IN THE COURT OF Dr. [ENTITY], [ENTITY] (SOUTHWEST), DWARKA COURTS, NEW DELHI [ENTITY] v. [ENTITY] FIR No. 24/2013 Police Station : Najafgarh Under Section : 25 [ACT] Unique Computer ID Number : 428140/2016 Date of institution : 13.03.2013 Date of reserving : Oral Date of pronouncement : 19.01.2019 JUDGMENT
a) Serial Number of the Case : 157/3/2014 b) Date of commission of offence : 29.01.2013 c) Name of the complainant : Sub Inspector [ENTITY], No. D1731, PS Najafgarh.
d) Name, parentage and address : [ENTITY] S/o Late Sh. of the accused [ENTITY], R/o House No. 1441, Saini Mohalla, Najafgarh, Delhi. e) Offence complained of : [SECTION] [ACT] f) Plea of the accused : Accused pleaded not guilty and claimed trial g) Final order : Accused [ENTITY] stands acquitted of the offence charged with. h) Date of final order : 19.01.2019 [ENTITY] v. [ENTITY] BRIEF STATEMENT OF FACTS AND REASONS FOR THE DECISION CASE OF PROSECUTION
1. Briefly stated, the case of the prosecution as unfolded by the police report under [SECTION] of the [ACT] (hereinafter referred to as '[ACT]') is that on 29.01.2013, during the investigation of case FIR no. 377/2010, PS Najafgarh, U/[SECTION] [ACT], accused [ENTITY] who was on police custody remand, upon interrogation made a disclosure statement that he is having a desi katta and live rounds kept by him in the iron almirah of his house. The said supplementary disclosure statement of accused [ENTITY] was reduced into writing and pursuant to the same, SI [ENTITY] alongwith Inspector [ENTITY] (IO of case FIR no. 377/2010) went to the house of the accused alongwith the accused where accused [ENTITY] took out one yellow colour polythene bag of Mamta Saree Centre from the drawer of an iron almirah kept in a room on the first floor of his house. On checking the polythene bag, it was found containing one country made pistol and three live cartridges wrapped in a newspaper 'Nayi Duniya dated 03.03.2012 Saturday'. The country made pistol and the cartridges were handed over by Inspector [ENTITY] to SI [ENTITY] with directions to conduct further investigation. SI [ENTITY] prepared sketch of the country made pistol and the live cartridges, sealed them in a white colour cloth pulanda with the seal of AK and seized them [ENTITY] v. [ENTITY] vide seizure memo. SI [ENTITY] prepared rukka and got the FIR registered through [ENTITY]. After registration of the FIR, further investigation was marked to SI [ENTITY] who also reached at the spot. SI [ENTITY] prepared site plan at the instance of SI [ENTITY] and formally arrested the accused in the present case. During further investigation, the investigating officer sent the exhibits to the FSL Rohini for expert opinion and obtained the FSL result. Sanction under [SECTION] [ACT] was obtained from the concerned DCP.
COURT PROCEEDINGS
2. Upon completion of investigation, police report under [SECTION] of the [ACT] (hereinafter referred to as '[ACT]') was filed.
3. The copies of the police report and annexed documents were supplied to the accused in due compliance of [SECTION] [ACT]
CHARGE
4. Vide order dated 22.05.2013, charge for the offence punishable under [SECTION] of the Act was framed against the accused to which he pleaded not guilty and claimed trial.
ADMISSION/DENIAL OF DOCUMENTS
5. Vide orders dated 30.10.2018 and 10.01.2019, in compliance with the provisions of [SECTION] of the [ACT], the accused was called upon to admit or deny the genuineness of the FIR, FSL result and permission U/[SECTION] [ACT] which were admitted by the accused [ENTITY] v. [ENTITY] and were accordingly exhibited as Ex.A1, Ex.A2 and Ex.A3 and the witnesses cited to prove these documents were accordingly dropped from the array of witnesses.
EVIDENCE OF THE PROSECUTION
6. To prove its case, the prosecution in all examined seven witnesses.
7. PW1 [ENTITY] was member of the team that had gone to the house of the accused during investigation of case FIR no. 377/2010 and is a recovery witness. PW2 Sh. [ENTITY], Junior Judicial Assistant had brought the record of case FIR no. 377/2010 containing the supplementary disclosure statement of the accused and the same was exhibited as Ex.PW2/1. PW3 SI [ENTITY] is also one of the recovery witnesses/complainant/part IO of the case. PW4 [ENTITY] [ENTITY] had deposited the case property in at FSL Rohini for expert opinion. PW5 Retired SI [ENTITY] is the second IO of the case. PW 6 Retired Inspector [ENTITY] is the IO of the case FIR no. 377/2010 and a recovery witness in the present case. 1 STATEMENT / DEFENCE OF THE ACCUSED
8. In his examination under [SECTION] [ACT] read with [SECTION] [ACT], the accused denied the entire evidence put to him. He categorically stated that he is innocent and has been falsely implicated in the present case by the police officials by planting the case property upon him. The accused did not lead any evidence in his defence.
