1 FIR no. 534/06 [ENTITY] Vs. [ENTITY] IN THE COURT OF SH. SUDHANSHU KAUSHIK: MM : ROHINI COURTS: DELHI. [ENTITY] Vs. : [ENTITY] FIR No : 534/06 U/s : 25 of [ACT] PS : SP Badli JUDGEMENT
A. Sl. no. of the case 92/03 B. Offence complained of or proved U/s 25 of [ACT] C. Date of Offence 29.06.2006 D. Name of the complainant Ct. [ENTITY] No. 1779/NW, PS SP Badli. E. Name of the accused [ENTITY] S/o Sh. [ENTITY] R/o House no. A-2/61, Sawroop Nagar, Delhi F. Plea of the accused Pleaded not guilty G. Final order Convicted H. Date of Order 26.8.2010 Brief reasons for decision:
1. The story of the prosecution in brief is as under :
In the year 2006, Constable [ENTITY] and Constable [ENTITY] were posted at PS SP Badli. On 29.06.2006 at around 11.00 pm, they were on patrolling duty at ganda nala, Sawroop Nagar, Delhi. They saw that [ENTITY] Vs. [ENTITY] one boy was coming from the opposite direction. On seeing them, the boy started walking backwards. The police personnel became suspicious. They apprehended the boy after chasing him. On his personal search conducted by them, a buttondar knife was recovered from the right side pocket of his track pant. Information regarding the incident was delivered by them at PS SP Badli vide DD no. 83B. On gaining the said information, HC [ENTITY] reached the spot and carried out the investigation. The recovered knife was seized. Site plan as well as rough sketch of the knife was prepared. Based on the said facts, FIR bearing no. 534/06 under [SECTION] [ACT] was registered at PS SP Badli.
2. After investigation, chargesheet was put to the court. The copies of chargesheet were supplied to the accused in compliance of [SECTION] [ACT] and charge under [SECTION] of [ACT] was framed against him to which he pleaded not guilty and claimed trial.
3. In support of its version, the prosecution has examined four witnesses.
4. PW-1 [ENTITY] is the Duty Offier who has proved the registration of the FIR no. 534/06 lodged at PS SP Badli. The said FIR is Ex. PW-1/A. PW-2 Constable [ENTITY] is the police personnel who alongwith constable [ENTITY] had initially apprehended the accused. He has narrated the entire incident in his deposition. PW-3 [ENTITY], UDC, Home Department has proved the notification dated 17.2.1999 as Ex. PW-
[ENTITY] Vs. [ENTITY] 3/A. PW-4 [ENTITY] is the investigating officer who has proved the investigation part. The site plan prepared by him is Ex. PW-2/E. The seizure memo vide which the knife was seized is Ex. PW-2/D.
5. No other witness was examined by the prosecution and accordingly, prosecution evidence was closed.
6. Accused was examined under [SECTION] [ACT] and all the incriminating evidence coming on record was put to the accused. He submitted that he is innocent and has been falsely implicated in the present case. He has further submitted that he does not wish to lead any evidence.
7. I have heard the final arguments and have perused the record.
8. On appreciation of the material available on record, I am of the considered opinion that the prosecution has successfully established the charges under [SECTION] of [ACT] against the accused beyond reasonable doubt.
9. PW-2 Constable [ENTITY] has given an exact account of the incident dated 29.06.2006. He has deposed that on the said date he was on patrolling duty alongwith constable [ENTITY]. The witness has mentioned about the time of the incident and about the manner in which he alongwith constable [ENTITY] apprehended the accused. He has mentioned that at around 11.00 pm, they saw one person was coming towards them. On seeing them he turned back and started running. He has deposed that the boy was apprehended and on search being made one buttondar knife [ENTITY] Vs. [ENTITY] was recovered from the right hand side pocket of the track suit which he was wearing. The witness has deposed regarding the DD entry no. 83B submitting that in terms of the said entry, the information regarding the apprehension of the accused was delivered at PS SP Badli. The said DD entry is Ex. PW-2/A. He has mentioned that after receiving the information HC [ENTITY] came to the spot. He has made referene to his earlier statement Ex. PW-2/B submitting that the same was recorded by the investigating officer HC [ENTITY]. He has mentioned that the investigating officer handed over the original rukka to constable [ENTITY] who returned to the spot after registration of the FIR. The FIR has been proved on record by PW-1 as Ex. PW- 1/B. The witness has also mentioned regarding the sealing of the recovered knife. He has stated that the recovered knife was sealed with the seal of 'SPS' and the seal after use was handed over to constable [ENTITY]. The case property i.e. the recovered knife has also been identified by the witness as Ex. P-1. He has identified his signatures on the seizure memo Ex. PW-2/D.
