1 IN THE COURT OF SH. VIVEK KUMAR GULIA METROPOLITAN MAGISTRATE - 1 (EAST) KARKARDOOMA COURTS, DELHI In the matter of: State Vs. [ENTITY] FIR NO. 445/99 P.S. Krishna Nagar JUDGMENT
1. Sr. No. of the case : 02/03 2. Date of institution : 10.01.2001 3. Name of the complainant : SI [ENTITY] 4. Date of commission of offence : 22.12.1999 5. Name of accused : [ENTITY] S/o. Lt. Sh. [ENTITY], R/o. House no. 104, Rani Garden, Delhi 6. Offence complained of : [SECTION], [ACT]. 7. Plea of guilt : Accused pleaded not guilty 8. Date of reserving the Judgment : 25.04.2011 Page no. 1 of 8 St. vs. [ENTITY]; FIR No. 445/99 9. Final order : Acquitted 10. Date of such Judgment : 30.04.2011 FACTUAL BACKGROUND :
1. The FIR No. 445/99 u/[SECTION] [ACT] (in short "the Act") was registered at PS Krishna Nagar on the complaint of SI [ENTITY] who mentioned that on 22.12.1999, at about 4.15 pm, at [ENTITY] Chowk, he alongwith Ct. [ENTITY] and Ct. [ENTITY] apprehended the accused with a countrymade pistol and a live cartridge at the instance of secret informer. IO/ASI [ENTITY] conducted routine investigation proceedings. After culmination of investigation, accused was charge sheeted and summoned to face trial.
TRIAL PROCEEDINGS :
2. In light of the above stated facts and proceedings, after making compliance of provisions of [SECTION] [ACT], vide order dt. 30.10.2001, finding a primafacie case, Sh. [ENTITY], the then MM, Shahdara, framed charge for the offence punishable u/[SECTION] of the Act, to which the accused pleaded not guilty and claimed trial.
Page no. 2 of 8 St. vs. [ENTITY]; FIR No. 445/99
3. For proving its case, the prosecution has produced ten witnesses.
3A. PW1, [ENTITY], proved the present FIR Ex. PW1/A. 3B. PW2, Ct. [ENTITY], testified that on 20.12.1999, he alongwith Ct. [ENTITY] and SI [ENTITY] were on patrolling duty at Ghondali Chowk at about 3.40 pm and then a secret informer informed him that accused [ENTITY] may come this side on scooter with illegal weapon with intention to commit robbery. At 4.15 pm, near bus stop, accused came from the side of [ENTITY] and on the pointing out of secret informer, SI [ENTITY] signalled him to stop but he tried to escape. Further, he was apprehended and countrymade pistol was recovered form his right dub and a live cartridge was recovered from his pocket. SI [ENTITY] prepared the sketch of recovered countrymade pistol and live cartridge vide Ex. PW2/A. Recovered countrymade pistol and live cartridge were seized vide memo Ex. PW2/B. FSL form was also filled. Thereafter rukka was prepared and handed over to Ct. [ENTITY]. After registration the case, Ct. [ENTITY] came back at the spot alongwith HC [ENTITY]. The scooter bearing registration number DEQ7622 was taken into possession through Seizure memo Ex. PW2/C and accused was arrested and personally searched through personal search memo Ex. PW2/D. Further he correctly identified the accused and the recovered Page no. 3 of 8 St. vs. [ENTITY]; FIR No. 445/99 countrymade pistol Ex. P1 and live cartridge Ex. P2 in the court. 3C. PW3, Ct. [ENTITY], deposed on the lines of PW2. 3D. PW4 (PW7), Ct. [ENTITY], stated that on 19.01.2000, he deposited the sealed pullanda at FSL Malviya Nagar vide [CASE NUMBER]. 3E. PW5 (PW9), [ENTITY], stated that on 03.07.2000, he obtained the FSL report Ex. PW5/A and obtained sanction u/[SECTION].
3F. PW6, Sh. [ENTITY], DCP, Delhi Police, stated that on 10.12.2000, he gave sanction u/[SECTION] of the Act for the prosecution of accused vide sanction order Ex. PW6/A. 3G. PW8, SI [ENTITY], deposed on the lines of PW2 & PW3. Apart from that, he testified that he prepared the rukka Ex. PW8/A for the registration of case. Further, he correctly identified the accused and the recovered countrymade pistol Ex. P1 and live cartridge Ex. P2 in the court.
3H. PW10, Sh. [ENTITY], Assistant Director, FSL, Rohini, stated that on 19.01.2000, he received a sealed parcel at FSL, Malviya Nagar and on opening it, one countrymade pistol of 12 bore and one cartridge of 12 bore were taken out. Test fire was conducted successfully from the said pistol and cartridge. His detailed report is Ex. PW5/A. 3I. PW11, ASI [ENTITY], mentioned that on 22.12.1999, he Page no. 4 of 8 St. vs. [ENTITY]; FIR No. 445/99 went to the spot where SI [ENTITY] met him. SI [ENTITY] informed him about the incident. He prepared the site plan Ex. PW11/A. Further SI [ENTITY] handed over a sealed pullanda alongwith FSL Form and a scooter bearing no. DEQ 7622. Accused was personally searched and arrested by him vide arrest memo Ex. PW11/B. 3J. PW12, ASI [ENTITY], testified that on 22.12.1999, case property of present FIR was deposited in the Malkahana and the entry of the same was made in the register no. 19. The copy of the same is Ex PW12/A. On 19.01.2000, on the directions of the IO, he handed over the case property to Ct. [ENTITY] alongwith the FSL Form through [CASE NUMBER]. The copy of the RC is Ex. PW12/B. After depositing the same, Ct. [ENTITY] handed over him the copy of abovesaid RC and same is Ex. PW12/C.
