Delhi District Court
State vs . Suraj Kumar And Inderjeet on 28 October, 2022
IN THE COURT OF MS. DEEPIKA SINGH,
CHIEF METROPOLITAN MAGISTRATE (NORTH DISTRICT),
ROHINI COURTS, DELHI
FIR No. 5/2008
Police Station Crime Branch
Under Section 25 of Arms Act.
State Vs. Suraj Kumar and Inderjeet
JUDGEMENT
(a) Serial number of the case 171/2008
(b) Date of the commission of the 09.10.2008
offence
(c) Name of the complainant SI Jai Kishan
(d) Name of the accused & 1. Suraj Kumar
address S/o Sh. Karan Singh
R/o UG-1, Plot NO.A-60, DLF,
Bhopura, Ghaziabad, UP.
2. Inderjeet Singh @ Bhura
S/o Sh. Giri Raj
R/o Village Kannaur, Tehsil-Garh,
Mukteshwar, Ghaziabad, UP.
(Accused Inderjeet Singh @ Bhura
was declared absconder vide order
dated 31.08.2016)
FIR No. 5/2008
PS Alipur State Vs. Suraj 1/23
(e) Charge against the accused U/s 25 Arms Act.
(f) Plea of the accused Pleaded not guilty
(g) Final order Acquitted-Accused Suraj acquitted
for the offence u/s 25 Arms Act.
(h) Date of such order 28.10.2022
Date of Institution :08.12.2008
Date on which arguments heard &
Judgment reserved. : 28.10.2022
Date of Judgment : 28.10.2022
BRIEF STATEMENT OF THE REASONS FOR DECISION
1. The charge sheet in the present case was filed on behalf of State on 08.12.2008 and after taking cognizance of the offence, the copies of chargesheet and documents were supplied to accused.
2. On 23.04.2012, the separate charges were framed against both the accused persons under Section 25 of the Arms Act, 1959 to which the accused persons pleaded not guilty and claimed trial.
FIR No. 5/2008 PS Alipur State Vs. Suraj 2/233. The allegations against the accused persons are that on 09.10.2008 at about 04.00 p.m., at parking Japani Park, towards Sector-11, Rohini, Delhi accused persons were found in possession of one country made katta each along with two live cartridges each as per seizure memo Mark X-1 and Mark X.
4. I have already heard final arguments and perused the record.
5. The prosecution has cited nine witnesses as prosecution witnesses. After closing of the Prosecution Evidence, the statement of accused was recorded U/s 294 Cr.P.C. The accused Suraj has admitted the genuineness of DD No.5 and 6 dated 09.10.2008 Ex. A1 and Ex. A2.
6. PW-1 HC Laxman Prasad deposed that on 09.10.2008 he was posted at PS Crime Branch as a duty officer. On that day his duty hours was 8.00 PM to 8.00 am. On that day at about 8.05 pm Ct. Somvir brought the rukka, sent by SI Jai Kishan. Upon which he made an endorsement on rukka which is Ex. PW1/A which bears his signature A. Thereafter he called the computer expert and he noted down the contents of the rukka and present FIR was registered. The computer generated copy of FIR no.05/2008 u/s 25/54/59 Arms Act and under Section 411 IPC which is Ex. PW1/B. After registration of the case original rukka and computer generated copy was handed over to Ct. Somvir and further investigation was marked to HC Bacchu Singh.
Witness was not cross examined by the Ld. defence FIR No. 5/2008 PS Alipur State Vs. Suraj 3/23 counsels despite grant of opportunity.
