Delhi District Court
State vs . Bhuri @ Vipin & Anr. on 16 November, 2022
IN THE COURT OF MS. ARCHANA BENIWAL
CHIEF METROPOLITAN MAGISTRATE:
SOUTH WEST DISTRICT, DWARKA COURT,
NEW DELHI
FIR No. 186/2018
PS Crime Branch
State Vs. Bhuri @ Vipin & Anr.
U/s 25 Arms Act
JUDGMENT
CIS No. : 31948/2018
Date of institution of the case : 19.12.2018
Date of commission of offence : 20.07.2018
Name of the complainant : HC Jitender
No. 142/Crime,
PS Crime Branch, Delhi.
Name of accused and address : (1) Bhuri @ Vipin
S/o Sh. Mahender
R/o 178/4, Ward No.2, Mehrauli,
New Delhi-30
(2) Babloo @ Akshay
S/o Sh. Raju
R/o F-617, Dakshin Puri, Ambedker
Nagar, Sector-5, New Delhi-62
Offence complained of : U/s 25 Arms Act
Plea of the accused : Pleaded not guilty.
Final order : Acquittal.
Date on which judgment reserved : 01.11.2022
Date of judgment : 16.11.2022.
FIR No. 186 of 2018, PS Crime Branch
State Vs. Bhuri @ Vipin & Anr. Page No. 1 of 12
BRIEF STATEMENT OF THE FACTS FOR DECISION:
1. The brief facts of the case of the prosecution are that on 20.07.2018, at about 12:40 PM, on the road leading towards Dwarka Mod, at a distance of about 50 meters from NSIT, New Delhi, accused Bhuri @ Vipin was apprehended carrying one country made pistol loaded with two live cartridges and accused Babloo @ Akshay was found carrying two live cartridges without having any valid Arms License for possessing the same, in contravention to the notification issued by Govt. of Delhi. FIR was registered against them.
2. IO conducted the investigation. After completion of the investigation, charge-sheet was filed against accused Bhuri @ Vipin and Babloo @ Akshay u/s 25 Arms Act. Cognizance of offence was taken and accused Bhuri @ Vipin and Babloo @ Akshay were summoned to face trial. The copy of chargesheet was supplied to them under section 207 Cr.P.C.
3. After giving opportunity to State as well as accused persons for making submissions on charge, a formal charge for offence u/s 25 Arms Act was framed against accused Bhuri @ Vipin and Babloo @ Akshay to which they pleaded not guilty and claimed trial.
4. The prosecution, in support of its case, has examined four witnesses.
5. PW-1 ASI Pardeep has deposed before the court that on 20.07.2018, at around 10:15 AM, a secret informer came to the office and informed HC Jitender that two persons who were involved in a shoot out in Mehrauli and were wanted in a case, would go towards Dwarka Mod, NSIT FIR No. 186 of 2018, PS Crime Branch State Vs. Bhuri @ Vipin & Anr. Page No. 2 of 12 at around 12:30 P.M., on one blue coloured Scooty bearing no...6858 and if raided, they could be apprehended alongwith the illicit arms. Thereafter, HC Jitender gave the secret information to Inspector Kuldeep who, in turn, informed the ACP and the ACP directed them to take immediate action. HC Jitender lodged DD No. 7 vide Ex.PW1/A. Thereafter, a raiding party under the supervision of SI Vimal Dutt was formed including himself, Ct. Parveen, HC Jitender and secret informer was constituted. The departure entry was made by DD No.11 vide Ex.PW1/B. At around 12:00 Noon, PW-1 along with the above said officials left the office in a private Santro Car. At around 12:15 PM, they reached at NSIT Dwarka. 2-3 public persons were asked to join the investigation but none agreed and left the spot due to their own reasons without disclosing their names and addresses. The barricades were put on the road going towards Dwarka to Dwarka Mod in front of NSIT gate for vehicle checking. SI Vimal briefed the raiding party and instructed HC Jitender to take position with the informer about 150 meters ahead of the remaining raiding party before the barricades. HC Jitender was also instructed to make a call to SI Vimal as and when the accused persons arrived. SI Vimal asked 2-3 public persons to join the investigation but none agreed and left the spot due to their own reasons without disclosing their names and addresses. At around 12:40 PM, one blue coloured scooty was noticed and secret informer told HC Jitender that Bhuri @ Vipin was driving the scooty and accused Babloo @ Akshay was sitting as a pillion rider. Thereafter, HC Jitender called SI Vimal regarding the arrival of the accused persons and asked them to close the barricades. Thereafter, secret informer left the spot. They accordingly closed the barricades. HC Jitender also placed his vehicle behind the scooty of accused persons. Thereafter, with the help of raiding party, both the accused persons were apprehended at the spot. SI Vimal asked 2-3 public persons to join the investigation but none agreed and left the