Delhi District Court
State vs . Bhupender Singh @ Bhuppi 2019.09.04 on 3 September, 2019
IN THE COURT OF SH. MANISH KHURANA,
CHIEF METROPOLITAN MAGISTRATE, NEW DELHI DISTRICT,
PATIALA HOUSE COURTS, NEW DELHI
Digitally
FIR No. 18/15 signed by
PS : Special Cell MANISH
MANISH KHURANA
U/s : 25 Arms Act
KHURANA Date:
State Vs. Bhupender Singh @ Bhuppi 2019.09.04
Unique ID No. : 52135/16 11:38:33
+0530
Date of institution of case : 05.05.2015
Date of reserving the judgment : 20.08.2019
Date of pronouncement of judgment : 03.09.2019
JUDGMENT
1. S. No. of the Case : 67/02/15
2. Date of Commission of Offence : 07.03.2015
3. Name of the complainant : SI Vinay Kumar,
Special Cell/NDR,
Lodhi Colony, Delhi.
4. Name,parentage & address of accused : Bhupender Singh @
Bhuppi S/o Lt. Sh.
Jagbir Singh,
R/o. Village Sharifabad
Rajpur, PS & Tehsil
Loni, Ghaziabad, UP.
5. Offence complained of : u/s 25 Arms Act
6. Plea of Accused : Pleaded not guilty
7. Final Order : Acquitted
Case of the Prosecution
1. The case of the prosecution against the accused Bhupender Singh @ Bhuppi is that on 07.03.2015 at about 7:20 pm at main Ring Road near Sarai Kalen Khan Bus Adda, Delhi, within the jurisdiction of PS Special Cell, the accused Bhupender Singh @ Bhuppi was found in possession of one pistol and four live cartridges which were firearm and ammunition, as per seizure memo dt.
FIR No. 18/15 PS Special Cell State Vs. Bhupender Singh @ Bhuppi 1/13 07.03.2015, without valid authority or proper licence and he thereby committed the offence u/s 25 Arms Act. On completion of the investigation, chargesheet was filed in the Court against accused.
2. Copies were supplied to the accused. Charge for the offence u/s 25 Arms Act was framed against the accused to which he pleaded not guilty and claimed trial. Vide statement recorded u/s 294 Cr.PC, accused admitted copy of FIR as Ex.A1, FSL result as Ex.A2 and Sanction u/s 39 Arms Act as Ex.A3.
3. In order to prove its case, prosecution examined five witnesses.
4. PW1 Mohd. Islam deposed that he was working as a head of TSR stand at Sarai Kalen khan. He further stated that he did not remember the date, month but it was year 2015 when the incident in question took place and on the day of incident, the crowd gathered outside Bus stand and he reached there and saw that accused Bhupender was sitting in Tavera car of police. He further stated that at that time police official was having one pistol in his hand and they were preparing some documents and on request of the police, he joined the investigation. He further stated that nothing was recovered from the possession of accused in his presence. He signed the sketch of recovered pistol and cartridges Ex.PW1/A prepared by police. He further stated that police official seized the said recovered pistol and cartridges vide memo Ex.PW1/B and he signed the said memo. He did not remember whether police recorded his statement or not. He identified the case properties i.e. pistol Ex.P1, empty cartridge is Ex.P2 and three live cartridges collectively Ex.P3 (colly). The PW1 was put some questions by the Ld. APP for the State and he answered that he had forgotten due to lapse of time. He admitted that on the day of incident all police officials were in civil uniform. He denied the suggestions putforth by Ld. APP for State that pistol was recovered from the possession of accused from his right side pocket of his pant alongwith and four live cartridges. This witness was not cross FIR No. 18/15 PS Special Cell State Vs. Bhupender Singh @ Bhuppi 2/13 examined by Ld. LAC for accused.
