IN THE COURT OF MS. SAUMYA CHAUHAN, METROPOLITAN MAGISTRATE, WEST DELHI, THC State v. [ENTITY] FIR No. 343/03 PS [ENTITY] U/[SECTION] [ACT]. JUDGMENT
[CASE NUMBER] Date of Institution : 29.07.2003 Date of Commission of Offence : 10.07.2003 Name of the complainant : [ENTITY] No. 1313/W Name & address of the accused : [ENTITY] S/o [ENTITY] R/o B-258A, Gali No.5, Raja Puri Uttam Nagar, Delhi Offence complained of : U/[SECTION] [ACT] Plea of accused : Pleaded not guilty Final Order : Acquitted Date of reserve for judgment : 08.04.2015 Date of announcing of judgment : 30.04.2015 BRIEF STATEMENT OF THE REASONS FOR THE DECISION
1. Vide this judgment this court shall decide the present case u/[SECTION] [ACT].
2. The story of the prosecution is that on 10.07.2003 at about 6.45 pm at Jhuggi Dairy Wali, [ENTITY], Delhi within the jurisdiction of PS [ENTITY], the accused [ENTITY] was found in possession of one button operated knife State v. [ENTITY] U/[SECTION] [ACT] 1/8 FIR No. 343/03 PS [ENTITY] without any license or permit in contravention of 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 by the Ld. Predecessor vide order dated 06.11.2003 to which he pleaded not guilty and claimed trial.
4. In order to prove the charge against the accused, the prosecution has examined four witnesses namely (1) [ENTITY] (2) [ENTITY] (3) [ENTITY] (4) [ENTITY].
5. PW-1 [ENTITY] deposed that on 10.07.2003 he was posted at PS [ENTITY] as duty officer from 5.00 pm to 01.00 mid night. At about 08.15 pm, he received a [ENTITY] from Ct. [ENTITY] sent by IO [ENTITY] on basis of which he registered the present FIR no.343/03. He proved the FIR Ex.PW1/A and endorsement on [ENTITY] as Ex.PW1/B.
6. PW-2 [ENTITY] deposed that on 08.07.2003 he was posted at Anti Snatching Cell, [ENTITY], Delhi. On that day, the accused persons namely [ENTITY] and [ENTITY] who were arrested in case FIR No. 388/03 & 389/03 PS Janak Puri made a disclosure statement that the accused [ENTITY] was involved with them in committing the offence. He searched for the accused State v. [ENTITY] U/[SECTION] [ACT] FIR No. 343/03 PS [ENTITY] [ENTITY] but he was not found at his suspected places. On 10.7.2003 one secret informer came to him at office and informed the witness that the accused [ENTITY] would come to Dairy Wali Jhuggi of [ENTITY] between 6.30 -7.00 pm. Witness reduced the information into writing in Rojnamcha and informed the same to Inspector [ENTITY] who directed the witness to raid the informed place immediately. He prepared a raiding party consisting of witness, HC [ENTITY], Ct. [ENTITY] and Ct. [ENTITY]. At about 6.15 pm, they left on three scooters for the place of information along with the secret informer. They reached the spot and requested 5-6 passersby to join the investigation but none agreed and left the place without disclosing their particulars. He along with staff took their position. At about 6.45 pm, one person was seen coming on foot from White House outer Ring Road. On the pointing out of the secret informer, they apprehended him and his name was revealed as [ENTITY]. On casual search of the accused, one buttondar knife was found in the right pocket of his wearing pant. He opened the knife and prepared sketch of the same which is Ex. PW2/A. Length of the knife was 24 cm, length of blade was 11 cm, length of handle was 13 cm. A button of Brass like metal was in the middle of the knife. He closed the knife and made pulanda of the same with white cloth and thereafter sealed the same with the seal of LP. The pulanda was seized vide seizure memo Ex.PW2/B. Seal after use was handed over to Ct. [ENTITY]. He prepared [ENTITY] which is Ex.PW2/C and handed over to Ct. [ENTITY] for registration of FIR. He went to the spot, got registered the FIR and State v. [ENTITY] U/[SECTION] [ACT] 3/8 FIR No. 343/03 PS [ENTITY] returned back at the spot along with [ENTITY] to whom the further investigation was marked. He produced the accused, recovered knife and documents to IO [ENTITY] who prepared site plan at his instance and recorded his statement. Thereafter, witness left the spot. Witness identified the accused and the knife in the court. Knife is Ex.P1.
