IN THE COURT OF SH [ENTITY] METROPOLITAN MAGISTRATEIV NORTH WEST ROHINI COURTS, DELHI [CASE NUMBER][CASE NUMBER] 3.Title of the case: :State Vs [ENTITY] FIR No. 440/01, P.S. Mangol Puri. 4.Date of institution :08.06.01 5.Date of reserving Judgment :16.08.13 6.Date of pronouncement :16.08.13 J U D G M E N T :
(a)The date of commission 27.05.01 (b)The name of complainant [ENTITY] (c)The name of accused [ENTITY] S/o Sh. [ENTITY] R/o E237, Mangol Puri, Delhi (a)The offence complained of 25/54/59 [ACT] (b)The plea of the accused Pleaded not guilty (c)The final order Acquitted (d)The date of such order 16.08.13 Brief facts for the decision of the case:
1. In the present case, accused [ENTITY] was put to the trial for the offence FIR No. 440/01 St Vs [ENTITY] Page 1 Of 12 U/[SECTION] [ACT] on the allegations that on 21.05.01 at 08:32 PM AM at Tempo Stand, HYblock, Mangol Puri, Delhi, Complainant/[ENTITY] and [ENTITY] were on patrolling duty where on suspicion they apprehended the accused. From the possession of accused one [ENTITY] Knife was recovered. Complainant/[ENTITY] asked 45 passer byes to join investigation but none joined the investigation and left without telling their whereabouts. Sketch of Case property was made and case property was sealed with seal of `KS` and seal after use was handed over to [ENTITY]. Case Property was taken into possession vide seizure memo. Complainant/HC [ENTITY] prepared rukka and got the FIR registered through [ENTITY], who returned to the spot with original rukka and copy of FIR alongwith IO/[ENTITY]. Site plan was prepared by IO/[ENTITY]. Accused was arrested and his personal search was carried out by IO/[ENTITY]. IO recorded the statements. Case property was deposited in Malkhana with MHC(M).
FIR No. 440/01 St Vs [ENTITY] Page 2 Of 12 The notification issued by Delhi Administration which prohibits the possession of buttondar knives etc. was also placed on record.
After the usual investigation, the charge sheet for the offence U/[SECTION] [ACT] was prepared against the accused persons.
2. The aforesaid charge sheet was filed before the court on 08.06.01, whereupon the cognizance of the offence was taken against the accused.
The provisions of [SECTION] [ACT] was complied on 21.03.2003.
3. After hearing the arguments, the accused was charged for the alleged commission of the offence U/[SECTION] [ACT] on the allegation that on 21.05.01 at 08:32 PM at Tempo Stand, HYblock, Mangol Puri, Delhi, one [ENTITY] Knife was recovered from his possession in contravention of notification issued by the Delhi Administration to which the accused pleaded "Not Guilty" and instead claimed trial and accordingly the case was fixed for FIR No. 440/01 St Vs [ENTITY] Page 3 Of 12 prosecution evidence.
4. During the course of the trial prosecution has examined 4 witnesses PW1 [ENTITY], PW2 [ENTITY], PW3 ASI [ENTITY] and PW4 [ENTITY] to substantiate the accusation made against the accused.
5. Complainant/ [ENTITY] couldn't be examined as he expired during the trial.
6. Thereafter, Prosecution Evidence was closed as all PW's were examined and matter was fixed for Statement of Accused on 05.02.2013.
7. The Statement of Accused was recorded U/[SECTION]/[SECTION] [ACT] on 22.06.2013 and all the incriminating circumstances came in evidence were put to the accused to which the accused replied was FIR No. 440/01 St Vs [ENTITY] Page 4 Of 12 he was falsely implicated and he does not want to lead defense evidence.
8. I have heard the arguments of the Ld. APP for the State and the Ld. Counsel for the accused and have gone through the entire record. Now let us examine the prosecution evidence brought on record against the accused.
9. In the present case, prosecution has produced and examined 4 witnesses. The testimonies of PW1, PW3 and PW4 are of formal nature whereas testimonies of PW2 is material one being recovery witnesses.
PW1 was the IO of the case who exhibited the site plan as Ex. PW1/A and arrest memo as Ex. PW1/B. He also deposed about the proceedings conducted by him.
