Delhi District Court
State vs . Golta on 12 May, 2015
FIR no. 178/04
PS Narela
U/s. 25/54/59 of Arms Act
State Vs. Golta
IN THE COURT OF SH. SANDEEP GUPTA:
METROPOLITAN MAGISTRATE:ROHINI COURTS:DELHI
FIR no. 178/04
PS Narela
U/s. 25/54/59 of Arms Act
State Vs. Golta
Date of Institution of case:08.04.05
Date on which Judgment reserved:12.05.15
Date of which Judgment pronounced:12.05.15
JUDGMENT
Unique ID No. :02401R0311442005 Date of commission of offence :27.07.04 Name of the complainant :HC Sri Niwas, No.428/NW, PS Narela, Delhi. Name and address of accused :Golta S/o Sh. Guru Paswan R/o Plot No.426, Metro Vihar, Holambi Khurd Delhi.
Offence complained of :25/54/59 of Arms Act Plea of accused :Pleaded not guilty Date of order :12.05.15. Final order :Acquitted BRIEF REASONS FOR DECISION:
1.The story of the prosecution in brief is as under:
Accused Golta S/o Sh. Guru Paswan has been sent up for the trial for the offence U/s. 25/54/59 of Arms Act for the reason that on 27.07.04 at about 9:30 p.m at Near Power House, Sector-5, DSIDC, Bawana, Near Ganga Toli, Delhi, he was found in possession of one countrymade pistol without any valid license and he thereby committed the offence punishable U/s. 25/54/59 of Arms Act and on the basis of which FIR no.178/04 was registered at PS Narela.Page 1 of 11 FIR no. 178/04
PS Narela U/s. 25/54/59 of Arms Act State Vs. Golta
2. After investigation, chargesheet was filed against the accused & after supplying the copies to him in compliance of Section 207 Code of Criminal Procedure (hereinafter called Cr.P.C), a charge U/s. 25/54/59 of Arms Act was framed against accused on 01.01.06, to which accused pleaded not guilty and claimed trial.
3. In support of its version, the prosecution examined five witnesses.
4. PW1 is Ct. Sherdanand, 2231 DAP 3rd Battalion, Vikaspuri, Delhi. He deposed that on 17.05.2004, MHC(M) handed over to him one sealed exhibit to deposit the same at FSL Rohini. He further deposed that he deposited the same at FSL vide RC No. 60/21/04 and receipt on RC was handed over to MHC(M). He further deposed that as long as exhibits remained in his possession, same were not tempered with. He has not been cross-examined by the accused despite given opportunity.
5. PW2 is HC Bijender Singh No. 7186/DAP, 6th Battalion, Vikaspuri, Delhi. He was the MHC(M) in the present case. He deposed that on 27.04.2004, HC Mahavir Singh deposited one Pullanda sealed with the seal of MS alongwith FSL form and he deposited the same in Malkhana and entry in this regard was made in register No. 19 at SL No. 1229. He further deposed that on 17.05.2004 sealed Pullanda alongwith FSL form and road certificate No. 60/21 were sent to FSL Rohini and on 11.01.2005 Page 2 of 11 FIR no. 178/04 PS Narela U/s. 25/54/59 of Arms Act State Vs. Golta result was obtained and handed over to the IO. The photocopy of the original register No.19 is Ex. PW2/A. He has not been cross examined by the accused despite given opportunity.
6. PW3 is HC Rajpal, No. 195/OD, PS Samaypur Badli, Delhi. He deposed that on 27.04.2004, Ct. Dilbagh handed over to him, original rukka and copy of FIR No. 178/04 for further investigation. Thereafter, he alongwith Ct. Dilbagh reached at the spot i.e. DSIDC, Sector-5, Bawana, near Power house, Narela, Delhi where they met HC Mahavir and accused Golta, present in the court. Thereafter, HC Mahavir handed over to him accused, one Pullanda sealed with the seal of MS and relevant documents. Thereafter, he prepared the site plan at the instance of HC Mahavir, Ex. PW3/A. Thereafter, he recorded the statement of HC Mahavir and he left the spot. Thereafter, he arrested the accused and conducted his personal search vide memos Ex. PW3/B and PW3/C. He further deposed that On 17.05.2004, he sent the abovesaid Pullanda and FSL form to FSL, Rohini through Ct. Shradhanand vide RC No. 60/21. He further deposed that on 16.11.2004, he was got transferred and case file was handed over to MHC(R). He has not been cross examined by the accused despite given opportunity.
