Delhi District Court
State vs Dinesh Sharma @ Vinod @ Ravi on 1 November, 2023
IN THE COURT OF SH. ANIMESH KUMAR, METROPOLITAN
MAGISTRATE-08, SOUTH WEST DISTRICT, NEW DELHI
STATE VS. DINESH SHARMA @ VINOD
@ RAVI
FIR NO: 302/19
P. S UTTAM NAGAR
U/s 25 Arms Act
Crc/14391/2019
JUDGMENT
Sl. No. of the case : 14391/2019
Date of its institution : 03.08.2019
Name of the complainant : ASI Chand Ram, Belt No. 150/DW,
then posted at PS Uttam Nagar,
New Delhi.
Date of Commission of offence : 20.05.2019 Name of the accused : Dinesh Sharma @ Vinod @ Ravi S/o Sh. Chander Prakash, R/o H. No. C-23,Anand Vihar, Uttam Nagar, New Delhi Offence complained of : 25 Arms Act Plea of accused : Not Guilty Case reserved for orders : 26.09.2023 Final Order : Acquittal Date of orders : 01.11.2023 Digitally signed by ANIMESH ANIMESH KUMAR KUMAR Date:
2023.11.02 Page 1 of 17
16:57:40 +0530 BRIEF STATEMENT OF FACTS FOR THE DECISION:-
1. This is the prosecution of the accused namely Dinesh Sharma @ Vinod @ Ravi upon a charge sheet filed by the police station Uttam Nagar under section 25 Arms Act.
2. Briefly stated, as per the case of prosecution, on 20.05.2019 ASI Chand Ram was on patrolling duty. At about 12:15 AM, he reached near Sunny Dhaba, Dal Mill Road, Uttam Nagar, New Delhi where he met one secret informer who gave him secret information regarding the accused Dinesh Sharma @ Vinod @ Ravi. On the basis of the secret information received, a raiding team was prepared by ASI Manoj Kumar. At around 12:40 AM, they reached at Jhana Chowk where they apprehended the accused Dinesh Sharma @ Vinod @ Ravi at the instance of the secret informer. During the personal search of the accused, 8 live cartridges were found from the pocket of his trouser.
3. After completing the formalities, investigation was carried out by PS Uttam Nagar and a charge sheet was filed against the accused. The charge was framed against the accused u/s 25 Arms Act vide order dated 20.04.2022, to which he pleaded not guilty and claimed trial.
4. In order to substantiate its case, prosecution has examined four witnesses.
• ASI Chand Ram examined as PW-1;
Digitally signed ANIMESH by ANIMESH KUMAR Page 2 of 17 KUMAR Date: 2023.11.02 16:57:49 +0530 • HC Bharat Lal examined as PW-2; • ASI Ramtek examined as PW-3; and • ASI Hazari Lal examined as PW-4.
5. PW1 deposed that in the year 2019, he was posted at PS Uttam Nagar as Head Constable. On 20.05.2019, he was on patrolling duty along with ASI Manoj, ASI Ramtek and Ct. Anil. During the patrolling at about 12:15 AM, they reached at Sunny Dhaba, Dal Mill Road, where they met secret informer who gave secret information regarding the accused. Thereafter, he shared the information with the Duty Officer. He further deposed that ASI Manoj Kumar prepared the raiding team and he also asked some public persons to join the raiding team but all of them refused. At about 12:40 AM, they reached at Jhanda Chowk. In the meanwhile, Ct. Bharat also came at the spot. After reaching there, secret informer pointed towards the accused persons and they apprehended the accused persons. During the interrogation, they disclosed their names as Raju and Dinesh. Thereafter, he conducted the search of accused Dinesha and found 8 lives cartridges from his pant pocket.
6. PW-3 further deposed that after the apprehension of accused and recovery of case property from his possession, he prepared the sketch of live cartridge Ex. PW1/A. Thereafter, he put the 8 live cartridges in a plastic box and sealed them with Doctor Tape which was further sealed Digitally signed by Page 3 of 17 ANIMESH ANIMESH KUMAR KUMAR Date: 2023.11.02 16:57:58 +0530 with seal of CR. He also filled up FSL Form. He also prepared tehrir Ex. PW1/B and the same was handed over to Ct. Bharat for the registration of FIR. After getting the FIR registered, Ct. Bharat reached at the spot and handed over to him the copy of FIR and original tehrir. He also seized the case property vide seizure memo Ex. PW1/A. Thereafter, he handed over the accused, case property and some documents which were prepared by him to ASI Ramtek. Thereafter, he left the spot. He correctly identified the case property produced in the Court. He also identified the accused in the Court.
