Delhi District Court
In Case Law Reported As "Anoop Joshi vs . State" on 11 February, 2013
FIR No. 70/2008 1 Police Station S.P. Badli (Crime Branch)
IN THE COURT OF SH. MANISH GUPTA, ADDL. CHIEF
METROPOLITAN MAGISTRATE (OUTER DISTRICT), ROHINI
COURTS , DELHI
FIR No. 70/2008
Unique Case ID No. 02404R0371222008
Police Station Samai Pur Badli (Crime Branch)
Under Section 25 of the Arms Act, 1959
State v. Nirbhay Kumar @ Bobby
JUDGEMENT
(a) Serial number of the case :64/3
(b)Date of the commission of the offence :17.02.2008
(c)Name of the complainant :SI Sanjay Kumar, No.
D1249, Spl. Team, Crime
Branch, Parshant Vihar,
Delhi.
(d)Name of the accused & address :Nirbhey Kumar @ Bobby
S/o Bhubneshwar Rai, R/o
18A, P.D. Block, Pritam
Pura, Delhi.
(e)Charge against the accused :25 of the Arms Act, 1959.
(f)Plea of the accused :Pleaded not guilty
(g)Final order :Accused acquitted.
Contd.....
FIR No. 70/2008 2 Police Station S.P. Badli (Crime Branch)
(h)Date of such order :11.02.2013
Date of Institution :11.04.2008
Date on which arguments heard and
Judgment reserved. :11.02.2013
Date of Judgment :11.02.2013
BRIEF STATEMENT OF THE REASONS FOR DECISION
1. The chargesheet in the present case was filed on behalf of the state on 11.04.2008. As per order dated 11.4.2008 of the then Ld. ACMM, Rohini, the cognizance of the offence u/s 25 Arms Act was taken against the accused Nirbhay Kumar @ Bobby who was shown in column no. 3 of the chargesheet and was in J.C. The other accused Amit Mahajan was shown in column no. 2 of the chargesheet and the said order reflects that both the said accused persons were arrested in present case u/s 411/473/34 IPC and section 25 of Arms Act as they were found in possession of stolen Maruti Esteem car which was reported to have been stolen from the jurisdiction of PS Sector24, Noida, U.P. and the accused Nirbhay Kumar @ Bobby was also found in possession of one country made pistol and three live cartridges and as both the accused persons have already been arrested by the concerned IO of police station Sector24, Noida, U.P. in case FIR No. 98/08, U/s 379/411/473 IPC and the case property was Contd.....
FIR No. 70/2008 3 Police Station S.P. Badli (Crime Branch) already transferred to concerned malkhana, therefore, the prayer for discharge of both the said accused persons for offences u/s 411/473/34 IPC and for taking the cognizance of offence u/s 25 Arms Act against accused Nirbhay Kumar @ Bobby was allowed. The copy of challan and documents were supplied to accused.
2. On 27.1.2009 the charge was framed against the accused.
3. I have already heard final arguments and perused the record.
4. The allegations against the accused Nirbhay Kumar @ Bobby are that on 17.2.2008 at about 5:30 PM at Badli Pul near Bus Stand, Samai Pur Badli, Ring Road, Delhi, within the jurisdiction of PS S.P. Badli the accused was found in possession of one pistol of total length 16.7 cm, length of body 8 cm, width 10.8 cm having magazine alongwith three live cartridges (7.65 mm and on the bottom of each cartridge it is inscribed 7.65 KF), total length 2.4 cm and diameter of bottom 0.9 cm each as per seizure memo MarkA and thus the accused committed an offence punishable u/s 25 of The Arms Act, 1959. The charge was explained to the accused in simple Hindi and after understanding the same the accused pleaded not guilty and claimed trial.
Contd.....
FIR No. 70/2008 4 Police Station S.P. Badli (Crime Branch)
5. The prosecution has examined 8 witnesses in total i.e. PW1 HC Sanjay, PW2 Inspector Bhaskar, PW3 SI Surya Narain, PW4 Ct. Hari Ram, PW5 Inspector Sanjay, PW6 HC Chander Mohan, PW7 Shri Anil Shukla and PW8 HC Lakhvinder Singh.
