Delhi District Court
State vs . Himanshu on 2 March, 2020
IN THE COURT OF ADDITIONAL CHIEF METROPOLITAN MAGISTRATEII,
PATIALA HOUSE COURTS, NEW DELHI.
Presided by: Sudhir Kumar Sirohi
Cr Case No. 16129/2018
STATE Vs. HIMANSHU
FIR No. 175 /2018
PS Crime BranchNew Delhi
JUDGMENT
1. Case number of the case. : 16129/2018
2. The date of commission : 28.06.2018
of the offence.
3. Name of the complainant. : SI Ravinder Teotia
4. Name, parentage & address : Himanshu
of accused s/o. Sh. Mukesh @ Gurjjar
r/o. P4/186, Mangolpuri,
Delhi.
5. Offence complained : u/s. 25/54/59 Arms Act
6. The plea of the accused and : Pleaded not guilty
his examination.
7. The final order. : Acquitted
8. The date of such order. : 02.03.2020
9. Date of institution. : 21.08.2018
10. Date on which the
judgment has been reserved. : 24.02.2020
State Vs. Himanshu Page 1/14
FIR No. 175/2018: PS Crime Branch,New Delhi
BRIEF FACTS/ STATEMENTS OF THE REASONS FOR THE DECISION.
1. Brief facts of the case are that on 28.06.2018 at about 09:40 p.m. at Office of StarsI, Crime Branch, Sector8, R. K. Puram, New Delhi, accused Himanshu was found in possession of one loaded desi katta of .315 bore and one live cartridge without any licence or permission as the same were recovered at instance of accused from car bearing no. DL9CL8601. On completion of investigation, chargesheet was filed in the court by the Investigating Officer (hereinafter called IO) under section 25/54/59 Arms Act.
2. After filing of the chargesheet, accused was summoned and documents were supplied. Thereafter, the charge was framed for offence under section 25/54/59 or Arms Act by Ld. Predecessor of this court vide order dated 16.11.2018.
3. To prove its case prosecution examined 08 witnesses in all, which are as under :
4. PW1 SI Ravinder Teotia deposed that on 28.06.2018, he was posted at office of Crime Branch, R. K. Puram, New Delhi as Sub Inspector (SI) and on that day at about 08:00 a.m., one secret informer came at their office and gave information to Ct. Mohit that one Himanshu son of Mukesh @ Gujjar and his nephew Vikas, who were involved in Mangol Puri murder case and wanted in that case, would meet their relative at Village Arania, District State Vs. Himanshu Page 2/14 FIR No. 175/2018: PS Crime Branch,New Delhi Bulandshahar, UP and if raid would be conducted, they might be apprehended. He further deposed that Ct.Mohit got secret informer introduced with him and after verifying the said secret information, he further shared this information to Insp. Arvind Kumar, who further shared this information to senior officers who directed him to constitute a raiding team. He further deposed that after that, he constituted a raiding team consisting himself (PW1), ASI Gulvir, ASI Vinshnu, ASI Prithvi Raj, Ct. Narender Khokar, HC Ravinder Malik, HC Mohd. Talim, HC Atender, HC Gaurav, Ct. Mohit and other staff etc. along with secret informer and PW1 briefed the raiding team about the information and they left the office at about 09:10 a.m. by two private vehicles. He further deposed that after that, they reached at Village Arania, District Bulandshahar,UP. There he asked some villagers to join the raiding team but noone agreed and left the spot without disclosing their names and addresses by showing their personal difficulties. He further deposed that thereafter, they reached at the house of Narpat Singh from where they arrested accused Himanshu and Vikas u/s. 41.1 Cr.PC as both the accused persons were wanted in case FIR No. 458/17, u/s. 307/34 IPC of PS Mangol Puri and FIR No. 820/17, u/s. 307/34 IPC & 25/27/54/59 Arms Act of PS Mangol Puri. He further deposed that one vehicle make Ritz was also recovered from the village at the instance of accused persons and thereafter, they returned back to Delhi and reached at office at about 09:35 p.m. PW1 further deposed that during interrogation, accused Himanshu disclosed that he had hidden one loaded desi State Vs. Himanshu Page 3/14 FIR No. 175/2018: PS Crime Branch,New Delhi katta to save him under driver seat of Ritz car and thereafter, on search they recovered loaded desi katta and one live cartridge and Ritz car bearing no. DL9CL8601 at the instance of accused Himanshu and Vikas, from Village Arania, Bulandshahar, UP. PW 1 further deposed that he prepared the sketch of the recovered katta and cartridges Ex.PW1/A, measuring total length 26.8 cm, length of butt 10.8 cm and length of barrel was 14 cm. He further deposed that the recovered katta and cartridges were sealed with the seal of RS and PW1 filled up the FSL form and Katta and cartridges were seized vide memo Ex.PW1/B. PW1 further deposed that thereafter, he prepared the rukka Ex.PW1/C and handed over to Ct.Mohit for registration of FIR, who got registered the FIR and as per the instructions of senior officers, the further investigation was marked to ASI Prithvi Raj, so, he handed over the sealed pullanda, accused, Ritz car and documents to ASI Prithvi Raj. PW1 also identified case property i.e. Katta Ex.P1, live cartridge Ex.P2 and empty cartridge Ex.P3.
