Delhi District Court
State vs . Virender Singh on 26 July, 2022
IN THE COURT OF MS MANSI MALIK,
METROPOLITAN MAGISTRATE03, NORTH WEST,
ROHINI COURTS, DELHI
Cr. Case No. 5007/2017
FIR No. : 105/2015
P.S. : Rithala Metro
State Vs. Virender Singh
U/s. 25/54/59 Arms Act
State
v.
Virender Singh
S/o Sh. Baljeet Singh
R/o VPO Bhaini Chanderpal, TehsilMaham, Distt.
Rohtak, Haryana
Date of institution of case : 25.05.2017
Date of reserving the judgment : 07.07.2022
Date of pronouncement of judgment : 26.07.2022
JUDGMENT
1. S. No. of the Case: 5007/2017 2. Date of Commission of Offence: 26.06.2015 3. Date of institution of the case: 25.05.2017 4. Name of the complainant: Ct. Parmod Vyas 5. Name of the accused: Virender Singh 6. Offence complained or proved: U/s 25 Arms Act 7. Plea of Accused: "Not Guilty" 8. Final Order: Acquitted 9. Date of Final Order: 26.07.2022 State vs. Virender Singh FIR no. 105/2015 PS Rithala Metro Page No. 1/12 Digitally signed by MANSI MANSI MALIK MALIK Date: 2022.07.26 16:24:54 +0530 BRIEF FACTS AND REASONS FOR DECISION
1. Succintly, the case of prosecution is that the accused Virender Singh has been sent to face trial with the allegations that on 26.06.2015 at about 07:18 AM, Near Rithala Metro, Delhi, within the jurisdiction of PS Rithala Metro, accused was found in possession of three live rifle catridges, without any license or permit. Investigation was carried out. Upon completion of the investigation the instant chargesheet for the offence punishable under Section 25 Arms Act was filed by the investigating officer against the accused. The accused was then summoned by the Ld. PO at the time.
2. The copy of charge sheet and relevant documents was supplied to the accused in compliance of Section 207 of Code of Criminal Procedure, 1973 (hereinafter referred to as Cr.PC).
3. Prima facie case was made out and charge for offence punishable under Section 25 Arms Act was framed on 06.07.2018 to which the accused pleaded not guilty and claimed trial. Thereafter, the matter was fixed for recording of prosecution evidence.
4. In order to substantiate the allegations, the prosecution examined three witnesses. At the onset it would be appropriate to have glance at the gist of deposition made by the witnesses:
5. PW1 Ct. Pramod Vyas who deposed that on 26.05.2015 he was posted at Peera Garhi Metro Station as Ct. CISF and on that day his duty hours were 6:00 am to 2:00 PM. He was performing his duty at scanner. On that day at about 7:20 am one boy State vs. Virender Singh FIR no. 105/2015 PS Rithala Metro Page No. 2/12 Digitally signed MANSI by MANSI MALIK MALIK Date: 2022.07.26 16:25:02 +0530 reached at scanning machine having a black colour bag and he put the said bag on the XRay machine. He noticed in the monitor that something is suspicious in the afore said bag. At that same time, he informed Shift Incharge SI Santosh Sharma who was present at security point for manual checking. SI Santosh Sharma manually checked the aforesaid bag and it was found containing some gents clothes and three live car tridges from the pocket of the aforesaid bag. The said boy was apprehended at the spot but he could identify him in the court due to lapse of time. As the witness failed to identify the witness, he was crossexamined by the Ld. APP for the state, however, even on crossexamination the witness failed to identify the accused or the case prop erty. He admitted that the IO recorded his statement, which is Ex. PW1/A, he also identified his signatures on the seizure memo Ex. PW1/B but denied the contents of the same, he also identified his signatures on the arrest and personal search memo Ex. PW1/C and Ex. PW1/D but stated that the signatures were obtained in the evening at the police station by the IO. He also failed to identify the live cartridges. The witness was not crossexamined by Ld. Counsel for accused despite opportunity given.
