Delhi District Court
State vs . Nishant & Ors. on 17 September, 2018
IN THE COURT OF SH. GAGANDEEP JINDAL: MM09:
SOUTHEAST DISTRICT: SAKET COURTS: NEW DELHI
FIR No.405/15
U/s 25 (1B) (a) Arms Act
PS Defence Colony
State Vs. Nishant & Ors.
Date of Institution of Case : 14.11.2017
Judgment Reserved for : 12.09.2018
Date of Judgment : 17.09.2018
JUDGMENT:
(a) CIS Number : 5954/17 (b) The date of commission of offence : 08.10.2015 (c) The name of complainant : SI Shiv Dev Singh No.D4401.
(c) The name, parentage of accused : 1. Nishant Sharma @ Bidi S/o late Sh. Vishnu Dutt, R/o House No.L436/7, Sangam Vihar, New Delhi;
: 2. Aditya S/o Sh. Prem Pal Yadav R/o F3, 278B, Sangam Vihar, New Delhi.
: 3. Inderjeet S/o Sh. Netra Pal R/o House No.KII, 1088 Sangam Vihar, New Delhi;
: 4. Gajender S/o Sh. Maan Singh R/o L593, Gali No.8, Sangam Vihar, New Delhi.
(e) The offence complained of : 25 (1B) (a) Arms Act
(f) The plea of accused persons : Not guilty
State Vs. Nishant & Ors. FIR No.405/15; PS: Defence Colony Page No.1 of 10
(g) The final order : 17.09.2018
(h) The date of such order : 17.09.2018
Brief statement of the reasons for the decision:
1. The allegations against the accused persons are that on 08.10.2015 at about 2:20 AM, in front of D105, Defence Colony, New Delhi, during the picket checking duty, one car bearing registration number HR26BU6366 was stopped. The four persons were sitting on the car. During their cursory search, one pistol alongwith two live cartridges were recovered from the possession of accused Nishant Sharma, one buttondar knife having blade length 11.5 CM and breadth 2.7 CM from the possession of accused Inderjeet, one buttondar knife having blade length 11 CM and breadth 2.3 CM from the possession of accused Gajender Singh and two live cartridges were found from the possession of accused Aditya Yadav. Hence, accused persons committed an offence U/s 25 (1) (B) Arms Act.
2. After completing the formalities, investigation was carried out by PS Defence Colony and a charge sheet was filed against the accused persons. The charge was framed against accused Nishant and Aditya u/s 25(1B) (a) Arms Act and against accused Inderjeet and Gajender u/s 25(1B) (b) Arms Act to which they pleaded not guilty and claimed trial.
3. In order to prove its case, prosecution has examined nine witnesses.
4. PW1 HC Jai Kumar deposed that in the intervening night of 7/8.12.2015 , he alongwith SI Shiv Dev, HC Hari Singh, HC Pakheru Lal, Ct. Jitender were on general picket duty in front of D105, Defence Colony, New Delhi. At about 2:00 AM, they signaled one car bearing registration number HR26BU6366 make Hyundai Santro to stop. Driver stopped the car and tried to fled away from the car. He was apprehended State Vs. Nishant & Ors. FIR No.405/15; PS: Defence Colony Page No.2 of 10 by PW1 and one pistol was recovered from the left dub of his pant. During the investigation, his name was disclosed as Nishant Sharma. On checking of pistol, two live cartridges were found loaded in his magazine. The person sitting beside the driver seat was apprehended by HC Hari Singh from whom one buttondar knife was recovered from his right dub of the pant. During the investigation, his name was disclosed as Inderjeet. The two other persons sitting at the back side of seat were apprehended by HC Jitender and Ct. Pakheru Lal. During the investigation, their name was disclosed as Gajender and Aditya. One buttondar got recovered from the right dub of pant of accused Gajender and two live cartridges were recovered from pant of accused Aditya.
Thereafter, SI Shiv Dev Singh prepared sketch Ex.PW1/A of the pistol and two live cartridges recovered from the possession of accused Nishant Sharma and seized the same in pullanda which was sealed with seal of 'SDS'. The said seizure memo is Ex.PW1/B. SI Shiv Dev Singh prepared the rukka and handed over the same to PW1 for registration of FIR. PW1 went to the PS for registration of FIR and came back with SI Sushil Sanwaria alongwith copy of FIR. SI Shiv Dev Singh handed over the recovered weapons, documents and custody of accused persons to SI Sushil Sanwaria. Accused Nishant Sharma was arrested vide arrest memo Ex.PW1/C and personal search memo Ex.PW1/D.
