Delhi District Court
State vs . Yogesh Chaudhary on 1 February, 2012
IN THE COURT OF SH. SAMAR VISHAL, METROPOLITAN MAGISTRATE05,
SOUTHEAST DISTRICT, NEW DELHI
STATE VS. Yogesh Chaudhary
FIR NO: 41/05
P. S. Ambedkar Nagar
U/s 25 Arms Act
Unique ID no. 02403R0491932006
JUDGMENT
Sl. No. of the case and : 37/3 (28.9.2010) Date of its institution : 5.9.2006 Name of the complainant : Ct. Ramesh Kumar Date of Commission of offence : 18.1.2005 Name of the accused : Sh. Yogesh Chaudhary Offence complained of : Section 25 Arms Act Plea of accused : Not guilty Case reserved for orders : 1.2.2012 Final Order : AQUITTED Date of Judgment : 1.2.2012 BRIEF STATEMENT OF FACTS FOR THE DECISION:
1. This is the trial of the accused Yogesh Chaudhary upon the police report filed by
State Vs. Yogesh Choudhary 1/15 FIR no. 41/05
P.S. Shriniwas Puri u/s 25 Arms Act.
2. The prosecution story is that on 18.1.2005 at about 11.20 pm at Gali no.42, DDA Flats, in front of Madangir on the road, accused was found in possession of desi katta loaded with one live cartridge 8 mm without any valid license in contravention of Notification of Delhi Administration and he thus thereby committed an offence punishable under Section 25/54/59 of Arms Act.
3. After completing the formalities, the investigation was carried out in pursuance of which, the chargesheet u/s 25 Arms Act. The charge was framed against the accused u/ s 25 Arms Act to which he pleaded not guilty and claimed trial.
4. Thereafter, in order to prove its case, the prosecution has examined five witnesses.
5. PW 1 is HC Ramesh and PW 2 is Ct. Satyapal Singh. There testimony is to the effect that on 19.1.2005 he alongwith Ct. Satpal were checking the vehicles at Khanpur T point. At about 11.30 pm one Maruti Car was seen coming from the side of Khanpur with a number of DL 5C 7632. They stopped the said car with the help of baricades. Two persons got down from the car and tried to run away from the car. On suspicion they chased them and he apprehended one person namely Yogesh Chaudhary and Ct. Satpal apprehended another person. He conducted formal search of Yogesh, then a State Vs. Yogesh Choudhary 2/15 FIR no. 41/05 countrymade gun was recovered from the rightside pant pocket with one live cartridge. He informed the police station regarding the incident. After sometime IO/SI Jeet Singh came at the spot and he handed over him accused alongwith the case property to him. IO prepared sketch of countrymade gun vide memo EX.PW1/A, seized the gun vide memo Ex.PW1/B. IO prepared FSL form and recorded his statement vide memo Ex.PW1/C. IO prepared rukka and FIR was got registered through him. Accused Yogesh was arrested vide memo Ex.PW1/D and his personal search was conducted vide memo Ex.PW1/E. The vehicle was taken into possession vide seizure memo Ex.PW1/F. During investigation, IO also recorded disclosure statement of accused Yogesh vide memo Ex.PW1/G. (Accused has been correctly identified by the witness in the Court).
6. PW 3 is SI Jeet Singh who deposed that on 18.1.2005, he was posted as SI at PS Ambedkar Nagar. On that date DD no.30 of PP Madangir was marked to him. After receiving of DD number, he reached at Gali no. 42, DDA Flats, Madangir, where he met Ct. Ramesh and Ct. Satpal. He recorded the statement of Ct. Ramesh who handed over him accused Yogesh and recovered katta and one live cartridge. He prepared sketch of desi katta and cartridge, same is already Ex.PW1/A which bears his signatures at point B. Thereafter recovered desi katta was measured by him and tatal length of barrel is 14 cm, length of body 10 am, length of but is 10.5 and length of recovered cartridge is 7.5 cm and on base of the cartridge 8 mm and State Vs. Yogesh Choudhary 3/15 FIR no. 41/05 KF was written. He prepared FSL form at the spot. The recovered katta and cartridges was kept in a white cloth pullanda and same was sealed with the seal of JS, the seizure memo already Ex.PW1/B which bears his signatures at point B. He handed over the seal to Ct. Ramesh. After that he prepared rukka , same is already Ex.PW1/C which bears his signatures at point B and handed over the same to Ct. Ramesh for registration of FIR and the same was registered. On the instance of Ct. Ramesh site plan was prepared by him, same is Ex.PW2/A which bears his signatures at point A. He arrested the accused Yogesh present in the Court that day and his personal search was carried out vide memos Ex.PW1/D and Ex.PW1/E respectively. Both the memos bears his signatures at point B. He interrogated the accused and recorded his disclosure statement, same is already Ex.PW1/G which bears his signatures at point B. He also seized the maruti car bearing no. 7632 u/s 102 Cr.PC, same is already Ex.PW1/F which bears his signatures at point B. Body inspection of the accused was also prepared by him, same is Ex.PW2/B which bears his signatures at point A. He recorded the statement of witnesses u/s 161 Cr.PC. Case property was deposited in Malkhana of PS Ambedkar Nagar and FSL report was also obtained by him. Sanction 39 of Arms Act also obtained from the concerned authority. After completion of investigation, charge sheet was prepared by him and filed through SHO. (Accused has been correctly identified by the witness in the Court).
