IN THE COURT OF SH. AKASH JAIN, METROPOLITAN MAGISTRATE06, PATIALA HOUSE COURTS, NEW DELHI State Vs [ENTITY] FIR No : 60/12 U/s : 25/54/59 [ACT] PS : South Campus JUDGMENT
a) Sl. No. of the case : 162/02 b) [CASE NUMBER] c) The date of commission of the offence : 03.06.2012 d) Name of the complainant : [ENTITY] e) Name, parentage & address of accused : [ENTITY] S/o [ENTITY] R/o House No.A106, Nav Nirman Apartment, Sector 6, Dwarka, New Delhi. f) Offences complained of : 25/54/59 [ACT] g) The plea of the accused : Pleaded not guilty h) Final Judgment : Acquitted i) Date of institution of case : 30.07.2012 j) Date of final arguments : 08.11.2013 k) Date of Judgment : 06.12.2013 BRIEF FACTS AND REASONS FOR THE DECISION:
1. In the present case chargesheet was filed by the State under [SECTION] [ACT] against the accused [ENTITY] on 30.07.2012. The case of the prosecution is that on 03.06.2012 at about 08:30 PM, at main gate, Moti Lal Nehru College, Berito Raj Marg, New Delhi, within the [CASE NUMBER] FIR No.60/12 Page no. 1 of 10 jurisdiction of police station South Campus, the accused [ENTITY] was apprehended by the police and found in possession of one country made pistol and 2 live cartridges without any licence and he thereby committed the offences punishable under [SECTION] [ACT].
2. On the basis of aforesaid chargesheet, Ld. Predecessor Court took cognizance of the offence under [SECTION] [ACT] against the accused. Upon appearance of the accused, the documents were supplied to him in compliance of [SECTION] of [ACT] (hereinafter mentioned as '[ACT]'). Charge u/[SECTION] [ACT] framed against the accused by Ld. Predecessor Court to which he pleaded not guilty and claimed trial on 18.08.2012. Thereafter, the matter was fixed for prosecution evidence.
3. In support of its case against the accused, prosecution examined as many as seven witnesses. PW1 is [ENTITY] who deposed that on 03.06.2012, [ENTITY] and Ct. [ENTITY] received the secret information that in a car some goons are supposed to come at Satya Niketan. They informed IC Inspector [ENTITY] and SI [ENTITY]. Inspector [ENTITY] prepared a raiding party including [ENTITY], [ENTITY], [ENTITY], HC [ENTITY], Ct. [ENTITY], Ct. [ENTITY], Ct. [ENTITY], Ct. [ENTITY], Ct. [ENTITY], Ct. [ENTITY], Ct. [ENTITY], Ct. [ENTITY] and SI [ENTITY] and went under Vasant Vihar fly over. [ENTITY] and SI [ENTITY] requested 34 persons to join investigation but none [CASE NUMBER] FIR No.60/12 Page no. 2 of 10 agreed and left the place without disclosing their names and addresses. Thereafter, they reached at Benetto Cruz Road and took the position at Moti Lal Nehru College. They started conducting checking of vehicles. At about 08.30 pm, SI [ENTITY] and [ENTITY] was informed by secret informer that accused persons are coming in the Accent Car and secret informer pointed out towards that car. SI [ENTITY] and [ENTITY] asked all the raiding party to gather and they stopped the car. PW1 with the help of Ct. [ENTITY] apprehended the accused whose name was later revealed as [ENTITY]. The accused was correctly identified by the witness. Thereafter PW1 conducted casual search of accused and found one country made pistol loaded with one live cartridge from left back side pocket of his pant. The witness again said that the pistol was found from the back side belt of the pant. Thereafter PW1 prepared the sketch of the country made pistol alongwith live cartridge and the same is Ex. PW1/A. Thereafter, he sealed the recovered case property in a white cloth pullinda with the seal of BS and seized the same vide memo Ex. PW1/B. After the use of seal the same was handed over to Ct. [ENTITY]. PW1 thereafter prepared the rukka Ex. PW1/C and handed over the same to Ct. [ENTITY] for registration of FIR. He remained at the spot with the accused and Ct. [ENTITY] came back to the spot alongwith copy of FIR and original rukka. PSI [ENTITY] also came to the spot alongwith him. PW1 handed over custody of the accused to PSI [ENTITY] alongwith the case property and relevant documents. PSI [ENTITY] prepared the site plan at the instance of PW1 which is Ex. PW1/D. Case property was correctly identified by [CASE NUMBER] FIR No.60/12 Page no. 3 of 10 the witness as Ex. P1, P2 and P3.
