Delhi District Court
State vs Manoj Tyagi @ Monu on 23 June, 2020
IN THE COURT OF Ms. PRIGYA GUPTA
METROPOLITAN MAGISTRATE 08 (CENTRAL)
TIS HAZARI COURTS : DELHI
*****
JUDGMENT
FIR No.: 71/2014 Police Station: Kamla Market U/s 25 Arms Act Case No.297303/16 State Versus Manoj Tyagi @ Monu S/o Late Sh. Rajinder Singh R/o H.No. B92, Gali No.5, East Vinod Nagar, Delhi .... Accused
(a) Date of Institution: 10.03.2015
(b) Date of Offence: 28.02.2014
(c) Plea of accused: Pleaded not guilty and claimed trial
(d) Argument heard and reserved for order: 12.03.2020
(e) Final Order: Acquittal
(f) Date of Judgment: 23.06.2020 Brief statement of reasons for decision of the case:
1. The case of the prosecution against the accused is that on 28.02.2014 at about 03:50 pm at Fasil Road, behind Kotha No.54, GB Road, Delhi, accused Manoj Tyagi @ jMonu was found in possession of one countrymade revolver alongwith six live cartridges without any license or permit in contravention to the provisions of Section 3 of Arms State vs. Manoj Tyagi FIR No. 71/14 U/s 25 Arms Act PS Kamla Market Pages 1 of 11 Act. On the said allegations, the accused was charged with the offence under Section 25 Arms Act.
2. After investigation, chargesheet was filed against the accused. The copy of chargesheet was supplied to the accused in compliance of Section 207 Cr.P.C. Thereafter, charge was framed against the accused under Section 25 Arms Act to which he pleaded not guilty and claimed trial. Subsequently, prosecution evidence was led and in support of it's version, the prosecution examined five witnesses.
After the conclusion of the prosecution evidence, statement of accused was recorded separately wherein accused claimed to be innocent and denied allegations against him. Accused opted to lead Defence Evidence.
Appreciation of evidence
3. Having heard the learned APP for the State and learned counsel for the accused, I have also perused the entire record meticulously. A detailed scrutiny of the testimonies of the prosecution witnesses has been done and is hereby discussed in detail.
PW1 Ct. Anand has deposed that on 14.03.2014 on the instruction of IO, he took the exhibits of the case, RC number 27/14 dated 14.03.2014 to FSL Rohini. He deposited the said exhibits in FSL Rohini and returned back to the PS and handed over the acknowledgment receipt to MHC (M) CP HC Brij Mohan. He has also stated that during the period when the said exhibits remained in his custody, he did not do any type of tampering with the said exhibits. The copy of RC is Mark 1A. State vs. Manoj Tyagi FIR No. 71/14 U/s 25 Arms Act PS Kamla Market Pages 2 of 11 PW2 ASI Pradeep Kumar has deposed that on 28.02.14, he alongiwth ASI Pramod Kumar, HC Naaresh, Ct. Ravinder and Ct. Pradeep were present at G.B. Road, near Hanuman Mandir in a investigation of a case FIR No.63/14, PS Kamla Market. At about 3:30 p.m., ASI Pramod Kumar received secret information through informer that three boys will come at Fazil Road, behind Kotha No. 54, GB Road, with having a looted revolver to see the same. The information was shared by ASI Pramod with other staff. ASI Pramod informed to SHO, who instructed to take necessary action. ASI Pramod Kumar requested 34 passersby to join police party but they declined and went away without disclosing their names and addresses. Thereafter, they all above police officials alongwith secret informer reached at Shahganj Chowk. At about 3:50 p.m., three persons came from Shahgan Chowk side and they were apprehended behind kotha no.54, Fasil Road, at the instance of secret informer. The name of those persons were revealed as Manoj, Mohit and Vishal. On the cursory search of all three persons, one countrymade revolver was recovered from left dub and six live cartridges were recovered from right side pocket of the trouser of accused Manoj. IO ASI Pramod prepared the sketch of recovered countrymade revolver and cartridges, the same is Ex. PW2/A. The countrymade revolver and all cartridges were measured. The total length of countrymade revolver was found to be 22.5 cm, length of barrel was 12 cms and butt of the same was 9.5 cm. The length