IN THE COURT OF SH. [ENTITY] METROPOLITAN MAGISTRATE, SOUTH DISTRICT SAKET COURTS, NEW DELHI FIR No. 33/2010 P.S. Sarita Vihar U/[SECTION] [ACT] State Vs. [ENTITY] JUDGMENT :
a. Sl. No. of the case : 204/3 b. Date of Institution : 17.02.2010 c. Date of Commission of Offence : 02.02.2010 d. Name of the complainant : [ENTITY] PS Sarita Vihar e. Name of the accused and his : [ENTITY] parentage and address S/o Late [ENTITY] R/o B399,Gautam Puri, Phase2, Badarpur, New Delhi f. Offence complained of : U/[SECTION] [ACT] g. Plea of the accused : Pleaded not guilty h. Order reserved : 18.09.2012 i. Final Order : Acquitted j. Date of such order : 18.09.2012
1. The accused in this case was sent up for trial for the commission of offence U/[SECTION] [ACT].
FIR NO. 33/2010 PAGE 1 OF PAGE 7 [ENTITY] 2. The facts in brief are that on 02.02.2010, [ENTITY] while
patrolling duty at [ENTITY], at about 10.00 p.m. he saw accused who on seeing him started running with fast paces towards the bus stop. On this, [ENTITY] chased the accused and apprehended him and on his search, one buttondar knife was recovered from his possession. During inquiry the name of accused was revealed as [ENTITY]. 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 17.03.2010, under [SECTION] [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, [ENTITY] as PW2 and ASI [ENTITY] as PW3.
5. PW1 [ENTITY] has testified that on 02.02.2010, on receipt of rukka through [ENTITY], he recorded the present case FIR which is Ex. PW1/A. His endorsement on rukka is Ex. PW1/B. Accused did not prefer to cross examine PW1.
6. PW2 [ENTITY] has testified that on 02.02.2010, while patrolling duty at [ENTITY] at about 10.00 p.m., he saw one person who on FIR NO. 33/2010 PAGE 2 OF PAGE 7 [ENTITY] seeing him started moving fast towards the bus stop. PW2 further testified that he apprehended him after chasing 1015 steps and on his search, one buttondar knife was recovered from his right dub of his wearing pant. PW2 further testified that he informed at PS. PW2 further testified that on inquiry, his name was revealed as [ENTITY] present in the court. PW2 further testified that in the meantime, HC [ENTITY] reached the spot to whom he handed over the accused along with the case property. PW2 further testified that IO asked 34 public persons to join the investigation but none agreed and left the place on their justified excuses. PW2 further testified that IO opened the knife and prepared the sketch of the same. PW2 further testified that IO seized the knife vide memo Ex. PW2/A and put the seal of SCS and seal after use was handed over to him. PW2 further testified that IO prepared the rukka which is Ex. PW1/B and handed over the same to him for the registration of FIR. PW2 further testified that IO prepared the site plan and arrested the accused and conducted his personal search vide memo Ex. PW2/B and 2/C respectively. PW2 correctly identified the case property which is Ex. P1. Accused did not prefer to cross examine PW2 also.
7. PW3 ASI [ENTITY] has testified that on 02.02.2010, on receipt of DD no.48A, he reached the spot i.e. [ENTITY] beat no.9 at about 10.30 p.m and there he met with [ENTITY] who handed over the accused [ENTITY] present in the court along with the recovered knife to him. PW3 further testified that he asked 34 public persons FIR NO. 33/2010 PAGE 3 OF PAGE 7 [ENTITY] to join the investigation but none agreed and left the place on their justified excuses. PW3 further testified that he opened the knife and prepared the sketch of the same which is Ex. PW3/A. He seized the knife vide seizure memo Ex. PW2/A and put the seal of SCS and seal after use was handed over to [ENTITY]. PW3 further testified that he prepared the rukka vide Ex. PW1/B and handed over the same to [ENTITY] for the registration of FIR. PW3 further testified that he prepared the site plan vide memo Ex. PW3/B. He arrested the accused and conducted his personal search vide memo Ex. PW2/B and 2/C. Accused did not prefer to cross examine PW3 also.
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 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. All the witnesses produced by the prosecution are police officials. In the present case, PW2 is the material witness as recovery FIR NO. 33/2010 PAGE 4 OF PAGE 7 [ENTITY] has been effected by him from the possession of the accused. PW1 is the duty officer who recorded the FIR Ex. PW1/A and PW3 the IO of case who had done all the documentary proceedings.
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 the weapon. PW2 and PW 3 in their testimony have deposed that they asked 34 public persons to join the investigation but none of them agreed and left the place on justified excuses. The witness to the recovery being police official, 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 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 FIR NO. 33/2010 PAGE 5 OF PAGE 7 [ENTITY] 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. PW2 in his testimony has deposed that the seal after use was handed over to him by the IO. PW3/IO has also deposed the same facts 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, no DD entry in respect of PW2 is proved on record to establish that he was actually present in the area at the relevant time in connection with patrolling of the area. Thus the presence of this witness 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.
FIR NO. 33/2010 PAGE 6 OF PAGE 7 [ENTITY]
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 18.09.2012 Metropolitan Magistrate South East District/New Delhi FIR NO. 33/2010 PAGE 7 OF PAGE 7 [ENTITY] PS Sarita Vihar u/[SECTION] [ACT] 18.09.2012 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/SE/18.09.2012 FIR NO. 33/2010 PAGE 8 OF PAGE 7 [ENTITY]