7. PW-1 was duly cross-examined by Sh. Naveen Kumar Yadav, Ld. LAC for the accused. He deposed that on 20.05.2019, his duty timing was from 9 AM to 11 PM. He was on patrolling duty on his private vehicle but he could not state the registration number of the same. He also could not state the time on which he had shared the information with the Duty Officer. He also stated that ASI Manoj Kumar did not give any written notice to any public person to join the investigation. He had prepared the seizure memo as well as sketch of the case property after the registration of FIR. He also stated that the FSL form was filled by him at the spot only. He also stated that he had cited only Ct. Bharat as witness in all the documents prepared by him at the spot. He denied all the suggestions given by the Ld. LAC for the accused.
Digitally
signed by
ANIMESH
ANIMESH KUMAR
KUMAR Date: Page 4 of 17
2023.11.02
16:58:13
+0530
8. PW-2 was another recovery witness examined by the prosecution. He was witness to the search of accused, preparation of sketch of the case property, preparation of seizure memo and registration of FIR. He was duly cross-examined by Ld. LAC for the accused.
9. PW-3 was the IO of the present case. He deposed that investigation of the present case was marked to him on 21.05.2019. Thereafter, he reached at the spot and met the police officials ASI Manoj, HC Chand Ram and HC Anil. Custody of the accused and the case property was handed over to him. Thereafter, he arrested the accused vide arrest memo Ex. PW3/A and also conducted personal search of the accused vide personal search memo Ex. PW3/B. He also prepared the site plan Ex. PW3/C. He correctly identified the accused in the Court.
10. PW-3 was duly cross-examined by Ld. LAC for the accused. During his cross-examination, he admitted that while he had prepared the site plan at the instance of PW-1, however, he did not get his signature on the site plan. He also admitted that he did not place any record regarding the patrolling duty of HC Chand Ram. He also admitted that he did not place any record regarding deposition of the case property at Malkhana. He also stated that he did not remember as to whether he had made entry regarding his departure from the police station and arrival at the police station.
Digitally signed ANIMESH by ANIMESH KUMAR Page 5 of 17 KUMAR Date: 2023.11.02 16:58:20 +0530
11. PW-4 ASI Hazari Lal had received the FSL result in the present case and had filed supplementary charge-sheet Ex. PW4/A in the present case. He correctly identified the accused. He was not cross-examined by Ld. Defence Counsel despite opportunity given.
12. The accused admitted the genuineness of copy of FIR, FSL Result dated 30.06.2019 and sanction u/s 39 Arms Act Ex. X-1 to X-3, u/s 294 of the Criminal Procedure Code, 1973 (herein after referred as Cr.P.C).
13. Statement of the accused was recorded U/s 313 Cr.P.C wherein all the incriminating circumstances were put to her which he denied and pleaded his false implication and also false plantation of the case properties. He, however, chose not to lead defence evidence. Thereafter, final arguments were heard.
14. I have heard the Ld. APP and carefully perused the record in extenso. Ld. APP has canvassed that the prosecution has been successful in proving the guilt of the accused beyond reasonable doubt as testimony of all the witnesses were not impeached by the accused.
15. Per contra, Ld. Counsel for the accused submitted that no public witnesses were examined in the present case regarding recovery of live catridges. He further submitted that the accused has been falsely implicated in the present case and the case properties have also been planted against the accused. He has also highlighted certain loopholes in the case of prosecution i.e non filing of relevant arrival and departure Digitally signed by ANIMESH Page 6 of 17 ANIMESH KUMAR KUMAR Date:
2023.11.02 16:58:30 +0530 entries of the concerned police officials by the prosecution, contradiction in the testimony of PW1 etc.
16. It is cardinal principle of criminal jurisprudence that an accused is presumed to be innocent and, therefore, the burden lies on the prosecution to prove the guilt of the accused beyond reasonable doubt. The prosecution is under a legal obligation to prove each and every ingredient of the offence beyond any doubt, unless otherwise so provided by any statute. This general burden never shifts and it always rests on the prosecution.
