Delhi District Court
State vs . Subhash @ Nandu. on 29 April, 2019
State Vs. Subhash @ Nandu.
IN THE COURT OF SH. AJAY GARG,
CHIEF METROPOLITAN MAGISTRATE
SHAHADRA, KARKARDOOMA COURTS, DELHI
State Vs. Subhash @ Nandu.
FIR No. 330/14
U/s 25 Arms Act
PS Shahdara
JUDGMENT
a. Sl. No. of the case : 85376/16
b. Date of institution : 04.02.2016
c. Date of commission of offence : 06.06.2014
d. Name of complainant : SI Niranjan Singh, No.D3332
PS Shahdara, Delhi.
e. Name & address of accused : Subhash @ Nandu
S/o Mukesh
R/o H. No. 168, Gali No.4,
Jawala Nagar, Shahdara, Delhi.
f. Offence complained of : U/s 25/54/59 Arms Act
g. Plea of accused : Pleaded Not Guilty
h. Date when Judgment was reserved : 29.04.2019 i. Final order : Acquitted j. Date of Judgment : 29.04.2019
BRIEF FACTS FOR DECISION OF THE CASE AS UNDER :
1. Briefly stated the case of the prosecution is that on FIR No. 330/14 Page 1 of 14 State Vs. Subhash @ Nandu.
06.06.2014 at 8:10 pm at GT Road, Hanuman Mandir, Shahdara, Delhi within the jurisdiction of PS Shahdara, accused Subhash @ Nandu was found in possession of illegal arm i.e one desi katta along with one live cartridge as per seizure memo Mark A and thereby he committed an offence punishable U/sec. 25 Arms Act.
2. After filing of the police report, cognizance of offence under section 25 Arms Act was taken and the accused was called upon to face trial after complying with the requirement of section 207 of Cr.P.C.
3. On 27.02.2017, charge was framed against the accused under section 25 Arms Act to which he pleaded not guilty and claimed trial.
4. Prosecution adduced evidence in support of its case.
4.1. PW1 ASI Shripal is the investigating officer of this case. He stated that on 06.06.2014, he was posted at PS Shahdara as HC. On that day, copy of FIR and rukka were handed over to him by Ct. Lokesh at PS. Thereafter, he alongwith Ct. Lokesh went to Hanuman Mandir G.T. Road, Shahdara where he met SI Niranjan and Ct. Rohtash who handed over him accused and case property in sealed condition with the seal of NK and documents. On inquiry, accused revealed his name as Subhash @ Nandu. He formally arrested the FIR No. 330/14 Page 2 of 14 State Vs. Subhash @ Nandu.
accused and conducted personal search of accused vide memos Ex.PW1/A and Ex.PW1/B bearing his signatures at point A respectively. He recorded disclosure statement of accused Ex.PW1/C bears his signature at point A. He prepared site plan which is Ex.PW1/D bearing his signature at point A. They came back to PS and accused was put up in lock up after medical examination. Case property was deposited in Malkhana, PS Shahdara. After about 10 days, case property was sent to FSL through Ct. Praveen. After sometime, he received result from FSL and obtained sanction u/s. 39 of Arms Act to prosecute the accused from competent authority. After completion of investigation, he filed the challan in the court. He correctly identified the accused in the court.
4.2. PW2 SI Niranjan Kumar is the recovery witness of this case. He stated that on 06.06.2014, he was posted at PS Shahdara as SI. On that day, he along with Ct. Lokesh & HC Rohtas were on patrolling duty at GTB Road, Shahdara. During patrolling duty at about 7.30 PM, a secret informer came and informed him that one person wearing blue pant and black Tshirt aged about 30 years, may have intended to commit crime as he possessed illegal weapon and he may be arrested if raid can be conducted in the area GT Road, Hanuman Mandir, Shahdara. Thereafter, he tried to communicate some passersby to join the investigation and became the part of raiding party but none agreed for the same and they left the spot without disclosing their names and FIR No. 330/14 Page 3 of 14 State Vs. Subhash @ Nandu.
