Delhi District Court
State vs . Vinod Vats @ Vicky on 19 May, 2022
IN THE COURT OF MS. ARCHANA BENIWAL
CHIEF METROPOLITAN MAGISTRATE:
SOUTH WEST DISTRICT, DWARKA COURT,
NEW DELHI
FIR No. 120/2017
PS Crime Branch
State Vs. Vinod Vats @ Vicky
U/s 25 Arms Act
JUDGMENT
CNR No. : DLSW02-024430-2018
CIS No. : 24385/2018
Date of institution of the case : 08.06.2018
Date of commission of offence : 23.07.2017
Name of the complainant : HC Anil Kumar
PS Crime Branch
Name of accused and address : Vinod Vats @ Vicky
S/o Sh. Ramesh Vats
R/o A-4, Chander Vihar
Palam Ext. Sector-7,
Dwarka, New Delhi.
Offence complained of : U/s 25 Arms Act
Plea of the accused : Pleaded not guilty.
Final order : Acquittal
Date on which judgment reserved : 05.05.2022 Date of judgment : 19.05.2022 FIR No. 120/2017, PS Crime Branch State Vs. Vinod Vats @ Vicky Page No. 1 of 12 BRIEF STATEMENT OF THE FACTS FOR DECISION:
1. The brief facts of the case of the prosecution are that on 23.07.2017, at about 05.10 PM, at Service Road, Near Red Light, Sector 6/7, Dwarka, New Delhi, accused Vinod @ Vicky was found carrying one country made pistol and two live cartridges in his trouser, in contravention of notification issued by Govt. of Delhi. After completion of the investigation, charge-sheet was filed against the accused u/s 25 Arms Act.
2. On receipt of chargesheet, cognizance of offence was taken and accused was summoned. After supply of copy of chargesheet, a formal charge was framed u/s 25 of Arms Act against the accused to which he pleaded not guilty and claimed trial.
3. Prosecution has examined five witnesses to prove its case.
4. PW-1 HC Anil deposed that on 23.07.2017, at around 03:00 PM, one secret informer told him that one Vinod @ Vicky will come from Maxfort School, Palam Extension at around 04:30-05:30 PM and will go towards Sector-6 or 7 Dwarka in one Hyundai Xcent car bearing No. DL2FBG 0061 carrying illicit weapon with him. Upon receipt of information, one raiding party consisting of himself, SI Rohit, ASI Yudhvir, ASI Bijender, ASI Virender, ASI Hanuman and the secret informer was formed. Thereafter, SI Data Ram lodged DD No. 6 Ex. PW1/A regarding their departure. Thereafter, PW-1 alongwith SI Data Ram, ASI FIR No. 120/2017, PS Crime Branch State Vs. Vinod Vats @ Vicky Page No. 2 of 12 Yudhvir and secret informer went from the office on private wagon R car and SI Rohit, ASI Bijender, ASI Virender and ASI Hanuman left from the office in Maruti Swift car at around 03:40 PM. At around 04:00 PM, they reached at the spot. They parked their vehicle after taking U-turn in service road of Maxfort School on the service lane and Maruti Wagon R car was parked behind the Swift car at some distance. PW-1 requested 4-5 passersby to join the investigation, however, they all refused to join investigation without disclosing their names and addresses. At around 05:00 PM, one person came from the side of Maxfort School, Palam Extension in Hyundai Xcent Car DL 2FBG 0061. Secret informer pointed out Vinod @ Vicky. PW-1 signaled SI Rohit who was sitting in the swift car. Thereafter, PW-1 and SI Rohit stopped the Hyundai and parked their vehicle and vehicle of accused on the side of road. Thereafter, PW-1 took the cursory search of accused and one pistol was recovered from the right side waist of accused. 9 mm made in Italy auto pistol was written on one side of pistol. PW-1 checked the magazine of pistol and found two live cartridges on which 9 mm 21 KF-03 was written on the bottom. The butt was having some wooden piece on both the sides. PW-1 measured pistol and two live cartridges and prepared the sketch Ex.PW1/B. The total length of pistol was 22 cm, barrel was 17 cm and length of the butt was 9.8 cm. Total length of live cartridge was 3.0 cm each. Thereafter, PW-1 placed the entire case property in one white cloth and prepared pulanda of the same and sealed the same with the seal of DR. Case property was seized vide seizure memo Ex. PW1/C. Form FSL was filled at the spot which was duly sealed with the seal of DR.