of each cartridge was 3.2 cm. IO ASI Pramod Kumar, put the recovered countrymade revolver and all six cartridges in a plastic box and sealed the same with the seal of PK vide memo Ex.PW2/B. The seal after use was handed over to Ct. Ravinder. IO SI Pramod Kumar prepared rukka State vs. Manoj Tyagi FIR No. 71/14 U/s 25 Arms Act PS Kamla Market Pages 3 of 11 and handed over to Ct. Ravinder for registration of FIR. Ct. Ravinder reached at PS and got registered the case. After sometime, Ct. Ravinder alongwith HC Anil Kumar came at the spot. The further investigation was marked to HC Anil Kumar. ASI Pramod Kumar handedover the case property i.e., sealed pullandas, relevant documents and custody of accused Manoj to HC Anil Kumar by narrating all the entire facts to HC Anil Kumar. HC Anil Kumar inspected the site and prepared the site plan. Accused Manoj Tyagi was arrested and personal search was carried out vide memo Ex.PW2/C and Ex.PW2/D respectively. The accused was interrogated and his disclosure statement was recorded vide Ex.PW2/E. Accused persons namely Manoj, Mohit and Vishal had disclosed that they had robbed the above revolver at Indian Oil Petrol Pump, NH24, Mayur Vihar, PhaseII, from the person who were traveling in a car. On inquiry, it was revealed that at PS Kalyanpuri, a separate case of robbery of revolver was registered. The accused persons Manoj, Mohit and Vishal were arrested by ASI Pramod in a kalandara u/s. 41.1 (a) Cr.P.C. as they had disclosed the commission of robbery of recovered countrymade revolver. IO ASI Pramod Kumar had informed to PS Kalyanpuri for the same. Accused Manoj Kumar was got medically examined at LNJP Hospital and case property was deposited in Malkhana. He has identified the case property i.e., revolver and cartridges which is Ex.P1 (colly).
PW3 SI Pramod Kumar deposed the same facts as deposed by PW2 ASI Pradeep Kumar.
PW4 HC Anil Kumar deposed that on 28.02.2014 further investigation of the present case was marked to him whereby Ct. Ravinder handed over him original rukkka and copy of FIR. Thereafter, State vs. Manoj Tyagi FIR No. 71/14 U/s 25 Arms Act PS Kamla Market Pages 4 of 11 he alongwith Ct.Ravinder went to the spot i.e., behind Kotha No.54, Fazil Road, GB Road, Delhi, where ASI Pramod, HC Naaresh, HC Pradeep, Ct. Pradeep met him and accused ManojTyagi was also present with his associates accused Vishal Gupta and Mohit. ASI Pramod handed over him sketch and seizure memo of the countrymade revolver and cartridges and custody of accused Manoj Tyagi by narrating all the entire facts. He inspected the site at the instance of ASI Pramod and prepared site plan Ex.PW3/B. Thereafter, he interrogated the accused and his disclosure statement was recorded vide Ex.PW2/E. Accused was arrested vide memo Ex. PW 2/C and conducted his personal search vide memo Ex. PW2/D. Case property was deposited in Malkhana. He recorded the statement of witnesses. He collected the certificate u/s 65 B Evidence Act and copy of DD NO.11A dated 28.02.2014. On 14.03.2014, the exhibits i.e., countrymade revolver and cartridge were sent to CFSL through Ct. Anand. He collected the FSL report Ex. PW4/A. Thereafter, he obtained the sanction u/s 39 Arms Act, which is Ex. PW4/B. He collected the photocopy of Kalandara under Section 41.1 Cr.P.C and its entire documents as the accused Manoj Tyagi, Mohit Aggarwal and Vishal Gupta were arrested by ASI Pramod in said Kalandara. The photocopy of the documents of the said Kalandara is Mark X (colly). After completion of investigation chargesheet was prepared and filed in the Court.
PW5 ASI Naresh Kumar deposed the same facts as deposed by PW2 ASI Pradeep Kumar and PW3 SI Pramod Kumar.
4. It is pertinent to mention here that vide statement u/s 294 CrPC, accused admitted the factum of FIR No. 71/14, PS Kamla Market, DD State vs. Manoj Tyagi FIR No. 71/14 U/s 25 Arms Act PS Kamla Market Pages 5 of 11 NO. 11A dated 28.02.2014, certificate u/s 65 B Indian Evidence, FSL report dated 28.05.2014 and sanction under Section 39 Arms Act dated 06.08.41 and stated that he has no objection if the witness qua these facts may be dropped.
