Delhi District Court
State vs . Jaswant Dagar @ Moni on 23 June, 2022
IN THE COURT OF MS. ARCHANA BENIWAL
CHIEF METROPOLITAN MAGISTRATE:
SOUTH WEST DISTRICT, DWARKA COURT,
NEW DELHI
FIR No. 64/2012
PS Crime Branch
State Vs. Jaswant Dagar @ Moni
U/s 25 Arms Act
JUDGMENT
CNR No. : DLSW02-000812-2012
CIS No. : 428500/2016
Date of institution of the case : 26.09.2012
Date of commission of offence : 14.03.2012
Name of the complainant : SI Arun Dev Nehra
PIS No. 16960056
AEC/Crime Branch, Delhi.
Name of accused and address : Jaswant Dagar @ Moni
S/o Late Sh. Ajeet Singh
R/o H.No. 296, Pherwan
Panna, Village & Post
Office, Jharoda Kalan,
Delhi
Offence complained of : U/s 25 Arms Act
Plea of the accused : Pleaded not guilty.
Final order : Acquittal
Date on which judgment reserved : 26.05.2022 Date of judgment : 23.06.2022 FIR No. 64/2012, PS Crime Branch State Vs. Jaswant Dagar @ Moni Page No. 1 of 12 BRIEF STATEMENT OF THE FACTS FOR DECISION:
1. The brief facts of the case of the prosecution are that on 14.03.2012 at about 12:30 P.M., on the road leading from Tuda Mandi, Najafgarh to Dwarka Sector-16 ahead of the bridge of ganda nallah, accused Jaswant Dagar was found carrying total 3 pistols and 20 live cartridges in a carry bag kept in his car and later in the day, 3 more pistols with 13 live cartridges were recovered from his bed box at his residence, without having any valid Arms License for possession the same, in contravention of Section 3 of Arms Act 1959. After completion of the investigation, charge-sheet was filed against the accused u/s 25 Arms Act.
2. On receipt of chargesheet, cognizance of offence was taken and accused was summoned. After supply of copy of chargesheet, a formal charge was framed u/s 25 of Arms Act against the accused to which he pleaded not guilty and claimed trial.
3. Prosecution has examined seven witnesses to prove its case.
4. PW-1 Duty officer W/HC Rojalia deposed and proved copy of FIR as Ex. PW1/A and endorsement on rukka as Ex. PW1/B.
5. PW-2 Vineet Kumar deposed that he is the registered owner of pistol no. RP113392 involved in the present case and he FIR No. 64/2012, PS Crime Branch State Vs. Jaswant Dagar @ Moni Page No. 2 of 12 got the same released on superdari vide superdarinama Ex. PW2/A and proved receipt issued by police station regarding deposition of the same as Ex. PW2/B.
6. PW-3 HC Devender deposed that on 14.03.2012, on the basis of secret information regarding a person involved in supply of illegal arms, a raiding party was constituted by Inspector Naresh Chander consisting of Inspector Naresh Chander, SI Arun Dev, HC Ram Kumar, Ct. Rajiv, HC Sandeep, HC Virender and PW-3 HC Devender. Thereafter, the raiding party alongwith the secret information left the office and reached at the address given by the secret informer i.e. 3/52, Roshan Garden, Najafgarh, where accused was not found and the secret informer further informed the raiding party that accused can be apprehended on the road which joins Sector-16, Dwarka ganda nala. Accordingly, at 11:15 A.M., the raiding party reached at the ganda nala and took positions. At 12:30 P.M., one Skoda car bearing registration no. DL2FAP 9000 came from the side of Dwarka Sector 16 and same was got stopped. Accused was found driving the said car. His cursory search was conducted and one 9 mm pistol was recovered from the left dub of his worn lower. On checking, the pistol was found loaded with 6 live cartridges. The cartridges were removed from the pistol. On checking the car, from beneath the driver seat, one green colour bag was recovered which was found containing 2 pistol of .32 bore. Both pistols were found loaded and on checking, 7 live cartridges each were found from both pistols. All the pistols and cartridges were seized vide memo Ex. PW3/A, Ex. PW3/D, Ex. PW3/E and Ex. PW3/F. The FIR No. 64/2012, PS Crime Branch State Vs. Jaswant Dagar @ Moni Page No. 3 of 12 greenish colour bag in which the two pistols were found was sealed by IO SI Naresh Kumar vide seizure memo Ex. PW3/B. Accused was arrested vide arrest memo Ex. PW3/G and his personal search was conducted vide personal search memo Ex. PW3/H. The abovesaid Skoda car was seized vide seizure memo Ex. PW3/I. The red colour bag which was found containing three pistols which was recovered from the house of accused was also seized vide seizure memo Ex. PW3/J. Case property was correctly identified by witness as Ex.P1 to Ex. P7.
