Delhi District Court
State vs Neeraj Behwal & Ors on 24 February, 2021
IN THE COURT OF SH. VIKRAM, ACMM, SOUTH-WEST -
DISTRICT, DWARKA COURTS, DELHI.
FIR No. : 475/2015
P.S. : Dwarka Sector 23
U/s : 25 Arms Act
STATE VS Neeraj Behwal & Ors
JUDGMENT:
a) Registration No. of case : 433655/16
b) Name & address of the : ASI Mahabir Singh complainant
c) Name & address of :1. Neeraj Behwal @ Choti accused S/o Sh. Satbir Singh R/o H. No. 47, Surakhpur Road, Gopal Nagar, Najafgarh, New Delhi.
2. Rajesh Gahlot @ Virjesh @ Chota S/o Sh. Krishan Gahlot R/o Village Mitraon, Shiv Mandir Wali Gali, Najafgarh, New Delhi.
3. Rajesh Shokanda @ Daga S/o Sh. Bhagwan Singh R/o Village & Post Office Dichaon Kalan, Najafgarh, New Delhi.
4. Bittu @ Sandeep S/o Sh. Baljeet Singh R/o Village & Post Office Dichaon Kalan, Najafgarh, New Delhi.
d) Date of Commission of : 23.11.2015 offence State vs Neeraj Behwal & Ors. FIR No. 475/15 Page 1 of 17
e) Offence complained off : 25 Arms Act
f) Plea of the accused : Pleaded not guilty
g) Final Order : Acquitted
h) Date of such order : 04.02.2021 Date of Institution :19.11.2016 Final Arguments heard on :22.02.2021 Judgment Pronounced on :24.02.2021 BRIEF STATEMENT OF REASONS FOR DECISION: -
1. Briefly stated, the case of the prosecution is that on 23.11.2015 at about 10:50 am at Goyla Dairy before red light on road going from Ganda Nala to Dwarka accused persons were found in possession of firearms and ammunition, in a Scorpio car, in contravention of notification of Delhi Administration without any valid permit or licence.
2. On the basis of investigation carried out by the police challan was filed in the court and copies of the same were supplied to the accused to persons to their satisfaction.
3. On the basis of the challan, charges for committing the offence punishable under Section 25 Arms Act were separately framed against accused persons on 09.03.2017 State vs Neeraj Behwal & Ors. FIR No. 475/15 Page 2 of 17 to which accused persons pleaded not guilty and claimed trial.
4. In support of its case prosecution examined eleven witnesses.
PW-1 is ASI Nirmala who proved FIR as Ex PW 1/A, Rukka as Ex PW 1/B and certificate under Section 65 B of Indian Evidence Act as PW 1/C. PW-2 is Ct. Praveen who proved DD no. 7 as Ex PW 2/A. PW-3 is HC Rameshwar /MHC(M). He stated that on 23.11.2015, ASI Bijender Singh had deposited the Scorpio car bearing registration no. HR 26 CB 0377 vide entry at serial no. 2161 in register no. 19. He further deposed that vide same entry number ASI Mahavir, Special Staff had deposited the arms and ammunition, sealed with the seal of MSG, in malkhana. He further deposed that on 30.11.2015, Ct. Dharmender received the case property vide RC no. 138/21/15 for depositing the same in FSL Rohini. He further deposed that on 19.09.2016, Ct. Vijay had deposited the case property sealed with the seal of FSL VRA Delhi in malkhana against entry in register no.
19. He proved the entry at serial no. 2161 in register no. 19 as Ex PW 3/A and road certificate as Ex PW 3/B. State vs Neeraj Behwal & Ors. FIR No. 475/15 Page 3 of 17 PW-4 Bhupesh, is owner/superdar of vehicle registration no. HR 26 CB 0377. He got his vehicle released on superdari and identified the same through photographs Ex P-1 (colly).
PW-5 HC Manoj Kumar Yadav, PW-6 Ct. Dharmender, PW-7 ASI Pawan Kumar, PW-9 ASI Mahabir Singh and PW- 11 ASI Shri Om are members of raiding team.
