1 IN THE COURT OF SH. [ENTITY] METROPOLITAN MAGISTRATE, SOUTH DISTRICT SAKET COURTS, NEW DELHI FIR No. 397/2003 P.S. Malviya Nagar U/[SECTION] [ACT] State Vs. [ENTITY] JUDGMENT :
a. Sl. No. of the case : 72/3 b. Date of Institution : 12.03.2004 c. Date of Commission of Offence : 18.05.2003 d. Name of the complainant : SI [ENTITY] e. Name of the accused and his : [ENTITY]@Sanju parentage and address S/o [ENTITY] r/oH.no. C-10, Raju Park, Devli, New Delhi f. Offence complained of : U/[SECTION] [ACT] g. Plea of the accused : Pleaded not guilty h. Order reserved : 17.10.2011 i. Final Order : Acquitted j. Date of such order : 17.10.2011 1. The accused in this case was sent up for trial for the commission of offence U/[SECTION] [ACT]. The facts in brief are that on 18.05.2003 while patrolling, Inspector [ENTITY] alongwith [ENTITY] were present at Press Enclave Road, Sector-7, Pushp Vihar T-Point, and
at about 4.00 p.m., one person who was crossing the road on seeing the police party started moving on fast paces so on suspicion he was chased and apprehended and on his search, one buttondar knife was recovered from the right dhub of jeans pant of the accused. Thereafter further investigation of this case was handed over to HC [ENTITY] alongwith the accused and recovered case property. On the basis of rukka, the present case FIR no. 397/2003 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 17.08.2005 under [SECTION] [ACT] to which he pleaded not guilty and claimed trial.
4. To prove its case against the accused, the prosecution has examined four witnesses namely [ENTITY] as PW1, [ENTITY] as PW2, Inspector [ENTITY] as PW3 and ASI [ENTITY] as PW4.
5. PW1 [ENTITY] has testified that on 18.05.2003, on receipt of rukka through [ENTITY], he recorded the present case FIR Ex. PW1/A. His endorsement on rukka is Ex. PW1/B. Ld. Counsel for accused did not prefer to cross examine PW1.
6. PW2 [ENTITY] has testified that on 18.05.2003, he alongwith SI [ENTITY] were on area patrolling and were present at Press Enclave Road, Sector-7, P. Vihar T-Point at about 4.00 p.m. and at that time, one person who was crossing the road, on seeing the police party started moving on fast paces and on suspicion he was chased and apprehended. During the search of the accused by the IO, one buttondar knife was recovered from the right dhub of jeans pant of accused. Thereafter IO prepared the sketch of knife Ex. PW2/A and also prepared the pullanda of knife and sealed with the seal of AS and seal after use was handed over to him and the same was taken into possession vide memo Ex. PW2/B. Thereafter IO prepared the rukka Mark X and handed over the same to him for registration of FIR. After registration of FIR, further investigation was assigned to HC [ENTITY] who accompanied him to the spot and he handed over the copy of FIR and original rukka to him. Thereafter IO arrested the accused [ENTITY] present in the court vide memo Ex. PW2/C and conducted his personal search vide memo Ex. PW2/D. PW1 correctly identified the case property which is Ex. P-1.
In his cross examination, PW2 has testified that despite attempts, no public witness come forward to join the investigation.
7. PW2 Inspector [ENTITY] has also deposed the same facts as deposed by PW2. PW3 further testified that he prepared the tehrir Ex. PW3/A. PW3 also correctly identified the case property which is Ex. P-1.
8. PW4 ASI [ENTITY] has testified that on 18.05.2003, further investigation of this case was handed over to him by [ENTITY] so he reached T-Point, Press Enclave Road, Sector-7, Pushp Vihar at about 6.30 p.m. where he met with SI [ENTITY] who handed over the accused present in the court alongwith the sketch memo, seizure memo and case property. PW4 further testified that he recorded the statement of [ENTITY]. He further testified that at the instance of first IO, he prepared the site plan Ex. PW4/A and recorded his statement. Thereafter accused was arrested and his personal search was conducted vide memo Ex. PW2/C and D. Accused did not prefer to cross examine PW4.
9. After closing of prosecution evidence, statement of accused was recorded U/[SECTION] of [ACT] r/w 313 [ACT] In his statement, accused denied to have committed the offence and claimed to have been falsely implicated in this case.
10. I have heard the Ld. APP for the State and Ld. counsel for the accused and have also carefully perused the entire record and the relevant provisions of the law.
11. In this case, the prosecution is required to establish beyond reasonable doubt that the accused was in possession of the arms without any valid license. All the four witnesses produced by the prosecution are police officials. All of them have supported the prosecution version. PW1 is the duty officer who has recorded the present case FIR Ex. PW1/A. PW2 and PW3 are the material witness as recovery of knife has been effected by them and PW4 is the IO of the case to whom the further investigation of this case was handed over.
12. In the instant 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. The only witness to the recovery being police official, such recovery does not inspire confidence. Both PW2 and PW3 have deposed that request was made to public persons but none came forward. Similar view has been expressed by the Supreme Court in [PRECEDENT] and the Delhi High Court in [PRECEDENT].
13. Further it needs to be noted that the sketch plan 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 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].
14. 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 witness after use. PW2 in his statement has testified that the seal after use was handed over to him by Inspector [ENTITY]/PW3. PW3 also deposed that the seal after use was handed over to Ct. [ENTITY]. 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.
15. Moreover, no DD entry in respect of PW2 and PW3 is proved on record to establish that they were actually present in the area at the relevant time in connection with patrolling of the area. Thus, the presence of these two witnesses at the alleged time itself is rendered doubtful. This view has been expressed by the Delhi High Court in [PRECEDENT].
16. All these infirmities in the prosecution evidence seriously reflects on the veracity of prosecution case the benefit whereof must go to the accused.
17. 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 17.10.2011 Metropolitan Magistrate South District/New Delhi P.S. Malviya Nagar U/[SECTION] [ACT] 17.10.2011 Present: Ld. APP for the State. Accused produced on bail with counsel. Vide my separate judgment dictated and
announced in the open court accused is acquitted for the offence punishable U/[SECTION] of [ACT] for which he stands charged.
Accused is re-admitted to bail on furnishing fresh bail bond in the sum of Rs. 10,000/-with one surety in the like amount. Bail bond furnished. As per [SECTION] of the [ACT], as amended vide the [ACT], which came into force on 31.12.2009, the accused as well as the surety shall remain bound by the personal and the surety bond respectively for a period of six months from today.
File be consigned to Record Room.
([ENTITY]) MM/South Delhi/ 17.10.2011