4. PW2 is [ENTITY] who deposed on the same lines of PW1 [ENTITY]. He also correctly identified the accused as well as the case property. He also deposed that the accused was arrested on 04.06.2012 vide arrest memo Ex. PW2/A.
5. PW3 is Ct. [ENTITY], who deposed that on 04.06.2012 he alongwith SI Shri [ENTITY] reached in front of main gate of Moti Lal Nehru College. There Ct. [ENTITY] and AATS Staff met them. A car make Accent was also standing there. AATS Staff handed over the accused to SI Shri [ENTITY] and the accused was formally arrested by the IO vide memo Ex. PW2/A. The said memo was signed by PW3.
6. PW4 is SI Shri [ENTITY], who deposed that on 03.06.2012 he received a Tehrir at PS: South Campus which had been sent by Special Staff through Ct. [ENTITY]. The case was accordingly lodged U/[SECTION] [ACT] at PS : South Campus. Subsequently he proceeded at the spot of incident alongwith Ct. [ENTITY] and Ct. [ENTITY]. On reaching the spot, HC [ENTITY] handed over to him one transparent box sealed with the seal of BS containing one [ENTITY] and two live rounds alongwith one filled up FSL Form. PW4 thereafter arrested accused [ENTITY] vide memo Ex. PW4/A. Thereafter, he prepared site plan at the instance of HC [ENTITY] which is Ex. PW1/D. He thereafter handed over the custody of [CASE NUMBER] FIR No.60/12 Page no. 4 of 10 accused to HC [ENTITY] and recorded the statements of witnesses. Accused was correctly identified by the witness.
7. PW5 is Ct. [ENTITY], who deposed that on 27.06.2012 he was posted as Constable at PS: South Campus. On that day on the instructions of IO, he carried exhibits kept in transparent plastic box sealed with the seal of BS in FSL Office Rohini vide [CASE NUMBER]. He handed over RC to MHCM. He further stated that there was no addition or alteration with the exhibits till the same was in his possession.
8. PW6 is [ENTITY], who proved the registration of FIR No. 60/12 in question which is Ex. PW6/A. He further proved endorsement on rukka which is Ex. PW6/B.
9. PW7 is HC [ENTITY] who deposed that on 04.06.2012 he was posted as MHCM at PS: South Campus. On that day, the case property of the present case and the FSL Form duly intact with the seal of BS was handed over to him and the same was deposited in the Malkhana vide mud No. 320/12. The copy of relevant entry is Ex. PW7/A (OSR). On 27.06.2012, upon instructions by the IO, he handed over the case property to Ct. [ENTITY] for depositing the same at FSL Rohini vide RC No. 38/21/12 Ex. PW7/B (OSR). After depositing the case property at FSL Rohini Ct. [ENTITY] handed over the acknowledgment of case acceptance Ex. PW7/C (OSR). He further stated that during the time case [CASE NUMBER] FIR No.60/12 Page no. 5 of 10 property was in his possession, the same was not tampered with.
10. Thereafter, prosecution evidence was closed by the court on 06.07.2013 and the matter was proceeded further for recording of statement of accused under [SECTION]/[SECTION] [ACT] The statement of accused was duly recorded wherein the accused disavowed all the allegations against him and took the plea that he has been falsely implicated in this case. No evidence was led by the accused in his defence. Thereafter, the matter was straightaway fixed for final arguments. Final arguments were heard on behalf of Ld. APP for state and the accused.
11. It was argued on behalf of State that all the witnesses have deposed in sync with each other and the recovery of case property from the accused is duly proved. Per contra it was argued on behalf of accused that the case property had been planted upon the accused and that seizure of the recovered case property was vitiated for failure of the police to involve any public witnesses despite the spot being a public place. It was also argued that there are various discrepancies in the statements of police witnesses, as such benefit of doubt be given to the accused.
12. It is a settled proposition of law that prosecution is required to prove its case on judicial file beyond reasonable doubt by leading reliable, cogent and convincing evidence. Also, it is well settled that accused is entitled to the benefit of every reasonable doubt in the prosecution story and such [CASE NUMBER] FIR No.60/12 Page no. 6 of 10 doubt entitles him to acquittal. Keeping in view the totality of facts, circumstances of the case and arguments addressed on behalf of both the parties, this court is of the opinion that the accused is entitled to be acquitted for the charge framed against him due to following reasons:
i) [SECTION] of [ACT] requiring police officials to make entry on arrival or prior to departure in the police station concerned, has apparently not been complied by the police officials concerned in the present case.