They all deposed that on 23.11.2015 they were posted at Special Staff, South West District and upon receipt of secret information that four persons would be coming from Goyla Dairy side to Pochanpur, Dwarka, one raiding party was constituted of which they alongwith HC Jaiveer and Ct. Ashwani were members. At about 08:30 am, they reached at the spot in two vehicles of which one is government gypsy and another is private Santro car. Public persons were asked to join the investigation but they refused and left the spot without disclosing their names and addresses. Gypsy was parked on the side of the road whereas Santro car was stationed near nala and HC Pawan and HC Shriom were in the vehicles.
At about 10:50, at the instance of secret informer, ASI Mahabir signaled the Scorpio car bearing registration no. HR 26 CB 0377 to stop which was being followed by raiding members in abovesaid private Santro Car. Ct. Pradeep parked the government gypsy in front of State vs Neeraj Behwal & Ors. FIR No. 475/15 Page 4 of 17 abovesaid Scorpio. ASI Mahabir informed the driver of Scorpio car about his identity by showing his ID card and conducted the personal search of the accused/driver of the Scorpio whose name was revealed to be Neeraj @ Choti. HC Shriom searched the person sitting next to the driver whose name was revealed to be Sandeep. There were two more persons on the back seat of the Scorpio car of which one was searched by HC Pawan whose name was revealed to be Rajesh @ Daga and another was searched by HC Manoj Kumar Tyagi whose name was revealed to be Vrijesh@Chhota@Rajesh. Upon their search one pistol and three live cartridges from the possession of accused Neeraj @ Chhoti, one pistol loaded with five live cartridges were from accused Rajesh @ Daga, one pistol and three live cartridges were from accused Sandeep @ Bittu and one katta loaded with one live cartridge and Rs. 600 from the possession of accused Vrijesh@Chhota@Rajesh were recovered. Sketches of arms and ammunitions were prepared vide Ex PW 6/A, Ex PW 9/A, Ex PW 7/A and Ex PW 5/A and seized vide seizure memos Ex PW 6/B, Ex PW 9/B, Ex PW 7/B and Ex PW 5/B. Case property was then sealed with the seal of MSG.
Personal search of accused persons namely Neeraj @ Chooti, Sandeep @ Bittu, Rajesh @ Daga and Viresh @ Chhota @ Rajesh were conducted vide personal search memos Ex PW 6/D, PW 10/D, 7/E and PW 5/D respectively. They were arrested vide arrest memos Ex PW 6/C, Ex PW State vs Neeraj Behwal & Ors. FIR No. 475/15 Page 5 of 17 10/A, Ex PW 7/C and Ex PW 5/C respectively. Their disclosure statements were recorded vide Ex PW 6/E, Ex PW 10/E, Ex PW 7/D and Ex PW 5/E respectively. ASI Mahabir Singh prepared tehrir Ex PW 9/C and got the FIR registered through ASI Pawan Kumar. ASI Mahavir Singh also proved DD no. 2 dated 23.11.2015 as Ex PW 9/E and DD no. 4 dated 23.11.2015 as Ex PW 9/F. They correctly identified the case property as well as accused persons in Court.
PW-8 is Sh. Manoj C. Addl. DCP, South West District. He proved the sanction under Section 39 Arms Act as Ex PW 8/A. PW-10 is ASI Bijender. He is the 2nd IO of the case. He deposed that he prepared site plan Ex PW 9/D at the instance of ASI Mahavir and recorded supplementary statement of ASI Mahavir. He interrogated and arrested the accused persons. He prepared personal search of all accused persons and seized the Scorpio car vide seizure memo Ex PW 10/C. He deposed that he recorded the disclosure statement of accused persons and statement of witnesses. He further deposed that he deposited the case property in malkhana and got the accused persons medically examined. He further deposed that he also got the case property submitted in FSL through Ct. Dharmender and after receiving the result, he obtained State vs Neeraj Behwal & Ors. FIR No. 475/15 Page 6 of 17 sanction under Section 39 Arms Act, prepared the charge sheet and filed before the Court.