5. It is a settled proposition of criminal law that prosecution is supposed to prove its case on judicial file beyond reasonable doubt by leading reliable, cogent and convincing evidence. Further it is a settled proposition of criminal law that in order to prove its case on judicial file, prosecution is supposed to stand on its own legs and it cannot derive any benefit whatsoever from the weaknesses, if any, of the defence of the accused. Further it is a settled proposition of criminal law that burden of proof of the version of the prosecution in a criminal trial throughout the trial is on the prosecution and it never shifts on to the accused. Also, it is a settled proposition of criminal law that accused is entitled to the benefit of every reasonable doubt in the prosecution story and such reasonable doubt entitles the accused to acquittal.
6. Evaluating the facts and evidence, in light of the above said edicts, I proceed further to deliberate on various facets, dealing with one at a time. First of all, it comes out that no independent witness was joined in the investigation. The hon'ble supreme court in STATE OF PUNJAB V. BALBIR SINGH AIR 1994 SC 1872, held that :
"It therefore emerges that noncompliance of these provisions i.e. Sections 100 and 165 Cr.P.C. would amount to an irregularity and the effect of the same on the main case depends upon the facts and circumstances of each case. Of course, in such a situation, the court has to consider whether any prejudice has been caused to the accused and also examine the evidence in respect of search in the light of the fact that these provisions have not been complied with and further consider whether the weight of evidence is in any manner affected because of the noncompliance. It is wellsettled that the testimony of a witness is not to be doubted or discarded merely on the ground that he happens to be an official but as a rule of caution and State vs. Manoj Tyagi FIR No. 71/14 U/s 25 Arms Act PS Kamla Market Pages 6 of 11 depending upon the circumstances of the case, the courts look for independent corroboration. This again depends on question whether the official has deliberately failed to comply with these provisions or failure was due to lack of time and opportunity to associate some independent witnesses with the search and strictly comply with these provisions. [Emphasis supplied]"
7. Considering facts and circumstances of the present case, there was no lack of time and opportunity to associate some independent witnesses with the search and strictly comply with the provisions of code of criminal procedure. Merely mentioning that public persons were requested to join the investigation is of no avail. Name of those persons are not mentioned. It is not mentioned as to what action was taken against those persons who refused to join the investigation.
8. As per the testimonies of PW2 ASI Pradeep Kumar, PW3 SI Pramod Kumar and PW5 ASI Naresh Kumar, it was sought to be shown by the prosecution that during the investigation, PW3 SI Pramod Kumar had asked numerous passersby to join the police party, but none of them agreed to join the investigation.
Now as per material on record, it is clear that no serious attempt was made by the concerned police officials to get independent public persons to join the police proceedings of investigation despite availability of such witnesses.
Believing the depositions of PW2, PW3 and PW5 if members of the public had in reality refused to assist the members of the raiding party, they could have served the said passerby/public witnesses with a notice in writing to join the police proceedings since after the apprehension of the accused, there was no possibility of accused escaping his arrest or crime going undetected, but admittedly no action State vs. Manoj Tyagi FIR No. 71/14 U/s 25 Arms Act PS Kamla Market Pages 7 of 11 was taken against such members of the public by PW3 ASI Pramod Kumar. At least in these facts and circumstances of the case, in my opinion, the police officials concerned must have asked the passersby/public persons available at the spot of the apprehension & search of the accused by serving them a notice in writing and further in case of their refusal, the concerned police people must have taken action against them under Section 187 IPC. Secondly, another essential circumstance is that the seal, after use, was not handed over to any independent person. As comes out from the testimony of PW2, PW3 and PW5 seal i.e. " PK" after use on the pullanda containing the case property allegedly recovered from the accused was given to none else but to Ct Ravinder by the IO. Apparent it is, that no efforts were made to hand over the seal to an independent person.
I am conscious of precedent laid down by Hon'ble Delhi High Court in Safiullah v. State, 1993 (1) RCR (Criminal) 622, that:
"10. The seals after use were kept by the police officials themselves. Therefore the possibility of tampering with the contents of the sealed parcel cannot be ruled out. It was very essential for the prosecution to have established from stage to stage the fact that the sample was not tampered with. ..... Once a doubt is created in the preservation of the sample the benefit of the same should go to the accused."
