Delhi District Court
State vs Badan Singh ("Acquitted") Page 1 Of 10 on 2 February, 2011
FIR No.03/2004: PS Special Cell: U/s 25/54/59 Arms Act DOD: 02.02.2011 IN THE COURT OF VINOD YADAV: CHIEF METROPOLITAN MAGISTRATE: DELHI FIR No.: 03/2004 PS: Special Cell U/s 25/54/59 Arms Act Unique ID No.: 02401RS208052004 J U D G M E N T:
______________________________________________________________
(a) S.No. of the case : 43/3
(b) Name of complainant : SI Ravinder Kumar, NDR/OC PS Special Cell, Lodhi Colony, New Delhi.
(c) Date of commission of offence : 09.01.2004
(d) Name of the accused : Badan Singh
S/o Shri Tikam Singh,
R/o S89/347, RJJ Water Tank
Camp, Okhla Phase1,
New Delhi.
(e) Offence complained of : U/s 25/54/59 Arms Act
(f) Plea of accused : Pleaded not guilty
(g) Final arguments heard on : 02.02.2011
(h) Final Order : Acquitted
(i) Date of such order : 02.02.2011
______________________________________________________________ State V/s Badan Singh ("Acquitted") Page 1 of 10 FIR No.03/2004: PS Special Cell: U/s 25/54/59 Arms Act DOD: 02.02.2011
1. BRIEF FACTS & REASONS FOR SUCH DECISION:
Briefly stated the facts of the case are that accused Badan Singh, S/o Shri Tikam Singh is facing trial in the present case on the allegations that on 09.01.2004, at about 2:10 PM at TPoint, ESI Hospital, Maa Anandmayi Marg, Okhla, Delhi, within the jurisdiction of PS Special Cell, he was found in possession of one country made pistol with one live cartridge, in contravention of Gazette Notification and thus committed an offence punishable under section 25/54/59 Arms Act.
Detail of Court Proceedings:
2. After completion of investigation, the accused stood chargesheeted for offence punishable U/s 25/54/59 Arms Act.
3. After filing of the charge sheet in the case, accused was supplied the documents in compliance of Section 207 Cr.P.C and after hearing arguments on charge, vide order dated 24.01.2005, charge U/s 25/54/59 Arms Act was framed against the accused, to which he pleaded not guilty and claimed trial.
4. In order to bring home the guilt of accused, prosecution examined eight witnesses, whereafter the PE in the matter was closed and statement of accused U/s 281 Cr.P.C was recorded, wherein he claimed himself to be innocent and having been falsely implicated in the case and does not wish to lead any defence evidence in the matter.
State V/s Badan Singh ("Acquitted") Page 2 of 10 FIR No.03/2004: PS Special Cell: U/s 25/54/59 Arms Act DOD: 02.02.2011 Evidence Held:
5. A total of eight witnesses were examined by the prosecution in support of its case. A brief scrutiny of the evidence recorded in the matter is as under.
6. PW1, SI Ravinder Kumar in his evidence has stated that on 09.01.2004, he was present in the office of PS Special Cell and at about 12:30 PM one secret informer gave information to Inspector Lalit Mohan that two boys/persons by the name of Dharmender and Badan Singh, who are indulging in the activity of extortion with illegal weapons would come near Kalkaji Mandir and if raided, they could be apprehended. He further stated that said information was discussed with senior officers and a raiding party consisting of SI Inspector Lalit Mohan, SI Sanjay Dutt, SI Arvind Kumar, SI Umesh, SI Rakesh Malik, ASI Rishi Pal, HC Anand Prakash, HC Hardwari Lal and himself was formed, which reached at the spot at about 01:30 PM. He further stated that Inspector Lalit Mohan requested 56 passersby to join the raiding party, but none agreed and left the spot without disclosing their names and addresses. He further stated that at about 02:10 PM, two persons coming from the side of Kalkaji Mandi and at the instance of secret informer they were apprehended and their cursory search were conducted. He stated that he conducted the cursory search of accused Badan Singh and one loaded country made pistol was recovered from his possession. He further stated that thereafter the said pistol was unloaded and one live cartridge was recovered State V/s Badan Singh ("Acquitted") Page 3 of 10 FIR No.03/2004: PS Special Cell: U/s 25/54/59 Arms Act DOD: 02.02.2011 from it and he prepared rough sketch of pistol and the live cartridge vide Ex.PW1/A, thereafter the same were sealed in a pulanda with seal of RKV and Form FSL was filled and seal after use was handed over to ASI Rishi Pal. He further stated that thereafter the pistol and both the live cartridges were seized vide Ex.PW1/B. He further stated that thereafter he prepared rukka, Ex.PW1/C and got the case registered through HC Hardwari. He further stated that thereafter further investigation was marked to HC Kuldeep Singh, who prepared site plan at his instance vide Mark A and he handed over accused, sealed pulanda, seizure memo, FSL From, rough sketch of countrymade pistol and live cartridge to HC Kuldeep Singh. This witness correctly identified the accused in the court. He further identified the case property as Ex. P1 and Ex. P2.