5. As all the material witnesses were examined, PE was closed and thereafter, all the incriminating evidence were put to accused persons and statements of accused persons were recorded wherein they denied all the incriminating evidence against them. Accused persons namely Sandeep @ Bittu and Rajesh @ Daga stated that they are innocent and they were falsely implicated in this case. They stated that they had come to Court to meet their counsel and they were picked when they were returning. Accused persons namely Neeraj @ Chhoti and Virjesh @ Chota @ Rajesh also stated that they are innocent and they were falsely implicated in this case. They stated that they had a court hearing and they were picked before they attended the Court. Accused persons opted not to lead evidence in defence.
6. Before final arguments on application of accused persons, a defence witness was summoned to prove the exemption application of accused Neeraj and Rajesh moved in case FIR no. 127/14. The application was proved as Ex.Dw1/A and the order of court on that application is Ex.Dw1/B. Thereafter, matter was listed for final arguments.
7. It is argued by the Ld. APP for State that the State vs Neeraj Behwal & Ors. FIR No. 475/15 Page 7 of 17 recovery of firearm and ammunition from the possession of the accused persons has been duly proved in this case. The DCP has proved his sanction, FSL report is duly proved and the cumulative effect of the evidence of the prosecution is that the case of the prosecution is proved beyond reasonable doubt.
8. On the other hand, it has been argued by Ld. Defence counsel that there are various anomalies in the case of the prosecution. Place of recovery is a crowded area and a police picket is nearby, despite that no independent witnesses has been examined in the present case. IO had not prepared and seized any FSL form at the time of seizure and sealing of case property nor such form was deposited with MHC(M). The accused persons were allegedly intercepted at about 10.50 am but the arrest memo shows that they were arrested after 4.30 pm. There is no DD entry to show the arrival of police officials with accused persons and the alleged recovered articles. Ld. Defence Counsel would submit that accused persons had come to Dwarka Courts because two of them had a case and after picking them they were falsely implicated.
9. Having dealt with the submissions advanced by both the sides, I proceed to adjudicate upon the most important question involved in the present case: whether the accused persons are guilty of the offence with which they are charged or not.
State vs Neeraj Behwal & Ors. FIR No. 475/15 Page 8 of 1710. It is well settled principal of law that the prosecution has to prove the case beyond reasonable doubt and has to stand upon on its own legs. The prosecution also cannot draw any strength from the case of the accused howsoever weak it may be. It is also well settled proposition of criminal law that the accused has a profound right not to be convicted for an offence which is not established by the evidential standard of proof beyond reasonable doubt. It is also well settled principle of law that in a criminal trial the burden of proof always rests upon the prosecution and the same never shifts onto the accused.
Standard of Proof
11. In case reported as Paramjeet Singh @ Pamma Vs. State of Uttarakhand, 2011 CRI.L.J 663, Supreme Court, was held in para no.11 and 12 as under:
− "11. A criminal trial is not a fairy tale wherein one is free to give flight to one's imagination or fantasy. Crime is an event in real life and is the product of an interplay between different human emotions. In arriving at a conclusion about the guilt of the accused charged with commission of a crime, the Court has to judge the evidence by the yardstick of probabilities, intrinsic worth and the animus of witnesses. Every case, in the final analysis, would have to depend upon its own facts. The court must bear in mind that "human nature is too willing, when faced with brutal crimes, to spin State vs Neeraj Behwal & Ors. FIR No. 475/15 Page 9 of 17 stories out of strong suspicions." Though an offence may be gruesome and revolt the human conscience, an accused can be convicted only on legal evidence and not on surmises and conjecture. The law does not permit the Court to punish the accused on the basis of a moral conviction or suspicion alone. "The burden of proof in a criminal trial never shifts and it is always the burden of the prosecution to prove its case beyond reasonable doubt on the basis of acceptable evidence." In fact, it is a settled principle of criminal jurisprudence that the more serious the offence, the stricter the degree of proof required, since a higher degree of assurance is required to convict the accused. The fact that the offence was committed in a very cruel and revolting manner may in itself be a reason for scrutinizing the evidence more closely, lest the shocking nature of the crime induce an instinctive reaction against dispassionate judicial scrutiny of the facts and law. (Vide: Kashmira Singh Vs. State of Madhya Pradesh. AIR 1952 SC 159, State of Punjab Vs. Jagir Singh Baljit Singh & Anr. AIR 1973 SC 2407: Shankarlal Gyarasilal State Vs. Shiv Shakti 7/7 FIR no. 310/04 Dixit Vs. State of Maharashtra, AIR 1981 SC 765: Mousam Singha Roy & Ors. Vs. State of West Bengal, (2003 12 SCC 377: and Aloke Nath Dutta & Ors Vs. State of West Bengal, (2007) 12 SCC 230).
