IN THE COURT OF SHRI [ENTITY]: METROPOLITAN MAGISTRATE04 (SOUTH), SAKET COURTS:NEW DELHI State Vs. [ENTITY] FIR No. 219/04 U/[SECTION] [ACT] J U D G M E N T Serial No. of the Case : 153/03 [CASE NUMBER] Date of Institution : 09.09.2004 Date on which case reserved for judgment : 14.03.2011 Date of judgment : 18.03.2011 Name of the complainant : SI [ENTITY], No.D3060, PS Kotla Mubarakpur, New Delhi Date of the commission of offence: 03.05.2004 Name of accused : [ENTITY] s/o Sh. [ENTITY] r/o H. No. A39, T. B. Hospital Staff Quarters, Mehrauli, New Delhi FIR No. 219/04 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 : 09.09.2004 Date on which case reserved for judgment : 14.03.2011 Date of judgment : 18.03.2011 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 PS Kotla Mubarakpur for an alleged offence under [SECTION] of [ACT]. The brief facts of the prosecution case are that on 03.05.2004 at about 10:00PM at NBlock, NDSE1 in front of Wine Shop, 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 as per notification of the Delhi Government and thereby committed an offence punishable U/[SECTION] [ACT].
2. The report U/[SECTION] [ACT] was filed on 09.09.2004. Cognizance of the offence was taken.
3. Charge for the offence U/[SECTION] [ACT] against the accused was framed on 29.10.2004.
PROSECUTION EVIDENCE :
4. The prosecution to prove its case examined two PWs in all.
PW1 ASI [ENTITY], duty officer is a formal witness. He proved the copy of the FIR Ex.PW1/A and his endorsement on rukka is Ex.PW1/B. PW2 [ENTITY] stated, on 03.05.2004 I along with SI [ENTITY] were on patrolling duty and at about 10:00PM when we were present at NBlock Near Wine Shop, we saw that one person who was standing near the Wine Shop, after seeing the police started walking from there and on being suspicious, accused (correctly identified) was apprehended. On his formal search, one buttondar knife was recovered from the right side pocket of his pant. Thereafter IO requested 45 passerby to join investigation but all refused. Sketch of the knife was prepared, the same is Ex.PW2/A. The recovered knife was sealed in a pulanda with the seal of ML. After use the seal was handed over to me. The recovered knife was seized vide seizure memo Ex.PW2/B. [ENTITY] was prepared by the IO and the FIR of this case was got registered through me. After registration of FIR I returned to spot along with HC [ENTITY]. The documents, case property and the accused were handed over to him. Accused was arrested vide memo Ex.PW2/C and his personal search was conducted vide memo Ex.PW2/D respectively. The recovered knife was identified by the witness. Same is Ex.P1.
Vide order dated 01.03.2011, PE was closed.
STATEMENT OF ACCUSED :
5. On 08.03.2011 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 accused and the Ld. APP for the State.
Ld. APP for the State has argued that a buttondar 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 the accused that he has been falsely implicated in this case and nothing has been recovered from him. The PWs have falsely deposed.
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 top associate independent public witnesses during the investigation.
9. The failure on the part of the prosecution 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 is forthcoming for non joining of independent witnesses. Reference may be made to the judgment titled as "[PRECEDENT], "[PRECEDENT] and [PRECEDENT].
10. Further it is alleged that PW2 along with SI [ENTITY] 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 "S. L. Goswami v. State of M.P." reported as 1972 CRI. L. J. 511 (SC) 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 Nallapati Sivaiah v. Sub Divisional Officer, Guntur reported as VIII (2007) SLT 454 (SC).
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 for the offence punishable U/[SECTION] [ACT].
Pronounced in open court ([ENTITY]) on 18.03.2011 MM04(South):Saket Courts:New Delhi 18.03.2011