6. PW2 is SI/Santosh Sharma, deposed that on 26.06.2015, he was posted at Peera garhi Metro Station as SI (CISF). On that day his duty hours were 6 am to 2 pm and he was working as Shift Incharge. On that day at about 7:15 am Constable Promod Vyas informed him that some suspected articles was seen during the scanning of bag at the Xray Machine. Then he reached at the Xray machine and again the bag was checked through Xray machine and it was found containing live cartridges. There after the aforesaid bag was manually checked and it was confirmed that the bag was containing three live cartridges. Thereafter, he reached station control room and in formed to station controller regarding the aforesaid incident. He also shared the afore said incident with the senior officials. Delhi Police was also informed by station con troller from where the IO reached at the spot. They informed regarding the incident to State vs. Virender Singh FIR no. 105/2015 PS Rithala Metro Page No. 3/12 Digitally signed by MANSI MANSI MALIK MALIK Date:
2022.07.26 16:25:09 +0530 the Delhi Police IO. They handed over the custody of the aforesaid person along with the bag and cartridges. The witness identified the test fire cartridge Ex. P1 and the two live cartridges Ex. P2, however, he did not identify the bag or the lower and the tshirt produced by MHCM. The witness also was not able to identify the accused due to lapse of time. As the witness failed to identify the witness, he was crossexamined by the Ld. APP for the state, however, even on cross examination the witness failed to identify the accused. The witness was crossexamined by Ld. Counsel for accused.
7. PW3 is ASI/Joginder, deposed that on 26.06.2015, he was posted at PS Rithala Metro as HC. On that day he received DD no. 5A regarding apprehending of the ac cused at Piragarhi Metro Station. Thereafter he along with Ct. Kamal reached at the spot and met SI Santosh Sharma and Ct. Pramod Vyas both CISF officials along with accused. Station controller Peeragarhi namely, Mr. Deepak Kardam was also present in his control room. Bag recovered from the possession of the accused was handed over to him along with the live cartridges. He prepared sketch of the three live catridges, which is Ex. PW3/B. He put the aforesaid cartridges in polythene and again put the same in the pocket of the aforesaid bag. Bag was also containing one t shirt and lower. He prepared pullanda with the help of white cloth and duly sealed the same with the seal of JS and prepared the seizure memo Ex. PW1/B. He also recorded the statement of Ct. Pramod Vyas, which is already Ex. PW1/A, he also pre pared rukka Ex. PW3/C and the site plan Ex. PW1/D. He interrogated the accused vide arrest and and personal search memo Ex. PW1/C and Ex. PW1/D and recorded his disclosure statement Ex. PW1/E. He further stated that during investigation he tried to collect the CCTV footage but all in vain as he was informed that due to tech nical defect the footage could not be saved. The witness identified the accused as well as the case property. The witness was crossexamined by Ld. Counsel for accused.
State vs. Virender Singh FIR no. 105/2015 PS Rithala Metro Page No. 4/12Digitally signed by MANSI MANSI MALIK MALIK Date:
2022.07.26 16:25:16 +0530
8. The accused also admitted the genuineness of FIR no. 105/2015 PS Rithala Metro Station is Mark X, Certificate u/s 65B Indian Evidence Act regarding the aforesaid FIR i.e. Mark X2, DD No. 12A dated 26.06.2015 which is Mark X3, FSL result dated 04.08.2016 which is Mark X4, Sanction U/s. 39 Arms Act dated 15.12.2016 mark X5 and entries in register no. 19 which is Mark X6, Filing of the charge sheet of the present case by second IO/SI Dhan Singh Mark X7, u/s 294 Cr.PC, without admitting the contents of the same. In view of the above, witnesses mentioned at serial no. 3,4, 5, 6, 7, 8, 9, 10 and 13 in the list of prosection witnesses were dropped. Prosecution evidence was thereafter closed on 10.06.2022.
9. Statement of accused person was recorded u/s 313 Cr.PC., wherein all the incriminating evidence was put to the accused, to which he stated that he has been falsely implicated in this case. Further, the accused person did not opt to lead defence evidence and the matter was listed for final arguments.
10. The Court has carefully perused the case record and has heard arguments advanced by Ld. APP for the state as well as by Ld. Defence counsel.
11. Short point for determination before the court is as under "Whether on 26.06.2015 at about 7:18 AM, Near Rithala Metro, Delhi, within the jurisdiction of PS Rithala Metro, the accused Virender Singh was found in possession of three live rifle catridges, without any license or permit?"
12. It is argued by Ld. APP for the state that from the ocular and documentary evidence on record, prosecution has proved beyond reasonable doubt that accused was found in possession of three live rifle catridges without permit and submitted that State vs. Virender Singh FIR no. 105/2015 PS Rithala Metro Page No. 5/12 Digitally signed by MANSI MANSI MALIK MALIK Date:
2022.07.26 16:25:22 +0530 accused be convicted of the offence charged.