[ENTITY] v. [ENTITY] ANALYSIS AND FINDINGS
9. The record has been thoroughly and carefully perused. The respective submissions of learned Assistant Public Prosecutor for the [ENTITY] and learned counsel for the accused have been considered.
10. The case of the prosecution is that on the fateful day accused [ENTITY] got recovered illegal arm and ammunition which he was possessing in contravention of the notification issued by the Delhi Administration. In order to bring home the charge against the accused, the prosecution was required to prove beyond reasonable doubt the recovery of the illegal arm from the possession of the accused.
11. A perusal of the record evidently reveals that no public witness to the recovery of the countrymade pistol and cartridges has either been cited or examined by the prosecution. It is not the case of prosecution that public witnesses were not present at the spot as admittedly, the recovery of the arms and ammunition was effected from the house of the accused i.e. from a residential colony at 04.30 pm i.e. broad day light. Thus, public persons must have been easily available at the spot. However, no serious effort for joining public witnesses appears to have been made by the investigating officer or the recovery witnesses despite availability.
12. It is a well settled proposition that nonjoining of public witness shrouds the fairness of the investigation by police in doubt. Reliance is placed on the decision of the Hon'ble High Court of Delhi in [PRECEDENT]. This Court is, [ENTITY] v. [ENTITY] however, conscious that the prosecution case cannot be thrown out or doubted on the sole ground of nonjoining of public witnesses as public witnesses keep themselves away from the Court unless it is inevitable, as has been held in Appabhai and another v. [ENTITY] of Gujarat, AIR 1988 SC 696. However, in the present case, it is not only the absence of public witnesses which raises a doubt on the prosecution version but there are other circumstances too, as discussed hereinafter, which raise suspicion over the prosecution version and the same are being discussed in the following paragraphs.
13. As per the police report, the case property was sealed with the seal of AK and the seal after use was handed over to [ENTITY] who has been examined in the court as PW1. [ENTITY] while being examined as PW1 stated that he does not remember as to whom the seal after use was handed over. Further, at the time of handing over the said seal to [ENTITY], who was also a member of the raiding team and was a recovery witness, admittedly, no handing over memo had been prepared regarding the seal. Moreover, neither the seal was not handed over to any independent witness nor was it deposited in the malkhana to assail the possibility of its misuse. Thus, the possibility that the case property may have been tampered with cannot be ruled out. Reliance is placed on the decision of the Hon'ble High Court of Delhi in Abdul Ghaffar v. The [ENTITY], 1996 JCC 497.
Other infirmities in the prosecution case
14. Further as per PW3 SubInspector [ENTITY], first of all he [ENTITY] v. [ENTITY] prepared the sketch of the countrymade pistol and cartridges recovered from the accused i.e. EX.PW1/A and thereafter, he seized the country made pistol and cartridges vide memos Ex.PW3/1. It was thereafter that he prepared the tehrir Ex.PW3/2 and sent the same to the police station for registration of FIR. The FIR was, therefore, admittedly registered after the preparation of these documents Ex.PW1/A and Ex.PW3/1. Accordingly, it follows that the number of the FIR would have come to the knowledge of the complainant/PW3 SubInspector [ENTITY] only after a copy of the FIR was delivered to him at the spot. Thus, ordinarily, the FIR number should not find mention in the seizure memo or sketch of countrymade pistol and cartridges which came into existence before registration of the FIR. However, in both these documents, the FIR number has been specifically endorsed. Although PW5 Retired SI [ENTITY] during the course of his crossexamination stated that the FIR number was endorsed on these documents by him but the same does not find mention anywhere in the entire chargesheet. Even PW5 Retired SI [ENTITY] did not voluntarily mention this fact during the course of his examination in chief and it was only on being crossexamined that he became wiser and stated so. The the benefit of the same ought to accrue to the accused.