7. During cross examination, witness stated that he left the PS at about 6.15 pm on scooter along with Ct. [ENTITY]. He admitted that the place of apprehending the accused was surrounded by residential area. He also admitted that he did not ask the occupants of residential houses to join the investigation. No written notice was given to public person who refused to join the investigation. He stated that he left the spot at about 8.45 pm. Site plan was prepared at his instance at about 8.30 pm under the street light. He admitted that street light is not shown in the site plan.
8. PW-3 [ENTITY] deposed that on 10.07.2003 he was posted at Anti Snatching Cell, West District, Delhi. He has corroborated the testimony of PW-2. He further deposed that the IO had prepared the [ENTITY] and handed over to him for registration of FIR. He got registered the FIR and investigation was marked to [ENTITY]. [ENTITY] left the PS for the spot prior to the witness. Witness reached at the spot at about 9.30 pm. [ENTITY] arrested the accused vide memo Ex.PW3/A and conducted his personal search vide memo Ex.PW3/B. State v. [ENTITY] U/[SECTION] [ACT] 4/8 FIR No. 343/03 PS [ENTITY]
9. During cross examination, witness stated that he left the PS at about 6.10 pm on scooter. He admitted that there was a residential colony near the place of occurrence. He did not remember what kind of scale was used for measuring the knife. He did not remember the make and color of IO's bag. He stated that he had left the spot along with [ENTITY] at about 8.00 pm on his scooter and returned back at about 9.30 pm. [ENTITY] had already left the spot when he returned. He returned the seal on the next day in the office. He denied the suggestion that nothing incriminating was recovered from the possession of the accused.
10. PW-4 [ENTITY], Assistant Clerk, Delhi Home General proved the notification dated 29.10.1980.
11. 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 Defence Evidence.
12. I have heard the arguments addressed by the Ld APP for state and the Counsel for accused and carefully perused the documents on record.
13. 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 State v. [ENTITY] U/[SECTION] [ACT] FIR No. 343/03 PS [ENTITY] 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.
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. 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, public persons were admittedly present. Even then, the IO failed to join any public witness. All the witnesses examined are police witnesses. This casts a doubt about the sincere efforts made by the IO to join independent witnesses.
15. The [SECTION] [ACT] provides 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 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". In the present case, this provision of law has not been complied with by the IO.
16. It has also been noticed that the recovery memo and other documents were prepared before the registration of FIR. When a document is prepared before State v. [ENTITY] U/[SECTION] [ACT] 6/8 FIR No. 343/03 PS [ENTITY] registration of FIR and it contains the FIR number, an 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.
17. Another lacuna in the prosecution case relates to seal. Prosecution case is that the knife was sealed by IO with the seal of LP 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 with the case property can't be ruled out.
18. It is a cardinal principle of criminal jurisprudence that prosecution has 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 has 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 benefit of every reasonable doubt in the prosecution story and any such doubt in the prosecution case entitles the accused to acquittal.
19. In the case at hand, all the lapses in investigation puts doubt on the very recovery of the knife from the possession of the accused. The court is of the State v. [ENTITY] U/[SECTION] [ACT] 7/8 FIR No. 343/03 PS [ENTITY] 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].
20. 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 IN THE OPEN COURT ON [ENTITY]) 30th April 2015 MM-07(West)/ Tis Hazari Court State v. [ENTITY] U/[SECTION] [ACT] 8/8 FIR No. 343/03 PS [ENTITY]