Delhi District Court
State vs . Devender Singh @ Bunty on 18 July, 2011
IN THE COURT OF SH. HEM RAJ, METROPOLITAN MAGISTRATE,
WEST - 09, TIS HAZARI COURTS, DELHI
STATE Vs. DEVENDER SINGH @ BUNTY
FIR No : 98/2011
U/S : 25/54/59 ARMS ACT
P.S : VIKAS PURI
1. Serial No. of the case : 150/3/11
2. Unique ID of the Case : 02401R0185662011
3. Date of Commission of Offence : 19.03.2011
4. Date of institution of the case : 05.04.2011
5. Name of the complainant : ASI Dharampal
6. Name of accused, parentage & : Devender Singh @ Bunty
S/o Sh. Kirpal Singh
R/o House No.168, KGIII,
Vikas Puri, Delhi.
7. Offence complained : U/S 25/54/59 Arms Act.
8. Plea of Accused : Pleaded Not Guilty.
9. Final Order : Acquitted
10.Date of Final Order : 18.07.2011
J U D G E M E N T
1 The prosecution filed a charge sheet on the allegations, that on 19.03.11, at about 7.30 PM, in front of House No.KGIII/168, Vikas Puri, Delhi, within the jurisdiction of PSVikas Puri, the accused Devender Singh FIR No. 98/2011 STATE V/s DEVINDER SINGH @ BUNTY PAGE No.1/17 @ Bunty was found in possession of one buttondar knife in the outside pocket of a black colour bag having words 'Max Air'. Therefore, the contravention of the notification issued by Delhi Government was alleged as the knife was found in possession of the accused without any license and permit. Thus, the accused has been alleged to have committed an offence as punishable U/S 25 Arms Act 1954.
2 In compliance of Section 207 Cr.P.C, the copy of the charge sheet along with other documents were supplied to the accused. Later on, vide Order dated 08.04.2011, charge for commission of offences under Section 25 of Arms Act 1954 was framed by the Court to which accused pleaded not guilty and claimed trial.
3 In order to prove its case against the accused the prosecution examined a total number of five witnesses.
4 PW1 Balwinder Singh deposed that he is the brother of the accused who used to demand money from him and also his share from the property but earlier he did not take any action against him. He further deposed that on 19.03.11, when he was present at his work place, his wife telephoned him FIR No. 98/2011 STATE V/s DEVINDER SINGH @ BUNTY PAGE No.2/17 that the accused had come at his house, thereafter, he reached at his residence and tried to make the accused understand. Then, he made a call to the police on telephone no 100. Further, it was deposed by him, that the accused started going outside his house along with three bags brought by him. He further deposed that soon after the police had come at his call. The police searched the bag of the accused and one buttondar knife was recovered from one black colour bag on which words 'Max Air' were written. He further deposed that the knife was measured but he could not tell the measurement of the knife. He proved the sketch memo of the knife as Ex.PW1/A. He further deposed that the police seized the knife vide seizure memo Ex.PW1/B. The rukka was sent to the PS from where SI Kuldeep Singh came at the spot. He proved arrest memo and personal search of the accused as Ex.PW1/C and D. He further deposed that all the three bags of the accused were also seized vide memo Ex.PW1/E. He correctly identified the accused and the knife. He proved the knife as Ex.P1. 5 In the crossexamination by Ld. LAC, he stated that he reached his house at about 6/6.30 pm and that he made the call to the police on telephone number 100 within twenty minutes after reaching his residence. He further stated that his statement was recorded by the police at the spot. FIR No. 98/2011 STATE V/s DEVINDER SINGH @ BUNTY PAGE No.3/17 6 PW2 ASI Dharmvir Singh was the first IO who reached at the spot along with PW5 Ct. Ramodh. He deposed that on 19.03.2011, he was on emergency duty and upon receipt of the DD NO. 28A, he reached outside the house no.House No.168, KGIII, Vikas Puri, Delhi where the accused was coming along with one sardar ji namely Balwinder Singh. The said Balwinder Singh told him that he made a call to telephone no.100 and pointed out towards the accused. He further deposed that he conducted the personal search of accused and the search of three bags. One buttondar knife was recovered from the pocket of the one black colour of the accused. He asked three four public persons to join the investigation but none agreed for the same. He further deposed that he prepared the sketch of the knife Ex.PW1/A and carried out the measurement of the knife. The total length of the knife was found as 23.5 cms, the length of the handle and length of the blade were found as 13 cmss and 10.5 cm respectively. The width of the blade was found as 2.5 cms. He further deposed that there were circles on the handle of the knife and on the blade, the words 'BestIII steel' were engraved. The button of the knife was made of brass. He further deposed that the knife was closed and the pullanda was prepared which was sealed with the seal of DBS. The seal after use was handed over to Ct. Ramodh. The knife was FIR No. 98/2011 STATE V/s DEVINDER SINGH @ BUNTY PAGE No.4/17 seized vide seizure memo Ex.PW1/B. He prepared rukka Ex.PW2/A and he got the FIR registered through Ct. Ramodh. He further deposed that after registration of the FIR, Ct. Ramodh came at the spot along with SI Kuldeep Singh who prepared the site plan Ex.PW2/B at his instance. 7 In the crossexamination, he stated that he received information about the incidence at about 7.05 pm and he reached at the spot along with Ct. Ramodh on the motorcycle at 7.30 pm. He further stated that when they reached at the spot, no public person was present including the wife of the complainant. He further stated that the rukka was sent at about 8.45 pm and Ct. Parmod came back at the spot at about 9.20 pm after registration of FIR. He remained at the spot till 9.40 pm. He denied the suggestion that no knife was recovered from the possession of the accused and that accused has been falsely implicated in this case.