7. PW-2 Ct. Swaraj deposed that on 09.10.2008 he was posted at SOS Crime Branch, Sunlight Colony, Delhi and on that day he was present at his office where at 01.00 PM one secret informer came at their office and met SI Jai Kishan and gave the information to SI Jai Kishan that two and three boys who committed crime in NCR would came at Japanese Park from Sector-11 side, Rohini to meet their companion and they would be carrying illegal weapon and can be apprehended if raided. Thereafter SI Jai Kishan reduced the information in writing vide DD No. 5 and SI Jai Kishan also shared the information with the higher officials and he met the informer with Inspector Ved Prakash also apprised ACP SOS about the secret information and on their orders, SI Jai Kishan prepared raiding party consisting of myself, SI Sukhbir Malik, SI Narender Pahalwan, ASI Viernder Tyagi, Ct. Swaraj, Ct. Sushil, Ct. Rohtash and Ct. Somveer and secret informer. At about 02:00 p.m. raiding party alongwith secret informer left the police station in a qualis vehicle and Ct. Rohtash and Ct. Sushil were on one motorcycle. At about 3:00 p.m. they reached at Japnese park, gate of Sector-
11. Thereafter SI Jai Kishan asked 5-7 public persons to join the raiding party but none of them agreed to join and left without disclosing their names and addresses. Thereafter, SI Jai Kishan briefed the members of the raiding party and deputed them near the parking of Japanese park and they were waiting for the accused persons. At about 03:45 pm one boy on the black motorcycle make Pulsar and parked the motorcycle at the parking of main FIR No. 5/2008 PS Alipur State Vs. Suraj 4/23 gate came there. The number of motorcycle was DL 5CB 9473 and was waiting for his companion. At about 04:00 pm one Santro car colour white registration no. DL 8CN7933 came there and two persons came out from the same and they were talking with the accused persons. Thereafter secret informer pointed out towards the said persons and the police raiding party apprehended the accused persons. He apprehended the accused Suraj, who was present in the court on the day of his deposition and correctly identified by the witness, SI Jai Kishan apprehended the accused Inderjeet, who was present in the court on the day of his deposition and correctly identified by the witness and accused Amar was aprehended by Ct. Somveer. Thereafter causal search of the accused Suraj and Inderjeet were conducted and one desi katta each were recovered from their pants and SI Jai Kishan also conducted the casual search of the accused Amar but nothing was recovered from his possession. Thereafter SI Jai Kishan checked the kattas which was recovered from the accused Suraj and Inderjeet and the same were found loaded. Sketch of the kattas were prepared which were Ex.PW2/A and PW2/B respectively. SI Jai Kishan prepared the sketches of the desi kattas and live cartridges which are Ex. PW-2/A and PW-2/B. Measurement of the desi kattas and live cartridges were taken and written on the sketches. Thereafter SI Jai Kishan kept the aforesaid desi kattas and live cartridges in white cloth and prepared two pullandas and same were sealed with the seal of JK. IO filed FSL Form. Seal after use was handed over to Ct. Swaraj. Thereafter SI Jai Kishan conducted the search of the Santro Car and got recovered red chilly powder from the dash board of the vehicle and same FIR No. 5/2008 PS Alipur State Vs. Suraj 5/23 was seized by th IO vide seizure memo Ex. PW2/C. IO seized the pulandas vide seizure memo Ex. PW2/D and PW2/E. IO also seized the Santro Car vide seizure memo Ex.PW2/F. On inquiry it was disclosed that motorcycle was stolen from Indirapuram, Ghaziabad, UP. Thereafter SI Jai Kishan prepared the rukka and handed over the same to Ct. Somveer for registration of the case. In the meantime, HC Bachchu Singh came at the spot to whom SI Jai Kishan handed over the custody of both the accused persons and Amar and pullandas and relevant documents as further investigation was conducted by him, HC Bachchu Singh prepared the site plan at the instance of SI Jai Kishan. HC Bachchu Singh recorded the statement of SI Jai Kishan and he left the spot. In the meantime, Ct. Soveer returned to the spot along with original rukka and copy of FIR and same was handed over to HC Bachchu Singh. HC Bachchu interrogated the accused persons namely Inderjeet and Suraj and both were arrested under the Arms Act vide arrest memos Ex. PW2/G and PW2/H and conducted their personal search memos Ex. PW2/I and PW2/J. Thereafter HC Bachchu Singh recorded the disclosure statements of accused persons vide PW2/K and PW2/L. IO also arrested and conducted personal search of accused Amar. HC Bachchu Singh recorded his statement and statement of other witnesses at the