4. Statement of accused was recorded u/[SECTION] [ACT]. When accused was briefed on all the incriminating evidence and documents, he denied the allegations and mentioned that he has been falsely implicated in this case.
6. Accused opted to lead evidence in his defence and produced DW1 Sh. [ENTITY] who deposed that in the month of December, 1999 he was working as helper in a dye making shop at Chand Mohalla and accused was also working with him. Further stated that on the date of incident, at [ENTITY] Chowk, some persons were quarreling and when Page no. 5 of 8 St. vs. [ENTITY]; FIR No. 445/99 accused intervened, some police officials took him to PS. APPRECIATION OF EVIDENCE :
6. I have heard the State through Sh. [ENTITY], Ld. Assistant Public Prosecutor and Sh. [ENTITY], Ld. Defence Counsel. Record is also gone through.
7. Ld. APP for the State argued that the testimony of the recovery witnesses PW2, PW3 & PW8 fully support the prosecution case and therefore the recovery of countrymade pistol Ex. P1 and live cartridge Ex. P2 from the accused can not be doubted. Whereas, Learned defence counsel had contended that despite the availability of public persons on the spot, no independent witness was joined during recovery and further there are number of lacunas in the prosecution case, thereby pushing the case in the shadow of doubts.
8. It is observed that the case of the prosecution is entirely based on the testimony of PW2, PW3 & PW11 who are the police officials. It is Page no. 6 of 8 St. vs. [ENTITY]; FIR No. 445/99 evident that no public witness was joined though the countrymade pistol and live cartridge were allegedly recovered from the accused from a public place. It is a well settled principle of law that despite the availability of public witnesses, if no independent witness has been joined during investigation or at the time of recovery, then the testimony of police officials has to be scrutinized carefully. The Allahabad High Court in the case titled as [PRECEDENT], has put the legal position in a nutshell as follows :
"A search is not vitiated by noncompliance with the provisions of [SECTION] of the [ACT], a breach of which only put the Court on guard and incline it to scrutinize evidence of witnesses more closely. The effect of such irregularity will, however, depend on the circumstances of each particular case. But a search carried out with the aid of witnesses available at the time, even though they may not be independent, cannot be characterized to be in any way improper and cannot, in any case, have the effect of sweeping away the results of such a search."
9. Now, if we closely scrutinize the testimony of the prosecution witnesses, number of contradictions and flaws can be observed. It is noteworthy that none of the recovery witnesses offered their personal search before conducting the search of the accused and this omission creates doubt on the alleged recovery of countrymade pistol and live cartridge from the accused. Further PW3 testified that he returned back the seal to the first IO on the same day, whereas, first IO (PW8) Page no. 7 of 8 St. vs. [ENTITY]; FIR No. 445/99 deposed he received the seal 34 days after the incident. Likewise, PW2 & PW3 stated that writing work was done by the IO on the spot while sitting on the foot path, whereas, IO (PW11) mentioned that it was done by him while sitting on the bench in a shop.
10. Further, It can be seen that the accused was apprehended at the instance of secret informer but no intimation was sent to the PS before apprehending the accused. It is well settled law that in case of secret information, the investigating agency must join some independent witnesses {2004(2)CCC(HC)153(P&H)}.Moreover, the prosecution failed to produce any document on record to show that the recovery witness was on patrolling duty at the relevant time near the spot. It is also noteworthy that the prosecution has not established the connection of accused with the scooter Ex.P3. This lapse gain importance when accused has taken a plea that did not use the said scooter at any point of time.
11. It is also observed that FIR number has been mentioned on the documents, i.e., sketch Ex.PW2/A and seizure memo Ex.PW2/B of the recovered countrymade pistol and live cartridge though the case was not registered at that time. The first IO (PW8) has mentioned that he wrote FIR on these documents after the registration of case but PW3 testified that no addition or alteration was done in these documents after Page no. 8 of 8 St. vs. [ENTITY]; FIR No. 445/99 the registration of the case. This is also a material contradiction. The similar issue was discussed by High Court of Delhi in re : [PRECEDENT], with following observations :
"In the normal circumstances, the FIR number should not find mention in the recovery memo or the sketch plan which had come into existence before the registration of the case. However, from the perusal of the recovery memo, I find that the FIR is mentioned whereas the sketch plan does not show the number of the FIR. It is not explained as to how and under what circumstances the recovery memo came to bear the FIR no. which had already come into existence before the registration of the case. These are few of the circumstances which create a doubt, in my mind, about the genuineness of the weapon of offence alleged to have been recovered from the accused."
CONCLUSION :
12. For abovesaid reasons, it is held that prosecution failed to prove its case against the accused beyond reasonable doubts. Therefore, I order for acquittal of the accused.
Announced in the open court ( [ENTITY] ) th on 30 Day of April, 2011 MMI (East) Page no. 9 of 8 St. vs. [ENTITY]; FIR No. 445/99 (total eight pages) Karkardooma Courts, Delhi. Page no. 10 of 8 St. vs. [ENTITY]; FIR No.