7. PW2 SI Rishi Pal Singh, deposed on the lines of PW1. He however, proved the arrest memo as Ex.PW2/A, personal search memo as Ex.PW2/B and disclosure statement of accused as Ex.PW2/C. He also identified the accused as well as case property in the court.
8. PW3, Shri A. Dey, Senior Scientific Officer cum Assistant Chemical Examiner, CFSL, CBI, New Delhi has proved on record his report as Ex.PW3/A. He further stated that the pistol in question (Mark W/1) was in working order and test fire conducted successfully and the cartridges (Mark C1) was live ammunition, as defined in the Arms Act. State V/s Badan Singh ("Acquitted") Page 4 of 10 FIR No.03/2004: PS Special Cell: U/s 25/54/59 Arms Act DOD: 02.02.2011
9. PW4, SI Subhash Kumar deposed that he is well conversant with the hand writing and signatures of Sh. Ashok Chand, the then DCP, Special Cell has proved on record the Sanction U/s 39 Arms Act which accorded by DCP Sh. Ashok Chand on 03.03.2004 against accused Badan Singh, vide Ex.PW4/A.
10. PW5 ASI Paramjeet Singh, who was the MHC (M) in P S Special Cell deposed that on 09.01.2004 HC Kuldeep Singh handed over one sealed pulanda duly sealed with the seal of RKV with FSL form and copy of seizure memo alongwith personal search memo of accused. He deposited the same in malkhana vide entry No.309, which is exhibited as Ex.PW5/A. He further deposited that on 19.01.2004, he handed over the same parcel to HC Kuldeep Singh for depositing the same in CFSL vide RC No.4/21/04 with CFSL form. He further deposed that on 20.02.2004, HC Kuldeep Singh deposited the sealed parcel with the seal of CFSL. He exhibited the copy of RC no. 4/21/04 as Ex.PW5/B. He further stated that till the time case property remained in his possession, same was not tempered with.
11. PW6 SI Krishan Pal was posted as Duty Officer in PS Special Cell at the relevant time and he has proved his endorsement on rukka at point A and case FIR in the matter as Ex.PW6/A.
12. PW7 ASI Hardwari who is one of the member of the raiding State V/s Badan Singh ("Acquitted") Page 5 of 10 FIR No.03/2004: PS Special Cell: U/s 25/54/59 Arms Act DOD: 02.02.2011 party deposed on the lines of PW1. This witness was thoroughly cross examined by the learned defense counsel.
13. PW8, the second IO of the case, has deposed on the lines of PW1 SI Ravinder Kumar. He further stated that he was present at the office of P S Special Cell and as per the instruction of Inspector Lalit Mohan Negi, further investigation of the case is assigned to him. Thereafter, he reached at the spot where SI Ravinder Verma haded over accused Badan Singh alongwith case property, sealed parcel, seizure memo of kutta and rounds, FSL form, sketch of seized articles and copy of rukka to him. He prepared Site plan at the instance of SI Ravinder Kumar vide Ex.PW8/A. He arrested the accused vide memo already exhibited as Ex.PW2/A. He recorded the disclosure statement of accused vide Ex.PW2/C. He also took personal search of the accused vide Ex.PW2/B. He further deposited that on 19.01.2004 he went to CFSL, Lodhi Colony to deposit the parcels vide RC No.4/21 and thereafter on 20.02.2004 he after receiving the sealed parcel from CFSL deposited the same with Malkhana. He prepared the chargesheet and filed the same in the court under the signature of SHO P S Special Cell. This witness was also thoroughly crossexamined by the defense counsel.
