In the Court of Sh. [ENTITY], M.M (C01), Tis Hazari Courts, Delhi FIR No. 131/01 P.S Rajinder Nagar S.No. Of the case 23/3/03 Date of commission of offence 11.04.2001 Date of institution of challan 05.07.2001 Name of complainant [ENTITY] Name of accused [ENTITY], S/o Sh. [ENTITY], R/o H.No. 255, Mohalla Faislabad, P.S Kotwali, Buland Shehar, (U.P.). Offence complained of 25/54/59 [ACT] Offence charged with 25/54/59[ACT] Plea of the accused Pleaded not guilty. Arguments heard/ order reserved 21.07.2010 Final order Acquitted Date of such order 22.07.2010 Brief statement of the reasons for the decision: 1 As per prosecution, on 11.04.2001 at about 4.40 p.m near State Bank of State vs. [ENTITY] 1 of 8 India, Shankar Road, Rajender Nagar, Delhi, the accused was found in possession of one buttondar knife and thus he committed an offence punishable under [SECTION]
[ACT]. After following appropriate procedure, the accused was arrested in this case after registration of FIR.
2 On conclusion of investigation, chargesheet was filed and copy was supplied to accused.
3 On the basis of record, a charge for commission of offence punishable under [SECTION] [ACT] was framed against the accused on 22.09.2001 to which he pleaded not guilty by claiming trial.
4 The prosecution has examined six witnesses in support of its case. 5 PW1 Ct. [ENTITY] was on patrolling with [ENTITY], [ENTITY] and Ct. [ENTITY] on 11.04.01. A secret information was received by them that two persons in suspicion condition are standing at Shankar Road near SBI Bank and whose possession illegal weapon can be found. He deposed that I.O asked 45 passerby to join the raiding party but none agreed. He further deposed that both the accused persons namely [ENTITY] and [ENTITY] were apprehended at the instance of secret informer and on search, accused persons were found possessing one buttondar knife. Sketch of Knife Ex.PW1/A & Seizure Memo of knife Ex.PW1/B were proved by this witness. This witness took the [ENTITY] to P.S and got the case registered. Disclosure Statement as Ex.PW1/C, Personal Search Memo as State vs. [ENTITY] 2 of 8 Ex.PW1/D and Arrest Memo as Ex.PW1/E were also proved by this witness. He was cross examined by the defence.
6 PW2 [ENTITY] is the formal witness being Duty Officer on 11.04.01. He has proved the copy of FIR Ex.PW2/A by producing the original. Despite opportunity, he was not cross examined by the defence. 7 PW3 [ENTITY] was on patrolling with [ENTITY], Ct. [ENTITY] and Ct. [ENTITY] on 11.04.01. A secret information was received by [ENTITY] that two persons in suspicion position are standing at Shankar Road near SBI Bank and they might be in possession of unlawful arms. He deposed that I.O asked 45 persons to join the raiding party but none agreed. He further deposed that both the accused persons namely [ENTITY] and [ENTITY] were apprehended at the instance of secret informer and on search, one buttondar knife was recovered from the right side pocket of the wearing pant of accused [ENTITY] and one buttondar knife was also recovered from the right side pocket of wearing pant of accused [ENTITY]. Seizure Memo of knife as Ex.PW1/B was proved by this witness. Accused as well as Knife Ex.P1 were identified by this witness. He was cross examined by the defence.
8 PW4 Ct. [ENTITY] was on patrolling with [ENTITY], [ENTITY] and Ct. [ENTITY] on 11.04.01. A secret information was received by [ENTITY] that two persons in suspicion position are standing at Shankar Road State vs. [ENTITY] 3 of 8 near SBI Bank and they might be in possession of unlawful arms. He deposed that I.O asked 45 persons to join the raiding party but none agreed. He further deposed that both the accused persons namely [ENTITY] and [ENTITY] were apprehended at the instance of secret informer and on search, one buttondar knife was recovered from the right side pocket of the wearing pant of accused [ENTITY] and one buttondar knife was also recovered from the right side pocket of wearing pant of accused [ENTITY]. Seizure Memo of knife as Ex.PW1/B was proved by this witness. Accused as well as Knife Ex.P1 were identified by this witness. He was cross examined by the defence.
