Delhi District Court
State vs . Pradeep @ Dhora on 19 September, 2022
IN THE COURT OF MS. ARCHANA BENIWAL
CHIEF METROPOLITAN MAGISTRATE:
SOUTH WEST DISTRICT, DWARKA COURT,
NEW DELHI
FIR No. 159/2013
PS Crime Branch
State Vs. Pradeep @ Dhora
U/s 25 Arms Act
JUDGMENT
CIS No. : 429370/2016
Date of institution of the case : 04.07.2014
Date of commission of offence : 18.09.2013
Name of the complainant : ASI Narender Singh
No. 1144/Crime, ARC/Crime Branch,
New Delhi.
Name of accused and address : Pradeep @ Dhora
S/o Sh. Beda Singh
R/o Village Berhana, Distt. Jhajjar,
Haryana.
Offence complained of : U/s 25 Arms Act
Plea of the accused : Pleaded not guilty.
Final order : Acquittal
Date on which judgment reserved : 29.08.2022
Date of judgment : 19.09.2022
BRIEF STATEMENT OF THE FACTS FOR DECISION:
1. The brief facts of the case of the prosecution are that on 18.09.2013, at about 05:20 PM, at DTC Bus Stand, BHD Nagar, Jharoda Road, FIR No. 159/2013, PS Crime Branch State Vs. Pradeep @ Dhora Page No. 1 of 11 Najafgarh, New Delhi, accused Pradeep @ Dhola was found carrying one pistol alongwith two live cartridges without having any valid Arms License for possessing the same, in contravention to the notification issued by Govt. of Delhi. A case was registered against him.
2. IO conducted the investigation. After completion of the investigation, charge-sheet was filed against accused. Cognizance of offence was taken and accused was summoned to face trial. The copy of chargesheet was supplied under Section 207 Cr.P.C.
3. After hearing Ld. APP for the State as well as the accused, a formal charge for offence u/s 25 Arms Act was framed against accused to which he pleaded not guilty and claimed trial.
4. The prosecution, in support of its case, has examined seven witnesses.
5. PW-1 SI Narender has deposed before the court that on 18.09.2013, HC Bijender received the information through the secret informer in the office regarding one accused who was wanted in an attempt to murder case at PS Najafgarh and who told him that this person always keeps illegal weapons with him and he would come at Baba Hari Dass Nagar DTC Bus Stand to meet his friend. If raid was conducted, he could be apprehended. HC Bijender further shared this information in the presence of secret informer with Inspector Kuldeep. PW-1 was also present in the room. Inspector Kuldeep further passed this information to ACP Hoshiyar Singh who instructed him to proceed further and Inspector Kuldeep instructed him to form a raiding party. PW-1 lodged DD No. 23, at about 03:00 PM vide FIR No. 159/2013, PS Crime Branch State Vs. Pradeep @ Dhora Page No. 2 of 11 Ex.PW1/1. PW-1 formed a raiding party including himself, HC Bijender, HC Dinesh, Ct. Kirpal and Secret informer. Thereafter, he recorded DD No. 24 vide Ex. PW1/2 regarding the departure to Baba Hari Dass Nagar, Najafgarh. They left in a private vehicle bearing registration no. HR-13G-4410 make of Ritz, the same was driven by HC Dinesh. The vehicle was stopped at Najafgarh before the DTC stand. He asked four to five public persons to join the proceedings but none agreed and left without disclosing their names and particulars. They reached at the spot and he briefed the members of raiding party who took their positions accordingly. At about 05:20 PM, the accused got down from a Savari Tempo at DTC bus stand, Baba Hari Dass Nagar. The secret informer gave the signal and pointed towards the accused. Thereafter, he and HC Bijender overpowered the accused. On his cursory search, PW-1 found one pistol in his right hand side pocket of his track pants. After recovery of pistol from the possession of the accused, he was interrogated and he revealed his name as Pradeep @ Dhora S/o Beda Singh. Thereafter, he checked the pistol and took out the magazine from it and from the magazine, two live cartridges were taken out. PW-1 prepared sketch of the pistol, magazine and two live cartridges vide Ex. PW1/1. Form FSL was filled at the spot. Thereafter, pistol alongwith magazine and live cartridges in separate pulanda were seized vide seizure memo Ex.PW1/2. Seal after use was handed over to HC Dinesh. Thereafter, he prepared tehrir for registration of case vide Ex. PW1/3 and present case was got registered through HC Dinesh. After registration of the case, further investigation was assigned to SI Manish, who visited at the spot, to whom he handed over the accused alongwith case properties, seizure memos of case properties, sketch, FSL Form, who during the course of investigation, prepared site plan at his instance vide Ex.PW1/4. He correctly identified pistol alongwith magazine vide Ex.P1 and both cartridges vide Ex.P2 before the court. He was duly cross-examined by Ld. FIR No. 159/2013, PS Crime Branch State Vs. Pradeep @ Dhora Page No. 3 of 11 Defence counsel.