10. PW-4 [ENTITY] has proved the investigation part. He has mentioned that on gaining the information vide DD no. 83B, he reached the spot. The witness has mentioned that 8-10 public persons were requested to join the investigation, however, none agreed. The sketch of the knife prepared by him is Ex. PW-2/C. He has also given the measurement of the knife in his testimony. He has mentioned that the knife was sealed with the seal of 'SPS'. The seizure memo prepared by him Ex. PW-2/D. The witness has supported [ENTITY] Vs. [ENTITY] and corroborated the version of PW-2 on all the material aspects. He has also identified the case property as Ex.P1.
11. PW-4 has supported the version of PW-2 by giving the exact account of the events. The PW-4 has further stated that subsequent to the seizure, the knife was sealed in a pullanda and was sealed with the seal of 'SPS'. The said sealed pullanda was produced by MHC(M). The same was carrying the intact seal of 'SPS' and has also been identified by PW-2.
12. The notification in violation of which the accused was carrying the said knife has been proved on record as Ex. PW-3/A. The knife which was recovered from the possession of the accused vide seizure memo Ex. PW-2/D was in violation of the said notification.
13. The registration of FIR has been proved on record by PW-1. The witness has deposed that the said FIR has been registered on the basis of the original rukka which was sent by HC [ENTITY].
14. The testimony of witness PW-1 to PW-4 establishes the complete chain of evidence. The PW-1 to PW-4 have not been cross examined by the accused. Their testimony has remained unimpeached.
15. Although, no public witness have been joined in the investigation, however, the said fact itself cannot be a ground for rejecting the unimpeached testimony of the PWs. The provisions as provided under [SECTION] [ACT] is only directory and failure to comply with the said provisions will not invariably be fatal to the case of the prosecution. It has been held by the [ENTITY] Vs. [ENTITY] Hon'ble Supreme Court in [ENTITY] of Punjab Vs. Balbir Singh reported in AIR 1994 SC 1872 that "The scope of these two [SECTION][SECTION] and [SECTION] of [ACT]) have been examined in a number of cases. In Wasan Singh v. [ENTITY] (1981) 2 SCC this Court has clearly held that irregularity in a search cannot vitiate the seizure of the articles. In Suder Singh v. [ENTITY] of Uttar Pradesh, AIR 1956 SC 411, it is held that irregularity cannot vitiate the trial unless the accused has been prejudiced by the defect and it is also held that if reliable local witnesses are not available the search would not be vitiated. In [ENTITY] of Maharashtra v. P.K. Pathak, AIR SC 1224, it is held that absence of any independent from the locality to witness the search does not affect the trial and the conviction of the accused under the [ACT]. In Radha Kishan v. [ENTITY] of Uttar Pradesh, 1963 SC 822, it is held that irregularity in a search would , however, cast a duty upon the Court to scrutinise the evidence regarding the search very carefully. In [PRECEDENT] it is held that when the salutary provisions have not been complied with, it may, however, affect the weight of the evidence in support of the search or may furnish a reason for disbelieving the evidence produced by the prosecution unless the prosecution properly explains such circumstance which made it impossible for it to comply with these provisions
This again depends on question whether the official has deliberately failed to comply with these provisions or failure was due to [ENTITY] Vs. [ENTITY] lack of time and opportunity to associate some independent witnesses with the search and strictly comply with these provisions."
16. There is no reason to doubt the testimony of PWs merely because they are police personnel. It has been held by the Hon'ble Supreme Court in Karamjit Singh Vs. [ENTITY] (Delhi Administration) reported in AIR 2003 SC " The testimony of police personnel should be treated in the same manner as testimony of any other witness and there is no principle of law that without corroboration by independent witnesses their testimony cannot be relied upon. The presumption that a person acts honestly applies as much in favour of police personnel as of other persons and it is not a proper judicial approach to distrust and suspect them without good grounds. It will all depends upon the facts and circumstances of each case and no principle of general application can be laid down "
17. In the light of the said judgement, the testimony of PWs cannot be discarded merely on the ground that they are police personnel. Constable [ENTITY] who has accompanying constable [ENTITY] has not been examined. However, his non examination is not fatal. PW-2 and PW-4 have supported and corroborated the version of each other by giving a similar account of the incident. Their unimpeached testimony cannot be discarded merely because of non examination of constable [ENTITY].
18. The charges under [SECTION] of [ACT] against the accused [ENTITY] Vs. [ENTITY] beyond reasonable doubt have been established. It is established on record that on 29.06.2006, the accused was found in possession of a knife which was in violation of the notification Ex. PW-3/A. Accordingly, the accused stands convicted for the offences under [SECTION] of [ACT].
Announced in open Court ([ENTITY]) Dated 26.8.2010 Metropolitan Magistrate Rohini Courts, Delhi