8 PW5 Ct. Ramodh deposed on the similar lines to what has been deposed by PW2 ASI Dharmvir Singh and corroborated his testimony. 9 In the cross examination he stated that the DD no.28A was handed over to ASI Dharambir by ASI Ombir Dabas. He did not know if DD no.28A FIR No. 98/2011 STATE V/s DEVINDER SINGH @ BUNTY PAGE No.5/17 handed over to SI Bhanu Partap. He stated that the area of KGIII is a residential area and IO inquired from the residents of house no. 167 and 169. He further deposed, that they went to the spot on his motorcycle. He did not remember what articles were available with ASI Dharambir when they left the police station. He denied the suggestion that the accused was falsely implicated in the case or that they did not go to the spot or that all the writing work was done at the police station. He further stated that he remained at the spot for about 1520 minutes before leaving for the police station and he reached the police station within 1520 minutes. He stated that it also took 1520 minutes in the writing of the FIR. The accused was taken to the hospital at about 10.30 pm but the witness after seeing the judicial file submitted that the medical papers were not attached in the judicial file. He further stated that some public persons were present at the spot. The statement of the complainant was recorded at the police station by SI Kuldeep Singh. He denied the suggestion that no knife was recovered by him or that he deposed falsely being the police officials. 10 PW3 SI Kuldeep Singh was the second IO of the case. He deposed that after the rukka and FIR was handed over to him, he went to the spot where he met with SI Dharmvir Singh, Complainant Balwinder and accused FIR No. 98/2011 STATE V/s DEVINDER SINGH @ BUNTY PAGE No.6/17 Devender Singh. He further deposed that accused was arrested by him. He carried out further investigation of the case. He further deposed that he filed the challan in the court.
11 In the crossexamination he stated that he recorded the statement of Balvinder Singh at the spot and those of ASI Dharambir and Ct.Ramod at the police station. He stated that he reached at the spot alongwith Ct. Ramodh on the motorcycle within five minutes. He further stated that he asked some passersby to join the investigation but none agreed and all left the spot without disclosing their names and addresses. He warned them about the legal consequences. He denied the suggestion that he was deposing falsely being a police officiol.
12 PW4 SI Ombir Dabas was the Duty Officer in this case and he proved the FIR as Ex PW4/A and the endorsement as Ex PW2/B. He was not cross examined by the accused.
13 In his statement under Section 313 Cr.P.C.,the accused denied that any knife was recovered from his possession. He claimed to be innocent and submitted that he was falsely implicated in this case. He chose not to lead FIR No. 98/2011 STATE V/s DEVINDER SINGH @ BUNTY PAGE No.7/17 any defence evidence.
