Delhi District Court
State vs . Deepak & Another on 28 April, 2022
IN THE COURT OF MS. ARUSHI PARWAL, METROPOLITAN
MAGISTRATE (CENTRAL)02, TIS HAZARI COURTS, DELHI
CNR No. DLCT020000622005
Case No.: 287107/2016
FIR No.: 270/2004
U/S: 25 Arms Act
P.S.: Civil Lines
STATE VS. DEEPAK & ANOTHER
JUDGMENT
1. Sl. No. of the case : 287107/16
2. Date of institution of the case : 28.09.2005
3. Name of accused(s), parentage
and address : (1) Deepak (since deceased)
S/o Sh. Ram Phal
R/o 512, Gali No.4, Jeevan Park,
Libashpur, Delhi.
(2) Vikas (Vikash)
S/o Sh. Ram Phal
R/o 279, Gali No.5, Jeevan Park,
Libashpur, Delhi.
4. Offence complained of
or proved : 25 Arms Act
5. Date of commission of offence : 21.09.2004
6. Plea of accused : Both accused pleaded not guilty
7. Final order : Proceedings against accused Deepak
had already abated.
Accused Vikas is acquitted
8. Date of pronouncement : 28.04.2022
Digitally signed
ARUSHI by ARUSHI
PARWAL
PARWAL Date: 2022.04.28
16:45:26 +05'30'
Case No.: 287107/2016 1/13 State v. Deepak & Anr.
BRIEF REASONS FOR THE DECISION OF THE CASE
1. Briefly stated, the case of the prosecution is that on 21.09.2004, ASI Harbir Singh and Ct. Dilbagh had apprehended both accused Deepak and accused Vikas at the Monastery Market Gate at Ring Road, ISBT Fly Over on an information received by ASI Harbir. On reaching the Monastery Gate, both boys tried to escape and Ct. Dilbagh tried to overpower accused Deepak. During the same, he took out one country made kata and handed over the same to accused Vikas. Thereafter, accused Vikas was apprehended by ASI Harbir and the said kata was recovered from left side of his pant waist. Accordingly, the present FIR was lodged against both the accused under Section 25 of Arms Act.
2. After investigation, chargesheet was filed against both the accused persons and cognizance of offence under Section 25 Arms Act was taken by court vide order dated 28.09.2005. After appearance of both the accused, copies of documents were supplied to them. Thereafter, charge was framed against them for offence punishable under Section 25 of the Arms Act on 03.05.2007, to which they pleaded not guilty and claimed trial.
3. During P.E., the prosecution examined ten witnesses in support of its case. PW1 WSI Vidya, PS Seema Puri deposed that on 21.09.2004, she was posted as duty officer at PS Civil Lines from 9:00a.m to 5:00p.m and proved the registration of case vide FIR No.270/2004 Ex.PW1/A (OSR) and endorsement on rukka Ex.PW1/B. This witness was not cross examined on behalf of Digitally signed ARUSHI by ARUSHI PARWAL PARWAL Date: 2022.04.28 16:45:53 +05'30' Case No.: 287107/2016 2/13 State v. Deepak & Anr. accused persons despite opportunity given.