5. PW2 Ct. Jitender deposed in the similar lines as of PW1. He also deposed that SI Shiv Dev Singh prepared sketch Ex.PW2/A of buttondar knife recovered from the possession of accused Gajender and seized the same in pullanda which was sealed with seal of 'SDS'. The said seizure memo is Ex.PW2/B. HC Jai Kumar came back at the spot alongwith SI Sushil Sanwaria and copy of FIR. SI Shiv Dev Singh handed over the recovered weapons, documents and custody of accused persons to SI Sushil Sanwaria. Accused Gajender was arrested vide arrest memo Ex.PW2/E and personal search memo Ex.PW2/D. SI Sushil Sanwaria seized the car bearing registration State Vs. Nishant & Ors. FIR No.405/15; PS: Defence Colony Page No.3 of 10 number HR26BU6366 vide seizure memo Ex.PW2/C.
6. PW3 ASI Pakheru Lal deposed in the similar lines as of PW1. He also deposed that SI Shiv Dev Singh prepared sketch Ex.PW3/A of two live cartridges recovered from the possession of accused Aditya and seized the same in pullanda which was sealed with seal of 'SDS'. The said seizure memo is Ex.PW3/B. HC Jai Kumar came back at the spot alongwith SI Sushil Sanwaria and copy of FIR. SI Shiv Dev Singh handed over the recovered weapons, documents and custody of accused persons to SI Sushil Sanwaria. Accused Aditya was arrested vide arrest memo Ex.PW3/C and personal search memo Ex.PW3/D.
7. PW4 HC Bali Ram deposed that the case property of the present case was deposited in Malkhana, PS Defence colony vide entry number 1324 made in register which is Ex.PW4/A.
8. PW5 Sh. Netra Pal is the registered owner of car bearing registration number HR26BU6366 and deposed that he got released the said vehicle on superdari vide superdarinma Ex.PW5/A.
9. PW6 ASI Hari Sing deposed in the similar lines as of PW1. He also deposed that SI Shiv Dev Singh prepared sketch Ex.PW6/A of buttondar knife recovered from the possession of accused Inderjeet and seized the same in pullanda which was sealed with seal of 'SDS'. The said seizure memo is Ex.PW6/B. HC Jai Kumar came back at the spot alongwith SI Sushil Sanwaria and copy of FIR. SI Shiv Dev Singh handed over the recovered weapons, documents and custody of accused persons to SI Sushil Sanwaria. Accused Inderjeet was arrested vide arrest memo Ex.PW6/C and personal search memo Ex.PW6/D.
10. PW7 Ct. Mahipal deposited the case property in FSL Rohini vide RC Ex.PW7/A.
11. PW8 SI Shiv Dev Singh deposed that in the intervening night of 7/8.12.2015 , he alongwith Ct. Jai Kumar, HC Hari Singh, HC Pakheru Lal, Ct. Jitender were on State Vs. Nishant & Ors. FIR No.405/15; PS: Defence Colony Page No.4 of 10 general picket duty in front of D105, Defence Colony, New Delhi. At about 2:00 AM, they signaled one car bearing registration number HR26BU6366 make Hyundai Santro to stop. Driver stopped the car and person sitting beside the driver tried to fled away from the car. He was apprehended by Ct. Jai Kumar and one pistol was recovered from the left dub of his pant. During the investigation, his name was disclosed as Nishant Sharma. On checking of pistol, two live cartridges were found loaded in his magazine. The other three accused persons were over powered by him with the help of other police officials. One buttondar knife was recovered from accused Inderjeet, two live cartridges were recovered from the possession of accused Aditya and one buttondar knife was recovered from the possession of accused Gajender. He prepared the sketch Ex.PW1/A, Ex.PW2/A, Ex.PW3/A, Ex.PW6/A of all recovered weapons. He seized all the weapons vide seizure memos Ex.PW1/B, Ex.PW2/B, Ex.PW3/B, Ex.PW6/B and sealed them in four different pullandas with the seal of 'SDS'. He prepared tehrir Ex.PW8/A and handed over the same to Ct. Jai Kumar for registration of FIR. Ct. Jai Kumar went to the PS for registration of FIR and came back with SI Sushil Sanwaria alongwith copy of FIR. PW8 handed over the recovered weapons, documents and custody of accused persons to SI Sushil Sanwaria.