addresses. Due to paucity of time, no notice U/s 160 Cr.PC could be served to any of the said persons. Thereafter, he intimated the concerned SHO qua the abovesaid information and he directed to conduct the raid. Thereafter, he prepared raiding party consisting of himself, Ct. Lokesh, HC Rohtas and they along with secret informer went to GT Road, Hanuman Mandir, Shahdara and took their position. In the meantime, one person seeing them, tried to run away from there but secret informer immediately pointed towards that person and on his identification, he along with his raiding party apprehended said person at around 8.10 pm and he interrogated the accused who disclosed his name as Subhash @ Nandu. Thereafter, he formally searched the accused whereupon one country made pistol from his right side dub was recovered. On checking the abovesaid pistol, it revealed that the said pistol was loaded with one live cartridge. Thereafter, he unloaded the said pistol and prepared the sketch of the said pistol which is Ex.PW2/A bearing his signature at point A. The total length of said pistol was 23.5 CM, the length of body was 12 CM, total length of barrel was 12.8 CM. The barrel was made of iron type metal and body was made of brass metal and the same was embedded with wooden from the side of but with the help of screw. The total length of live cartridge was 7.2 CM and surface of the same was of 8 MM KF. The live cartridge was made of brass metal. Thereafter, he converted the abovesaid pistol in pulanda and sealed with the seal of NK and same FIR No. 330/14 Page 4 of 14 State Vs. Subhash @ Nandu.
was seized vide seizure memo Ex.PW2/B bearing his signature at point A. After using the seal, he handed over the same to HC Rohtas. Thereafter, he prepared the rukka Ex.PW2/C bearing his signature at point A. He handed over the rukka to Ct. Lokesh for registration of FIR and sent him to PS for the same. After some time, IO/HC Shripal along with Ct. Lokesh came at the spot and he handed over the sketch / seizure memo, FSL form, case property and accused to IO/HC Shripal as the further investigation was marked to IO/HC Shripal. Thereafter, IO recorded his statement and discharged him. He correctly identified the accused in the court. The case properties are exhibited as Ex.P1 (colly.).
4.3. PW3 HC Lokesh stated that on 06.06.2014, he was posted at PS Shahdara as Constable. On that day, he along with SI Niranjan and HC Rohtas were on patrolling duty at GTB Road, Shahdara. During patrolling duty at about 7.30 PM, a secret informer came to IO/SI Niranjan and informed him that one person wearing blue pant and black Tshirt aged about 30 years, having intention to commit a crime, is having illegal weapon and he may be arrested if raid can be conducted in the area GT Road, Hanuman Mandir, Shahdara. Thereafter, IO tried to communicate some passersby to join the investigation and became the part of raiding party but none agreed for the same and they left the spot without disclosing their names and addresses. Due to paucity of time, no notice U/s 160 Cr.PC could be FIR No. 330/14 Page 5 of 14 State Vs. Subhash @ Nandu.
served to any of the said persons. Thereafter, IO intimated the concerned SHO qua the abovesaid information and he directed to conduct the raid. Thereafter, IO prepared raiding party consisting of himself and HC Rohtas and they along with secret informer went to GT Road, Hanuman Mandir, Shahdara and took their position. In the meantime, one person upon seeing them, tried to run away from there but secret informer immediately pointed towards that person and on his identification, IO along with raiding party apprehended said person at around 8.10 pm and interrogated him who disclosed his name as Subhash @ Nandu. Thereafter, IO formally searched the accused whereupon one country made pistol from right side dub of accused was recovered. On checking the abovesaid pistol, it revealed that the said pistol was loaded with one live cartridge. Thereafter, IO unloaded the said pistol and prepared the sketch of the said pistol which is Ex.PW2/A bearing his signature at point B. The total length of said pistol was 23.5 CM, the length of body was 12 CM, total length of barrel was 12.8 CM. The barrel was made of iron type metal and body was made of brass metal and the same was embedded with wooden from the side of but with the help of screw. The total length of live cartridge was 7.2 CM and surface of the said cartridge was of 8 MM KF. The live cartridge was made of brass metal. Thereafter, IO converted the abovesaid pistol in pulanda and sealed with the seal of NK and same was seized vide seizure memo Ex.PW2/B bearing his FIR No. 330/14 Page 6 of 14 State Vs. Subhash @ Nandu.
