Delhi District Court
Criminal Case/210/2012 on 26 April, 2014
IN THE COURT OF METROPOLITAN MAGISTRATE-05,
SOUTH-WEST DISTRICT, DWARKA COURTS, NEW DELHI
Presided by: Ms. Manika
State v. Sohaib
FIR No. 210/12
Police Station : Baba Haridass Nagar
Under Section : 25 Arms Act, 1959
Unique Case ID Number: 02405R0287782012
Date of institution : 12.02.2013
Date of reserving : Oral
Date of pronouncement: 26.04.2014
JUDGMENT
a) Serial number of the case : 14/3/13
b) Date of commission of offence : 27.09.2012
c) Name of the complainant : Assistant Sub Inspector
Suresh, PIS no. 28824785
d) Name, parentage and address : Sohaib, S/o Sh. Abrar,
of the accused R/o Village and Post Office
Ashirpur, Distt. Meerut,
Uttar Pardesh.
e) Offence complained of : Section 25 Arms Act, 1959
f) Plea of the accused : Pleaded not guilty
State v. Sohaib
FIR No. 210/2012 P.S.: Baba Haridass Nagar Page 1 of 15
g) Final order : Acquitted
h) Date of final order : 26.04.2014
BRIEF FACTS AND REASONS FOR DECISION OF THE CASE
1. Vide this judgment, accused Sohaib is being acquitted of the of- fence punishable under Section 25 of the Arms Act, 1959 (hereinafter referred to as 'Act') in this case FIR No. 210/12 police station Baba Haridass Nagar by giving benefit of doubt for the reasons mentioned below.
CASE OF PROSECUTION
2. Briefly stated, the case of the prosecution as unfolded by the police report under Section 173 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C.') is that on 27.09.2012, Assistant Sub Inspector Suresh Kumar along with Constable Prem Parkash and Constable Arvind, while patrolling in the area stopped one motorcycle being driven by one Rizwan S/o Sh. Farookh and on which accused Sohaib was pillion riding. It is alleged that on suspicion, both the motorcycle riders were searched and on search of accused Sohaib, one country made pistol along with three live cartridges were recovered from the right side dub of his pant. As per the prosecution, Assistant Sub Inspector Suresh prepared the sketch of the country made pistol and the live cartridges, sealed them in a white pulanda with the seal of SK and seized them vide memo Ex. PW 1/B. It is the prosecution's case that Assistant Sub Inspector Suresh State v. Sohaib FIR No. 210/2012 P.S.: Baba Haridass Nagar Page 2 of 15 prepared tehrir and got the case registered through Constable Arvind. As per the prosecution, the motorcycle with which the aforesaid persons were apprehended was also found to be a stolen property and was accordingly seized under Section 102 Cr. P. C. and the accused persons were arrested under Section 41(1)(d) Cr. P. C. After registration of the case against accused Sohaib under Section 25 Arms Act, further investigation was marked to Head Constable Manvir Singh.
CHARGE
3. Vide order dated 20.05.2013, charge for the offence punishable under Section 25 of the Act was framed against the accused Sohaib to which he pleaded not guilty and claimed trial.
ADMISSION/DENIAL OF DOCUMENTS
4. Vide order dated 12.02.2014, in compliance with the provisions of Section 294 of the Cr.P.C., the accused was called upon to admit or deny the genuineness of FSL result bearing No. FSL 2012/F-7563 dated 31.10.2012, FIR no. 210/10 under Section 25 Arms Act police station Baba Haridas Nagar and sanction No. 32/SO-A.DCP-1/SWD under Section 39 Arms Act granted by Sh. R.K. Pandey, Additional DCP, South West District, New Delhi vide order dated 09.01.2014, which were admitted by the accused and were accordingly exhibited as Ex.P/A/1 to Ex.P/A/3 respectively. In view of the admissions made, the evidence of the Senior Scientific Officer, FSL, duty officer Head Constable Sadan Kumar and Sh. R.K. Pandey, Additional DCP was State v. Sohaib FIR No. 210/2012 P.S.: Baba Haridass Nagar Page 3 of 15 dispensed with.
EVIDENCE OF THE PROSECUTION
5. To prove its case, the prosecution in all examined five witnesses.
6. PW-1 Constable Arvind and PW-4 Constable Prem Parkash are witnesses to the recovery in the present case. PW-2 Assistant Sub Inspector Suresh is the complainant and the first investigating officer in the present case. PW-3 Constable Sachin is the police official who had taken the case property from the malkhana and deposited the same in the Forensic Science Laboratory, Rohini vide road certificate No.134/21/12 on 15.10.2012. PW-5 Head Constable Manvir Singh is the second investigating officer of the present case.