spot. Thereafter, they brought the accused persons to police station Crime Branch. Thereafter, MHC(M) has produced the case property i.e. one polythene containing two pullandas sealed with the seal of FSL. First pullanda is opened and one desi katta along with one live cartridge and one used cartridge was taken out and shown to the witness who correctly identifed the FIR No. 5/2008 PS Alipur State Vs. Suraj 6/23 same and desi katta is Ex.P-1, live cartridge Ex.P2 and used cartridge Ex.P3 which was recovered from the possession of the accused Inderjeet. Second pulanda was opened and and one desi katta along with one live cartridge and one used cartridge was taken out and shown to the witness who correctly identified the same and desi katta is Ex.P-4, live cartridge Ex.P5 and used cartridge Ex.P6 which was recovered from the possession of the accused Suraj. Thereafter MHC(M) has produced the pulanda bearing seal of JK. One transparent packet containing red chilly powder is taken out from the same which was correctly identified by the witness as it is the same packet which was recovered from the dash board of the Santro Car and the packet is Ex.P7.
Witness was cross examined by the Ld. defence counsel wherein he deposed that he had not heard the secret information personally as secret informer informed SI Jai Kishan. SI Jai Kishan told him about the physical description of the suspects. He had gone through DD No.5. Physical description of suspects not mentioned in DD No.5. No written order has been given by Insp. Incharge or the ACP to form raiding team. Before leaving the office of Crime Branch, they have got issued weapons of their team members. They made entries in malkhana register in this regard. He did not remember the said entry number. He has got issued 9 mm pistol. They reached at the spot at about 3.00 pm. He admitted that residential colony is situated near the spot at a distance of about 200 steps. There was no petrol pump. (Vol. Petrol pump is situated at a distance of about 500 mtrs. from the spot.). Parking of Japanese Park is situated near the entry FIR No. 5/2008 PS Alipur State Vs. Suraj 7/23 gate opened towards Sector-11. Street vendors were present outside the gate of park on that day. From the outside, activities happened in the parking was visible. All the team members were in civil dress. IO requested to public persons to join the investigation at the spot. IO did not record the names and addresses of the said public persons who refused to join the investigation as they did not disclose the same. IO did not request street vendors to join the investigation. On that day, there was no guard present at the gate of Japanese Park. On that day, there was no parking staff who was present at the parking of Japanese Park. Between our arrival at the spot and arrival of accused, many other persons came in the parking. He admitted at that time, public persons were present inside the park. They finally left the spot at around 9.00 p.m. Site plan has been prepared in his presence and he had seen the same. IO had shown positions of all the raiding team members in the site plan.
At this stage, witness was confronted with site plan Ex.PW8/A wherein no position of staff members have been shown. He admitted that his position is not shown in the site plan. Prior to search of accused, they offered our personal search to him. IO did not put any mark/symbol on the recovered weapon before seizure. IO had not obtained the signature of the accused on the pullanda. IO had signed the pullanda. He admitted that no seal handing over memo was prepared by the IO. Two FSL forms had been filled by the IO. SI Jai Kishan did not record statement of any witness before arrival of second IO. At the time of arrival of second IO, public persons were present at the spot. At the time of proceedings, it FIR No. 5/2008 PS Alipur State Vs. Suraj 8/23 was dark. All the documents have been prepared at the spot under the lights of the park. He admitted that the said lights have not shown in the site plan. All the raiding party members have left the spot simultaneously. He denied the suggestion that nothing has been recovered from the possession of accused or that the case property has been planted upon the accused after calling him at the office of Crime Branch or that he did not visit the spot as alleged or that IO prepared all the memos while sitting in the Crime Branch or that he had signed all the memos while sitting in the office of Crime Branch or that he had identified the accused at the instance of IO or that signature of accused have been obtained on the blank papers and said blank papers later on converted into memos or that he had identified the case property at the instance of IO or that he was deposing falsely at the instance of IO.