6. After closing of PE the statement of accused was recorded u/s 313 Cr.P.C. and his explanation was sought. The accused opted not to lead any defence evidence.
7. PW1 HC Sanjay stated that on 17.2.2008 he was posted as Constable at Spl. Team Crime Branch and on that day at about 4:30 PM SI Sanjay received a secret information at Crime Branch Office that one Nirbhay @ Bobby is having in his possession illegal arms and stolen Maruti Esteem car and it was also informed that Nirbhay @ Bobby has been involved in various robbery matters and on that day he is coming to S.P. Badli Village to commit some offence. He further deposed that SI Sanjay shared the secret information with the senior officers and recorded the information in DD register vide DD No. 3 and a raiding team was constituted on the directions of senior officers under the leadership of SI Sanjay and SI Bhaskar, Ct. Hari Ram and Ct. Sanjay i.e. PW1 were the members of raiding team. PW1 Contd.....
FIR No. 70/2008 5 Police Station S.P. Badli (Crime Branch) further stated that the raiding team alongwith secret informer left Crime Branch Office at about 4:45 PM in a private car and their departure was entered vide DD No. 4 and at about 5:15 PM they arrived at S.P. Badli and took positions at the Ganda Nala Pul. He further deposed that SI Sanjay had requested 45 passersby to join the proceedings but they all refused on personal grounds and at about 5:30 PM an Esteem car bearing no. DL8CF4109 was noticed approaching from Outer Ring Road side towards Badli Pul. He further stated that secret informer informed that it is the same car and thereafter he had left from the spot. He further stated that the car was got stopped and its driver i.e. accused was apprehended who was trying to flee away and one person namely Amit was sitting by his side and he was apprehended by Ct. Hari Ram. He further stated that SI Sanjay conducted casual search of the accused and one pistol was recovered from the right side dub of the accused which was found loaded with three live cartridges and SI Sanjay prepared the sketch of the recovered pistol, its magazine and the cartridges and the sketch is Ex. PW1/A bearing his signatures at Point A. He further deposed that the pistol and cartridges were measured by SI Sanjay and it was found having slide length of 16.7 cm and its butt was 8 cm long, the magazine was 9.7 cm long and each of cartridges was 2.4 cm in length. He stated that he do not remember the complete parameters of Contd.....
FIR No. 70/2008 6 Police Station S.P. Badli (Crime Branch) the recovered pistol and stated that thereafter SI Sanjay sealed the pistol and the cartridges in a cloth pullanda with the seal of BS and the same was seized vide memo Ex. PW1/B bearing his signatures at Point A. He further stated that FSL form was completed and the seal was handed over to him. He further deposed that the car in which the accused was travelling was found bearing fake number plate and its genuine number was UP168839 and its genuine number plate was found lying in the dickey of the car and on checking the chasis and engine number of the car and after making inquiries from Noida Control Room it was discovered that the car was stolen in case FIR No. 98/2008, PS Sector24, Noida and the car was seized vide memo Ex. PW1/C bearing his signatures at Point A and the number plates were seized vide memo Ex. PW1/D bearing his signatures at Point A and thereafter SI Sanjay prepared tehrir and sent Ct. Hari Ram to PS S.P. Badli for getting the FIR registered and further investigation was handed over to HC Lakhwinder. He further deposed that HC Lakhwinder reached at the spot at about 8:15 PM and SI Sanjay handed over the accused alongwith Amit to HC Lakhwinder. He further stated that the sealed pullandas and the prepared documents except for original tehrir were also handed over to HC Lakhwinder and in the meanwhile at about 9:00 PM or 9:10 PM, Ct. Hari Ram returned with the copy of FIR and original tehrir which he handed Contd.....
