IN THE COURT OF MS. [ENTITY], METROPOLITAN MAGISTRATE, WEST DELHI, THC State v. [ENTITY] FIR No. 702/05 PS Paschim Vihar U/[SECTION] [ACT]. JUDGMENT
C C No. : 1212/3/10 Date of Institution : 09.09.2005 Date of Commission of Offence : 19.08.2005 Name of the complainant : [ENTITY] No. 564/W Name & address of the accused : [ENTITY] S/o Rajender Singh R/o House NO. W-106, Vikaspuri, Budela, Delhi Offence complained of : U/[SECTION] [ACT] Plea of accused : Pleaded not guilty Final Order : Acquitted Date of reserve for judgment : 05.08.2014 Date of announcing of judgment : 04.09.2014 BRIEF STATEMENT OF THE REASONS FOR THE DECISION
1. Vide this judgment this court shall dispose of the present case u/[SECTION] [ACT].
State v. [ENTITY] Kumar U/[SECTION] [ACT] FIR No. 702/05, PS Paschim Vihar
2. The story of the prosecution is that on 19.08.2005 at about 1.10 am at main Road, Outer Ring Road in front of main gate, District Park, Paschim Vihar, Delhi within the jurisdiction of PS Paschim Vihar, the accused [ENTITY] was found in possession of one buttondar knife without any license or permit in contravention to the notification issued by the Delhi Administration and thereby committed an offence under [SECTION] [ACT]. The knife was seized and taken into possession by the police. After completing the formalities, investigation was carried out.
3. Charge sheet was filed against the accused in the court. Copy of chagesheet and other scruttable documents were supplied to the accused and thereafter charge under [SECTION] [ACT] was framed against him vide order dated 04.11.2006 to which he pleaded not guilty and claimed trial.
4. In order to prove the charge against the accused, the prosecution examined three witnesses namely (1) [ENTITY] (2) [ENTITY] (3) [ENTITY].
5. PW-1 [ENTITY] deposed that on 19.08.05 he was posted at AATS West District. On that day he along with [ENTITY], SI [ENTITY], Ct. [ENTITY], Ct. [ENTITY], Ct. [ENTITY] and Inspector [ENTITY] were on patrolling duty at District Park, Paschim Vihar. One secret informer met them and informed to IO that the accused [ENTITY] would come at Peergarhi for committing offence. Thereafter IO organized a raiding team including aforesaid staff and secret State v. [ENTITY] Kumar U/[SECTION] [ACT] FIR No. 702/05, PS Paschim Vihar informer. At about 12.40 am they reached at gate of District Park and put the barricades on the road. At about 1.10 am one Maruti Car bearing no. DL-8CC-2697 came. When they tried to stop the said car, the accused was tried to run away. However, they overpowered the accused and IO apprehended him. On formal search one buttondar knife was recovered from the backside pocket of his pant. IO prepared the rough sketch of knife which is Ex. PW1/A. Thereafter IO measured the knife, the total length of knife was 24 cm, the width of blade was 2.5 cm. The length of blade was 11 cm and the length of handle 13 cm. Thereafter IO prepared the pullanda and the knife was put in the same and sealed with the seal of MD. IO took the possession of same vide seizure memo Ex. PW1/B. IO also took the possession Maruti Car bearing no. DL-8CC-2697 vide seizure memo Ex. PW1/C. The seal was handed over to Ct. [ENTITY] after use. Thereafter IO prepared the rukka and sent him to PS for getting registration of FIR. After registration of FIR, witness came back at the spot and handed over the carbon copy of FIR and original rukka to second IO ASI [ENTITY]. First IO handed over the case property and accused to second IO. Second IO prepared the site plan Ex. PW1/D at the instance of first IO and thereafter they returned back to the PS. The case property was deposited into Malkhana.
6. Ld. APP has asked leading question from the witness after taking permission from the court. Witness admitted that the arrest memo was prepared in his presence vide memo Ex. PW1/E. Witness further admitted that the personal State v. [ENTITY] Kumar U/[SECTION] [ACT] FIR No. 702/05, PS Paschim Vihar search memo was conducted in his presence vide memo Ex. PW1/F. He identified the accused and the recovered knife in the court.