8. PW-4 SI Jai Kishan deposed that 09.10.2008, he was posted at SOS Crime Branch Office, Sun Light Colony, Delhi as SI. On that day, he was present in his office and at about 01:00 Pm, one secret informer met him in office and informed that about 4:00 pm 2-3 boys who had committed in NCR would come at Japnese Park from Sector-11 side, Rohini to meet their companion and they would be carrying illegal weapon and can be apprehended if raided. He reduced the information in writing vide DD No. 5 and took the secret informer to Insp. Ved Prakash who satisfied himself about the secret information and apprised ACP about the secret information. ACP directed to conduct raid immediately. He prepared raiding party FIR No. 5/2008 PS Alipur State Vs. Suraj 9/23 consisting of him, SI Sukhbir Malik, SI Narender, ASI Virender Tyagi , Ct. Swaraj, Ct. Sushil, Ct. Rohtash and Ct. Sombir. He briefed the raiding team members and at about 02:00 p.m. They all alongwith secret informer left their office in a qualis car and one private motorcycle. Ct. Rohtash and Ct. Sushil were on the motorcycle. At about 3.00 p.m. they reached at the gate of Swarn Jayanti Park (Japnese park) towards Sector-11, Rohini. Their he asked 5-7 public persons to join investigation but none agreed and left the place without disclosing their particulars. Thereafter, he again briefed the staff and deputed them at separate locations in the parking of park. They started waiting for the criminals. At about 03:45 pm one black motorcycle make Pulsar came there and one person wearing a helmet was riding the same. The number of motorcycle was DL 5CB 9473. The rider parked the motorcycle and after removing his helmet, he started waiting for someone. At about 04:00 pm one Santro car colour white registration no. DL 8CN7933 came there and two persons came out from the same. The said persons stood in front of bonat of their car and the person who came on motorcycle also came there and they started talking to each other. Upon pointing out by the secret informer, they all apprehended the above said three persons. The name of person who came on motorcycle was revealed as Amar Singh and the name of the two persons who came in Santro car were revealed as Suraj and Inderjeet @ Bharu (Since PO).
Accused Suarj was present in the court on the day of his deposition and he correctly identified the accused. They revealed their identity to them and carried out their casual search. One loaded country made pistol of .315 FIR No. 5/2008 PS Alipur State Vs. Suraj 10/23 bore was recovered from the left side dub of pant of Suraj and one live cartridge was recovered from his right side pocket of his pant. One loaded country made pistol was recovered from left side dub of accused Inderjeet and one live cartridge was recovered from the pocket of his shirt. Nothing incriminating was recovered in casual search of Amar Singh. IOchecked the recovered pistols and unloaded them. He kept the recovered pistols and cartridges on plain papers and prepared sketches of the same. Sketches are already Ex. PW-2/A and PW-2/B. Measurement of the arms and ammunitions was done and written on the sketches. The pistol and cartridges recovered from accused Suraj were kept in pulanda of white cloth and he sealed the same with the seal of JK. Pulanda was given mark A. Pistol and cartridges recovered from accused Inderjeet were sealed in a separate pulanda and given mark B. It was also sealed with the seal of JK. He filled form FSL. The motorcycle recovered from possession of accused Amar Singh was found stolen from the area of PS Indrapuram, Ghaziabad. He seized the recovered arms vide seizure memos already Ex. PW-2/A and PW 2/E. Motorcycle and helmet were seized under section 102 Cr.P.C vide seizure memo Ex. PW-4/X1. He checked the Santro car and chilly powder was recovered from its dash board. He seized the Santro car and chilly powder vide memos already Ex. PW-2/C and PW-2/F. Seal after use was handed over to Ct. Swaraj. He prepared their Ex. PW-4/A and gave the same to Ct. Sambir for registration of FIR. Ct. Sombir left the spot. He informed his senior officers about the recovery and requested for second IO. After some time HC Bachhu Singh alongwith Ct. Sombir came to the spot. He FIR No. 5/2008 PS Alipur State Vs. Suraj 11/23 handed over the custody of accused persons, case property and documents to HC Bachu Singh. IO HC Bachu Singh prepared site plan at his instance and he was relived from the spot. He further submitted that he can identify the case property if shown to him.
