Delhi District Court
State vs . Subhash Singh @ Gauri Khurana ... on 6 August, 2018
IN THE COURT OF SH. MANISH KHURANA,
CHIEF METROPOLITAN MAGISTRATE, SOUTHEAST DISTRICT,
SAKET COURTS, NEW DELHI
FIR No. 535/2013 Digitally signed
by MANISH
PS : Amar Colony/AATS/CB
KHURANA
U/s : 25/54/59 Arms Act MANISH
Date:
State Vs. Subhash Singh @ Gauri KHURANA 2018.08.06
15:06:00
Unique ID No. : 98246/2016 +0530
Date of institution of case : 19.12.2016
Date of reserving the judgment : 20.07.2018
Date of pronouncement of judgment : 06.08.2018
J U D G M E N T
1. S. No. of the Case : 132/05/16
2. Date of Commission of Offence : 19.12.2013
3. Name of the complainant : SI P.L. Katewa
4. Name,parentage & address of accused : Subhash Singh @ Gauri
S/o Sh. Ram Singh,
R/o Village Chandella,
PS Dumar, Distt. Banka
Bihar.
5. Offence complained of or proved : u/s 25/54/59 Arms Act
6. Plea of Accused : Pleaded not guilty
7. Final Order : Acquitted
Case of the Prosecution
1. The prosecution case is that on 19.12.2013 at about 8.10 pm at red light, Okhla Mandi, Captain Gaur Marg, New Delhi, within the jurisdiction of FIR No. 535/2013 State Vs. Subhash Singh @ Gauri Page no. 1/21 PS Amar Colony / AATS, Delhi, accused namely Subhash Singh @ Gauri was found in possession of one countrymade pistol and one live cartridge, which were firearm and ammunition, without any licence or authority in contravention of notification issued by Delhi Administration and thereby accused committed offence punishable u/s 25/54/59 Arms Act.
2. Cognizance of the offence was taken and the accused was summoned, copies of chargesheet were supplied and thereafter, charge was framed against the accused for the offence punishable u/s 25/54/59 Ams Act to which the accused pleaded not guilty and claimed trial.
3. In order to prove its case, prosecution examined six witnesses.
4. PW1 Ct. Sanjay Singh deposed that on 19.12.2013, he was posted as constable AATS PS SouthEast District and on that day, pursuant to the secret information received in their office he joined investigation of present case with IO SI P.L. Katewa, Ct. Raghuvendra, Ct. Ravinder and secret informer. He further deposed that they all left for Okhla Mandi red light Captain Gaur Marg, New Delhi and reached at Okhla Mandi red light, captain Gaur Marg at 07:20 p.m where IO SI P.L. Katewa requested 4/5 passerby to join the investigation but none of them agreed. He stated that thereafter, as per briefing of IO they all put barricade on the road from Lajpat Nagar towards Okhla Mandi at a little distance from Okhla Mandi red light and started checking vehicles coming from the side of Lajpat Nagar and noticed a Maruti car bearing registration number DL2CV8708 grey colour coming from the side of Lajpat Nagar and going towards Okhla Mandi at about 08:10 p.m which at the instance of secret informer was signaled to stop and it was stopped by placing barricade on the road. He further stated that at that time two persons were sitting in the said car on front seats who were apprehended and identity of the person found driving the abovesaid car was established as FIR No. 535/2013 State Vs. Subhash Singh @ Gauri Page no. 2/21 accused Subhash singh and identity of the person sitting by the side of driver was established as Chajja @ Gauri. He also deposed that IO SI P.L. Katewa searched accused Subhash Singh and found one desi katta (fire arm) from the left side dub of accused and on checking the said katta it was found containing one live cartridge inside its barrel. Thereafter, IO prepared sketch map of the recovered katta and cartridge which is Ex.PW1/A and seized the same after sealing with the seal of PF, vide seizure memo Ex.PW1/B. He stated that IO filled form M 29 and also checked about the ownership of abovementioned Maruti car which was found to be stolen in case FIR no. 371/13, PS Dwarka, thereafter, IO also seized the said car u/s 102 Cr.P.C vide memo Ex.PW1/C and prepared rukka and got FIR registered through him. He stated that after registration of FIR he handed over copy of FIR and rukka to second IO SI Anand Prakash. Ld. APP for State sought permission to cross examine this witness. During cross examination conducted by Ld. APP for State he deposed that he was not sure as to whether the IO put the seal of PS or