7. PW 4 is Sh. Puneet Puri, Senior Scientific Officer who proved his report as Ex.PW4/A State Vs. Yogesh Choudhary 4/15 FIR no. 41/05
8. PW 5 is Sh. Sanjay, Additional DCP who had given sanction u/s 39 Arms Act and proved his report is Ex.PW5/A.
9. After recording the evidence of this witness, the prosecution evidence was closed. The accused was examined under the provision of section 313 Cr.P.C. and all the incriminating evidence were put to him to which he answered that it is incorrect. Although, he stated that he does not want to lead defence evidence.
10. I have heard the Ld. APP for State and counsel for accused and perused the record.
11. It is argued by the Ld. APP for State that the case has been proved against the accused and he should be convicted.
12. On the other hand, it has been argued by Ld. Counsel for accused that no public/independent witness joined in the investigation and there are material contradictions in the testimonies of the witnesses and accused deserved acquittal.
13. The prosecution story is that, the accused was apprehended with an illegal fire arm on 18.1.2005 which he could not hold without a valid license.
14. After going through the complete evidence and records of this case I am of the view that the accused deserves acquittal in this case on the following grounds.
15. Firstly, if the police personnel who had apprehended the accused with the State Vs. Yogesh Choudhary 5/15 FIR no. 41/05 illegal fire arm were on checking duty, prosecution should have brought the relevant records showing their arrival and departure and should have proved by documentary evidence that they were on checking duty by producing DD entry for the same.
16. As per chapter 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.
17. In view of this rule, while deposing none of the prosecution witnesses has told that by what entry in the register no. II, they were patrolling in the particular area. In the present case also this provision has not been complied with by the prosecution witnesses. The relevant entries regarding the arrival and departure of the police officials has not been proved on record. It has been held in Rattan Lal Vs. State 1987 (2) Crimes 29 the Hon'ble Delhi Hgih Court held that;
"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 State Vs. Yogesh Choudhary 6/15 FIR no. 41/05 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."
18. This evidence is necessary to prove the presence of the witnesses on the spot in the discharge of their official duties. However, it also appears that the PW 1 and PW 2 the witnesses who recovered the fire arm were not validly checking the vehicles and therefore, might not have made any DD entries and for this reason those DD entries were intentionally withhold. These witnesses have admitted in their cross examination that they were not having any directions to check the vehicles. It means even the fact of their being checking the vehicles is doubtful.
19. Apart from this, their presence at the spot is not proved. If they had departed from PS for patrolling duty the entry to this effect must exist in the Roznamancha but that has not been proved, raising an adverse presumption against the prosecution U/s 114 (g) of the Evidence Act that if the said Roznamancha had been produced it would have not shown their departure as all.
20. The next defence is that the public witness are not joined in the investigation. From the overall testimony of the witness, it appears that no effort, what to talk of a sincere/vague effort has been made to join the public persons in the investigation. All the witnesses examined by the prosecution are the police witnesses. Not even a single public witness has been examined by the prosecution not joined in the investigation and no reason has been put forward by the prosecution witnesses that for what reason they are unable to gather support from public or independent State Vs. Yogesh Choudhary 7/15 FIR no. 41/05 witnesses to establish the guilt of the accused. Although, it can be said that it was a chance recovery but the incident had occurred at 11.30 pm and at that time from a busy locality and therefore, it cannot be said that no public person would have been available at the spot and even if the prosecution has not the public witnesses it was incumbent upon the prosecution to at least put forward the reasons for not doing so. The failure on the pat of the police personnels goes to 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 in view of the following case law. In the case 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 the police in investigation as a citizen, which is an offence under the IPC."