14 It has been submitted by Ld. APP the prosecution has been able to prove the guilt of accused beyond the reasonable doubt. It has been further submitted that the testimonies of the prosecution witnesses are reliable and trustworthy which have been able to bring the guilt of the accused home. 15 On the other hand, the Ld. Defence Counsel has argued that the prosecution has miserably failed to prove the case against the accused beyond reasonable doubt. He further submitted that there are material contradictions in the testimonies of the prosecution witnesses which rendered them to be unbelievable and untrustworthy and no reliance can be placed upon them and no finding of the conviction can be returned thereof. He further submitted that the accused deserved to be acquitted in the case. 16 I have heard the Ld. APP for the State and Ld. LAC for the accused. 17 It is well settled principal of law that the prosecution has to prove the case against the accused beyond reasonable doubt and the prosecution has to stand upon on his own legs. The prosecution also cannot draw any FIR No. 98/2011 STATE V/s DEVINDER SINGH @ BUNTY PAGE No.8/17 strength from the case of the accused howsoever weak it may be. It is also well settled proposition of criminal law that the accused has a profound right for not to be convicted for an offence which is not established by the evidential standard of proof beyond reasonable doubt. It is also a cardinal principle of criminal law that burden of proof in a criminal trial always rests on the prosecution and the same never shifts upon the accused. 18 After considering evidence on the record I am on the considered opinion that the prosecution has miserably failed to prove the case against the accused beyond the reasonable doubt for the following reasons: A Chapter 22 Rule 49 of Punjab Police Rules, 1934, provides as under: "22.49 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 personality by FIR No. 98/2011 STATE V/s DEVINDER SINGH @ BUNTY PAGE No.9/17 signature or seal.
Note: The term Police Station will include all places such as Police Lines & Police Posts where Register No. II is maintained.
In the present case, though the case of the prosecution is that the on receipt of the information of the unlawful entry made by the accused in the house of PW1 Balwinder Singh, the same was reduced into writing vide DD no.28A and the said DD was handed over to PW2 ASI Dharambir, but in my opinion the oral testimonies of the prosecution witnesses have not found any support and corroboration in the absence of the documentary evidence. The prosecution has not proved the DD no. 28A on the record. No DD writer has been examined by the prosecution. The original DD was also never called in the case at any point of time. Merely that the prosecution witnesses have deposed about the said DD entry does not mean that the onus has been properly discharged. Even otherwise, no oral evidence should be relied upon if the documentary evidence is available but the same has not been proved on the record. In my opinion, the prosecution was under an FIR No. 98/2011 STATE V/s DEVINDER SINGH @ BUNTY PAGE No.10/17 obligation to bring on record and prove the above said DD entry vide which the above said police officials i.e. PW2 & PW5 had left the police station for the spot. Hence, the above said provision appears to have not been complied with. When the aforesaid DD has not been proved on the record, it has, thus, not been proved on the record beyond reasonable doubt that in fact, both PW2 and5 reached at the spot in pursuance of the said DD.
B As per the case of the prosecution, after use the seal was handed over to PW5 Ct.Ramodh but there is nothing on the record as to when the seal was returned to the IO. It remained a mystery. PW5 Ct.Ramodh has also said nothing in his deposition about the same. In view of this fact the conclusion can be arrived at that the seal remained with the IO or with any other member of the raiding party, therefore, the possibility of interference or tempering of the seal and the contents of the case property cannot be ruled out. I am supported with the judgment of Ramji Singh V/s State of Haryana 2007 (3) R.C.R. (Criminal) 452, wherein 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 dispatched to the forensic science FIR No. 98/2011 STATE V/s DEVINDER SINGH @ BUNTY PAGE No.11/17 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". Hence, the prosecution case is seriously doubtful for the aforesaid reason also. The possibility of the tempering of the case property and its false planting upon the accused cannot be ruled out altogether when the seal remained either of the members of the police party.
C Moreover, no explanation has been brought by the prosecution on the record as to how the number of the FIR has come on the sketch memo of knife Ex. PW1/A and the seizure memo Ex. PW1/B as the said documents have admittedly been prepared before the registration of the FIR. 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. PW2/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 FIR No. 98/2011 STATE V/s DEVINDER SINGH @ BUNTY PAGE No.12/17 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 similar view was taken in the judgment of Mohd. Hashim Vs. State 1999(6) A.D.(Delhi)569. Therefore, the number of the FIR on the top of the seizure memo and the sketch memo gives reasonable doubt in the story of the prosecution which has not been explained by the prosecution. In my considered opinion, the prosecution has left so many gaping holes in its story that the case has fallen short from being proved beyond reasonable doubt.
D Moreover, there are certain material contradictions in the testimonies of the prosecution witnesses the inconsistency in the oral and the documentary evidence on the record, which rendered the case of the prosecution as doubtful, unbelievable and untrustworthy. Firstly, there is inconsistency between the PWs as to where the statement of PW1 Balwinder Singh was recorded. PW1 deposed that his statement was recorded at the spot. PW3 SI Kuldeep Singh also deposed that his statement was recorded at the spot. But both of them have been contradicted by PW5 FIR No. 98/2011 STATE V/s DEVINDER SINGH @ BUNTY PAGE No.13/17 Ct. Ramodh who deposed that the statement of PW1 was recorded at the police station by SI Kuldeep Singh. Therefore, this very contradiction causes a serious damage in the prosecution story as it would show that the investigation was not carried out in the same manner in which it has been produced to have been carried out.
