Delhi District Court
State vs Dharmender @ Dev on 12 August, 2015
IN THE COURT OF MS RUCHIKA SINGLA
METROPOLITAN MAGISTRATE - 04, ROOM NO.212
DWARKA, DELHI
State versus Dharmender @ Dev
FIR No. 189/12
PS: Dwarka South
U/s-25/54/59 Arms Act
1. Serial No. of the case : 02405R0265012013
2. Date of commission of offence : 31.08.2012
3. Name of the complainant : SI Ghasi Ram
4. Name of the accused, and his : Dharmender @ Dev, s/o Sh. Ganeshi Lal,
parentage & residence r/o H.No. B-580, Navjeevan Camp,
Govindpuri, Kalkaji, New Delhi
Permanent Address: Village Gaghpura,
PS Fatehabad, Distt. Agra, U.P.
5. Date of Reserving Judgment : -
6. Date when judgment was : 12.08.2015
pronounced
7. Offence Complained of : Section 25 Arms Act
8. Plea of accused : Pleaded not guilty.
9. Final Order : Acquittal
10. Date of Order : 12.08.2015
JUDGMENT
Brief Statement of the reasons for the decision of the case
1. Briefly stated, the case of the prosecution is that on 31.08.2012 at about 12.50 AM, at DDA Park, Near DAV School, Sector-06, Dwarka, the accused was found in possession of one country made pistol and two live cartridges without any permit and license and thereby he committed an offence punishable under Section 25 Arms Act (hereinafter referred to as the Act).
2. The investigation commenced on the information of SI Ghasi Ram. FIR was registered. Thereafter, the investigation was completed and the charge sheet was filed under Section 25 of State v. Dharmender @ Dev FIR no. 189/12 PS Dwarka South Page 1 of 5 the Act on 09.10.2013. Cognizance was taken against the accused under Section 25 of the Act and provision of Section 207 Cr.P.C. were complied with after appearance of the accused. After hearing, arguments, a Charge for the offence under Section 25 of the Act was framed on 10.01.2014 against the accused to which he pleaded not guilty and claimed trial. Thereafter, the matter was put up for prosecution evidence.
3. Prosecution has examined 7 witnesses namely PW1 ASI Azad Singh was the DO in the present matter. PW2 SI Vikas Yadav and PW3 Ct. Ranbir are the recovery witnesses. PW4 HC Bhagwan Dass is the IO. PW5 Sh. Puneet Puri is the Senior Scientific Officer (Ballistics), FSL, Rohini who proved the FSL report. PW6 SI Ghasi Ram is the complainant. PW7 HC Lalu Ram is the MHCM. Vide a separate statement of the accused recorded under Section 294, CrPC on 07.10.2014, he admitted the sanction order dated 26.07.2013 passed by the Additional Deputy Commissioner of Police. Same was Ex.C1. Thereafter the PE was closed on 26.06.2015. Statement of Accused was recorded and all the incriminating evidence was put to him on 17.07.2015, wherein the accused pleaded false implication. The accused chose not to lead any DE. Thereafter, the final arguments were heard and the matter was listed for orders.
4. Ld. APP for the State addressed useful and pertinent arguments. Ld. APP for the State has argued that the offence against the accused is beyond reasonable doubts. He prays for conviction of the accused. On the other hand, Ld. Counsel for the accused argued that accuse is innocent and falsley implicated in the present case. He prays for the acquittal of the accused.
5. It is the case of the prosecution that on 31.08.2012 at about 12.50 AM, at DDA Park, Near DAV School, Sector-06, Dwarka, the accused was found in possession of one country made pistol and two live cartridges. The same were recovered by PW2 SI Vikas Yadav, PW3 Ct. Ranbir and PW6 SI Ghasi Ram, while they were on their night patrolling duty in the area. They received a secret information and on suspecting the accused and taking his personal search, the case property was recovered. Then, PW6 SI Ghasi Ram prepared rukka and sent PW3 Ct. Ranbir to the PS for registeration of FIR. Then, PW4 HC Bhagwan Dass reached at the spot for investigation. It is submitted by the Ld. APP that in view of the well-corroborated testimonies of these witnesses, the recovery of the case property from the accused is proved beyond reasonable State v. Dharmender @ Dev FIR no. 189/12 PS Dwarka South Page 2 of 5 doubts. The Ld. APP also relies on the FSL Report Ex. PW5/A whereby the case property as allegedly recovered from the possession of the accused has been tested and opined to be in working order. It is reported that the pistol could be fired successfully and the cartridges were live. Further, it is stated that the exhibits were firearms/ ammunition as defined in Arms Act.
