Delhi District Court
State vs . Sanjeev Kumar on 5 June, 2023
IN THE COURT OF MS. T. PRIYADARSHINI
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE
SOUTH DISTRICT, SAKET COURTS, NEW DELHI
CR CASE/1880/2019
STATE Vs. SANJEEV KUMAR
State vs. Sanjeev Kumar
FIR No. 03/2018
Police Station : INA Metro
Under Section : 25/54/59 Arms Act
Date of institution : 26.03.2019
Date of reserving : 03.06.2023
Date of pronouncement : 05.06.2023
JUDGMENT
a) Serial number of the case : 1880/2019 b) Date of commission of : 18.02.2018 offence c) Name of the complainant : ASI Sunil Chander
d) Name, parentage and address : Sanjeev Kumar
of the accused S/o Sh. Kishan Lal, R/o D-
II/60, Servant Quarter, West
Kidwai Nagar, New Delhi.
e) Offence complained of : 25/54/59 Arms Act
f) Plea of the accused : Accused pleaded not guilty
g) Final order : Acquitted
h) Date of final order : 05.06.2023
State vs. Sanjeev Kumar FIR No. 03/2018, PS: Saket Page 1 of 10
BRIEF STATEMENT OF FACTS FOR THE DECISION
CASE OF THE PROSECUTION
1. It is the case of the prosecution that on 18.02.2018, ASI/Exe. Sunil Chander (CISF) was detailed as shift Incharge at INA Metro Station with duty hours 07:00 am to 02:00 pm. At about 09:34 am, a passenger namely Sanjeev Kumar for screening, put his black colour bag in X-BIS Machine of south side. While screening, Ct/GD SK Chauhan (CISF) detected some round thing in said bag and informed the same to ASI/Exe. Sunil Chander. Thereafter, from north side security, he reached at the spot and informed the matter with senior officials and took said passenger to station control room. Thereafter, INA station controller called DMRP and HC/DP Rajesh Kumar reached at said control room. The passenger Sanjeev Kumar along with said live round thing was handed over to police officials for further action.
CHARGE
2. Vide order dated 30.05.2019, charge for the offence punishable under Section 25/54/59 Arms Act was framed against the accused, who pleaded not guilty and claimed trial.
ADMISSION/DENIAL OF DOCUMENTS
3. Vide order dated 04.05.2023, in compliance to the provisions of Section 294 of the Code of Criminal Procedure, 1973 (hereinafter "the Code"), the accused admitted the genuineness of i) Endorsement by the DO; ii) The present FIR;
State vs. Sanjeev Kumar FIR No. 03/2018, PS: Saket Page 2 of 10iii) Certificate under Section 65B Indian Evidence Act; iv) DD No. 9 dated 18.02.2018; v) DD No. 7 dated 21.02.2018; vi) DD No. 9 dated 21.02.2018; vii) Sanction permission u/ 39 Arms Act;
viii) FSL Report and ix) CCTV footage in CD and certificate u/s 65B Indian Evidence Act of SI Pushpender Singh, CISF. The accused admitted the above said documents, which are Ex A1 to A9.
EVIDENCE OF THE PROSECUTION
4. Prosecution has examined total four witnesses i.e. PW1 ASI/Exe. Sunil Chandra (the complainant), PW2 HC Sanjeev Chauhan, PW3 Vaishali and PW4 ASI Rajesh Kumar[the investigating officer (IO)] .
5. PW1/Complainant ASI/Ex. (CISF) Sunil Chandra was posted at DMRC. He deposed that on 18.02.2018, he was shift Incharge at INA Metro Station, when between 09:30 to 09:45 am, a passenger namely Sanjeev Kumar placed his bag in X-BIX Machine for scanning, the checking officer Ct SK Chauhan saw some round line on the screen. Thereafter, he called the complainant at the spot, who thereafter, shared said information to senior officer. Thereafter, they along with said passenger went to the Station Control Room of INA Metro Station and checked the bag of passenger and found one live cartridge. Thereafter, HC Rajesh Kumar reached to said control room who was handed over the accused along with live cartridge. Subsequently, he gave written complaint to police officials who prepared sketch of live cartridge, made pulanda of the same, sealed it with seal of RK and seized the same. IO also interrogated the accused and State vs. Sanjeev Kumar FIR No. 03/2018, PS: Saket Page 3 of 10 prepared the report on the same. Witness correctly identified the accused in court. The witness was duly cross-examined by the Ld. Defence Counsel.