4. PW2 ASI Harbir Singh deposed that on 21.09.2004, he was posted as ASI at police control room and on that day, he was on duty as I/C PCR Van Sugar51. He further deposed that he was on duty from 8:00a.m to 8:00p.m and their position was under ISBT Flyover, Ring Road. He further deposed that on that day, at about 9:55 a.m, a person came towards their PCR Van and he informed him that two boys were present at the Monestary Market Gate and were having a rifle with them. He further deposed that the said person disclosed his name as Babu Ram and he immediately left. Thereafter, he along with his staff went towards Monestary Market Gate and they saw two boys present there whose description was given by Babu Ram. He further deposed that when they reached at Monestary Market Gate at about 10:05 a.m, both the boys on seeing the police van tried to escape but they both were overpowered by him and Ct. Dilbagh and their names were revealed later on as Vikas s/o Deen Dayal and Deepak s/o Ram Phal. He further deposed that when Ct. Dilbagh was trying to overpower the accused Deepak, he took out one country made katta and he handed over the same to accused Vikas. He further deposed that when the accused Vikas was apprehended by him the said katta was recovered from left side of his waist of his pants. He further deposed that he accordingly, gave the information through wireless set to the control room regarding the recovery of weapon and apprehending of accused. Thereafter, SI Ajit and Ct. Devender reached at the spot and he handed over recovered weapon and both the accused to SI Ajit. He further deposed that SI Ajit prepared the sketch of the katta and also measured the same and upon measuring total length of the katta was 25 cm out of which barrel was of 16.7 cm and handle was of 7.5 cm. The sketch Digitally signed ARUSHI by ARUSHI PARWAL PARWAL Date: 2022.04.28 16:46:12 +05'30' Case No.: 287107/2016 3/13 State v. Deepak & Anr. of the knife is Ex.PW2/A. Thereafter, katta was convereted into cloth pulanda and sealed with the seal of IGS and same was taken in possession vide seizure memo Ex.PW2/B, bearing his signature at point A. He further deposed that SI Ajit recorded his detailed statement Ex.PW2/C and prepared a rukka which was handed over to Ct. Devender. He further deposed that SI Ajit Kumar prepared the site plan on his instance and after registration of the case, he arrested both the accused vide arrest memos Ex.PW2/D and Ex.PW2/E and their personal search was conducted vide concerned memos Ex.PW2/F and Ex PW2/G, both bearing his signatures at point A. He correctly identified the case property during examination which is Ex.P1. This witness was not cross examined on behalf of accused persons despite opportunity given.
5. PW3 Ct. Dilbagh deposed that on 21.09.2004, he was posted as Constable at PCR North Zone with vehicle no. DL 1CF 4952 (Gypsy) and on that day he alongwith ASI Harbir Singh and driver HC Jai Singh were on the duty on Sugar 51 from 8:00a.m to 8:00p.m. Thereafter, he deposed about the happenings of the day. The said deposition was the same as PW2. Ld. APP for the State was permitted to ask few leading questions from the witness and the witness stated that the pullanda was sealed with the seal of IGS and seal after use was handed over to Ct. Devender. The witness correctly identified the case prorperty which is Ex. P1. During cross examination by the Ld. Counsel for accused persons, he stated that ASI Harbir Singh did not tell the person name Ram Babu the consequences of nondisclosing of his whereabouts. The witness further stated that he does not know whether ASI Harbir Singh has shared the information of weapon to any senior officer / Head quarter. The witness denied the suggestion that ASI Harbir Singh knowingly has not shared the information Digitally signed ARUSHI by ARUSHI PARWAL PARWAL Date: 2022.04.28 16:46:36 +05'30' Case No.: 287107/2016 4/13 State v. Deepak & Anr. with any senior official / PHQ. The witness further stated that he apprehended them on the basis of the description given by ASI Harbir Singh and there were a few public persons when he apprehended the accused. The witness further stated that he had apprehended and kept the custody of the accused till 15 minutes, whereafter IO came at the spot. IO reached at the spot at about 10:20 a.m and he stayed with the spot and reached at their location / point. The witness further stated that the local police made the search of the accused person during his presence at the spot.