7. PW4 is ASI Rajender Singh, No. 4119/D, South-West, PCR, PIS No. 28750028. He was the duty officer. He deposed that on receiving of rukka from Ct. Dilbagh Singh sent by HC Mahavir Singh, he recorded the FIR of the present case, which Page 3 of 11 FIR no. 178/04 PS Narela U/s. 25/54/59 of Arms Act State Vs. Golta was Ex. PW4/A and the endorsement on the rukka was Ex. PW4/B. He has not been cross-examined by the accused despite given opportunity.
8. PW5 is Ct. Dilbagh Singh, No. 1288/North, PS Roop Nagar, PIS No. 28882155. He is the witness of initial recovery. He deposed that on 27.04.2004, while patrolling alongwith HC Mahavir Singh in area of Metro Vihar, Sector-5, Holambi Khurd when they reached at Metro Vihar one secret informer informed that one man with one desi Katta in his possession was roaming at near Ganga Toli, DSIDC, Sector-5, Bawana, Narela, Delhi. Thereafter, IO HC Mahavir Singh requested 4-5 passersby to joint the raiding party but none agreed. Thereafter, IO prepared a raiding party including him and the secret informer and they reached at Power House near DSIDC, Sector-5 Bawana, near Ganga Toli and took positions and at about 09:30 p.m. on receiving the designated signal from the secret informer, HC Mahavir Singh and he apprehended the accused and on his casual search, he was found in possession of Desi katta from right side dub of his wearing pant. Thereafter, on interrogation he revealed his name as Golta S/o Guru Paswan. Thereafter, IO prepared the sketch on a white paper of the said recovered Desi katta and on measurement the said desi katta was found to be 24 cms and barrel to be of 13 cm and body of the said katta was found to be 10 cm and butt of 8 cm. He further deposed that the said katta was having a stripped line pattern and butts was Page 4 of 11 FIR no. 178/04 PS Narela U/s. 25/54/59 of Arms Act State Vs. Golta engraved with wood and the katta was made of iron and on opening it, the same was found empty. Thereafter, IO turned desi katta into a pullanda and sealed with the seal of MS. Thereafter, IO prepared the rukka and handed over the same to him for getting the case registered. After getting the case registered he returned at the spot with the copy of the FIR and original rukka with endorsement alongwith HC Rajpal. Thereafter, he handed over the copy of the FIR and rukka to the IO HC Mahavir who then handed over to the case property and the custody of the accused to IO HC Rajpal who then prepared the site plan at the instance of HC Mahavir Singh. He further deposed that HC Rajpal then arrested the accused and conducted his personal search vide memos Ex.PW3/B and PW3/C respectively.
MHC(M) had produced one yellow envelope with broken seal. Same was opened and found containing country made pistol wrapped with white cloth. The same was shown to the witness to which the witness correctly identified the same having been recovered from the possession of the accused. The case property i.e. Desi Katta was Ex. P1. During his cross-examination by Ld. defence counsel, he admitted that no notice was given to the public persons who refused to join the investigation. He deposed that all the documents were prepared while sitting at the spot. He did not remember his arrival or departure DD entry number. He denied Page 5 of 11 FIR no. 178/04 PS Narela U/s. 25/54/59 of Arms Act State Vs. Golta the suggestion that he was not present at the spot therefore, he did not remember his arrival or departure DD entry number. He admitted that measurements of Desi Katta were not mentioned alongwith the sketch however, the same were mentioned separately on the same sketch. He also admitted that when he signed the seizure memo all the particulars were already filled up and he had signed the same before sending rukka. He denied the suggestion that accused has been falsely implicated in the present case and that he had deposed falsely.
9. It is a matter of record that after the examination of all the material witnesses vide order dated 31.07.2014, prosecution evidence was closed and thereafter, statement of accused was recorded separately, in which he has submitted that he is innocent and has been falsely implicated in the present case and simultaneously stated that he does not want to lead defence evidence and final arguments were heard.
10. I have heard both the parties. Record has been perused.
11. In the present matter, accused has been charged U/s.
25/54/59 of Arms Act and to convict the accused, prosecution has to prove that accused was found in possession of one countrymade pistol without valid permit or license.
12. In the present case, the deposition of PW5 Ct. Dilbagh Singh shows that IO requested 4-5 passers by to join the proceedings but none agreed. In these circumstances, like the present one, if public person would have refused to assist the member of police Page 6 of 11 FIR no. 178/04 PS Narela U/s. 25/54/59 of Arms Act State Vs. Golta party, they could have served the said public witness with a notice in writing to join police proceedings but perusal of the record shows that nothing sort of this was done in the present case.
13. 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".