5. PW2 Mr. Suresh Chander deposed that he purchased the vehicle make Ritz bearing registration no. DL9CL8601 from Vipul Motor, Gurgaon on 02.05.2016 and he did not get transferred said car in his name and further sold the said vehicle to one Ram Lal on 03.06.2016. He further deposed that on 23.07.2018, ASI Prithvi Raj met him at his home and inquired about the abovesaid Ritz car and he told him as stated above and ASI Prithvi Raj recorded his statement at his home.
State Vs. Himanshu Page 4/14FIR No. 175/2018: PS Crime Branch,New Delhi
6. PW3 Mr. Sunil Dwedi deposed that since 2006, he is working as DGM in Vipul Motors, Plot No. 17, Old Delhi Road, Near Atul Kataria Chowk, Gurgaon, Haryana and that his company is dealing in the business of sell and purchase of old cars. He further deposed that on 20.04.2016, his company had purchased a Ritz car beaing No. DL9CL8601 from Jitender s/o. Sh. Dalbir Singh r/o. 430, Brahaman Mohalla, Rajokari Gaon, New Delhi and on 02.05.2016, the said car was sold to Suresh Chand s/o. Sh. Hoshiyar Singh r/o. 829/6, Pole No. K221,Near Vardhman Kanta, Mundka, Delhi.
7. PW4 Mr. Jitender deposed that in the year 2012, he purchased a new Ritz car bearing registration no. DL9CL8601 and on 20.04.2016, he exchanged the said car to Vipul Motors Pvt. Ltd. at Plot No. 17, Old Delhi Road, Opposite Air Force Station, with a new car. He further deposed that after exchanging the said car, he did not know anything about the said Ritz car bearing registration no. DL9CL8601.
8. PW5 ASI Rajbir Singh deposed that on 28.06.2018, he was working as Duty Officer at PS Crime Branch, Delhi and on that day, he registered the present FIR Ex.PW5/1, bearing his signature at point A and after registration of the case, he made endorsement Ex.PW5/2 on the tehrir, whereon present case was registered. He further deposed that he had also issued certificate u/s. 65B of Evidence Act Ex.PW5/3, bearing his signature at point A. State Vs. Himanshu Page 5/14 FIR No. 175/2018: PS Crime Branch,New Delhi
9. PW6 Ct. Sunil Kumar deposed that on 04.07.2018, he was posted at PS R. K. Puram as Constable and on that day, he took one cloth pullanda of the case property from Maalkhana, Crime Branch, Nehru Place, sealed with the seal of RS vide RC No. 363/21 dated 04.07.2018 and deposited the same at CFSL, Lodhi Road, New Delhi through Road Certificate and the copy of said Road Certificate is Mark A bearing my signature at point A. He further deposed that till the time the said pullanda remained with him, it was not tampered and thereafter, receiving of the said pullanda was handed over to MHC(M) HC Jag Narain by him.