12. In Sarwan Singh Rattan Singh Vs. State of Punjab, AIR 1957 SC 637, Hon'ble Court observed at(Para 12):
"Considered as a whole the prosecution story may be true: but between 'may be true' and 'must be true' there is inevitably a long distance to travel and the whole of this distance must be covered by legal, reliable and unimpeachable evidence (before an accused can be convicted."State vs Neeraj Behwal & Ors. FIR No. 475/15 Page 10 of 17
13. Despite availability, no public witness was joined in the investigation. 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".
14. Further in "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 State vs Neeraj Behwal & Ors. FIR No. 475/15 Page 11 of 17 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 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".
Hence, it creates doubt in the story of prosecution.
15. Further, the prosecution claims that the case property was sealed with the seal of MSG, however, no witnesses had stated that to whom the seal was handed over after use. Even no handing over memo was prepared in presence of independent public person nor it was proved. In such circumstances, the possibility of State vs Neeraj Behwal & Ors. FIR No. 475/15 Page 12 of 17 tampering/planting the case property cannot be ruled out. Besides, the prosecution has failed to prove any arrival entry on record to show that on 23.11.2015 after completion of investigation, accused or any case property as alleged were brought and deposited in the PS.
16. In the judgment of Ramji Singh V/s State of Haryana 2007 (3) R.C.R. (Criminal) 452, the Hon'ble Punjab and Haryana High Court held in Para No. 7 as "The very purpose of giving seal to an independent person is to avoid tampering of the case property. It is well settled that till the case property is not dispatched to the forensic science laboratory, the seal should not be available to the prosecuting agency and in the absence of such a safeguard the possibility of seal, contraband and the samples being tampered with cannot be ruled out".
17. In Rajesh Jagdamba Avasthi Vs. State of Goa, (2005)9 SCC 773, in para 15 of the judgment in this regard the Hon'ble Supreme Court held as under:
"15... In these circumstances there is justification in the argument that since the seal as well as the packets remained in the custody of the same person, there was every possibility of the seized substance being tempered with, and that is the only hypothesis on which the discrepancy in weight can be explained. The least that can be said in the facts of the case is that there is serious doubt about the truthfulness of the prosecution case." PW4 SI Naresh Solanki State vs Neeraj Behwal & Ors. FIR No. 475/15 Page 13 of 17 deposed that the seal after use was handed over to SI Sanjeev Sharma . It is beyond comprehension as to why the seal was handed over to PW5 especially when the other family members were present in the house and the seal could be handed over to them till the deposition of the katta to FSL. While relying upon the judgment of Rajesh Jagdamba Avasthi Vs. State of Goa, (2005)9 SCC 773, in Bijay vs. State ( G.N.C.T. Of Delhi), 2011 VI AD (DELHI)562, Hon,ble Court held in para 34 of the said judgment that "
after sealing the sample, the seal was not handed over to an independent person, rather he kept with him only, which also creates doubt on the sample whether the samples, were intact and not tempered with.
Absence of CFSL Form
18. It has been argued by ld. Counsel for defence that at the time of alleged seizure of case property IO has not prepared any CFSL form nor seized the same alongwith the case property. The register no. 19 produced by MHCR i.e. Ex PW 3/A & 3/B, both show that neither CFSL form was deposited with MHCR nor any such form was sent to CFSL when the case property was sent.