FIR No. 70/2008 7 Police Station S.P. Badli (Crime Branch) over to HC Lakhwinder and HC Lakhwinder had prepared the site plan and arrested the accused Amit as well as Nirbhay Kumar vide memo Ex. PW1/E and Ex. PW1/F bearing his signatures at Point A and their personal search was conducted vide memo Ex. PW1/E1 and Ex. PW1/F1 bearing his signatures at Point A respectively. The MHC(M) produced the sealed pullanda bearing the seal of FSL which was found containing a pistol and two live and one used cartridges. PW1 deposed that the pistol and the cartridges are the same which were recovered from the accused present in the court. Witness further stated that the used cartridge has probably been consumed during the test firing at FSL. The pistol is Ex. P1, used cartridge is Ex. P2 and the live cartridges are collectively Ex. P3. The car and the number plates relating to another case of PS Sector24, Noida were already transferred there. In cross examination PW1 deposed that the area of S.P. Badli near Outer Ring Road is a busy place and it is visited by number of people and he also admitted that there is a residential area within a distance of half kilometer from the place of recovery. In cross examination PW1 stated that none of the police officer had offered their search before searching the accused. He further deposed that he do not know whether any DD entry was made regarding return of the seal and he had returned it after about two days to SI Sanjay. He further deposed that Ct. Hari Ram had taken Contd.....
FIR No. 70/2008 8 Police Station S.P. Badli (Crime Branch) the car to S.P. Badli and accused persons were taken in their own private car to S.P. Badli Police Station and his statement was recorded at Crime Branch Office by HC Lakhwinder ater 10:30 PM. He denied the suggestion that no pistol or cartridges were recovered from the possession of the accused or that the accused has been falsely implicated in this case or that the accused was apprehended from the office of Virender at S.P. Badli and has been falsely implicated in this case. He denied the suggestion that he is deposing falsely against the accused.
8. PW2 Inspector Bhaskar stated that on 17.2.2008 he was posted as SI at Spl. Team Crime Branch. PW2 has also deposed on same lines as that of PW1. He also stated that FSL form was completed and the seal was handed over to Ct. Sanjay, however, in cross examination PW2 stated that he do not know whether any DD entry was made regarding return of the seal. It is pertinent to note that in cross examination PW2 stated that he had returned it i.e. seal after about two days to SI Sanjay. He stated that his statement was recorded at Crime Branch Office by HC Lakhwinder after 10:30 PM.
9. PW3 SI Surya Narain is the duty officer who stated that on 17.2.2008 he was posted at PS S.P. Badli and was working as duty Contd.....
FIR No. 70/2008 9 Police Station S.P. Badli (Crime Branch) officer having his duty hours from 5:00 PM to 1:00 AM till next date. He proved the FIR in question.
10.PW4 Ct. Hari Ram stated that on 17.2.2008 he was posted as constable at Spl. Team Crime Branch. He was also member of the raiding team. He also deposed on similar lines as that of PW1. He also stated that the FSL form was completed and seal was handed over to Ct. Sanjay. In cross examination PW4 stated that his statement was recorded at Crime Branch Office by HC Lakhwinder and he cannot tell at what time the same was recorded. He stated that they had left the spot at about 10:30 PM. He also stated in the cross examination that the writing work was conducted by SI Sanjay while standing at the spot in his presence.
11.PW5 Inspector Sanjay stated that on 17.2.2008 he was posted as SubInspector at Spl. Team Crime Branch. He is the first IO of the case. He also deposed on similar lines as that of PW1. He also stated that the FSL form was completed and the seal was handed over to Ct. Sanjay. He also deposed that HC Lakhwinder prepared the site plan Ex. PW5/B in his presence. He also stated that his statement was recorded and he was relieved from the spot. In cross examination PW5 deposed that he remained at Crime Branch office Contd.....
FIR No. 70/2008 10 Police Station S.P. Badli (Crime Branch) till 11:00 PM and by that time HC Lakhwinder had returned there. PW5 stated that he had prepared the sketch Ex. PW1/A while sitting on the back seat of his car and he had prepared the seizure memo while sitting in the car. He stated that he cannot tell by what time he had left the spot and cannot tell after how much time he had left Crime Branch Office in the night after his arrival from the spot.
