IN THE COURT OF SH. [ENTITY] METROPOLITAN MAGISTRATE, SOUTH EAST DISTRICT SAKET COURTS, NEW DELHI FIR No. 18/2009 [ENTITY] U/[SECTION] [ACT] State Vs. [ENTITY] JUDGMENT :
a. Sl. No. of the case : 18/09 b. Date of Institution : 20.04.2009 c. Date of Commission of Offence : 22.01.2009 d. Name of the complainant : [ENTITY] PS Defence Colony e. Name of the accused and his : [ENTITY] parentage and address S/o Late [ENTITY] R/o VillageKudia Garhi, PS Masoori, Distt. Ghaziabad, U.P. f. Offence complained of : U/[SECTION] [ACT] g. Plea of the accused : Pleaded not guilty h. Order reserved : 27.08.2013 i. Final Order : Acquitted j. Date of such order : 27.08.2013
1. The accused in this case was sent up for trial for the commission of FIR NO. 18/2009 PAGE 1 OF PAGE 8 PS DEFENCE COLONY offence U/[SECTION] [ACT].
2. The facts in brief are that on 22.01.2009, at around 11.00 a.m., one secret informer came in the office of Special Staff, South District, Pushp Vihar and informed the IO that accused would come near Ansal Plaza petrol pump. The said information was shared with other officers and thereafter a raiding team was prepared consisting of [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY], SI [ENTITY] and [ENTITY]. The raiding team reached the spot at around 12.00 p.m. At around 12.45 p.m., accused along with his associate was seen coming from the side of Ring Road and reached the Petrol Pump. The secret informer pointed out towards both the said persons. On this, both the said persons started moving fastly in opposite direction. [ENTITY] and [ENTITY] had apprehended the accused [ENTITY] and conducted his formal search. On his search, one loaded country made pistol was recovered. From the search of his associate namely [ENTITY], one loaded country made pistol was also recovered from his possession and a separate investigation was carried out with respect to him. Thereafter tehrir was prepared and the present case FIR was registered in PS Defence Colony. During the investigation site plan was prepared. Statement of witnesses were recorded. Accused [ENTITY] was arrested and after completing the other formal investigation, the challan was presented before the court for trial.
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3. A prima facie case having been made out against the accused, charge was framed against the accused on 04.05.2009, under [SECTION] of [ACT] to which he pleaded not guilty and claimed trial.
4. To prove its case against the accused, the prosecution has examined four witnesses namely ASI [ENTITY] as PW1, ASI [ENTITY] as PW2, [ENTITY] as PW3 and SI [ENTITY] as PW4.
5. PW1 ASI [ENTITY] has testified that on 22.06.2009, at around 11.00 a.m., one secret informer came in the office and informed SI [ENTITY] that two boys would come at Ansal Plaza petrol pump. The said information was given to the senior officers and after the directions of the senior officers, SI [ENTITY] prepared a raiding team consisting of [ENTITY], [ENTITY], [ENTITY], [ENTITY] and [ENTITY]. Thereafter they all left the office at around 11.30 a.m. in a a Tempo and one motorcycle and reached the spot at around 12.00 p.m. PW1 further testified that SI [ENTITY] requested 45 public persons to join the investigation but none agreed. PW1 further testified that at about 12.45 p.m., two boys were seen coming from the side of Ring Road. The secret informer pointed out towards both the persons and on this, both of them had started moving fastly in opposite direction. PW1 further testified that he with the help of [ENTITY] apprehended accused [ENTITY] and another person namely [ENTITY] was FIR NO. 18/2009 PAGE 3 OF PAGE 8 PS DEFENCE COLONY apprehended by [ENTITY] and [ENTITY]. On search of accused [ENTITY], one loaded country made pistol was recovered from his possession. On formal search of accused by [ENTITY], one loaded country made pistol was recovered from his possession also. PW1 further testified that in respect of accused [ENTITY], a separate investigation was carried out. PW1 further testified that the sketch memo of recovered katta and cartridge from the possession of accused [ENTITY] was prepared by IO/[ENTITY] vide memo Ex. PW1/A. The katta and cartridge were put into white cloth and a pullinda was prepared, the same was sealed with the seal of SC and seized vide memo Ex. PW1/B. The seal after use was handed over to him. IO prepared tehrir and handed over the same to him for the registration of FIR and he got the case registered. PW1 further testified that accused was arrested and his personal search was conducted vide memos Ex. PW1/C and D. PW1 has correctly identified the case property which are Ex. P1 and P2.
In his cross examination, PW1 has testified that they had made the DD entry of their departure but he did not remember the number of the same. PW1 further testified that no specific mark of identification was put on the recovered katta and cartridge.