6. On the other hand, Ld. Counsel for the accused has argued that the prosecution case cannot be relied upon. Ld. Counsel for the accused has argued that the FIR was registered on the complaint of PW6 SI Ghasi Ram and he is also the first IO of the case. It is submitted that he seized and sealed the alleged arms and also prepared the sketch of the same. Hence, the investigation is shoddy and cannot be relied upon. It is submitted that on this ground alone, the accused is entitled to acquittal.
7. I have gone through the record. Admittedly, a grave irregularity has been committed in the investigation of the present case. The recovery was allegedly effected in the presence of PW2 SI Vikas Yadav, PW3 Ct. Ranbir and PW6 SI Ghasi Ram. PW6 SI Ghasi Ram drew the sketch of the case property on memo Ex.PW2/A. He sealed the same and seized it vide memo Ex.PW2/B. Thereafter, he prepared the rukka and got the FIR registered. He himself is the complainant in the present case. Hence, the proceedings conducted by him are against the principles of natural justice. In this regard, case titled as Munesh Kumar v. State 2011 (2) Crimes 626 can be relied upon, wherein it has been held by the Hon'ble High Court of Delhi that:
"Munshi Ram SI is the author of rukka/complaint which formed basis for registration of FIR. Despite that the investigation of the case was entrusted to SI Munshi Ram. Above procedure adopted by the police, to my mind, is unfair and against the principle of natural justice. The purpose of the investigation is to inquire into the correctness of the allegations made in the complaint. When a complainant is entrusted with the responsibility of investigation into allegation, as per the natural course of human conduct, he is not expected to conclude against the allegation in the complaint. This infirmity in the investigation further compounds the doubt against the prosecution case, particularly, in view of the fact that there is no other witness to corroborate the version of the Investigating Officer/Raid Officer SI Munshi Ram that the Appellants were planning to commit dacoity."
State v. Dharmender @ Dev FIR no. 189/12 PS Dwarka South Page 3 of 5
8. Further, no public witness has been joined in the investigation. PW2, PW3 and PW6 stated in their examination that some persons were requested to join the investigation but none agreed. Hence, it is not the case of the prosecution that no public witness was present at the spot of recovery or arrest. No names of the public witnesses who were requested to join the proceedings are available on record. No public witnesses were given notices to join the proceedings, as stated by the IO. The police officials are entrusted with ample powers under the provisions of CrPC to initiate proceedings under Section 187, IPC if any person does not cooperate with him despite giving notice. No efforts by the IO are seen on the file for joining the public witnesses. It is well settled that non-joining of public witnesses shrouds doubt over the fairness of the investigation by police. Even Section 100(4) casts statutory duty upon the official conducting search to join two respectable persons of the society, which is not done in the present case. In this regard, cases titled as Narsi v. State of Haryana 1998 (4) Crimes 105 (SC), Ranjit v. State of Haryana 1995 (1) CC Cases 442 (HC) and Munni Lal v. The State 1995 JC 110 can be relied upon. Reliance on a judgment of the Hon'ble Supreme Court of India in State of Rajsthan v. Teja Singh 2001 (II) AD (SC) 125 is also relevant wherein it has been observed that:
"The failure of the prosecution to examine independent witnesses though available is fatal for their case."
9. Further, the prosecution has also not proved on record the arrival and departure entry of both material witnesses i.e. PW2 SI Vikas Yadav, PW3 Ct. Ranbir and PW6 SI Ghasi Ram. The arrival and departure entries of the police officials who apprehended the accused with case property is a vital piece of evidence. Conspicuously, no departure or arrival entries in the daily diary register, of PW2 SI Vikas Yadav, PW3 Ct. Ranbir and PW6 SI Ghasi Ram who allegedly apprehended the accused in possession of the case property is furnished and proved on record. The police officials are under the statutory duty to mark their departure and arrival in the register kept for the purpose of PPR Rules. It is apposite at this juncture to reproduce chapter 22 Rule 49 of Punjab Police Rules, 1934, provided as under :-
"22.49 Matters to be entered in Register No.II- The following matters FIR No. 105/2000 PS Kanjhawala shall, amongst others, be entered:-
(c) The hour of arrival and departure on duty at or from a police station of all enrolled State v. Dharmender @ Dev FIR no. 189/12 PS Dwarka South Page 4 of 5 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 signature or seal.
Note: The term police station will include all places such as Police Lines & Police Posts where Register No. II is maintained."
10. In view of the above discussion, the court is of the opinion that benefit of doubt be extended to the accused. Hence, the accused is acquitted for the offence under Section 25, Arms Act. Case property be confiscated and disposed off as per rules.
The bail bonds under Section 437A, CrPC have been furnished by the accused and same are accepted.
ANNOUNCED IN THE OPEN COURT ON 12.08.2015 (RUCHIKA SINGLA) METROPOLITAN MAGISTRATE-04 DWARKA COURTS, DELHI State v. Dharmender @ Dev FIR no. 189/12 PS Dwarka South Page 5 of 5