Delhi District Court
State vs . Har Govind Singh & Anr. on 17 April, 2010
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IN THE COURT OF SHRI LOKESH KUMAR SHARMA : ACMM/
NORTH EAST, KARKARDOOMA COURTS, DELHI.
State Vs. Har Govind Singh & Anr.
FIR No.65/99
U/S: 25 Arms Act
P.S.: Khajurikhas
(Investigated by Crime Branch)
Date of Institution of case: 17.4.99
Date on which judgment is reserved: 17.4.10
Date on which judgment is delivered: 17.4.10
J U D G M E N T
a) Sl. no. of the case 28/08
b) Date of commission of offence 13.2.99 and 18.2.99
c) Name of complainant Inspector Subhash Tandon, Inter
State Cell, Crime Branch, Chanakya
Puri, Delhi.
d) Name of accused, his parentage Har Govind Singh s/o Mohinder
Singh r/o 173, Ajeet Nagar, Amritsar
(Punjab)
2. Mohd. Vasil Khan @ Mohd.
Vasim @ Raju @ Daud Gulfam s/o
Babu Saha r/o village Ujhani Moh -
Pathan Tala, District Badaun, UP
declared (PO) vide orders dt. 1.9.06.
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e) Offence complained of or proved U/S: 25 Arms Act
f) Plea of the accused Pleaded not guilty
g) Final order :Acquitted.
h) Date of such order :17.4.10
j) Brief reasons for the just decision of the case
1. In brief the prosecution case against the accused is that during investigation of case no. 880/98 u/s 307/34 IPC read with Section 25/54/59 Arms Act PS Seelampur from accused Vasim, he made a disclosure regarding his purchasing 58 illegal weapons (pistols) from present accused Hargovind Singh along with fake currency notes worth Rs. 5 lacs out of those, he got recovered two i.e. one in the aforesaid case of PS Seelampur and another one was got recovered by him from one green colour atechi lying at H.No. A224, gali no.4, Kacchi Khajoori, near Hanuman Mandir. It was on his disclosure that accused Hargovind Singh who was already in custody in case FIR no. 611/98 u/s 489B, 489C, 489E read with Section 120B/121 IPC was interrogated and formally arrested in the present case on 17.2.99 and his PC remand was taken by the officials of Crime Branch and allegedly on 18.2.99, 3/16 this accused got recovered them one pistol of .32 bore with one spare magazine and 10 live cartridges along with one other pistol of .30 bore and 30 live rounds and thereby committed an offence punishable u/s 25 Arms Act. On rukka prepared in this regard by IO Inspector Subhash Tandon, present FIR was registered against both the accused persons and they were arrested in the present case. Later on, accused was released on bail in this case but he had faced entire trial while remaining in custody in some other case from Central Jail, Amritsar, Punjab.
2. After completion of investigation, charge sheet was filed against both the accused persons in the court. Charge for the offence punishable under Section U/S 25 Arms Act was framed against both the accused persons separately on 12.10.99 to which they had pleaded not guilty and claimed trial.
3. In order to substantiate its version, prosecution had examined 10 witnesses. However, during the course of trial, accused Vasil @ Vasim had absconded and was declared a P.O vide orders dt. 1.9.06. PW1 Nasir Ali had deposed that on 27.2.99, he had gone at the house of Babu Shah at about 5/6 pm. In the meantime, police reached there along with accused Wasim present in court on the day of examination of this witness. One motor cycle was 4/16 parked under the stairs. He had further deposed that mother of accused gave a polythene from a room in which a mobile phone, one card and one charger were kept and the same were taken into possession by police vide seizure memo Ex.PW 1/A. Mother of accused also gave the key of the motor cycle to the police and motor cycle was also taken into possession vide memo Ex.PW 1/B in case FIR no. 65/99. Witness had identified the mobile phone as Ex.P1, charger alone with wire as Ex.P2 and sim card as Ex.P3 to be the same which were taken into possession by police in his presence and produced by mother of accused. Witness had also identified the motor cycle Ex.P4 to be the same.