E Secondly, the oral and the documentary evidence are inconsistent to each other, as far as, the time, when the rukka was sent to the police station and the FIR was registered, is concerned. As per the case of the prosecution the knife was recovered at about 7.30 pm and the rukka was sent to the police station at about 8.45 pm. The FIR was registered after 15 minutes i.e. 9 pm. It is also the case of the prosecution that seizure memo of the knife Ex PW1/B and sketch memo Ex PW1/A were prepared before the rukka Ex PW2/A was prepared. These three documents were prepared within 1520 minutes after PW2ASI Dharambir and PW5 Ramodh reached at the spot. PW 5 Ct. Ramodh deposed that he remained at the spot for about 1520 minutes before he left the spot for the police station for the registration of the FIR. PW5 Ct. Ramodh also deposed that he reached the police station within1520 minutes and he further deposed that it took further 1520 minutes in the registration of the FIR. Hence, it is apparent from the testimony of PW5 FIR No. 98/2011 STATE V/s DEVINDER SINGH @ BUNTY PAGE No.14/17 that he left the spot for the police station at about 7.457.50 pm, he reached at the police station at about 8.158.20 pm and that the FIR was finished by 8.308.35 pm. The testimony of PW 5 is clearly contradictory to the documents prepared in this regard. The rukka was sent to the police station at about 8.45 pm and the same has been deposed about by PW2 ASI Dharambit. It clearly leads to the only irresistible conclusion that either the documents have not been prepared at the time when they are shown to have been prepared or that they have been made antetimed in order to implicate the accused in this case. Be that as it may, it has seriously affected the genuineness of the case of the prosecution.
F The testimonies of the other PWs would also show that they are also not consistent with the case of the prosecution and thus, throw considerable doubt thereof. PW2 ASI Dharambir deposed that he received the information at about 7.05 pm and he reached at the spot on the motorcycle at about 7.30 pm alongwith PW5 Ct. Ramodh. As per his version it took them about 25 minutes to reach at the spot. PW5 Ct. Ramodh deposed that he alongwith ASI Dharambir reached at the spot on his motorcycle. PW3 SI Kuldeep Singh deposed that after the registration of the FIR he alongwith PW5 Ct. Ramodh reached at the spot within five minutes after the registration of the FIR on his FIR No. 98/2011 STATE V/s DEVINDER SINGH @ BUNTY PAGE No.15/17 motorcycle. From the perusal of the contradictory stands taken by all these witnesses, it is clear their stand regarding the distance between the spot and the police station is not consistent, otherwise when PW3 and PW2 both have come at the spot on the motorcycles, then there is no reason as to why there is a difference of almost twenty minutes in the time taken by them in reaching at the spot. The only conclusion which can be derived is that both PW2 and PW3 had never gone to the spot and there version gives birth to a reasonable doubt about the story of the prosecution.
G The last but not the least, the alleged black colour bag containing the knife Ex P1 has never been produced before the court for the perusal. Apart from this, other two bags which were recovered from the accused have also not been produced in the court. The knife Ex P1 was allegedly recovered from the outside pocket of the black colour bag on which the words,' Max Air' were written. In my considered opinion, the prosecution was under the obligation to prove that the alleged bag had an outside pocket in the same wherein such a knife could have been placed. Nonproduction would thereof warrant drawing of a negative inference within the meaning of Section 114(g) of the Evidence Act. The physical nonproduction of the aforesaid bag, in my considered opinion, has seriously affected the genuineness and the FIR No. 98/2011 STATE V/s DEVINDER SINGH @ BUNTY PAGE No.16/17 trustworthiness of the prosecution case.
19 Therefore, in view of the discussions made herein above and the facts and circumstances of the present case, in my considered opinion, the prosecution has failed to prove the guilt of the accused beyond reasonable doubt. Hence, the accused Devender Singh @ Bunty stands acquitted of the offence under section 25 Arms Act, he has been charged with. The personal bond of the accused is cancelled. He be set at liberty forthwith. File be consigned to Record Room after necessary formalities.
ANNOUNCED IN THE OPEN COURT (HEM RAJ)
TODAY i.e. ON 18 JULY, 2011
th
MM09:WEST:THC
18.07.2011
FIR No. 98/2011 STATE V/s DEVINDER SINGH @ BUNTY PAGE No.17/17