13. Per contra, it is argued by the Ld. Counsel for the accused that accused is completely innocent and recovery of case property has been falsely implanted upon him. It is further submitted that PW1 and PW2 have not identified the accused and hence the factum of recovery of live rifle cartridges from the accused has not been proved. At the end, it is submitted that the prosecution has miserably failed to prove its case beyond reasonable doubt and therefore, the accused is liable to be acquitted of the alleged offence.
14. I have heard the rival submissions and have also carefully gone through the entire material available on record and evidence led on behalf of the prosecution. My findings on the point for determination and brief reasons for the same are now being discussed in following paragraphs.
15. In present case, the prosecution was duty bound to prove the possession of the live rifle catridges with the accused. Same is sought to be proved by the recovery memo and testimony of the witnesses. At this juncture, it is pertinent to peruse the testimony of the recovery witnesses. PW1/Ct. Pramod Vyas has deposed in his testimony that on 26.05.2015 at about 7:20 am, one boy reached at the scanning machine and put his bag in the XRay machine and that he noticed something suspicious in the bag. Thereafter, he informed Shift Incharge SI Santosh Sharma who manually checked the bag and found three live cartridges from the pocket of the said bag. However, the witness failed to identify the accused in his testimony due to lapse of time. Further, PW2/SI Santosh Sharma also deposed that on 26.05.2015 at about 7:15 am, Ct. Pramod Vyas informed him that some suspected articles were seen during the scanning of the bag at the XRay Machine. Thereafter, he reached at the State vs. Virender Singh FIR no. 105/2015 PS Rithala Metro Page No. 6/12 Digitally signed by MANSI MANSI MALIK Date:
MALIK 2022.07.26 16:25:29 +0530 XRay Machine and checked the bag manually and it was confirmed that the bag was containing three live cartridges, however, the witness failed to identify the accused in his testimony due to lapse of time. Therefore, both PW1 and PW2 failed to identify the accused. Infact PW1 has identified his signatures on the seizure memo Ex. PW1/B but he has denied the contents of the same. With respect to the seizure and personal search memo Ex. PW1/C and Ex. PW1/D, he has identified his sigantures but has stated that the same were obtained in the evening by the IO at the police station. Further, PW2 has identified his signatures on the seizure memo Ex. PW1/B but he has categorically stated in his crossexamination by the Ld. APP that it is not confirmed whether the accused is the same person who was apprehended at the spot. Thus, both PW1 and PW2 have not supported the case of the prosecution.
16. A perusal of the record shows that it was only PW1 and PW2 who were witnesses to the recovery of the live cartridges from the accused, however, both of them failed to identify the accused in their respective testimonies. No other recovery witness has been examined by the prosecution. In the absence of identification of the accused by the recovery witnesses, PW1 and PW2, the factum of recovery of the live cartridges from the accused has not been proved by the prosecution.
17. Moreover, the incident is stated to have happened at Peeragarhi Metro Station at about 7:15 AM in the morning and there is no doubt that the place of incident must have been crowded at the time as the same is a public place but still no public independent person has been cited as a witness in this case. Further, a perusal of the record shows that no efforts were made by the IO to join any public person in the investigation. The IO was under obligation to issue notice in writing to the public persons to join the investigation, however no such notice has been issued by the IO. In the facts and circumstances of the case, this court finds that police has not made State vs. Virender Singh FIR no. 105/2015 PS Rithala Metro Page No. 7/12 Digitally signed by MANSI MANSI MALIK MALIK Date:
2022.07.26 16:25:36 +0530 any sincere effort to join independent public witnesses during investigation. In this regard reliance is being placed on the following judgments: In a case law reported as "Anoop V/s State", 1992 (2) C.C. Cases 314 (HC), Hon'ble High Court of Delhi has observed as under:
"18. It is repeatedly laid down by this Court that 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 evident that no such sincere efforts have been made, particularly when we find that shops were open and one or two shopkeepers 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".
In an case law reported as "Roop Chand V/s The State of Haryana", 1999 (1) C.L.R 69, the Hon'ble 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 but they refused to do 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 Investigation 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 State vs. Virender Singh FIR no. 105/2015 PS Rithala Metro Page No. 8/12 Digitally signed by MANSI MANSI MALIK Date:
MALIK 2022.07.26 16:25:43 +0530 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 he witnesses from the public had refused to 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 worthy of credence. All these facts taken together make the prosecution case highly doubtful".