17. However, for the reasons mentioned hereinafter the prosecution has failed to establish beyond reasonable doubt that the accused was found in possession of the live cartridges. Hence, benefit of doubt has to be extended to the accused in the present case.
Non-examination of independent public witnesses
18. During the final arguments, Ld. Counsel for the accused submitted that the prosecution did not examine even a single public witness to prove the recovery of live cartridges from the possession of the accused. Both the recovery witnesses were police officials.
19. It is a well settled proposition that non-joining of public witness shrouds doubt over the fairness of the investigation by police. Section 100(4) of the Cr.PC also casts a statutory duty on an official conducting search to Digitally signed by ANIMESH Page 7 of 17 ANIMESH KUMAR KUMAR Date:
2023.11.02 16:58:38 +0530 join two respectable persons of the society. Same has not been done in the present case. This casts a doubt on the fairness of the investigation.
20. From the overall testimony of the witnesses, it appears that no sincere efforts, have been made to join the public persons in the investigation. The witnesses examined by the prosecution are police witness. Not even a single public witness was examined by the prosecution nor joined in the investigation and no plausible reason could be put forward by the prosecution witnesses that for what reason they were unable to gather support from public or independent witnesses to establish the guilt of the accused. Reference can be taken from the decision of the Hon'ble Delhi High Court in the case of Pawan Kumar v. The Delhi Administration, 1989 Cri.L.J. 127.
21. In the instant case, as per the testimony of PW1, public persons were present at the spot at the time of apprehension of accused. It should be noted that the recovery of the case property in the present case was not a chance recovery. Information was received in advance and a raiding party was also formed. However, not even a single public person was include in the raiding party. Although, PW1 had stated that public persons were asked by ASI Manoj to join the investigation, however, they refused to join the same.
22. This explanation tendered by PW-1 does not seem to be tenable and plausible as neither the details of those public persons have been Digitally signed by ANIMESH ANIMESH KUMAR Page 8 of 17 KUMAR Date:
2023.11.02 16:58:46 +0530 brought on record nor any legal action was taken against those persons under relevant sections of law who had declined to assist the police in investigation. If the public persons were really present at the spot, then the police officials should have made endeavor to get them join the investigation. They should have issued notice asking them to join the investigation. On their refusal, necessary action as per law could have been taken against them.
23. The failure on the part of the police personnel could only suggest that they were not interested in joining the public persons in the police proceedings. Failure on the part of the police officials to make sincere effort to join public witnesses for the proceedings when they may be available creates reasonable doubt in the prosecution story. Reference can be taken from the decision of Anoop Joshi Vs. State 1992 (2) C.C. Cases 314 (HC), Hon'ble High Court of Delhi has observed as under;
"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 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 Digitally signed by ANIMESH ANIMESH KUMAR Page 9 of 17 KUMAR Date:
2023.11.02 16:58:53 +0530 the police in investigation as a citizen, which is an offence under the IPC."
24. While the testimony of the police officials cannot be discarded away merely because of the fact that no public witnesses were not examined, however, their testimonies have to be scrutinised in more detail. If it is found the police officials during the course of investigation did not even make endeavour to ask the public witnesses to join the investigation, did not even ask their names and details etc. then it would cast a very serious doubt on the testimonies of the police officials. At this stage, reference can be taken from the decision of the Hon'ble Supreme Court in the case of Tahir v. State (Delhi) [(1996) 3 SCC 338], dealing with a similar question, the Hon'ble Apex Court held interalia the following:
"In our opinion no infirmity attaches to the testimony of the police officials, merely because they belong to the police force and there is no rule of law or evidence which lays down that conviction cannot be recorded on the evidence of the police officials, if found reliable, unless corroborated by some independent evidence. The Rule of Prudence, however, only requires a more careful scrutiny of their evidence, since they can be said to be interested in the result of the case projected by them. Where the evidence of the police officials, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it can form basis of conviction and the absence of some independent witness of the locality to lend corroboration to their e vid e n ce , d o e s n ot i n a n y wa y affect the creditworthiness of the prosecution case. The obvious result of the above discussion is that the statement of a police officer can be relied upon and even form the basis of conviction when it is reliable, trustworthy and preferably corroborated by other evidence on record."Digitally signed by ANIMESH KUMAR ANIMESH Date: Page 10 of 17
KUMAR 2023.11.02
16:58:59
+0530
25. The requirement of the police officials to make endeavour to ask the public witnesses to join the proceedings was discussed by the Hon'ble Supreme Court in the case of Sahib Singh vs. State of Punjab AIR 1997 SC 2417, wherein it interalia held the following:
"In a given case it may so happen that no such person is available or, even if available, is not willing to be a party to such search. It may also be that after joining the search, such persons later on turn hostile. In any of these eventualities the evidence of the police officers who conducted the search cannot be disbelieved solely on the ground that no independent and respectable witness was examined to prove the search but if it is found -as in the present case -that no attempt was even made by the concerned police officer to join with him some persons of the locality who were admittedly available to witness the recovery, it would affect the weight of evidence of the Police Officer, though not its admissibility"
26. Therefore, in view of the above mentioned case law, it becomes clear that while the testimony of the police officials cannot be discarded away forthwith in the absence of any public witnesses, however, it would be prudent to examine or scrutinise their testimonies more closely and should preferably be corroborated. Accused may be convicted on the basis of the testimonies of the police officials if their testimonies are found to be reliable and trustworthy.
