State vs : Rakesh on 5 December, 2012

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Delhi District Court

State vs : Rakesh on 5 December, 2012

IN THE COURT OF SH. SUDHANSHU KAUSHIK, METROPOLITAN MAGISTRATE02, SOUTHEAST DISTRICT, SAKET COURTS NEW DELHI State Vs : Rakesh FIR No : 339/08 U/s : 25 of Arms Act PS : Okhla Industrial Area Date of Institution: 17.03.2009 Date of Judgment reserved for: 05.12.2012 Date of Judgment: 05.12.2012 Brief details of the case A. Sl. no. of the case 35/2/09 B. Offence complained of or proved U/s 25 of Arms Act C. Date of Offence 09.08.2008 D. Name of the complainant SI Kuldeep Singh No.D1648/SD, PSOIA, New Delhi E. Name of the accused Rakesh s/o Late Sh. Babu Lal r/o 302/12, G Block Sangam Vihar, New Delhi.

    F.    Plea of the accused                            Pleaded not guilty.

    G.    Final order                                    Convicted 

    H.    Date of Order                                  05.12.2012

                                      Judgment

The case of the prosecution is that on 09.08.2008, at around 7.30 pm, at Railway track, Near Tughlakabad Railway Station, Okhla Industrial Area (OIA), New Delhi, Rakesh (hereinafter referred FIR No. 339/08 1/9 to as the 'accused') was found in possession of a country made pistol and a live cartridge, without caring the requisite license prescribed under Section 3 of The Arms Act.

Brief facts as unfolded during trial

2. On the above said date, HC Narender Kumar (PW2), HC Manoj (PW2) and SI Kuldeep (PW4) posted at PSOIA were on patrolling duty at ICD Parking Railway Colony. During the course of patrolling duty, at around 7.15 pm, a secret informer met them and disclosed that a person carrying arms is standing near the railway tracks of Railway Station TKD. A raiding party was constituted. 34 passersby were requested to join investigation but they did not agree. At around 7.30 pm, raiding party reached railway tracks near Railway Station TKD and saw a person walking along with railway tracks. On seeing the raiding party, the person tried to flee from the spot. He was chased and apprehended by the police officials. On casual search of the person, one country made pistol and a live cartridge was recovered from the left dub of his pants. The person disclosed his name as Rakesh S/o Late Sh. Babu Lal. The pistol was seized and sealed with the seal of 'MS'. On the basis of rukka (Ex PW4/A), present FIR number 339/08 under Section 25 of the Arms Act was registered at PS OIA.

FIR No. 339/08 2/9

3. The necessary investigation was carried out and requisite documentation was done. On completion of investigation, chargesheet was put to the Court. The copies of the chargesheet were supplied to the accused and charge under Section 25 of Arms Act was framed against him to which he pleaded 'not guilty' and claimed trial.

Witnesses examined

4. In order to establish the charge, prosecution examined four witnesses. The brief gist of their testimony is as under:

PW1 HC Het Ram (duty officer) deposed about the registration of FIR.

PW2 HC Narender Kumar (First recovery witness) has supported the recovery. He mentioned that sketch of pistol (Ex PW2/A) was prepared by IO/SI Kuldeep Singh and it was seized vide seizure memo Ex PW2/B. He stated in his crossexamination that public persons were requested to join investigation but they did not agree.

PW3 HC Manoj (Second recovery witness) has deposed on the lines of PW2 HC Narender Kumar. He also supported the recovery.

PW4 SI Kuldeep Singh (Investigating Officer) has justified the investigation carried out by him. He admitted the presence of FIR No. 339/08 3/9 public persons at the spot. He mentioned that he made efforts to join them in investigation but none agreed.

The FSL Report as well as requisite Sanction under Arms Act was put to the accused under section 294 CrPC. He admitted both the documents.

5. Accused in his statement under Section 281 read with 313 of the Cr.P.C., 1973, pleaded innocence and claimed that he has been falsely implicated.

Arguments

6. I have heard Ld. APP for State and Ld. Defence Counsel and carefully gone through the entire material available on record.

7. Ld. APP has contended that prosecution has proved its case beyond shadow of doubt. On the other hand, Ld. Defence Counsel has assailed the prosecution's case. He has argued that there is no justification as to why independent witnesses were not joined in investigation. He has also argued that there are material contradictions and discrepancies in the version of the witnesses which make it evident that revolver and cartridge was planted upon accused.

