IN THE COURT OF SH. [ENTITY] METROPOLITAN MAGISTRATE, SOUTH EAST DISTRICT SAKET COURTS, NEW DELHI FIR No.861/07 P.S. Sarita Vihar U/[SECTION] [ACT] State Vs. [ENTITY] JUDGMENT :
a. Sl. No. of the case : 131/3 b. Date of Institution : 29.02.2008 c. Date of Commission of Offence : 23.11.2007 d. Name of the complainant : ASI [ENTITY] PS Sarita Vihar e. Name of the accused and his : [ENTITY] parentage and address S/o [ENTITY] R/o H.no.83, Attu Alanur, Shabad Gate, Rampur, U.P. f. Offence complained of : U/[SECTION] [ACT] g. Plea of the accused : Pleaded not guilty h. Order reserved : 25.02.2013 i. Final Order : Acquitted j. Date of such order : 25.02.2013 1. The accused in this case was sent up for trial for the commission of offence U/[SECTION] [ACT]. FIR NO. 861/2007 PAGE 1 OF PAGE 6 [ENTITY]
2. The facts in brief are that on 23.11.2007, on receipt of DD No.30A, IO/ ASI [ENTITY] along with Ct. [ENTITY] went to LPocket Mor, Sarita Vihar, where large number of public persons were present and they were beating the accused. The accused was rescued with the help of Constable [ENTITY] and on inquiry, his name was revealed as [ENTITY]. On casual search of accused, one iron rod and one buttondar knife was recovered from his possession. Thereafter a tehrir was prepared. During the investigation site plan was prepared. Statement of witnesses were recorded. Accused was arrested and after completing the other formal investigation, the challan was presented before the court for trial.
3. A prima facie case having been made out against the accused, charge was framed against the accused on 06.01.2011, 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 three witnesses namely [ENTITY] as PW1, ASI [ENTITY] as PW2 and Ct. [ENTITY] as PW3.
5. PW1 [ENTITY] has testified that on 23.11.07, on receipt of rukka through Ct. [ENTITY], he recorded the present case FIR vide Ex. PW1/A and his endorsement on rukka is Ex. PW1/B. Ld. counsel for accused did not prefer to cross examine PW1.
6. PW2 ASI [ENTITY] has testified that on 23.11.2007, on receipt of DD No.30A, he along with Ct. [ENTITY] went to LPocket More, FIR NO. 861/2007 PAGE 2 OF PAGE 6 [ENTITY] Sarita Vihar where a large number of public was gathered and they were beating to a person. PW2 further testified that the said person was rescued with the help of Ct. [ENTITY] and on inquiry, his name was revealed as [ENTITY]. On casual search of accused, one rod which was bent on both the sharp ends and one buttondar knife was recovered from his left leg socks. PW2 further testified that he had requested 45 public persons to join the investigation but none of them agreed and left the place without disclosing their names and addresses. PW2 further testified that he prepared the sketch of the recovered knife vide Ex. PW2/A. The knife was sealed with the seal of SCS and the seal after use was handed over to Ct. [ENTITY]. PW2 further testified that the rod and the knife was seized vide memo Ex. PW2/B and C. He prepared the rukka vide Ex. PW1/B and got the FIR registered through Ct. [ENTITY]. PW2 further testified that he prepared the site plan vide memo Ex. PW2/D. Accused present in the court was arrested and his personal search was conducted vide memo Ex. PW2/E and F. PW2 had correctly identified the case property as Ex. P1 and P2.
In his cross examination, PW2 has testified that he did not record the statement of any public witness as they refused to join the investigation.
7. PW3 Ct. [ENTITY] has also deposed the same facts as deposed by PW2.
8. After closing of prosecution evidence, statement of accused was recorded U/[SECTION] of [ACT] [ACT] In his statement, accused denied to have committed the offence and claimed to FIR NO. 861/2007 PAGE 3 OF PAGE 6 [ENTITY] have been falsely implicated in this case. Accused further denied to lead any defence evidence.
9. I have heard the Ld. APP for the State and the Ld. Counsel for the accused and have also perused the record.
10. In this case, the prosecution is required to establish beyond reasonable doubt that the accused was in possession of the arms without any valid license. In the present case, all the witnesses produced by the prosecution are police officials out of which PW2 and PW3 are the material witnesses as recovery has been effected by them from the possession of the accused.
11. In the present case, 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 knife and rod. In their testimony, PW2 and PW3 both have testified that request was made to public persons to join the investigation but none of them agreed and left the place without disclosing their names and addresses. 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].
12. Further it needs to be noted that the sketch memo and the seizure memo regarding the weapon bear the number of FIR. The prosecution has not FIR NO. 861/2007 PAGE 4 OF PAGE 6 [ENTITY] 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 the registration of the FIR. This gives rise to two inferences that either the FIR was recorded prior to the alleged recovery of the contraband 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 good deal of doubt about the recovery in the manner alleged by the prosecution. Reliance may be had to the decision of the Delhi High Court in [PRECEDENT].
13. 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. In his testimony, PW2 has testified that the seal after use was handed over to PW3. PW3 has also deposed the same facts in this regard as deposed by PW2. In such circumstances possibility of tampering with contents of sealed pullanda cannot be ruled out. It was very essential for the prosecution to have established that sealed pullanda was not tampered with. In this respect, the decision of the Delhi High Court in [PRECEDENT] may be referred to.
14. Moreover, the DD no.30A has not been proved on record to establish that PW2 and PW3 both were actually present in the area at the relevant time in connection with the investigation of the case. Thus the presence of these FIR NO. 861/2007 PAGE 5 OF PAGE 6 [ENTITY] witnesses at the alleged time itself is rendered doubtful. This view has been expressed by the Delhi High Court in [PRECEDENT].
15. All these infirmities in the prosecution evidence seriously reflects on the veracity of prosecution case the benefit whereof must go to the accused.
16. 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 25.02.2013 Metropolitan Magistrate South East District/New Delhi FIR NO. 861/2007 PAGE 6 OF PAGE 6 [ENTITY] PS Sarita Vihar u/[SECTION] [ACT] 25.02.2013 Present: Ld. APP for the State. Accused on bail with counsel.
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 readmitted to 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 by the surety for a period of six months from today.
File be consigned to Record Room.
([ENTITY]) MM/South East/25.02.2013 FIR NO. 861/2007 PAGE 7 OF PAGE 6 [ENTITY]