Hon'ble Punjab & Haryana High Court also held in "Ramji Singh v. State of Haryana", 2007 (3) RCR (Criminal) 452, that the very purpose of giving seal to an independent person is to avoid tampering of the case property. The case property was lying in the Maalkhana of the same police station where the police officials having the possession of seal were posted. There were ample opportunity for tampering with the case property. Hence, considering the legal position, the benefit of doubt should be given to the accused.
State vs. Manoj Tyagi FIR No. 71/14 U/s 25 Arms Act PS Kamla Market Pages 8 of 11 The PW2 and PW3 must have offered their personal search to some independent witness. However, no such precaution was taken by PW2 and PW3 the doubt as to the false plantation of the case property cannot be ruled out. In "S. L. Goswami vs. State of M. P", 1972, Cri.L.J 511 (SC), the Hon'ble Supreme Court held:
"... in our view, the onus to proving all the ingredient of an offence is always upon the prosecution and at no stage does it shift to the accused. It is no part of the prosecution duty to somehow hook the crook. Even in case where the defence of the accused does not appear to be credible or is palpably false that burden does not become any the less. It is only when this burden is discharged that it will be for the accused to explain or controvert the essential elements in the prosecution case, which would negative it. It is not however for the accused even at the initial stage to prove something which has to be eliminated by the prosecution to establish the ingredient of the offence with which he is charged, and even if the onus shifts upon the accused and the accused has to establish his plea, the standard of proof is not the same as that which vests upon the prosecution..."
Besides all this, in the present case, the aforesaid lapse on the part of police officials assumes significance on account of another grave contradiction apparent in the document Ex.PW2/A. The sketch memo of the knife Ex.PW2/A and seizure memo Ex.PW2/B bears the number of FIR. As per the rukka and testimony of witnesses, the sketch memo of the revolver and seizure memo was prepared prior to registration of FIR. If that be so then how Ex.PW2/A and Ex. PW2/B bear the FIR number. Now, I consider the observation made by Hon'ble Delhi High Court in Giri Raj v. State, 83 (2000) DLT 201. This gives rise to two inferences that either the FIR was recorded prior to the alleged recovery of the case property or number of the said FIR was inserted in the document after its registration. In both the situations, it seriously reflects upon the veracity of the prosecution version and creates a good deal of doubt about the recovery of the case property in the manner alleged by the prosecution. That being so, the benefit arising out of such a situation must necessarily go to the accused.
State vs. Manoj Tyagi FIR No. 71/14 U/s 25 Arms Act PS Kamla Market Pages 9 of 11 In this regard, reference can is also made to the judgment of Hon'ble High Court of Delhi in case titled as "Mohd Hasim V/s State"
1999 VI AD (Delhi) 569 wherein it was observed:
"...documents prepared before registering the FIR bears FIR numbers, meaning thereby either FIR was recorded posterior in time or that documents were prepared after the recording of FIR, and in both cases, prosecution case would collapse."
It raises doubt that the entire paper work was done by the police officials at Police Station itself. It further strengthens the doubt of false implication of the accused.
This also raises doubt about the recovery of the said case property from the present accused and strengthens the possibility of planting of the case property upon the accused.
The onus and duty to prove the case against the accused was upon the prosecution and the prosecution must establish the charge beyond reasonable doubt. It is also a cardinal principle of criminal jurisprudence that if there is a reasonable doubt with regard to the guilt of the accused is entitled to benefit of doubt resulting in acquittal of the accused. Reference may also be made to the judgment titled as Nallapati Sivaiah v. Sub Divisional Officer, Guntur reported as VIII(2007) SLT 454(SC).
In view of above said discussion, the prosecution has failed to prove the guilt of the accused beyond reasonable doubt. Accordingly, I acquit the accused Manoj Tyagi @ Monu of the charges framed in the present case. Case property be confiscated to the State. Same be State vs. Manoj Tyagi FIR No. 71/14 U/s 25 Arms Act PS Kamla Market Pages 10 of 11 destroyed. File be consigned to Record Room subject to compliance of section 437A Cr.PC.
Announced in the open court (PRIGYA GUPTA)
on 23.06.2020 Metropolitan Magistrate12
Central District, Tis Hazari Courts/Delhi
State vs. Manoj Tyagi
FIR No. 71/14
U/s 25 Arms Act
PS Kamla Market
Pages 11 of 11