not. He denied that Chattis @ Ranjit was driving the car or that the accused Subhash was sitting besides him on the front seat of the said car. He denied that he was not deliberately telling the true facts to save the accused. Witness correctly identified the accused and case property as Ex.P1. During his cross examination conducted by Ld. Defence counsel he stated that he was told to join the raiding team ten minutes before leaving and he did not know as to whether any DD entry was made in this regard. He also stated that no wireless message was flashed and no chance print of the vehicle was taken. He deposed that no print out of the zipnet was taken regarding the vehicle and no distinct mark was placed on the case property. He admitted that the spot of incident was a busy place and public persons were present at the spot and IO did not join any FIR No. 535/2013 State Vs. Subhash Singh @ Gauri Page no. 3/21 public person in investigation despite availability. He denied that the accused was lifted by AATS staff from Bhajanpura and he was kept in illegal custody for two days. He also denied that nothing was recovered from the possession or instance of accused or that all the proceedings were conducted in PS.
5. PW2 HC Om Parkash deposed that on 02.01.2014, he was posted as Constable at PS Amar Colony and on that day, on the directions of the IO SI Anand Parkash, he took one sealed pullanda of the present case and duly sealed with seal of PS to CFSL/CBI Lodhi Colony, New Delhi vide RC no. 02/1/14 and deposited the same in CFSL CBI. He further deposed that he obtained deposit receipt and copy of RC which he deposited in the malkhana of PS Amar Colony and so long as the case property remained in his possession, it was not tempered with. During his cross examination conducted by Ld. Defence counsel he denied that the case property deposited by him in the CFSL CBI did not have the particulars of the present case or that he had not deposited any case property in CFSL, CBI in the present case.
6. PW3 Ct. Raghuvender deposed that on 19.12.2013, he was posted as constable AATS PS SouthEast District and on that day, pursuant to the secret information received in their office by IO SI PL Katewa, he joined investigation of present case with him, Ct. Sanjay, Ct. Ravinder and secret informer and they left for Okhla Mandi red light Captain Gaur Marg, New Delhi. He further deposed that they reached at Okhla Mandi red light captain Gaur Marg at 07:20 p.m where IO SI P.L. Katewa requested 4/5 passerby to join the investigation but none of them agreed, thereafter, as per briefing of IO, they put barricade on the road from Lajpat Nagar towards Okhla Mandi at a little distance from Okhla Mandi red light and started checking vehicles coming from the side of Lajpat FIR No. 535/2013 State Vs. Subhash Singh @ Gauri Page no. 4/21 Nagar. He also deposed that they noticed a Maruti car bearing registration number DL2CV8708 grey colour which came from the side of Lajpat Nagar towards Okhla Mandi at about 08:10 p.m which at the instance of secret informer was signaled to stop and it was stopped by placing barricade on the road. He stated that at that time two persons were sitting in the said car on front seats who were apprehended. Identity of the person found driving the abovesaid car was established as accused Chanttis @ Ranjit and identity of the person sitting by the side of driver was established as accused Subhash Singh @ Gauri. He also stated that IO SI P.L. Katewa searched accused Subhash Singh and found one desi katta (fire arm) from the left side dub of accused and on checking the said katta one live cartridge was found inside its barrel. Thereafter, IO prepared sketch map of the recovered katta and cartridge which is Ex.PW1/A and thereafter seized the same after sealing with the seal of PS, vide seizure memo Ex.PW1/B. He further deposed that during measurement, the length of the barrel was found 13.2 cm and butt was of 8.4 cm and total length was 24.2 cm and thereafter, IO filled FSL form. He deposed that IO also checked about the ownership of abovementioned Maruti car which was known to be stolen in case FIR no. 371/13, PS Dwarka and IO also seized the said car u/s 102 Cr.PC vide memo Ex.PW1/C, thereafter, IO prepared rukka and got FIR