6. PW4 ASI Devender deposed that on 21.09.2004, he was posted as Constable at PS Civil Lines and on that day ASI Inderjeet received DD No. 12 A and he accompanied him in the investigation of the present case. He further stated that he alongwith IO went to the spot and meanwhile SI Ajit Jha also reached at the spot who prepared the rukka on the basis of the statement of ASI Harvir Singh. He further stated that he prepared pullanda of recovered katta, sketch of the same and handed over to him the rukka for registration of FIR. He further stated that he went to the PS Civil Line and after registration of FIR came back at the spot and handed over copy of FIR and original rukka to SI Ajit Jha and IO prepared the seizure memo of desi katta which is already Ex.PW2/B bearing his signature at point B. He further stated that IO had sealed the case property with the seal of IGS and seal after the use was handed over to him. He further stated that IO recorded the disclosure statement of accused Deepak which is Ex.PW4/A and disclosure statement of accused Vikas Ex.PW4/B. He further stated that IO had also filled CFSL Form on the spot and thereafter they went to the PS where case property was deposited in Malkhana. The witness correctly identified the case property which is already Ex. P1. During Digitally signed ARUSHI by ARUSHI PARWAL PARWAL Date: 2022.04.28 16:47:07 +05'30' Case No.: 287107/2016 5/13 State v. Deepak & Anr. cross examination, the witness stated that the case property was not recovered in his presence and volunteered that it was already recovered when he reached at the spot. The witness further stated that they reached at the spot at around 12 Noon or 1:00 p.m and that the spot was is a busy public way. The witness further stated that IO had asked some public persons to join the investigation, however, he did not issue any notice to them to this effect.
7. PW5 Inspector Ajeet Kumar deposed that on 21.09.2004, he was posted at PS Civil Lines as Sub Inspector and he was on emergency duty. He further deposed that he received a PCR call vide DD No. 17 A at about 10:22 a.m regarding apprehension of two persons with desi katta by PCR and thereafter he reached at Monestry Gate, Ring Road near ISBT where the PCR Staff namely ASI Harbir Singh, Ct. Dilbagh Singh, HC Jai Singh were present with the two persons. He further deposed that ASI Harbir Singh produced two persons namely Vikas (correctly identified) and Deepak (already deceased) to him along with one desi katta. He further deposed that he recorded the statement of ASI Harbir Singh and thereafter, he prepared the sketch of desi katta on a white paper which is already Ex. PW2/A. He further deposed that desi katta was kept in white pullanda and same was seized with the seal of IGS vide seizure memo which is already Ex. PW2/B and handed over to Ct. Devender and he filled CFSL form. He further deposed that he prepared the tehreer of the present case which is Ex.PW5/A and he sent Ct. Devender to PS for registration of FIR and in the meanwhile, he recorded the statement of witnesses under section 161 Cr.P.C. and prepared the site plan of the spot which is Ex.PW5/ B. He further deposed that after that both the accused namely Vikas and Deepak were arrested vide arrest memo Ex.PW2/D and Digitally signed ARUSHI by ARUSHI PARWAL PARWAL Date: 2022.04.28 16:47:28 +05'30' Case No.: 287107/2016 6/13 State v. Deepak & Anr. Ex.PW2/E and their personal search was conducted vide memos Ex.PW2/F and Ex.PW2/G. He further deposed that disclosure statement of accused Deepak and Vikas were prepared vide Ex. PW4/A and Ex. PW4/B. He further deposed that after returning back to PS, case property was deposited into the Malkhana. He further deposed that on the next day i.e. 22.09.2014 both the accused persons were produced in the Court and sent to J/C and exhibits of the case property were deposited in FSL, Rohini. The witness correctly identified the case property Ex. P1. During cross examination, the witness stated that he received the call at about 10:30 a.m. He reached on the spot after 1015 minute. He admitted that the place of incident (near monestary to ISBT) is a public area. He stated that he made efforts to join public person in the investigation, however, no one joined and left the spot without disclosing their names and addresses. No notice was given to any public person. The witness stated that the case property i.e. desi katta was not recovered in his presence. The witness denied the suggestion that accused has been falsely implicated in the present case or that the case property has been planted on the accused.
