Delhi District Court
Ezenwosu vs . Narcotics Control Bureau And Others, ... on 19 December, 2014
IN THE COURT OF METROPOLITAN MAGISTRATE-05,
SOUTH-WEST DISTRICT, DWARKA COURTS, NEW DELHI
Presided by: Ms. Manika
State v. Rajbir @ Billi
FIR No. 138/11
Police Station : Chhawla
Under Section : 25 Arms Act, 1959
Unique Case ID Number: 02405R0121402014
Date of institution : 08.05.2014
Date of reserving : Oral
Date of pronouncement: 19.12.2014
JUDGMENT
a) Serial number of the case : 100/1/14
b) Date of commission of offence : 11.07.2011
c) Name of the complainant : Sub Inspector Hari Singh,
No. D-4227
d) Name, parentage and address : Rajbir @ Bill, S/o Sh. Omkar,
of the accused R/o RZ-30, Gali no. 8,
Near Rao Man Singh School,
Roshan Vihar, Phase-II,
Najafgarh, New Delhi.
e) Offence complained of : Section 25 Arms Act, 1959
f) Plea of the accused : Pleaded not guilty
g) Final order : Acquitted
State v. Rajbir @ Billi
FIR No. 138/2011 P.S.: Chhawla Page 1 of 14
h) Date of final order : 19.12.2014
BRIEF FACTS AND REASONS FOR DECISION OF THE CASE
1. Vide this judgment, accused Rajbir @ Billi is being acquitted of the offence punishable under Section 25 of the Arms Act, 1959 (here- inafter referred to as 'Act') in this case FIR No. 138/11 police station Chhawla by giving benefit of doubt for the reasons mentioned below.
CASE OF PROSECUTION
2. Briefly stated, the case of the prosecution as unfolded by the police report under Section 173 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C.') is that on 11.07.2011, Sub Inspector Hari Singh along with Constable Umesh was on patrolling duty in Division no. 3 vide DD no. 38 and at 09.20 pm, while they were checking the vehicles and persons crossing from near Rao Brij Mohan School, Brij Vihar, Old Paprawat Road, Najafgarh, New Delhi, accused Rajbir @ Billi came there from the side of Roshan Vihar towards Brij Vihar and on seeing them, he turned back and started walking speedily. On suspicion, they apprehended the accused and one live cartridge was recovered from the right side pocket of his pants of the accused during his cursory search conducted by Sub Inspector Hari Singh. It is further the case of prosecution that Sub Inspector Hari Singh prepared a sketch of the cartridge and kept the cartridge in a pulanda and sealed it with the seal of HS and seized the same. Sub Inspector Hari Singh prepared rukka and got the case registered vide State v. Rajbir @ Billi FIR No. 138/2011 P.S.: Chhawla Page 2 of 14 FIR no. 138/11 through Constable Umesh. It is further the case of prosecution that after registration of the FIR, further investigation was marked to Head Constable Ram Deen who also reached at the spot and Sub Inspector Hari Singh handed over the seized pulanda, seizure memo, sketch and the accused to Head Constable Ram Deen, who prepared site plan, arrested the accused and recorded his disclosure statement. During investigation, the exhibits were sent to the FSL Rohini for expert analysis through Constable Sanjay Kumar vide RC no. 74/21/11 and after obtaining the FSL result, sanction under Section 39 of the Act was obtained from the DCP concerned.
CHARGE
3. Vide order dated 05.09.2014, charge for the offence punishable under Section 25 of the Act was framed against the accused Rajbir @ Billi to which he pleaded not guilty and claimed trial.
ADMISSION/DENIAL OF DOCUMENTS
4. Vide order dated 10.10.2014, in compliance with the provisions of Section 294 of the Cr.P.C., the accused was called upon to admit or deny the genuineness of FSL report no. 2011/F-4991 dated 29.11.2011, DD no. 35 B dated 11.07.2011 and DD no. 38 B dated 11.07.2011, which were admitted by the accused and were accordingly exhibited as Ex.P/A/1, Ex.P/A/2 and Ex.P/A/3 respectively.