spot due to their own FIR No. 186 of 2018, PS Crime Branch State Vs. Bhuri @ Vipin & Anr. Page No. 3 of 12 reasons without disclosing their names and addresses. Thereafter, HC Jitender took the cursory search of the accused Bhuri @ Vipin and one pistol was recovered from the lowers worn by the accused. Thereafter, HC Jitender checked the pistol and found two live cartridges. HC Jitender also took the cursory search of accused Babloo @ Akshay and found two live cartridges in the right side pocket of the pant of accused. HC Jitender prepared the sketch of entire case property Ex PW 1/C and thereafter placed the case property in one plastic box and prepared pulinda with white cloth with the seal of JK. FSL form was also filled on the spot. Seal after use was handed over to Ct. Parveen. HC Jitender interrogated both the accused persons regarding scooty but no satisfactory answer was given by them. Thereafter, IO seized the scooty and recovered arms and ammunition vide seizure memo Ex PW 1/D and Ex PW 1/E. Thereafter, HC Jitender prepared rukka and handed over the same to Ct. Parveen for registration of FIR. At about 2:15 P.M., ASI Vikrant came to the spot as further investigation of the present case was marked to him. HC Jitender handed over all the documents and case property alongwith accused to ASI Vikrant. IO ASI Vikrant prepared the site plan at the instance of HC Jitender and recorded the disclosure statement of both the accused Ex.PW 1/F and Ex.PW 1/G. At about 6:00 P.M., Ct. Parveen came back at the spot and handed over copy of FIR alongwith original rukka to the IO. IO inserted the particulars of the case on the documents already prepared and arrested both the accused Bhuri @ Vipin and Babloo @ Akshay at around 7:00 P.M. and 7:20 P.M. vide arrest memo Ex PW 1/H and Ex PW 1/I. Thereafter, they reached at Pushp Vihar office alongwith accused persons and case property. Case property was deposited in the malkhana office. IO recorded his statement. PW-1 identified the case property i.e. one pistol and four cartridges (test fire) which are Ex P1 (colly). He was cross-examined by Ld. Defence counsel.
FIR No. 186 of 2018, PS Crime Branch State Vs. Bhuri @ Vipin & Anr. Page No. 4 of 12
6. PW-2 HC Praveen has deposed on the same lines as PW-1. He has also proved the site plan Ex.PW 2/A and personal search of both accused vide Ex.PW 2/B and Ex.P 2/C respectively. He was cross-examined by Ld. defence counsel.
7. PW-3 HC Jitender has deposed on the same lines as PW-1. He has also proved the seal handing over memo Ex PW 3/A, rukka Ex PW 3/B and DD No.14 Ex PW 3/C. He was cross-examined by Ld. defence counsel.
8. PW-4 SI Vikrant has also deposed on the same lines as PW-1. He has also deposed that he sent the seized case property to FSL through Ct. Praveen vide RC No. 426/21 and thereafter he went to FSL Rohini and got the case property deposited. He returned to his office and handed over deposition slip and RC of the case property. He recorded the supplementary statement of Ct. Praveen and statement of ASI Jag Narayan MHC(M) and verified the parcha no.12 of both the accused persons. The scooty recovered from the accused PERSONS was handed over to MHC(M) of P.S Mehrauli for further investigation. Thereafter he collected the FSL result, got permission/sanction u/s 39 Arms Act and prepared the chargesheet and submitted before the court. He was cross-examined by Ld. defence counsel.
9. Vide separate statement recorded u/s 294 Cr.P.C on 28.07.2022, accused had admitted the documents i.e. FIR No. 186/18 vide Ex. A1, endorsement of rukka by DO ASI Shashi on complaint vide Ex. A2, certificate u/s 65B of Indian Evidence Act issued by DO ASI Shashi vide Ex. A3, sanction u/s 39 of Arms Act vide Ex. A4, FSL report no. 7174 dated 11.10.2018 vide Ex.A5, Road certificate vide Ex. A6 and copy of register FIR No. 186 of 2018, PS Crime Branch State Vs. Bhuri @ Vipin & Anr. Page No. 5 of 12 no.19 Ex.A7. Hence, the above documents were ordered to be read in evidence without its formal proof and the examination of ASI/DO Shashi Kant, Sh. R.Eniyavan, Jr. Forensic / Asst. Chemical Examiner (Ballistic) FSL, SO/DCP/Crime (C&F) and HC Jag Narayan was dispensed with.
10. No other witness was examined by the prosecution and hence, PE was closed.
11. Thereafter, statement u/s 313 Cr.P.C. of both the accused persons was recorded, wherein all the incriminating material that appeared in evidence against them, were put to them to which they stated that they were innocent and had been falsely implicated in this case. Accused persons opted not to lead defence evidence.