Thereafter MHCM has produced the case property i.e. two pulandas sealed with the Court seal i.e. MK and one pulanda sealed with seal of JK. First pulanda bearing serial no.1 with court seal is opened and one country made pistol alongwith one live cartridge and one used cartridge wrapped in a cloth bearing mark A are taken ont from the same. Witness has correctly identified the pistol and cartridge as recovered from the possession of accused Suraj. Case property is already Ex. As Ex. PW-4 to P-6.
Second pulanda bearing serial no.2 with court seal is opened and one country made pistol alongwith one live cartridge and one used cartridge wrapped in a cloth bearing mark B are taken out from the same. Witness has correctly identified the pistol and cartridge as recovered from the possession accused Inderjeet. Case property is already exhibited as Ex. P-1 to P-3.
Third pulanda bearing seal of JK is opened and one transparent packet containing red chilly powder is taken out from the same. Witness has correctly identified the same as recovered from the dash board of santro car. Packet is Ex. P-7.
Witness was cross examined by the Ld. defence counsel wherein he deposed that secret informer disclosed physical descriptions of FIR No. 5/2008 PS Alipur State Vs. Suraj 12/23 the suspects. He did not mention the said description in DD no.5. It took around one hour to convey the information to senior official. They made their departure entry but he did not remember the said DD number. He had not given the said DD entry to second IO. They left the office of Crime Branch at 2.00 PM. Accused was apprehended on the road of Sector 11 side. He admitted that in front of the spot, there is a residential colony and the said colony is gated accommodation but he did not know whether any guard was deputed there or not. He further admitted that a petrol pump is situated near the spot. They did not call any person from the said petrol pump to join the investigation. He also voluntarily submitted that there were many street vendors present at that time. He requested 4-5 persons to join the process but none agreed and left the spot without disclosing their names and addresses. Thereafter, he did not serve any written notice upon them. He had not seen any guard on the gate of the Japanese Park i.e. the spot. He briefed his team members inside the Japanese Park at the parking. He had not seen any parking staff in the parking at that time. Thereafter, some vehicles came in the parking but he did not ask from their drivers to join the proceedings. He admitted that position of the raiding team members were not shown in the site plan. He admitted that the site plan has been prepared at his instance. He further deposed that all the raiding team members might be having their service pistols on that day but he was sure that he was having the same. They all were in civil dress. He did not remember the date on which he get issued the weapon from Malkhana. At the time of arrival of accused i.e. 3.45 PM, no parking staff was present. He FIR No. 5/2008 PS Alipur State Vs. Suraj 13/23 and Ct. Shivraj along with secret informer was in position at the parking at that time. Passerby were passing through the spot at that time. No parking person was present at the time of arrival of Santro Car. It took 15-20 minutes from arrival of motorcycle for apprehension of accused persons. All three accused persons were apprehended at the spot. He conducted personal search of all the three accused persons. He did not remember which accused was apprehended by him. He had filled all the particulars on all the memos prepared by him. He handed over all the memos to second IO in filled condition. Sketch Ex. PW2/A and PW2/B prepared by SI Sukhbir in his presence and he signed the same. He offered his personal search to the accused before their personal search but they refused to do so. He did not prepare any memo in this regard. From the apprehension of the accused to send the rukka, it took around two and half hours. He had not mentioned any mark on the weapons recovered from the accused persons, however, he marked the pullandas as Mark A and Mark B. He had not obtained any signatures of the accused persons on the pullandas. He admitted that he had not prepared any seal handing over memo. He had not prepared any sample seal memo except the FSL Form. Second IO reached at the spot between 6.30 to 7.00 PM. Second IO did not call any