EVIDENCE OF THE PROSECUTION
5. To prove its case, the prosecution in all examined eight State v. Rajbir @ Billi FIR No. 138/2011 P.S.: Chhawla Page 3 of 14 witnesses.
6. PW-1 Assistant Sub Inspector Jagdish Singh is the duty officer who had recorded FIR no. 138/11 Ex.PW1/A, had made his endorsement Ex.PW1/B on the rukka and had also issued certificate under Section 65 B of the Indian Evidence Act Ex.PW1/C. PW-2 Constable Sanjay Kumar is the police official who had taken the case property from the malkhana and deposited the same in the Forensic Science Laboratory, Rohini vide road certificate No.74/21/11. PW-3 Head Constable Ramdeen, PW-5 Head Constable Roshan Lal and PW-6 Head Constable Yashpal are the investigating officers in the present case. PW-4 (wrongly numbered as PW-7 in cross-examination dated 10.10.2014) Constable Umesh is a recovery witness. PW-7 (wrongly numbered as PW-8) Head Constable Jagdish Raj brought the malkhana register No.19 as per which the case property of the present case was deposited in the malkhana on 11.07.2011 vide entry at serial No.741/11 Ex.PW8/A. PW-8 (wrongly numbered as PW-9) Sub Inspector Hari Singh is a recovery witness as well as initial investigating officer in the present case.
STATEMENT / DEFENCE OF THE ACCUSED
7. In his examination under Section 313 Cr.P.C., the accused denied the entire evidence put to him. He categorically stated that he is innocent and has been falsely implicated in the present case.
ANALYSIS AND FINDINGS
8. The record has been thoroughly and carefully perused. The State v. Rajbir @ Billi FIR No. 138/2011 P.S.: Chhawla Page 4 of 14 respective submissions of Sh. Brijesh Kumar, learned Assistant Public Prosecutor for the State and Sh. Parmod Kumar, Advocate, learned counsel for the accused have been considered.
9. The case of the prosecution is that on the fateful day accused Rajbir @ Billi was found in possession of a live cartridge in contravention of the notification issued by the Delhi Administration. In order to bring home the charge against the accused, the prosecution was required to prove beyond reasonable doubt the recovery of the illegal ammunition from the possession of the accused.
Re: Absence of independent witnesses
10. Evidently, no public witness to the recovery of the live cartridge has been either cited or examined by the prosecution. The recovery is alleged to have been effected from the accused at 09.20 pm at Old Paprawat Road, Near Brij Mohan School, Najafgarh, New Delhi which is a public place. As per PW-4 Constable Umesh, Sub Inspector Hari Singh had requested 4-5 public persons to join investigation but none agreed. As per PW-8 Sub Inspector Hari Singh, at the time when the accused was apprehended, he was checking the persons and vehicles passing from the spot, meaning thereby that public persons were present at the spot or passing from there. PW-3 Head Constable Ramdeen has also admitted in his cross-examination that he had tried to join public persons in the investigating, however, none agreed and left the spot without disclosing their names and addresses. Thus, it is not the case of the prosecution that no public person was available at the spot. However, despite availability, no public person has been State v. Rajbir @ Billi FIR No. 138/2011 P.S.: Chhawla Page 5 of 14 joined in the investigation. Admittedly, no notice under Section 160 Cr.P.C. was served upon the public persons who had allegedly refused to join the investigation. Although PW-3 claimed that he had tried to serve the notice under Section 160 Cr.P.C. upon the public persons who refused to join investigation but they refused to accept the same, the police report is, however, silent as to whether any serious effort was made by any police official to join public witnesses in the investigation or not. From the record, no serious effort for joining public witnesses appears to have been made by the investigating officer or the recovery witnesses despite availability.
11. It is a well settled proposition that non-joining of public witness shrouds doubt over the fairness of the investigation by police. Section 100 (4) of the Cr.P.C. also casts a statutory duty on an official conducting search to join two respectable persons of the society. Same has, however, not been done in the present case. This casts a doubt on the fairness of the investigation. Reliance is placed on the decision of the Hon'ble High Court of Delhi in Pawan Kumar v. The Delhi Administration, 1989 Cri.L.J. 127.