5. PW2 Constable Sanjeet deposed that on 07.03.2015 he was posted as Constable at Special Cell /NDR, Lodhi Colony, Delhi and on that day at about 04:30 pm, Ct. Abhishek telephonically informed Insp. Sanjay Dutt that accused namely Bhuppi would come at Sarai Kale Khan Bus Stop at about 06:30 pm who was carrying illegal weapon and if raided, he would be apprehended. He further stated that Insp. Sanjay Dutt prepared the raiding party on the instructions of Senior officers consisting of Insp. Sanjay Dutt, Insp. Dharmender Kumar, SI Vinay Kumar, SI Sumit, SI Rakesh Malik, ASI Udaibeer Singh, HC Satender, HC Vinod, HC Suresh, HC Sushil and Ct. Jitender Kumar including him and at about 05:15 pm, they left from the Special Cell, Lodi Colony by one government vehicle and two motorcycles and reached at Sarai Kale Khan Bus Stop at about 05:45 pm, where Ct. Abhishek and Secret Informer were already present. He further stated that Insp. Sanjay Dutt confirmed the information after talking to Secret Informer and on the instructions of Insp. Sanjay Dutt, they took their positions at Sarai Kale Khan Bus Stop and at about 07:00 pm, accused Bhupender @ Bhuppi came from ITO side and stopped at exit gate of bus stop and started waiting for someone. He further stated that at about 07:05 pm when accused proceeded, Insp. Sanjay Dutt instructed them to apprehend the accused and after seeing them, accused tried to run away but SI Vinay and Ct. Abhishek apprehended the accused. Accused also scuffled with them and also disclosed his name. He further stated that one public witness Islam voluntarily and independently joined the investigation and SI Vinay took cursory search of the accused and found one pistol from left dub of the accused alongwith found four live cartridges in the magazine. He further stated that SI Vinay prepared sketch of pistol and cartridges Ex.PW1/A and kept in white cloth and prepared pulanda and seized vide memo Ex.PW1/B and seal after use FIR No. 18/15 PS Special Cell State Vs. Bhupender Singh @ Bhuppi 3/13 was handed over to SI Sumit. He further stated that SI Vinay prepared the therir and handed over to him and at about 08:30 pm he left the spot for PS Special Cell. He further stated that after registration of FIR, he handed over the copy of FIR and original therir to SI Satish Kumar. He identified accused in the court. He identified case properties Ex.P1, Ex.P2 and Ex.P3. This witness was crossexamined by Ld. LAC for accused.
6. PW3 SI Sumit Kumar deposed that on 07.03.2015 he was posted as SI at Special Cell /NDR, Lodhi Colony, Delhi and on that day at about 04:30 pm, Ct. Abhishek via telephonically informed Insp. Sanjay Dutt that accused namely Bhuppi was coming at Sarai Kale Khan Bus Stop at about 06:30 pm who was carrying illegal weapon and if raided, he would be apprehended. He further stated that Insp. Sanjay Dutt prepared the raiding party on the instructions of Senior officers consisting of Insp. Sanjay Dutt, Insp. Dharmender Kumar, SI Vinay Kumar, Ct. Sanjit, SI Rakesh Malik, ASI Udaibir Singh, HC Satender, HC Vinod, HC Suresh, HC Sushil and Ct. Jitender Kumar including him and at about 05:15 pm, they left from the Special Cell, Lodi Colony by one government vehicle bearing no. DL1CM 6221 and two motorcycles and reached at Sarai Kale Khan Bus Stop at about 05:45 pm, where Ct. Abhishek and Secret Informer were already present. He further stated that SI Vinay asked 5/6 passersby to join the raiding team but none had agreed and left the spot without disclosing their names and addresses. He further stated that Insp. Sanjay Dutt confirmed the information after talking with Secret Informer and on the instructions of Insp. Sanjay Dutt, they took positions at Sarai Kale Khan Bus Stop. He further stated that at about 07:00 pm accused Bhupender @ Bhuppi came from ITO