public person to join the arrest proceedings of the accused. All the proceedings have been done by him and second IO in the parking of the Japanese Park. Stopping point of Santro Car is not mentioned in the site plan. At the time of arrival of IO , it was little dark but lights in the parking were on. They prepared all the documents while sitting on the bench of the park just below the light pole. He admitted FIR No. 5/2008 PS Alipur State Vs. Suraj 14/23 that the said pole is not mentioned in the site plan. He left the spot at about 7.00 PM. Second IO prepared only site plan in his presence. He denied the suggestion that nothing has been recovered from the possession of accused or that the case property has been planted upon the accused after calling him at the office of Crime Branch or that he did not visit the spot as alleged and he prepared all the memos while sitting in the Crime Branch office or that signatures of the accused had been obtained on the blank papers which were later on converted into memos. He further denied the suggestion that he had identified the accused and the case property at the instance of the second IO or that he was deposing falsely.
9. PW-5 Sh. Pradeep Saxena deposed that he was the registered owner of the vehicle i.e. Santro bearing No.DL-8CN-7933. In the month of January, 2008, He had sold the aforesaid vehicle to the accused Suraj Kumar, who was present in the court on the day of his deposition and was correctly identified by the witness. The aforesaid vehicle was financed in his name and it was agreed that the accused would pay the future installments. He handed over the aforesaid vehicle to accused but the same could not be transferred in his name due to pending installments. Later, in the month of October on the festival of Dussehra, Crime Branch officials came to his house and made enquiry about the aforesaid vehicle. The accused accompanied the Crime Branch officials in their vehicle. He got released the aforesaid vehicle on superdari. No documents were prepared while selling the aforesaid car to accused. Identity of the car is not disputed by the FIR No. 5/2008 PS Alipur State Vs. Suraj 15/23 Ld. Counsel for accused.
Witness was not cross examined by the Ld. defence counsel despite grant of opportunity.
10. PW-6 Sh. Neeraj Thakur, Inspector General of Police, Mizoram deposed that on 06.12.2008, while he was posted as DCP, Crime & Railways, Delhi, copies of documents in the present case, i.e. , copy of draft charge-sheet, seizure memo, FSL report and the statements of PWs and other relied upon documents by the police were presented before him. After careful perusal of the same and due application of mind, he was satisfied that the accused persons, namely Suraj Kumar and Inderjeet Singh @ Bhura had committed offences under Section 25 of the Arms Act, 1959. Therefore, he accorded sanction for the prosecution of the above accused persons in the present case as required u/s 39 of Arms Act. His sanction in this regard is Ex.PW6/A bearing his signature at point A. Witness was not cross examined by the Ld. defence counsel despite grant of opportunity.
11. PW-7 Sh. V. R. Anand , Asstt. Director, Ballistic FSL, Rohini, Delhi deposed that on 24.10.2008, two sealed parcels were received in the office of FSL. The same were marked to him for examination. The parcel no.1 & 2 were sealed with the seal of JK and seal on the parcels were found intact FIR No. 5/2008 PS Alipur State Vs. Suraj 16/23 and as per the specimen seal. On opening the parcel no.1, one countrymade pistol .315 inch bore and two 8mm/.315 inch cartridges were taken out and marked as F-1, A-1 and A-2 respectively by him. On opening the parcel no.2, one countrymade pistol .315 inch bore and two 8mm/.315 inch cartridges were taken out and marked as F-2, A-3 and A-4 respectively by him. He examined the said exhibits and found that the countrymade pistols were in working order and test fire conducted successfully. The cartridges A-1 to A-4 were live ones. The cartridge A-1 and A-3 were test fired through the countrymade pistols marked Ex.F-1 and F-2 respectively. The exhibits F-1 and F-2/A-1 to A-4 were firearm / ammunition as defined in the Arms Act, 1959. All the exhibits were sealed with the seal of VRA FSL DELHI after examination. His report is Ex.PW7/A bearing his signature at point A. Witness was not cross examined by the Ld. defence counsel despite grant of opportunity.