12. This Court is, however, conscious that the prosecution case cannot be thrown out or doubted on the sole ground of non-joining of public witnesses as public witnesses keep themselves away from the Court unless it is inevitable, as has been held in Appabhai and another v. State of Gujarat, AIR 1988 SC 696. However, in the present case, it is not only the absence of public witnesses which raises a doubt on the prosecution version but there are other State v. Rajbir @ Billi FIR No. 138/2011 P.S.: Chhawla Page 6 of 14 circumstances too, as discussed hereinafter, which raise suspicion over the prosecution version.
Re: Possibility of misuse of seal of the investigating officer
13. As per the police report, the case property was sealed with the seal of HS and the seal after use was handed over to Constable Umesh i.e. a recovery witness. Admittedly, in the instant case, no handing over memo had been prepared regarding the seal and the seal was not handed over to any independent witness nor was it deposited in the malkhana to assail the possibility of its misuse. Thus, the possibility that the case property may have been tampered with cannot be ruled out. Reliance is placed on the decision of the Hon'ble High Court of Delhi in Abdul Ghaffar v. The State, 1996 JCC 497.
Re: Personal search of accused: Formalities not complied with
14. The testimony of all the prosecution witnesses is silent as to whether PW-8 Sub-Inspector Hari Singh, who had conducted the cursory search of the accused Rajbir @ Billi, had offered his search to the accused before searching him. In the absence of any affirmative testimony, it cannot be assumed that the police official, who had conducted the personal/cursory search of the accused, had offered his search to the accused before searching him. Since the prosecution has not been able to establish that the police official, who searched and allegedly recovered the live cartridge from the accused, did offer his personal search before conducting the search of the accused, the possibility of the said illegal ammunition, which was brought out by the State v. Rajbir @ Billi FIR No. 138/2011 P.S.: Chhawla Page 7 of 14 search, having been planted on the accused cannot be ruled out. Thus, this Court is wary in relying upon the version of the prosecution. Reliance is placed on the decision of the Hon'ble High Court of Orissa in Rabindranath Prusty v. State of Orissa, 1984 Cri L. J. 1392.
Re: Other infirmities in the prosecution case
15. PW-8 Sub-Inspector Hari Singh has deposed that first of all he prepared sketch of the live cartridge recovered from accused Rajbir @ Billi Ex.PW4/A and thereafter, he seized the ammunition recovered from the accused vide memo Ex.PW4/B. It was thereafter that he prepared the tehrir Ex.PW9/A and sent the same to the police station for registration of FIR through Constable Umesh. The FIR was, therefore, admittedly registered after the preparation of these documents Ex.PW4/A and Ex.PW4/B. Accordingly, it follows that the number of the FIR would have come to the knowledge of the complainant/PW-8 only after the FIR had been registered. Thus, ordinarily, the FIR number should not find mention in the seizure memo or sketch of live cartridge which came into existence before registration of the FIR. However, documents Ex.PW4/A and Ex.PW4/B bear the FIR number and other particulars in the same ink and the same handwriting in which the said documents are prepared. This indicates that FIR number was mentioned on the said documents while preparing the same. Reliance here is placed on the decisions of the Hon'ble High Court of Delhi in Pawan Kumar v. The Delhi Administration, 1989 Cri. L.J. 127 and Mohd. Hashim v. State, 1999 VI AD (Delhi) 569. No explanation has been furnished on record as to State v. Rajbir @ Billi FIR No. 138/2011 P.S.: Chhawla Page 8 of 14 how the FIR number and case details have appeared on abovesaid seizure memo and sketch. The same leads one to only one inference that either the said documents were prepared later or that the FIR had been registered earlier in point of time. In both the aforesaid cases a dent is created and unexplained holes are left in the prosecution story, the benefit of which must accrue to the accused.