21. During the investigation of the case no public witnesses were joined nor there are seems to be any sincere efforts made in this regard, when it was possible to do so, which makes the case of the prosecution weak and suspicion. Since all the State Vs. Yogesh Choudhary 8/15 FIR no. 41/05 witnesses are police personnels and the necessary safeguards in the investigation has not been followed by the investigating officer, I am of the view that chances of false implication cannot be ruled out at the instance of the police.
22. The third reason which prompts me not to believe prosecution's case is the contradictions and falsehoods in the testimony of the witnesses. The incident is of 18.1.2005. PW 1 deposed that incident is of 19.1.2005. In cross examination he says that FSL form was filled on the spot. However, no such FSL form is placed in the record. A document can be proved only by a document and therefore, the testimony of this witness that FSL form was filled up on the spot in the absence of that form is not reliable. The testimony of PW 1 and PW 2 are further impeached in cross examination when they were asked that how many peoples were checked by them to which PW 2 answered that he is not aware of that fact because they do not keep any record of that. This contradicts PW 1 who says that the record of vehicles are kept in a diary. However, that diary has not been placed on record in the Court. FSL form is an important document.
In Desh Raj @ Dass V/s State, 83 (2ourt000) DLT 262, Hon'b'le court was dealing a case under Section 402 IPC and 25 Arms Act. In that case, it was held in para 25 that " Neither depositing the CFSL form in the Malhkana nor sending it alongwith the sample parcel to the office of the CFSL puts a question mark on the credibility of the prosecution version."
23. In Lalman Vs. State 75(1998) DLT 224, it was observed that "CFSL form is a valuable safeguard to ensure that the sample is not tempered with till its analysis by the CFSL analyst. The CFSL form should not only be prepared and sealed by State Vs. Yogesh Choudhary 9/15 FIR no. 41/05 the officer making the seizure at the place where the case property is seized from the accused, it should also be sealed by the SHO to whom the sample and case property is handed over and the same should accompany the sample to the CFSL. The purpose of the specimen seal is to compare the same with the seals on the sample parcels meant for analysis and report by CFSL to ensure that the purity of samples are not tempered with. In the absence of the CFSL form, it cannot be said that the purity of the sample remained intact. Benefit of its absence should go the accused." The same view was taken in Rajan Ali vs. The State( Delhi Administration) 81(1999)DLT 194 by Delhi High Court. Recently in the case of Bijay vs. State ( G.N.C.T. Of Delhi), 2011 VI AD (DELHI)562, Hon'ble Mr. Justice Suresh Kait, also observed the same. Reverting to the facts of the case and the evidence led in this regard the same would show that none of the prosecution witness testified that the CFSL Form was also prepared at the spot nor has been proved on the record. As held in the aforesaid judgments and especially recently in the case of Bijay vs. State ( G.N.C.T. Of Delhi), 2011 VI AD (DELHI)562, I opine that the nonsending the FSL form to the FSL alongwith the samples and not proving the same on the record renders the case of the prosecution doubtful and, I am not inclined to rely upon the same so as to convict the accused.
24. Not only this, there is delay in sending the contraband to CFSL. The arm State Vs. Yogesh Choudhary 10/15 FIR no. 41/05 was seized on 18.1.2005 and the same was sent on 31.3.2005.
In the judgment of Modan Singh Vs. State of Rajasthan, (1978)4SCC 435 the effect of the inordinate delay in sending the recovered arms was considered by the Hon, ble Supreme Court in the para 9 of the judgment in the following words:
9 .........The recovery of the pistol, Ex. 8 from the person of Modan Singh was on the 20th December at the police station itself and the recovery memo is Ex. P. 23.
An empty cartridge, a live cartridge and a pistol case was recovered from the house of Modan Singh on the 23rd and the seizure memo was prepared but the prosecution failed to lead evidence that the material objects were properly kept till they were sent to the expert on 621967 by a special messenger. The investigating officers would only say that the material objects were kept sealed upon 14.12.1966. The prosecution is silent as to in whose custody the material objects were till 6.2.1967 ......................................." In Desh Raj @ Dass V/s State, 83 (2000) DLT 262, 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, the Hon'ble Court took the view that the delay of 12 days in sending the samples to the CFSL proved fatal to the prosecution. In Valsala Vs. State of Kerala 1993 Crimes 276(SC) and later in State of Gujarat Vs. Ismail U Haji Patel (2003)12 SCC 29, the Hon'ble Supreme Court held that State Vs. Yogesh Choudhary 11/15 FIR no. 41/05 the delay per se would not be material. What had to be established was that the seized articles were in proper custody and in the proper form and that the sample sent to the chemical analyst for testing was the same that was seized.