registered through Ct. Sanjay. He deposed that after sometime second IO SI Anand Parkash reached at the spot to whom Ist IO handed over custody of accused, seized case properties, already prepared documents and second IO prepared site plan at the instance of Ist IO, thereafter, Second IO arrested accused vide arrest memo Ex.PW3/A and conducted his personal search vide memo Ex.PW3/B. He stated that during personal search one MTS mobile phone and Rs.50/ cash was found from the possession of accused. He deposed FIR No. 535/2013 State Vs. Subhash Singh @ Gauri Page no. 5/21 that second IO SI Anand Parkash also recorded disclosure statement of accused vide Ex.PW3/C, thereafter, case property was deposited in the malkhana of PS Amar Colony by second IO and accused was taken to AATS office. Witness has correctly identified the accused. During his cross examination conducted by Ld defence counsel he stated that IO SI P.L Katewa did not receive the secret information in his presence and that they left their office at about 07:00 pm vide a departure entry bearing DD no. 8 AATS on 19.12.2013. He also stated that he did not remember as to whether secret informer also told the registration number of the stolen vehicle by which accused persons had to reach at the spot. He could not tell as to whether IO also took pencil scretch print of engine number and chassis number of the recovered car or as to whether IO put any distinctive mark on the recovered arm. He denied that accused was lifted by AATS staff from Bhajanpura and he was kept in illegal custody for two days and thereafter present case was falsely planted upon him. He also denied that nothing was recovered from the possession or at instance of accused or that all the proceedings were conducted in PS or that he was deposing falsely.
7. PW4 Ct. Ravinder deposed that on 19.12.2013, he was posted as constable at AATS SouthEast District and on that day, pursuant to the secret information received in their office to IO SI PL Katewa, he joined investigation of present case with him, Ct. Sanjay, Ct. Raghuvender and secret informer and they left for Okhla Mandi red light Captain Gaur Marg, New Delhi at about 7.00 pm. He stated that they reached at Okhla Mandi red light captain Gaur Marg at 07:20 p.m where IO SI P.L. Katewa requested 45 passerby to join the investigation but none of them agreed, thereafter, as per briefing of IO they put barricade on the road at a little distance from Okhla Mandi red light and started checking vehicles FIR No. 535/2013 State Vs. Subhash Singh @ Gauri Page no. 6/21 coming from the side of Lajpat Nagar. He further deposed that they noticed a Maruti 800 car bearing registration number DL2CV8708 grey colour was coming from the side of Lajpat Nagar towards Okhla Mandi at about 88.15 pm which was, at the instance of secret informer, signaled to stop by the members of raiding team and was stopped by placing barricade on the road and at that time two persons were sitting in the said car on front seats who were apprehended. He also stated that identity of the person found driving the abovesaid car was established as accused Chanttis @ Ranjit and identity of the person sitting by the side of driver was established as accused Subhash Singh @ Gauri and IO SI P.L. Katewa searched accused Subhash Singh and found one desi katta (fire arm) from the left side dub of accused. He also stated that on checking, the said katta was found containing one live cartridge inside its barrel, thereafter, IO prepared sketch map of the recovered katta and cartridge which is Ex.PW1/A and thereafter seized the same after sealing with the seal of PS vide seizure memo Ex.PW1/B. He stated that during measurement, the length of the barrel was found 13.2 cm, butt was of 8.4 cm and total length was found to be 24.2 cm, thereafter, IO filled FSL form and IO also checked about the ownership of abovementioned Maruti car from zipnet which was found to be stolen in case FIR no. 371/13, PS Dwarka. He stated that IO also seized the said car u/s 102 Cr.P.C vide memo Ex.PW1/C, thereafter, IO prepared rukka and got FIR registered through Ct. Sanjay and after sometime second IO SI Anand Parkash reached at the spot to whom Ist IO handed over custody of accused, seized case properties, already prepared