12. PW9 SI Sushil Sanwaria is the IO of the case. He deposed about the investigation conducted by him. He deposed that after registration of FIR, the investigation was marked to him. When he arrived at the spot, he met with SI Shiv Dev, HC Pakheru Lal, HC Hari Singh and Ct. Jitender alongwith four accused persons. SI Shiv Dev handed over the sketch, seizure memos, recovered weapons and custody of accused persons to him. He prepared site plan Ex.PW9/A at the instance of SI Shiv Shiv and seized the car bearing registration number HR26BU6366 vide seizure memo Ex.PW2/C. He arrested all the accused persons vide arrest memos Ex.PW1/C, Ex.PW2/E, Ex.PW3/C and Ex.PW6/C and personal search memos Ex.PW1/D, Ex.PW2/D, Ex.PW3/D and Ex.PW6/D. He sent the recovered weapons to State Vs. Nishant & Ors. FIR No.405/15; PS: Defence Colony Page No.5 of 10 FSL for expert opinion. He filed the chargesheet after concluding the investigation in the court.
13. Accused persons admitted the registration of FIR No.405/15, PS Defence Colony Ex.A1, certificate u/s 65B Indian Evidence Act Ex.A2, DD entry 52 B dated 07.10.2015 Ex.A3.
14. After the witnesses were examined, all the accused were examined u/s 313 Criminal Procedure Code, 1973 (for short "the Code") in which they denied the incriminating evidence against them and further stated that they were arrested from the house of accused Gajender and were falsely implicated in the present case.
15. They examined Trivender Singh as DW1, who deposed that on 07.10.2015, fourfive police officials came at his house and arrested all the accused persons on the pretext that the complaint has been lodged against them.
16. Sh. Pravesh Vyas, Ld. APP for State argued that the prosecution with the help of the witnesses examined in this case have proved the recovery of weapons from the possession of accused persons. DW1 is not reliable witness as he is brother of accused Gajender. All the accused did not lead any other evidence to disprove the case of the prosecution while the prosecution has proved its case beyond reasonable doubt.
17. Ld. Defence Counsel for accused persons argued that no public witness has been examined to prove the recovery of weapons from the accused persons. PW1 to PW3 deposed in contradictions to the story of prosecution. IO had arrested the accused persons at about 7:30 AM and obtained the signature of police officials who had left the spot at about 5:00 AM. There are major contradictions in the testimonies of PWs examined by the prosecution. Therefore, accused persons be acquitted in this case.
18. It is cardinal principle of criminal jurisprudence that an accused is presumed to be innocent and, therefore, the burden lies on the prosecution to prove the guilt of the accused beyond reasonable doubt. The prosecution is under a legal obligation to prove State Vs. Nishant & Ors. FIR No.405/15; PS: Defence Colony Page No.6 of 10 each and every ingredient of the offence beyond any doubt, unless otherwise so provided by any statute. This general burden never shifts and it always rests on the prosecution.
19. After going through the complete evidence and records of this case I am of the view that the accused persons deserve acquittal in this case on the following grounds.
20. Firstly, if the police personnel ie. SI Shiv Dev, HC Hari Singh, HC Pakheru Lal, Ct. Jitender, Ct. Jai Kumar, who have apprehended the accused persons with illegal weapons, were on picket duty in front of D105, Defence Colony New Delhi, prosecution should have brought the relevant records showing their duty roaster, arrival and departure and should have proved by documentary evidence that they were on duty and were present on D105, Defence Colony New Delhi.
21. It has been held in Rattan Lal Vs. State 1987 (2) Crimes 29 the Hon'ble Delhi High Court held that;
"wherein it has been observed that if the investigating agency deliberately ignores to comply with the provisions of the Act the Courts will have to approach their action with reservations. The matter has to be viewed with suspicion if the provisions of law are not strictly complied with and the least that can be said is that it is so done with an oblique motive. This failure to bring on record, the DD entries creates a reasonable doubt in the prosecution version and attributes oblique motive on the part of the prosecution."
22. The entry to this effect must exist in the Roznamancha but that has not been proved, raising an adverse presumption against the prosecution U/s 114 (g) of the Evidence Act that if the said Roznamancha had been produced it would have not shown their departure as all.
23. The second defence taken by the accused persons is that the public witness are not joined in the investigation. From the overall testimony of the witnesses, it appears that no effort, what to talk of a sincere/vague effort has been made to join the public persons in the investigation. All the witnesses examined by the prosecution are the police witnesses. Not even a single public witness has been examined by the State Vs. Nishant & Ors. FIR No.405/15; PS: Defence Colony Page No.7 of 10 prosecution nor joined in the investigation. No reason has been put forward by the prosecution witnesses that for what reason they are unable to gather support from public or independent witnesses to establish the guilt of the accused. Although, it can be said that it was a chance recovery but the incident had occurred in a residential area and therefore, it cannot be said that no public person would have been available at the spot. It was incumbent upon the prosecution to at least put forward the reasons for not doing so. The failure on the part of the police personnels goes to suggest that they were not interested in joining the public persons in the police proceedings. Failure on the part of the police officials to make sincere effort to join public witnesses for the proceedings when they may be available creates reasonable doubt in the prosecution story in view of the following case law. In the case of Anoop Joshi Vs. State 1992 (2) C.C. Cases 314 (HC), Hon'ble High Court of Delhi has observed as under;
" It is repeatedly laid down by this Court that 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 evident 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."