6. PW2 ASI [ENTITY] has testified that on 22.01.2009, on receipt of rukka through [ENTITY], he recorded the present case FIR FIR NO. 18/2009 PAGE 4 OF PAGE 8 PS DEFENCE COLONY vide Ex. PW2/A. He also put his endorsement on rukka vide Ex. PW2/B. Ld. counsel for accused did not prefer to cross examine PW2.
7. PW3 [ENTITY] has testified that on 06.02.2009, he took the exhibits from PS Defence Colony and get them deposited at FSL, Rohini, New Delhi and obtained the receipt of the same and got deposited the said receipt to MHC(m).
In his cross examination, PW3 has testified that he did not remember if any departure or arrival entry was made to this effect.
8. PW4 SI [ENTITY] has also deposed the same facts as deposed by PW1.
9. After closing of prosecution evidence, statement of accused was recorded U/[SECTION]/[SECTION] [ACT] In his statement, accused denied to have committed the offence and claimed to have been falsely implicated in this case. Accused further denied to lead any defence evidence.
10. I have heard the Ld. APP for the State and the Ld. Counsel for the accused and have also perused the record.
11. In this case, the prosecution is required to establish beyond FIR NO. 18/2009 PAGE 5 OF PAGE 8 PS DEFENCE COLONY reasonable doubt that the accused was in possession of the arms without any valid license. All the witnesses produced by the prosecution are police personnels. All of them have supported the prosecution version.
12. However no public witness has been associated with the investigation. No independent witness has been joined at the time of the arrest of the accused and recovery of the weapon. All the witnesses to the recovery being police officials, such recovery does not inspire confidence. Similar view has been expressed by the Supreme Court in [PRECEDENT] and the Delhi High Court in [PRECEDENT].
13. Further it needs to be noted that the sketch memo of the weapon and the seizure memo bear the number of FIR, The prosecution has not offered any explanation whatsoever as to under what circumstances number of the FIR has appeared on the top of the aforesaid documents, which were allegedly prepared on the spot before registration of the FIR. This gives rise to two inferences that either the FIR was recorded prior to the alleged recovery 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 given by the aforesaid witnesses and creates a FIR NO. 18/2009 PAGE 6 OF PAGE 8 PS DEFENCE COLONY good deal of doubt about recovery in the manner alleged by the prosecution. Reliance may be had to the decision of the Delhi High Court in [PRECEDENT].
14. Again, there is nothing on record to prove that the seal with which the parcel containing the article of recovery was sealed was handed over to any independent witnesses after use. No evidence is on record to show that CFSL form was filled or deposited with [ENTITY]. In such circumstances possibility of tampering with contents of sealed parcel cannot be ruled out. It was very essential for prosecution to have established that sealed parcel was not tampered with. In this respect the decision of the Delhi High Court in [PRECEDENT] may be referred to.
15. Moreover, no DD entry in respect of any of the aforesaid police officials including PW1/ASI [ENTITY] and PW4/SI [ENTITY] is proved on record to establish that they both were actually present in the area at the relevant time in connection with the investigation of the present case. Thus the presence of these two witnesses at the alleged time itself is rendered doubtful. This view has been expressed by the Delhi High Court in [PRECEDENT].
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16. All these infirmities in the prosecution evidence seriously reflects on the varacity of prosecution case the benefit whereof must go to the accused.
17. In the result, I find that Prosecution has failed to prove its case against the accused beyond reasonable doubt and he is given the benefit of doubt and therefore accused [ENTITY] is acquitted for the offence punishable U/[SECTION] of [ACT] for which he stands charged.
Announced in the Open Court ([ENTITY]) On 27.08.2013 Metropolitan Magistrate South East/New Delhi FIR NO. 18/2009 PAGE 8 OF PAGE 8 PS DEFENCE COLONY PS Defence Colony u/[SECTION] [ACT] 27.08.2013 Present: Ld. APP for the State.
Accused on bail with counsel Sh. [ENTITY].
Statement of accused recorded vide separate sheet. Final arguments heard.
Vide my separate judgment dictated and announced in the open court, accused is acquitted for the offence punishable U/[SECTION] [ACT] for which he stands charged.
Accused is released on bail on furnishing personal bond in the sum of Rs.10,000/ with one surety in the like amount. Bail bond furnished. Same is accepted. As per [SECTION] of the [ACT], as amended vide the Amendment Act, which came into force on 31.12.2009, the accused shall remain bound by the personal as well as surety for a period of six months from today.
File be consigned to Record Room.
([ENTITY]) MM/South East/27.08.2013 FIR NO. 18/2009 PAGE 9 OF PAGE 8 PS DEFENCE COLONY