documents. He further stated that second IO prepared site plan at the instance of Ist IO and, thereafter, Second IO arrested accused vide arrest memo Ex.PW3/A and conducted his personal search vide memo Ex.PW3/B and that during personal FIR No. 535/2013 State Vs. Subhash Singh @ Gauri Page no. 7/21 search one MTS mobile phone and Rs.50/ cash was found from the possession of accused. He further deposed that second IO SI Anand Parkash also recorded disclosure statement of accused vide Ex.PW3/C, thereafter, case property was deposited in the malkhana of PS Amar Colony by second IO and accused was taken to AATS office. He correctly identified the accused. During his cross examination conducted by Ld. Defence counsel he deposed that the secret information was not received in his presence by SI P.L. Katewa. He stated that barricades were already available near the spot as they were used in night pickets. He stated that he did not remember as to whether secret informer also told the registration number of the stolen vehicle by which accused persons had to reach at the spot. He could not tell as to whether IO took pencil scretch print of engine number and chassis number of the recovered card or that whether IO put any distinctive mark on the recovered arm. He denied that accused was lifted by AATS staff from Bhajanpura and he was kept in illegal custody for two days and thereafter present case was falsely planted upon him. He also denied that nothing was recovered from the possession or at instance of accused or that all the proceedings were conducted in PS or that he was deposing falsely.
8. PW5 SI P.L Katewa deposed that on 19.12.2013, he was posted as SI at AATS PS SouthEast District and on that day, at about 6.30 pm when he was present in his office at Garhi, Delhi, he received a secret information that two persons namely Subhash and Ranjeet who were known criminal would reach at Okhla Mandi from Lajpat Nagar side for the purpose of committing robbery, thereafter, he informed his senior and with their permission he formed a raiding party consisting of himself, Ct. Sanjay, Ct. Raghuvender, Ct. Ravinder and secret informer and after recording DD No. 8 dated 19.12.2013 they all left for Okhla Mandi red light FIR No. 535/2013 State Vs. Subhash Singh @ Gauri Page no. 8/21 Captain Gaur Marg, New Delhi at about 7.00 pm. He further deposed that they reached at Okhla Mandi red light captain Gaur Marg at 07:10 7.15 pm where he requested 45 passerby to join the investigation but none of them agreed, thereafter, he briefed the raiding party members and they put barricade on the road from Lajpat Nagar towards Okhla Mandi at a little distance from Okhla Mandi red light and started checking vehicles coming from the side of Lajpat Nagar. He stated that at about 08:15 p.m. he noticed a Maruti 800 car bearing registration number DL2CV8708 grey colour coming from the side of Lajpat Nagar and going towards Okhla Mandi which was, at the instance of secret informer, signaled to stop and it was stopped by placing barricade on the road and at that time two persons who were sitting in the said car on front seats were apprehended. He also stated that identity of the person found driving the abovesaid car was established as accused Chanttis @ Ranjit and identity of the person sitting by the side of driver was established as accused Subhash Singh @ Gauri. He searched accused Subhash Singh and found one desi katta (fire arm) from the left side dub of accused and on checking, the said katta was found containing one live cartridge inside its barrel, thereafter, he prepared sketch map of the recovered katta and cartridge which is Ex.PW1/A and thereafter seized the same after sealing with the seal of "PS", vide seizure memo Ex.PW1/B. He stated that during measurement, the length of the barrel was found 13.2 cm, butt was of 8.4 cm and total length was found to be 24.2 cm, thereafter, he filled FSL form and he also checked about the ownership of abovementioned Maruti car from zipnet which was found to be stolen in case FIR no. 371/13, PS Dwarka. He deposed that he also seized the said car u/s 102 Cr.P.C vide memo Ex.PW1/C, thereafter, he prepared rukka Ex.PW5/A and got FIR registered through Ct. Sanjay. He FIR No. 535/2013 State Vs. Subhash Singh @ Gauri