IN THE COURT OF SH. [ENTITY] METROPOLITAN MAGISTRATE, SOUTH DISTRICT SAKET COURTS, NEW DELHI FIR No. 1337/06 P.S. Malviya Nagar U/[SECTION] [ACT] State Vs. [ENTITY] JUDGMENT :
a. Sl. No. of the case : 04/2 b. Date of Institution : 06.01.2007 c. Date of Commission of Offence : 18.11.2006 d. Name of the complainant : Ct. [ENTITY] PS Malviya Nagar e. Name of the accused and his : [ENTITY] parentage and address S/o [ENTITY] R/o H.no. 204, [ENTITY], Aligarh, U.P. f. Offence complained of : U/[SECTION] [ACT] g. Plea of the accused : Pleaded not guilty h. Order reserved : 29.08.2012 i. Final Order : Acquitted j. Date of such order : 29.08.2012 1. The accused in this case was sent up for trial for the
commission of offence U/[SECTION] [ACT]. FIR NO. 1337/2006 PAGE 1 OF PAGE 7 [ENTITY]
2. The facts in brief are that on 18.11.2006, Ct. [ENTITY] while patrolling duty at about 7.15 p.m., at PBlock, Malviya Nagar, saw accused sitting on patri and he on seeing him, stood up and proceeded towards the market with fast steps. On suspicion, accused was apprehended and on his search, one buttondar knife was recovered from his possession. Thereafter information was sent to PS Malviya Nagar and HC [ENTITY] reached the spot to whom the accused along with the case property was handed over. Thereafter present case FIR was registered in PS Malviya Nagar. During the investigation site plan was prepared. Statement of witnesses were recorded. Accused was arrested and after completing the other formal investigation, the challan was presented before the court for trial.
3. A prima facie case having been made out against the accused, charge was framed against the accused on 24.10.2007, under [SECTION] [ACT] to which he pleaded not guilty and claimed trial.
4. To prove its case against the accused, the prosecution has examined three witnesses namely [ENTITY] as PW1, Ct. [ENTITY] as PW2 and ASI [ENTITY] as PW3.
5. PW1 [ENTITY] has testified that on 18.11.2006, on receipt of [ENTITY] through Ct. [ENTITY], he recorded the present case FIR which is Ex. PW1/A. His endorsement on [ENTITY] is Ex. PW1/B. FIR NO. 1337/2006 PAGE 2 OF PAGE 7 [ENTITY] Ld. counsel for accused did not prefer to cross examine PW1.
6. PW2 Ct. [ENTITY] has testified that on 18.11.2006, he was on patrolling duty at PBlock, Malviya Nagar and at about 7.15 p.m., when he was coming back after patrolling duty, he saw a boy sitting on patri and on seeing him, he stood up and proceeded towards the market with fast steps. On suspicion, he apprehended the accused and from his personal search, a buttondar knife was recovered. Thereafter information was sent to PS and HC [ENTITY] reached the spot and he recorded his statement which is Ex. PW2/A. PW2 further testified that the sketch of knife was prepared vide Ex. PW2/B and sealed the same with the seal of [ENTITY] and seized vide memo Ex. PW2/C. PW2 further testified that IO prepared the [ENTITY] and handed over the same to him for registration of FIR and accordingly, he got registered the FIR and handed over the same to the IO. PW2 further testified that site plan was prepared vide Ex. PW2/D. Thereafter accused was arrested and his personal search was conducted vide memos Ex. PW2/E and 2/F. PW2 correctly identified the case property which is Ex. P1.
In his cross examination, PW2 has testified that IO had requested some passers by to join the investigation but none joined showing their genuine inability.
7. PW3 ASI [ENTITY] has testified that on 18.11.2006, on receipt of DD no.14A which is Mark A, he reached the spot i.e. PBlock FIR NO. 1337/2006 PAGE 3 OF PAGE 7 [ENTITY] Park, Malviya Nagar, where Ct. [ENTITY] met him and produce the accused [ENTITY] along with recovered buttondar knife before him and gave his statement Ex. PW2/A. PW3 further testified that he requested 45 passers by to join the investigation but all of them refused to join the same and left the spot without disclosing their names and address. Thereafter recovered knife was sealed with the seal of [ENTITY] and seized vide memo Ex. PW2/C. PW3 further testified that he prepared a tehrir Ex. PW3/A and got the case registered through Ct. [ENTITY]. PW3 further testified that he prepared the site plan Ex. PW2/D at the instance of Ct. [ENTITY]. Thereafter he arrested the accused and conducted his personal search vide memos Ex. PW2/E and 2/F. He also collected the copy of the notification [ENTITY]
8. After closing of prosecution evidence, statement of accused was recorded U/[SECTION] of [ACT] [ACT] In his statement, accused denied to have committed the offence and claimed to have been falsely implicated in this case. Accused further denied to lead any defence evidence.
