Delhi District Court
State vs . Manvinder on 26 August, 2019
IN THE COURT OF SH. DEVENDER KUMAR GARG,
CHIEF METROPOLITAN MAGISTRATE (NORTHEAST)
KARKARDOOMA COURTS, DELHI.
State vs. Manvinder
FIR No. 155/12
U/s : 25 of Arms Act
P.S.: Karawal Nagar
CIS No. 464283/15
Date of Institution : 27.11.2012
Date of reserving of order : 26.08.2019
Date of pronouncement : 26.08.2019
JUDGMENT
1. Case No. : 464283/15
2. Name of the complainant : HC Ravinder Kumar
3. Date of incident : 14.05.2012
4. Name of accused persons : Manvinder
S/o Sh.Rambir,
R/o Village Karanpur Pathri,
P.S. Madnapur, Distt. Shahjahan
Pur (U.P.).
5. Offence complaint of. : 25 of Arms Act
6. Plea of accused : Pleaded not guilty
7. Final order : Acquitted
8. Date of such order : 26.08.2019
FIR No. 155/12, P.S. Karawal Nagar Page 1 of 9
BRIEF REASONS FOR SUCH DECISION
1. The brief facts of case of prosecution are that on 14.05.2012 at 7.20 p.m. at Khajuri Pusta, Karawal Nagar Moar, Delhi, you were found in possession of a katta with 02 live cartridge .315 bore without any permit or license. Therefore, present FIR No.155/12 dt. 7.8.2013 u/s 25 of Arms Act was registered against the accused at P.S. Karawal Nagar.
2. After completion of investigation, charge sheet was filed against the accused under Section 25 of the Arms Act on 27.11.2012 and on the same day, cognizance of the offence committed by the accused was taken by Ld. Predecessor of this court. On appearance of the accused on 06.05.2013, copy of the challan was supplied to him in compliance of Section 207 Cr.P.C.
3. Thereafter, vide order dated 07.08.2013, charge for offence u/s 25 of the Arms Act was framed against the accused, to which, he pleaded not guilty and claimed trial. The said charge is as follows: "That on 14.05.2012 at 7.20 p.m. at Khajuri Pusta, Karawal Nagar Moar, within the jurisdiction of PS Karawal Nagar, Delhi, you were found in possession of a katta with two live cartridges .315 bore without any permit or license & thus, you thereby committed an offence punishable U/s 25/54/59 Arms Act, 1959 and within my cognizance."
FIR No. 155/12, P.S. Karawal Nagar Page 2 of 94. In order to prove its case, the prosecution has examined six witnesses. HC Pradeep Kumar, who was Duty Officer at the relevant time, was examined as PW1, ASI Inder Pal Singh, who received sealed pullanda of the case property from PS Karawal Nagar to be deposited in FSL, Rohini, was examined as PW2, HC Rajiv Malik, who deposited sealed pullanda of the case property in FSL, Rohini, was examined as PW3, Ct. Rakesh Kumar, who was a witness of alleged recovery, was examined as PW3A, HC Rajender, who was also a witness of alleged recovery, was examined as PW4 and ASI Ravinder, who was investigation officer of this case, was examined as PW5. Perusal of file would show that HC Rajiv Malik was examined as PW3 on 16.3.2019 and after that, Ct. Rakesh Kumar was examined on 16.04.2019, but due to some inadvertent and typographical mistake, he was also numbered as PW3 and hence, in order to avoid any confusion, he is referred as PW3A in this judgment. The following documents were exhibited during prosecution evidence: Copy of FIR as Ex.PW1/A, endorsement on Rukka as Ex.PW1/B, copy of the entry in register no.19 as Ex.PW2/A, copy of RC as Ex.PW2/B, sketch of Desi Katta and 2 cartridges as Ex.PW3/A, seizure memo of Desi Katta and 2 cartridges as Ex.PW3/B, rukka as Ex.PW3/A, arrest memo of accused as Ex.PW3/D, personal search memo of the accused as Ex.PW3/E, disclosure statement of accused as Ex.PW1/F, site FIR No. 155/12, P.S. Karawal Nagar Page 3 of 9 plan of the spot as Ex.PW4/A, case properties i.e. country made pistol as Ex.P1,, one live cartridge as Ex.P2 and one test fired cartridge as Ex.P3.
5. During evidence, accused admitted the report of FSL dated 30.07.2012 as Ex.PA, sanction order u/s 39 of the Arms Act dated 12.9.2012 as Ex.PB, FIR No.155 dated 14.5.2012 as Ex.PW1/A, DD No. 33A dated 14.5.2012 as Ex.PC and DD NO.84B dated 14.5.2012 as Ex.PD, vide his statement recorded u/s 281 read with Section 294 Cr.P.C. on 21.12.2018.
6. Perusal of the file would show that prosecution evidence was closed vide order dated 30.07.2019 as the prosecution failed to conclude its evidence despite sufficient opportunities given.
7. Thereafter, on 21.08.2019, statement of accused u/s 281 read with Section 313 Cr.P.C. was recorded, in which all the incriminating evidence were put to the accused, to which, he denied the allegations against him and he stated that he is innocent and has been falsely implicated in the present matter. Accused had also stated that he did not want to lead any evidence in his defence. Accordingly, defence evidence was closed vide order dated 21.08.2019..