12. Final arguments advanced by Ld. APP for State and ld. counsel for accused heard. Case file perused carefully.
13. After hearing ld. APP for the State and ld. counsel for the accused and having gone through the case file carefully and meticulously, it is observed by the court that it is the case of prosecution that on the fateful day, accused Bhuri @ Vipin was apprehended carrying one country made pistol loaded with two live cartridges and accused Babloo @ Akshay was found carrying two live cartridges without having any valid Arms License for possessing the same, in contravention to the notification issued by Govt. of Delhi. The court is of the view that to prove the charge against the accused persons, the prosecution is required to prove the allegations beyond reasonable doubt.
FIR No. 186 of 2018, PS Crime Branch State Vs. Bhuri @ Vipin & Anr. Page No. 6 of 12
14. The relevant portion of Arms Act is reproduced as under:
Section 25: Punishment for certain offences:-
(1) whoever-
(a) Manufactures, sells, transfers, converts, repairs, tests or proves, or exposes or offers for sale or transfer, or has in his possession for sale, transfer, conversion, repair, test or proof, any arms or ammunition in contravention of section 5; or
(b) Shortens the barrel of a firearm or converts an imitation firearm into a firearm in contravention of section 6; or 2[***]
(c) bring into, or takes out of, India, any arms or ammunition of any class or description in contravention of section 11, shall be punishable with imprisonment for a term which not be less than three years but which may extend to seven years and shall also be liable to fine.
15. As per the prosecution case, the seizure memo of the recovered weapon and cartridges vide Ex. PW1/E and seizure memo of the seized Scooty vide Ex. PW1/D was prepared before the preparation of rukka. However, the said documents contain the number of the FIR which shows that either the FIR number was inserted later on or they were prepared before the time they have been shown to be prepared. It has been admitted by PW-1 ASI Pradeep that IO ASI Vikrant had inserted the particulars of the case on the documents already prepared. Thus, there is already admission of tampering of the seizure memo of the recovered weapon and ammunitions by the IO and the said admission has been made by a police witness himself. Furthermore, the weapon and cartridges have been seized by the IO on 20.07.2018 but as per the FSL report, the same have been deposited in the FSL on 01.08.2018. Thus, the chances of tampering with the case property cannot be ruled out and the delay in sending the articles for examination is fatal for the prosecution. While holding so, I am relying upon judgment of FIR No. 186 of 2018, PS Crime Branch State Vs. Bhuri @ Vipin & Anr. Page No. 7 of 12 Apex Court in Deshraj @ Dass Vs. State 83 (2000) DLT 262, wherein Apex Court 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, had held that the delay of 12 days in sending the samples to the CFSL proved fatal to the prosecution.
16. In the rukka Ex.PW3/B as well as in the testimony of all the witnesses, who are police officials it has been stated that police officials namely ASI Pradeep, HC Praveen, HC Jitender and SI Vikrant did ask some public persons passing by the spot of offence to join the proceedings however they refused citing just reasons. However, it is clear from the testimony of all the police witnesses that no sincere efforts were made to join independent public witnesses in the recovery/investigation of the present case. All the police witnesses examined in this case have admitted that public persons were not joined in the investigation due to paucity of time and because the public persons were not inclined to join the proceedings. All these police witnesses have also admitted that no notice was issued to them for non-joining the raiding party. Thus, the prosecution has failed to prove that any serious effort was made by any of the police officials of the raiding party including the IO to join public witnesses in the proceedings. It is a well settled proposition that non-joining of public witness shrouds doubt over the fairness of the investigation by police.
17. In case law reported as "Anoop Joshi Vs. State" 1992 (2) C.C. Cases 314 (HC), High Court of Delhi had observed as under:-
"18. It is repeatedly laid down by this Court 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 evidence that no such sincere efforts have been made, particularly when we find that shops were open and one or two FIR No. 186 of 2018, PS Crime Branch State Vs. Bhuri @ Vipin & Anr. Page No. 8 of 12 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".
18. In a case law reported as "Roop Chand Vs. The State of Haryana"
1999 (1) C.L.R. 69, the Punjab & Haryana High Court held as under:-
"3. I have heard the learned counsel for the parties and gone through the evidence with their help. The recovery of illicit liquor was effected from the possession of the petitioner during noon time and it is in the evidence of the prosecution witnesses that some witnesses from the public were available and they were asked to join the investigation. The explanation furnished by the prosecution is that the independent witnesses were asked to join the investigation but they refused to to so on the ground that their joining will result into enmity between them and the petitioner".