6. PW2 HC Sanjeev Kumar (CISF), deposed that on 18.02.2018, he was posted at INA Metro Station with duty hours 07:00 am to 02:00 pm on south side X-ray machine. While checking, he saw one cartridge type article on monitor screen in one black bag which was placed in machine by one person. Thereafter, he stopped the bag and its owner Sanjeev Kumar there and verified the ownership of the said bag. When asked about the articles in the bag, he showed one live cartridge by taking it out of the bag and handed over the same to the witness. PW2 disclosed the same to shift in-charge ASI Sunil Chandra and handed him over the alleged person with live cartridge and left for control room. PW2 shared this information with senior officials and the controller gave information to PS INA Metro. Further, police officials reached there who were handed over the alleged person along with his bag and live cartridge and they recorded statements with regard to the same. Witness correctly identified the accused and also identified the cartridge. The witness was duly cross-examined by the Ld. Defence Counsel.
7. PW3 Vaishali was posted as Controller in DMRC at INA Metro Station. On 18.02.2018, her duty hours were 07:00 am to 03:00 pm, when shift Incharge ASI Sunil Chandra and Ct Sanjeev Kumar Chauhan brought one person with one live cartridge and they informed local police regarding the matter. Police officials after reaching there, were handed over the live cartridge and alleged person. Witness did not identify the accused State vs. Sanjeev Kumar FIR No. 03/2018, PS: Saket Page 4 of 10 due to lapse of four years. The witness was duly cross-examined by the Ld. Defence Counsel.
8. PW4 ASI Rajesh Kumar, deposed that on 18.02.2018, on receipt of DD No. 9, he along with Ct Pradeep went to INA Metro where in controller room, they met Ct Sanjeev Kumar Chauhan from CISF, DMRC controller Vaishali, shift incharge ASI Sunil Chandra with one boy, from whose possession one live cartridge was recovered. Thereafter, ASI Sunil hand over his written complaint to PW4. PW4 prepared the sketch of the live cartridge, noted down its measurements, made pulanda, sealed the same with seal of RK and seized it. He also seized one bag, filled form of FSL, handed over the seal to Ct Pradeep after its use, prepared rukka, handed over the same to Ct Pradeep for FIR registration and sent him to PS. After registration, the further investigation was marked to PW4, who prepared site plan, gave application for collecting CCTV footage, interrogated the accused, recorded his disclosure statement, served notice u/s 41A and bound down the accused. Thereafter, PW4 recorded statement of witnesses u/s 161 CrPC, deposited the case property in the malkhana, deposited the pulanda before FSL Rohini, collected the expert report and CCTV footage of the spot along with Certificate u/s 65B Indian Evidence Act. He also obtained permission u/s 39 Arms Act and placed the same on record and after preparing the charge-sheet, filed the same in this court. He correctly identified the accused and also identified one CD along with certificate u/s 65B Indian Evidence Act in court. The witness was duly cross-examined by the Ld. Defence Counsel.
State vs. Sanjeev Kumar FIR No. 03/2018, PS: Saket Page 5 of 10STATEMENT / DEFENCE OF THE ACCUSED
9. In his statement recorded under Section 313 of the Code, the accused denied the entire evidence against him. He further stated that he is innocent and has been falsely implicated in this case. Accused did not lead any evidence in his defence.
ANALYSIS AND FINDINGS
10. The record has been thoroughly and carefully perused. The respective submissions of Sh. Rajat Bansal, Ld. Assistant Public Prosecutor for State and Sh. Likhil Nagar, Ld. LAC for the accused have been considered.
11. It is settled proposition of criminal law that the prosecution is supposed to prove its case beyond reasonable doubts by leading reliable, cogent and convincing evidence. The prosecution is supposed to stand on its own legs and it cannot derive any benefit whatsoever from the weaknesses, if any, in the defence of the accused. Also, the accused is entitled to the benefit of every reasonable doubt in the prosecution story and such doubt entitles the accused to acquittal.
12. There are various lapses in the investigation w.r.t. recovery of the cartridge from the accused which can be evidenced from the testimonies on record. The inconsistencies or contradictions are listed below:
a) PW3 Vaishali who was posted as Controller in DMRC at INA Metro Station has deposed that shift incharge ASI Sunil Chandra and Ct. Sanjeev Kumar Chauhan brought one person State vs. Sanjeev Kumar FIR No. 03/2018, PS: Saket Page 6 of 10 along with one live cartridge. However, she has not identified the accused. Further, the recovery was not effected in her presence.