14. This is all as far as prosecution evidence in the matter is concerned.
State V/s Badan Singh ("Acquitted") Page 6 of 10 FIR No.03/2004: PS Special Cell: U/s 25/54/59 Arms Act DOD: 02.02.2011
15. Thereafter, the statement of accused U/s 281 Cr.P.C was recorded, wherein, accused denied the evidence adduced against him and stated that he has been falsely implicated in this case. No defence evidence was led by the accused.
16. I have heard arguments advanced at bar by the learned defence counsel as also learned APP and have carefully gone through the evidence recorded in the matter and the documents placed on record by the prosecution in this case.
Arguments advanced & Case law cited:
17. The learned defence counsel has very vehemently argued that the case of prosecution rests entirely upon the testimony of police witnesses and there is no independent corroboration thereof. The law with regard to independent corroboration of search, seizure and recovery is now fairly settled. In case reported as, "1990 CCC 3", titled as, "Roop Chand V/s State of Haryana", the Hon'ble Punjab & Haryana High Court has held that:
"That when some witnesses from the public were available, then the explanation furnished by the prosecution that they refused to join the investigation, the same is wholly unsatisfactory, particuarly, when the IO did not note down their names and addresses and did not take any action against them".State V/s Badan Singh ("Acquitted") Page 7 of 10
FIR No.03/2004: PS Special Cell: U/s 25/54/59 Arms Act DOD: 02.02.2011
18. In case reported as, "1990 CCC 20", titled as, "Maluk Singh V/s State of Punjab", the Hon'ble Punjab & Haryana High Court has further held that:
"Joining of witnesses in the case of excise is not a mere formality, although there is no bar in taking into account the testimony of police witnesses, as they are also good witnesses, but to restore the confidence of general public in the investigating agency, it is always desirable that whenever any witness from the public is available, he should be joined to rule out the possibility of plantation".
19. The learned defence counsel has further relied upon the judgment of Hon'ble High Court, reported as, "1987 CC Cases 585 (HC)", titled as, "Pawan Kumar V/s Delhi Administration" that:
"It may be that there is an apathy on the part of the general public to associate themselves with the police raids of the recoveries, but that apart, atleast the IO should have made an earnest effort to join the independent witness. 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 accused".
20. The learned defence counsel has further relied upon the observations made by Hon'ble Delhi High Court in case reported as, "1991(1) CCC 14", titled as, "Nanak Chand V/s State of Delhi". I have gone through the said judgment. Hon'ble Delhi High Court in the said judgment has held that nonjoining of independent witnesses of locality in arms case caused doubt on the prosecution case.
State V/s Badan Singh ("Acquitted") Page 8 of 10 FIR No.03/2004: PS Special Cell: U/s 25/54/59 Arms Act DOD: 02.02.2011
21. Further in case reported as, "1975 CAR 309 (SC)", it has been held that:
"Prosecution case resting solely on the testimony of Head Constables and four other police constablesno independent witness examinedprosecution story appearing improbable and unnaturalheld that the prosecution case cannot be said to be free from reasonable doubt and the accused is liable to be acquitted".
22. Ld. Defense counsel further argued that the manner in which the arrest and recovery of illegal arm was shown is improbable. This casts a strong suspicion upon the prosecution story and the factum of recovery of illegal arm from the accused. These are material lapses, which goes to the root of the matter.
Court View & Final Decision:
23. In this case, the IO was having prior information regarding the accused, but despite that it appears that no sincere effort has been made by him to join any public witness even when the place of incident was a busy public place.
24. Law laid down in the aforesaid authorities, if applied on the facts of this case, then it would be definitely clear that the public witnesses were available, but the IO did not join them nor anything has been placed on record to suggest that IO even recorded the names and addresses of those persons and taken any action against them. The case of prosecution becomes doubtful. State V/s Badan Singh ("Acquitted") Page 9 of 10 FIR No.03/2004: PS Special Cell: U/s 25/54/59 Arms Act DOD: 02.02.2011
25. In view of the above discussion, I am of the considered opinion, that the prosecution has not been able to prove the charges against the accused beyond the shadow of doubt. The accused is accordingly entitled for acquittal. I order accordingly. His B/B stands cancelled, surety stands discharged. Endorsement(s), if any, either on the documents of surety or of accused be cancelled forthwith. Case property be confiscated to State. File be consigned to record room after compliance of necessary formalities.
Announced in the open court (Vinod Yadav)
on 02.02.2011 Chief Metropolitan Magistrate:
Delhi
State V/s Badan Singh ("Acquitted") Page 10 of 10