"4. It is well settled principle of the law that the Investigating agency should join independent witnesses at the time of recovery of contraband articles, if they are available and their failure to do so in such a situation casts a shadow of doubt on the prosecution case. In the present case also admittedly the independent witnesses were available at the time of recovery but they refused to associate themselves in the investigation. This explanation does not inspire confidence because the police officials who are the only witnesses examined in the case have not given the names and addresses of the persons contacted to join it is a very common excuse that the witnesses from the public refused to join the investigation. A police officer conducting investigation of a crime is entitled to ask anybody to join the investigation and on refusal by a person from the public the Investigating Officer can take action against such a person under the law. Had it been a fact that the witnesses from the public had refused to join the investigation, the Investigating Officer must have proceeded against them under the relevant provision of law. The failure to do FIR No. 186 of 2018, PS Crime Branch State Vs. Bhuri @ Vipin & Anr. Page No. 9 of 12 so by the police officer is suggestive of the fact that the explanation for non- joining the witnesses from the public is an after thought and is not worthy of credence. All these facts taken together make the prosecution case highly doubtful".
19. Non joining of public witnesses despite availability casts a doubt on the fairness of the investigation. Reliance is placed on paragraph 6 of the judgment in Pawan Kumar v. The Delhi Administration, 1989 Cri.L.J. 127, wherein the Hon'ble High Court of Delhi had observed as under:
" ... According to Jagbir Singh, he did not join any public witness in the case while according to Kalam Singh, no public person was present there. It hardly stands to reason that at a place like a bus stop near Subhas Bazar, there would be no person present at a crucial time like 07.30 p.m. when there is a lot of rush of commuters for boarding the buses to their respective destinations. Admittedly, 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 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 a case of 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 I.O. 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."
20. This Court is, however, conscious that the prosecution case cannot be thrown out or doubted on the sole ground of non-joining of public witnesses as public witnesses keep themselves away from the Court unless it is inevitable, as has been held in Appabhai and another v. State of Gujarat, FIR No. 186 of 2018, PS Crime Branch State Vs. Bhuri @ Vipin & Anr. Page No. 10 of 12 AIR 1988 SC 696. However, in the present case, it is not only the absence of public witnesses which raises a doubt on the prosecution but there are other circumstances too, as discussed hereinafter and above, which raise suspicion over the prosecution version.
21. Further, the seal used for sealing the recovered weapon and ammunition remained with Ct. Praveen, a junior police official only and it has not been proved that the seal was handed over to any other independent public person and therefore, the possibility of case property being tempered with cannot be ruled out, as PW-1 has admitted that he could not remember when he had handed over the seal to MHC(M) and he could not even tell whether any handing over memo had been prepared or not. In fact, HC Jitender has even denied preparing any handing over memo of the seal, though the handing over memo of the seal is found on record and exhibited as Ex. PW3/A and the same bears the signatures of HC Jitender himself along with signatures of Ct. Praveen and ASI Pradeep. Thus, no reliability can be placed upon the documents Ex. PW3/A and the chances of tempering with the case property cannot be ruled out. Reference may be made to the judgment of Subeg Singh v. State of Haryana, reported as 1992(3) RCR (Criminal) 596. In the judgment titled as Karambir v. State of Delhi reported as 1997 JCC 520 it has been held that absence of proof that the specimen impression of the seal was deposited with MHCM(M) along with case property results in miscarriage of justice and is fatal to the prosecution.
22. It is trite in criminal jurisprudence that the prosecution is under an obligation to prove its case against the accused persons beyond reasonable doubt. The standard of proof to be adopted in criminal cases is not merely of preponderance of probabilities but proof beyond reasonable doubt on the basis of cogent, convincing and reliable evidence. It is also well settled that FIR No. 186 of 2018, PS Crime Branch State Vs. Bhuri @ Vipin & Anr. Page No. 11 of 12 in case of doubt, the benefit must necessarily be allowed to the accused persons.
23. Thus, in view of the foregoing analysis, this Court is of the considered opinion that the benefit of doubt ought to be granted to the accused persons, who are entitled to be exonerated of the charges against them in the present case. The accused Bhuri @ Vipin S/o Sh. Mahender and Babloo @ Akshy S/o Sh. Raju are hereby acquitted of the offence punishable under Section 25 of Arms Act.
24. Accused persons be set at liberty. Digitally signed ARCHANA by ARCHANA BENIWAL Pronounced in the open court on this BENIWAL Date: 2022.11.16 16th November 2022 16:27:22 +0530 (ARCHANA BENIWAL) Chief Metropolitan Magistrate South West District, Dwarka Courts New Delhi FIR No. 186 of 2018, PS Crime Branch State Vs. Bhuri @ Vipin & Anr. Page No. 12 of 12