In case law reported as "Sadhu Singh V/s State of Punjab", 1997 (3) Crimes 55 the Hon'ble Punjab & Haryana High Court observed as under:
"5. In a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubts. It is for the prosecution to travel the entire distance from may have to must have. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused" "6. In the present case, the State examined two witnesses namely, Harbans Singh ASI who appeared as PW1 and Kartar Singh. PW2. Both the witnesses supported the prosecution version in terms of the recovery of opium from the person of the petitioner, but there was no public witness who had joined. It is not necessary in such recoveries that public witnesses must be joined, but attempt must be made to join the public witnesses. There can be cases when public witnesses are reluctant to join or are not available. All the same, the prosecution must show a genuine attempt having been made to join a public witness or that they were not available. A stereotype statement of nonavailability will not be sufficient particularly when at the relevant time, it was not difficult to procure the service State vs. Virender Singh FIR no. 105/2015 PS Rithala Metro Page No. 9/12 Digitally signed by MANSI MANSI MALIK MALIK Date:
2022.07.26 16:26:18 +0530 of public witness. This reflects adversely on the prosecution version".
18. Considering the aforesaid observations made by the Higher Courts, the omissions/ failure on the part of investigating agency to join independent public witnesses create reasonable doubt in the prosecution story.
19. Further, as per evidence on record, the seal after use was not given to any independent public person but was infact given to Ct. Kamal, who was also involved in the investigation of the present case and is interested in the success of the case of the prosecution and keeping in view this factum chances of fabrication of case property cannot be ruled out. Moreover, no seal handing over memo is also on record.
Hence, considering the legal position, the benefit of doubt should be given to the accused, as tampering with case property in such a scenario cannot be ruled out. Reliance is placed on the judgment of Ramji Singh Vs. State of Haryana 2007 (3) R.C.C. (Criminal) 452, wherein it is held that "7. The very purpose of giving seal to an independent person is to avoid tampering of the case property. It is well settled that till the case property is not dispatched to the forensic science laboratory, the seal should not be available to the prosecuting agency and in the absence of such a safeguard the possibility of seal, contraband and the samples being tampered with cannot be ruled out."
Similarly, Hon'ble Delhi High Court in Safiullah v. State, 1993 (1) RCR (Criminal) 622, held 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 State vs. Virender Singh FIR no. 105/2015 PS Rithala Metro Page No. 10/12 Digitally signed by MANSI MANSI MALIK Date:
MALIK 2022.07.26 16:26:27 +0530 created in the preservation of the sample the benefit of the same should go to the accused."
20. From the aforesaid discussion, it is very clear that the manner in which the inquiry, seizure and search etc. has been conducted on the spot at the time of alleged recovery of live cartridges, makes the prosecution version highly doubtful. Further, the failure of the recovery witnesses to identify the accused is fatal to the case of the prosecution. At this stage, it would also be worthwhile to refer to the judgment of Hon'ble Supreme Court in Sarwan Singh vs State of Punjab (AIR 1957 SC 637) re garding the nature of burden of proof on the prosecution to prove its case. The ratio of this judgment is applied with the same vigour even after passing of more than 50 years. It was held in this case that: "There may also be an element of truth in the prosecution story against the accused. Considered as a whole, the prosecution story may be true; but between 'may be true' and 'must be true' there is inevitably a long distance to travel and the whole of this distance must be covered by the prosecution by legal, reliable and unimpeachable evidence before an accused can be convicted."
Again in Jagdish Prasad vs State (Govt Of NCT Of Delhi) 2011 (9) LRC 206 (Del), the Hon'ble High of Delhi had observed that "It is well settled that in a criminal case, in order to bring home the guilt of the accused, the prosecution is required to estab lish the guilt beyond a shadow of reasonable doubt. If, on consideration of the prose cution evidence, a reasonable doubt remains in respect of culpability of the accused, he is entitled to benefit of doubt.
21. In view of the above discussion, this Court is of considered view that in the present case the prosecution has failed to prove its case against the accused Virender Singh beyond reasonable doubt. Accordingly, the accused Virender Singh is acquitted for the offence punishable u/s 25 Arms Act.
State vs. Virender Singh FIR no. 105/2015 PS Rithala Metro Page No. 11/12Digitally signed by MANSI MANSI MALIK Date:
MALIK 2022.07.26 16:26:35 +0530
22. Bail bonds u/s 437A of CrPC are to be furnished which would remain valid for a period of six months.
Digitally
signed by
MANSI
MANSI MALIK
Announced in open Court (MANSI MALIK)
MALIK Date:
2022.07.26
on 26th Day of July, 2022 Metropolitan16:26:40
Magistrate
+0530
NorthWest, Rohini, Delhi
State vs. Virender Singh FIR no. 105/2015 PS Rithala Metro Page No. 12/12