24. Similar view has been taken by the Hon'ble Punjab & Haryana High Court in case titled as "Roop Chand Vs. The State of Haryana 1999 (1) C.L.R.
25. In "Sadhu Singh Vs. State of Punjab" 1997 (3) Crime 55 the Punjab & Haryana High Court observed that:
"all the same, the prosecution must show a genuine attempt having been made to join a public witness or that they were not available. A stereotype statement of non availability will not be sufficient particularly when at the relevant time, it was not difficult to procure the service of public witness. This reflects adversely on the State Vs. Nishant & Ors. FIR No.405/15; PS: Defence Colony Page No.8 of 10 prosecution version".
26. In the present case also, since all the witnesses are police personnels and the necessary safeguards in the investigation has not been followed by the investigating officer, I am of the view that chances of false implication cannot be ruled out at the instance of the police.
27. Moreover, there are major contradictions in the testimonies of witnesses examined by the prosecution. It is the story of the prosecution that when police officials gave signaled the car bearing registration number HR26BU6366 to stop. Then the person sitting beside the driver seat tried to flee away who was apprehended by Ct. Jai Kumar and disclosed his name as Nishant Kumar. However, PW1 who apprehended accused Nishant, PW2 and PW3 have deposed that the driver seat tried to flee away who was apprehended by Ct. Jai Kumar and disclosed his name as Nishant Kumar. Thus, there is contradiction whether accused Nishant was the driver to the said car or he was sitting beside the driver.
28. PW1 deposed that he left the spot at about 3:30 3:45 AM and proceeded to PS Defence Colony for registration of FIR. He returned to the spot alongwith IO SI Sushil Sanwaria at about 4:00 - 4:15 AM. PW1 left the spot at about 5:00 AM. PW2 and PW6 also deposed that he left the spot at 5:00 AM. SI Shiv Dev deposed that PW1 left the spot at about 5:20 AM for registration of FIR and returned at the spot at about 6:307:00 AM. Whereas PW9/IO deposed that he reached at the spot at about 6:35 AM. Thereafter, he arrested the accused persons vide arrest memo Ex.PW1/C, Ex.PW2/E, PW3/C and PW6/C. The time of arrest is in between 7:30 AM to 8:15 AM and place of arrest is spot i.e. picket in front of D105, Defence Colony, as mentioned in the arrest memos. The arrest memo Ex.PW1/C bears the signature of PW1. The arrest memo Ex.PW2/E bears the signature of PW2. The arrest memo Ex.PW6/C bears the signature of PW6. If PW1, PW2 and PW6 had left the spot at about 5:00 State Vs. Nishant & Ors. FIR No.405/15; PS: Defence Colony Page No.9 of 10 AM then how they can sign on the arrest memos Ex.PW1/C, Ex.PW2/E, PW6/C in between 7:30 AM to 8:15 AM. As per the case of prosecution, the buttondar knife with black handle was recovered from the possession of accused Inderjeet whereas PW6 HC Hari Singh, who had apprehended accused Inderjeet deposed that buttondar knife with pink and green handle was recovered from the possession of accused Inderjeet.
29. The prosecution although, has tried to prove its case but there is still a reasonable doubt regarding the false implication of the accused in the hands of the police. The benefit always goes to the accused. On the basis of aforesaid discussions, it is held that the prosecution has failed to prove its case beyond reasonable doubt, hence accused Nishant Sharma and Aditya Yadav are acquitted for the offence U/s 25 (1B) (a) Arms Act and accused Gajender and Inderjeet are acquitted for the offence U/s 25 (1B) (b) Arms Act.
Digitally signed by GAGANDEEP GAGANDEEP JINDAL
ANNOUNCED AND SIGNED IN THE JINDAL Date:
2018.09.18
OPEN COURT ON 17TH OF SEPTEMBER 2018 10:56:29 +0530
(Gagandeep Jindal)
MM09/SED/ND/17.09.2018
State Vs. Nishant & Ors. FIR No.405/15; PS: Defence Colony Page No.10 of 10