10. PW7 Ct.Mohit Kumar deposed that on 28.06.2018, he was posted at PS Star1 Sector 8, R. K. Puram, Crime Branch, Delhi and on that day, he received an information from a secret informer that the son of Mukesh Gujar, namely, Himanshu Gujar and his bhanja Vikas would come at the house of Narpat Singh, Village Arania, Bulandsehar. He further deposed that thereafter, he produced the secret informer in front of SI Ravinder Kumar and Insp. Arvind Kumar and after discussion of the senior officers, Insp. Arvind Kumar, constituted a raiding team. He further deposed that thereafter they reached Village Arania, Bulandsehar in two private vehicles, one of them was Tavera and another was Santro. He further deposed that they reached at the PS Arania and informed the local police regarding the same person and reached at the house of Narpat Singh alongwith the local police and IO asked to public persons to join the investigation but they refused to State Vs. Himanshu Page 6/14 FIR No. 175/2018: PS Crime Branch,New Delhi join the investigation citing their personal reasons. He further deposed that thereafter, he alongwith secret informer and SI Ravinder went to house of Narpat Singh where one person was sleeping in the veranda and the secret informer indicated towards the persons and identified him as Himanshu and thereafter, secret informer left the spot and SI Ravinder called the raiding team at the spot and SI Ravinder arrested the accused Himanshu with the help of raiding team vide Arrest Memo Ex. PW7/A. He further deposed that IO conducted personal search of accused Himanshu and prepared Personal Search Memo Ex. PW7/B and SI Ravinder interrogated the accused Himanshu regarding the another person Vikas. PW7 further deposed that during inquiry, they came to know that another person Vikas was sleeping inside of the house and SI Ravinder also arrested Vikas with the help of raiding team vide Arrest Memo Ex. PW7/C and IO also conducted personal search of accused Vikas and prepared Personal Search Memo Ex. PW7/D. He further deposed that during inquiry, Himanshu informed them that his (accused) Ritz car was parked at the block premises of village Arania and Vikas also stated about one bike make CBZ black colour, which was seized by SI Ravinder vide Seizure Memo Ex. PW7/E. He further deposed that thereafter, they alongwith both accused and the said Ritz car and bike CBZ came to Office of Crime Branch, R. K. Puram, New Delhi and in the night, SI Ravinder Tewatia interrogated accused Himanshu regarding weapon in the case FIR No. 458/17 PS Mangol Puri State Vs. Himanshu Page 7/14 FIR No. 175/2018: PS Crime Branch,New Delhi and FIR No. 820/17, PS Mangol Puri and during interrogation he (accused) admitted that he had put the weapon under the carpet of driving seat of aforesaid Ritz car. He further deposed that thereafter, they searched the aforesaid car and found one loaded desi katta .315 and another live cartridge, which were seized by SI Ravinder vide Seizure Memo Ex.PW1/B and SI Ravinder also prepared sketch of the aforesaid katta already Ex.PW1/A. He further deposed that SI Ravinder prepared a tehrir and handed over the same to the witness (PW7) for registration of FIR, who took the same and went to the PS for registration of FIR and that after registration of FIR, he came back at office of Crime Branch, R. K. Puram, New Delhi and handed over copy of FIR and original tehrir to ASI Prithviraj Singh. He further deposed that he had previously also informed to ASI Prithviraj Singh regarding the registration of FIR. He further deposed that IO formally arrested the accused Himanshu vide Arrest Memo Ex. PW7/F. He further deposed that IO conducted personal search of accused vide Personal Search Memo Ex. PW7/G and recorded disclosure statement of accused Himanshu vide Memo Ex. PW7/H and IO also seized Maruti Ritz card bearing no. DL 9CL 8601 vide Seizure Memo Ex.PW7/I.