12.PW6 HC Chander Mohan deposed that on 17.2.2008 he was posted as MHC(M) at PS S.P. Badli and in the night intervening between 17.2.2008 and 18.2.2008 HC Lakhwinder has deposited sealed pullanda bearing the seal of BS in the present case alongwith FSL form and he had kept it in safe custody and entered its deposit vide Sl. No. 6231/08 in register no. 19. He further deposed that on 14.3.2008 HC Lakhwinder had taken the pullanda in seal intact position alongwith the FSL form for the purpose of depositing the same at FSL vide RC No. 15/21/2008 and further stated that subsequently on 9.5.2008 Ct. Pawan had deposited the sealed pullanda bearing the seal of FSL Rohini in the present case. He stated that during the period the pullanda remained with him, the same was not tampered with. The copy of relevant entry in register no. 19 is Ex. PW6/A (OSR) and the copy of road certificate bearing no. 15/21/2008 is Ex. PW6/B (OSR).
Contd.....
FIR No. 70/2008 11 Police Station S.P. Badli (Crime Branch) In cross examination PW6 stated that he do not remember the time when the pullanda was deposited by HC Lakhwinder and further stated that only FSL Form and pullanda was deposited with the copy of seizure memo and he had not seen the contents of the pullanda and he cannot say whether the contents of pullanda were changed during the period the same was sent to FSL. He also stated in the cross examination that there is possibility of change of the contents.
13.PW7 Shri Anil Shukla stated that on 19.6.2008 he was posted as DCP Crime & Railways and the record pertaining to this case was submitted before him for the purpose of according sanction u/s 39 of the Arms Act and after perusing the statements of witnesses, FIR, report of ballistic expert he had accorded the sanction u/s 39 Arms Act against the accused Nirbhay Kumar @ Bobby and the sanction order is Ex. PW7/A bearing his signatures at Point A. He stated that he accorded sanction after considerably perusing the material against the accused and after satisfying himself in all respects. In cross examination he admitted that he had not seen the pistol and the cartridges before passing the sanction order and stated that he had perused the statements of the members of the raiding team who had recovered the arms from the accused and he had not gone through the Contd.....
FIR No. 70/2008 12 Police Station S.P. Badli (Crime Branch) statement of any other person recorded by the IO except for the members of the raiding team in whose presence the arms were recovered from the accused.
14.The last prosecution witness was PW8 HC Lakhwinder Singh who stated that on 17.2.2008, investigation of the present case was handed over to him and on that day he received a phone call from the duty officer from Spl. Team Crime Branch and was instructed to reach near Nala, Samai Pur Badli, opposite Bus stop and he arrived there at about 8:15 PM or 8:30 PM and had gone there in a bus and there he met SI Sanjay, SI Bhaskar and Ct. Sanjay. He is the second IO of the case. He stated that SI Sanjay handed over the accused alongwith other person namely Amit Mahajan to him and also handed over one pullanda bearing the seal of BS, FSL Form, sketch Ex. PW1/A, seizure memo Ex. PW1/B, one car alongwith seizure memo Ex. PW1/C. He further stated that SI Sanjay also handed over to him two number plates, one bearing no. UP168839 and the other bearing no. DL8CF4109 and its seizure memo Ex. PW1/D was also handed over to him. PW8 further deposed that SI Sanjay told him that he had sent tehrir through Ct. Hari Ram and handed over a carbon copy of tehrir to him. PW8 further deposed that he prepared the site plan Contd.....
