1 IN THE COURT OF SH. VIVEK KUMAR GULIA METROPOLITAN MAGISTRATE - 1 (EAST) KARKARDOOMA COURTS, DELHI In re: State Vs. Aftab FIR NO. 388/04 P.S. Gandhi Nagar U/s. 25 Arms Act 1. Sr. No. of the case : 181/3 2. Date of institution : 24.11.2004 3. Name of the complainant : Constable [ENTITY] 4. Date of commission of offence: 25.10.2004 5. Name of accused : Aftab S/o. Sh. Nafis Ahmed, R/o. H.NO. 1713, Gali Masjidwali, Kailash Nagar, Delhi. 6. Offence complained of : 25 [ACT]. Plea of guilt : Accused pleaded not guilty 8. Date of reserving the order : 26.08.2009 9. Final order : Acquittal 10. Date of such Order : [PRECEDENT] JUDGMENT
FACTUAL BACKGROUND:
1. The FIR no. 388/04 was registered at Police Station (PS) Gandhi Nagar on the apprehension of accused, who was found in possession of buttondar knife (Ex. P1) near Thokar no. 21, Yamuna Pushta Road at about 6.20 p.m. on 25.10.2004, by complainant constable [ENTITY] during patrolling duty in that area. Consequent thereto, legal formalities, viz., preparation of sketch of the knife, seizure memo, personal search memo, arrest memo and site plan, were completed by the IO. After culmination of investigation, accused was charge-sheeted and summoned to face trial.
TRIAL PROCEEDINGS:
2. In light of the above stated facts, vide order dt. 15.12.2005, the predecessor court of Sh. [ENTITY], the then Ld. MM, Shahdara, Delhi, framed a charge for offence punishable u/[SECTION] [ACT], to which the accused pleaded not guilty and claimed trial.
3. For proving its case, the prosecution has produced three witnesses.
3A PW1, Constable [ENTITY], testified that on 25.10.2004, when he was on patrolling duty, accused was observed coming from Yamuna Pushta side and on seeing the police, he turned back. On suspicion, he was apprehended. During his formal search, buttondar knife was recovered from the right pocket of his pant. Meanwhile, IO HC [ENTITY] reached at the spot. Accused and knife were handed over to IO who recorded his statement Ex.PW1/A. Rukka was prepared and case was got registered. IO prepared the sketch of knife Ex.PW1/B. Total length of knife was 24.2 c.m. and of blade was 11 c.m. Knife was seized vide memo Ex.PW1/C. Site plan was prepared by IO. Accused was arrested vide memo Ex.PW1/D and his personal search was conducted vide memo Ex.PW1/E. Further, complainant correctly identified the accused and knife (Ex.P-1) in the court. During cross-examination, he replied that he went to PS with [ENTITY] at about 7.40 p.m. on foot and returned back at about 9.00 p.m. at the spot. Writing work was done under the street light at the spot. IO reached at the spot at about 6.40 p.m. Further it is replied that no public person was present at the spot when the knife was recovered from the possession of accused. It is also deposed that the spot was not a thickly populated area and no one was coming or going through there. Further stated that he does not remember on how many papers he put his signatures and what was recovered from the personal search of the accused.
3B PW2, IO [ENTITY], testified that when he reached at Thokar no. 21, near Old Yamuna Bridge, constable [ENTITY] (PW1) produced the accused with a buttondar knife. Knife was opened and its measurements were taken. It was sealed with the seal of DS and after recording statement of PW1, [ENTITY] Ex.PW2/A was prepared. PW1 got the FIR registered. Site plan Ex.PW2/B was prepared. After arresting the accused, notification Mark-X1 was collected. Further, this witness also correctly identified the accused as well as the case property Ex.P-1 in the court. During cross- examination, it was submitted that knife was recovered by PW1 before he reached at the spot. Further, he admitted that place of incident is a thickly populated area and many public persons were coming and going through the spot. It is mentioned that he asked some persons to join the investigation but none came forward though no written notice was given to any of them. It is further replied that they remained at the spot till 9.30 p.m. and all the writing work was done at the spot.