14. 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 Page 7 of 11 FIR no. 178/04 PS Narela U/s. 25/54/59 of Arms Act State Vs. Golta explanation furnished by the prosecution is that the independent witnesses were asked to 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".
Hence, it creates doubt in the story of prosecution.
15. The another material thing, which is required to discuss about the case of the prosecution is that on 27.04.04, PW5 Ct.
Page 8 of 11 FIR no. 178/04PS Narela U/s. 25/54/59 of Arms Act State Vs. Golta Dilbagh Singh were present at Metro Vihar, Sector-5, Holambi Khurd, Delhi meaning thereby that at the relevant time he was not in the PS and it seems he was outside the PS, then as per Punjab Rules, he being on duty was required to enter his departure & arrival to & from the PS Narela in the DD Register of the said PS. 17A. Now, as per Chapter 22 Rule 49 of Punjab Police Rules, 1934:-
"22.49 Matters to be entered in Register No. II-The following matters shall, amongst others, be entered.:-
(c) The hour of arrival and the 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 personality by signature or seal.
Note:- The term Police Station will include all places such as Police Lines & Police Posts, where Register No. II is maintained.
16. But, in the present case, this provision appears to have not been complied with in respect of departure and arrival entry of PW5. Prosecution has failed to produce any evidence, whatsoever on record in the nature of documentary entries of the required DD entries, so as to establish the presence of PW5 at the spot. Hence, it creates doubt in the prosecution story.
17. It may further be appreciated that the sanction required U/s 39 of the Arms Act for prosecution, has not been duly proved Page 9 of 11 FIR no. 178/04 PS Narela U/s. 25/54/59 of Arms Act State Vs. Golta since the prosecution failed to examine the concerned witness who gave the sanction and consent for the prosecution of the accused U/s 27 of Arms Act. When once the sanction order as required under Section 39 of Arms Act was not produced or proved by the prosecution, it must be concluded that the prosecution launched against the accused is bad in law and the accused is, therefore, entitled for the acquittal {S. Mange Naik vs. State of Andhra Pradesh, 2002 (3) Crimes 55}. Section 39 of the Arms Act prohibits institution of the prosecution itself without a valid sanction. It was further held in State of Rajasthan vs. Nagji {2000 (1) RCC 715}, that if the sanction is not obtained, in case of offence of possession of an arm without licence, the order of acquittal of accused is proper. Similarly in the present case before us, the sanction u/s 39 of the Arms Act has not been proved by the prosecution, which is fatal to the case of prosecution.
18. Further, in the present case, no efforts were made to hand over the seal after use in the presence of independent public persons. In such circumstances, the possibility of tampering the case property cannot be ruled out. Further, when the case property was produced for the first time in the court i.e one yellow envelope was found having broken seal. It is also an admitted fact that recovery memo was prepared before the registration of the FIR. But the perusal of recovery memo shows that FIR number is mentioned at the top of it. It is a surprising Page 10 of 11 FIR no. 178/04 PS Narela U/s. 25/54/59 of Arms Act State Vs. Golta fact that how the FIR number came at the top when the FIR was not registered at that time. No explanation has been given on this point. All these things create severe doubt over the story of prosecution. No explanation has been given on this point. This thing also create doubt over the story of prosecution. Moreover IO HC Mahavir was never examined by the prosecution as he was reported to be mentally and physically disabled.
19. In view of the above said discussion, I am of the considered view that the prosecution has miserably failed to prove the guilt of the accused beyond reasonable doubt. Accordingly, accused Golta stands acquitted from the charge U/s. 25/54/59 Arms Act.
20. File be consigned to Record Room after necessary compliance.
(Sandeep Gupta) Metropolitan Magistrate Rohini Court,Delhi ANNOUNCED IN THE OPEN COURT TODAY i.e on 12th May, 2015 Page 11 of 11 FIR no. 178/04 PS Narela U/s. 25/54/59 of Arms Act State Vs. Golta FIR no. 178/04 PS Narela U/s. 25/54/59 of Arms Act State Vs. Golta 12.05.2015 Present : Ld. APP for the State.
Accused on bail alongwith Ld. counsel. Vide separate judgment dictated to the steno in the open court, accused is acquitted of the said offence U/s. 25/54/59 of Arms Act.
He is directed to furnish fresh bail bond for a sum of Rs. 10,000/- with one surety of like amount in terms of sections 437A of Cr.P.C. The same stands furnished and accepted.
File be consigned to Record Room, after due compliance.
(Sandeep Gupta) MM (North)-01/Rohini 12.05.2015 Page 12 of 11