IN THE COURT OF MS. [ENTITY], METROPOLITAN MAGISTRATE-01 SOUTH, SAKET COURT, NEW DELHI State v. [ENTITY] FIR No.245/13 PS SJ Enclave U/[SECTION] [ACT] JUDGMENT
Date of Institution : 08.07.2013 Date of Commission of offence : 10.06.2013 Name of the complainant : Ct.Jasveer Name & address of the accused : [ENTITY] S/o Sh.Raj Kumar R/o Village Dhaniya Wali, PS & PO Shayana, Distt. Bulandshehar, Uttar Pradesh Offence complained of : U/[SECTION] [ACT] Plea of accused : Pleaded not guilty Final Order : Acquitted Date of reserve for orders : 27.01.2014 Date of announcing of orders : 30.01.2014 Briefly stated the facts of the case are :
1) That on 10.06.2013 at about 7 am at Uphar Cinema Parking within the jurisdiction of PS SJ Enclave accused [ENTITY] was found in the possession of one buttandar knife in contravention to notification issued by the Delhi Administration without any license or permit. The knife was seized and taken into the police possession. Site plan was prepared. Necessary documentation was done. Statement of witnesses were recorded. Accused was arrested. Challan was prepared by IO and filed State v. [ENTITY] Page 1 FIR No.245/13, PS SJ Enclave before the court.
2) Cognizance was taken by the court of the alleged offence. The charge u/[SECTION] [ACT] was framed against the accused vide order dated 18.09.2013 to which accused pleaded not guilty and claimed trial.
3) In order to prove its case, the prosecution examined three witnesses as under :-
(i) PW1 [ENTITY] deposed that on 10.06.2013 he was on patrolling duty in the area of Green Park Main Divion No.4. At about 7 am when he reached at near parking of Uphar Cinema and saw one suspect who tried to run away on seeing him. On suspicion he was chased and apprehended whose name was revealed as [ENTITY]. On cursory search one buttondar knife was recovered from his right side pocket of wearing pant.
Information was given to PS. [ENTITY] reached at the spot and he handed over the accused along with said knife to IO. IO recorded his statement as complaint. IO requested some passerby to join the investigation but none agreed and left the spot without disclosing their names and addresses. The knife was opened and sketch of the same was prepared on blank paper. The total length of knife was 30.4 cm, blade was 13.5 cm, handle was 16.9 cm and the width of blade was 2.8 cm. The blade was made of steel, handle was made of bronze. The said knife was closed and sealed in the pullanda with the seal of CPS. Seal after use was handed over to him. [ENTITY] was seized. IO prepared site plan at his instance. [ENTITY] was prepared by IO and handed over to him for State v. [ENTITY] Page 2 FIR No.245/13, PS SJ Enclave registration of FIR. He went to PS and got the FIR registered and after registration he along with copy of FIR and [ENTITY]/[ENTITY] returned back at the spot and handed over the same to the IO. Accused [ENTITY] was arrested and his personal search was conducted. Accused was sent to lock up behind bar after medically examined. Case property was deposited into malkhana. His statement was recorded by IO.
Witness correctly identified the accused and case property in the court.
In his cross examination by ld. LAC for accused it is admitted by witness that some labour was present at the spot but they did not disclose their name and address. No notice was served to them and at the time of recovery no public person was present. He informed the PS at about 7.10 am. IO reached at the spot on his bike after 20-25 minutes of information. The distance between PS and spot was about 2-2 km. The accused was wearing banayan and lower at that time. During personal search of accused one pouch of tobacco was found. It is denied by witness that accused was lifted from the way when he was going to market at 11 am or that Rs.1,000/- was found during his personal search. His statement was recorded by IO at the spot at about 8.45 am. He went to PS along with [ENTITY] on his bike at about 8 am and returned back at about 8.30 am. He did not remember how many copies of FIR brought by him to spot. Disclosure statement of accused was recorded prior sending [ENTITY]. IO did not make inquiry from public person in his presence.