6. PW-2 HC Bijender deposed on the same lines as PW-1. He proved disclosure statement of accused vide Ex. PW2/1, arrest memo of accused vide Ex.PW2/2 and personal search memo of accused conducted vide Ex.PW2/3. He was cross-examined by Ld. Defence counsel.
7. PW-3 N.B. Bardhan, Principal Scienfic Officer has deposed that on 08.10.2013, the exhibits were received in the CFSL CBI Lodhi Road and the same was marked to him. On 25.11.2013, the same was examined by him. He proved his report vide Ex. PW3/1. He was not cross-examined by Ld. Defence counsel despite opportunity.
8. PW-4 ASI Ranbir Singh has deposed that on 08.10.2013, on the instructions of IO, he had taken two sealed pullandas from MHC(M) alongwith FSL form and forwarding letter and deposited the same in CFSL Lodhi Road vide RC no. 324/21. After depositing the same, he had handed over the receipt to MHC(M). He further deposed that till the time case property remained with him, no tempering or alteration was done with it. He was cross-examined by Ld. Defence counsel.
9. PW-5 ASI Dinesh Kumar deposed on the same lines as PW-1. He was cross-examined by Ld. Defence counsel.
10. PW-6 SI Munish Kumar has deposed that on 18.09.2013, when the present FIR was marked to him, he reached at the spot i.e. Near DCT Bus Stand, Baba Haridas Nagar, Jhadoda road, where police staff namely ASI Narender Singh, HC Bijender, Ct. Kripal were present after having FIR No. 159/2013, PS Crime Branch State Vs. Pradeep @ Dhora Page No. 4 of 11 apprehended accused Pradeep @ Dhola. HC Dinesh also came at the spot and handed over to him the copy of FIR and rukka. Thereafter, ASI Narender also handed over to him two sealed pullanda having the seal of 'NS' and form-29, seizure memo and sketch. Thereafter, he interrogated the accused and recorded his disclosure statement vide Ex. PW2/1. Thereafter, he prepared site plan vide Ex. PW2/4 and arrested accused vide arrest memo Ex.PW2/2 and conducted personal search of accused vide personal search memo Ex.PW2/3. Accused was sent to police station and case property was deposited in malkhana. Thereafter, he sent the case property from malkhana to CFSL, Lodhi Road through a police official and also collected the report vide Ex. PW3/1. He also filed an application before DCP for granting sanction u/s 39 Arms Act vide Ex. A2. He also collected the DD entries vide Ex. PW1/1 and Ex.PW1/2. During investigation, he had recorded the statement of witnesses and after the completion of investigation, he had prepared the charge-sheet and filed the same before the court. He was duly cross-examined by Ld. Defence counsel.
11. PW-7 ASI Kamal Ram has proved relevant entry in register no. 19 vide Ex. PW7/A. He was not cross-examined by Ld. Defence counsel despite opportunity.
12. Vide separate statement recorded u/s 294 Cr.P.C, accused had admitted the documents i.e. FIR No. 159/13 vide Ex. A1 and sanction u/s 39 of Arms Act vide Ex. A2. Hence, the above documents were ordered to be read in evidence without its formal proof and the examination of DO/HC Balvinder Singh was dispensed with.