16. Another lacuna in the prosecution case which is fatal to it is that the complainant himself acted as the investigating officer. It was on the complaint of Sub-Inspector Hari Singh that the FIR was lodged in the present case and he, therefore, became the complainant. It is the prosecution's case that after recovery of the illegal ammunition from the possession of the accused upon his personal search, Sub- Inspector Hari Singh prepared the sketch of the live cartridge recovered from the accused, seized the live cartridge and thereafter prepared tehrir and sent it for registration of FIR. In Megha Singh v. State of Haryana, AIR 1995 SC 2339, the Hon'ble Apex Court observed in paragraph 4 as under:
"... We have also noted another disturbing feature in this case. PW-3, Siri Chand, head Constable arrested the accused and on search being conducted by him a pistol and the cartridges were recovered from the accused. It was on his complaint a formal first information report was lodged and the case was initiated. He being complainant should not have proceeded with the investigation of the case. But it appears to us that he was not only the complainant in the case but he carried on with the investigation and examined witnesses under S. 161, Cr.P.C. Such practice, to say the least, should not be resorted to so that State v. Rajbir @ Billi FIR No. 138/2011 P.S.: Chhawla Page 9 of 14 there may not be any occasion to suspect fair and impartial investigation." (emphasis supplied)
17. In the instant case as well, Sub-Inspector Hari Singh, i.e. the complainant, acted as an investigating officer inasmuch as having apprehended the accused and recovered the live cartridge from his possession, instead of informing the police station forthwith and waiting for the investigating officer to arrive at the spot, he proceeded not only to prepare the sketch of the illegal cartridge so recovered but also sealed and seized the case property before arrival of any other investigating officer from the police station. Same leaves room for doubting the fairness of the investigation.
18. Another lacuna which is fatal to the case of prosecution is that the sanction under Section 39 of the Act has not been proved in the present case. Although a sanction under Section 39 Arms Act bearing no. 28/SO-A.DCP-1/SWD dated 27.01.2011 has been placed on record, the concerned official, who had granted the said sanction, has neither been cited nor examined as a witness by the prosecution. The said lacuna was pointed out by the learned counsel for the accused during final arguments addressed on 19.12.2014. Thereafter, an application under Section 311 Cr. P. C. for examination of Sh. R. K. Pandey, Additional Deputy Commissioner of Police was filed on behalf of the State. The same was, however, dismissed vide detailed reasoned order dated 19.12.2014. The learned Assistant Public Prosecutor for the State submitted that the sanction under Section 39 Arms Act in the present case was, however, tendered in evidence by the investigating officer PW-3 Head Constable Ramdeen and was State v. Rajbir @ Billi FIR No. 138/2011 P.S.: Chhawla Page 10 of 14 marked as Mark X 1. It was contended by the learned Assistant Public Prosecutor for the State that merely because the said document had been marked and not exhibited in evidence does not take away from the admissibility of the said document. In support of his submissions, learned Assistant Public Prosecutor for the State relied upon the decision of the Hon'ble High Court of Delhi in Emmannuel Uchenna Ezenwosu vs. Narcotics Control Bureau and others, 2003 (1) JCC
417. The said decision has been perused. There is no dispute as to the principle stated in the said decision that where a document is produced in evidence and marked instead of exhibiting the same, the same is of no consequence for the reason that a properly proved document even if marked may be read in evidence and on the other hand an exhibited document if not properly proved on record cannot be read for want of proper proof. In the present case, the sanction in question cannot be said to have been proved by the investigating officer PW 3 Head Constable Ramdeen who had merely applied for the same and obtained the same from the Deputy Commissioner of Police concerned as has been stated in his testimony dated 23.09.2014. Thus, the aforesaid decision does not aid the prosecution in the present case inasmuch as the sanction under Section 39 Arms Act has not been duly proved on record for want of examination of the author thereof or any other person who could have identified the signatures of the author of the said document.
19. Moreover, as per the sanction (Mark X1) it was given by Sh. R. K. Pandey, the Additional Deputy Commissioner of Police, South West District, New Delhi on 27.01.2011 after examining inter alia the ballistic State v. Rajbir @ Billi FIR No. 138/2011 P.S.: Chhawla Page 11 of 14 report of FSL Rohini. However, the FSL result Ex.P/A/1 is dated 29.11.2011 and was, therefore, prepared much later in point of time than the sanction under Section 39 Arms Act. From the aforesaid, it is evident that the sanction Mark X1 has been given in a mechanical manner, without application of mind.
