Delhi District Court
State vs . Amit Bhout on 6 June, 2018
IN THE COURT OF SH. GAURAV GUPTA, METROPOLITAN MAGISTRATE04, SOUTH
DISTRICT, NEW DELHI
STATE VS. Amit Bhout
FIR NO: 125/17
P. S. S J Enclave
U/s 25/54/59 Arms Act
Crc/2018/2017
JUDGMENT
Sl. No. of the case : 35/3 (26.05.2017)
Name of the complainant : SI Gyanender Singh, Belt No.
D3378, then posted at PS
Sangam Vihar, New Delhi.
Date of Commission of offence : 31.03.2017
Name of the accused : Amit Bhout, S/o Sh. Jagdish,
GAURAV R/o H. NO. A61, Jawala Puri
Camp NO. 4, Near Udyog Nagar
Offence complained of
GUPTA :
Metro Station, New Delhi.
Section 25/54/59 Arms Act
Plea of accused :
Digitally signed by Not Guilty
GAURAV :GUPTA Not reserved
Case reserved for orders
Date: 2018.06.08
Final Order : Acquitted
13:03:49 +0530
Date of Judgment : 06.06.2018
BRIEF STATEMENT OF FACTS FOR THE DECISION:
1.This is the prosecution of the accused Amit Bhout pursuant to a charge sheet filed by the Police Station S J Enclave under section 25/54/59 Arms Act subsequent to the investigation carried out by them in FIR no. 125/17.
2. The prosecution case against the accused is this: On 31.03.2017 at 09:45 PM at JPN Trauma Centre, Zhandu Singh Marg, New Delhi, accused were found in possession of one country made pistol (katta) along with four live cartridge(s) in contravention of FIR no. 125/17 State Vs. Amit Bhout 1/7 Notification of Delhi Administration, thus committed an offence u/s 25/54/59 Arms Act.
3. On consummation of investigation and other formalities, charge sheet was submitted against the accused and the accused was indicted on charges under section 25/54/59 Arms Act. He pleaded not guilty and claimed trial.
4. The prosecution, to prove above charges against the accused, tendered oral as well as documentary evidence. In all three witnesses were examined. SI Gyanender Singh deposed as PW1. The witness exhibited site plan as Ex. PW1/A, arrest memo as Ex. PW1/B, personal search memo of accused as Ex. PW1/C, disclosure statement of accused as Ex. PW1/D, report from FSL as Ex. PW1/E, sanction u/s 39 Arms Act as Ex. PW1/F. He was cross examined by LD. Counsel for accused. PW2 SI Arvind Kumar along with SI Satender Khari has further investigated the matter. He was cross examined by LD. Counsel for accused. ASI Ashok Kumar deposed as PW3. He stated that on 31.03.2017, he alongwith SI Satender Khari, ASI Ram Kishan, ASI Veer Singh, SI Arvind Kumar, ASI Ravinder and Ct. Sonu were on patrolling duty, at about 9.00 pm one secret informer came to SI Arvind Kumar and informed that one person namely Amit carrying illegal arms. He further stated that SI Arvind Kumar shared the information with senior officials and thereafter, shared the information to the team. Thereafter, SI Arvind Kumar prepared a raiding party consisting of myself, the aforesaid police officials and secret informer. He further stated that they went to Choudhary Jhandu Singh Marg near JPN Trauma Center and after reaching there about 9.15 pm they put barricades on the road. He further stated that they all started checking the vehicles and at about 9.45 pm the accused came from Ring Road side on a white motorcycle of make TVS Apachi, SI Arvind gave signal to the team members and thereafter, he asked the accused to stop the vehicle. Immediately, he alongwith SI Arvind Kumar apprehended him. He further stated that SI Arvind Kmar conducted the search of the accused and found one pistol. He further stated that SI Arvind Kumar opened the aforesaid pistol and the same was found containing four live cartridges. He further stated that SI Arvind Kumar took the measurement of the same and prepared the sketch of the same, sketch is already Ex.PW2/A. He further stated that he seized FIR no. 125/17 State Vs. Amit Bhout 2/7 the same vide seizure memo already Ex.PW2/B. He further stated that he seized the motorcycle vide seizure memo already Ex.PW2/C and he prepared the rukka and handed over the rukka to him and thereafter, he left to the PS for registration of FIR. He further stated that he handed over the FIR to SI Gaynender Singh. Thereafter, SI Gyanander Singh interrogated the accused and thereafter, prepared the site plan at the instance of SI Arvind Kumar. He further stated that IO/ SI Gynander Singh recorded the statement of SI Arvind Kumar. He further stated that IO Gaynender Singh arrested the accused Amit vide arrest memo already Ex.PW1/B and personal search of the accused vide personal search memo already Ex. PW1/C, disclosure statement of accused is already Ex. PW1/D. The case property is already exhibited as Ex.X1.