FIR No. 120/2017, PS Crime Branch State Vs. Vinod Vats @ Vicky Page No. 3 of 12 Seal after use was handed over to ASI Virender. Thereafter, PW-1 prepared rukka Ex. PW1/D. He further deposed that at around 06:30 pm, he handed over the rukka to ASI Virender for registration of FIR. Thereafter, ASI Dinesh reached at the spot. Thereafter ASI Virender reached at the spot. PW-1 handed over the case property with documents of case and accused to ASI Dinesh. ASI Dinesh prepared the site plan Ex. PW1/E at his instance. IO recorded his statement and thereafter, he left the spot. He correctly identified accused Vinod @ Vicky before the court. He also correctly identified case property Ex. P-1(Colly.).
5. ASI Virender has been examined as PW-2. He deposed on the same lines as by the PW-1. He proved seal handing over memo as Ex. PW2/A, arrest memo of accused as Ex. PW2/B, seizure memo of car of accused as Ex. PW2/C and personal search memo of accused as Ex. PW2/D.
6. ASI Dinesh Kumar has been examined as PW-3. He deposed that on 23.07.2017, Duty Officer (Crime) telephonically informed that HC Anil had got FIR registered and the investigation of the case has been marked to him. He also informed him about the spot. Thereafter, PW-3 at about 10:20 PM, reached at the spot where HC Anil, SI Data Ram, SI Rohit, ASI Yudhvir, ASI Bijender, ASI Hanuman, ASI Virender were met him. HC Anil handed over accused alongwith case property and the documents of the case prepared by him to PW-3. ASI Virender handed over copy of FIR alongwith rukka and certificate U/s 65 B of Indian Evidence Act to him. Thereafter, FIR No. 120/2017, PS Crime Branch State Vs. Vinod Vats @ Vicky Page No. 4 of 12 PW-3 interrogated the accused. PW-3 also entered the particulars of the case on the documents prepared by HC Anil prior to the registration of FIR. Thereafter, PW-3 prepared site plan Ex. PW1/E at the instance of HC Anil. He further deposed that he recorded supplementary statement of HC Anil and thereafter, HC Anil was relieved from the investigation. Thereafter, PW-3 seized Ascent Car bearing no. DL2FBG0061 vide seizure memo Ex. PW2/C. He further deposed that he recorded disclosure statement of accused vide memo Ex. PW3/A and arrested the accused vide arrest memo Ex. PW2/B and conducted personal search memo of accused Ex. PW2/D. He further deposed that thereafter, they left the spot alongwith accused and case property for depositing the case property to Malkhana PS Crime Branch. He deposited the case property in the Malkhana. Thereafter, accused led the police party to Dwarka More for finding out the source of weapon. Thereafter, they came back to the office. He recorded the statement of witnesses. Accused was produced before the concerned court from where he was sent to JC. On 01.08.2017, PW-3 deposited the case property after taking the same from MHC(M) in FSL Rohini for forensic examination. He further deposed that during the investigation he enquired from Jitender who was the registered owner of the Ascent car who told him that he had already sold the said car to one Partap Singh. PW-3 also enquired from Partap Singh who told that he had further sold the said car to Manoj. PW-3 also enquired from Manoj who told that he had purchased the car from Partap Singh but the same was not got transferred in his name, his statement was recorded in this regard. Accused Vinod is the real brother of Manoj.
