IN THE COURT OF SHRI [ENTITY]: METROPOLITAN MAGISTRATE04 (SOUTH), SAKET COURTS:NEW DELHI State Vs. [ENTITY] FIR No. 213/2004 U/[SECTION] [ACT] J U D G M E N T Serial No. of the Case : 13/3 [CASE NUMBER] Date of Institution : 22.09.2004 Date on which case reserved for judgment : 01.08.2012 Date of judgment : 08.08.2012 Name of the complainant : SI [ENTITY], No.D3105, PS Kotla Mubarakpur. Delhi Date of the commission of offence: 27.04.2004 Name of accused : [ENTITY] s/o Sh. [ENTITY] r/o H. No. P703, Sewa Nagar, New Delhi FIR No. 213/2004 P.S. Kotla Mubarakpur Page No.1 of 8 Offence complained of : U/[SECTION] [ACT] Offence charged of : U/[SECTION] [ACT] Plea of the accused : Pleaded not guilty. Final order : Acquitted Date of Institution : 22.09.2004 Date on which case reserved for judgment : 01.08.2012 Date of judgment : 08.08.2012 BRIEF STATEMENT OF REASONS FOR THE DECISION OF THE CASE BRIEF FACTS:-
The accused [ENTITY] has been sent up for trial by the Police of P.S. Kotla Mubarakpur for an alleged offence under [SECTION] of [ACT]. The brief facts of the prosecution case are that on 27.04.2004 at about 10:00PM at Near Sewa Nagar, PBlock Park, New Delhi, within the jurisdiction of Police Station Kotla Mubarakpur, the accused was found in unlawful possession of a button operated knife, without any license or permit in contravention of notification of the Delhi Government.
2. The report U/[SECTION] [ACT] was filed on 22.09.2004. Cognizance of the offence was taken. Compliance of [SECTION] [ACT] was done.
3. Charge for the offence U/[SECTION] [ACT] against the accused was framed on 14.02.2005. Accused pleaded not guilty and claimed trial. PROSECUTION EVIDENCE :
4. The prosecution to prove its case examined 2 (two) PWs in all.
PW1 Inspector [ENTITY] stated, on 27.04.2004 I was posted at PS Kotla Mubarakpur. I along with Ct. [ENTITY] & Ct. [ENTITY] were on patrolling duty and reached at PBlock, Sewa Nagar Park, New Delhi at 10:00PM. We saw one person was standing at the corner of the park and on seeing us, he tried to run away. On suspicion we apprehended him. Name of that person revealed as [ENTITY]. We took the formal search of accused. One buttondar knife was recovered from his right side pocket of wearing pants. I prepared the sketch of knife vide memo Ex.PW1/A bears my signature at point X. The total length of the knife was 23.9cm, handle was 13.4cm & blade was of 10.5cm and width of blade was 2.5cm respectively. I prepared the pullanda of knife and sealed the same with the seal of AK which is Ex.PW1/B bearing my signature at point X. After using the seal was handed over to Ct. [ENTITY]. I prepared the rukka Ex.PW1/C bears my signature at point X and handed the same to Ct. [ENTITY]. He went for registration of FIR. After registration of FIR he came back at spot along with [ENTITY] and handed over copy of FIR and original rukka to me. I handed over the accused, recovered case property and documents to [ENTITY]. [ENTITY] prepared site plan at my instance. [ENTITY] recorded my statement. Thereafter I was relieved from duty. I can identify the accused, if shown to me.
The case property i.e. buttondar knife is Ex.P1.
PW2 [ENTITY] corroborated the testimony of PW1. PW2 further stated, IO prepared the rukka and handed the same to me. I went for registration of FIR. After registration of FIR I came back at spot and handed over copy of FIR and original rukka to IO. In the meantime [ENTITY] also reached the spot. SI [ENTITY] handed over the accused and recovered care property to HC [ENTITY]. IO [ENTITY] prepared site plan at the instance of SI [ENTITY]. IO [ENTITY] arrested and conducted personal search of accused vide memos Ex.PW2/A & PW2/B which bears my signatures at points A respectively. I identify the accused present in the court today.