15. Another lacuna in the prosecution case which is fatal to it is that the complainant himself acted as the investigating officer to a great extent. It was on the complaint of SubInspector [ENTITY] that the [ENTITY] v. [ENTITY] FIR was lodged in the present case and he, therefore, became the complainant. It is the prosecution's case that after recovery of the illegal arm and ammunition at the instance of the accused, Sub Inspector [ENTITY] prepared the sketch of the country made pistol and live cartridges recovered from the accused, seized the recovered arm and ammunition and thereafter prepared tehrir and sent it for registration of FIR. In Megha Singh v. [ENTITY] of Haryana, AIR 1995 SC 2339, the Hon'ble Apex Court observed in paragraph 4 as under:
" We have also noted another disturbing feature in this case. PW3, [ENTITY], head Constable arrested the accused and on search being conducted by him a pistol and the cartridges were recovered from the accused. It was on his complaint a formal first information report was lodged and the case was initiated. He being complainant should not have proceeded with the investigation of the case. But it appears to us that he was not only the complainant in the case but he carried on with the investigation and examined witnesses under [SECTION], [ACT] Such practice, to say the least, should not be resorted to so that there may not be any occasion to suspect fair and impartial investigation." (emphasis supplied) In the instant case as well, SubInspector [ENTITY], i.e. the complainant, acted as an investigating officer inasmuch as having recovered the countrymade pistol and cartridges at the instance of accused, instead of sending the information at the police station and waiting for the other investigating officer to arrive at the spot, he [ENTITY] v. [ENTITY] proceeded not only to prepare the sketch of the illegal arm and ammunition so recovered but also sealed and seized the case property before arrival of any other investigating officer from the police station. The situation would have been different if the rukka would have been prepared on the statement of Inspector [ENTITY], the IO of the case FIR no. 377/2010, however, that is not the case in hand. The same leaves room for doubting the fairness of the investigation.
Departure entries neither filed nor proved
16. The present case rests entirely on the alleged recovery of case property, i.e. illegal arm and ammunition at the instance of the accused during investigation of case FIR no. 377/2010 while the accused was in police custody. As per [SECTION] of the [ACT], police officials are under a statutory duty to mark their departure and arrival in the register kept in the police station for the purpose. This is more particularly in view of the fact that in the instant case, the police officials had not left the police station for mere patrolling, rather they had left for investigation of case registered U/[SECTION] of the [ACT] for the purpose of recovering an arm pursuant to the disclosure of the accused, thus, the DD entry regarding their departure from the police station becomes a vital piece of evidence especially in view of the fact that public witnesses were not joined in the investigation. However, neither any such DD entry has been filed or proved on record nor there is mention of any such DD entry in the entire police report and the documents annexed with it. Proof of the [ENTITY] v. [ENTITY] said DD entry is, however, indispensable as the present case rests solely on the alleged recovery made by police officials. It is also relevant to note here that despite the fact that no such DD entry writer has even been cited as a witness by the IO, on the request of Ld. APP for the [ENTITY], prosecution was given an opportunity to summon the DD writer from the concerned PS with the relevant DD entries, however, despite various opportunities having been awarded to the prosecution, no such entries could be produced on record.
Re: Contradictions in the testimony of prosecution witnesses
17. There are several contradictions and lacunas in the testimony of prosecution witnesses on various aspects.
18. While as per PW1 [ENTITY], the IO asked the neighbours of the accused to join investigation and they joined the investigation with them, there is nothing on record to show that any public witness was joined in the investigation at any point of time. PW1 [ENTITY] added that the IO had inquired from 57 persons. Contrary to this, as per PW 3 SI [ENTITY], no public person was asked by him or Inspector [ENTITY] to join investigation.
19. It also finds merit to mention here that while as per the rukka, it was departed from the spot at 06.40 pm, as per the FIR, written information at the police station was received at 06.45 pm. Meaning thereby that [ENTITY] had reached the police station within five minutes of leaving the spot which is quite strange.
20. One more aspect which raises doubt over the prosecution story [ENTITY] v. [ENTITY] is that in the rukka itself, it has been stated by the complainant SI [ENTITY] as to whom the further investigation is to be marked.
21. Admittedly, no efforts were made by the investigating team to lift any chance prints from the recovered illegal arm and ammunition.
CONCLUSION
22. In view of the aforesaid facts and circumstances of the case, this Court is of the considered opinion that the benefit of doubt ought to be granted to accused [ENTITY], who is entitled to be exonerated of the charges against him in the present case. Accused [ENTITY] accordingly stands acquitted of the offence punishable under [SECTION] of the Act. Case property be confiscated to [ENTITY] as per rules.
21. Provisions of [SECTION] [ACT] have been complied with.
22. File be consigned to record room.
Announced in open Court on 19.01.2019.
([ENTITY]) [ENTITY] SOUTH WEST DISTRICT, DWARKA COURTS NEW DELHI.
[ENTITY] v. [ENTITY]