STATEMENT / DEFENCE OF THE ACCUSED
7. In his examination under Section 313 Cr.P.C., the accused denied the entire evidence put to him. He categorically stated that he is innocent and have been falsely implicated in the present case by the police officials after lifting him from Nehru Place on 26.09.2012 at 04.15 pm. ANALYSIS AND FINDINGS
8. The record has been thoroughly and carefully perused. The respective submissions of Sh. Brijesh Kumar, learned Assistant Public Prosecutor for the State and Sh. C. P. Sharma, Advocate, learned counsel for the accused have been considered.
State v. Sohaib FIR No. 210/2012 P.S.: Baba Haridass Nagar Page 4 of 15
9. The case of the prosecution is that on the fateful day accused Sohaib was found in possession of a country-made pistol and three live cartridges in contravention of the notification issued by the Delhi Administration. In order to bring home the charge against the accused, the prosecution was required to prove beyond reasonable doubt the recovery of the illegal arm and ammunition from the possession of the accused.
Re: Absence of independent witnesses
10. Evidently, no public witness to the recovery of the country-made pistol and live cartridges has been either cited or examined by the prosecution. The recovery is alleged to have been effected from the accused at the Ganda Nala Road, Jharoda Kalan, Near PVC Market Pulia. As per the police report and tehrir, the spot was an isolated place and hence no public witness could be joined in the investigation. However, PW -4 Constable Prem Parkash has admitted in his cross- examination that though there was not much crowd at the spot, few persons were passing from there. There is, however, no mention in the entire police report as to whether the investigating officer made any effort for joining public persons as witnesses to the recovery of illegal arms and ammunition from the accused. The alleged recovery of the arms and ammunition from the accused was effected from a road which of course is used by the public. Moreover, in view of the fact that as per the site plan Ex. PW2/B, the place of recovery from the accused, is surrounded by four villages, namely, Dichau Kalan, Jharoda Kalan, Isser Heri and Najafgarh, public persons from the said State v. Sohaib FIR No. 210/2012 P.S.: Baba Haridass Nagar Page 5 of 15 villages could easily have been joined in the investigation. Further, as per the prosecution case itself, the accused was arrested from the spot i.e. road near PVC Market Pulia and as such public persons would have been available in the PVC Market. However, no serious effort for joining public witnesses appears to have been made by the investigating officer or the recovery witnesses despite availability.
11. 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.P.C. also casts a statutory duty on an official conducting search to join two respectable persons of the society. Same has, however, not been done in the present case. This casts a doubt on the fairness of the investigation. Reliance is placed on the decision of the Hon'ble High Court of Delhi in Pawan Kumar v. The Delhi Administration, 1989 Cri.L.J. 127.
12. 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, 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 version but there are other circumstances too, as discussed hereinafter, which raise suspicion over the prosecution version.
Re: Departure entry doubtful
13. The present case rests entirely on the alleged recovery of case State v. Sohaib FIR No. 210/2012 P.S.: Baba Haridass Nagar Page 6 of 15 property, i.e. country-made pistol and live cartridges, from the possession of the accused at the relevant time by police officials namely Assistant Sub Inspector Suresh, Constable Arvind and Constable Prem Parkash. As per Chapter 22 Rule 49 of the Punjab Police Rules, 1934, police officials are under a statutory duty to mark their departure and arrival in the register kept in the police station for the purpose.
14. Since public persons were not joined in the investigation, the departure entries of the aforesaid police officials, i.e. Assistant Sub Inspector Suresh, Constable Arvind and Constable Prem Parkash, who were allegedly on patrolling duty when they apprehended the accused in possession of a country made pistol and live cartridges become a vital piece of evidence. Though the prosecution has placed on record a copy of DD No. 53 B dated 27.09.2012 Ex. PW5/A, the said daily diary entry has not been duly proved on record by examining the author thereof. The same has been exhibited on record by PW-5 Head Constable Manvir i.e. the investigating officer in the present case who had prepared the true copy of the same. Further, none of the above named police officials could disclose the number of their departure entry either in their examination in chief or in their cross-examination. Moreover, the rukka Ex. PW 2/A also does not find mention of the said DD entry. Hence, the possibility of the said daily dairy entry being an ante- timed and manipulated one cannot be ruled out. The said departure entry has, therefore, not been proved. Proof of the said entry is, however, indispensable as the present case rests solely on the alleged recovery made by police officials.
State v. Sohaib FIR No. 210/2012 P.S.: Baba Haridass Nagar Page 7 of 15 Re: Possibility of misuse of seal of the investigating officer
15. As per the police report, the case property was sealed with the seal of SK and the seal after use was handed over to Constable Arvind. However, the testimonies of PW-1 Constable Arvind and PW-2 Assistant Sub Inspector Suresh are totally silent on this aspect. Moreover, in the instant case, no handing over memo had been prepared regarding the seal. Further, the seal in the present case was not handed over to any independent witness nor was it deposited in the malkhana to assail the possibility of its misuse. Thus, the possibility that the case property may have been tampered with cannot be ruled out. Reliance is placed on the decision of the Hon'ble High Court of Delhi in Abdul Ghaffar v. The State, 1996 JCC 497.