FIR No. 120/2017, PS Crime Branch State Vs. Vinod Vats @ Vicky Page No. 5 of 12 He further deposed that on 24.10.2017, he collected FSL result and the case property from FSL Rohini and deposited the same in Malkhana. During investigation, he moved an application for getting the sanction U/s 39 Arms Act and got the same on 08.12.2017. Same is Ex. PW3/B. During investigation, he recorded statement of witnesses and after completion of investigation, filed the charge-sheet in the court. He correctly identified accused before the court.
7. Sh. Manoj Kumar Vats has been examined as PW-4. He deposed that he is registered owner of car bearing no. DL2FBG0061 (ascent car, white colour). He further deposed that he was informed in the month of July 2017 that police had apprehended his car in the present case and he went to Crime Branch where he handed over photocopies of affidavit and RC pertaining to Jitender Kumar Singh. He further deposed that he got released the vehicle on superdari vide superdarimana Mark- 4A. He proved seizure of his documents Ex. PW4/A and photographs of his vehicle as Ex. P1 to Ex.P4.
8. HC Karan Singh has been examined as PW-5. He deposed that he had brought register no. 19 of case property deposited by HC Anil on 23.07.2017 vide serial no.2670/17 and as per the said serial number, HC Anil had deposited one pistol alongwith two live cartridges. Same is Ex. PW5/A.
9. No other witness was examined by prosecution and hence, PE was closed vide order dated 15.03.2022.
FIR No. 120/2017, PS Crime Branch State Vs. Vinod Vats @ Vicky Page No. 6 of 12
10. Statement of accused under Section 313 Cr.P.C. was recorded wherein the entire incriminating evidence was put to him. According to him, he has been falsely implicated in the present case. Accused chose not to lead any evidence in his defence and hence the matter was put up for final arguments.
11. Final arguments were thereafter heard on behalf of State as well as the accused.
12. After hearing ld. APP for the state and ld. counsel for the accused and having gone through the case file carefully and meticulously, it is observed by the court that it is the case of prosecution that on the fateful day accused was found in possession of illegal firearm without any permit or license. The court is of the view that to prove the charge against the accused, the prosecution is required to prove the allegation beyond reasonable doubt.
13. The relevant portion of Arms Act is reproduced as under:
Section 25: Punishment for certain offences:-
(1) whoever-
(a) Manufactures, sells, transfers, converts, repairs, tests or proves, or exposes or offers for sale or transfer, or has in his possession for sale, transfer, conversion, repair, test or proof, any arms or ammunition in contravention of section 5; or
(b) Shortens the barrel of a firearm or converts an imitation firearm into a firearm in contravention of section 6; or 2[***]
(c) bring into, or takes out of, India, any arms or ammunition of any class or description in contravention of section 11, shall be punishable with imprisonment for a FIR No. 120/2017, PS Crime Branch State Vs. Vinod Vats @ Vicky Page No. 7 of 12 term which not be less than three years but which may extend to seven years and shall also be liable to fine.
14. As per the prosecution case, the sketch memo of the weapon Ex.PW1/B and the seizure memo Ex.PW1/C were prepared before the preparation of rukka. However, the said documents contain the number of the FIR which shows that either the FIR number was inserted later on or they were prepared before the time they have been shown to be prepared. Furthermore, the weapon and cartridges have been seized by the IO on 23.07.2017 but as per the FSL report, the same have been deposited in the FSL on 01.08.2017. Even the seal has been handed over to ASI Virender Singh after use. Thus, the chances of tampering with the case property cannot be ruled out and the delay in sending the articles for examination is fatal for the prosecution. While holding so, I am relying upon judgment of Apex Court in Deshraj @ Dass Vs. State 83 (2000) DLT 262, wherein Apex Court while relying upon the judgments of Hon'ble Supreme Court in Baldev Singh vs. State of Punjab 1991 CAR 81 and Santa Singh vs. State of Punjab AIR 1956 SC 526, had held that the delay of 12 days in sending the samples to the CFSL proved fatal to the prosecution.
