IN THE COURT OF MS. SAUMYA CHAUHAN, METROPOLITAN MAGISTRATE, WEST DELHI, THC State v. [ENTITY] FIR No.372/04 PS Paschim Vihar U/[SECTION] [ACT] JUDGMENT
[CASE NUMBER] Date of Institution : 09.11.2004 Date of Commission of Offence : 01.06.2004 Name of the complainant : ASI [ENTITY], Anti Snatching Cell Paschim Vihar. Name & address of the accused : [ENTITY] S/o [ENTITY] R/o House No.9474, Bagh [ENTITY], [ENTITY] Offence complained of : U/[SECTION] [ACT] Plea of accused : Pleaded not guilty Final Order : Acquitted Date on which reserved for judgment : 03.10.2016 Date of announcing of judgment : 03.10.2016 BRIEF STATEMENT OF THE REASONS FOR THE DECISION
1. Vide this judgment this court shall decide the present case under [SECTION] [ACT].
2. The briefly stated story of the prosecution is that on 01.06.2004 at about 6.45 pm at Jalebi Chowk, Road towards Khyala, Paschim Vihar, the accused Akash State v. [ENTITY] U/[SECTION] [ACT] 1/8 FIR No. 372/04 PS Paschim Vihar @ Shalu s/o [ENTITY] was found in possession of one buttondar knife in contravention of the notification issued by the Delhi Administration. Hence, the accused is alleged to have committed an offence under [SECTION] [ACT]. The knife was seized and taken into possession by the police. FIR was registered and investigation was carried out.
3. Charge sheet was filed against the accused. Copy of chagesheet and other scruttable documents were supplied to the accused. Charge under [SECTION] [ACT] was framed against the accused by the Learned Predecessor vide order dated 22.11.2012 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) SI [ENTITY] (2) ASI [ENTITY] (3) [ENTITY] (4) Retired SI [ENTITY].
5. PW-1 SI [ENTITY] deposed that on 01.06.2004 at about 6.35 pm he along with HC [ENTITY], [ENTITY], Ct. [ENTITY], Ct.[ENTITY], Ct. [ENTITY], Ct. [ENTITY] and Ct. [ENTITY] were on patrolling duty in the area of white house road near Pushp Enclave. He received a secret information that one person namely [ENTITY] was standing with his friend at Jalebi Chowk, Khyala road with illegal knives. They requested to 3-4 passerby to join the investigation but none agreed and left without disclosing their names and addresses. They reached at the spot and on the pointing out by the informer, he along with Ct.[ENTITY] apprehended the accused [ENTITY]. One buttondar knife was recovered from the right pocket of his Pajama during his formal search. He State v. [ENTITY] U/[SECTION] [ACT] 2/8 FIR No. 372/04 PS Paschim Vihar prepared the sketch of the knife which is Ex.PW1/A. The length of the blade was 11 cm and that of the handle was 13 cm. Total length of the knife was 24 cm. It was made of steel and "Rampur Best Steel" was written on it. The handle was made of Aluminum. He prepared the pullanda of the knife and sealed it with the seal of SK. After use the seal was handed over to Ct. [ENTITY]. He prepared the tehrir and handed over to Ct. [ENTITY] for registration of FIR in the police station. In the meanwhile, the second IO SI [ENTITY] from PS Paschim Vihar came at the spot. He prepared the site plan at his instance. The witness handed over the sealed pullanda, documents and accused to the second IO SI [ENTITY]. Second IO recorded his statement and released him. Witness identified the case property.
6. During cross examination, witness stated that he did not remember whether any departure entry was made or not before his leaving for patrolling duty. They left the PS at about 5.30 pm on foot. He had received the information at about 6.35 pm. He had not written the secret information. He has offered his search before conducting the search of the accused. He admitted that he did not record the statement of public persons who refused to join the investigation nor served any notice upon them. He received the seal back after 2-3 hours. All the particulars mentioned on the pullanda were written by him except FIR. All the documents were prepared at the spot. He denied the suggestion that no knife was recovered from his possession.
7. PW-5 ASI [ENTITY] deposed that on 01.06.2004 at about 8.10 p.m., he State v. [ENTITY] U/[SECTION] [ACT] FIR No. 372/04 PS Paschim Vihar had registered the present FIR on the basis of rukka sent by ASI [ENTITY] through Ct. [ENTITY]. Copy of FIR is Ex.PW2/A and his endorsement on rukka is Ex.PW2/B.