Re: Personal search of accused: Formalities not complied with
16. The testimony of all the prosecution witnesses is silent as to whether PW-1 Assistant Sub-Inspector Suresh, who had conducted the cursory search of the accused Sohaib had offered his search to the accused before searching him. In the absence of any affirmative testimony, it cannot be assumed that the police official, who had conducted the personal/cursory search of the accused, had offered his search to the accused before searching him. Since the prosecution has not been able to establish that the police official, who searched and allegedly recovered the illegal arm and live cartridges from the accused, did offer his personal search before conducting the search of the accused, the possibility of the said illegal arm and live cartridges, State v. Sohaib FIR No. 210/2012 P.S.: Baba Haridass Nagar Page 8 of 15 which were brought out by the search, having been planted on the accused cannot be ruled out. Thus, this Court is wary in relying upon the version of the prosecution. Reliance is placed on the decision of the Hon'ble High Court of Orissa in Rabindranath Prusty v. State of Orissa, 1984 Cri L. J. 1392.
Re: Other infirmities in the prosecution case
17. PW-2 Assistant Sub-Inspector Suresh has deposed that first of all he prepared sketch of the country-made pistol and live cartridges recovered from accused Sohaib Ex. PW1/A and thereafter, he seized the arms and ammunition recovered from the accused vide memo Ex. PW 1/B. It was, thereafter, that he prepared the tehrir Ex. PW2/A and sent the same to the police station for registration of FIR through Constable Arvind. The FIR was, therefore, admittedly registered after the preparation of these documents Ex. PW1/A and Ex. PW1/B. Accordingly, it follows that the number of the FIR would have come to the knowledge of the complainant/investigating officer/PW-2 only after a copy of the FIR was delivered to him at the spot by Constable Arvind. Thus, ordinarily, the FIR number should not find mention in the seizure memo or sketch of country-made pistol and cartridges which came into existence before registration of the FIR. However, documents Ex. PW1/A and Ex. PW1/B bear the FIR number and other particulars. While as per PW-5 Head Constable Manvir Singh, he had put the FIR number on the documents Ex. PW1/A and Ex. PW1/B, which had been handed over to him by Assistant Sub Inspector Suresh, however, interestingly, the sketch of the country made pistol State v. Sohaib FIR No. 210/2012 P.S.: Baba Haridass Nagar Page 9 of 15 and live cartridges Ex. PW1/A and seizure memo Ex. PW 1/B bear the FIR number and case details in the same ink and the same handwriting in which the said documents are prepared. This indicates that FIR number was mentioned on the said documents while preparing the same. Reliance here is placed on the decisions of the Hon'ble High Court of Delhi in Pawan Kumar v. The Delhi Administration, 1989 Cri. L.J. 127 and Mohd. Hashim v. State, 1999 VI AD (Delhi) 569. No explanation has been furnished on record as to how the FIR number and case details have appeared on abovesaid seizure memo and sketch. The same leads one to only one inference that either the said documents were prepared later or that the FIR had been registered earlier in point of time. In both the aforesaid cases a dent is created and unexplained holes are left in the prosecution story, the benefit of which must accrue to the accused persons.
18. Another lacuna in the prosecution case which is fatal to it is that the complainant himself acted as the investigating officer. It was on the complaint of Assistant Sub-Inspector Suresh that the FIR was lodged in the present case and he, therefore, became the complainant. It is the prosecution's case that after recovery of the illegal arm and live cartridges from the possession of the accused upon his personal search conducted by Assistant Sub-Inspector Suresh Kumar prepared the sketch of the country made pistol and live cartridges recovered from the accused, seized the country-made pistol and live cartridges and thereafter prepared tehrir and sent it for registration of FIR. In Megha Singh v. State of Haryana, AIR 1995 SC 2339, the Hon'ble Apex Court observed in paragraph 4 as under:
State v. Sohaib FIR No. 210/2012 P.S.: Baba Haridass Nagar Page 10 of 15 "... We have also noted another disturbing feature in this case. PW-3, Siri Chand, head Constable arrested the accused and on search being conducted by him a pistol and the cartridges were recovered from the accused. It was on his complaint a formal first information report was lodged and the case was initiated. He being complainant should not have proceeded with the investigation of the case. But it appears to us that he was not only the complainant in the case but he carried on with the investigation and examined witnesses under S. 161, Cr.P.C. Such practice, to say the least, should not be resorted to so that there may not be any occasion to suspect fair and impartial investigation." (emphasis supplied)
19. In the instant case as well, Assistant Sub-Inspector Suresh, i.e. the complainant, acted as an investigating officer inasmuch as having apprehended the accused and recovered the country-made pistol and live cartridges from his possession, instead of informing the police station forthwith and waiting for the other investigating officer to arrive at the spot, he proceeded not only to prepare the sketch of the illegal arm and live cartridges so recovered but also sealed and seized the case property before arrival of any other investigating officer from the police station. Same leaves room for doubting the fairness of the investigation.