The recovery was effected by HC Sanjeev Kumar (PW2).
b) The DD entry made by the police officials while arriving at the PS is not placed on record. None of the witnesses have brought on record, their duty roster. PW4 ASI Rajesh Kumar in his cross-examination deposed that he made the DD Entry while arriving at the P.S. However, he could not recollect the DD Number. Therefore, prosecution has failed to produce any documentary evidence or the DD entries made by PW4 (the IO who conducted the investigation) to show his movement from the police station. These omissions on the part of the prosecution create doubt on the version that the accused was apprehended with the cartridge by the said PW. Further, no DD entry regarding the deposit of sealed parcel with Malkhana was made. It further substantiates the observation that nothing was recovered at the spot and that the alleged recovery was planted upon the accused. All the lapses in investigation creates doubt on the very recovery of the cartridge from the possession of the accused.
c) All the witnesses are police officials. The IOs have not made any public person as witness in this case. PW4 ASI Rajesh Kumar admitted that notice was not served to any public witness. The non-joining of the public witness creates doubt on the story of the prosecution, as held in Pawan Kumar vs. Delhi Administration, 1987 CC 585, Delhi High Court. Also, no reason as to why no public witness could be found has been put forth by the prosecution. All the witnesses examined are police State vs. Sanjeev Kumar FIR No. 03/2018, PS: Saket Page 7 of 10 witnesses. This casts a doubt about the sincere efforts made by the IO to join independent witnesses.
d) Section 100(4) of the Code provides that "before making a search of the officer or other person about to make it shall call upon the two or more independent and respectable inhabitants of the locality in which the place to be searched is situated or any other locality if no such inhabitant of the said locality is available or is willing to be a witness of the search, to attend the witness the search and may issued an order in writing to them or any of them so to do." In the present case, the IO has even failed to note down the particulars of the person who refused to join the investigation and this creates doubt regarding the fairness of the investigation. The chances of false implication cannot be ruled out.
e) As per the testimony of PW4 ASI Rajesh, the cartridge was recovered from the accused and he made a sketch measurements of the same. He also deposed that seal was given to Ct. Pradeep and was taken back from him later. However, the witness could not recollect the date and time of said handover. Further, no handing over memo regarding the same was prepared. The seal in the present case was not handed over to any independent witness nor there is any handing over memo to prove that it was deposited in the malkhana to assail the possibility of its misuse. None of the witnesses are able to depose as to when the seal was handed over. Thus, the possibility that the case property may have been tampered with cannot be ruled out.
State vs. Sanjeev Kumar FIR No. 03/2018, PS: Saket Page 8 of 10f) It has also been noticed that the recovery memo documents were prepared before the registration of FIR. The prosecution has not offered any explanation whatsoever as to under what circumstances number of FIR has appeared on the top of the aforesaid documents, which were allegedly prepared on the spot before the registration of the FIR. This gives rise to two inferences that either the FIR was recorded prior to the alleged recovery of the live cartridge or number of the said FIR was inserted in these documents after its registration. In both the situations, it seriously reflects upon the veracity of the prosecution version given by the aforesaid witnesses and creates a good deal of doubt about the recovery in the manner alleged by the prosecution. Reliance may be had to the decision of the Delhi High Court in Lalji Shukla vs. State [(Delhi) 2000 (1) R.C.R. (Criminal) 305].
13. In the case at hand, all the lapses in investigation casts a doubt on the very recovery of the live cartridge from the possession of the accused. The court is of the considered view that prosecution has not been able to prove the guilt of the accused and has failed to prove its case beyond reasonable doubt. Accused Sanjeev s/o Kishal Lal is acquitted under Section 25/54/59 of the Arms Act.
14. Accused has furnished bail bonds under Section 437A of the Code. Previously furnished bail bond stands cancelled and surety be discharged, if any. Documents, if any, be returned to the rightful person against receiving and after cancellation of endorsement, if any. Superdari, if any, stands cancelled.
State vs. Sanjeev Kumar FIR No. 03/2018, PS: Saket Page 9 of 1015. File be consigned to the Record Room after due compliance.
Dictated and announced in open Court on 05.06.2023.
Digitally signed by T. T. PRIYADARSHINI
PRIYADARSHINI
Date: 2023.06.06
16:04:22 +0530
(T. Priyadarshini)
Additional Chief Metropolitan Magistrate South District, Saket Courts, New Delhi 05.06.2023 State vs. Sanjeev Kumar FIR No. 03/2018, PS: Saket Page 10 of 10