4. During crossexamination by Ld. LAC Shri Hari Shankar for accused Vasil, witness had deposed that accused Vasil was known to him since he was residing in their mohalla. He had further deposed that he had left his house at about 4.30 pm alone by bus and had reached at the house of Babu Shah within 30 minutes. Family members of the accused met him. He was not able to tell as to how many brothers and sisters the accused had. Babu Shah was not present a the house at that time. There were two rooms in the house. 56 police officials had come there. It was further deposed by the witness that 24 persons from the mohalla had also gathered there. Police officials had not 5/16 recorded their statement in his presence. Statement of witness was also not recorded there. He had signed only one paper. Witness had signed on paper and contents had already been written on the same. Witness had admitted it to be correct that pradhan of mohalla had not been called. Even the SHO of the area was not called. However, it is pertinent to mention here itself that during his entire examinationinchief, he had not uttered a single word regarding the incident dt. 13.2.99 on which day the alleged recovery of pistol was made at the instance of accused Vasil from Kacchi Khajoori. I fail to understand as to which fact, the prosecution wanted to get proved by citing him as a witness in the present case.
5. This witness was not crossexamined by Ld. counsel for accused Har Govind despite opportunity given to him in this regard.
6. PW2 K.K. Upadhaya, Ballastic Expert, FSL had deposed that on examination, Ex.F1 was pistol of 7.65 mm/.32 inch caliber was found in working order in the condition on the day of his examination. Test fire was conducted successfully using Ex.A1. Ex.F2 was a pistol of 7.63 mm/.30 inch caliber and was also found in working order. Test fire was conducted successfully using Ex.A11. He had proved his detailed reports as Ex.PW 2/A 6/16 and Ex.PW 2/B.
7. During crossexamination by Ld. counsel Shri A.K. Chaudhary for accused Har Gobbind, witness had admitted it to be correct that he had not mentioned in report that he had also forwarded with the parcels the said fired empty cartridges.
8. This witness was not crossexamined by another accused despite opportunity given to him in this regard.
9. PW 3 ASI Ranbir Singh had deposed that on 13.2.99, Inspector Subhash Tandon was investigating in case FIR no. 611/98 and in that case, accused Mohd. Vasil Khan was taken on PC remand. Thereafter, witness along with SI Ramesh Kumar, Inspector Subhash Tandon, ASI Parmod Kumar HC Devender Singh and Ct. Nazir Hussain took the accused to Khajoori Khas at the slope. Thereafter, accused Vasil took them to H.No.224, Kacchi Khajoori Khas near Hanuman temple. In the meantime, 4/5 public persons were asked to join raiding party but none had agreed. Thereafter, at about 9.45 pm, accused Vasil took his green suit case from the above said house and after opening the same, produced one pistol and on checking its magazine, it was found containing 9 cartridges. Some pant, shirts were also recovered from the 7/16 bag. Pistol was measured. Seal after its use was handed over to ASI Parmod. At about 11.50 pm, Inspector Subhash Tandon prepared tehrir and same was sent to PS Khajoori Khas for registration of case through HC Devender Singh. IO had prepared the site plan. During PC remand, accused Har Gobind had disclosed that he was working for Daud Ibrahim and he had already been arrested in some cases and forged currency notes of Rs. 25 lacs had been recovered from him and he had given the delivery of 58 pistols to David @ Vasil. He had also disclosed that two pistols were lying at Shalimar Bagh at the house of his known person. In the meantime, IO had asked 45 public persons to join raiding party out of which one person Mahavir Prasad r/o Budh Vihar joined the police party. Thereafter, they had reached at H.No.AG 10, Shalimar Bagh. On ringing the bell, chowkidar opened the door. Accused took them inside the house and from right side room produced one bag which was lying in the hole above the almirah. From the bag, two pistols, one small and another big one magazine and 40 rounds out of which 30 of big pistol and 10 of small pistol were recovered. The barrel of big pistol was 19 cm and butt of 9 cm. The barrel of small pistol was 13.5 cm and butt 7.5 cm. Public witness Mahavir Prasad was relieved from there. Crossexamination of this 8/16 witness was deferred at the request of Ld. counsel for accused.
10. PW 3 ASI Randhir Singh was not crossexamined accused despite opportunity given to him in this regard on 23.9.02.
11. PW 4 Zahir Ali had deposed that on 13.2.99, accused Vasil present in court on the day of his examination along with 56 policemen came at his house. Accused Vasil was known to him being his neighbour in Badayun. Earlier about 2025 days back, Vasil had kept a brief case at the house of witness. On 13.2.99, he came with police and had asked for his brief case. Witness took out the said brief case and the same was given to the police officials and upon checking the same one revolver was recovered from that brief case with clothes. Witness had proved the sketch of pistol and cartridge as Ex.PW 4/A along with pointing out cum seizure memo Ex.PW 4/B. Further examinationinchief of the within was deferred for want of case property.