side and stopped at exit gate of bus stop and started waiting for someone. He further stated that at about 07:05 pm when accused proceeded, Insp. Sanjay Dutt instructed raiding team to apprehend accused and on FIR No. 18/15 PS Special Cell State Vs. Bhupender Singh @ Bhuppi 4/13 seeing them, accused tried to run away but SI Vinay and Ct. Abhishek apprehended the accused. He further stated that accused also scuffled with them and on interrogation, accused disclosed his name as Bhupender Singh @ Bhuppi. He further stated that at the instance of IO, one public witness namely Islam voluntarily and independently joined the investigation and SI Vinay conducted the cursory search of accused and found one pistol from the left dub of accused and SI Vinay unloaded pistol and found four live cartridges inside the magazine. He further stated that SI Vinay prepared the sketch of pistol and cartridges Ex.PW1/A and filled up FSL form at the spot. He further stated that recovered pistol and cartridges were kept in white cloth and pulanda was prepared which was seized through seizure memo Ex.PW1/B and after use seal was handed over to him. He further stated that SI Vinay prepared therir and handed over to Ct. Sanjit for registration of the FIR, who left the spot for PS Special Cell at about 08:30 pm. He further deposed that meanwhile, SI Satish Kumar reached at the spot as investigation was marked to him and after registration of FIR, Ct. Sanjit came back at the spot and handed over copy of FIR and original therir to SI Satish Kumar (2nd IO). He further stated that SI Vinay handed over the documents, case properties and accused to SI Satish Kumar and SI Satish Kumar prepared the site plan and after that, arrested the accused vide arrest memo Ex.PW3/A. He further stated that IO also prepared personal search memo and body inspection memo of accused Ex.PW3/B and Ex.PW3/C. He further stated that 2nd IO recorded disclosure statement of accused Ex.PW3/D and his statement under section 161 Cr.P.C. He identified country made pistol Ex.P1, empty cartridge Ex.P2 and 2 live cartridges Ex.P3. This witness was crossexamined by the Ld. LAC for accused.
7. PW4 SI Satish Kumar deposed that on 07.03.2015, he was posted at office of Special Cell Lodhi Colony as SI and after receiving the information FIR No. 18/15 PS Special Cell State Vs. Bhupender Singh @ Bhuppi 5/13 regarding illegal arms, recovered from the possession of accused, reached at the spot where SI Vinay had already prepared the tehrir who sent Ct. Sanjeet for registration of FIR and after registration of FIR, Ct. Sanjeet came at the spot and handed over him copy of FIR and Tehrir. He further deposed that 1 St IO handed over him accused, sealed case properties and documents and after that, he prepared site plan at the instance of 1 st IO Ex.PW4/A and after that interrogated accused Bhupender and arrested him vide memo Ex.PW3/A and also prepared personal search memo Ex.PW3/B and body inspection memo Ex.PW3/C. He recorded disclosure statement of accused Ex.PW3/D and after that, he alongwith raiding team and accused reached at PS Spl. Cell and he deposited the case property and FSL form in the Malkhana. He recorded the statement of witnesses under section 161 Cr.P.C. He further stated that on 12.03.2015, he sent the case property alongwith FSL form to the FSL Rohini for examination vide RC no. 27/21/15 through HC Sushil Kumar who deposited the case property in FSL Rohini on same day and he recorded his statement under section 161 Cr.P.C. He further stated that on 01.05.2015, he obtained FSL result and on 02.05.2015, sanction under section 39 Arms Act. After completion of the investigation, he prepared the challan and filed before the court. He identified accused Bhupender in the court. This witness was crossexamined by the Ld. LAC for accused.
