Delhi District Court
Police Station: Sarita Vihar State vs . Dhara Page No. 1 Of 7 on 30 September, 2015
IN THE COURT OF SHRI ARVIND BANSAL
METROPOLITAN MAGISTRATE (SOUTH-EAST) -05
SAKET COURTS : NEW DELHI
JUDGMENT
FIR No.: 13/06 Police Station: Sarita Vihar ID No. : 02403R0661422006 U/s 25/54/59 Arms Act State Versus Dhara s/o Sh. Maharaj Singh r/o Jhuggi No. 28, Priyanka Camp, Madanpur Khadar, Sarita Vihar, New Delhi.
.... Accused
(a) Date of Institution: 18.12.2006
(b) Date of Offence: 13.01.2006
(c) Plea of accused: Pleaded not guilty & claimed trial
(e) Argument heard and
reserved for order: Not reserved
(f) Final Order: Acquitted
(f) Date of Judgment: 30.09.2015
Brief statement of reasons for decision of the case:
1. The case of prosecution against the accused is that on 13.01.2006 at about 04:10 pm at T-point, Madanpur Khadar, Mathura Road, New Delhi, accused was found in possession of a countrymade pistol / desi katta with live cartridge without any license or permit in contravention of Delhi Administration Notification. FIR was got registered at PS Sarita Vihar on the information of HC Vijay Kumar. During investigation, the countrymade pistol was seized, accused FIR No. 13/06 Police Station: Sarita Vihar State vs. Dhara Page No. 1 of 7 was arrested and sent to judicial custody. Finally, after completion of necessary formalities of investigation, charge sheet was filed in the Court against the accused for trial.
2. The Court took cognizance of the offence on the charge sheet filed by the police. Copy of challan was supplied in compliance of Sec. 207 Cr.P.C. After hearing the parties, a charge for the offence punishable u/s 25/54/59 Arms Act was framed against the accused to which he pleaded not guilty and claimed trial.
Evidence on Record
3. In order to establish its aforesaid case against the accused, prosecution examined seven witnesses.
PW1 HC Ompal Singh proved the present FIR as Ex. PW1/A and endorsement made by him on Rukka as Ex. PW1/B. PW2 HC Vijay Kumar testified that on 13.01.2006, he was on patrolling duty alongwith SI Vijay Singh, HC Yogender, Ct. Bhoop Singh, Ct. Yashvir and Ct. Satyavan. They were in government vehicle i.e. Qualis. At about 3.30 pm while they were at Mathura Road T point, secret information was received by SI Vijay Singh that two persons who usually indulged in chain snatching on motorcycle would come from Madanpur Khadar side on a pulsar motorcycle having no number plate with illegal arms and they could be apprehended, if raided. They did Nakabandi at T point and at about 4.10 pm, accused Dhara with another person Amithab Bacchan came on motorcycle being driven by accused Dhara and Amitabh was pillion rider. In formal search of accused Dhara, one katta with one live cartridge was recovered from his possession. Accused Amitabh was searched by HC Yogender and Ct. Yashvir and one knife was recovered from his possession. He prepared sketch of katta and cartridge Ex. PW-2/A and thereafter sealed the same with the seal of 'VKH' and seized vide FIR No. 13/06 Police Station: Sarita Vihar State vs. Dhara Page No. 2 of 7 seizure memo Ex. PW-2/B. He also seized the motorcycle vide memo Ex. PW-2/C and got registered FIR vide Rukka Ex. PW-2/D. Further investigation of the present case was assigned to HC Krishan Singh who prepared site plan Ex. PW-2/E at his instance.
PW3 HC Bhoop Singh reiterated the assertions made by PW2.
PW4 HC Abdul Wahid deposed that on 31.01.2006, he took a pullanda from MHC(M), PS Sarita Vihar duly sealed with the seal of "VKH" for depositing the same in CFSL, Rohini, Delhi vide RC no.230/21. He got the pullanda deposited in CFSL Rohini, Delhi. He did not tamper with the pullanda until the same remained with him.
PW5 HC Chander Pal testified that on 31.01.2006, he had handed over a pullanda duly sealed with the seal of 'VKH' to Ct. Abdul Wahid for depositing the same in CFSL, Rohini, Delhi vide RC no.230/21. He did not tamper with the pullanda until the same remained with him.
PW6 ASI Kishan Singh testified that on 13.01.06, investigation of present case was marked to him. He reached the spot where Ct. Bhoop Singh met him who handed over copy of FIR and original Rukka. HC Vijay also met him and produced one apprehended person whose name revealed as Dhara. He also stated that one loaded desi katta was recovered from possession accused and he had seized the same. He also produced seizure memo, sealed pulanda, prepared sketch memo of katta to him. He prepared site plan at the instance of HC Vijay Kumar which is Ex. PW2/E. Accused was arrested and personally searched vide memos already Ex. PW3/A & Ex. PW3/B respectively. He recorded disclosure statement of accused which is Ex. PW6/A. He also recorded supplementary FIR No. 13/06 Police Station: Sarita Vihar State vs. Dhara Page No. 3 of 7 disclosure statement of accused which is Ex. PW6/B. Case property was deposited in malkhana and he recorded statement of witnesses. He also collected result of FSL, got permission of Addl. DCP and prepared charge sheet.