Re: Contradictions in the testimony of prosecution witnesses
20. There are several contradictions in the testimony of prosecution witnesses on various aspects.
21. While as per PW-4 Constable Umesh, the investigating officer had asked 4-5 public persons to join investigation, as per PW-8 Sub Inspector Hari Singh, no public person could be joined in the investigation as none was present at the spot.
22. As per PW-4 Constable Umesh, after getting the case registered, he had returned to the spot at about 11.40 pm along with Head Constable Ramdeen, however, as per PW-3 Head Constable Ramdeen, he had reached the spot at about 11.25-11.30 pm.
23. As per the testimony of PW-3 Head Constable Ramdeen, the site plan Ex.PW3/A was prepared by him at the instance of Sub Inspector Hari Singh. However, a bare perusal of the site plan Ex.PW3/A reveals that the handwriting in which the same is prepared is completely different from the handwriting appearing in the disclosure statement Ex.PW3/D, arrest memo Ex.PW3/B and the personal search memo Ex.PW3/C, which were all prepared by PW- Head Constable Ramdeen. Rather, the site plan Ex.PW3/A is State v. Rajbir @ Billi FIR No. 138/2011 P.S.: Chhawla Page 12 of 14 prepared in the same handwriting in which the rukka Ex.PW9/A, sketch Ex.PW4/A and the seizure memo Ex.PW4/B have been prepared and the said documents were, as per the prosecution, prepared by PW-8 Sub Inspector Hari Singh.
24. While as per PW-4 Constable Umesh Kumar, the seized pulanda was handed over to him by Sub Inspector Hari Singh before he left for the police station for getting the case registered, however, as per PW-3 Head Constable Ramdeen, the pulanda was handed over to him by Sub Inspector Hari Singh when he had reached at the spot with Constable Umesh after registration of the case FIR.
25. While as per PW-4 Constable Umesh Kumar, he had conducted the personal search of accused Rajbir @ Billi and took out Rs.40/- from the left side pocket of the pants of accused, however, as per PW-8 Sub Inspector Hari Singh, the investigating officer i.e. Head Constable Ramdeen had conducted the personal search of accused in his presence.
26. The aforesaid contradictions in the testimony of prosecution witnesses raise doubt on the credibility of the prosecution story.
CONCLUSION
27. The facts that no independent witness was cited or examined, the possibility of misuse of the seal of the investigating officer has not been ruled out, the appearance of FIR number and case particulars on the sketch of the cartridge and seizure memo of the case property, and the contradictions in the testimony of prosecution witnesses, State v. Rajbir @ Billi FIR No. 138/2011 P.S.: Chhawla Page 13 of 14 when kept in juxtaposition to each other, cast a cloud of suspicion over the prosecution version. In view of the aforesaid, the possibility of the live cartridge having been planted upon the accused and false implication of the accused in the present case cannot be ruled out.
28. It is trite in criminal jurisprudence that the prosecution is under an obligation to prove its case against the accused beyond reasonable doubt. The standard of proof to be adopted in criminal cases is not merely of preponderance of probabilities but proof beyond reasonable doubt on the basis of cogent, convincing and reliable evidence. It is also well settled that in case of doubt, the benefit must necessarily be allowed to the accused.
29. Thus, this Court is of the considered opinion that the benefit of doubt ought to be granted to the accused, who is entitled to be exonerated of the charges against him in the present case. The accused is hereby acquitted of the offence punishable under Section 25 of the Act. Case property be confiscated to State as per rules.
30. File be consigned to record room.
Announced in open Court on 19.12.2014.
(MANIKA) Metropolitan Magistrate-05 (South-West), Dwarka Courts, New Delhi 19.12.2014 State v. Rajbir @ Billi FIR No. 138/2011 P.S.: Chhawla Page 14 of 14