The DD entry vide which all the police officials left the PS for raiding and apprehending the accused had not been brought on record. As per the judgment of [PRECEDENT], if investigating agency deliberately ignores to comply with the provisions of the act, the courts will have to approach their action with reservation. The failure to bring on record the DD entry creates a reasonable doubt in the prosecution version and attributes oblique motive on the part of the prosecution.
ii) As per the rukka, before apprehending the accused, the IO requested 34 public persons to join the raiding party but all of them left the spot after giving their reasonable excuses and without disclosing their names and addresses. In the opinion of the court the IO had not taken sincere efforts to join independent public witnesses in the police proceedings. The IO should have asked the public persons available at the spot to join the investigation by serving them notice in writing and in case of their refusal should have taken action against them u/[SECTION] [ACT], which is not the case. The IO has even failed to mention the names of the said public persons. It is relevant here to refer the judgment of [PRECEDENT], where Hon'ble High Court of Delhi has observed as under :
" It is repeatedly laid down by this court that in such cases it should be shown by the police that sincere efforts [CASE NUMBER] FIR No.60/12 Page no. 7 of 10 have been made to join independent witnesses. In the present case, it is evident that no such sincere efforts have been made, particularly when we find that shops were open and one or two shopkeepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the shopkeepers had declined to join the raiding party, the police could have later on taken legal action against such shopkeepers because they could not have escaped the rigours of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the [ACT] "
In [PRECEDENT], wherein Hon'ble Punjab & Haryana High Court held as under: " It is well settled principle of the law that the Investigating Agency should join independent witnesses at the time of recovery of contraband articles, if they are available and their failure to do so in such a situation casts a shadow of doubt on the prosecution case. In the present case also admittedly the independent witnesses were available at the time of recovery but they refused to associate themselves in the investigation. This explanation does not inspire confidence because the police officials who are the only witnesses examined in the case have not given the names and addresses of the persons contacted to join. It is a very common excuse that the witnesses from the public refused to join the investigation. A police officer conducting investigation of a crime is entitled to ask anybody to join the investigation and on refusal by a person from the public the Investigating Officer can take action against such a person under the law. Had it been the fact that the witnesses from the public had refused to join the investigation, the Investigating Officer must have proceeded against them under the relevant provisions of law. The failure to do so by the police officer is suggestive of the fact that the explanation for nonjoining the witnesses from the public is an after thought and is not worthy of credence. All these facts taken together make the [CASE NUMBER] FIR No.60/12 Page no. 8 of 10 prosecution case highly doubtful "
iii) As per rukka, after apprehension of the accused but before conducting his casual search, the police official concerned had not offered his own search to the accused. It is relevant here to refer to the judgment of [PRECEDENT], wherein it was held as under :
" The next part of the prosecution case is relating to the search and recovery of Rs.500/ from the accused. One of the formalities that has to be observed in searching a person in that the searching Officer and others assisting him should give their personal search to the accused before searching the person of the accused. (See [PRECEDENT]). This rule is meant to avoid the possibility of implanting the object which was brought out by the search. There is no evidence on record whatsoever that the raiding party gave their personal search to the accused before the latter's person was searched. Besides the above, it is in the evidence of PWs 2 and 5 that the accused wanted to know the reason for which his person was to be searched and the reason for such search was not intimated to the accused. No independent witness had witnessed the search. In the above premises, my conclusion is that the search was illegal and consequently the conviction based thereon is also vitiated " Being guided by above said case law, it can be said that search of the accused by above said police official (s) was in complete violation of the above said case law and the same can be said to be illegal.
iv) As per rukka, the seal after use on the pullinda containing the case property allegedly recovered from the accused was given to none other but to another police official who is also a material prosecution witness in this case regarding alleged recovery of country made pistol and two live cartridges from the possession of accused. Such material witness of the case is always interested in the success of the [CASE NUMBER] FIR No.60/12 Page no. 9 of 10 case of prosecution and as such, chances of fabrication of case property cannot be ruled out beyond doubt.
v) The secret informer at whose behest the accused is apprehended has neither been named, nor cited as witness by the prosecution nor been examined by Ld. APP for state.
vi) It must also be noted that the recovery memo, sketch of the arms and other documents prepared before registration of FIR contains the FIR number. Thus, an inference can be drawn that either FIR was recorded prior in time or the documents were prepared later on by the police. In all such cases, benefit of doubt is to be given to the accused.
13. Keeping in view the totality of facts, circumstances of the present case and the legal propositions discussed above, this court is of the view that the prosecution has failed to prove its case against accused beyond reasonable doubt. Therefore, the accused [ENTITY] S/o [ENTITY] is hereby acquitted of the offences under [SECTION] [ACT].
Announced in the open Court ([ENTITY]) on 06.12.2013 Metropolitan Magistrate06, Patiala House Court, New Delhi [CASE NUMBER] FIR No.60/12 Page no. 10 of 10