FIR No. 70/2008 13 Police Station S.P. Badli (Crime Branch) Ex. PW5/B at the instance of SI Sanjay and by that time Ct. Hari Ram reached there alongwith copy of FIR bearing no. 70/08 and he i.e. PW8 entered FIR number at the top of all the documents handed over to him by SI Sanjay and SI Sanjay was relieved after he recorded his statement. He further stated that he interrogated both persons and arrested them and Amit Mahajan was arrested vide memo Ex. PW1/E and Nirbhay was arrested vide memo Ex. PW1/F and their personal search memo is Ex. PW1/E1 and Ex. PW1/F1 respectively and he had recorded their confessional statements Mark Y and Mark Z. He further deposed that accused Nirbhay and Amit Mahajan led them to the place from where they had stolen the car recovered from their possession and the pointing out memo of that place was prepared which is Ex. PW8/A and he had recorded the statements of witnesses and the accused persons were got medically examined and the case property was got deposited in the malkhana. He further stated that subsequently the car was transferred to PS Noida from where it was reported to be stolen and on 13.3.2008 he came to know that the IO of PS Noida has filed the chargesheet regarding the said car against both the accused persons and on 14.3.2008 he had taken pullanda in the present case from malkhana mohrar, HC Chander Mohan and had deposited the pullanda Contd.....
FIR No. 70/2008 14 Police Station S.P. Badli (Crime Branch) alongwith the FSL form at FSL, Rohini. The FSL result is Ex. PW8/B. In cross examination PW8 deposed that when he arrived at the spot, he found SI Sanjay and others standing there and at that time Ct. Hari Ram was not present and he arrived there with the copy of FIR after about 20/25 minutes. He also stated that he i.e. Ct. Hari Ram reached there while walking and SI Sanjay had left the spot while walking at about 8:45 PM. He further deposed that he had gone alongwith Ct. Sanjay to Noida in the private vehicle which the raiding team had used to reach at spot and it was a Qualis car but he do not remember its number. He further stated that the recovered car was an Esteem car. He further stated that the sample was deposited after returning from Noida, at PS Samai Pur Badli. He further deposed that he collected the pullanda on 14.3.2008 in the morning at about 9:00 AM and he do not remember whether he had himself gone to collect the result. No other witness has been examined on behalf of state.
15.After closing of PE the statement of accused Nirbhay Kumar @ Bobby was recorded u/s 313 Cr.P.C. and all the incriminating evidence appearing on record was put to him and his explanation was sought. The accused has taken the stand of general denial of the Contd.....
FIR No. 70/2008 15 Police Station S.P. Badli (Crime Branch) allegations against him. Accused stated that this is a false case against him and he has been falsely implicated in this case and PWs have deposed falsely and the sanction order u/s 39 Arms Act is baseless and without application of mind. Accused stated that he is innocent. Accused opted not to lead any defence evidence.
16.In the present case the prosecution has not examined any independent public witnesses despite their availability which casts doubt on the genuineness of the prosecution case. The date of incident in this case is 17.2.2008 and as per the rukka the incident occurred at about 5:30 PM at Badli Pul near Bus Stand, Samai Pur Badli, Ring Road, Delhi which is a public place. It has been sought to be shown by the prosecution that no public person joined the investigation as well as none of them was cited as witness in this case. It implies that the public persons were present at the spot. Now as per material on record and the testimonies of prosecution witnesses it is clear that no serious attempt was made by the concerned police officials i.e. the IO of the case to get independent public persons join the police proceedings of investigation despite availability of such witnesses. In circumstances like the present one, if members of the public had in reality refused to assist the members of the police party, they could Contd.....
FIR No. 70/2008 16 Police Station S.P. Badli (Crime Branch) have served the said passerby/public witnesses with a notice in writing to join the police proceedings. At least in these facts and circumstances of the case, in my opinion, the police officials concerned must have asked the passersby/public persons available at the spot of the arrest of the accused by serving them a notice in writing and further in case of their refusal, the concerned police people must have taken action against them under section 187 IPC. Facts and circumstances of the case suggests that no sincere efforts were made by police officials concerned to join independent public witnesses. The bald statement made by the members of raiding party to the effect that requests were made to 4 to 5 passersby but they refused to join the raiding party is not believable specially when there was a prior secret information and such statement has ultimately proved fatal for the case of the prosecution.
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 Contd.....
FIR No. 70/2008 17 Police Station S.P. Badli (Crime Branch) no such sincere efforts have been made, particularly when we find that shops were open and one or two shopkeepers 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 rigors 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".