11. PW8 ASI Prithvi Raj deposed that on 28.06.2018, he was posted at Star1 Crime Branch as ASI and on that day, Ct. Mohit was informed by secret informer regarding Himanshu Gujjar and Vikas who were wanted in case FIR no. 458/17 and 820/17 PS Mangol State Vs. Himanshu Page 8/14 FIR No. 175/2018: PS Crime Branch,New Delhi Puri u/s 307/34 and 25/27 Arms Act. He further deposed that as per the direction of Insp. Arvind Kumar, SI Ravinder Tevatia constituted a raiding party comprising himself alongwith SI Ravinder Tevatiya, ASI Gulbir, ASI Vishnu Bhagwan, HC Ravinder Khokhar, HC Ravinder Malik, HC Talim, HC Atender. HC Gaurav and Ct. Mohit. He further deposed that at about 09.30 a.m. they left the office crime branch for Village Arniya Bulandsher by two private vehicle i.e. Tata Tavera and Santro Car and reached at the Vill Arniya Bulandsher UP where SI Ravinder Tevatia asked some villagers to join the raiding team but none had agreed to join the same and left the spot without disclosing their name by showing their personal difficulties. He further deposed that thereafter they reached at the house Narpat Singh, where they arrested accused Himanshu and Vikas and one vehicle make Ritz was also recovered from the village at the instance of accused person. He further deposed that thereafter they returned back to Delhi and reached at the office at about 09.3010.00 a.m. He further deposed that SI Ravinder Tevatia interrogated both accused person at Crime Branch office and during their interrogation Himanshu disclosed that he had hidden one loaded desi katta to save him under driver seat of Ritz car, thereafter, they searched the car and recovered one loaded desi katta and one live cartridge. He further deposed that thereafter, SI Ravinder Tevatia prepared the sketch of recovered katta and cartridge vide memo already Ex.PW1/A. He further deposed that thereafter, he prepared the rukka already Ex.PW1/C and handed over the same to Ct. Mohit for registration State Vs. Himanshu Page 9/14 FIR No. 175/2018: PS Crime Branch,New Delhi of FIR and thereafter, as per the instructions of senior officer further investigation was marked to him. He further deposed that after some time Ct. Mohit came at the spot and handed over the same rukka and copy of FIR and thereafter, he (witness) prepared site plan at the instance of SI Ravinder Tevatia Ex.PW8/A. He further deposed that he seized the maruti Ritz car bearing registration no. DL9CL 8601 vide memo Ex.PW7/I and recorded the disclosure statement of accused Himanshu Ex.PW7/H and arrested accused Himanshu vide arrest memo Ex.PW7/F and also conducted personal search of accused Himanshu vide personal search memo already Ex.PW7/G. He further deposed that thereafter, he filled up the information sheet (parcha 12) of accused Himanshu Ex.PW8/B. He further deposed that he verified the Ritz car from concerned authority and found the said vehicle was in the name of Jitender s/o Dalbir Singh, the same is Mark PW8/C. He further deposed that he recorded the statement of witnesses u/s 161 CrPC. He further deposed that he took the permission in pursuance of Section 39 of Arms Act from Deputy commissioner Police, Dr. Ram Gopal Naik and also collected FSL Report from CFSL, Lodhi Road, New Delhi and placed the same on record. Witness identified the photograph of the abovesaid Ritz Car Ex.P3 (colly) and the certificate u/s 65B of Indian Evidence Act regarding the abovesaid photograph Ex.PW8/D. He also identified the case property i.e. one desi katta and one live cartridge and empty cartridge already exhibited as Ex.P1, Ex.P2 and Ex.P3.
State Vs. Himanshu Page 10/14FIR No. 175/2018: PS Crime Branch,New Delhi
12. Accused admitted sanction u/s. 39 Arms Act and FSL report of arm and live cartridges vide statement u/s. 294 Cr.PC.
13. Statement of the accused u/s. 313 Cr.PC was recorded in which accused denied all the incriminating evidence against him and did not opt to lead defence evidence.
14. Final arguments heard.
DISCUSSION :
15. Ld. APP for the State argued that by the evidence of the prosecution witnesses, it has been proved that the loaded desi katta with one live cartridge was recovered from car bearing no. DL9CL8601 at the instance of the accused and the accused was in possession of the said katta and car, therefore, the accused be convicted of the offence.
16. Ld. defence counsel on the another hand submitted that the prosecution has failed to prove its case and the seizure memo of the desi katta is before the date of FIR. Moreover, the prosecution has not established from where the vehicle/ Ritz car was seized and where the seizure memo of the Ritz car was prepared. Ld. counsel for the accused further argued that the vehicle is in the name of one Jitender and is not in the name of the accused, therefore, the prosecution has failed to link the possession of the vehicle with the accused and the owner of the vehicle has not deposed that he sold the vehicle to the accused or his father.
17. PW1 has deposed that one Ritz vehicle was also recovered from State Vs. Himanshu Page 11/14 FIR No. 175/2018: PS Crime Branch,New Delhi the Village Arania, District Bulandshahar, UP at the instance of accused and then they returned back to Delhi and thereafter accused Himanshu disclosed that he had one desi katta under the seat of his car thereupon on search of his car, one loaded desi katta and one live cartridge was recovered from his car bearing no. DL9CL8601.