13. No other witness was examined by the prosecution and hence, PE FIR No. 159/2013, PS Crime Branch State Vs. Pradeep @ Dhora Page No. 5 of 11 was closed.
14. Thereafter, statement u/s 313 Cr.P.C. of the accused was recorded, wherein all the incriminating material that appeared in evidence against him, were put to him to which he stated that he is innocent and has been falsely implicated in this case. Accused opted not to lead defence evidence.
15. Final arguments advanced by Ld. APP for State and ld. counsel for accused heard. Case file perused carefully.
16. After hearing ld. APP for the state and ld. counsel for the accused and having gone through the case file carefully and meticulously, it is observed by the court that it is the case of prosecution that on the fateful day, accused was found in possession of one pistol and two live cartridges without any permit or license. The court is of the view that to prove the charge against the accused, the prosecution is required to prove the allegations beyond reasonable doubt.
17. The relevant portion of Arms Act is reproduced as under:
Section 25: Punishment for certain offences:-
(1) whoever-
(a) Manufactures, sells, transfers, converts, repairs, tests or proves, or exposes or offers for sale or transfer, or has in his possession for sale, transfer, conversion, repair, test or proof, any arms or ammunition in contravention of section 5; or
(b) Shortens the barrel of a firearm or converts an imitation firearm into a firearm in contravention of section 6; or 2[***]
(c) bring into, or takes out of, India, any arms or ammunition of any class or description in contravention of section 11, shall be punishable with imprisonment for a term which not be less than three years but which may extend to seven years and shall also be liable to fine.
FIR No. 159/2013, PS Crime Branch State Vs. Pradeep @ Dhora Page No. 6 of 11
18. As per the prosecution case, the seizure memo of the recovered weapon and cartridges vide Ex. PW1/2 and their sketch vide Ex.PW1/1 were prepared before the preparation of rukka. However, the said documents contain the number of the FIR which shows that either the FIR number was inserted later on or they were prepared before the time they have been shown to be prepared. Furthermore, the weapon and cartridges have been seized by the IO on 18.09.2013 but as per the FSL report, the same have been deposited in the FSL on 08.10.2013. Thus, the chances of tampering with the case property cannot be ruled out and the delay in sending the articles for examination is fatal for the prosecution. While holding so, I am relying upon judgment of Apex Court in Deshraj @ Dass Vs. State 83 (2000) DLT 262, wherein Apex Court while relying upon the judgments of Hon'ble Supreme Court in Baldev Singh vs. State of Punjab 1991 CAR 81 and Santa Singh vs. State of Punjab AIR 1956 SC 526, had held that the delay of 12 days in sending the samples to the CFSL proved fatal to the prosecution.
19. In the rukka Ex.PW1/3 as well as in the testimony of all the witnesses, who are police officials it has been stated that police officials did ask some public persons to join the proceedings however they refused and left without disclosing their details. However, it is clear from the testimony of all the police witnesses that no sincere efforts were made to join independent public witnesses in the recovery/investigation of the present case. PW1 has admitted during his cross-examination that he did not ask any public witness to join the raiding party, despite the fact that the road where the accused was apprehended was a busy road. He did not even ask any resident of the area or the shopkeeper to join the raiding party. He also admitted that he did not note the details of any of the public persons present at the spot nor gave any notice to them, on their refusal to join the proceedings. Thus, the prosecution has FIR No. 159/2013, PS Crime Branch State Vs. Pradeep @ Dhora Page No. 7 of 11 failed to prove that any serious effort was made by any of the police officials of the raiding party including the IO to join public witnesses in the proceedings. It is a well settled proposition that non-joining of public witness shrouds doubt over the fairness of the investigation by police.
20. In case law reported as "Anoop Joshi Vs. State" 1992 (2) C.C. Cases 314 (HC), High Court of Delhi had observed as under:-
"18. It is repeatedly laid down by this Court 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 evidence that no such sincere efforts have been made, particularly when we find that shops were open and one or two shop-keepers 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 their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC".
