Delhi District Court
State vs : Hari Kishan on 26 May, 2015
IN THE COURT OF SH. SUDHANSHU KAUSHIK, ADDITIONAL CHIEF METROPOLITAN MAGISTRATE-01 : CENTRAL DISTRICT : TIS HAZARI COURTS : DELHI State Vs : Hari Kishan FIR No. : 126/2008 U/s : 25 of Arms Act PS : Paharganj Date of Institution : 08.09.2008 Date of Judgment reserved on : 26.05.2015 Date of Judgment : 26.05.2015 Unique ID : 02401R1249332008 Brief details of the case A. Sl. No. of the case : 629/P/08 B. Offence complained of or proved : 25 of Arms Act C. Date of Offence : 08.05.2008 D. Name of complainant : SI Ajay Karan Sharma No.D-3612, Incharge Police Post Sangatrashan, PS Paharganj, New Delhi E. Name of accused : Hari Kishan @ Raju S/o Hari Shankar R/o C-5/A, Anoop Nagar, near Jeewan Park, Uttam Nagar, Delhi F. Plea of accused : Pleaded not guilty G. Final order : Acquitted H. Date of Order : 26.05.2015 Judgment The case of prosecution is that on 08.05.2008, at around 10.10. PM, at service lane, crossing of ' Z' street, C.F.Road, Pahraganj, Delhi, Hari Kishan (hereinafter referred to as 'accused') was found in possession of a country-made pistol loaded with a live cartridge without carrying the requisite license prescribed under Section 3 of the Arms Act.
FIR No.126/2008 State Vs Hari Kishan Page 1 of 10
Brief facts as unfolded during trial
2. On 08.05.2008, at around 09:20 PM, police officials including ASI Ishwar Singh (PW-1), Ct. Mansukh (PW-3) and ASI Ajay Karan were on patrolling duty at C.F.Road, Paharganj, New Delhi where a secret informer met them and disclosed that accused, who was a noted bad character of R.K.Puram area of New Delhi, would be passing through C.F.Road on a motorcycle. The secret informer further disclosed that accused would be carrying illegal firearms with him. In order to apprehend the accused, the aforesaid police official formed a raiding party. Five- six passersby were requested to join the raiding party but they refused and left the spot without disclosing their name or address. Raiding party reached the spot and took position. At around 10.10 PM, accused arrived at the spot on a motorcycle make Bajaj Pulsar bearing registration No.DL-6S-AB-4139 and on the pointing of secret informer, police officials apprehended him. It is the prosecution' s case that, on carrying out casual search of accused, one country-made pistol loaded with a live cartridge was recovered from his possession. Rough sketch of country-made pistol and live cartridge was prepared. Thereafter, the recovered firearm and cartridge were kept in separate pullandas which were sealed with the seal of ' AKS' and the pullandas were deposited at the malkhana. The seized firearm and live cartridge were sent for examination to FSL, Rohini. In the said background, present case bearing FIR No.126/2008 under Section 25 Arms Act was registered at PS Paharganj.
3. On completion of investigation, charge-sheet was put to the Court. Initially, charge-sheet was filed without the requisite sanction under Section 39 of the Arms Act and the cognizance was declined by the Ld. Predecessor. FIR No.126/2008 State Vs Hari Kishan Page 2 of 10 Subsequently, prosecution obtained the requisite sanction and submitted the charge-sheet in the court. Copies of the charge-sheet were supplied to the accused and charge under Section 25 of the Arms Act was framed against him to which he pleaded ' not guilty' and claimed trial.
Witnesses examined
4. Six prosecution witnesses were examined.
PW-1 ASI Ishwar Singh (Recovery witness and member of the raiding party) supported recovery. He stated in his cross examination that public persons were requested to join the investigation but they did not agree.
PW-2 HC Gajender Singh (Duty Officer) mentioned that FIR No. 126/2008 under Section 25 of the Arms Act was recorded by him on the basis of rukka brought by Ct. Mansukh. The copy of FIR is Ex.PW-2/A. PW-3 Ct. Mansukh (Second Recovery Witness) also admitted the presence of public persons at the spot. He stated that the place from where the accused was apprehended was thickly populated. He stated that the spot was near New Delhi Railway Station and many shops were still open at the time when the accused was arrested.
PW-4 S.S.Badwal (Sr. Scientific Officer) mentioned about the report submitted by him which is Ex.PW-4/A. He stated that he test-fired the country- made pistol and found it in working order.
PW-5 Surender Singh Yadav (Addl. DCP-Traffic) mentioned about the sanction given by him under Section 29 of the Arms Act which is Ex.PW-5/A. PW-6 HC Ashok Kumar (MHC-M, PS Paharganj) produced register No.19. The entry whereby the firearm and live cartridge were deposited at the FIR No.126/2008 State Vs Hari Kishan Page 3 of 10 Malkhana is Ex.PW-6/A.
