IN THE COURT OF MS [ENTITY]: MM04, SE, SAKET COURTS, NEW DELHI State Vs : [ENTITY] & Anr. FIR No : 821/15 U/s : 25 [ACT] PS : Govindpuri J U D G M E N T
A. Sl. no. of the case : 248/15 B. Offence complained of or proved : U/[SECTION] of [ACT] Date of Offence : 23.06.2015 D. Name of the complainant : Insp. [ENTITY], No. DI/452, PIS No. 28871171, Special Staff, Madangir, South East District, New Delhi E. Name of the accused : (1) [ENTITY] S/oSh. [ENTITY] R/o Village Bamdola, PS & Distt. Jhajjar (Haryana) (2) [ENTITY] S/o Sh. [ENTITY] R/o Village Bamdola, PS& Distt. Jhajjar (Haryana) F. Plea of the accused : Pleaded not guilty. G. Final order : Convicted H. Date of Order : 19.01.2016 BRIEF REASONS FOR DECISION:
1. It is the case of the prosecution that on 23.06.2015 at around 12.10 AM at Red Light R.D. Marg, Metro Station Govindpuri, accused [ENTITY] was arrested and from his possession one pistol 32 bore was found. He was carrying pistol without any licence or permit. Similarly, from the possession of accused [ENTITY], one katta .315 bore was recovered which he was carrying without possession of any valid licence.
BRIEF FACTS OF THAT CASE
2. On 23.06.2015 at about 10.45 PM, Inspector [ENTITY] received a secret information from Ct. [ENTITY] that two persons namely [ENTITY] and [ENTITY] alongwith their 45 associates were coming to Govindpuri Metro Station for committing a crime. They were also carrying weapon with them and they were coming in swift car No. RJ14CX6429. Raiding party was formed. Thereafter, at about 12:10 PM, one swift car No. RJ14CX6429 came from the side of the Okhla. It was stopped at red light. There were six persons in the car. Police apprehended all of them. Name of those persons were [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY] and [ENTITY]. Nothing was recovered from the possession of [ENTITY], [ENTITY], [ENTITY] and [ENTITY]. The country made pistols were recovered from the possession of accused [ENTITY] and [ENTITY] and present case was registered against both of them. Above said swift car was found to be a stolen property from Rajasthan. The swift car was also seized.
3. Necessary investigation was carried out and the requisite documentation was done. On completion of the investigation, chargesheet was put to the Court. The copies of the chargesheet were supplied to both the accused persons and charge under [SECTION] of [ACT] was framed against accused [ENTITY] and [ENTITY]. They pleaded not guilty and claimed trial.
4. Prosecution has examined following witnesses to prove the case.
PW1 [ENTITY]: He is Duty Officer who has deposed regarding registration of FIR on receiving rukka.
PW2 Inspector [ENTITY]: He was posted at Special Staff, South East District. He got the secret information. He has deposed the manner in which the accused persons were apprehended and pistols were recovered from the possession of the accused persons.
PW3 Ct. [ENTITY]: He had deposed two exhibits markA from the Malkhana PS Govindpuri and he had deposed these exhibits at CFSL Lodhi Raod, Delhi.
PW4 [ENTITY]: He was part of raiding party and he has deposed the manner in which the raid was conducted and both the accused persons were apprehended.
PW5 SI [ENTITY]: He had done further investigation of the present case. He had done investigation after registration of the FIR. He has arrested the accused persons.
PW6 [ENTITY]: He has deposed that one country made pistol alongwith one live cartridge and one more pistol alongwith one live cartridge in two different pullinda were deposited in the Malkhana. He has further deposed that on 15.07.2015, Ct. [ENTITY] took both the exhibits marked as markA and markB from the Malkhana police station Govindpuri for depositing the same in CFSL Lodhi Road.
No other witness was examined by the Prosecution. Thereafter, PE was closed.
5. Statement of both the accused persons was recorded under [SECTION] [ACT] Accused persons have taken a defence that no pistol was recovered from their possession. They have also stated that they were picked up from one hotel at Subana, Jhajjar, Haryana.
6. I have heard Ld. APP for State and Ld. defence counsel and have carefully gone through the entire material available on record.
7. Ld. APP has contended that Prosecution has proved its case beyond all reasonable doubt. He has argued that all the material witnesses have entered into witness box and they have fully supported the case of Prosecution. He has argued that minor contradictions are bound to appear in any criminal matter and in the case in hand, there is no material contradiction which may create any doubt about the authenticity and veracity of the prosecution case and all the documents have been duly proved.
8. On the other hand, Ld. defence counsel has assailed the case of the Prosecution. 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 makes it evident that the knife had been planted upon accused.