21. In a case law reported as "Roop Chand Vs. The State of Haryana"
1999 (1) C.L.R. 69, the Punjab & Haryana High Court held as under:-
"3. I have heard the learned counsel for the parties and gone through the evidence with their help. The recovery of illicit liquor was effected from the possession of the petitioner during noon time and it is in the evidence of the prosecution witnesses that some witnesses from the public were available and they were asked to join the investigation. The explanation furnished by the prosecution is that the independent witnesses were asked to join the investigation but they refused to to so on the ground that their joining will result into enmity between them and the petitioner".
"4. 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 FIR No. 159/2013, PS Crime Branch State Vs. Pradeep @ Dhora Page No. 8 of 11 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 the witnesses from the public had refused to join the investigation, the Investigating Officer must have proceeded against them under the relevant provision 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".
22. Non joining of public witnesses despite availability casts a doubt on the fairness of the investigation. Reliance is placed on paragraph 6 of the judgment in Pawan Kumar v. The Delhi Administration, 1989 Cri.L.J. 127, wherein the Hon'ble High Court of Delhi had observed as under:
" ... According to Jagbir Singh, he did not join any public witness in the case while according to Kalam Singh, no public person was present there. It hardly stands to reason that at a place like a bus stop near Subhas Bazar, there would be no person present at a crucial time like 07.30 p.m. when there is a lot of rush of commuters for boarding the buses to their respective destinations. 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 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 a case of 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 I.O. should have made an earnest effort to join the independent witnesses. No attempt in this direction appears to have been made FIR No. 159/2013, PS Crime Branch State Vs. Pradeep @ Dhora Page No. 9 of 11 and this, by itself, is a circumstance throwing doubt on the arrest or the recovery of the knife from the person of the accused."
23. This Court is, however, conscious that the prosecution case cannot be thrown out or doubted on the sole ground of non-joining of public witnesses as public witnesses keep themselves away from the Court unless it is inevitable, as has been held in Appabhai and another v. State of Gujarat, AIR 1988 SC 696. However, in the present case, it is not only the absence of public witnesses which raises a doubt on the prosecution but there are other circumstances too, as discussed hereinafter, which raise suspicion over the prosecution version.
24. PW-1 could not even disclosed the registration number of the tempo from which the accused had got down just before he was apprehended. Further, the seal remained with a junior police official only, namely HC Dinesh and it has not been proved that the seal was handed over to any other independent public person and therefore, the possibility of case property being tempered with cannot be ruled out. Reference may be made to the judgment of Subeg Singh v. State of Haryana, reported as 1992(3) RCR (Criminal) 596. In the judgment titled as Karambir v. State of Delhi reported as 1997 JCC 520 it has been held that absence of proof that the specimen impression of the seal was deposited with MHCM(M) along with case property results in miscarriage of justice and is fatal to the prosecution.
25. It is trite in criminal jurisprudence that the prosecution is under an obligation to prove its case against the accused beyond reasonable doubt. The standard of proof to be adopted in criminal cases is not merely of preponderance of probabilities but proof beyond reasonable doubt on the basis of cogent, convincing and reliable evidence. It is also well settled that in case of doubt, the benefit must necessarily be allowed to the accused. FIR No. 159/2013, PS Crime Branch State Vs. Pradeep @ Dhora Page No. 10 of 11
26. Thus, in view of the foregoing analysis, this Court is of the considered opinion that the benefit of doubt ought to be granted to the accused, who is entitled to be exonerated of the charges against him in the present case. The accused Pradeep @ Dhora S/o Sh. Beda Singh is hereby acquitted of the offence punishable under Section 25 of Arms Act.
27. Accused be set at liberty. Digitally signed by ARCHANA Pronounced in the open court on this ARCHANA BENIWAL 19th September 2022 BENIWAL Date:
2022.09.22 16:15:10 +0530 (ARCHANA BENIWAL) Chief Metropolitan Magistrate South West District, Dwarka Courts New Delhi FIR No. 159/2013, PS Crime Branch State Vs. Pradeep @ Dhora Page No. 11 of 11