5. Accused admitted the genuineness of copy of FIR, certificate u/s 65 B Evidence Act, DD NO. 14 dated 31.03.2017, FSL report dated 12.06.2017 and sanction u/s 39 Arms Act dated 04.07.2017 U/s 294 of the Criminal Procedure Code, 1973 (for short "the Code"). Statement of the accused was recorded U/s 281 of Code wherein all the incriminating circumstances was put to him which he denied and pleaded his false implication and also false plantation of the case property. He, however, chose not to lead defence evidence. Thereafter, final arguments were heard.
6. I have heard Ld. A.P.P. for State and Ld. Defence Counsel and carefully gone through the entire material available on record.
7. Ld. A.P.P. contended that prosecution has proved its case beyond shadow of doubt. He argued that all the material witnesses have entered into witness box and they have fully supported the prosecution's case. He further argued that minor contradictions are bound to appear in any criminal matter but in the case at hand, there is no material contradiction which may create any doubt about the authenticity or veracity of the prosecution case and all the documents have been duly proved.
8. On the other hand, Ld. Defence Counsel assailed the prosecution's case. It has been argued by him that there is no justification as to why independent witnesses were not FIR no. 125/17 State Vs. Amit Bhout 3/7 joined in investigation despite the fact that police was having prior information. He argued that there are material contradictions and discrepancies in the testimony of recovery witnesses and the case property has been planted upon the accused.
9. I have given my thoughtful consideration to the rival contentions and carefully perused the entire material available on record.
10. Admittedly, no public witness has been joined in investigation. Spot witnesses have mentioned that passersby were passing from the spot but none of them joined the recovery proceedings. The witnesses also admitted the presence of public persons. On appreciating the testimony of police witnesses, it is evident that they have not joined any independent public witness despite availability. Stereo type version churned by them does not inspire confidence. The record shows that no sincere efforts were made by the investigating officer to join independent witnesses. The police officials could have at least noted down the names of the persons who refused to join investigation or they should have made efforts to join some independent witness from the locality. They have very casually mentioned that passersby were requested to join investigation but they refused. In "Roop Chand Vs. State of Haryana" reported in 1999 (1) CLR 69, it has been held that such casual explanations that public persons refused to join the proceedings are unreliable. Similarly, in "Pradeep Narayan Vs State of Maharashtra" reported in AIR 1995 S.C. 1930, it was observed that failure of police to join witness from locality during search creates doubt about fairness of the investigation and the benefit of the same has to be given to the accused.
11. Statutory desirability in the matter of search and seizure is that there should be support from unbiased and neutral corner. The search before an independent witness imparts much more authenticity and credit worthiness to the search and seizure proceedings. Such safeguard is intended to avoid criticism of arbitrary and highhanded action against police officers. This is to lend credibility to the procedure relating to search and seizure. Indubitably, if the evidence of the official witnesses is found to be credible and coherent, same can alone prove to be foundation for conviction and normally, FIR no. 125/17 State Vs. Amit Bhout 4/7 prosecution case cannot be thrown away straightaway merely because chief plank of evidence is that of official witnesses. It puts the court on guard and the testimony of such official witnesses is, in such a situation, liable to be scrutinized with extra caution. Simultaneously, prosecution has to offer satisfactory explanation for not associating independent witnesses and more so, when they were available right at the elbow. In such a situation, courts are fully justified in finding out the reasons as to why no such person came forward and whether the investigating agency did its best to persuade independent persons. In the case of "Pawan Kumar Vs The Delhi Administration"
1989 Crl LJ 127 Delhi, it has been observed and held that "there is no impediment in believing the version of the police officials but for that the prosecution has to lay a good foundation. At least one of them should have deposed that they tried to contact the public witnesses or that they refused to join the investigation. Here is a case where no effort was made to join any public witness even though number of them were present. No plausible explanation from the side of the prosecution is forthcoming for not joining the independent witnesses in case of a serious nature like the present one. It may be that there is an apathy on the part of the general public to associate themselves with the police raids or the recoveries but that apart, at least the IO should have made an earnest effort to join the independent witnesses. No attempt in this direction appears to have been made and this, by itself, is a circumstance throwing doubt on the arrest or the recovery of the knife from the person of the accused" .
