1 IN THE COURT OF SHRI [ENTITY]: METROPOLITAN MAGISTRATE04 (SOUTH), SAKET COURTS:NEW DELHI State Vs. Partap FIR No. 313/10 U/[SECTION] [ACT] J U D G M E N T Serial No. of the Case : 01/3/11 [CASE NUMBER] Date of Institution : 29.01.2011 Date on which case reserved for judgment : 07.05.2011 Date of judgment : 10.05.2011 Name of the complainant : HC [ENTITY] SIngh PS Kotla Mubarakpur Date of the commission of offence: 21.12.2010 2 Name of accused : Partap @ Dhandha S/o Late Sh. Dharampal R/o H NO. 228, Ali Ganj Kotla Mubarakpur, New Delhi Offence complained of : U/[SECTION]/54/59 [ACT] Offence charged of : U/[SECTION] [ACT] Plea of the accused : Pleaded not guilty. Final order : Acquitted Date of Institution : 29.01.2011 Date on which case reserved for judgment : 07.05.2011 Date of judgment : 10.05.2011 BRIEF STATEMENT OF REASONS FOR THE DECISION OF THE CASE BRIEF FACTS:
The accused [ENTITY] has been sent up for trial by the Police of PS Kotla Mubarakpur for an alleged offence under [SECTION] of [ACT]. The brief facts of the prosecution case are that on 21.12.2010 at about 8:20 PM at Sewa Nagar, Near Fish Market, New Delhi within the jurisdiction of Police Station Kotla Mubarakpur, the accused was found in unlawful possession of a button actuated knife without any license or permit as per notification of the Delhi Government and thereby committed an offence punishable U/[SECTION] [ACT].
2. The report U/[SECTION] [ACT] was filed on 29.01.2011. Cognizance of the offence was taken.
3. Charge for the offence U/[SECTION] [ACT] against the accused was framed on 31.01.2011.
PROSECUTION EVIDENCE :
4. The prosecution to prove its case examined four PWs in all.
PW1 Ct. [ENTITY] stated, on 21.12.2010, I along with HC [ENTITY] were on patrolling duty and reached at Sewa Nagar near Fish Market. Secret informer met us and told us that one person coming from Railway Fatak side is carrying illegal weapon. At about 8:20 PM, at the pointing out of the secret informer, I apprehended the accused. I identify the accused present in the court today. On search one buttondar knife was recovered from the right side pocket of his pant. Sketch of the recovered knife was prepared, the same is Ex.PW1/A. The recovered knife was sealed in a pulanda with the seal of AS. It was seized vide seizure memo Ex.PW1/B. IO prepared the rukka and got registered through me. Accused was arrested vide memo Ex.PW1/D and his personal search was conducted vide memo Ex.PW1/E. The recovered knife was identified by the witness. Same is Ex.P1.
PW2 [ENTITY] corroborated the testimony of PW1 he further stated , I handed over the seal to Ct. [ENTITY], after use. I prepared the rukka Ex. PW2/ A, and got the case registered through Ct. [ENTITY]. I prepared the site plan Ex.PW2/ B. Accused was arrested vide memo Ex.PW1/D and his personal search was conducted vide memo Ex.PW1/E. The recovered knife was identified by the witness. Same is Ex.P1.
PW3 [ENTITY] , duty officer is a formal witness. He proved the carbon copy of FIR Ex.PW3/A and his endorsement on the rukka as ex.PW3/B. PW4 [CASE NUMBER] stated on 21.2.2010, I alongwith Ct. [ENTITY], reached the spot of incident. The accused (correctly identified) and [ENTITY] met us. He handed over the Accused, case property and the documents to me. I arrested the accused and conducted his personal search vide memos Ex. PW1/D & PW1/E. The recovered case property is Ex. P1.
Vide order dated 06.05.2011, PE was closed.
STATEMENT OF ACCUSED :
5. On 07.05.2011 statement of accused U/[SECTION] [ACT] was recorded. It was stated by the accused that he has been falsely implicated. Accused did not wish to lead defence evidence.
DEFENCE EVIDENCE :
6. No defence evidence has been led by the accused.
ARGUMENTS :
7. Arguments were advanced by the accused and the Ld. APP for the State.
Ld. APP for the State has argued that a button actuated knife was recovered from the possession of the accused in contravention of the notification issued by Delhi Administration and therefore he is liable to be punished for offence under [SECTION] of the [ACT].
It was submitted by the accused that he has been falsely implicated in this case and nothing has been recovered from him. The PWs have falsely deposed.
REASONING :
8. Firstly no independent public person was joined in the investigation/proceedings to witness the recovery/search/proceedings. A mere bald explanation that public persons were requested to join the proceedings but they declined and went away without disclosing their names and addresses has been put forth by the police. Admittedly no written requisition was made by the police to any public persons to join the investigation. It is not believable that such public persons went away without disclosing their names and addresses when requested by the police. It cannot be said that none of the independent public witness was available at the time of recovery or while recording of proceedings. In fact what emerges from the record is that no public witness was joined in the investigation/search/seizure despite the fact such public persons were available and what is being stated by the PWs is a mere lame excuse to cover up the lacuna and no sincere efforts were made top associate independent public witnesses during the investigation.
9. The failure on the part of the prosecution to join public witnesses especially when they are available also casts a doubt on the prosecution story. No plausible explanation is coming from the prosecution is forthcoming for non joining of independent witnesses. Reference may be made to the judgment titled as "[PRECEDENT], "[PRECEDENT] and [PRECEDENT].
10. Further it is alleged that PW1 & PW2 were on patrolling however no DD entries have been placed on record/proved to establish the departure and arrival of these police officials on patrolling.
11. In the judgment titled as "[PRECEDENT] the Hon'ble supreme Court held :
" In our view, the onus of proving all the ingredients of an offence is always upon the prosecution and at no stage does it shift to the accused. It is no part of the prosecution duty to somehow hook the crook. Even in cases where the defence of the accused does not appear to be credible or is palpably false that burden does not become any the less. It is only when this burden is discharged that it will be for the accused to explain or controvert the essential elements in the prosecution case, which would negative it. It is not however for the accused even at the initial stage to prove something which has to be eliminated by the prosecution to establish the ingredients of the offence with which he is charged, and even if the onus shifts upon the accused and the accused has to establish his plea, the standard of proof is not the same as that which rests upon the prosecution "
12. The onus and duty to prove the case against the accused is upon the prosecution and the prosecution must establish the charge beyond reasonable doubt. It is also a cardinal principle of criminal jurisprudence that if there is a reasonable doubt with regard to the guilt of the accused the accused is entitled to benefit of doubt resulting in acquittal of the accused. Reference may also be made to the judgment titled as [PRECEDENT].
13. For the forgoing reasons, 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. The accused is accordingly acquitted for the offence punishable U/[SECTION] [ACT].
Pronounced in open court ([ENTITY]) on 10.05.2011 MM04(South):Saket Courts:New Delhi 10.05.2011