7. PW-4 SI Arun Dev Nehra deposed on the same lines as PW-3 and proved sketch memo of 9 mm pistol alongwith one cartridge vide sketch memo Ex. PW4/A, separate sketches alongwith one cartridge each of the remaining pistols vide memo Ex. PW4/B and Ex. PW4/C. He also proved rukka Ex. PW4/D.
8. PW-5 HC Virender deposed on the same lines as PW-3 and PW-4.
9. PW-6 DCP Bhisham Singh, Crime Branch deposed and proved sanction u/s 39 Arms Act Ex. PW6/1 given by him against accused Jaswant Dagar @ Moni who was arrested in the present case.
10. PW-7 SI Naresh Kumar was Investigating Officer in the present case. He proved site plan prepared at the instance of complainant as Ex. PW7/1, disclosure statement of accused as Ex. PW7/2, sketch of all the three pistols as Ex. PW7/3, PW7/4 FIR No. 64/2012, PS Crime Branch State Vs. Jaswant Dagar @ Moni Page No. 4 of 12 and Ex. PW7/5. He also proved seizure memo of licence of one pistol issued by DM, Amritsar as Ex. PW7/6, supplementary disclosure statement of accused as Ex. PW7/7 and superdarinama as Ex. PW7/8.
11. Vide separate statement recorded u/s 294 Cr.P.C on 09.10.2015, accused had admitted the documents i.e. Ballistic report dated 29.3.2012 which is Ex. AA, fire arm examination report (three pages) dated 19.04.2012 which is Ex. AB and report of District Magistrate, Amritsar, regarding armed license, report no. ALA/5626 dated 27.06.2012 which is Ex. AC. Hence the above documents were ordered to be read in evidence without its formal proof.
12. PE was closed by order of this court on 13.03.2020 and thereafter, statement of accused was recorded u/s 313 Cr.P.C wherein he has refused the allegations leveled against him in toto. Accused opted to lead defence evidence.
13. Accused examined himself as DW-1 and proved certified copy of challan for FIR no.147/2009, PS Chahawla as Ex. DW1/A and photocopy of certified copy of order dated 24.01.2019 as Mark-D1.
14. Thereafter, DE was closed and final arguments were heard on behalf of State as well as the accused.
15. After hearing ld. APP for the state and ld. counsel for FIR No. 64/2012, PS Crime Branch State Vs. Jaswant Dagar @ Moni Page No. 5 of 12 the accused and having gone through the case file carefully and meticulously, it is observed by the court that it is the case of prosecution that on the fateful day, accused was found in possession of illegal firearms without any permit or license. The court is of the view that to prove the charge against the accused, the prosecution is required to prove the allegations beyond reasonable doubt.
16. The relevant portion of Arms Act is reproduced as under:
Section 25: Punishment for certain offences:-
(1) whoever-
(a) Manufactures, sells, transfers, converts, repairs, tests or proves, or exposes or offers for sale or transfer, or has in his possession for sale, transfer, conversion, repair, test or proof, any arms or ammunition in contravention of section 5; or
(b) Shortens the barrel of a firearm or converts an imitation firearm into a firearm in contravention of section 6; or 2[***]
(c) bring into, or takes out of, India, any arms or ammunition of any class or description in contravention of section 11, shall be punishable with imprisonment for a term which not be less than three years but which may extend to seven years and shall also be liable to fine.