In case law reported as "Sadhu Singh Vs. State of Punjab" 1997 (3) Crime 55 the Punjab & Haryana High Court had observed as under: "5. In a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubts. It is for the prosecution to travel the entire distance from 'may have' to 'must have'. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused".
"6. In the present case, the State examined two witnesses namely, Harbans Singh who appeared Contd.....
FIR No. 70/2008 18 Police Station S.P. Badli (Crime Branch) as PW1 and Kartar Singh, PW2. Both the witnesses supported the prosecution version in terms of the recovery of opium from the person of the petitioner, but there was no public witness who had joined. It is not necessary in such recoveries that public witnesses must be joined, but attempt must be made to join the public witnesses. There can be cases when public witnesses are reluctant to join or are not available. All the same, the prosecution must show as genuine attempt having been made to join a public witness or that they were not available. A stereotype statement of nonavailability will not be sufficient particularly when at the relevant time, it was not difficult to procure the service of public witness. This reflects adversely on the prosecution version".
17.As per the case of the prosecution, the seal after use was handed over to PW1 HC Sanjay (constable rank at relevant time) and was not given to any independent public person which causes a reasonable doubt in the story of the prosecution. In the judgment of Ramji Singh Vs. State of Haryana 2007 (3) R.C.R. (Criminal) 452, 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 Contd.....
FIR No. 70/2008 19 Police Station S.P. Badli (Crime Branch) case property. It is well settled that till the case property is not dispatched to the forensic science 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".
In Rajesh Jagdamba Avasthi Vs. State of Goa, 2005 (9) SCC 773, in para 15 of the judgment in this regard the Hon'ble Supreme Court held as under:
"15...........In these circumstances there is justification in the argument that since the seal as well as the packets remained in the custody of the same person, there was every possibility of the seized substance being tampered with, and that is the only hypothesis on which the discrepancy in weight can be explained. The least that can be said in the facts of the case is that there is serious doubt about the truthfulness of the prosecution case."
18. In the present case the date of recovery of alleged arm/ammunition is 17.2.2008 from the possession of the accused, however, the pullanda containing the said arm/ammunition was sent to FSL on 14.3.2008 which is considerable delay in submitting/depositing the same in FSL.
Contd.....
FIR No. 70/2008 20 Police Station S.P. Badli (Crime Branch) Moreover, the seal after use was not handed over to any independent person. It is also strange to note that initially the investigation was conducted by SI Sanjay and further investigation was handed over to HC Lakhwinder as reflected in the testimony of PW1. In cross examination of PW1 it is admitted that the area of Samai Pur Badli near Outer Ring Road is a busy place and visited by number of people. No public person has been joined in investigation. In the cross examination it is also admitted by PW1 that none of the police official offered their search before searching the accused. PW 1 also deposed that he do not know whether any DD entry was made regarding the return of the seal and he had returned it after about two days to SI Sanjay. It is also relevant to note that in the cross examination, PW2 Inspector Bhaskar stated that he do not know whether any DD entry was made regarding the return of the seal. PW2 has also stated that he had returned it after about two days to SI Sanjay. On the one hand PW1 has deposed that he had returned the seal to SI Sanjay after about two days and on the other hand PW2 has deposed that he had returned it after about two days to SI Sanjay.
19.In view of above facts and circumstances and reasons given and observations made the case of the prosecution utterly fails as it has not Contd.....
FIR No. 70/2008 21 Police Station S.P. Badli (Crime Branch) been proved on record beyond reasonable doubts against the accused and, accordingly, accused Nirbhay Kumar @ Bobby S/o Shri Bhuvaneshwar Rai is hereby acquitted of the charge framed in the present case u/s 25 of the Arms Act, 1959. The bail bonds of the accused extended for a period of six months from today in view of the provisions of section 437A Cr.P.C. File be consigned to record room after completing the necessary formalities.
Passed and announced in the open court today i.e. 11.02.2013 (MANISH GUPTA) ADDL. CHIEF METROPOLITAN MAGISTRATE (OUTER DISTRICT) ROHINI COURTS, DELHI Contd.....