IN THE COURT OF SH. [ENTITY], CHIEF METROPOLITAN MAGISTRATE (NORTHEAST) KARKARDOOMA COURTS, DELHI. [ENTITY] vs. [ENTITY] FIR No. 506/16 U/s : 25 of [ACT] P.S.: Gokal Puri CIS No. 257/17 Date of Institution : 03.11.2016 Date of reserving of order : 09.10.2019 Date of pronouncement : 10.10.2019 JUDGMENT
1. [CASE NUMBER] 2. Name of the complainant : HC Satish 3. Date of incident : 12.09.2016 4. Name of accused persons : [ENTITY] S/o Sh.[ENTITY], R/o House No.209, Gali No.5, New Kardampuri, Delhi. 5. Offence complaint of. : 25 of [ACT] 6. Plea of accused : Pleaded not guilty 7. Final order : Acquitted 8. Date of such order : 10.10.2019 BRIEF REASONS FOR SUCH DECISION
1. The brief facts of case of prosecution are that on 12.09.2016 at about 3.00 p.m. at Ganga Vihar Pulia, FBlock, Delhi, the accused was found in possession of one buttondar knife, which was recovered from left side pocket of his wearing pant and same was without any authority/licence from competent authority and in contravention of the provisions of [ACT] and notification of Delhi Government. Hence, present FIR bearing No.506/16 dated 12.09.2016 u/[SECTION] of [ACT] was registered against the accused at P.S. Gokal Puri.
2. After completion of investigation, charge sheet was filed against the accused under [SECTION] of the [ACT] on 03.11.2016 and vide order dated 10.02.2017, cognizance of the offence committed by the accused was taken by Ld. Predecessor of this court and the accused was summoned. Thereafter, on 27.10.2018, accused appeared before the court and copy of the charge sheet was supplied to him in compliance of [SECTION] [ACT]
3. Thereafter, vide order dated 01.12.2018, charge for offence u/[SECTION] of the [ACT] was framed against the accused, to which, he pleaded not guilty and claimed trial. The said charge is as follows: "That on 12.09.2016 at about 3.00 p.m. at Ganga Vihar Pulia, FBlock, within jurisdiction of PS Gokal Puri, Delhi, you were found in possession of one buttondar knife, which was recovered from left side pocket of your wearing pant, without any authority/ licence to possess the same from the competent authority in contravention of provision of [ACT] and notification of Delhi Government and thereby you have committed offence punishable under [SECTION] of [ACT] and within my cognizance."
4. In order to prove its case, the prosecution has examined six witnesses. [ENTITY], who was the Duty Officer, was examined as PW1, Ct. [ENTITY], who was a witness of the alleged recovery, was examined as PW2, ASI [ENTITY], who was also a witness of the alleged recovery, was examined as PW3, ASI [ENTITY], who was also a witness of alleged recovery, was examined as PW4, Ct. [ENTITY], who was also a recovery witness, was examined as PW5 and ASI [ENTITY], who was investigation officer of the present matter, was examined as PW6. PE was closed vide order dated 13.09.2019. The following documents were exhibited during prosecution evidence : Copy of FIR as Ex.PW1/A, endorsement on [ENTITY] as Ex.PW1/B, copy of [ENTITY] as Ex.PW1/C, sketch memo of buttondar knife as Ex.PW2/A, seizure memo of buttondar knife as Ex.PW2/B, arrest memo of the accused as Ex.PW2/C, disclosure statement of accused as Ex.PW2/D, personal search memo of the accused as Ex.PW2/E, site plan of the spot as Ex.PW3/A and case property i.e. buttondar knife as Ex.P1.
5. Perusal of file would show that notification of Delhi Govt. dated 17.02.1979 is already on record and this Court takes judicial notice of the same.
6. Thereafter on 01.10.2019, statement of accused u/[SECTION] [ACT] was recorded, in which all the incriminating evidence were put to the accused, to which, he denied the allegations against him and he stated that he is innocent and has been falsely implicated in the present matter. Accused had also stated that he did not want to lead any evidence in his defence. Accordingly, defence evidence was closed on the same date i.e. 01.10.2019.
7. I have already heard arguments from Sh.[ENTITY], Ld. Substitute APP for [ENTITY] and Sh.[ENTITY], Ld. Counsel for accused and perused the entire material available on record carefully.