8. PW-3 [ENTITY] deposed that on 01.06.2004 he was posted as constable at Anti Snatching Cell, Paschim Vihar, Delhi. He has corroborated the testimony of PW-1. He has further deposed that IO seized the case property vide memo Ex.PW3/A. IO prepared the tehrir and handed over to him for registration of FIR. After registration of FIR, he returned to the spot and handed over the original rukka and copy of FIR to ASI [ENTITY]. Second IO SI [ENTITY] from PS Paschim Vihar also reached at the spot. The second IO SI [ENTITY] received the pulinda and documents from ASI [ENTITY] vide memo Ex.PW3/B. IO arrested the accused and conducted his personal search vide memo Ex.PW3/C. Thereafter, they returned to the police station and deposited the case property in the Malkhana. He identified the case property in the court.
9. During cross examination, he stated that he did not remember whether IO made any departure entry or not. IO received the secret information at about 6.35 p.m. Public persons were asked to join the investigation and recovery but none agreed. No notice was served upon those public persons. He handed over the seal to the IO in the police station on the next day. All the writing work was done at the spot.
10. PW-4 Retired SI [ENTITY] deposed that on 01.06.2004 the present case was marked to him for further investigation. He along with Ct. [ENTITY] went to the State v. [ENTITY] U/[SECTION] [ACT] 4/8 FIR No. 372/04 PS Paschim Vihar spot. He met with ASI [ENTITY] and accused [ENTITY] at the spot. ASI [ENTITY] handed over to him one pullinda and the accused. He prepared the site plan at the instance of ASI [ENTITY] which is Ex.PW4/A. He prepared the seizure memo of pullinda. He arrested the accused and conducted his personal search. He recorded the statement of witnesses. After completing the investigation, he filed the charge-sheet before the Court. During cross examination, witness stated that he received the rukka after 7.30 pm. He immediately left the PS after receiving the FIR. He reached the spot on his personal motorcycle bearing no. HR-13C-0773. No public person was present there when he reached the spot. He admitted that the place of incident is a crowded area and many shops were situated there.
11. After the prosecution evidence was closed, statement of accused was recorded under [SECTION] [ACT] wherein the accused pleaded innocence and stated that he has been falsely implicated in this case. He did not lead defence evidence despite opportunity.
12. I have heard the arguments addressed by the Learned APP for state and the Ld. Counsel for accused and carefully perused the record.
13. 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 is supposed to stand on its own legs and it cannot derive any benefits whatsoever from the State v. [ENTITY] U/[SECTION] [ACT] 5/8 FIR No. 372/04 PS Paschim Vihar 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.
14. First and foremost, as it appears from the record, the IO did not join any public witness at the time of apprehending the accused or while completing the formalities despite availability. Admittedly public persons were present at the time when the accused was apprehended and also at the time when the formalities like arrest, seizure, search etc, were being carried out. However, neither PW-1 nor PW-4 made any sincere effort to join any public person in the investigation. All the witnesses examined are police witnesses. This casts a doubt on the very factum of recovery of the knife from the accused.
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. Further, the DD entry vide which the police officials had left the PS for patrolling State v. [ENTITY] U/[SECTION] [ACT] 6/8 FIR No. 372/04 PS Paschim Vihar duty is not on record. This creates a doubt regarding the presence of the witness at the spot.
17. Further, 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".
18. However, the above said provision has not been complied with by the IO in this case.
19. 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 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.
20. Another lacuna in the prosecution case relates to seal. Prosecution case is that the knife was sealed by IO with the seal of SK and was handed over to Ct. [ENTITY]. However, no handing over memo is on record. 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 State v. [ENTITY] U/[SECTION] [ACT] 7/8 FIR No. 372/04 PS Paschim Vihar cannot be ruled out
21. In the case at hand, all the lapses in investigation casts a doubt on the very recovery of the 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 has failed to prove its case beyond reasonable doubt. Accordingly, accused [ENTITY] s/o [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 IN THE OPEN COURT ON [ENTITY]) 3rd October 2016 MM-07(West)/ Tis Hazari Court State v. [ENTITY] U/[SECTION] [ACT] 8/8 FIR No. 372/04 PS Paschim Vihar