[CASE NUMBER] IN THE COURT OF SH. [ENTITY] METROPOLITAN MAGISTRATE05, CENTRAL, TIS HAZARI COURTS, DELHI CNR No. DL CT020006562011 [CASE NUMBER] [ENTITY] Vs. [ENTITY] FIR No. 59/11 PS. Karol Bagh U/[SECTION] of [ACT] JUDGMENT
1) The date of commission of offence : 04.06.2010
2) The name of the complainant : HC [ENTITY] No. 456/C,
3) The name & parentage of accused : [ENTITY] S/o Sh. Umar Ali R/o. Gali No. 17, Near Kamal Nursing Home, Jafrabad, Delhi
4) Offence complained of : U/[SECTION] of [ACT],
5) The plea of accused : Pleaded not guilty
6) Final order : Acquitted
7) The date of such order : 11.01.19 Date of Institution : 30.07.2011 Judgment reserved on : 11.01.2019 Judgment announced on : 11.01.2019 [CASE NUMBER], [ENTITY] Vs. [ENTITY], FIR No. 59/11, PS. Karol Bagh, U/[SECTION] of [ACT] 1/10 [CASE NUMBER] BRIEF REASONS FOR THE JUDGMENT:
1. The case of the prosecution against the accused is that on 04.06.10, at about 12.40 PM, at Shastri Park, near Jessa Ram Hospital, within the jurisdiction of PS Karol Bagh, he was found in possession of one desi katta and two live cartridges without any permit, in contravention and notification issued by Delhi Administration. On the said allegations, accused was charged with the offence under [SECTION] of the [ACT].
2. After investigation, chargesheet was filed against the accused.
The copy of chargesheet was supplied to the accused in compliance of [SECTION] [ACT] Thereafter, charge was framed against the accused under [SECTION] of the [ACT], to which he pleaded not guilty and claimed trial.
3. In support of its version, prosecution has examined 6 witnesses.
PW1 is Ct. [ENTITY], PW2 is SI [ENTITY], PW3 is Ct. [ENTITY], PW4 is W/SI [ENTITY], PW5 is ASI [ENTITY] and PW6 is ASI [ENTITY].
4. After conclusion of prosecution evidence, statement of accused was recorded separately wherein accused claimed to be innocent and denied the allegations against him. Accused opted not to lead evidence in defence.
[CASE NUMBER], [ENTITY] Vs. [ENTITY], FIR No. 59/11, PS. Karol Bagh, U/[SECTION] of [ACT] 2/10 [CASE NUMBER]
5. I have heard Ld. APP for [ENTITY] and Ld. Counsel for accused. I have perused the record.
6. The testimonies of prosecution witnesses are hereby touched, in brief, as follows: 6.1) PW1 Ct. [ENTITY], PW2 SI [ENTITY] and PW6 ASI [ENTITY] deposed on the same lines that on 04.06.11, at about 12.25 PM, a secret information was received that three boys are sitting in Shastri Park and they are carrying illegal weapons. Raiding party was constituted. Public persons were asked to join the investigation but none agreed. At the instance of secret informer three persons sitting on the bench were apprehended. The accused was found in possession of one desi katta and two live cartridges. The sketch memo of the katta and the cartridges was prepared, which is Ex. PW1/A. The same was seized, after putting the seal of YS on pullanda, vide Ex. PW1/B, FSL form was filled, tehrir was prepared and FIR got registered. Thereafter the accused was arrested and personally searched. The case property including katta and live cartridges and the accused were correctly identified. The katta was proved as Ex. P1 and the cartridges as Ex. P2.
6.2) PW3 Ct. [ENTITY] deposed that on 10.06.11, he deposited the case property vide RC No. 14/21/11 to FSL Rohini. 6.3) PW4 W/SI [ENTITY] proved the endorsement on rukka [CASE NUMBER], [ENTITY] Vs. [ENTITY], FIR No. 59/11, PS. Karol Bagh, U/[SECTION] of [ACT] 3/10 [CASE NUMBER] as Ex. PW4/A and FIR as Ex. PW4/B. 6.4) PW5 ASI [ENTITY] deposed that on 04.06.11, the case property was deposited in the Maalkhana in the form of a pullanda, sealed with the seal of YS, for which an entry was made at serial no. 2752 in register no. 19. He deposed that on 10.06.11, the case property was handed over to Ct. [ENTITY] for depositing the same to the FSL.
7. It is the cardinal principle of Criminal Justice delivery system that the prosecution has to prove the guilt of accused person beyond reasonable doubts. No matter how weak the defence of accused is but, the golden rule of the Criminal Jurisprudence is that the case of the prosecution has to stand on its own leg.
8. Now, I consider the points contended by the Ld. Counsel for the accused one by one. Ld. Counsel for accused argued that no independent witness was joined in the investigation. First of all, I consider the legal position on this point. In [ENTITY] of Punjab v. Balbir Singh, AIR 1994 SC 1872, the Hon'ble Supreme Court held that:
It therefore emerges that noncompliance of these provisions i.e. [SECTION] and [SECTION] [ACT] would amount to an irregularity and the effect of the same on the main case depends upon the facts and circumstances of each case.