27. As discussed in the preceding paragraphs of this judgment, IO did not even make any endeavor to join the public witnesses. This becomes all the more important especially in light of the fact that this was not a chance recovery. It was a pre planned recovery after the formation of a Digitally signed by ANIMESH ANIMESH KUMAR Page 11 of 17 KUMAR Date:
2023.11.02 16:59:05 +0530 raiding party. Police officials had the opportunity to include public persons in the raiding party itself. However, nothing like this was done by the police officials.
28. Further, the prosecution did not even bring on record necessary DD entries to prove arrival and departure of the police officials from the police station. At this stage, reference can be taken from the provision enshrined in 22 rule 49 of the Punjab Police Rules, which is reproduced as under;
"Chapter 22 rule 49 Matters to be entered in Register no. II. The following matters shall amongst others, be entered:-(c) The hour of arrival and departure on duty at or from a police station of all enrolled police officers of whatever rank, whether posted at the police station or elsewhere, with a statement of the nature of their duty. This entry shall be made immediately on arrival or prior to the departure of the officer concerned and shall be attested by the latter personally by signature or seal. Note:- The term Police Station will include all places such as Police Lines and Police Posts where Register No. II is maintained.
29. Perusal of the above rule clearly suggests that the police officials are mandated to record their time of arrival and departure on duty at or from the police station. In the instant case, this provision has not been complied by the concerned police witnesses. The relevant entries regarding the arrival and departure of the police officials have not been proved on record. It has been held in Rattan Lal Vs. State 1987 (2) Crimes 29 the Hon'ble Delhi High Court held that; Digitally signed
ANIMESH by ANIMESH KUMAR Page 12 of 17 KUMAR Date: 2023.11.02 16:59:12 +0530 "if the investigating agency deliberately ignores to comply with the provisions of the Act the Courts will have to approach their action with reservations. The matter has to be viewed with suspicion if the provisions of law are not strictly complied with and the least that can be said is that it is so done with an oblique motive. This failure to bring on record, the DD entries creates a reasonable doubt in the prosecution version and attributes oblique motive on the part of the prosecution."
30. In the instant case, it should be noted that no departure entries of any of the police officials have been filed on record by the prosecution. Similarly, the relevant entry made by the police officials upon their arrival at the police station with the accused and the case property was also not brought on record by the police officials. If PW-1 was really on patrolling duty, necessary departure entry made by him while proceeding on patrolling duty should have been filed on record by the prosecution.
31. It becomes all the more important in light of one material contradiction in the testimony of PW-1. PW-1 in his examination-in-chief had deposed that on 20.05.2019 at around 12:15 AM during patrolling duty, he had received secret information about the accused. However, interestingly, in his cross-examination, he had stated that his duty timings on 20.05.2019 were from 9 AM to 11 PM. If he was on duty only till 11 PM, how could PW-1 be on patrolling duty at around 12:15 AM. No explanation was given by the prosecution on this point. This further raises doubts in the case of the prosecution.
