Delhi District Court
State vs . Dharmender on 18 June, 2015
IN THE COURT OF SH. SHARAD GUPTA, ACMM / NORTH EAST :
KARKARDOOMA COURTS, DELHI.
State Vs. Dharmender
FIR No : 320/06
U/S : 25 of Arms Act
PS : New Usmanpur
1. FIR No. of the case : 320/06
2. Date of commission of offence : 04.09.2006
3. Date of institution of the case : 22.06.2007
4. Name of the complainant (if any) : HC Nepal Singh
PS: New Usmanpur.
5. Name of accused person, : Dharmender
his parentage and address s/o Sugar Singh,
R/o H. No. 125, Gali no.
2, Arvind Mohalla,
Brahmpuri, Delhi.
6. Offence complained of or proved : U/s 25 of Arms Act
7. Plea of the accused : Pleaded not guilty
and his examination ( if any)
8. Date of arguments : 18.06.2015
9. Date of judgment/final arguments : 18.06.2015
10. Final order : Acquitted
11. Brief statement of the reason for decision :
FIR No. 320/2006 State Vs. Dharmender 1/7
Judgement :
Vide this judgment, I shall decide this case under Section 25 Arms Act. Brief facts of the prosecution case are as under :
rd
1. Prosecution has alleged that on 04.09.2006 at about 09.20 p.m at 3 Pusta near Saleem Hotel, New Usmnapur, Delhi, accused was found in possession of a countrymade pistol containing a live cartridge without any permit or licence in contravention of notification of the prescribed authority. The accused was arrested under Section 25 of Arms Act and chargesheeted after investigation.
2. Accused appeared before this Court and after compliance under Section 207 IPC, charge under section 25 of Arms Act was framed against him vide order dated 06.07.2012 and accused pleaded not guilty and claimed trial.
3. To prove the case, Prosecution has examined only 6 witnesses i.e., PW1 HC Anil Kumar who assisted in investigation of the case and arrest of the accused, PW 2 ASI Nepal who was the first IO of this case, PW 3 HC Ramesh, MHC(M), PW 4 HC Rajpal who took the case property to FSL, PW 5 SI Ram Kishore who was the second IO of this case and PW 6 SI Chand Singh who was the duty officer. Thereafter PE was closed as all the material witnesses had been examined and no other material witness was cited in the array of witnesses. After closure of PE, FIR No. 320/2006 State Vs. Dharmender 2/7 Statement of accused u/s 281 r/w 313 Cr.PC was recorded. Accused has not led any defence evidence.
4. I have heard the arguments and perused the record. As per the Prosecution story, accused was apprehended by the police officials during patrolling on secret information and one desi Katta and one live cartridge were recovered from his possession. All the PWs are police officials.
5. Ld. Counsel for accused has submitted that accused has been falsely implicated in this case. Although it is not a legal requirement that the testimony of police officials is not reliable, yet the testimony of police officials is to be considered with caution, in view of the facts of the present case. In the present case, accused was apprehended at public place and public witnesses were available, but public persons were not made witness to the recovery or arrest of accused and even no notice was served upon the public persons who allegedly refused to participate in the proceedings. Facts and circumstance of the case suggests that no sincere efforts have been made by police official to join independent public witnesses in the police proceedings.
6. In the case reported as "Anoop Joshi vs. State, 1992 (2) C. C. Cases 314 (HC)", Hon'ble High Court of Delhi has deprecated the practice of the police officials of not making any sincere efforts to join the public FIR No. 320/2006 State Vs. Dharmender 3/7 witness when they are available. Similarly, in the case reported as "Sadhu Singh vs. State of Punjab, 1997 (3) Crimes 55" the Hon'ble Punjab & Haryana High Court has also not viewed with favour the practice of the police of not joining any public witness and not making any sincere efforts in that regard when they are readily available. Non joining of the public witnesses and not making any sincere efforts in this regard creates a doubt about the case of the prosecution.