Page no. 9/21 stated that after sometime second IO SI Anand Parkash reached at the spot to whom he handed over custody of accused, seized case properties, already prepared documents and second IO prepared site plan at his instance, thereafter, Second IO recorded his statement and relieved him from the case. He correctly identified the accused. During his cross examination conducted by Ld. Defence counsel he stated that when secret information was received by him there were 78 police officials present at their office and they all left their office at about 07:00 p.m vide a departure entry bearing DD no. 8 AATS on 19.12.2013. He stated that near the spot barricades were already available as they were used in night pickets. He stated that they reached at the spot at about 07:20 p.m and remained at the spot till about 11.30 pm. He also stated that secret informer had not told him about the number of vehicle by which accused persons were to reach at the spot and he stated that he had checked the engine number and chassis number of the recovered car. He denied that accused was lifted by AATS staff from Bhajanpura or that he was kept in illegal custody for two days and thereafter present case was falsely planted upon him. He denied that that nothing had happened in the manner as stated by him in his examination in chief or that nothing was recovered from the possession or at instance of accused or that all the proceedings were conducted in PS or that he was deposing falsely.
9. PW6 SI Anand Prakash deposed that on 19.12.2013, he was posted as SI at AATS Office, SouthEast District and on that day after registration of present FIR, he was handed over investigation of the present case and he reached at the spot i.e. Okhla Mandi Red light, Capt. Gaur Marg, New Delhi, where he met SI P.L. Katewa alongwith staff i.e. Ct. Raghuvender, Ct. Ravinder, who had apprehended accused Subhash Singh @ Gauri and one Chattis @ Ranjit while riding on maruti car bearing no. DL2CV8708 FIR No. 535/2013 State Vs. Subhash Singh @ Gauri Page no. 10/21 and they had already recovered from the possession of accused Subhash singh one countrymade pistol (desi Katta) alongwith one live cartridge. He stated that in the meantime, Ct. Sanjay reached at the spot alongwith copy of FIR and original rukka and handed over the same to him and first IO SI P.L. Katewa handed over him custody of accused, already prepared documents and seized case property duly sealed with the seal of PS. He stated that he mentioned particulars of FIR on already prepared documents, thereafter, he prepared site plan Ex.PW6/A and after due enquiry he arrested accused Subhash Singh @ Gauri vide memo Ex.PW3/A, conducted personal search of accused vide memo Ex.PW3/B and he also recorded disclosure statement of accused Subhash Singh vide Ex.PW3/C. He also stated that accused persons were taken to their office and were committed to custody and case property was deposited in the malkhana of PS Amar colony. He further deposed that during investigation, he sent seized case property to CFSL New Delhi for ballistic examination and obtained its report Ex.P5 and he also obtained sanction u/s 39 Arms Act in the present case which is Ex.P6 and placed the same on record. He also stated that he recorded statement of witnesses and after completion of investigation he prepared charge sheet and filed the same in the court. He correctly identified the accused. During his cross examination conducted by Ld. Defence counsel he stated that he had not seen accused driving or sitting in the car as when he reached at the spot accused was already apprehended. He admitted that recovery of case property was not effected in his presence as it was already effected by first IO before he reached the spot. He denied that no disclosure statement was given by accused or that accused was lifted by AATS staff from Bhajanpura or that he was kept in illegal custody for two days and thereafter present case was falsely planted upon him. He FIR No. 535/2013 State Vs. Subhash Singh @ Gauri Page no. 11/21 also denied that nothing had happened in the manner as stated by him or that nothing was recovered from the possession or at instance of accused or that all the proceedings were conducted in PS or that he was deposing falsely.