12. PW-8 ASI Bachhu Singh deposed that on 9.10.2008 he was posted at SOS/crime branch delhi as HC. On that day he was informed by inspector /Incharge to reach at the spot. Accordingly he went to spot i.e. parking Japanese Park towards sector-11 rohini. After registration of FIR, investigation of the present case was marked to him. Ct. Somvir handed over copy of FIR and original rukka to him at the spot. He prepared site plan at the instance of SI Jai kishan which is Ex.PW8/A. SI Jai Kishan handed over custody of accused Inderjeet and Suraj Kumar along with case property FIR No. 5/2008 PS Alipur State Vs. Suraj 17/23 to him. He recorded disclosure statement of both the accused persons which are already exhibited as ExPW2/K and ExPW2/L. He arrested/personally searched both the accused persons vide memos already ExPW2/G to PW2/J. He recorded statements of witness. They went to crime branch office and deposited the case property in the malkhana. Accused persons were kept in the custody. Next day, accused persons have been produced in the court and court sent them in JC. He submitted the case property to FSL and collected the results of the same. He obtained sanction of section 39 arms Act and placed on record. After completing the investigation he filed the charge sheet in the court. Accused Inderjeet was declared as absconder and accused Suraj Kumar was present in the court on the day of his deposition and was correctly identified by the witness.
Witness was cross examined by the Ld. defence counsel wherein he deposed that on 9.10.2008 no fixed duty hours were assigned to him as he was on duty for 24 hours. He reached at his office i.e. sunlight colony at 8.00 AM. No secret informer met with IO in his presence. Inspector/Incharge informed him at about 5.15 PM. He reached at the spot at about 6.15 PM. He was alone when he reached the spot. He came to spot in an auto. He made his departure entry vide DD no.8 which is now Ex.PW8/D1. When he reached at the spot, three accused persons and staff members namely SI Jai Kishan, SI Narender, ASI Virender, Ct Swaraj, Ct Rohtash, Ct Somvir, Ct Sushil and SI Sukhvir were present at the spot. The Santro car and Pulsar bike were parked at the spot. He admitted that when he reached at the spot, it was dark. He volutarily deposed that lights of park FIR No. 5/2008 PS Alipur State Vs. Suraj 18/23 and vehicle were on. The spot was near the gate no.2 of Japanese Park. The car was stationed inside the gate in the parking. He did not observe about the passerby. He recorded disclosure statement of accused at about 8.00 PM. He cannot tell whether accused persons were apprehended at about 4 PM as he was informed at about 5:15 PM. When he reached at the spot, no public persons were present. He set free the auto driver outside the gate of Japanese Park. At the time of arrest of the accused persons, no public persons were present. They reached at crime branch office at about 11:45 PM. He denied the suggestion that he had not joined the investigation or that he had prepared all the documents while sitting in their office. He further denied the suggestion that he did not visit the spot. He further denied the suggestion that the alleged recovery has been planted upon the accused Suraj or that he was deposing falsely.
12. PW-9 SI Chand Ram deposed that on 09.l0.2008 he was posted at PS Crime Branch as HC and on that day he was performing his duty as MHCM. On that day IO produced the case property of the present case to him. He deposited the same at S.No, 5 of register no.19. He had sent sampled to FSL vide road certificate no/6/2008. On the day of his deposition, he had brought original register no.19 and 21 and the copy of both the registers are Ex.PW9/A (colly.) Witness was not cross examined by the Ld. defence counsel despite grant of opportunity.