12. During further examinationinchief of this witness on 6.8.08, witness had proved the case property collectively as Ex.P1. Remaining case property had also been proved by this witness during his examinationinchief. But it is also to be borne in mind that brief case was produced in the court in an unsealed condition, hence possibility of tampering with the case property cannot be 9/16 ruled out.
13. This witness was not crossexamined by Ld. counsel Shri A.K. Chaudhary for accused Har Govind despite opportunity given to him in this regard.
14. PW 5 HC Guru Dutt was D.O on 14.2.99 and had proved copy of FIR as Ex.PW 5/A, During crossexamination by Ld. counsel Shri A.K. Chaudhary for accused Har Govind Singh, witness had admitted it to be correct that col. no.5 of Ex.PW 5/A was blank where names and address of the criminal was not mentioned. Witness had denied to the suggestion that said FIR was ante dated, ante timed and was a concocted story of the police. Witness had admitted it to be correct that third page of FIR was not having any serial number and it was also not bonded with the FIR register pertaining to FIR no. 32/99 to 88/99. Witness had further admitted it to be correct that sheet Ex.PW 5/DA was not the part of the bound register of the said register. It was further admitted to be correct by the witness that the person who had brought the rukka in the PS had not handed over any case property relating to this case.
15. PW 6 ASI Satender Kumar had identified signatures of then DCP Shri Karnal Singh on letter No.24&25/SO/DCP/C&R dt. 16.4.99 at point A on Ex.PW 6/A and B as he had worked under him. This witness was not cross 10/16 examined by accused despite opportunity given to him in this regard.
16. PW 7 HC Prem Chand was the MHC(M) on 14.2.99 with whom Inspector S. Tandon had deposited the case property of the present case. On 18.2.99, SI Ramesh Sharma had also deposited the case property at the malkhana and on 1.3.99, SI Ramesh Sharma had deposited the case property and he made entries to that effect.
17. During crossexamination by Ld. counsel Shri A.K. Chaudhary for accused, witness had denied to the suggestion that entry at srl.no.52 was fabricated entry. He had further denied to the suggestion that he had never sent the sealed pulandas along with FSL form to FSL. However, he had admitted it to be correct that in his statement recorded u/s 161 Cr.P.C Ex.PW 7/DA, the facts regarding entry at serial no. 45, 52 and 67 were not recorded.
18. PW 8 HC Sanjeev Kumar had deposed that on 18.2.99, Inspector Subhash Tandon gave him a sealed pulanda for depositing at malkhana PS Khajoori Khas. Vide RC no. 2/21, he had deposited the pulanda at FSL Malviya Nagar along with FSL form. On 23.2.99, witness had deposited two sealed pulandas along with FSL form at FSL Maliya Nagar on the direction of SI Ramesh Sharma. Witness had further deposed that case property was not tampered 11/16 with till it remained in his possession.
19. During crossexamination by Ld. Defence counsel, witness had denied to the suggestion that he had never taken the said articles to PS Khajoori Khas and thereafter to FSL and that that the dates and time were manipulated.
20. PW 9 HC Baljeet had deposed that on 18.2.99, he had issued RC no. 2/21 vide entry srl.no. 45 in the store room register. During crossexamination by Ld. Defence counsel, witness had admitted it to be correct that said RC did not belong to accused Har Govind Singh.
21. PW 10 Inspector Subhash Tandon was the IO of the case who had deposed that on 13.2.99 he was posted at Inter State Cell Crime Branch. On that day, he was on investigation of FIR no. 611/98 PS IP Estate. At that time, they had detained accused Wasim @ Wasil in their custody. Accused Wasim made a disclosure statement to them. The same had been proved as Ex.PW 10/A. A raiding party consisting of SI Ramesh Sharma, ASI Promod Kumar, ASI Ranvir, HC Davender, Ct. Nazir and witness was prepared for further recovery in pursuance to the disclosure statement. At around 9.20 pm they reached at Khajurikhas in a police gypsy. Witness had requested 45 passersby to join but none had agreed and left without disclosing their names 12/16 and addresses. Accused Wasim Khan took them to H.No.A224, Kachhi Khajoori at the house of Jahid Ali. Accused produced them an atechi of VIP green colour after lifting the same from the taand of right hand room of the premises. Accused took out a blue bag from the atechi on which word 'kappa toring' was written. There was a pistol in the side pocket of the blue bag and produced the same. Pistol was of the make of Star bearing srl.no.31010373. Them checked it and found 8 cartridges in a megazine. Witness had prepared sketch and measured the same. Sketch of pistol, megazine and cartridge had already been proved as Ex.PW 4/A. The recovered articles were wrapped in a white cloth and it was duly sealed with the seal of ST. Witness had seized the same vide seizure memo Ex.PW 4/B. Witness had prepared rukka Ex.PW 10/A. Rukka was handed over to HC Davender for registration of FIR. HC Davender went to PS and got the case registered. Further investigation was marked to SI Ramesh Sharma. Statement of witness was recorded by SI Ramesh Sharma. One pistol, one empty megazine, 9 live cartridges and one empty cartridge were taken out. Witness had submitted that these were not recovered in his presence. After opening the second pulanda, one pistol, one megazine, 7 live cartridges, one empty cartridge were taken out with the same 13/16 description and they were identified by witness as recovered from accused Wasim in his presence. Same had already been exhibited as Ex.P2 to 10.