10. Accused Subhash Singh did not dispute the registration of present FIR as Ex.P1, endorsement on rukka as Ex.P2, certificate u/s 65B Evidence Act regarding registration of FIR as Ex.P3, recording of DD No. 8 dated 19.12.2013 AATS SED as Ex.P4, preparation of FSL (Ballistic) report no. CFSL2014/F0005 dated 26.03.2014 as Ex.P5 and sanction u/s 39 Arms Act as Ex.P6 vide his statement recorded u/s 294 Cr.PC.
11. Thereafter, PE was closed and statements of accused were recorded u/s 313 Cr.PC, during which all the incriminating evidence was put to the accused to which accused denied in its entirety and claimed innocence. Accused further stated that he was falsely implicated and he was lifted by AATS staff from Bhajanpura, Delhi and he was kept in illegal custody for two days, thereafter, false case was planted upon him and nothing was recovered at his instance or from his possession. No evidence was led by the accused in his defence.
12. I have heard Ld APP for the State and Ld counsel for the accused and also carefully gone through the record.
Finding of the Court
13. Allegation against the accused are that on 19.12.2013 at about 8.10 pm at red light, Okhla Mandi, Captain Gaur Marg, New Delhi, within the jurisdiction of PS Amar Colony / AATS, Delhi, accused namely Subhash Singh @ Gauri was found in possession of one countrymade pistol and one live cartridge without any licence or authority in contravention of notification issued by Delhi Administration and thereby accused committed offence punishable u/s 25/54/59 Arms Act.
FIR No. 535/2013 State Vs. Subhash Singh @ Gauri Page no. 12/21
14. 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 testimony of police officers and it does not show that the recovery has been planted upon the accused.
15. On the other hand, Ld. LAC for accused submitted that no public witness has been examined in the present case and 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 lifted from Bhajanpura and was falsely implicated in the present case and therefore, he may be acquitted.
16. 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.
17. 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 FIR No. 535/2013 State Vs. Subhash Singh @ Gauri Page no. 13/21 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 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 case property or any circumstance even remotely indicating towards false implication, then non joining of independent witness is not fatal to case of prosecution.
18. The case of prosecution is that upon receiving the secret information by SI P L Katewa, a raiding party was ordered to be constituted comprising of SI P L Katewa, Ct. Sanjay, Ct. Raghuvendra, Ct. Ravinder and the secret informer. PW5 SI P L Katewa deposed that he received secret information that two persons namely Subhash and Ranjeet would come at Okhla Mandi from Lajpat Nagar side for the purpose of committing the robbery. Accused Subhash Singh is the resident of Bihar and I find merits in the arguments raised by Ld LAC 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. It is pertinent to mention that PW1 Ct. Sanjay Singh was cross examined by Ld APP for the State regarding the position of accused Subhash in the car on which the accused persons allegedly reached at the spot. As per the testimonies of FIR No. 535/2013 State Vs. Subhash Singh @ Gauri Page no. 14/21 PWs a raiding party was prepared but admittedly no public witness was joined the investigation despite the fact that the accused was allegedly apprehended at about 8.00 pm at Red Light Okhla Mandi, Captain Gaur Marg, Delhi which is a busy place having presence of various public persons. Despite that no public person was joined in the investigation even after alleged apprehension of accused. Now question is that whether the conduct of PWs if taken into consideration reveals that sincere efforts were made to join the public/independent witness at the time of alleged recovery and apprehension of the accused. In my considered opinion, all witnesses including IO SI P L Katewa have not complied the directions and legal provision as observed by Hon'ble High Court of Delhi.