7. During cross examination, witness stated that he did not remember the number of departure entry. He stated that they left the PS at about 12.00 (midnight). He denied the suggestion that at that time there were public persons present at District Park, Paschim Vihar. He admitted that the ring road adjacent to the District Park, is a very busy road. He also admitted that at the time when the car of the accused was got stopped, two-four other vehicles also got stopped at the spot. The driver /passenger of the same were asked to join the investigation/recovery but none agreed. He admitted the suggestion that neither any notice in writing was served nor any action was taken against them for their refusal. He admitted that they did not note the registration number of the aforesaid vehicle nor the names and address of the aforesaid passengers/drivers. They were on patrolling duty on government vehicle. The distance between spot and PS was around 2 kms. He denied the suggestion that nothing was recovered from the possession of the accused.
8. PW-2 [ENTITY] deposed that on 19.08.2005 he was posted at AATS West District. He has corroborated the testimony of PW-1. He further identified the accused and the recovered knife in the court.
9. During cross examination, he stated that he made a departure entry but he could not tell the DD number. He stated that the distance between PS and the spot was about 2 Km. He did not remember whether he had signed on the State v. [ENTITY] Kumar U/[SECTION] [ACT] FIR No. 702/05, PS Paschim Vihar departure entry or not. He admitted that the spot was a busy area and the public persons were coming and going there. He admitted that IO had not joined the public persons in the investigation. He denied the suggestion that nothing was recovered from the possession of the accused.
10. PW-3 [ENTITY] deposed that on 19.08.2005 he was posted as HC at Anti-
Snatching Cell, West Distt., Paschim Vihar. On that day he along with Inspector [ENTITY], SI [ENTITY], Ct. [ENTITY], [ENTITY], Ct. [ENTITY] and Ct. [ENTITY] were on patrolling duty in a Govt. vehicle at District Park, Paschim Vihar. One secret informer met him and informed that accused [ENTITY] who was involved in many cases of snatching would come at Peera Garhi for going towards Distt. Center, Janak Puri via Outer Ring Road. Thereafter, a raiding party was prepared. They started checking vehicles. At about 01:10 AM one Maruti car bearing no. DL-8CC-2697 came there and they stopped that car and at that time the person who was sitting inside the car tried to run away from the spot. Witness along with other staff members apprehended him. On his cursory search, one button actuated knife was recovered from the pocket of his pant. He prepared the sketch memo Ex.PW1/A of knife. Knife was put in a pullinda and sealed with the seal of 'MD' and same was taken into police possession vide seizure memo Ex.PW1/B. Seal after use was handed over to Ct. [ENTITY]. Car was taken into police possession vide seizure memo Ex.PW1/C. Second IO ASI [ENTITY] to whom further investigation was marked reached at the spot. Witness prepared the rukka which is Ex.PW3/A. [ENTITY] was handed over to Ct.
State v. [ENTITY] Kumar U/[SECTION] [ACT] FIR No. 702/05, PS Paschim Vihar Som Dutt for registration of FIR. He went to the PS, got the case registered. Witness handed over custody of accused, case property and memos to Second IO. IO prepared the site plan at his instance. He recorded the statement of witness and the witness was relieved from further investigation. He identified the accused and the recovered knife in the court.
11. During cross examination, he stated that he made departure entry when he left the PS. He did not remember the number of the same. The witness did not remember the time when he left for the spot from the PS. The distance between the PS and the spot was about half to 1 km. He admitted that the spot in question was a busy area. The witness admitted that he has not asked any public person to join the investigation/recovery as no one was there. He finally left the spot at about 01:30-02:00 AM. He did not remember the time of the arrest of the accused. The rukka was sent for at about 02:15 AM. He denied the suggestion that knife in question is easily available in the market. He denied the suggestion that nothing was recovered from the possession of accused.