signature at point B. After use the seal, the same was handed over to HC Rohtas. Thereafter, IO prepared the rukka Ex.PW2/C and handed over the same to him for registration of FIR. He went to the PS and handed over the rukka to DO who got the FIR registered and the investigation was marked to HC Shripal. Thereafter, he along with IO/HC Shripal returned to the spot. First IO handed over the sketch / seizure memo, FSL form, case property and accused to IO/HC Shripal as the further investigation was marked to IO/HC Shripal. The second IO arrested the accused vide arrest memo Ex.PW1/A bearing his signature at point B and conducted his personal search vide personal search memo Ex.PW1/B bearing his signature at point B. Thereafter, they returned to the PS Shahdara. His statement was recorded by the second IO. The case property is exhibited as Ex.P1 (colly.).
4.4. PW4 HC Rohtas stated that on 06.06.2014, he was posted at PS Shahdara as Constable. On that day, he along with SI Niranjan and Ct. Lokesh were on patrolling duty at GTB Road, Shahdara. During patrolling duty at about 7.30 PM, a secret informer came to IO/SI Niranjan and informed him that one person wearing blue pant and black Tshirt aged about 30 years, having intention to commit a crime is having illegal weapon and he may be arrested if raid can be conducted in the area GT Road, Hanuman Mandir, Shahdara. Thereafter, IO tried to communicate some passersby to join the investigation and became the part of raiding party but none agreed for FIR No. 330/14 Page 7 of 14 State Vs. Subhash @ Nandu.
the same and they left the spot without disclosing their names and addresses. Due to paucity of time, no notice U/s 160 Cr.PC could be served to any of the said persons. Thereafter, IO intimated the concerned SHO qua the abovesaid information and he directed to conduct the raid. Thereafter, IO prepared raiding party consisting of himself and Ct. Lokesh and they along with secret informer went to GT Road, Hanuman Mandir, Shahdara and took their position. In the meantime, one person upon seeing them, tried to run away from there but secret informer immediately pointed towards that person and on his identification, IO along with raiding party apprehended said person at around 8.10 pm and interrogated him who disclosed his name as Subhash @ Nandu. Thereafter, IO formally searched the accused whereupon one country made pistol from right side dub of accused was recovered. On checking the abovesaid pistol, it revealed that the said pistol was loaded with one live cartridge. Thereafter, IO unloaded the said pistol and prepared the sketch of the said pistol which is Ex.PW2/A bearing his signature at point C. The total length of said pistol was 23.5 CM, the length of body was 12 CM, total length of barrel was 12.8 CM and the barrel was made of iron type metal and body was made of brass metal and the same was embedded with wooden from the side of but with the help of screw. The total length of live cartridge was 7.2 CM and surface of the said cartridge was of 8 MM KF. The live cartridge was made of brass metal. Thereafter, IO FIR No. 330/14 Page 8 of 14 State Vs. Subhash @ Nandu.
converted the abovesaid pistol in pulanda and sealed with the seal of NK and same was seized vide seizure memo Ex.PW2/B bearing his signature at point C. After use the seal, the same was handed over to him. Thereafter, IO prepared the rukka Ex.PW2/C and handed over the same to Ct. Lokesh for registration of FIR. Ct. Lokesh went to the PS and handed over the rukka to the DO who got the FIR registered and the investigation was marked to HC Shripal. Thereafter, Ct. Lokesh along with IO/HC Shripal returned to the spot. First IO handed over the sketch / seizure memo, FSL form, case property and accused to IO/HC Shripal as the further investigation was marked to IO/HC Shripal. The second IO arrested the accused vide arrest memo Ex.PW1/A bearing his signature at point C and conducted his personal search vide personal search memo Ex.PW1/B bearing his signature at point C. Thereafter, they returned to the PS Shahdara. His statement was recorded by the second IO. The case property is exhibited as Ex.P 1 (colly.).
