1 IN THE COURT OF MS. SUGANDHA AGGARWAL: METROPOLITAN MAGISTRATE (NORTH5) : DELHI. State Vs. Shakeel FIR No. 402/2005 PS Kotwali J U D G M E N T
(a) Sr. No. of the case 402/3 (b) Date of offence 13.9.2005 (c) Complainant Constable [ENTITY] (d) Accused [ENTITY], S/o Sageer, R/o H. No. 240, C Block, 25' Road, Shree Ram Colony, Kachhi Khajuri, Delhi. (e) Offence Under [SECTION] of [ACT]. (f) Plea of accused Pleaded not guilty. (g) Final Order Acquitted (h) Date of institution 14.9.2005 (i) Date when Not reserved judgment was reserved (j) Date of judgment 1/7/10
1. This judgment shall dispose off the case instituted under [SECTION] of [ACT] against the accused.
2. The allegations against the accused, as detailed in the charge sheet are that on 13.9.2005, he was found in possession of a button actuated knife in contravention of provisions of [ACT].
3. After completion of investigation, chargesheet was filed. After compliance of [SECTION] [ACT]. Charge was framed under [SECTION] of [ACT] against the accused vide order dated 4.6.2010 to which the accused pleaded not guilty and claimed trial.
4. Prosecution adduced evidence in support of its case. PW1 deposed to the recovery and seizure of button actuated knife from the accused.
5. After closure of prosecution evidence, the statement of the accused was recorded under [SECTION] of [ACT]. Incriminating evidence was put to the accused. He denied all the allegations and stated that he is innocent and has been falsely implicated in this case. The accused opted not to lead any evidence in his defence.
6. Final arguments advanced by Ld. APP for State and Mr. [ENTITY], Legal Aid counsel for accused are heard.
7. Public witnesses were admittedly not joined in investigation though available. The testimony of official witnesses does not find any corroboration from any independent source. In my view, the non joining of public witness is fatal to the prosecution case, particularly when no reasonable explanation has been given by prosecution for not joining public witnesses.
In case titled as [PRECEDENT], it was held as that where the police has failed to join independent witnesses in the investigation despite their availability and further failed to take action against those who refused to take part in investigation nor their names were noted down by the police, the explanation of the police for not joining independent witnesses is an afterthought and liable to be rejected.
In the case of [PRECEDENT], it has been observed that : "The fact that no independent witness though available, was examined and not even an explanation was sought to be given for not examining such witness is a serious infirmity in the prosecution case. Amongst the independent witnesses one who was very much in the know of things from the beginning was not examined by the prosecution. Nonexamination of independent witness by itself may not give rise to adverse inference against the prosecution. However, when the evidence of the alleged eye witnesses raise serious doubts on the point of their presence at the time of actual occurrence, the unexplained omission to examine the independent witness would assume significance." In the case of [PRECEDENT], it has been held as under: "Having gone through the record we find much substance in each of the above contentions. Before conducting a search the concerned police officer is required to call upon some independent and respectable people of the locality to witness the search. In a given case it may so happen that no such person is available or, even if available, is not willing to be a party to such search. It may also be that after joining the search, such persons later on turn hostile. In any of these eventualities the evidence of the police officers who conducted the search cannot be disbelieved solely on the ground that no independent and respectable witness was examined to prove the search but if it is found as in the present case that no attempt was even made by the concerned police officer to join with him some persons of the locality who were admittedly available to witness the recovery, it would affect the weight of evidence of the Police Officer, though not its admissibility." In the case of [PRECEDENT] it has been observed as under: "It also appeared from the evidence of PW2 and PW8 that there were several other people who witnessed the occurrence and they are not the residents of that locality. If such independent witnesses were available and yet were not examined by the prosecution and only those persons who are related to the deceased were examined then in such a situation the prosecution case has to be scrutinised with more care and caution."