(ii) PW2 SI Shri [ENTITY] was duty officer who proved the FIR vide memo Ex.PW2/A and endorsement thereupon vide memo Ex.PW2/B. State v. [ENTITY] Page 3 FIR No.245/13, PS SJ Enclave Accused did not prefer to cross examine the witness.
(iii) PW3 [ENTITY] deposed before the court that on 10.06.2013 at about 7.15 am he received information of DD No.9A regarding recovery of one buttondar knife from accused in front of Uphar Cinema Park. He reached at the spot where Ct.[ENTITY] met him and handed over one accused [ENTITY] and one buttondar knife recovered from accused. He recorded the statement of Ct.[ENTITY] as complaint. He requested some public persons to join the investigation but none agreed and left the spot without disclosing their names and addresses. The knife was opened and sketch was prepared. Total length of knife was 30.4 cm, blade was 13.5 cm, handle was 16.9 cm and the width of blade was 2.8 cm. The said knife was closed and sealed in pullanda with the seal of CPS. Seal after use was handed over to Ct.[ENTITY]. The said pullanda was seized with the seal of CPS. He prepared site plan at the instance of [ENTITY]. He prepared tehrir and got it registered through Ct.[ENTITY]. After registration of FIR, he came back along with copy of FIR and original [ENTITY] and handed over the same to him. Accused was arrested and his personal search was conducted. Case property was deposited into malkhana and accused was sent to lock up after his medical examination. He recorded the statement of witnesses. After completion of investigation, challan was prepared and filed before hon'ble court.
Witness correctly identified the accused and case property in the court.
Accused did not prefer to cross examine the witness.
State v. [ENTITY] Page 4 FIR No.245/13, PS SJ Enclave
4) Thereafter, PE was closed. The statement of accused was recorded wherein accused denied the prosecution version. However, he did not examine any witness in his defence.
5) Having touched upon the statement of PW's, I shall consider the rival contention of the parties. Accused has highlighted several infirmities in investigation which are being discussed hereunder.
(i) It has been argued by ld. Defence counsel that there is no mention that who has deposited the case property into malkhana. It has been further not mentioned that who recorded the disclosure statement of accused.
(ii) No recovery was effected in the presence of IO/PW3. Further, there is no mention of time of arrest of accused on the arrest memo and there is overwriting on arrest memo.
(iii) It is highlighted by the accused that IO has not joined any public witness despite availability. Admittedly, several public witnesses were present at the time of apprehension of the accused and while completing the formalities but none of them was even requested to become a witness. This casts doubt about the sincere efforts made by the IO to join independent witnesses. 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 State v. [ENTITY] Page 5 FIR No.245/13, PS SJ Enclave search creates doubt about fairness of the investigation, benefit of which has to go to the accused. Similarly held in the case [PRECEDENT] and [PRECEDENT], it is settled law that whenever any recovery in connection with the place of the commission of offence is made, public person must be made witness. 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 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". The IO have failed to note down the particulars of the person who refused to join the investigation and this creates doubt regarding the fairness of the investigation.
6) The search of the accused person was admittedly done without first doing the personal search of police official. The same is accordingly violative of mandatory provision of personal search, keeping in view the interest of witness in successful completion of the case in favour of prosecution, possibility of planting the weapon could not be completely ruled out.
7) The departure entry has not been proved on record vide which the witnesses has affirmed to be on patrolling duty.
State v. [ENTITY] Page 6 FIR No.245/13, PS SJ Enclave
8) All the lapses in investigation creates doubt on the very recovery of a 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 accused beyond reasonable doubt. It is settled position of law that if the investigation suffers from taint then the entire prosecution case becomes open to doubts and challenges.
9) The accused is accordingly acquitted for the offence u/[SECTION] of [ACT].
File be consigned to record room.
Announced in the open court ([ENTITY]) on 30th January 2014 METROPOLITAN MAGISTRATE-01 SOUTH, SAKET COURT, NEW DELHI State v. [ENTITY] Page 7 FIR No.245/13, PS SJ Enclave