3C PW3, [ENTITY], proved the FIR Ex. PW3/A.
4. Statement of accused was recorded under [SECTION] [ACT] ([ACT]). When accused was briefed on all the incriminating evidence and documents, he denied the allegations and and submitted that he was arrested in this false case when he was coming from Seelampur in a rickshaw since he was in inebriated condition. However, he opted not to lead evidence in defence.
APPRECIATION OF EVIDENCE:
5. I have heard the State through Sh. [ENTITY], Learned Assistant Public Prosecutor and Learned defence counsel, Ms. [ENTITY], from Delhi Legal Service Authority.
6. Ld. APP for the State argued that the testimony of the recovery witness (PW1) fully supports the prosecution case and therefore the recovery of the illegal weapon from the possession of the accused can not be doubted. Whereas, Learned defence counsel had contended that despite the availability of public persons on the spot, no independent witness was joined in the raiding party and further there are number of discrepancies in the testimony of material witnesses as to the place of recovery suggesting that the alleged proceedings were not conducted at the spot, thereby pushing the case of the prosecution in the shadow of doubts.
7. It is observed that the case of the prosecution is entirely based on the testimony of PW1 and PW2. Both are police officials. It is evident that no public witness was joined when case property was allegedly recovered from the accused. It is a well settled principle of law that despite the availability of public witnesses, if no independent witness has been joined during investigation or at the time of recovery, then the testimony of police officials has to be scrutinized carefully. The Allahabad High Court in the case titled as [PRECEDENT], has put the legal position in a nutshell as follows :
"A search is not vitiated by non-compliance with the provisions of [SECTION] of the [ACT], a breach of which only put the Court on guard and incline it to scrutinize evidence of witnesses more closely. The effect of such irregularity will, however, depend on the circumstances of each particular case. But a search carried out with the aid of witnesses available at the time, even though they may not be independent, cannot be characterized to be in any way improper and cannot, in any case, have the effect of sweeping away the results of such a search."
8. Now let us have a close view of the depositions of PW1 & PW2. It can be seen that PW1 testified during his cross-examination that place from where recovery was effected is not a thickly populated area and no passer-by was coming or going through the spot. On this aspect, testimony of PW1 is in clear contradiction to the testimony of IO (PW2) who deposed in his cross-examination that place of incident is thickly populated area and many persons were coming and going through the spot.
9. Other noteworthy point is that though PW1 gives details of documents prepared at the spot during his examination-in-chief but during cross-examination he failed to recollect about the documents on which he put his signatures which is quite strange.
10. It is not disputed that it was dark when the writing work was done but the IO has not shown the street light in the site plan though he has admitted that writing work was done at the spot. PW1 has also deposed to the same effect.
11. Not only this, it can be seen that FIR number has been mentioned on the recovery memo and the sketch plan despite the fact that the FIR was not registered at the time of preparation of these documents. It is not explained as to how and under what circumstances the recovery memo and sketch plan came to bear the FIR number before the registration of the case. The similar issue was discussed by High Court of Delhi in re : [PRECEDENT], with following observations :
"In the normal circumstances, the FIR number should not find mention in the recovery memo or the sketch plan which had come into existence before the registration of the case. However, from the perusal of the recovery memo, I find that the FIR is mentioned whereas the sketch plan does not show the number of the FIR. It is not explained as to how and under what circumstances the recovery memo came to bear the FIR no. which had already come into existence before the registration of the case. These are few of the circumstances which create a doubt, in my mind, about the genuineness of the weapon of offence alleged to have been recovered from the accused."
12. All the above mentioned circumstances, makes it difficult for me to believe the prosecution version put on record. Therefore, this Court is of the considered view that the prosecution has failed to prove its case beyond reasonable doubts. Hence, following the one of the cardinal principles of criminal jurisprudence, the benefit of doubt is given to accused. In the result, accused deserves acquittal from the charge framed in the case in hand. Ordered accordingly.
Announced in the open court ( [ENTITY] ) On 9th Day of September, 2009 MM-I (East) (total pages - 8) Karkardooma Courts, Delhi.