9. I have given my thoughtful consideration to the rival contentions and carefully perused the entire material available on record. There are two recovery witnesses i.e. PW2 Inspector [ENTITY] and PW4 [ENTITY]. PW2 Inspector [ENTITY] has deposed that on 22.06.2015, he was posted as Inspector Special Staff, South East District, New Delhi. On that day, at about 10:45PM Ct. [ENTITY] along with one secret informer came to his office and informed that two persons namely [ENTITY] and [ENTITY] along with their 4/5 associates were coming to Govind Puri Metro Station in a white Swift car bearing registration No. DL14CX6429. He further informed that they had in their possession some illegal arms and are habitual dacoits. He informed them that if they go there at about 12:00 night at Govind Puri Metro Station, New Delhi, then these persons can be apprehended with illegal arms and the above said looted car. PW2 has further stated that he informed the same to his superior officer / ACP and asked for necessary action. He has also stated that he constituted a raiding party consisting Head Const. [ENTITY], Head Const. [ENTITY], Head Const. [ENTITY], Const. [ENTITY], Const. [ENTITY], Const. [ENTITY], Const. [ENTITY] and Const. [ENTITY]. He made departure entry. Thereafter, he along with the abovesaid raiding party and the secret informer went to Govindpuri Metro Station in a Government Gypsi. There, the informer informed that the above said Swift car would come from Okhla side. At about 12:10 AM, a Swift car bearing registration No. DL14CX6429 came from Okhla side direction and after taking a left turn on RD Marg, it was stopped in the left side of Govind Puri Metro Station. Total 56 boys were present in that car. Secret informer informed that these were the same boys regarding whom he gave the above said information. Thereafter, secret informer left the spot and he communicated the signal to the raiding party by scratching his head. The raiding party surrounded the car. Thereafter, driver of the car was taken out of the car. The name of the driver was [ENTITY]. They conducted his formal search but no suspicious article was recovered from his possession. Thereafter, the person who was sitting on the conductor seat was taken out of the Car. His name was [ENTITY]. His formal search was also conducted and a countrymade pistol was recovered from him. Thereafter, the boy who was present on the backside seat and behind the driver seat were taken out of the car. His name was [ENTITY]. His formal search was conducted and a countrymade pistol was recovered from him. The remaining three boys who were sitting on the back seat along with [ENTITY] were also taken out from the car one by one. Their formal search was also conducted but no suspicious article was recovered from their possession. Their names were [ENTITY], [ENTITY] and [ENTITY]. He prepared sketch Ex. PW2/A of the countrymade pistol which was recovered from the possession of [ENTITY]. That pistol was loaded and the sketch was prepared after unloading the pistol. The case FIR number was recorded on the sketch paper after registration of FIR. After taking its measurement the unloaded pistol and the magazine were seized after putting them in a plastic container and with the help of doctor tape, pullinda was prepared and it was sealed with the seal of NKY. The seizure was done vide seizure memo Ex.PW2/B. Thereafter, he prepared sketch PW2/C of the countrymade pistol which was recovered from the possession of [ENTITY]. That pistol was loaded and the sketch was prepared after unloading the pistol. The case FIR number was recorded on the sketch paper after registration of FIR. After taking its measurement the unloaded pistol and the magazine were seized after putting them in a plastic container and with the help of doctor tape, pullinda was prepared and it was sealed with the seal of NKY. The seizure was done vide seizure memo Ex.PW2/D. The seal after use was handed over to Head Const. [ENTITY]. Thereafter, they were asked about the ownership of the abovesaid Swift Car but they could not give any satisfactory answer. On further interrogation, they informed them that car was lotted from Village Bisau, District Churu, Rajasthan. When, PW2 Inspector [ENTITY] crosschecked the disclosure regarding the car on internet, he found that the said car was reported as a looted one from PS Sadar Churu, Rajasthan. Thereafter, said car was seized vide seizure memo Ex.PW2/E. The rukka was prepared and Head Const. [ENTITY] was sent to the Police Station for registration of the FIR. After registration of FIR Head Const. [ENTITY] and SI [ENTITY] came at the spot. PW2 Inspector [ENTITY] handed over the all the apprehended persons, prepared documents and the seized property to SI [ENTITY]. SI [ENTITY] prepared site plan at his instance. PW2 Inspector [ENTITY] has correctly identified accused persons in the Court. He has also correctly identified the case properties. Hence, record reveals that the deposition of the witness about the recovery part has gone unrebutted.
10. The other recovery witness i.e. PW4 [ENTITY] has also deposed on similar lines. He supported and corroborated the version of PW2 Inspector [ENTITY] on all the material aspects. He has deposed that after recovering the pistols, their sketches were prepared. He has mentioned about sealing the case property. He has deposed that after preparing the rough sketch, the pistols were kept in pullandas and were sealed with the seal of 'NKY'.
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.
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] [ACT] 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 [PRECEDENT] that "The scope of these two sections ([SECTION] and [SECTION] of [ACT]) have been examined in a number of cases. In [PRECEDENT] this Court has clearly held that irregularity in a search cannot vitiate the seizure of the articles. In [PRECEDENT], 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 [PRECEDENT], 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 [ACT]. In [PRECEDENT], 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 [PRECEDENT] 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 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 country made pistols have been proved by prosecution. There is no reason to doubt the testimony of the witnesses merely because they are police personnel. It has been held by the Hon'ble Supreme Court in [PRECEDENT]:
" 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. Both recovery witnesses have deposed that PW2 Inspector [ENTITY] had asked some passersby to join the investigation but none of them agreed. In such circumstances, testimonies of police witnesses cannot be brushed aside. The sealed case property was produced during examination of witnesses and seal on case property was found in intact condition.
15. The arrest memo of accused persons have been proved on record as Ex. PW4/A and Ex. PW4/B. It further lends support to the version of witnesses that accused persons were apprehended at the spot. The FIR has been registered promptly and there is no inordinate delay which may raise any doubt. The unrebutted testimony of police personnels and the other material on record has established the charges against the accused. The defence raised by accused persons is unbelievable. Hence, Prosecution has been able to prove its case beyond reasonable doubts. Accordingly, accused persons namely [ENTITY] and [ENTITY] stand convicted for the offence under [SECTION] of [ACT].
Announced in open Court ([ENTITY]) On 19.01.2016 MM04, SouthEast District, Saket Courts, Delhi