[CASE NUMBER], [ENTITY] Vs. [ENTITY], FIR No. 59/11, PS. Karol Bagh, U/[SECTION] of [ACT] 4/10 [CASE NUMBER] Of course, in such a situation, the court has to consider whether any prejudice has been caused to the accused and also examine the evidence in respect of search in the light of the fact that these provisions have not been complied with and further consider whether the weight of evidence is in any manner affected because of the noncompliance. It is wellsettled that the testimony of a witness is not to be doubted or discarded merely on the ground that he happens to be an official but as a rule of caution and depending upon the circumstances of the case, the courts look for independent corroboration. This again depends on question whether the official has deliberately failed to comply with these provisions or failure was due to lack of time and opportunity to associate some independent witnesses with the search and strictly comply with these provisions. [Emphasis supplied] Considering facts and circumstances of the present case, there was no lack of time and opportunity to associate some independent witnesses with the search and strictly comply with the provisions of [ACT]. Accused was apprehended from a public park. Public persons must be available at he spot. Merely mentioning that public persons were requested to joined the investigation is of no avail. Name of those persons are not mentioned. It is not mentioned as to what action was taken against those persons who refused to [CASE NUMBER], [ENTITY] Vs. [ENTITY], FIR No. 59/11, PS. Karol Bagh, U/[SECTION] of [ACT] 5/10 [CASE NUMBER] join the investigation. Hence, the abovementioned creates doubt on the case of the prosecution.
9. Further, the seal after use was not handed over to any independent person. Seal was handed over to PW1 Ct. [ENTITY] as deposed by PW1 himself. It appears that no efforts was made to hand over the seal after use to independent person. I am conscious of precedent laid down by Hon'ble Delhi High Court in Safiullah v. [ENTITY], 1993 (1) RCR (Criminal) 622, that:
"10. The seals after use were kept by the police officials themselves. Therefore the possibility of tampering with the contents of the sealed parcel cannot be ruled out. It was very essential for the prosecution to have established from stage to stage the fact that the sample was not tampered with. Once a doubt is created in the preservation of the sample the benefit of the same should go to the accused."
Hon'ble Punjab & Haryana High Court also held in Ramji Singh v. [ENTITY] of Haryana, 2007 (3) RCR (Criminal) 452, that "7. The very purpose of giving seal to an independent person is to avoid tampering of the case property."
Hence, considering the legal position, the benefit of doubt [CASE NUMBER], [ENTITY] Vs. [ENTITY], FIR No. 59/11, PS. Karol Bagh, U/[SECTION] of [ACT] [CASE NUMBER] should be given to the accused.
10. Besides all this, in the present case, the sketch memo of the katta and live cartridges Ex. PW1/A and seizure memo Ex. PW1/B, bears the number of FIR. As per the rukka and testimony of witnesses the sketch memo of the katta and live cartridge alongwith seizure memo were prepared prior to registration of FIR. If that be so then how Ex. PW1/A and Ex. PW1/B bears the FIR number. Now, I consider the observation made by Hon'ble Delhi High Court in Giri Raj v. [ENTITY], 83 (2000) DLT 201. This gives rise to two inferences that either the FIR was recorded prior to the alleged recovery of the case property or number of the said FIR was inserted in the document after its registration. In both the situations, it seriously reflects upon the veracity of the prosecution version and creates a good deal of doubt about the recovery of the case property in the manner alleged by the prosecution. That being so, the benefit arising out of such a situation must necessarily go to the accused.
11. In present case, case property was sent to FSL after five days of alleged seizure of case property from the accused. At this stage, I am conscious of precedent laid down by Delhi High Court in Matloob v. [ENTITY] (Delhi Administration), 67 (1997) DLT 372, that:
[CASE NUMBER], [ENTITY] Vs. [ENTITY], FIR No. 59/11, PS. Karol Bagh, U/[SECTION] of [ACT] [CASE NUMBER] Samples to CFSL in this case were dispatched about one month after the substance was seized and no explanation for such time taken in dispatching the samples is forthcoming on record. Thus the prescribed promptitude appears to be lacking in this case.
The case property should have been sent to the FSL immediately after the seizure. There was no other paper formalities which are required to be performed prior to the sending the case property to the FSL, when the sketch memo and seizure memo were already prepared. Further, the case property was lying in the Maalkhana of the same police station where the constable [ENTITY] having the possession of the seal was posted. There was ample opportunity for the tampering with the case property. The above mentioned raises doubt on the case of prosecution.
12. Besides this it also came on record that raiding members did not give their personal search to anyone before checking the accused. When the raiding members took the personal search of the accused then they must have offered their personal search to someone so that the possibility of false plantation of the property could be ruled out. In the present case no such precaution was [CASE NUMBER], [ENTITY] Vs. [ENTITY], FIR No. 59/11, PS. Karol Bagh, U/[SECTION] of [ACT] taken by the IO and as such the possibility of false planting the case property upon the accused could not be ruled out.
In the judgment titled as "S.L.Goswami v. [ENTITY] of M.P"
reported as 1972 CRI.L.J.511(SC) the Hon'ble Supreme Court held: " In our view, the onus to 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 "
13. The onus and duty to prove the case against the accused was 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 [CASE NUMBER], [ENTITY] Vs. [ENTITY], FIR No. 59/11, PS. Karol Bagh, U/[SECTION] of [ACT] 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].
14. In view of above said discussion, the prosecution has failed to prove the guilt of the accused beyond reasonable doubt. Accused is entitled to benefit of doubt. Accordingly, I acquit the accused [ENTITY] of the charges framed in the present case. Case property be confiscated to the [ENTITY]. Same be destroyed.
File be consigned to Record Room after due compliance subject to compliance of [SECTION] [ACT].
KAPIL by [ENTITY] Date: 2019.01.11 15:12:26 +0530 Announced in the open court ([ENTITY]) on 11.01.2019 Metropolitan Magistrate05
Central District/Tis Hazari Courts/Delhi [CASE NUMBER], [ENTITY] Vs. [ENTITY], FIR No. 59/11, PS. Karol Bagh, U/[SECTION] of [ACT] 10/10