8. PW6 Retired HC Jai Singh deposed that on 21.09.2004, he was posted at Police Control Room, Model Town, North and on that day his duty was on I/C PCR Van / Sugar 51 as driver and his duty hours was 8:00 a.m to 8:00 p.m. He further deposed about the happenings of the day similarly as PW2. The witness correctly identified the accused Vikas. Ld. APP for the State was permitted to crossexamine the witness and the witness stated that riffle was recovered from the pant of the accused Vikas and that ASI Harbir had messaged at control room regarding apprehension of two boys. During cross examination, the witness stated that place of incident is a crowded place and Digitally signed ARUSHI by ARUSHI PARWAL PARWAL 16:47:52 Date: 2022.04.28 +05'30' Case No.: 287107/2016 7/13 State v. Deepak & Anr. that the does not know whether they have asked any public person or not as he was sitting in the PCR an. He further stated that they were not apprehended in his presence and the recovery of riffle was not made in his presence. He denied that the weapon was planted by the police official and same was not recovered from the accused.
9. PW7 Inspector Sanjeev Kumar proved the sanction under Section 39 Arms Act from the competent authority vide Ex.PW7/A and forwarding letter of FSL for obtaining result Ex.PW7/B. During cross examination, the witness stated that on 15.07.2005, he moved an application for obtaining the sanction for prosecution against the accused and he received the sanction order on 19.07.2005. He further stated that he has not placed the application in the chargesheet and volunteered that it is placed in the police file.
10. PW8 SI Rajbir deposed that he was ordered to produce the DD No.12 A and 17 A dated 21.09.2004 but same had been destroyed by the order of Additional DCP North District vide order no. PPR11.31 to 11.36 and standing order no. 64/07 vide diary no. 291013/HAR/North District dated 27.06.2019 which is Ex.PW8/A. During cross examination, the witness stated that he did not have any personal knowledge regarding the abovesaid DD Numbers.
11. PW9 Sh. K. C. Varshney, Deputy DirectorcumIncharge, Region FSL, Chanakyapuri, New Delhi proved his detailed FSL report Ex.PW9/A which bears his signature at point A. During cross examination, the witness stated that IO did not send any finger print for examination.
12. PW10 ASI Ram Niwas deposed that on 22.11.2004 , he was posted as HC at ARUSHI Digitally signed by ARUSHI PARWA PARWAL Date: 2022.04.28 L 16:48:16 +05'30' Case No.: 287107/2016 8/13 State v. Deepak & Anr. PS Civil Lines and on that day, he deposited one sealed parcel sealed with the seal of IJS pertaining to the present case along with RC No. 186/21 dated 22.11.2004 and same is Ex.PW10/A. This witness was not cross examined on behalf of accused persons despite opportunity given.
13. During course of trial (at P.E. stage), accused Deepak had expired and proceedings qua him were abated vide order dated 09.02.2017.
14. After crossexamination of PW10, PE was closed as per the submissions of Ld. APP on behalf of the State. Thereafter, statement of accused Vikas was recorded under Section 313 Cr.P.C. on 04.10.2019, wherein the accused denied the evidence led against him and stated that he was falsely implicated in the present case by police officials as he was coming to bus stand to take bus from Monastery.
15. The accused did not lead any DE and matter was fixed for final arguments. Final arguments have been heard on behalf of both the parties. Record and evidence has been perused.
16. Primary allegations against the accused are that a countrymade katta, which qualifies as a firearm and was in working condition, was recovered from the possession of the accused. Hence, offence under Section 25 Arms Act was committed by him. Concerned FSL report has been filed along with the chargesheet and the sanction under Section 39 of the Act was duly taken.
17. At the outset, it is trite to mention that after having gone through the entire evidence brought on record, this court is of the considered opinion that the prosecution has failed to prove its case, against the accused, beyond reasonable Digitally signed ARUSHI by ARUSHI PARWAL PARWAL Date: 2022.04.28 16:48:44 +05'30' Case No.: 287107/2016 9/13 State v. Deepak & Anr. doubt. The case of the prosecution is riddled with major lacunae and the material discrepancies -
a. Firstly, as per the case of the prosecution, information about the accused persons having a desi katta was given by one Babu Ram at around 9.55 am to Incharge of PCR Van. Who was this informer, how he came to know about the alleged possession of katta by the accused persons and how he happened to be present at the spot has not been explained by the prosecution. The said person was neither stated to be a secret informer nor a witness for the prosecution. Further, it has nowhere been stated that the said information was immediately conveyed at the concerned police station by the officials at PCR van, who allegedly received the aforementioned information. As per rules, immediate intimation regarding commission of offence/possession of weapon by any person should have been sent to SHO concerned or any higher official. The same was not done in the present case. As per their own version, it appears that the officials at the PCR van directly went to the spot without any directions.