19. In Desh Raj @ Dass V/s State, 83 (2ourt000) DLT 262, Hon'b'le court was dealing a case under Section 402 IPC and 25 Arms Act. In that case, it was held in para 25 that " Neither depositing the CFSL form in the Malhkana nor sending it alongwith the sample parcel to the office of the CFSL puts a question mark on the credibility of the prosecution version."
State vs Neeraj Behwal & Ors. FIR No. 475/15 Page 14 of 1720. In Lalman Vs. State 75(1998) DLT 224, it was observed that "CFSL form is a valuable safeguard to ensure that the sample is not tempered with till its analysis by the CFSL analyst. The CFSL form should not only be prepared and sealed by the officer making the seizure at the place where the case property is seized from the accused, it should also be sealed by the SHO to whom the sample and case property is handed over and the same should accompany the sample to the CFSL. The purpose of the specimen seal is to compare the same with the seals on the sample parcels meant for analysis and report by CFSL to ensure that the purity of samples are not tempered with. In the absence of the CFSL form, it cannot be said that the purity of the sample remained intact. Benefit of its absence should go the accused."
21. The same view was taken in Rajan Ali vs. The State( Delhi Administration) 81(1999)DLT 194 by Delhi High Court. In the case of Bijay vs. State ( G.N.C.T. Of Delhi), 2011 VI AD (DELHI)562, also Hon'ble High Court of Delhi also observed the same. Reverting to the facts of the case and the evidence led in this regard the same would show that none of the prosecution witness testified that the CFSL Form was also prepared at the spot nor has been proved on the record. As held in the aforesaid judgments, I opine that the non−sending the FSL form to the FSL alongwith the State vs Neeraj Behwal & Ors. FIR No. 475/15 Page 15 of 17 samples and not proving the same on the record renders the case of the prosecution doubtful and, I am not inclined to rely upon the same so as to convict the accused.
FIR No. on the documents prepared prior to its registration :
22. The witnesses claimed that no addition was done in the memos after they were filled at the spot but all the documents bear the FIR no. on them.
23. In the judgment of Giri Raj V/s State 83 (2000) DELHI LAW TIMES 201, the Hon'ble High Court of Delhi held in Para 5 as "The prosecution has not offered any explanation whatsoever as to under what circumstances number of the FIR Ex. PW2/A had appeared on the top of the said documents, which were allegedly on the spot before its registration. This gives rise to two inferences that either the FIR (Ex. PW 2/A) was recorded prior to the alleged recovery of the contraband or number of the said FIR was inserted in these documents after its registration. In both the situations,it seriously reflects upon the veracity of the prosecution version and creates a good deal of doubt about recovery of the contraband in the manner alleged by the prosecution. That being so, the benefit arising out of such a situation must necessarily go to the appellant". The same view was adopted in the case of Mohd. Hashim, Appellant Vs. State, 2000 CRI.L.J 1510, State vs Neeraj Behwal & Ors. FIR No. 475/15 Page 16 of 17 Pawan Kumar Vs. Delhi Administration,1987 CCC 585 and Mewa Ram Vs. State 2000 CRI.L.J114. In the present case admittedly the seizure memo and the sketch of the firearm and ammunition would show that they contained the FIR number on the same but there is no explanation furnished by the prosecution as to how and under what circumstances the same has appeared. The same causes a reasonable doubt in the prosecution story as held in the judgments mention herein above.
24. In view of the above said discussion, I am of the considered view that the prosecution has failed to prove the charges against accused persons beyond reasonable doubt. Accordingly, the accused persons are acquitted from the charges levelled against them.
Dictated & Announced in Open Digitally signed Court on 24th day of February, 2021 by VIKRAM VIKRAM Date: 2021.02.24 16:12:18 +0530 (VIKRAM) ACMM/SOUTH-WEST/DWARKA Delhi/24.02.2021 State vs Neeraj Behwal & Ors. FIR No. 475/15 Page 17 of 17