8. PW5 Insp. Vinay Kumar deposed that on 07.03.2015, he was posted as SI at Special Cell /NDR, Lodhi Colony, Delhi and on that day at about 04:30 pm, Ct. Abhishek telephonically informed Insp. Sanjay Dutt that accused namely Bhuppi would come at Sarai Kale Khan Bus Stop at about 06:30 pm who was carrying illegal weapon and if raided, he could be apprehended. He further stated that Insp. Sanjay Dutt prepared the raiding party on the instructions of Senior officers consisting of Insp. Sanjay Dutt, Insp. Dharmender Kumar, SI Sumit Kumar, Ct. Sanjit, SI Rakesh Malik, ASI Udaibeer Singh, HC FIR No. 18/15 PS Special Cell State Vs. Bhupender Singh @ Bhuppi 6/13 Satender, HC Vinod, HC Suresh, HC Sushil and Ct. Jitender Kumar including him and at about 05:15 pm, they left from the Special Cell, Lodi Colony by one government vehicle bearing no. DL1CM6221 and two motorcycles and reached at Sarai Kale Khan Bus Stop at about 05:45 pm, where Ct. Abhishek and Secret Informer were already present. He asked 5/6 passersby to join the raiding team but none had agreed and left the spot without disclosing their names and addresses. He further stated that Insp. Sanjay Dutt confirmed the information from Secret Informer and on the instructions of Insp. Sanjay Dutt, they took their positions at Sarai Kale Khan Bus Stop. He further stated that at about 07:00 pm, accused Bhupender @ Bhuppi came from ITO side and stopped at exit gate of bus stop and started waiting for someone. He further stated that at about 07:05 pm, when accused proceeded, Insp. Sanjay Dutt instructed them to apprehend the accused and on seeing them, accused tried to run away but SI Vinay and Ct. Abhishek apprehended the accused. Accused also scuffled with them and on interrogation, accused disclosed his name as Bhupender Singh @ Bhuppi. He further stated that at his instance, one public witness namely Islam voluntarily and independently joined the investigation. He conducted the cursory search of the accused and found one pistol from the left dub. He unloaded pistol and found four live cartridges inside the magazine. He prepared the sketch of pistol and cartridges Ex.PW1/A. He filled FSL form at the spot. He further stated that recovered pistol and cartridges were kept in white cloth and pulanda was prepared which was seized through seizure memo Ex.PW1/B and seal after use was handed over to SI Sumit. He prepared the therir Ex.PW5/A and handed over to Ct. Sanjit for registration of FIR and at about 08:30 pm, he left the spot for PS Special Cell. He further stated that SI Satish Kumar reached at the spot as further investigation was marked to him. He further stated that after registration of FIR, Ct. Sanjit FIR No. 18/15 PS Special Cell State Vs. Bhupender Singh @ Bhuppi 7/13 came back at the spot and handed over the copy of FIR and original therir to SI Satish Kumar (2nd IO). He handed over the documents, sealed case properties and accused to SI Satish Kumar. SI Satish Kumar prepared the site plan at his instance. His statement was recorded by the 2 nd IO under section 161 Cr.P.C. and after that, he left the spot. He identified case property i.e. country made pistol Ex.P1, empty cartridge Ex.P2 and 2 live cartridges Ex.P3. This witness was crossexamined by the Ld. LAC for accused.
9. Thereafter, PE was closed and statement of accused was recorded u/s 313 r/w. 281 Cr.PC, during which all the incriminating evidence was put to the accused to which accused denied in its entirety and claimed innocence. Despite opportunity, accused did not lead defence evidence. Thereafter, DE was closed and the matter was fixed for final arguments.
10.I have heard the Ld APP for the State and Ld counsel for the accused and also carefully gone through the record.
Finding of the Court
11.Allegation against the accused Bhupender Singh @ Bhuppi is that on 07.03.2015 at about 7:20 pm at main Ring Road near Sarai Kalen Khan Bus Adda, Delhi, within the jurisdiction of PS Special Cell, the accused Bhupender Singh @ Bhuppi was found in possession of one pistol and four live cartridges which were firearm and ammunition, as per seizure memo dt. 07.03.2015, without valid authority or proper licence and he thereby committed the offence u/s 25 Arms Act. On completion of the investigation, chargesheet was filed in the Court against accused.