8. I have heard arguments from Sh.Pradeep Kumar, Ld. APP for the State and Sh.Mahesh Kumar, Ld. Counsel for accused and also perused the entire material available on record carefully.
FIR No. 155/12, P.S. Karawal Nagar Page 4 of 99. It is contended by Ld. Counsel for accused that nothing has been recovered from possession of the accused and he is innocent and has been falsely implicated in the present case. It is further contended that all prosecution witnesses are police witnesses and no independent public witness has been joined and all the writing work was done in the police station. It is further contended that there are material contradictions in deposition of the prosecution witnesses. It is further contended that the prosecution has failed to prove its case beyond reasonable doubts and hence, the accused is entitled to be acquitted.
10. Perusal of the file would show that all witnesses examined by the prosecution are police officials. As per the case of prosecution, PW3A Ct. Rakesh Kumar, PW4 HC Rajender and PW5 ASI Rajender are witnesses of the alleged recovery and they all are police officials and no independent public person has been joined as witness in the present matter. Perusal of file would show that examinationin chief of PW3A Ct. Rakesh Kumar was deferred on 16.4.2019 despite summons issued to him a number of times, but thereafter he did not appear in the court for his further examination and his examination could not be completed. The Court would rely upon the judgment of Hon'ble High Court of Delhi dated 01.12.2017 passed in Crl. M.C. No.2463/13 and Crl. M.A. No. 9529/13 and 14694/15 titled as "Venu Madhava K & Anr. vs. The State & Anr.", wherein the following observations have been made: FIR No. 155/12, P.S. Karawal Nagar Page 5 of 9 "33. The examination of a witness means as laid down in Section 137 of The Indian Evidence Act, 1872, his examinationinchief, his cross examination and his reexamination.
It follows that the provision that a witness shall be examined means not only that he shall be examinedinchief but also that he should be permitted to be crossexamined and reexamined.
34. Further, examinationinchief of a witness alone without his crossexamination is incomplete statement of witness and is not evidence under the Indian Evidence Act.
Whole of evidence, i.e. examinationin chief and crossexamination, is to be read together for correct appreciation to find out truth there from crossexamination being a part of evidence, while judging veracity of statement of a witness."
11. PW4 namely HC Rajender had admitted in his cross examination that IO requested the public persons to join investigation but none has agreed. He further deposed that the said persons left the spot without disclosing their names and address and no written notice was served to those persons. PW5 ASI Ravinder also deposed in his examinationinchief that he requested some public persons to join the investigation but none agreed and left the spot without telling their names and addresses. PW5 also admitted that the spot is a public place and public persons coming and going. He also deposed that he FIR No. 155/12, P.S. Karawal Nagar Page 6 of 9 requested the public persons to join the investigation but none has agreed and said person left the spot without disclosing their names and addresses and no written notice was served to those persons. From the above said deposition of PW4 and PW5, it is clear that there were availability of public persons at the spot, but despite that no public witness has been joined in the present matter. No sincere efforts have been done to join the public witnesses as no written notice was given to the public persons who refused to join the investigation. Non joining of public witness raises a doubt in the story of the prosecution.
12. 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 do 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 FIR No. 155/12, P.S. Karawal Nagar Page 7 of 9 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 provisions of law. The failure to do so by the police officer is suggestive of the fact that the explanation for nonjoining the witnesses from the public is an after thought and is not worth of credence. All these facts taken together make the prosecution case highly doubtful".
13. Moreover, perusal of sketch of the country made pistol and live cartridges Ex.PW3/A and seizure memo of country made pistol and live cartridges Ex.PW3/B would show that on the top of the same, case FIR number, under section etc. have been mentioned in the same ink and flow of handwriting, though as per the case of the prosecution these documents were prepared before sending the rukka. PW4 had FIR No. 155/12, P.S. Karawal Nagar Page 8 of 9 deposed in his crossexamination that seizure memo Ex.PW3/B was prepared in one go from top to bottom and nothing was added or altered in it. It also raises doubt in the story of prosecution. For this, I rely on 'Pawan Kumar vs Delhi Administration, 1989 Cr.L.J. 1271'. In a case titled in AIR 1956 Cr. L.J. 1234, it was held that, "In the event of any doubt as to the guilt of accused, the benefit will go to the accused".
14. In such cases, in view of Saifulla Vs. State reported in 1998 (1) CCC 497 (Delhi) and Abdul Gaffar Vs. State reported in 1996 JCC 497 (Delhi), benefit of doubt is to be given to the accused.
15. Taking into consideration all the facts and circumstances and material available on record, I hold that the prosecution has failed to prove its case against the accused beyond reasonable doubt. Benefit of doubt is given to the accused. Hence, accused namely Manvinder is acquitted from charge of offence punishable U/s 25 of Arms Act. The case property i.e. country made pistol and cartridges are confiscated to the State. Digitally signed Devender by Devender Kumar Garg Announced in open court Kumar Date:
Garg 2019.08.28
on 26.08.2019 10:58:34 +0530
(DEVENDER KUMAR GARG)
CMM (NORTHEAST DISTT.)
KKD COURTS, DELHI.
FIR No. 155/12, P.S. Karawal Nagar Page 9 of 9