17. As per the prosecution case, the sketch memos of the weapon Ex.PW4/A, Ex.PW4/B, Ex.PW4/C, Ex.PW7/3, Ex.PW7/4 & Ex.PW7/5 and the seizure memos Ex.PW3/A, Ex.PW3/C, Ex. PW3/D, Ex.PW3/E & Ex.PW3/F were prepared before the preparation of rukka. However, the said documents contain the number of the FIR which shows that either the FIR number was inserted later on or they were prepared before the time they have been shown to be prepared. Furthermore, the FIR No. 64/2012, PS Crime Branch State Vs. Jaswant Dagar @ Moni Page No. 6 of 12 weapon and cartridges have been seized by the IO on 14.03.2012 but as per the FSL report, the same have been deposited in the FSL on 27.03.2012. Thus, the chances of tampering with the case property cannot be ruled out and the delay in sending the articles for examination is fatal for the prosecution. While holding so, I am relying upon judgment of Apex Court in Deshraj @ Dass Vs. State 83 (2000) DLT 262, wherein Apex Court while relying upon the judgments of Hon'ble Supreme Court in Baldev Singh vs. State of Punjab 1991 CAR 81 and Santa Singh vs. State of Punjab AIR 1956 SC 526, had held that the delay of 12 days in sending the samples to the CFSL proved fatal to the prosecution.
18. In the rukka Ex.PW4/D as well as in the testimony of all the witnesses, who are police officials it has been stated that police officials did ask 4-5 public persons to join the proceedings however they refused citing just reasons. However, it is clear from the testimony of all the police witnesses that no sincere efforts were made to join independent public witnesses in the recovery/investigation of the present case. PW3 has deposed in his cross-examination that all the passersby, who were asked to join the raiding party were pedestrians. There were shops near Sai Mandir, however, they were not asked to join the raiding party. During the raid conducted at the alleged house of the accused, it is admitted by PW3 that the neighbours were not asked to join the raiding party. PW3 had further admitted that SI Arun Dev had asked pedestrians and cyclists to join the raiding party, but none agreed. PW3 has also admitted that no notice was issued to them for non-joining the raiding party. It is further FIR No. 64/2012, PS Crime Branch State Vs. Jaswant Dagar @ Moni Page No. 7 of 12 admitted by PW3 that they did not stop any scooter or car owner to join the raiding party. Thus, the prosecution has failed to prove that any serious effort was made by PW3, PW4, PW5 or PW7 to join public witnesses in the proceedings. It is a well settled proposition that non-joining of public witness shrouds doubt over the fairness of the investigation by police.
19. In case law reported as "Anoop Joshi Vs. State" 1992 (2) C.C. Cases 314 (HC), High Court of Delhi had observed as under:-
"18. It is repeatedly laid down by this Court in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evidence that no such sincere efforts have been made, particularly when we find that shops were open and one or two shop-keepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the shopkeepers had declined to join the raiding party, the police could have later on taken legal action against such shopkeepers because they could not have escaped the rigours of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC".
20. In a case law reported as "Roop Chand Vs. The State of Haryana" 1999 (1) C.L.R. 69, the Punjab & Haryana High Court held as under:-
"3. I have heard the learned counsel for the parties and gone through the evidence with their help. The recovery of illicit liquor was effected from the possession of the petitioner during noon time and it is in the evidence of the prosecution witnesses that some witnesses from the public were available and they were asked to join the investigation. The explanation furnished by the prosecution is that the independent witnesses were asked to join the investigation but they refused to to so on the FIR No. 64/2012, PS Crime Branch State Vs. Jaswant Dagar @ Moni Page No. 8 of 12 ground that their joining will result into enmity between them and the petitioner".