22. During crossexamination by Ld. Defence counsel, witness had denied to the suggestion that rukka was fabricated and he had cooked up story to implicate the accused falsely.
23. Thereafter, PE was closed.
24. Accused Hargovind was examined u/s 313 Cr.P.C and all the incriminating evidence had been put to him in his vernacular language to which he had stated that he was innocent and had been falsely implicated and that it was a false case. He did not lead any D.E.
25. After appreciation of the testimonies of the witnesses as well as the material placed on record by the prosecution, I have no hesitation in holding that the prosecution has miserably failed to prove the case against both the accused persons beyond reasonable doubt.
26. So far as alleged recovery of mobile phone and sim card are concerned, no evidence has been adduced on record nor any witness has been cited from any mobile service provider company to prove the fact that mobile no. 9810146207 actually belonged to accused Vasil @ Vasim or that he was 14/16 operating in the name of Hadley as well to whom alleged weapons and fake currency notes were delivered by accused Har Govind. One of the prime eye witnesses of the case namely Mahavir Prasad had not been examined in this case for the reasons best known to prosecution. Ld. APP has argued that testimony of PW 3 and PW 4 alone is sufficient enough to convict the accused persons. However, I am not impressed with this argument and contention at all. Investigation has failed to disclose as to who was the owner of H.No. A.G 10, Shalimar Bagh, Delhi from where the alleged recovery was made at the instance of accused Har Govind. Thus, prosecution has miserably failed to establish the link or connection of the said accused with the said house. It is highly improbable that accused could enter freely in any unknown person's house without there being any resistence to his entry from the other side. Further more, even the said chowkidar who had allegedly opened the gate of said house had also not been cited as a witness in this case nor its owner was cited as a witness. So far as role of PW 4 Zahir Ali alleged owner of H.No. A 224, gali no.4, Kacchi Khajoori, Delhi is concerned, he appears to be a planted witness to me because at the initial stages, there is no mention of this witness either in the FIR/ rukka or even in the charge sheet. In the charge sheet, there 15/16 is only mention of the fact that accused Vasil @ Vasim had identified the said house as one belonging to PW 4 but no where it has been mentioned that PW 4 was also found to be present at his house at the time of raid by police officials. Hence, even his signatures appearing on Ex.PW 4/A also appear to have obtained at a later stage so as to plant him in the present case. None of the police officials had offered themselves for their own formal search by the accused persons before making any alleged recovery at their instance. Further more, non joinder of independent public witnesses of the same locality despite their easy availability also caste a serious shadow of doubt on the authenticity, veracity and truthfulness of the story of prosecution.
27. In view of my afore said detailed discussion, I have no hesitation in holding that prosecution has miserably failed to bring home the guilt of accused persons beyond any reasonable doubt.
28. It is a cardinal principle of law that prosecution must prove the guilt of the accused beyond reasonable doubt and all the benefits arising from the lacunaes of the prosecution must be given to the accused. Hence in my opinion, prosecution has failed to bring such material on record which would have gone to establish the guilt of both the accused persons beyond reasonable 16/16 doubt holding them guilty for the offence alleged to have been committed by them resulting into their conviction and sentence. Accused Har Govind is, therefore, acquitted. He be set at liberty forthwith if not required to be detained in any other case. Since matter has not been proved against accused Vasil @ Vasim as well beyond any reasonable doubt, hence his P.O proceedings are also recalled and cancelled and he is also acquitted in the present case. File be consigned to record room after completion of necessary formalities.
ANNOUNCED IN OPEN COURT ON 17.4.10) (LOKESH KUMAR SHARMA) ACMM/02, North East, KARKARDOOMA COURTS :
DELHI