9. I have heard the Ld. APP for the State and the Ld. Counsel for the accused and have also perused the record.
10. In this case, the prosecution is required to establish beyond reasonable doubt that the accused was in possession of the arms without any FIR NO. 1337/2006 PAGE 4 OF PAGE 7 [ENTITY] valid license. All the witnesses produced by the prosecution are police officials. In the present case, PW2 is the material witness as recovery has been effected by him from the possession of the accused. PW1 is the duty officer who recorded the FIR Ex. PW1/A and PW3 is the IO of the case who has done all the documentary proceedings.
11. In the present case, no public witness has been associated with the investigation. No independent witness has been joined at the time of the arrest of the accused and recovery of the weapon. PW2 and PW3 both have deposed that request was made to the public persons to join the investigation but none of them get ready. The witness to the recovery being police official, such recovery does not inspire confidence. Similar view has been expressed by the Supreme Court in [PRECEDENT] and the Delhi High Court in [PRECEDENT].
12. Further it needs to be noted that the sketch memo and the seizure memo regarding the weapon bear the number of FIR. The prosecution has not offered any explanation whatsoever as to under what circumstances number of the FIR has appeared on the top of the aforesaid documents, which were allegedly prepared on the spot before the registration of the FIR. This gives rise to two inferences that either the FIR was recorded prior to the alleged recovery of the contraband or number of the said FIR was inserted in these documents after its FIR NO. 1337/2006 PAGE 5 OF PAGE 7 [ENTITY] registration. In both the situations, it seriously reflects upon the veracity of the prosecution version given by the aforesaid witnesses and creates a good deal of doubt about the recovery in the manner alleged by the prosecution. Reliance may be had to the decision of the Delhi High Court in [PRECEDENT].
13. Again, there is nothing on record to prove that the seal with which the parcel containing the article of recovery was sealed was handed over to any independent witnesses after use. In this case, PW2 and PW3 both have testified that the case property was sealed with the seal of [ENTITY] but none of them has deposed a single word as to whom the seal after use was handed over. In such circumstances possibility of tampering with contents of sealed pullanda cannot be ruled out. It was very essential for the prosecution to have established that sealed pullanda was not tampered with. In this respect, the decision of the Delhi High Court in [PRECEDENT] may be referred to.
14. Moreover, no DD entry in respect of PW2 is proved on record to establish that he was actually present in the area at the relevant time in connection with patrolling of the area. Thus the presence of this witness at the alleged time itself is rendered doubtful. This view has been expressed by the Delhi High Court in [PRECEDENT].
FIR NO. 1337/2006 PAGE 6 OF PAGE 7 [ENTITY]
15. All these infirmities in the prosecution evidence seriously reflects on the veracity of prosecution case the benefit whereof must go to the accused.
16. In the result, I find that Prosecution has failed to prove its case against the accused beyond reasonable doubt and he is given the benefit of doubt and therefore accused [ENTITY] is acquitted for the offence punishable U/[SECTION] of [ACT] for which he stands charged.
Announced in the Open Court ([ENTITY]) On 29.08.2012 Metropolitan Magistrate South District/New Delhi FIR NO. 1337/2006 PAGE 7 OF PAGE 7 [ENTITY] PS Malviya Nagar u/[SECTION] [ACT] 29.08.2012 Present: Ld. APP for the State. Accused on bail with counsel.
Vide my separate judgment dictated and announced in the open court, accused is acquitted for the offence punishable U/[SECTION] [ACT] for which he stands charged.
Accused is readmitted to bail on furnishing personal bond in the sum of Rs.10,000/ with one surety in the like amount. Bail bond furnished. Same is accepted. As per [SECTION] of the [ACT], as amended vide the Amendment Act, which came into force on 31.12.2009, the accused shall remain bound by the personal as well as by the surety for a period of six months from today.
File be consigned to Record Room.
([ENTITY]) MM/South Delhi/29.08.2012 FIR NO. 1337/2006 PAGE 8 OF PAGE 7 [ENTITY]