18. PW7 Ct. Mohit, who was with PW1 at the time of raid at Village Arania, District Bulandshahar, UP has deposed that only the motorcycle CBZ black colour was seized vide memo Ex.PW7/3 and thereafter, they alongwith the accused and the said Ritz car and bike came to office of the Crime Branch and thereafter, he deposed in the line of PW1 and stated that thereafter, the said car was seized vide seizure memo Ex.PW7/1.
19. It is pertinent to mention that the accused was arrested u/s. 41.1 Cr.PC by DD No. 3, Crime Branch, New Delhi vide arrest memo Ex.PW7/A. In personal search memo of the accused Ex.PW7/B, the recovery of key of the vehicle bearing no. DL9CL8601 has not been mentioned and the prosecution has not brought any theory on record to state why the abovesaid vehicle was not seized in UP and only the motorcycle was seized and if the accused was not in possession of the key of the car then how the car came to Delhi with the accused on the same day.
20. In seizure memo of the Ritz car Ex.PW7/1 it has not been mentioned from where the vehicle was seized, whether the same was seized in Delhi or in UP. It is further pertinent to mention that State Vs. Himanshu Page 12/14 FIR No. 175/2018: PS Crime Branch,New Delhi the seizure memo of desi katta and live cartridge Ex.PW1/B is dated 19.06.2018 but the FIR No. 175/18 was lodged on 28.06.2018, therefore, this shows that the seizure memo was prepared prior in time i.e. before lodging of the present FIR and the said fact put question on the credibility of all the police officials, who deposed in this matter and it is well settled law that in the absence of independent witness, testimony of police officials to be scrutinized carefully. PW4 Mr. Jitender has deposed that he sold the car to Vipul Motors, Gurgaon on 20.04.2016. PW3 Mr. Sunil Dwivedi from Vipul Motors deposed that Vipul Motors sold the car to PW2 Mr. Suresh Chand on 02.05.2016 and Mr. Suresh Chand deposed that he sold the car to one Mr. RamLal on 03.06.2016, therefore, this shows that a car sold thrice but none of the document has been executed with respect to transfer of ownership and even the Form No. 29 or 30 or affidavit has not been placed on record by the prosecution to show that the vehicle was sold to Ram Lal.
21. Prosecution has also failed to establish any link with respect to the fact that the vehicle is not in the name of accused then how the accused got possession of the vehicle. Neither the said Ram Lal has been called as witness by the prosecution in this matter.
22. No handing memo of seal handed over after sealing the case property by SI Ravinder has been placed on record to shows that he was not in possession of the seal till deposition of the case property in the Malkhana. Nor any DD entry has been placed by State Vs. Himanshu Page 13/14 FIR No. 175/2018: PS Crime Branch,New Delhi the prosecution on record by PW2 or by PW7 with respect to the fact that they apprehended the accused from UP. It is ironical that the police officials moved out of Delhi and arrested the accused outside Delhi with vehicles, but there is no record of police officials to show that they actually moved out of Delhi nor any witness from the local police station has been cited by the prosecution in this matter. Moreover, as per PW1 the accused was arrested from the house of one Mr. Narpat Singh and even the said Mr.Narpat Singh has not been cited as a prosecution witness nor the prosecution has submitted the reason for which Mr.Narpat Singh has not been cited as a witness neither the prosecution has brought on record the relationship between accused and the said Narpat Singh.
FINAL VERDICT :
23. In view of the discussion above, the prosecution has failed to prove its case beyond reasonable doubt, therefore, the accused is acquitted of the offence u/s. 25/54/59 Arms Act. Case property i.e. desi katta and cartridges are confiscated to State.
24. Separate ordersheet has been passed for compliance of section 437A Cr.PC.
25. File be consigned to Record Room after due compliance as per rules.
Announced in the Open Court
on this 02nd Day of March 2020 (SUDHIR KUMAR SIROHI)
ACMMII/PHC/ND
Digitally signed by SUDHIR
SUDHIR KUMAR SIROHI
KUMAR SIROHI Date: 2020.03.07 14:29:09
+0530
State Vs. Himanshu Page 14/14
FIR No. 175/2018: PS Crime Branch,New Delhi