7. Furthermore, as per the Punjab Police Rules, entry is mandatorily required to be made as regards the hour of arrival and departure of police personnel on duty. Chapter 22 Rule 49 of Punjab Police Rules, 1934, provides that the entry of 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 shall be made immediately. However in the present case no DD entry is shown or proved to have been recorded regarding the departure of PW 1 HC Anil Kumar and PW 2 ASI Nepal Singh for the spot on patrolling or their arrival at PS. This aspect creates a doubt about the case of the prosecution.
8. Further from the record, it appears 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 before FIR No. 320/2006 State Vs. Dharmender 4/7 taking his search. At this juncture, it would be appropriate to refer to the judgment of Hon'ble Orissa High Court reported as "Rabindernath Prusty vs. State of Orissa". In this case relying upon the judgment of the Supreme Court in "State of Bihar Vs. Kapil Singh AIR 1969 SC 53 : (1969 Cri. L.J 279)", it has been held that one of the formalities that has to be observed in searching a person is that the searching Officer and others assisting him should give their personal search to the accused before searching the person of the accused.
9. Furthermore, as per the prosecution version seal after use was handed over to PW 1 HC Anil Kumar however, no handing over memo regarding the handing over of seal was prepared by the IO which creates doubt that whether the seal was handed over to any person or it remained with the IO. Thus, the genuineness of the investigation is under doubt and the veracity of the case of the prosecution has been weakened.
10. Another aspect of the case is that as per the prosecution witnesses the sketch memo of case property Ex. PW1/A and the seizure memo Ex.1/B were prepared prior to the registration of the FIR. However, the said documents mention the FIR number. It thus appears that there was no occasion for the FIR number to be mentioned on the seizure memo inasmuch as the IO did not know the FIR number at time of the preparation of the said document even as per the prosecution version. In FIR No. 320/2006 State Vs. Dharmender 5/7 the matter of "Giri Raj vs State 2000 (83) DLT 201", the Hon'ble High Court of Delhi held that where the FIR number was mentioned on the documents prepared prior to registration of the FIR then it gives rise to two inferences either that the FIR was recorded prior to recovery of the articles or that number of the FIR was inserted in the documents later on. In both the cases, it seriously reflects on the veracity of the prosecution version and creates a doubt about the alleged recovery. In the present case also the mentioning of the FIR number on the seizure memo affects the veracity of the version of the prosecution regarding the manner in which the recovery was effected, the benefit whereof has to go to the accused.
11.Furthermore there are contradictions in the prosecution version of such a nature as discredit the prosecution version. As per PW 2 ASI Nepal Singh, PW 1 Ct. Anil came back to the spot on govt. motorcycle of PW 5 ASI Ram Kishore however, as per PW 1 HC Anil Kumar, he came back to the spot on scooter of ASI Ram Kishore. Furthermore while as per PW 1 HC Anil, the writing work was done on a bench in front to Saleem Hotel, as per PW 2, ASI Nepal Singh, the writing work was done at police booth on third pUsta. The contradictions are irreconcilable. It appears that prosecution witnesses have been unable to agree amongst themselves as to how the investigation of the case was conducted. The FIR No. 320/2006 State Vs. Dharmender 6/7 contradictions affect the veracity of the prosecution version benefit whereof has to go to the accused.
12. In fact, in this case, in the absence of public persons as recovery/arrest witness of accused, false implication of the accused may not be ruled out. In fact, prosecution has failed to prove the allegations against the accused beyond reasonable doubt. I hereby give benefit of doubt to the accused. Accused is hereby acquitted of all the charges. Surety discharged. Any documents placed on record, either by surety or accused, be returned against acknowledgment. Case property is forfeited to the State and be destroyed as per rules after appeal.
File be consigned to record room after due compliance of Section 437A Cr.PC.
Announced in open Court (SHARAD GUPTA)
on 18.06.2015 ACMM( North East)
Karkardooma Courts, Delhi.
FIR No. 320/2006 State Vs. Dharmender 7/7