19. As per rukka after apprehension of the accused with country made pistol in his possession, sincere efforts have not been made by the police to join independent public persons in the police proceedings despite availability of such witnesses at the spot. Even PW1 Ct. Sanjay Singh deposed during his cross examination that IO did not join any public person in the investigation despite availability. After the apprehension of the accused, IO of the case could very well have served the passersby/public witnesses with notice in writing to join the police proceedings inasmuch as at that point of time accused already stood apprehended and there was no possibility of accused escaping his arrest or crime going undetected. At least in the facts and circumstances of the case, in my opinion, IO must have asked the passersby/persons available at the spot by serving them notice in writing and in case of their refusal IO must have taken action against them u/s 187 IPC. IO PW5 SI P L Katewa admitted during his cross examination that he did not serve any written notice upon any public person who were present at the spot upon their refusal to join the investigation. Facts and circumstance of the case suggest that no sincere FIR No. 535/2013 State Vs. Subhash Singh @ Gauri Page no. 15/21 efforts have been made by police official to join independent public witnesses in the police proceedings. In this regard reliance can be placed on case titled Anoop Joshi V/s 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 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''.
20. In a case law reported as Roop Chand V/s The State of Haryana, 1999 (1) C.L.R 69, the Hon'ble Punjab & Haryana High Court held as under: '' 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 FIR No. 535/2013 State Vs. Subhash Singh @ Gauri Page no. 16/21 they were asked to join the investigation. The explanation furnished by the prosecution is that the independent witnesses were asked to join the investigation but they refused to do do 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 he witnesses from the public had refused to join the investigation, the Investigating 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 FIR No. 535/2013 State Vs. Subhash Singh @ Gauri Page no. 17/21 highly doubtful''.
21. In case law reported as Sadhu Singh Vs State of Punjab, 1997 (3) Crimes 55 the Hon'ble Punjab & Haryana High Court observed as under: '' 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'' ''6.
In the present case, the State examined two witnesses namely, Harbans Singh ASI who appeared as PW1 and Kartar Singh PW2. Both the witnesses supported the prosecution version in terms of the recovery of opium from the person of the petitioner, but there was no public witness who had joined. It is not necessary in such recoveries that public witnesses must be joined, but attempt must be made to join the public witnesses. There can be cases when public witnesses are reluctant to join or are not available. All the same, the prosecution must show a genuine attempt having been made to join a public witness or that they were not available. A stereotype statement of nonavailability will not be sufficient particularly when at the relevant time, it was not difficult to procure the service of public witness. This reflects adversely on the prosecution version''.
FIR No. 535/2013 State Vs. Subhash Singh @ Gauri Page no. 18/21
22. Further, in the case in hand, the police officials allegedly searched accused Subhash and country made pistol was 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.
23. 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 persons, police official(s) had not offered their own search to the accused persons. 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 thereon is also vitiated''.
24. Being guided by above said case law, it can be said that search of the FIR No. 535/2013 State Vs. Subhash Singh @ Gauri Page no. 19/21 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.
25. Further, as per evidence on record, after its use the seal of the pullanda containing the case property allegedly recovered from the accused persons 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 from the possession of 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.
26. In the present case, the seal was not handed over by the IO to an independent person prior to sending the seized pistols 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 13 days in sending the case property to FSL and during that period the seal remained in the possession of the IO. Even PWs examined by the prosecution admitted that no chance print over the case property were taken nor the photographs of the spot were taken so as to substantiate the case of the prosecution. Even no investigation regarding source of alleged pistol 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 Subhash Singh @ Gauri is entitled to be acquitted in the present case.
FIR No. 535/2013 State Vs. Subhash Singh @ Gauri Page no. 20/21
27. Accordingly, accused Subhash Singh @ Gauri is held "not guilty" and is accordingly acquitted of the offence punishable u/s 25/54/59 Arms Act.
Announced in the open court Today on 06.08.2018 (Manish Khurana) CMM/SE/District Court, Saket New Delhi/06.08.2018 FIR No. 535/2013 State Vs. Subhash Singh @ Gauri Page no. 21/21