1/Constable Manoj, PW2/HC Yogender Singh, PW3/ASI Zaheer Ahmed, PW4/SI Majid Khan and PW5/ASI Rajender.
5. Statement of accused was recorded under section 313 Cr.P.C wherein he denied all the evidence and stated that all witnesses are false and all the documents are fabricated. Accused did not prefer to lead any defence evidence.
6. I have heard the arguments of Ld. APP for the State and the Ld. Counsel for the accused and have also carefully perused the entire record and the relevant provisions of the law.
7. The prosecution witnesses PW1 and PW5 are formal witnesses. PW5 is the duty officer who registered the FIR Ex.PW5/A of the present case.
8. The other three witnesses i.e. PW2, PW3 & PW4 are the material witnesses who were present on spot at the time of apprehension of accused and recovery of country made pistol with live cartridge. PW2 deposed that he along with Ct. Rakesh Tyagi was on patrolling duty and at FIR NO.302/2007 PS Anand Vihar PAGE 3/5 STATE vs. DAVINDER about 7:30p.m they reached near CBD ground, Petrol Pump where ASI Zahir Ahmed/PW3, ASI Majid Khan/PW4, Ct. Manish and Ct. Naresh met us. But PW3 & PW4 have not deposed a single word about PW2 that he was also present on the spot at the time of recovery and apprehension of accused. PW2, PW3 & PW4 deposed that they left PS at about 55:30p.m but none of them could tell the DD entry number by which they the police station for patrolling. All the three witnesses deposed that petrol pump was open but no public witness was joined in the investigation. PW2 deposed that does not remember whether IO put any identification mark on the recovered pistol or cartridges to identify the same which has been recovered from the accused.
9. Admittedly, during the investigation of the case no public witnesses were joined nor seems to be any sincere efforts made in this regard when it was possible to do so, as PW2, PW3 & PW4 admitted that petrol pump was open and employees were there, this makes the case of the prosecution weak and suspicious. In State of Punjab vs. Gurmel Singh 1991(2) Recent Criminal Reporters 361 Hon'ble Court held that: "Where there were 20 shops nearby and the investigating officer had ample opportunity to join independent witness statement of official witnesses would not be sufficient to convict the accused. Contention of the prosecution that the police officials had no ill will to involve the FIR NO.302/2007 PS Anand Vihar PAGE 4/5 STATE vs. DAVINDER accused in false case was repelled." There is not a single public witness joined in the investigation. The evidence given by police witnesses does not appear to be reliable. Under these circumstances, it is hard to believe that the recovery of pistol was actually effected from the accused.
10. Prosecution has neither produced any rojnamcha register or any witness to prove that PW2, PW3 & PW4 left the PS for patrolling or they were very much present on the spot. The complainant itself is a police official. PW2, PW3 & PW4 failed to disclose their departure entries from the police station at the relevant time which creats a doubt about their presence on the spot.
11. In view of the above, I hold that prosecution has failed to prove its case beyond reasonable doubt against accused, therefore accused Davinder is acquitted of the offence punishable U/S 25 Arms Act. Bail bond cancelled. Surety discharged. Documents if any be released to the party after cancellation of endorsement. Fresh bail bond for six months in terms of section 437A Cr.PC be furnished by the accused. File be consigned to record room after due compliance.
Announced in Open Court (SUNIL BENIWAL)
05.09.2014 Additional Chief Metropolitan Magistrate
Shahdara Distt., KKD Courts, Delhi
FIR NO.302/2007 PS Anand Vihar PAGE 5/5