9 2nd I.O, SI [ENTITY] himself is PW5. Although he was not part of patrolling party however, investigation was assigned to him. Site Plan Ex.PW5/A was prepared by this witness at the instance of [ENTITY]. Arrest Memo as Ex.PW1/E, Personal Search Memo as Ex.PW1/D and disclosure statement as Ex.PW1/C of accused were proved by this witness. He has identified the case property Ex.P1. He has also proved the Notification Ex.PA. He was cross examined by the defence.
10 PW6 ASI [ENTITY] was on patrolling with [ENTITY], Ct. [ENTITY] and Ct. [ENTITY] on 11.04.01. A secret information was received by them that two persons in suspicion condition having illegal arm are standing at Shankar Road near SBI Bank. He deposed that I.O asked 56 passerby to join the raiding party but none State vs. [ENTITY] 4 of 8 agreed. He further deposed that both the accused persons namely [ENTITY] and [ENTITY] were apprehended at the instance of secret informer and on search, accused [ENTITY] was found possessing one buttondar knife. Sketch of Knife as Ex.PW1/A was prepared by this witness. Seizure Memo of knife Ex.PW1/B was proved by this witness. [ENTITY] as Ex.PW6/A was prepared by this witness and got the case registered through Ct. [ENTITY]. Site Plan as Ex.PW5/A was also proved by this witness. Accused as well as knife as ExP1 were identified by this witness. He was cross examined by the defence.
11 In his statement under [SECTION] [ACT] recorded in accordance with [SECTION] [ACT], the accused denied all incriminating evidence submitting that nothing was recovered from his possession. Despite opportunity, he did not opt to lead D.E. 12 I have heard final arguments and gone through the record carefully and given my thoughtful consideration to the rival contentions and entire aspect of the case.
13 In the present case, only police witnesses have been examined to prove the recovery of knife Ex.P1. Ordinarily, the testimony of police witnesses to recovery is not to be disbelieved unless there are contradictions in their testimonies which points out towards foul play. Initially recovery was made by PW1, PW3, PW4 & PW6. Admittedly the public persons were available at the place of recovery of knife State vs. [ENTITY] 5 of 8 Ex.P1. It is also clear from the testimony of these witnesses that the raiding party had not offered their own search to the accused prior to his search and had not joined any public person to the investigation. Moreover, no memo in respect of handing over the seal to Ct. was prepared by the I.O.
14 Prosecution case has remained vulnerable to doubt due to the following reasons:
A No independent witness has been joined in the raiding party, though easily available as the recovery of alleged knife was effected at a public place. There is no reason to understand as to why no public person was sought to be join to the investigations conducted after apprehension of the accused and recovery of knife Ex.P1. No notice was given to the public person who refused to join the investigation.
"Reference can be made to [PRECEDENT] [PRECEDENT] 1999 [PRECEDENT], as it has been held that "when no attempt was made by police officer to join with him some independent person who could not be easily available, then it can effect the weight of evidence of the police officer."
State vs. [ENTITY] 6 of 8 Further it has been held by Hon'ble Mr. Justice [ENTITY], Judge High Court of Delhi at New Delhi, in case reported in [PRECEDENT] that
"Evidence shows a large number of persons were present when the knife was re covered. No attempt was made to make any public witness. Only two constables are spot witnesses. Under these circumstances, police witnesses do not inspire confidence. Accused acquitted."
B DD entry regarding patrolling duty has not been produced on record.
C No personal search was offered by the I.O/police staff before taking the search of the accused.
D. No memo in respect of handing over the seal was prepared by the I.O.
15 In view of above discussion, it is considered that prosecution has failed to prove its case against the accused beyond reasonable doubt. Considering the aforesaid and the fact that there is a complete dearth of evidence against the accused, he is acquitted from the charges levelled against him. The case property State vs. [ENTITY] 7 of 8 be confiscated to the State and be destroyed after the expiry of appeal or revision.
Announced in the [ENTITY] Open Court on 22.07.2010 [CASE NUMBER]
It is certified that this judgment contains eight pages and each page bears my signature.
[ENTITY] M.M(C01) /Delhi 22.07.2010 State vs. [ENTITY] 8 of 8