15. In the rukka Ex.PW1/D it has been stated that police officials did ask 4-5 public persons to join the proceedings however they refused citing just reasons. Further, PW1 stated that no public witness agreed to give statement. However, PW-1 has not stated the description of the persons who had allegedly refused to join the investigation. Further, there is nothing on FIR No. 120/2017, PS Crime Branch State Vs. Vinod Vats @ Vicky Page No. 8 of 12 record to show that PW-1 had served any notice under Section 160 Cr.PC. upon the persons who refused to join the investigation. Thus, the prosecution has failed to prove that any serious effort was made by PW-1 to join public witnesses in the proceedings. It is a well settled proposition that non-joining of public witness shrouds doubt over the fairness of the investigation by police.
16. In case law reported as "Anoop Joshi Vs. State" 1992 (2) C.C. Cases 314 (HC), High Court of Delhi had observed as under:-
"18. It is repeatedly laid down by this Court 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 evidence 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 the police in investigation as a citizen, which is an offence under the IPC".
17. 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 FIR No. 120/2017, PS Crime Branch State Vs. Vinod Vats @ Vicky Page No. 9 of 12 join the investigation but they refused to to 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 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 provision of law. The failure to do so by the police officer is suggestive of the fact that the explanation for non-joining 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".
18. Non joining of public witnesses despite availability casts a doubt on the fairness of the investigation. Reliance is placed on paragraph 6 of the judgment in Pawan Kumar v. The Delhi Administration, 1989 Cri.L.J. 127, wherein the Hon'ble High Court of Delhi had observed as under:
" ... According to Jagbir Singh, he did not join any public witness in the case while according to Kalam Singh, no public person was present there. It hardly stands to reason that at a place like a bus stop near Subhas Bazar, there would be no person present at a crucial time like 07.30 p.m. when there is a lot of rush of commuters for boarding the buses to their respective destinations. Admittedly, there FIR No. 120/2017, PS Crime Branch State Vs. Vinod Vats @ Vicky Page No. 10 of 12 is no impediment in believing the version of the Police officials but for that the prosecution has to lay a good foundation. At least one of them should deposed that they tried to contact the public witnesses or that they refused to join the investigation. Here is a case where no effort was made to join any public witness even though number of them were present. No plausible explanation from the side of the prosecution is forthcoming for not joining the independent witnesses in a case of serious nature like the present one. It may be that there is an apathy on the part of the general public to associate themselves with the Police raids or the recoveries but that apart, at least the I.O. should have made an earnest effort to join the independent witnesses. 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 the accused."
19. 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 but there are other circumstances too, as discussed hereinafter, which raise suspicion over the prosecution version.
20. Further, the seal remained with a junior police official only and it has not been proved that the seal was handed over to any other independent public person and therefore, the possibility of sample being tempered with cannot be ruled out. Reference may be made to the judgment of Subeg Singh v. State of Haryana, reported as 1992(3) RCR (Criminal) 596. In the judgment titled as Karambir v. State of Delhi reported as 1997 JCC 520 it has FIR No. 120/2017, PS Crime Branch State Vs. Vinod Vats @ Vicky Page No. 11 of 12 been held that absence of proof that the specimen impression of the seal was deposited with MHCM(M) along with case property results in miscarriage of justice and is fatal to the prosecution.
21. 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.
22. Thus, in view of the foregoing analysis, 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 Arms Act.
23. Accused is not furnishing personal band and surety bond in terms of Section 437A Cr.P.C as he is facing life imprisonment in some other case.
24. File be consigned to Record Room after necessary compliance. Digitally signed by ARCHANA ARCHANA BENIWAL Pronounced in the open court on this BENIWAL Date:
2022.05.26 19th May 2022 17:08:44 +0530 (ARCHANA BENIWAL) Chief Metropolitan Magistrate South West District, Dwarka Courts New Delhi FIR No. 120/2017, PS Crime Branch State Vs. Vinod Vats @ Vicky Page No. 12 of 12