All the witnesses were crossexamined by Ld. Defence Counsel.
5. Vide order dated 01.12.2018, statement of accused under Section 294 Cr.P.C. was recorded wherein he had admitted the documents as Ex. C1 to Ex.C4 accordingly, witnesses to that effect were dropped from the list of witnesses.
FIR No. 330/14 Page 9 of 146. After closure of prosecution evidence, separate statement of accused was recorded u/sec. 281 Cr.PC r/w Section 313 of Code of Criminal Procedure, 1973. Accused denied the evidence and claimed innocence. No defence evidence was led despite opportunity.
7. Final arguments heard. Record perused. Considered.
It has been held in case of Sadhu Singh V/s State of Punjab 1997(3) Crime 55 the Hon'ble Punjab & Haryana High Court : "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."
8. Further, as per chapter 22 rule 49 of the Punjab Police Rules, which is reproduced herein for ready reference provides as under: 4:
''22.49 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 FIR No. 330/14 Page 10 of 14 State Vs. Subhash @ Nandu.
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.
9. In the present case, the above said provision appears to have not been complied with by prosecution. The relevant entries regarding the arrival and departure of the police official has not been proved on record. At this juncture, it would be relevant to refer to a case law reported as Rattan Lal V/s State, 1987 (2) Crimes 29 the Hon'ble Delhi High Court
4. "wherein it has been observed that 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."
FIR No. 330/14 Page 11 of 1410. In the instant case no sincere efforts appears to have been made by the IO to join public persons in investigation. Though prosecution witnesses admitted in their crossexamination that public persons were available at the spot. It is note worthy that I.O had not made any serious endeavour to join the passersby or residents in investigation of this case. This failure on his part goes to suggest that he did not make sincere efforts to join the passersby in the police proceedings. At least in the facts and circumstances of the present case, IO could have very well served the passersby with notice in writing requiring them to join the police proceedings or to face action u/s 187 IPC in as much as in the present case there was no possibility of accused escaping his apprehension / arrest or crime going undetected in as much as by the said time, accused stood already apprehended by the police. Failure on the part of prosecution to make sincere efforts for joining independent public witnesses in the proceedings when they are available creates reasonable doubt in the prosecution in view of the following case laws.
In a case law reported as Anoop Joshi 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 FIR No. 330/14 Page 12 of 14 State Vs. Subhash @ Nandu.
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''.
Roop Chand V/s The State of Haryana,1999 (1) C.L.R 69, the Hon'ble Punjab & Haryana High Court held as under: "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 he witnesses from the public had refused to join the investigation, the Investigating FIR No. 330/14 Page 13 of 14 State Vs. Subhash @ Nandu.
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''.
11. Furthermore, in the case in hand, seal after use on the case property was given to HC Rohtas who also happens to be a part of the team of the present case. Moreover, no handing over memo of seal was prepared by the IO. To my mind, in such circumstances, chances of fabrication with the case property cannot be ruled out, in as much as, complainant / IO is invariably interested in the conviction of the accused. Further the IO has not offered his personal search before taking the search of the accused and thus, chances of implanting the case property cannot be ruled out.
12. In view of the aforesaid discussions, I am of the opinion that prosecution has failed to prove its case against the accused Subhash @ Nandu beyond all reasonable doubts. Accordingly, accused Subhash @ Nandu stands acquitted for the offence AJAY Digitally signed by AJAY GARG punishable U/s 25 Arms Act. Location: Court NO.59, Shahdara District, GARG Karkardooma Courts, Delhi Date: 2019.04.30 12:56:29 +0530 Announced in the Open (AJAY GARG) Court on 29th April, 2019 Chief Metropolitan Magistrate Shahdara, KKD Courts, Delhi (Typed under direct dictation) FIR No. 330/14 Page 14 of 14