PW7 Suresh Kumar proved the superdarinama of motorcycle bearing no. DL3S AW 1304 vide superdarinama Ex. PW7/A. Vide separate statement recorded u/s 294 r/w Sec. 313(1)(i) Cr.P.C, accused admitted the genuineness of (1) FSL Report No. FSL2006/F-0366 dated 18.10.06 (2) Sanction u/s 39 Arms Act dated 31.10.06 given by Sh. Ranvir Singh, the then Addl. DCP, South District, New Delhi as Ex. C1 & Ex C2 respectively.
4. The statement of the accused was recorded u/s 313 Cr.P.C., whereby all the incriminating evidence available on record were put to him. He denied the prosecution case in its entirety and stated that he was innocent and had been falsely and wrongly implicated in this case.
5. Learned APP for the State and learned counsel for accused heard at length. The entire judicial record carefully perused.
Appreciation of Evidence
6. The scrutiny of testimonies of police witnesses and Rukka Ex. PW2/D provides that on 13.01.2006 at about 04:10 pm at T-point, Madanpur Khadar, Mathura Road, New Delhi, accused was found in possession of a countrymade pistol / desi katta with live cartridge. PW2 & PW3 did not depose whether public persons were requested to join investigation / proceedings. It is observed that accused were apprehended at T point, Madanpur Khadar which is a public place frequent by innumerous people. As such, presence of public persons at the spot FIR No. 13/06 Police Station: Sarita Vihar State vs. Dhara Page No. 4 of 7 cannot be and has not been denied by the prosecution.
In the circumstances deposed by IO, Court is of the opinion that the public persons present at / around the place of incident could have been easily joined in the proceedings of the present matter. The IO had ample time to make those independent persons understand the nature of proceedings and their role as a witness. The IO, however, failed to act prudently and join those independent public persons as witness to the proceedings of the present matter.
It is required to be understood that the recovery, arrest and search before an independent witness imparts authenticity and creditworthiness to the proceedings carried out by the police authorities. It also strengthens the prosecution case against the accused. Moreover, it acts as a safeguard against the arbitrary conduct or high handedness, if any, of the police officials. The absence of such a safeguard in the form of a public witness is to seen with suspicion.
In the absence of any independent witness having been joined in the investigation, despite both the IOs having sufficient time to make efforts for the same, false implication of the accused by the local police in the present case cannot be ruled out.
The aforesaid observation of the Court is fortified by following observations in case titled Roop Chand vs. State of Haryana, 1999 (1)C.L.R 69, by Hon'ble High Court of Punjab & Haryana:
"...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 he witnesses from the public had refused to to join the investigation, the Investigating Officer must have proceeded against them FIR No. 13/06 Police Station: Sarita Vihar State vs. Dhara Page No. 5 of 7 under the relevant provisions 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..."
Similar opinion was expressed by Hon'ble Delhi High Court in case titled Anoop Joshi vs. State 1992 (2) C. C. Cases 314 (HC).
7. The above stated lapse on the part of police officials and particularly the IO assumes significance on account of another grave contradiction apparent in sketch and seizure memo Ex. PW2/A and B respectively. Both the said documents bear FIR number. Careful scrutiny of both these documents also provide that FIR number has been written by the same person who prepared these documents. It is an admitted case of the prosecution that the said documents were prepared by the 1st IO before sending Constable Ct. Bhoop Singh with Rukka for registration of FIR. If the 1st IO did not insert the FIR number in these documents, then the presumption is that the 2nd IO might have inserted the FIR number in the said documents.
However, perusal of examination in chief / cross examination of PW6 shows that he did nothing with the sketch and seizure memo of desi katta and live cartridge prepared by the 1st IO. It raises doubt that the entire paper work was done by the police officials at the Police Station itself. It further strengthens the doubt of false implication of the accused.
This also raises doubt about the recovery of the said desi katta and live cartridge from the present accused and strengthens the possibility of planting of knife upon the accused.
8. The prosecution has failed to prove the presence of patrolling police officials at the spot by bringing on record any DD entry showing their departure from the police station. Such a deficiency which basically is nothing but the FIR No. 13/06 Police Station: Sarita Vihar State vs. Dhara Page No. 6 of 7 violation of Rule 22.49 Punjab Police Rules is adverse to the prosecution version.
The handing over of the seal by IO to the constable Bhoop Singh after use has also not been proved by preparation of any memo. The seal was never deposited in police Malkhana or no document for handing over back the seal to the IO has also not been proved.
Prosecution also failed to explain why investigation of the present case was marked to ASI Kishan Singh, Special Staff and not to any official of PS Sarita Vihar. Since the FIR was registered at PS Sarita Vihar, it was incumbent upon SHO, PS Sarita Vihar to mark the investigation to any IO of his own police station. However, the FIR was handed over to Ct. Bhoop Singh who took it back to spot. Prosecution did not explain who marked the remaining investigation to ASI Kishan Singh, indicating a technical flaw in the series of events putforth by police in the chargesheet.
9. The above discussed inconsistencies, in the considered opinion of the Court, are sufficient enough to raise a doubt on the veracity of the entire prosecution case against the accused and extend the benefit of doubt to the accused. Accordingly, accused Dhara is acquitted of the charged offence punishable u/s 25/54/59 Arms Act.
Dictated & announced in the open Court on 30.09.2015 (ARVIND BANSAL) Metropolitan Magistrate(South-East)-05 Saket Courts, New Delhi FIR No. 13/06 Police Station: Sarita Vihar State vs. Dhara Page No. 7 of 7