5. Statement of accused was recorded under Section 281 read with 313 Cr.P.C 1973 wherein he denied all the incriminating evidence and took the defence of false implication. He stated that police officials illegally arrested him from his house and implicated him in the present case. He mentioned that immediately after his arrest, he gave a telegram to the higher police officials about his illegal detention. No defence witness was examined.
Arguments
6. I have heard Ld. APP for State and Ld. Defence Counsel and carefully gone through the entire material available on record.
7. Ld. APP contended that prosecution has proved its case beyond shadow of doubt. He argued that all the material witnesses have entered into the witness box and fully supported the prosecution' s case. He argued that minor contradictions are bound to appear in any criminal matter but in the case at hand, there is no material contradiction which may create doubt about authenticity or veracity of the prosecution' s case and all the documents have been duly proved.
8. On the other hand, Ld. Defence Counsel assailed the prosecution' s case. It was argued by him that there is no justification as to why independent witnesses were not joined in investigation despite the fact that police was having prior information. He argued that there are material contradictions and discrepancies in the testimony of recovery witnesses and recovery has been planted upon the accused.
Brief reasons for final decision
9. I have given my thoughtful consideration to the rival contentions and FIR No.126/2008 State Vs Hari Kishan Page 4 of 10 carefully perused the entire material available on record.
10. Two recovery witnesses have been examined i.e. ASI Ishwar Singh (PW01) and Ct. Mansukh (PW-3). Both supported recovery and narrated the entire episode. They deposed that on 08.05.2008, at around 10.10 PM, accused was apprehended on the basis of a secret information and fire-arm loaded with a live cartridge was recovered from his possession. The recovery witnesses have identified their signatures on various memos. Let us peruse the testimony of these recovery witnesses in light of the arguments addressed by the defence.
11. Ld. Defence Counsel has vehemently argued that accused should be acquitted as there is no public witness to the recovery. Admittedly, no independent public witness has been joined in the investigation. Only police officials are witnesses of recovery. Statutory desirability in the matter of search and seizure is that there should be support from unbiased and neutral corner. The search before an independent witness imparts much more authenticity and credit worthiness to the search and seizure proceedings. Such safeguard is intended to avoid criticism of arbitrary and highhanded action against police officers. This is to lend credibility to the procedure relating to search and seizure. Indubitably, if the evidence of the official witnesses is found to be credible and coherent, same can alone prove to be foundation for conviction and normally, prosecution case cannot be thrown away straightaway merely because chief plank of evidence is that of official witnesses. However, it puts the Court on guard and the testimony of such official witnesses is, in such a situation, liable to be scrutinized with extra caution. Simultaneously, prosecution has to offer satisfactory explanation for not associating independent witnesses and more so, when they were available right at the elbow. In such a FIR No.126/2008 State Vs Hari Kishan Page 5 of 10 situation, courts are fully justified in finding out the reasons as to why no such person came forward and whether the investigating agency did its best to persuade independent persons. In the case of " Pawan Kumar Vs Delhi Administration"
1989 Crl. LJ 127 Delhi, it has been held as under : -
" Admittedly, there is no impediment in believing the version of the police officials but for that the prosecution has to lay a good foundation. At least one of them should have 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 case of a 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 IO 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."
12. Even when police come across any such offender by chance, it should not waste even a single second to call for corroboration from independent source more so when such persons are available to the police team right at its elbow. Onus would be on the prosecution to establish that the association of such persons was not possible on the facts and circumstances of a particular case. The search before an independent witness would impart much more authenticity and creditworthiness to the search and seizure proceedings. It would also strengthen the prosecution case. The said safeguard is also intended to avoid criticism of arbitrary and highhanded action against police officers. This is to lend credibility to the procedure relating to search. That being so, the authorized officer must follow the reasonable, fair and just procedure scrupulously and the failure to do so must be viewed with suspicion. The legitimacy of the judicial process may come under FIR No.126/2008 State Vs Hari Kishan Page 6 of 10 cloud if the Court is seen to condone acts of violation of such safeguards which may also undermine respect for law.
13. Record shows that there are contradictions and discrepancies in the testimony of police officials. It is not that invariably, the testimony of police witnesses should be discarded when it is not corroborated from an independent source. What is called for is that atleast, sincere efforts should have been made by the police officials to join public witnesses. Record must demonstrate that genuine efforts were made to join public witnesses at the time of recovery otherwise the provision of Section 100(4) Cr.P.C would be redundant. In the present case, record does not suggest that any effort was made by the police officials to join passersby or any other person from the locality in investigation. It appears that the witnesses have suggested that public persons were requested to join investigation but they did not agree. On being questioned during cross examination, they stated that Investigating Officer did not note down the name or address of those public persons who refused to join investigation. The stereo-typed explanation given by the police officials for not joining independent witness does not inspire confidence. In order to lend credence to their averment that sincere efforts were made to join public persons, the police officials could have atleast noted down the name or address of those public persons who were requested to join investigation. Their said failure raises doubts over the purported efforts made by them to join public persons. Reliance in this regard can be placed upon the recent decision in ' Masoom & Ors. (Mohd.) Vs State of NCT of Delhi' 2015 (IV) AD Delhi 395 .