25. In Satinder Singh Vs. State (NCT of Delhi) 69(1997) DLT577, it was held that the oral evidence which is contrary to the documentary evidence ought not to be relied upon. Hence, in my considered opinion, this inordinate delay in sending the case property to the FSL has proved fatal to the cause of the prosecution, especially so when there is no explanation has been put forth in this regard. As held by the aforesaid propositions of law I have no hesitation in holding that due to said reason the prosecution case becomes doubtful and consequently falls short of being proved beyond reasonable doubt.
26. The other discrepancy in the investigation is that the seal was handed over to the member of the raiding party itself i.e Ramesh as per the testimony of investigating officer.
27. In the judgment of Ramji Singh V/s State of Haryana 2007 (3) R.C.R. (Criminal) 452, the Hon'ble Punjab and Haryana High Court held in Para No. 7 as "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 State Vs. Yogesh Choudhary 12/15 FIR no. 41/05 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". In Rajesh Jagdamba Avasthi Vs. State of Goa, (2005)9 SCC 773, in para 15 of the judgment in this regard the Hon'ble Supreme Court held as under:
"15............................In these circumstances there is justification in the argument that since the seal as well as the packets remained in the custody of the same person, there was every possibility of the seized substance being tempered with, and that is the only hypothesis on which the discrepancy in weight can be explained. The least that can be said in the facts of the case is that there is serious doubt about the truthfulness of the prosecution case." PW3 Retd. SI Surat Singh deposed that the seal after use was handed over to PW5 Ct. Hari Om who also corroborated the version of the PW3. It is beyond comprehension as to why the seal was handed over to PW5 especially when the complainant Jai Narain was also present there. While relying upon the judgment of Rajesh Jagdamba Avasthi Vs. State of Goa, (2005)9 SCC 773, in Bijay vs. State ( G.N.C.T. Of Delhi), 2011 VI AD (DELHI)562, Hon,ble Court held in para 34 of the said judgment that " after sealing the sample, the seal was not handed over to an independent person, rather he State Vs. Yogesh Choudhary 13/15 FIR no. 41/05 kept with him only, which also creates doubt on the sample whether the samples, were intact and not tempered with.
28. One more discrepancy is that the FIR was registered after the seizure memo and arrest memo etc of the accused despite that these documents contains the FIR number which were not known prior to the registration of FIR.
29. In the judgment of Giri Raj V/s State 83 (2000) DELHI LAW TIMES 201, the Hon'ble High Court of Delhi held in Para 5 as "The prosecution has not offered any explanation whatsoever as to under what circumstances number of the FIR Ex. PW2/A had appeared on the top of the said documents, which were allegedly on the spot before its registration. This gives rise to two inferences that either the FIR (Ex. PW 2/A) was recorded prior to the alleged recovery of the contraband or number of the said FIR was inserted in these documents after its registration. In both the situations, it seriously reflects upon the veracity of the prosecution version and creates a good deal of doubt about recovery of the contraband in the manner alleged by the prosecution. That being so, the benefit arising out of such a situation must necessarily go to the appellant". The same view was adopted in the case of Mohd. Hashim, Appellant Vs. State, 2000 CRI.L.J 1510, Pawan Kumar Vs. Delhi Administraton,1987 CCC 585 and Mewa Ram Vs. State 2000 State Vs. Yogesh Choudhary 14/15 FIR no. 41/05 CRI.L.J114. In the present case admittedly the seizure memo and the sketch of the country made pistol would show that they contained the FIR number on the same but there is no explanation furnished by the prosecution as to how and under what circumstances the same has appeared. The same causes a reasonable doubt in the prosecution story as held in the judgments mention herein above.
30. Lastly, the case property was kept in police station for a long time, still there is no evidence that it remained in save custody. It has been observed by Hon'ble High Court of Delhi in Karambir Vs. State 1997 JCC 520 that "In this regard it was also pointed out that Moharrar Malkhana with whom the case property was deposited, was not examined by the prosecution. Besides it was further pointed out by the learned counsel for the petitioner that the Investigating Officer, RW 3 had not stated that he had deposited the specimen impression of the seal with the Moharrar Malkhana alongwith the case property".
31. On the basis of aforesaid discussions, the accused is acquitted of the offence u/s 25 of Arms Act.
Announced in the open court (Samar Vishal)
on 1.2.2012 Metropolitan Magistrate05,
South East, New Delhi
State Vs. Yogesh Choudhary 15/15 FIR no. 41/05