JUDGMENT
1. In pursuance of the registration of a case FIR No. 25/84 at Police Station Kashmiri Gate, Delhi, accused Gopi, Pawan Kumar, Chhote and Hari Ram were arrested and charged to stand trial for the offence under section 302 read with S. 34, I.P.C. for causing the death of Chander, near bus-stop of D.T.C., Yamuna Bazar, Delhi. Accused Pawan Kumar and Chhote were separately charged for the commission of an offence under section 25 of the Arms Act in case F.I.R. No. 36/84 of Police Station Jama Masjid. Both these cases were consolidated by order dated 6-9-1984 of the Addl. Session Judge, Delhi, on account of the fact that recovery of knife from the accused Pawan was alleged to be connected with offence u/s. 302 read with S. 34, I.P.C.
2. By the detailed order dated 19-2-1987, all the accused were acquitted by giving them benefit of doubt of the offences under section 302 read with S. 34 I.P.C. However, on the testimony of PW 15, Kalam Singh, PW-11, Jagbir Singh and PW-21, S.I. Kanchan Dev, accused Pawan Kumar was convicted for the offence under section 25 of the Arms Act. He was sentenced to undergo R.I. for a period of five years. However, he was held entitled to the benefit of S. 428 Cr.P.C. in respect of the period he had already undergone. It is against this order conviction and sentence that the accused Pawan Kumar has filed the present appeal through jail. Miss Urmil Khanna, Advocate was appointed as amices curiae to defend the accused in this appeal and assist the Court.
3. The main contention of the learned counsel for the appellant is that the learned lower Court has relied upon the evidence of the police officials insofar as the recovery of the knife is concerned. No public witness was joined even though the place of arrest was a main thoroughfare and number of persons were present. Her further submission is that the case property is not the same which was allegedly recovered from the person of Pawan Kumar at the time of his arrest. On the other hand, the contention of the learned counsel for the State is that all the documents were prepared at the time of the recovery of knife, the authenticity of which cannot be doubted. According to him, there is nothing wrong in relying upon the statement of the Police Officials who happened to be present at the time of the arrest of the accused and recovery of the weapon of offence from the person of the accused.
4. I have given my anxious thought to the problem which has arisen in this case. So far as the recovery of the knife is concerned, a doubt is created in my mind if at all it is the same which was taken into possession from the accused. In the sketch plan alleged to have been prepared at the spot, the blade is shown as 5.5" long whereas the data (grip) is 6.5" in length. Same length is shown in the recovery memo. Ex.PW11/D as well as the ruqa, PW 11/F, which was sent to the Police Station for the registration of the case. From the careful perusal of these three documents no doubt is left in my mind that there is some overwriting in the measurement of knife shown in these documents. Though it cannot be said with certainty as to what was its original length shown in these documents but even the learned counsel for the State has no plausible explanation of this overwriting.
5. Furthermore, in the recovery memo, the description of the knife is shown on the blade as "B. M. Rampur, U.P.". Same words were repeated in the ruqa, which was sent to the Police Station for registration of the case and naturally the same wording was incorporated in the First Information Report Ex.PW11/G. Unfortunately, these words do not find mention in the sketch plan of Knife. On the blade, only "Rampur" is written whereas the words "B.M." and "U.P." are missing. These two discrepancies go to show that the knife shown to have been recovered from the accused at the time of his arrest is not the same which was deposited in the Malkhana as the case property. This aspect can also be looked into from another angle. Learned counsel for the state concedes that immediately after the arrest of the accused, his personal search was effected and the memo Ex.PW11/D was prepared. Thereafter, the sketch plan of the knife was prepared in the presence of the witnesses. After that, the ruqa Ex.PW11/F was sent to the Police Station for the registration of the case on the basis of which the FIR, PW 11/G was recorded. The F.I.R. is numbered as 36, a copy of which was sent to the I.O. after its registration. It comes to that the number of F.I.R. 36 came to the knowledge of the I.O. after a copy of it was delivered to him at the spot by a constable. In the normal circumstances, the F.I.R. No. should not find mention in the recovery memo or the sketch plan which had come into existence before the registration of the case. However, from the perusal of the recovery memo, I find that the FIR is mentioned whereas the sketch plan does not show the number of the FIR. It is not explained as to how and under what circumstances the recovery memo came to bear the F.I.R. No. which had already come into existence before the registration of the case. These are few of the circumstances which create a doubt, in my mind, about the genuineness of the weapon of offence alleged to have been recovered from the accused.
6. On the second aspect also, Miss Khanna has something to say. PW-11, ASI Jagbir Singh is the person who in the company of PW-15, Kalam Singh and PW-21 Kanchan Dev, Head Constable apprehended accused Pawan Kumar and from his possession the knife (Ex. P-1) was recovered. On the recovery memo. Jagbir Singh obtained the signatures of Kalam Singh and Jai Bhagwan, constables. Jai Bhagwan has not been produced. Kalam Singh 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 Jagbir Singh, he did not join any public witness in the case while according to Kalam Singh, 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 lime 7.30 p.m. 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 explanation from the side of the prosecution is forthcoming for not joining the independent witnesses in a 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 I.O. 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.
7. Learned counsel for the accused pointed out that since the date of his arrest, the accused is in judicial custody and more than 3 1/2 years have already expired. It appears that the sentence of 5 years has been given only to cover up the period which accused had already undergone at the time of the order of sentence. If his case had not been tagged along with the murder of Chander, the accused might have served his imprisonment long time back. Unfortunately, it has not happened in this case, and for no fault of his, the accused remained in jail for much longer a period than ordinarily required.
8. As a result of the above discussion, I have no hesitation to accept the appeal. The impugned judgment and the order of the learned lower Court is set aside. The accused is in judicial custody. He be set at liberty if not required to be detained by the order of any competent Court in any other case.
9. Appeal allowed.