In the case of [PRECEDENT], in which it was observed as follows:
"[ENTITY] has to admit that at the time of the arrest and recovery of the knife, there was a lot of rush of public at the bus stop near Subhash Bazar. According to [ENTITY], he did not join any public witness in the case while according to [ENTITY], no public person was present there. It hardly stands to reason that at a place like a bus stop near Subhash Bazar, there would be no person present at a crucial time like 7.30 pm when there is a lot of rush of commuters for boarding the buses to their respective destinations. Admittedly, there is no impediment in believing the version of the police officials but for that the prosecution has to lay a good foundation. At least one of them should have deposed that they tried to contact the public witnesses or that they refused to join the investigation. Here is a case where no effort was made to join any public witness even though number of them were present. No plausible from the side of the prosecution is forthcoming for not joining the Independent witnesses in case of a serious nature like the present one. It may be that there is an apathy on the part of the general public to associate themselves with the police raids or the recoveries but that apart, at least the IO should have made an earnest effort to join the independent witnesses. No attempt in this direction appears to have been made and this, by itself, is a circumstance throwing doubt on the arrest or the recovery of the knife from the person of the accused. In the case of [PRECEDENT], the Court took note of the fact that public witnesses were not joined in investigation to acquit the accused.
In the case of Massa Singh Vs. State of Punjab 2000 (2) C.C. Cases HC 11, conviction was set aside on the ground that it was obligatory on the part of investigating officer to take assistance of independent witnesses to lend authenticity to the investigation conducted by him. It was observed as under: "The recovery has been effected from a public place. The Investigating Officer could have taken the trouble to associate an independent witness to get the attestation of such independent witness regarding the authenticity of the investigation conducted by him. This aspect of the case has not been properly appreciated by the Court below."
In the case of [PRECEDENT], it was held that it was obligatory on the part of the police to join independent witnesses and the statement of official witness that witnesses refused to join investigation was rejected as an afterthought.
In the cases of [PRECEDENT] and [PRECEDENT], it has been held that nonjoining of independent witnesses is fatal to the prosecution case and accused is entitled to benefit of doubt.
8. In the present case also, PW1 is the recovery officer. He has not mentioned that any further effort was made to join public witnesses in the search. There is no evidence on record to show that effort is made to join public witnesses.
9. There are other inconsistencies on the record which have not been explained. According to the depositions of prosecution witness, the case property was first seized and then rukka was prepared for registration of FIR. Thus according to the witness, FIR was registered after seizure of knife. However, the seizure memo bears the FIR number. At the time of the seizure, FIR number was not available and therefore, FIR number could not have figured on the seizure memo. The existence of FIR number on seizure memo suggests that the seizure memo was prepared after the registration of FIR and is therefore antetimed. This erodes the credibility of the witness who has stated that the seizure memo was prepared on the spot and before the registration of FIR.
10. In view of the aforementioned facts and circumstances, I am of the opinion that prosecution has failed to prove its case against the accused beyond reasonable doubt. I give benefit of doubt to the accused. Accused is accordingly acquitted. Case property be confiscated to the State and be destroyed after expiry of period of appeal. File be consigned to Record Room, after due compliance.
([ENTITY]) Metropolitan Magistrate Tis Hazari Courts : Delhi Announced in open Court on July 1, 2010.
PS Kotwali 1.7.2010 Present: Ld. APP for State Accused produced from custody. Mr. [ENTITY], Legal Aid Counsel.
PW1 is present. He is examined, crossexamined and discharged. No other PW is present. Keeping in view the testimony of witnesses already examined, I do not deem it fit to grant any further opportunity for PE. Hence PE is hereby closed. Statement of accused under [SECTION] of [ACT] is recorded separately. Accused has opted not to lead defence evidence.
Arguments advanced by Ld. APP for State and accused have been heard. Vide separate judgment, the accused is acquitted of the offence under [SECTION] of [ACT]. File be consigned to record room after due compliance.
([ENTITY]) MM, Delhi/1.7.2010