Brief reasons for final decision

8. I have given my thoughtful consideration to the rival contentions and carefully perused the entire material available on record.

FIR No. 339/08 4/9

9. There are two recovery witnesses i.e. HC Narender Kumar (PW2) and HC Manoj (PW3). Both of them have deposed on similar lines. HC Narender has deposed that on 09.08.2008, he was on patrolling duty alongwith Ct. Manoj and SI Kuldeep Singh. He has supported the recovery and narrated the entire episode. He has deposed that during the patrolling duty, at around 7.15 pm, a secret informer met them and disclosed that accused is standing near the railway tracks. He mentioned that accused was apprehended and one country made pistol was recovered from him. He has categorically mentioned that the pistol and one live cartridge were recovered from the possession of accused in his presence. The seizure memo is Ex. PW2/B. The witness has identified his signatures on the said seizure memo at Point A. The case property (recovered country made pistol) was produced from the Malkhana and it was identified by him as Ex. P1. The record reveals that deposition of this witness about the recovery part has gone unrebutted.

10. The other recovery witness, Ct Manoj (PW3) has deposed on similar lines. He supported and corroborated the version of HC Narender (PW1) on all the material aspects. He has deposed that after recovering the pistol, IO prepared the rough sketch. The said sketch is Ex. PW2/A. He has mentioned about sealing of the case property. He has deposed that after preparing rough sketch, pistol was kept in a cloth and it was sealed with the seal of 'MS'.

FIR No. 339/08 5/9

11. Ld. Defence Counsel has vehemently argued that accused should be acquitted as there is no public witness to recovery. Admittedly, no independent public witness has been joined in the investigation. Only police personnel are witnesses to the recovery, however, the said fact itself cannot be the sole ground for discarding their testimony. Statutory desirability in the matter of search and seizure is that there should be support from unbiased and neutral corner. The search before an independent witness imparts much more authenticity and credit worthiness to the search and seizure proceedings. Such safeguard is intended to avoid criticism of arbitrary and highhanded action against police officers. This is to lend credibility to the procedure relating to search and seizure. Indubitably, if the evidence of the official witnesses is found to be credible and coherent, same can alone prove to be foundation for conviction and normally, prosecution case cannot be thrown away straightaway merely because chief plank of evidence is that of official witnesses. However, it puts the Court on guard and the testimony of such official witnesses is, in such a situation, liable to be scrutinized with extra caution. Simultaneously, prosecution has to offer satisfactory explanation for not associating independent witnesses. In such a situation, courts are fully justified in finding out the reasons as to why no such person came forward and whether the investigating agency did its best to persuade independent persons. FIR No. 339/08 6/9

12. The testimony of police personnel cannot be brushed aside merely because no public persons have been joined in investigation. The provisions as provided under Section 100 (4) Cr. PC are only directory and failure to comply with the said provisions will not invariably be fatal for the case of the prosecution. It has been held by the Hon'ble Supreme Court in State of Punjab Vs. Balbir Singh reported in AIR 1994 SC 1872 that "The scope of these two sections (section 100 and 165 of Code of Criminal Procedure) have been examined in a number of cases. In Wasan Singh v. State (1981) 2 SCC this Court has clearly held that irregularity in a search cannot vitiate the seizure of the articles. In Suder Singh v. State of Uttar Pradesh, AIR 1956 SC 411, it is held that irregularity cannot vitiate the trial unless the accused has been prejudiced by the defect and it is also held that if reliable local witnesses are not available the search would not be vitiated. In State of Maharashtra v. P.K. Pathak, AIR SC 1224, it is held that absence of any independent person from the locality to witness the search does not affect the trial and the conviction of the accused under the Customs Act. In Radha Kishan v. State of Uttar Pradesh, 1963 SC 822, it is held that irregularity in a search would, however, cast a duty upon the Court to scrutinise the evidence regarding the search very carefully. In Matajog Dubey v. H.C. Bahri, AIR 1956 SC 44 it is held that when the salutary provisions have not been complied with, it may, however, affect the weight of the evidence in support of the search or may furnish a reason for disbelieving the evidence produced by the prosecution unless the prosecution properly explains such circumstance which made it impossible for it to comply with these provisions.......

.....This again depends on question whether the official has deliberately failed to comply with these FIR No. 339/08 7/9 provisions or failure was due to lack of time and opportunity to associate some independent witnesses with the search and strictly comply with these provisions."