FIR No. 440/01 St Vs [ENTITY] Page 5 Of 12 PW2 was the recovery witness who exhibited the sketch memo as Ex PW2/A and seizure Memo as Ex PW2/B. He also deposed about the proceedings conducted by IO in his presence. He Exhibited the case property as Ex P1.
PW3 was the DO who exhibited FIR as Ex PW3/A. PW4 was the MHC(M) in whose custody case property was deposited in the malkhana. He exhibited the relevant entry of register No. 19 as Ex PW4/A.
10.As per prosecution story, Complainant [ENTITY] and PW2 were on patrolling duty when they on suspicion apprehended accused and and [ENTITY] Knife was allegedly recovered from his possession.
As per prosecution story, the [ENTITY] Knife was recovered from the possession of accused at 08:32 PM at Tampo Stand, HY FIR No. 440/01 St Vs [ENTITY] Page 6 Of 12 block, Mangol Puri, Delhi which is public Place. However, in spite of it IO had failed to join any public witness in the investigation of present case.
At this stage, reference can also be made to a case titled as [PRECEDENT] wherein it was held that the recovery was from a street with houses on both sides and shops nearby. And, yet no witness from the public has been produced. Not that in every case the police officials are to be treated as unworthy of reliance but their failure to join witnesses from the public especially when they are available at their elbow, may cast doubt.
It is well settled principal of law that the investigating agency should join independent witnesses at the time of recovery of contraband articles, if they are available and their failure to do so in such a situation casts a shadow of doubt on the prosecution case. In the present case also admittedly, the independent witnesses were available at the time of recovery but they refused to associate FIR No. 440/01 St Vs [ENTITY] Page 7 Of 12 themselves in the investigation. This explanation does not inspire confidence because the police officials who are the only witnesses examined in the case have not given the names and addresses of the persons contacted to join. It is a very common excuse that the witnesses from the public refused to join the investigation. A police officer conducting investigation of a crime is entitled to ask anybody to join the investigation and on refusal by a person from the public the investigating officer can take action against such a person under the law. Had it been a fact that the witnesses from the public had refused to join the investigation, the investigating officer must have proceeded against them under the relevant provisions of law. The failure to do so by the police officer is suggestive of the fact that the explanation for nonjoining the witnesses from the public is an after thought and is not worthy of credence. All these facts taken together makes the prosecution case highly doubtful
11. Further, Perusal of record shows that on the seizure memo FIR FIR No. 440/01 St Vs [ENTITY] Page 8 Of 12 Number and other particulars of the present case are mentioned on the said documents. No explanation has come from the prosecution as to how the FIR Number surfaced on those documents which were prepared prior to the registration of the case. This fact casts a doubt upon the story of prosecution because if the said document was prepared prior to the registration of the present case, then how the FIR Number as well as other particulars of the present case surfaced on the said document. At this stage, reference can also be made of a case titled as [PRECEDENT] wherein Hon'ble High Court of Delhi had held that the mention of FIR Number on recovery memo etc. which were prepared prior to lodging the FIR creates doubt and benefit should go to the accused.
12.It is pertinent to mention that as per prosecution version the seal after use was handed over by Complainant [ENTITY] to PW2. Both of them were posted in the same police station on the FIR No. 440/01 St Vs [ENTITY] Page 9 Of 12 relevant date and time. Seal was not handed over to any independent witness. In such a situation the possibility of tampering with the case property cannot be ruled out.
13.Further it is alleged that Complainant and PW2 were on patrolling however no DD entries have been placed on record/ proved to establish the departure and arrival of the said police officials on patrolling.
14. In the judgment titled as "[PRECEDENT]" reported 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 FIR No. 440/01 St Vs [ENTITY] Page 10 Of 12 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. "
15.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, FIR No. 440/01 St Vs [ENTITY] Page 11 Of 12 Guntur reported as VIII (2007) SLT 454 (SC).
16.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] of [ACT] Announced in the open court ( [ENTITY]) on 16.08.2013 MM(IV) N/W DELHI FIR No. 440/01 St Vs [ENTITY] Page 12 Of 12