12.The Ld. APP contended that the prosecution has proved the case against the accused beyond reasonable doubt as the PWs have deposed on the lines of prosecution in respect to the allegation. It is further argued that merely non examination of the public witness does not hamper or create doubt on the FIR No. 18/15 PS Special Cell State Vs. Bhupender Singh @ Bhuppi 8/13 testimony of police officials and it does not show that the recovery has been planted upon the accused.
13.On the other hand, Ld. counsel for accused submitted that the only public witness who has been examined in the present case has not supported the case of prosecution. The witness Mohd. Islam examined by the witness did not prove the recovery of pistol and cartridges from accused and even he did not identify the case property. Ld. Counsel submitted that the case put forth by the prosecution is not probable and there are various contradictions in the case of the prosecution. Ld counsel also submitted that the accused was falsely implicated in the present case and therefore, he may be acquitted.
14.It is a settled proposition of criminal law that prosecution is supposed to prove its case on judicial file beyond reasonable doubts by leading reliable, cogent and convincing evidence. Further it is a settled proposition of criminal law that in order to prove its case on judicial file, prosecution is supposed to stand on its on legs and it cannot derive any benefit whatsoever from the weaknesses, if any, in the defence of the accused. Further it is a settled proposition of criminal law that burden of proof of the version of the prosecution in a criminal trial throughout the trial is on the prosecution and it never shits to the accused. Also it is a settled proposition of criminal law that accused is entitled to the benefit of every reasonable doubt in the prosecution story and such doubt entitles the accused to acquittal.
15.Further the crux of legal position regarding joining of independent witness, to my mind is that as far as possible recovery of contraband, is to be authenticated by affecting it in presence of any independent witness. Joining of independent witness, forcefully establishes the recovery of contraband, beside compliance of other procedure as required under Arms Act. However, it is not that if recovery is not in presence of independent witness, then the same is to be mechanically ignored on score. If on one hand law requires to FIR No. 18/15 PS Special Cell State Vs. Bhupender Singh @ Bhuppi 9/13 join independent witness at the time of recovery, it is only to ensure the authenticity of alleged recovery. On the other hand, non joining of independent witness only make the court circumspect, in such situation, evidence of official witness is to be examined more critically in facts of case. If sincere efforts are made by investigating officer, to join an independent witness and it is also proved by evidence of official witness, that there has been genuine efforts to join an independent witness, then court if finds that evidence as a whole is acceptable regarding recovery of contraband, there being nothing coming on record showing planting of recovery or any circumstance even remotely indicating towards false implication, then non joining of independent witness is not fatal to case of prosecution.
16.The case of prosecution is that upon receiving the information by Ct. Abhshek who further informed the said information to Insp. Sanjay Dutt and a raiding team consisting himself, Insp. Dharmender Kumar, SI Vinay Kumar, SI Sumit Kumar, Ct. Sanjit, SI Rakesh Malik, ASI Udaibeer Singh, HC Satender, HC Vinod, HC Suresh, HC Sushil and Ct. Jitender Kumar was ordered to be constituted. I also find merits in the arguments raised by Ld defence counsel that it was not possible for the secret informer to tell the exact time of arrival of accused at the spot and it creates doubt over the case of the prosecution. Further, admittedly prior to conducting the search of the accused, accused allegedly did not take search of any of the police official. In my considered opinion, the police officials who were allegedly part of raiding team have not complied the directions and legal provision as observed by Hon'ble High Court of Delhi.
17. The only public witness examined by the prosecution did not support the case of the prosecution and he categorically stated that the alleged recovery of pistol and cartridges was not made in his presence.
18.Further, in the case in hand, the police officials allegedly searched the FIR No. 18/15 PS Special Cell State Vs. Bhupender Singh @ Bhuppi 10/13 accused and one country made pistol and cartridges were allegedly recovered from his possession. However, admittedly the police officials did not offer their search to the accused prior to taking his search for alleged recovery of country made pistol and cartridges.