12. Even when police come across any such offender by chance, it should not waste even a single second to call for corroboration from independent source more so when such persons are available to the police team right at its elbow. Onus would be on the prosecution to establish that the association of such persons was not possible on the facts and circumstances of a particular case. The search before an independent witness would impart much more authenticity and creditworthiness to the search and FIR no. 125/17 State Vs. Amit Bhout 5/7 seizure proceedings. It would also strengthen the prosecution case. The said safeguard is also intended to avoid criticism of arbitrary and highhanded action against police officers. This is to lend credibility to the procedure relating to search. That being so, the authorized officer must follow the reasonable, fair and just procedure scrupulously and the failure to do so must be viewed with suspicion. The legitimacy of the judicial process may come under cloud if the Court is seen to condone acts of violation of such safeguards which may also undermine respect for law. There is nothing on record to demonstrate that any genuine effort was made by the police officials to join an independent witness.
13. Record shows that there was ample time with the police officials to join an independent witness in the investigation. It is not the prosecution's case that no public witness was available at the spot. All the spot witnesses have categorically admitted that public persons were passing from the spot. Inspite of the said fact, no efforts were made by them to join an independent person in the investigation. The investigating officer has not joined any independent public witness despite availability. The safeguard provided under section 100 (4) Cr PC is not a mere formality. It is meant to ensure that credibility can be attached to the recovery proceedings. Failure to comply with the said provisions despite the fact that public persons were easily available at the spot is fatal for the prosecution's case.
14. PW2 SI Arvind mentioned that seal, after use, was handed over to ASI Ashok who was also part of the same raiding team. Admittedly, no handing over memo of seal was prepared. Further, case property is stated to have been seized prior to the registration of FIR but the FIR NO. 125/17 finds mention in the seizure memo which implies that same was added later on. Due to this the veracity of seizure memo comes under scanner.
15. Further, the prosecution also failed to rule out the misuse of seal as it was held in Karnataka vs. State of Delhi 1997 JCC 520 that if IO does not say or if it is not proved that specimen impression of the seal was deposited with MHC (M) along with FIR no. 125/17 State Vs. Amit Bhout 6/7 case property, it will result in miscarriage of justice and is fatal to the prosecution case.
16. Further, as per the case of prosecution, IO SI Gyanender Singh, prepared the site plan at the spot at the instance of SI Arvind. However, perusal of site plan would show that same does not bear the signatures of SI Arvind. Further, as per prosecution story, after seizure of case property, SI Arvind sent ASI Ashok with rukka for registration of case. After registration of FIR, IO SI Gyanender Singh interrogated the accused, prepared the site plan and recorded statement of SI Arvind at the spot. However, in his cross examination, SI Arvind stated that he had already left the spot by the time ASI Ashok returned to the spot with copy of FIR. This coupled with the fact that site plan does not bear his signatures, raises serious doubts with regard to presence of SI Arvind at the spot and hence, weakens the entire case of the prosecution.
17. Record shows that there are number of infirmities in the version of prosecution and missing links which creates doubt. I find it to be a fit case where the accused should be granted benefit of doubt. Accordingly, accused Amit Bhout is granted benefit of doubt and he stands acquitted of the charge under Section 25/54/59 Arms Act. He is set at liberty. Bail bonds U/s 437 A of Cr.PC is furnished and accepted for a period of 6 months.
18. File be consigned to record room after necessary compliance.
Announced in the open court (Gaurav Gupta) on 06.06.2018 MM04, South, New Delhi
It is certified that this judgment contains 7 pages and each page bears my signatures.
(Gaurav Gupta)
MM04, South, New Delhi/ 06.06.2018
FIR no. 125/17 State Vs. Amit Bhout 7/7