FIR No. 5/2008PS Alipur State Vs. Suraj 19/23
13. After prosecution evidence, statement of accused under section 313 Cr.P.C was recorded. All the incriminating evidence was put to the accused. Accused denied all the allegations stating that he has been falsely implicated in this case. However, accused did not choose to lead any evidence in his defence.
14. Arguments advanced by Dr. Sharawan Kumar Bishnoi, Ld. APP for the state and Ld. Defence counsel were heard. Record perused. Ld. Defence Counsel has argued that the case of prosecution is entirely based upon the testimony of police witnesses and is not independently corroborated. On the other hand, Ld. APP has submitted that the prosecution has been able to prove its case.
15. It is cardinal principle of criminal jurisprudence that an accused is presumed to be innocent and therefore, the burden lies on the prosecution to prove the guilt of the accused beyond reasonable doubt. The prosecution is under a legal obligation to prove each and every ingredient of the offence beyond any doubt unless otherwise so provided by any statute. This general burden never shifts and it always rests on the prosecution.
16. After going through the complete evidence and records of this case, I am of the view that accused Suraj Kumar deserves acquittal in this case on the following grounds :-
FIR No. 5/2008PS Alipur State Vs. Suraj 20/23
17. The public witnesses are not joined in the investigation. From the overall testimony of the witness, it appears that no effort, what to talk of a sincere/vague effort has been made to join the public persons in the investigation. All the witnesses examined by the prosecution are the police witnesses. Although, it can be said that it was a chance recovery but the incident had occurred at 4:00 pm and at that time from a busy locality and therefore, it can not be said that no public person would have been available at the spot and even if the prosecution has not joined public witnesses it was incumbent upon the prosecution to at least put forward plausible reasons for not doing so. The failure on the part of the police personnels goes to suggest that they were not interested in joining the public persons in the police proceedings. Failure on the part of the police officials to make sincere effort to join public witnesses for the proceedings when they may be available creates reasonable doubt in the prosecution story in view of the following case law. In the case of Annop Joshi Vs. State 1992 (2) C.C. Case 314 (HC), Hon'ble High Court of Delhi has observed as under:
"It is repeatedly laid down by this court that 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 evident that 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 rigours of law while declining to perform FIR No. 5/2008 PS Alipur State Vs. Suraj 21/23 their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC."
18. During the investigation of the case no public witnesses were joined nor there seems to be any sincere efforts made in this regard, when it was possible to do so, which makes the case of the prosecution weak and suspicion. Since all the witnesses are police personnels and the necessary safeguards in the investigation have not been followed by the investigating officer, I am of the view that chances of false implication cannot be ruled out at the instance of the police.
19. Even otherwise, as per the case of the prosecution, the seal with which, the case property was sealed always remained in possession of a police official.
20. It is true evidence is to be weighed and not counted but in this case whatever evidence has been produced by the prosecution is not sufficient to fortify the edifice of the prosecution case and the prosecution has failed to prove all the links. In case where the prosecution has failed to prove all the links, the benefit of doubt has been given to the accused.
21. In view of above mentioned facts and circumstances, I hold that the prosecution has failed to prove its case against the accused Suraj Kumar beyond reasonable doubt. Accordingly, accused Suraj Kumar stands FIR No. 5/2008 PS Alipur State Vs. Suraj 22/23 acquitted u/s 25 of the Arms Act, 1959in this case. However, he shall furnish a fresh bond which shall remain in force for a period of six months from today U/s 437A Cr.P.C. Documents if any be returned after cancellation of endorsement.
22. File be consigned to the record room after due compliance.
ANNOUNCED IN OPEN COURT on 28.10.2022 (Deepika Singh) CMM, North District, Rohini Court, Delhi FIR No. 5/2008 PS Alipur State Vs. Suraj 23/23