"4. It is well settled principle of the law that the Investigating agency should join independent witnesses at the time of recovery of contraband articles, if they are available and their failure to do so in such a situation casts a shadow of doubt on the prosecution case. In the present case also admittedly the independent witnesses were available at the time of recovery but they refused to associate themselves in the investigation. This explanation does not inspire confidence because the police officials who are the only witnesses examined in the case have not given the names and addresses of the persons contacted to join it is a very common excuse that the witnesses from the public refused to join the investigation. A police officer conducting investigation of a crime is entitled to ask anybody to join the investigation and on refusal by a person from the public the Investigating Officer can take action against such a person under the law. Had it been a fact that the witnesses from the public had refused to join the investigation, the Investigating Officer must have proceeded against them under the relevant provision of law. The failure to do so by the police officer is suggestive of the fact that the explanation for non-joining the witnesses from the public is an after thought and is not worthy of credence. All these facts taken together make the prosecution case highly doubtful".
21. Non joining of public witnesses despite availability casts a doubt on the fairness of the investigation. Reliance is placed on paragraph 6 of the judgment in Pawan Kumar v. The Delhi Administration, 1989 Cri.L.J. 127, wherein the Hon'ble High Court of Delhi had observed as under:
" ... According to Jagbir Singh, he did not join any public witness in the case while according to Kalam Singh, no public person was present there. It hardly stands to reason that at a place like a bus stop near Subhas Bazar, there would be no person present at a crucial time like 07.30 p.m. when there is a lot of rush of commuters for boarding the buses to their respective destinations. Admittedly, there is no impediment in believing the version of the Police FIR No. 64/2012, PS Crime Branch State Vs. Jaswant Dagar @ Moni Page No. 9 of 12 officials but for that the prosecution has to lay a good foundation. At least one of them should deposed that they tried to contact the public witnesses or that they refused to join the investigation. Here is a case where no effort was made to join any public witness even though number of them were present. No plausible explanation from the side of the prosecution is forthcoming for not joining the independent witnesses in a case of serious nature like the present one. It may be that there is an apathy on the part of the general public to associate themselves with the Police raids or the recoveries but that apart, at least the I.O. should have made an earnest effort to join the independent witnesses. No attempt in this direction appears to have been made and this, by itself, is a circumstance throwing doubt on the arrest or the recovery of the knife from the person of the accused."
22. 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 but there are other circumstances too, as discussed hereinafter, which raise suspicion over the prosecution version.
23. It is the case of all the police witnesses that when raid was conducted at the house of the accused, one lady was present at the house and it was she who had led SI Arun in the house from where three weapons were recovered. However, even this woman has not been made a witness to the case of the prosecution, for the reasons best known to the police officials. No plausible reason for not making her a witness to recovery by the police officials is given. Further, no information given by the secret FIR No. 64/2012, PS Crime Branch State Vs. Jaswant Dagar @ Moni Page No. 10 of 12 informer has been given by any of the police officials to their senior officers. Further, the recovery from the house of the accused is made doubtful by the statement of PW7 who has stated that the room in which the bed box from which three weapons have been recovered was found in opened condition. The alleged weapons would not be kept by anyone in open boxes, to be easily discovered and toyed with by anyone in the family by any sane person.
24. Further, the seal remained with a junior police official only and it has not been proved that the seal was handed over to any other independent public person and therefore, the possibility of sample being tempered with cannot be ruled out. Reference may be made to the judgment of Subeg Singh v. State of Haryana, reported as 1992(3) RCR (Criminal) 596. In the judgment titled as Karambir v. State of Delhi reported as 1997 JCC 520 it has been held that absence of proof that the specimen impression of the seal was deposited with MHCM(M) along with case property results in miscarriage of justice and is fatal to the prosecution.
25. 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.
26. Thus, in view of the foregoing analysis, this Court is of the FIR No. 64/2012, PS Crime Branch State Vs. Jaswant Dagar @ Moni Page No. 11 of 12 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 Arms Act.
27. Accused be set at liberty.
Digitally signed by ARCHANA Pronounced in the open court on this ARCHANA BENIWAL 23rd June 2022 BENIWAL Date: 2022.06.25 16:37:16 +0530 (ARCHANA BENIWAL) Chief Metropolitan Magistrate South West District, Dwarka Courts New Delhi FIR No. 64/2012, PS Crime Branch State Vs. Jaswant Dagar @ Moni Page No. 12 of 12