14. It is apparent from the record that in the instant case, despite availability of independent public witnesses, no genuine and sincere efforts were FIR No.126/2008 State Vs Hari Kishan Page 7 of 10 made to associate them. ASI Ishwar Singh (PW-1) stated in his cross examination that although passersby were requested to join investigation but they did not agree. He stated that he can not tell the name or address of those passersby who refused to join investigation. He mentioned that no notice was issued to the persons who refused to join. Ct. Mansukh also mentioned that no action was taken against those public persons who refused to join the proceedings. He admitted that the spot was thickly populated and number of shops were lying open at the time when the accused was apprehended. He mentioned that rickshaw pullers, taxi drivers and tanga pullers were present at the spot which was near New Delhi Railway Station. Secret information was received at around 09.45 PM that accused carrying illegal firearm would be arriving at the spot. Police officials had sufficient time to make sincere efforts for associating independent public witness in the raiding team. It is a matter of record that the raiding team remained at the spot till 02.00 AM. It is strange that for about four hours, the investigating agency was not able to associate even a single independent pubic witness at the stage of investigation. Admitted position is that there were number of shops lying open near the spot which was in the crowded area of New Delhi Railway Station. It is not explained as to why only passersby were requested to join investigation. Even their names or addresses were not recorded and no action whatsoever was taken for their refusal to assist in investigation. Apparently, the investigating agency was not interested to make any independent witness to be a part of the raiding team.
15. Further, the documents on which reliance has been placed does not appear authentic. The chain of events narrated by the spot witnesses and mentioned in the rukka clearly suggest that seizure memo and rough sketch were prepared FIR No.126/2008 State Vs Hari Kishan Page 8 of 10 before Ct. Mansukh returned to the spot alongwith the copy of FIR. I have perused these documents. On each document, FIR number has been mentioned. Admittedly, these documents were prepared before registration of FIR. When documents were prepared before registration of FIR and it contains the FIR number, then inference has to be drawn that either FIR was recorded prior in time or the documents were prepared later on and in such cases, benefit of doubt has to be given to the accused.
16. Spot witnesses have pointed out different positions of the members of raiding party. ASI Ishwar Singh (PW-1) stated that he was standing at point-Z and Ct. Mansukh (PW-3) was also standing alongwith him while Ct.Mansukh mentioned that he was standing at point-Y. The site plan does not depict the position of the members of raiding team. Although, the witnesses have admitted that there were number of shops near the spot but those shops have not been depicted in the site plan. This such an imperfect site plan further weakens the prosecution' s case. Reliance in this regard has been placed on ' Ram Prakash Vs State' 2014(146) DRJ 629 .
17. Record shows that seal, after use, was not handed over to an independent person. ASI Ishwar Singh (PW-1) deposed that Investigating Officer seized the country-made pistol and live cartridge and sealed it with the seal of 'AKS' . He stated that seal after use was handed over to him. The witness has not deposed anything about the time when the seal was returned by him to the Investigating Officer. Admittedly, neither handing over nor return memo of the seal has been prepared. Police officials have admitted that no such document was prepared. No efforts were made to hand over the seal after use to independent public person and in such cases, in view of " Saifulla Vs. State" , 1998 (1) CCC FIR No.126/2008 State Vs Hari Kishan Page 9 of 10 497 (Delhi) and " Abdul Gaffar Vs. State" 1996 JCC 497 (Delhi) , benefit of doubt has to be given to the accused.
18. In view of discussion made in the afore-stated paras, I have reached a conclusion that there are number of infirmities in the investigation and missing links which creates doubt, the benefit of which ought to be given to the accused. I find it to be a fit case where the accused should be granted benefit of doubt. Accordingly, accused Hari Kishan is granted benefit of doubt and stands acquitted of the charge under Section 25 of the Arms Act. Case property be confiscated to the state and same be destroyed.
Announced in open Court (Sudhanshu Kaushik)
on this day of 26.05.2015 ACMM-01 (Central)
Tis Hazari Courts,Delhi
It is certified that this judgment contains 10 (Ten) pages and each page bears my signatures.
(Sudhanshu Kaushik) ACMM-01 (Central) Tis Hazari Courts,Delhi FIR No.126/2008 State Vs Hari Kishan Page 10 of 10