Re: Contradictions in the testimony of prosecution witnesses
20. There are several contradictions in the testimony of prosecution witnesses on various aspects.
21. As per PW-4 Constable Prem Parkash, they were patrolling in a State v. Sohaib FIR No. 210/2012 P.S.: Baba Haridass Nagar Page 11 of 15 private Maruti car and the same had been brought by Constable Arvind. On the other hand, as per PW-1 Constable Arvind, the vehicle on which they were patrolling was an Alto car bearing no. HR 19 F 3741 of silver colour, however, he could not tell as to who was its registered owner.
22. While as per PW-1 Constable Arvind, the sketch of the country made pistol and live cartridges was prepared on the bonnett of the car, as per PW-2 Assistant Sub Inspector Suresh, the sketch was prepared by using a card board as a base.
23. As per PW-1 Constable Arvind, he reached the police station for getting the case registered at about 05.45 pm and proceeded from the police station after registration of the FIR at about 6.15 pm, on the other hand, as per PW-5 Head Constable Manvir, he received the copy of the FIR and original rukka of the present case at about 5.45 pm through Constable Arvind.
24. PW-1 Constable Arvind deposed that the original tehrir and copy of FIR were handed over to the second investigating officer by the duty officer. However, the second investigating officer PW-5 Head Constable Manvir stated that he had received the copy of FIR and original rukka through Constable Arvind.
25. While as per PW-4 Constable Prem Parkash, the documents Ex. PW 1/A and Ex. PW 1/B, which had been prepared prior to the rukka having been sent for registration of FIR, were complete in all respects when he signed the same, as per PW-5 Head Constable State v. Sohaib FIR No. 210/2012 P.S.: Baba Haridass Nagar Page 12 of 15 Manvir Singh, he had entered the FIR number on the said documents after registration of the FIR.
26. As per PW-5 Head Constable Manvir Singh, the accused Sohaib was got medically examined on the same day, i.e. 27.09.2012, through Constable Arvind and Constable Prem Parkash, however, as per the MLC of the accused filed on record, the accused was got medically examined at about 1.57 am on 28.09.2012.
27. PW-1 Constable Arvind deposed that firstly the search of Rizwan was carried out and thereafter the search of accused Sohaib was carried out. On the other hand, PW-2 Assistant Sub Inspector Suresh stated that firstly he took the search of the accused (Sohaib) among the boys.
28. PW-5 Head Constable Manvir Singh admitted in his cross- examination that there is no ganda nala outside village Jharoda Kalan as depicted in the site plan Ex. PW 2/B. As per PW-2 Assistant Sub Inspector Suresh, the ganda nala lies after crossing village Jharoda Kalan.
29. While as per PW-2 Assistant Sub Inspector Suresh, he had remained at the spot for about 3-3½ hours, PW-4 Constable Prem Parkash stated that he had remained at the spot for about 4½ to 5 hours.
30. The aforesaid contradictions in the testimony of prosecution witnesses raise doubt on the credibility of the prosecution story.
State v. Sohaib FIR No. 210/2012 P.S.: Baba Haridass Nagar Page 13 of 15 CONCLUSION
31. The facts that no independent witness was cited or examined, the possibility of misuse of the seal of the investigating officer has not been ruled out, the appearance of FIR number and case particulars on the sketch of the weapon/cartridges and seizure memo of the case property, and the contradictions in the testimony of prosecution witnesses, when kept in juxtaposition to each other, cast a cloud of suspicion over the prosecution version. In view of the aforesaid, the possibility of the country-made pistol and live cartridges having been planted upon the accused and false implication of the accused in the present case cannot be ruled out.
32. It is trite in criminal jurisprudence that the prosecution is under an obligation to prove its case against the accused 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 in case of doubt, the benefit must necessarily be allowed to the accused.
33. Thus, this Court is of the considered opinion that the benefit of doubt ought to be granted to the accused, who is entitled to be exonerated of the charges against him in the present case. The accused is hereby acquitted of the offence punishable under Section 25 of the Act. Case property be confiscated to State as per rules.
State v. Sohaib FIR No. 210/2012 P.S.: Baba Haridass Nagar Page 14 of 15
34. File be consigned to record room.
Announced in open Court on 26.04.2014.
(MANIKA) Metropolitan Magistrate-05 (South-West), Dwarka Courts, New Delhi 26.04.2014 State v. Sohaib FIR No. 210/2012 P.S.: Baba Haridass Nagar Page 15 of 15