8. It is contended by Ld. Counsel for accused that nothing has been recovered from possession of the accused and he is innocent and has been falsely implicated in the present case. It is further contended that all prosecution witnesses are police witnesses and no independent public witness has been joined and all the writing work was done in the police station. It is further contended that there are material contradictions in deposition of the prosecution witnesses. It is further contended that the prosecution has failed to prove its case beyond reasonable doubts and hence, the accused is entitled to be acquitted.
9. As per the case of prosecution, PW2 to PW5 are witnesses of the alleged recovery of the buttondar knife and they all are police officials and no independent public person has been joined as witness in the present matter. PW2 deposed in his examinationinchief that they reached at Gokalpuri Pulia, Delhi where they asked passersby to join the investigation but none of them joined the investigation and left the place without disclosing their names and addresses and he further deposed that thereafter they went to Ganga Vihar Pulia, FBlock, Delhi and there ASI [ENTITY] also requested from passersby to join investigation but none agreed and went away without telling their names and addresses. PW2 deposed in his crossexamination that they requested 45 public persons to join as a witness at the time of recovery but none agreed and went away without disclosing their names and addresses. PW3 also deposed that IO requested several public persons to join investigation but they refused and went away without disclosing their names and addresses. PW3 deposed in his crossexamination that he did not note name and address of the public persons who refused to join the investigation and he did not issue any notice to them. PW4 also deposed that they requested some public persons to join the raiding team but none had agreed and left the spot without disclosing their names and addresses. PW4 deposed in his crossexamination that he tried to give notice to those persons who left the spot but they refused to take the same. However, PW4 admitted in his crossexamination that the said notice is not on record. PW5 deposed in his examinationinchief that ASI [ENTITY] requested some public persons to join the raiding party but none agreed and went away without telling their names and addresses. PW5 deposed in his crossexamination that 56 public persons were asked to join raiding party and they did not note down their names and addresses. From the above said deposition of PW2 to PW5, it is clear that there were availability of public persons at the spot, but despite that no public witness has been joined in the present matter. No sincere efforts have been done to join the public witnesses as no written notice was given to the public persons who refused to join investigation. The version of PW4 that he tried to give notice to those persons who left the spot but they refused to take the same, cannot be believed as no such notice has been placed on record and he had admitted in his crossexamination that the said notice is not on record. Nonjoining of public witness raises a doubt in the story of the prosecution.
10. In a case law reported as "Roop Chand Vs. The [ENTITY] of Haryana" 1999(1) C.L.R. 69, the Punjab & Haryana High Court held as under : "3. I have heard the learned counsel for the parties and gone through the evidence with their help. The recovery of illicit liquor was effected from the possession of the petitioner during noon time and it is in the evidence of the prosecution witnesses that some witnesses from the public were available and they were asked to join the investigation. The explanation furnished by the prosecution is that the independent witnesses were asked to join the investigation but they refused to do so on the ground that their joining will result into enmity between them and the petitioner".
"4. 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 a 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 worth of credence. All these facts taken together make the prosecution case highly doubtful".
11. Moreover, perusal of seizure memo of the buttondar knife Ex.PW2/B would show that on the top of the same, case FIR number, under section etc. have been mentioned in the same ink and flow of handwriting, though as per case of the prosecution the said document was prepared before sending the rukka. It also raises doubt in the story of the prosecution. For this, I rely on '[PRECEDENT]'. In a case titled in [PRECEDENT], it was held that, "In the event of any doubt as to the guilt of accused, the benefit will go to the accused".
12. In such cases, in view of Saifulla Vs. [ENTITY] reported in 1998 (1) CCC 497 (Delhi) and Abdul Gaffar Vs. [ENTITY] reported in 1996 JCC 497 (Delhi), benefit of doubt is to be given to the accused.
13. Taking into consideration all the facts and circumstances and material available on record, I hold that the prosecution has failed to prove its case against the accused beyond reasonable doubt. Benefit of doubt is given to the accused. Hence, accused [ENTITY] is acquitted from charge of offence punishable U/[SECTION] of the [ACT]. The case property i.e. buttondar knife is confiscated to the [ENTITY].
[ENTITY] Announced in open court [ENTITY] Date: 2019.10.10 on 10.10.2019 Garg 17:04:51 +0530 ([ENTITY]) CMM (NORTHEAST DISTT.) KKD COURTS, DELHI.