12. The PE was closed by the order of the court and statement of accused was recorded wherein the accused pleaded innocence and stated that he was falsely implicated in this case. Accused did not lead DE.
13. I have heard the arguments addressed by the Ld APP for state and the Ld. Counsel for accused and carefully perused the documents on record.
State v. [ENTITY] Kumar U/[SECTION] [ACT] FIR No. 702/05, PS Paschim Vihar
14. From the overall testimony of the witnesses, it is clear that the IO has not joined any public witness at the time of arrest or while completing the formalities despite availability of public persons. Infact, not even an effort was made to join the public witnesses. There is a possibility that it was a chance recovery, however, at the time and place from where the accused was apprehended and when the formalities were being completed, admittedly public persons were present there. All the witnesses examined are police witnesses. This casts a doubt about the sincere efforts made by the IO to join independent witnesses.
15. In "[PRECEDENT], it was observed that such explanations that the public persons refused to join the proceedings are unreliable. In case of "[PRECEDENT], it was held that failure of police to join witness from locality during search creates doubt about fairness of the investigation, benefit of which has to go to the accused. Similarly it was held in the case of [PRECEDENT] and [PRECEDENT], that whenever any recovery in connection with the place of the commission of offence is made, public persons must be made witness.
16. The [SECTION] [ACT] provided that "Before making a search of the officer or other person about to make it shall call upon the two or more independent and respectable inhabitants of the locality in which the place State v. [ENTITY] Kumar U/[SECTION] [ACT] FIR No. 702/05, PS Paschim Vihar to be searched is situated or any other locality if no such inhabitant of the said locality is available or is willing to be a witness of the search, to attend the witness the search and may issued an order in writing to them or any of them so to do". This provision of law has not been complied with by the IO.
17. In the present case, the IO has not joined the public persons in the investigation despite availability and this creates a doubt regarding the fairness of the investigation. The chances of false implication cannot be ruled out.
18. It has also been noticed that the recovery memo and other documents were prepared before the registration of FIR. When documents are prepared before registration of FIR, it contains the FIR number, and inference has to be drawn that either FIR was recorded prior in time or the documents were prepared later on and in such cases, benefit of doubt is to be given to the accused.
19. Another lacuna in the prosecution case relates to seal. Prosecution case is that the knife was sealed by IO with the seal of MD and was handed over to Ct. [ENTITY]. However, no handing over memo was prepared. Further, the seal was neither handed over to an independent witness nor deposited in malkhana. No explanation has come on record as to why handing over memo was not made or seal was not handed over to an independent witness or deposited in malkhana. In these circumstances, the possibility of tampering of case property can't be ruled out.
State v. [ENTITY] Kumar U/[SECTION] [ACT] FIR No. 702/05, PS Paschim Vihar
20. It is a cardinal principle of criminal jurisprudence that prosecution is supposed to prove its case beyond reasonable doubts by leading reliable, cogent and convincing evidence. Further, it is a settled proposition of criminal law that in order to successfully bring home the guilt of the accused, prosecution is supposed to stand on its own legs and it cannot derive any benefits whatsoever from the weakness, if any, in the defence of the accused. Accused is entitled to the benefits of every reasonable doubt in the prosecution story and any such doubt in the prosecution case entitles the accused to acquittal.
21. All the lapses in investigation creates doubt on the very recovery of the buttondar knife from the possession of the accused. The court is of the considered view that prosecution has not been able to prove the guilt of the accused and failed to prove its case beyond reasonable doubt. Accordingly, accused [ENTITY] is acquitted under [SECTION] [ACT].
22. As per [SECTION] [ACT] accused is admitted to bail on his furnishing personal bond in the sum of Rs.10,000/- with one surety of like amount. ANNOUNCED ON 04.09.2014 ([ENTITY]) MM-07(West)/ Tis Hazari Court /04.09.2014 Certified that this judgment contains 9 pages and each page bears my signatures.
([ENTITY]) MM-07(West)/ Tis Hazari Court /04.09.2014 State v. [ENTITY] Kumar U/[SECTION] [ACT] FIR No. 702/05, PS Paschim Vihar