The case property i.e. buttondar knife is already Ex.P1. Vide statement dated 19.10.2011, the accused admitted the genuineness of FIR No.213/04.
Vide order dated 20.07.2012, PE was closed.
STATEMENT OF ACCUSED :
5. On 23.07.2012 statement of accused U/[SECTION] [ACT] was recorded. It was stated by the accused that he has been falsely implicated. Accused did not wish to lead defence evidence.
DEFENCE EVIDENCE :
6. No defence evidence has been led by the accused.
ARGUMENTS :
7. Arguments were advanced by the Ld. APP for the State and Ld. Counsel for the accused.
Ld. APP for the State has argued that the button operated knife was recovered from the possession of the accused in contravention of the notification issued by Delhi Administration and therefore he is liable to be punished for offence under [SECTION] of the [ACT].
It was submitted by Ld. Counsel for the accused that the accused has been falsely implicated. No public witness was joined in the investigation. PW1 & PW2 during their examinationinchief did not state that any effort was made to join the public witness. PW2 during his crossexamination admitted that the spot of incident is a busy place, at the time of incident, public persons were frequenting the spot of incident.
REASONING :
8. Firstly no independent public person was joined in the investigation/proceedings to witness the recovery/search/proceedings. A mere bald explanation that public persons were requested to join the proceedings but they declined and went away without disclosing their names and addresses has been put forth by the police. Admittedly no written requisition was made by the police to any public persons to join the investigation. It is not believable that such public persons went away without disclosing their names and addresses when requested by the police. It cannot be said that none of the independent public witness was available at the time of recovery or while recording of proceedings. In fact what emerges from the record is that no public witness was joined in the investigation/search/seizure despite the fact such public persons were available and what is being stated by the PWs is a mere lame excuse to cover up the lacuna and no sincere efforts were made to associate independent public witnesses during the investigation.
9. The failure on the part of the investigating agency to join public witnesses especially when they are available also casts a doubt on the prosecution story. No plausible explanation is coming from the prosecution for non joining of independent witnesses. Reference may be made to the judgment titled as "[PRECEDENT], "Pawan Kumar v. Delhi Admn." reported as 1989 CRI. L. J. 127 (Delhi HC) and [PRECEDENT].
10. Further it is alleged that PW1 & PW2 were on patrolling however no DD entries have been placed on record/proved to establish the departure and arrival of these police officials on patrolling.
11. In the judgment titled as "[PRECEDENT] the Hon'ble supreme Court held :
" In our view, the onus of proving all the ingredients of an offence is always upon the prosecution and at no stage does it shift to the accused. It is no part of the prosecution duty to somehow hook the crook. Even in cases where the defence of the accused does not appear to be credible or is palpably false that burden does not become any the less. It is only when this burden is discharged that it will be for the accused to explain or controvert the essential elements in the prosecution case, which would negative it. It is not however for the accused even at the initial stage to prove something which has to be eliminated by the prosecution to establish the ingredients of the offence with which he is charged, and even if the onus shifts upon the accused and the accused has to establish his plea, the standard of proof is not the same as that which rests upon the prosecution "
12. The onus and duty to prove the case against the accused is upon the prosecution and the prosecution must establish the charge beyond reasonable doubt. It is also a cardinal principle of criminal jurisprudence that if there is a reasonable doubt with regard to the guilt of the accused the accused is entitled to benefit of doubt resulting in acquittal of the accused. Reference may also be made to the judgment titled as [PRECEDENT].
13. For the forgoing reasons, I hold that the prosecution has failed to prove its case against the accused beyond reasonable doubt. Benefit of doubt is given to the accused. The accused is accordingly acquitted of the offence punishable U/[SECTION] [ACT].
14. Case property be confiscated to the State.
15. File be consigned to Record Room after due compliance.
Pronounced in open court ([ENTITY]) on 08.08.2012 MM04(South):Saket Courts:New Delhi 08.08.2012