13. On applying the abovesaid provisions to the present matter, it is evident that the recovery of knife has been proved by prosecution. There is no reason to doubt the testimony of recovery witnesses merely because they are police personnel. It has been held by the Hon'ble Supreme Court in Karamjit Singh Vs. State (Delhi Administration) reported in AIR 2003 SC 1311 "........The testimony of police personnel should be treated in the same manner as testimony of any other witness and there is no principle of law that without corroboration by independent witnesses their testimony cannot be relied upon. The presumption that a person acts honestly applies as much in favour of police personnel as of other persons and it is not a proper judicial approach to distrust and suspect them without good grounds. It will all depends upon the facts and circumstances of each case and no principle of general application can be laid down....."

14. In the light of the said judgment, the testimony of the police personnel cannot be discarded. The investigating officer SI Kuldeep Singh has mentioned that he requested 34 passersby to join the investigation but none of them agreed. The witness has stated that after receiving the information, he immediately reached the spot and apprehended the accused. Thus, it is apparent from his testimony that there was hardly any time with him to join a public person in investigation. The explanation tendered by him is plausible and his FIR No. 339/08 8/9 testimony cannot be brushed aside merely because of the said fact. The sealed case property was produced during the examination of PW2 and it was found that seal of FSL was intact.

15. The arrest memo of accused has been proved on record as Ex. PW2/C. It further lends support to the version of witnesses that accused was apprehended from the spot. The FIR has been registered promptly and there is no inordinate delay which may raise any doubt. The sanction under Section 39 of The Arms Act has been proved on record as Ex P3. The sketch of pistol is Ex. PW2/A. The FSL report is Ex. P2. It has been mentioned in the report that upon testing, the country made pistol was found in working order. The FSL report is admissible in terms of Section 294 Cr PC and it's authenticity has not been challenged or disputed. It is proved beyond reasonable doubt that on 09.08.2008, at around 7.30 pm, at failway track, near Tughlakabad Railway Station, Okhla Industrial Area (OIA), New Delhi, accused Rakesh was found in possession of a country made pistol and a live cartridge without carrying any requisite license as provided under the Arms Act, 1959. Accused Rakesh stands convicted for committing offence punishable under Section 25 of Arms Act. Announced in open Court (Sudhanshu Kaushik) on this day of 05.12.2012. Metropolitan Magistrate Saket Courts, Delhi FIR No. 339/08 9/9

11. Ld. Defence Counsel has vehemently argued that accused should be acquitted as there is no public witness to recovery. Admittedly, no independent public witness has been joined in the investigation. Only police personnel are witnesses to the recovery, however, the said fact itself cannot be the sole ground for discarding their testimony. Statutory desirability in the matter of search and seizure is that there should be support from unbiased and neutral corner. The search before an independent witness imparts much more authenticity and credit worthiness to the search and seizure proceedings. Such safeguard is intended to avoid criticism of arbitrary and highhanded action against police officers. This is to lend credibility to the procedure relating to search and seizure. Indubitably, if the evidence of the official witnesses is found to be credible and coherent, same can alone prove to be foundation for conviction and normally, prosecution case cannot be thrown away straightaway merely because chief plank of evidence is that of official witnesses. However, it puts the Court on guard and the testimony of such official witnesses is, in such a situation, liable to be scrutinized with extra caution. Simultaneously, prosecution has to offer satisfactory explanation for not associating independent witnesses. In such a situation, courts are fully justified in finding out the reasons as to why no such person came forward and whether the investigating FIR No. 339/08 10/9 agency did its best to persuade independent persons.

FIR No. 339/08 11/9 .....This again depends on question whether the official has deliberately failed to comply with these provisions or failure was due to lack of time and opportunity to associate some independent witnesses with the search and strictly comply with these provisions."

14. In the light of the said judgment, the testimony of the police personnel cannot be discarded. The investigating officer SI Kuldeep Singh has mentioned that he requested 34 passersby to join the investigation but none of them agreed. The witness has stated that after receiving the information, he immediately reached the spot and apprehended the accused. Thus, it is apparent from his testimony that there was hardly any time with him to join a public person in FIR No. 339/08 12/9 investigation. The explanation tendered by him is plausible and his testimony cannot be brushed aside merely because of the said fact. The sealed case property was produced during the examination of PW2 and it was found that seal of FSL was intact.

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Delhi District Court

State vs : Rakesh on 5 December, 2012