b. As per Punjab Police Rules, 1934, all entries of all arrivals and departures of police officials should be recorded in the concerned register. The above said provision has not been complied with by prosecution. The relevant entries regarding the arrival and departure of the police officials have not been proved on record. As per testimony of PW8, the concerned DD Registers had already been destroyed. Hence, presence of police officials for conducting investigation at the spot on Digitally signed ARUSHI by ARUSHI PARWAL PARWAL Date: 2022.04.28 16:49:05 +05'30' Case No.: 287107/2016 10/13 State v. Deepak & Anr. the date of incident has not been proved beyond reasonable doubt.
c. It appears that both the recovery witnesses PW2 and PW3 had not offered their own personal search to the accused before carrying out the personal search of the accused. This is a material lapse which vitiates the whole recovery proceedings.
d. Further, admittedly, there is no independent public witness to recovery despite the spot being a busy public place.
It has been held by the Hon'ble Supreme Court of India in 'Hem Raj and Others v. State of Haryana' [(2005) 10 SCC 614] -
"8. The fact that no independent witness though available, was examined and not even an explanation was sought to be given for not examining such witness is a serious infirmity in the prosecution case having regard to the indisputable facts of this case. ...
9. Nonexamination of independent witness by itself may not give rise to adverse inference against the prosecution. However, when the evidence of the alleged eyewitnesses raise serious doubts on the point of their presence at the time of actual occurrence, the unexplained omission to examine the independent witness, would assume significance. ..."
The IO has admitted that there were public persons at the time and place of incident. Yet, no person was joined as a witness for recovery and no Digitally signed ARUSHI by ARUSHI PARWAL PARWAL Date: 2022.04.28 16:49:26 +05'30' Case No.: 287107/2016 11/13 State v. Deepak & Anr.
notice was given to any person to join the investigation. It appears that no efforts were made to join public witnesses and no reasonable explanation has been given for the same. It would have been a different case where sincere efforts had been made by the IO to join witnesses for alleged recovery of weapon from the accused; but, where no such attempt was made, it casts a serious doubt on the whole recovery proceedings.
e. Furthermore, as per the testimony of the IO (PW5), all investigation seems to have been done even before the FIR was brought from PS upon registration. Yet, FIR number has been mentioned on all relevant documents and memos and IO has not explained the same. The testimonies of various police witnesses is also conflicting on this aspect and reliance cannot be placed upon the same.
f. No investigation has been done by the IO for the source of weapon.
18. In view of above observations and findings, in my considered opinion, the prosecution has failed to prove its case against the accused beyond reasonable doubt. Hence, accused Vikas (Vikash) is acquitted of offence under Section 25 of Arms Act.
Previous bail bonds of both the accused stand cancelled. His surety stands discharged. Endorsement on documents of surety, if any, be cancelled. Original documents of surety, if any, be returned against due acknowledgement.
Digitally signedARUSHI by ARUSHI PARWAL PARWAL Date: 2022.04.28 16:49:49 +05'30' Case No.: 287107/2016 12/13 State v. Deepak & Anr. Bonds under Section 437 A Cr.P.C. had been furnished by the accused. The same are hereby accepted for a period of six months from today.
Ordered accordingly. File be consigned to Record Room as per rules.
Digitally signedARUSHI by ARUSHI PARWAL Announced in open court PARWAL Date: 2022.04.28 16:50:15 +05'30' on 28.04.2022 (ARUSHI PARWAL) Metropolitan Magistrate (C02) Central, Tis Hazari Court, Delhi.
Case No.: 287107/2016 13/13 State v. Deepak & Anr.