Digitally signedby ANIMESH ANIMESH KUMAR Page 13 of 17
KUMAR Date:
2023.11.02
16:59:18 +0530
32. Since all the witnesses are police personnel and the necessary safeguards in the investigation have not been followed by the IO, I am of the view that chances of false implication of accused cannot be ruled out at the instance of the police officials.
Possibility of misuse of seal of the investigating officer
33. As per the testimonies of PW-1, the case property allegedly recovered from the possession of the accused was sealed by him with the seal of "CR". However, no seal handing over memo was brought on record by the prosecution. Further, as per the testimony of PW1, he himself had recovered the case property from the accused, prepared tehrir, seizure memo in the present case and also sealed the case property with his own seal. It would mean that PW1 acted like a complainant and investigating officer at the same time. Seal was not handed over to any independent person before/after use. In fact, PW-1 did not even handover his seal to some other police official also before and after its use. It is also not clear as to whether the same was eventually deposited in malkhana after use.
34. In the judgment titled Ramji Singh vs. State of Hhandaryana 2007 (3) R.C.R. (Criminal) 452, the Hon'ble Punjab & Haryana High Court while discussing the purpose of giving seal to independent person has held the following:
Digitally signed by ANIMESH
ANIMESH KUMAR Page 14 of 17 KUMAR Date:
2023.11.02 16:59:29 +0530 "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."
35. Therefore, in view of the above, this creates further doubts in the case of prosecution as to whether the case property allegedly recovered from the accused has not been tampered with.
Loopholes in the case of prosecution
36. PW-1 in his cross-examination had deposed that he had prepared the seizure memo as well as sketch of the case property after the registration of FIR. It would mean that FIR no. should also have been mentioned on the sketch of the case property Ex. PW1/A. However, interestingly, perusal of the sketch Ex. PW1/A would show that FIR no. is not mentioned therein.
37. Further, as per the testimony of PW-1, at the time of apprehension of the accused, he was on patrolling duty along with ASI Manoj, ASI Ramtek and Ct. Anil. This would mean that ASI Ramtek was also one of the recovery witnesses. However, ASI Ramtek while deposing as PW-3 had deposed that the investigation in the present case was marked to him on 21.05.2019 after which he had reached at the spot and met ASI Manoj, HC Chand Ram and HC Anil. It would mean that ASI Ramtek Digitally signed by ANIMESH KUMAR ANIMESH Date: Page 15 of 17 KUMAR 2023.11.02 16:59:43 +0530 was not on patrolling duty when the accused was apprehended. This would show that both PW-1 and PW-3 have contradicted each other.
38. Last but not the least, none of the recovery witness in their examination-in-chief has stated that they offered their personal search to accused before conducting search upon the accused. Principles of natural justice demanded that accused should have been offered search by recovery witness who allegedly recovered case property from accused and should have reduced this fact into writing which has not been done in present case and which diminishes credibility of prosecution version. Reliance being placed on a judgment of Orissa High Court reported as "Rabindernath Prusty Vs. State of Orissa 1984 CriLJ 1392. In this situation, it can be said that search of the accused by above said police officials was in complete violation of the above said case law.
39. It is true that evidence is to be weighed and not counted but in this case whatever evidence has been produced by the prosecution is not sufficient to fortify the edifice of the prosecution's case and the prosecution fails to prove all the links. In case where the prosecution has failed to prove all the links, the benefit of doubt has to be given to the accused. As such the accused deserves acquittal in the present case.
Digitally signed by ANIMESH
ANIMESH KUMAR
Page 16 of 17
KUMAR Date:
2023.11.02
16:59:50 +0530
40. Hence, I find that the prosecution has failed to prove the guilt of the accused in the present case beyond reasonable doubt.
41. Therefore, in view of the above discussions and findings, the accused Dinesh Sharma @ Vinod @ Ravi S/o Chander Prakash is acquitted for the offence u/s 25 Arms Act.
Digitally signedby ANIMESH
42. Ordered accordingly. ANIMESH KUMAR KUMAR Date:
2023.11.02 17:00:13 +0530 Announced in the open court. (ANIMESH KUMAR) MM-08, South West New Delhi/01.11.2023 on 01.11.2023 It is certified that this judgment contains 17 pages and each page bears my signatures.
(ANIMESH KUMAR) MM-08, South West New Delhi/01.11.2023 Page 17 of 17