19.In the present matter it is clear from the record that after the apprehension of the accused but before taking the formal/casual search of the accused, police official(s) had not offered their own search to the accused. At this juncture, it would be appropriate to refer to the judgment of Hon'ble Orissa High Court reported as Rabindernath Prusty V/s State of Orissa, 1984 CRLJ 1392 wherein it was held as under: "The next part of the prosecution case is relating to the search and recovery of Rs.
500/ from the accused. One of the formalities that has to be observed in searching a person in that the searching Officer and others assisting him should give their personal search to the accused before searching the person of the accused.
(See AIR 1969 SC 53 : (1969 Cri. L.J 279), State of Bihar V/s Kapil Singh). This rule is meant to avoid the possibility of implanting the object which was brought out by the search. There is no evidence on record whatsoever that the raiding party gave their personal search to the accused before the latter's person was searched. Besides the above, it is in the evidence of PWs 2 and 5 that the accused wanted to know the reason for which his person was to be searched and the reason for such search was not intimated to the accused. No independent witness had witnessed the search. In the above premises, my conclusion is that the search was illegal and consequently the conviction based FIR No. 18/15 PS Special Cell State Vs. Bhupender Singh @ Bhuppi 11/13 thereon is also vitiated''.
20. Being guided by above said case law, it can be said that search of the accused by above said police official(s) was in complete violation of the above said case law and the same can be said to be illegal.
21.Further, as per evidence on record, after its use the seal on the pullanda containing the case property allegedly recovered from the accused was given to none else but to one who is a material prosecution witness being a witness to the alleged recovery of the illegal country made pistol and cartridges from the possession of the accused. Such material witness of a case is always interested in the success of the case of the prosecution and keeping in view the aforesaid fact chances of fabrication of case property cannot be ruled out. Further it is equally pertinent to note that the entire judicial file is silent as to when the seal was given back by said witness to IO.
22.In the present case, the seal was not handed over by the IO to an independent person prior to sending the seized pistol and cartridges to FSL for examination and it leads to an apprehension of manipulation of the case property by the IO. Further, there is a delay of 05 days in sending the case property to FSL and during that period the seal remained in the possession of the IO. None of the PWs examined by the prosecution deposed that chance print over the case property or photograph of the spot were taken so as to substantiate the case of the prosecution.
23.First IO who is the investigating officer in the present case is also the complainant of the present case. It is well settled law that complainant should not be the investigating officer in the case so as to rule out any illwill or bias against the accused. The mindset of the complainant ordinarily is holding a grievance against somebody whereas the mandate of the investigating officer is to ascertain the truth. Therefore, in order to allay any fear of bias or illwill, it is in the fitness of things that the complainant and FIR No. 18/15 PS Special Cell State Vs. Bhupender Singh @ Bhuppi 12/13 the IO should not be the same person which is not the case before the court. Reliance placed on the judgment of Hon'ble Supreme Court in the case titled as Mohan Lal Vs. State of Punjab, MANU SC/0857/2018.
24. It is pertinent to mention that no DD entry regarding the departure and arrival of police officials who allegedly were the members of raiding team has been proved on record so as to corroborated the version of the prosecution regarding the alleged apprehension of the accused at the spot. Even no effective investigation regarding source of alleged pistol and cartridges was conducted by the IO and considering the totality of facts and circumstances, the case put forth by the prosecution does not seem to be probable and it cannot be said that the prosecution has proved its case beyond reasonable doubts. Therefore, in view of the abovesaid facts and circumstances, I am of the opinion that benefit of doubt is to be given to the accused and as a consequence thereof accused is entitled to be acquitted in the present case.
25.Accordingly, the accused namely Bhupender Singh @ Bhuppi is held "not guilty" and is accordingly acquitted of the offence punishable u/s 25 Arms Act.
File be consigned to Record Room.
Announced in the open court Today on 03.09.2019 (Manish Khurana) CMM/NDD/Patiala House Courts New Delhi/03.09.2019 FIR No. 18/15 PS Special Cell State Vs. Bhupender Singh @ Bhuppi 13/13