IN THE COURT OF MS.[ENTITY]: METROPOLITAN MAGISTRATE (NORTH-7) : DELHI. State Vs. [ENTITY] FIR No. 220/08 PS: Civil Lines Unique Case ID No.02401R1466192008 JUDGMENT
(a) Sr. No. of the case 13.3.2012 (b) Date of offence 12.8.2008 (c) Complainant ASI [ENTITY], No.4851/D, PIS No. 28740962, PS Civil Lines, Delhi (d) Accused [ENTITY], S/o Sh.Birbal, R/o 9/39, Chandrawal, Civil Lines, Delhi (e) Offence Under [SECTION] [ACT] (f) Plea of accused Pleaded not guilty. (g) Final Order Acquitted (h) Date of institution 27.8.2008 (i) Date when judgment 15.5.2012 was reserved (j) Date of judgment 29.5.2012
1. In the present case, accused has been charge sheeted for the offence under [SECTION] of [ACT]. The allegations against the accused, as detailed in the charge-sheet are that on 12.8.2008 at about 8.15 pm at STA Chowk, Rajpur Road, Civil Lines, Delhi within the jurisidiction of PS Civil Lines the accused was found in possession of a buttondar actuated knife in contravention of Delhi Administration Notification and thus, committed the offence u/[SECTION] [ACT].
2. After completion of investigation, charge-sheet was filed. Copies State v. [ENTITY] FIR No. 220/2008 Page of 9 were supplied in compliance of [SECTION] [ACT]. Charge was framed under [SECTION] of [ACT] against the accused vide order dated 22.12.2009 to which the accused pleaded not guilty and claimed trial.
3. Prosecution adduced as many as 5 witnesses in evidence in support of its case. PW1 [ENTITY] testified that on the given date i.e. 12.8.2008 he alongwith HC [ENTITY] and Ct [ENTITY] were on checking duty, when upon a secret information they apprehended 2 boys one of them was the accused in the present case [ENTITY] and the other was [ENTITY] (separate case is pending against him). During formal search of the accused [ENTITY] one buttondar knife was recovered from his right side pocket of his pant. IO ASI [ENTITY] measured the knife and found the length of the blade was 10.3cm, width of the blade was 2.5cm and the handle was 13cm. IO prepared the sketch of the knife vide memo Ex.PW1/A and sealed the knife with a cloth parcel Ex.PW1/B bearing his signatures of the said witness at point A.
4. Thereafter, the tehrir was prepared and handed over to the said witness for registration of the FIR. After getting FIR registered, he alongwith 2nd IO [ENTITY] to whom the investigation was handed over returned at the spot. 1st IO handed over the accused, case property and relevant documents to the 2nd IO. Thereafter, the 2nd IO prepared the site plan and arrested the accused vide memo Ex.PW1/C and conducted his personal search vide memo Ex.PW1/D. Disclosure statement was recorded vide memo Ex.PW1/E. The said witness categorically identified the case property produced during the course of trial by the MHCM Ex.P1.
5. PW2 SI [ENTITY][ENTITY] testified that on the given date, he was posted as Duty Officer at PS Civil Lines from 4.00 pm to 12.00 mid night. On that State v. [ENTITY] FIR No. 220/2008 Page of 9 day at about 9.55 pm he received ruqqa from [ENTITY] which was sent by SI [ENTITY] for registration of case and on the basis of the ruqqa, FIR No.220/08 u/[SECTION] [ACT] was recorded in PS Civil Lines. The FIR was computer generated and was prepared in his supervision. The copy of the FIR is ExPW2/A (OSR). He made endorsement Ex.PW2/B which bears his signatures at point A.
6. PW3 [ENTITY] (2nd IO) categorically testified that he handed over the case property duly sealed with the seal of SS and all the relevant documents. At the instance of 1st IO he prepared the site plan Ex.PW3/A and arrested the accused vide memo Ex.PW3/C. He conducted the personal search of the accused vide memo Ex.PW1/D. He also recorded the statement of witness and deposited the case property in malkhana.
7. PW4 [ENTITY] testified that he was posted as MHCM at PS Civil Lines. The case property i.e. buttondar knife duly sealed with the seal of SS was deposited by ASI [ENTITY] and entered by the MHCM at serial no.245/2143. Photocopy of relevant entries is Ex.PW4/A (OSR). It is further submitted that so long the case property was in his possession, it was not tampered with.
8. PW5 SI [ENTITY] testified on the lines of PW1 and categorically stated that upon formal search of the accused [ENTITY] a buttondar knife was recovered from the right side of his pant's pocket. IO asked 4-5 public persons to join the investigation but none agreed. He prepared the sketch of the knife vide memo Ex.PW1/A. Total length of the knife was 23.3cm, length of the blade was 10.3cm and width of the blade was 2.5cm, length of the handle was 13cm. The blade of the made of steel and a fish mark was inscribed upon the handle of knife. The said knife was seized vide memo Ex.PW1/B and the same was sealed with the seal of SS. Thereafter, he prepared the ruqqa vide memo Ex.PW2/D and handed over the same to [ENTITY] for registration of FIR. Thereafter, he handed over the accused and the case property alongwith the other relevant document to the 2nd IO. He prepared the site plan at his instance. The said witness categorically identified the case property during the trial of the course produced by the MHCM vide Ex.P1.
9. After closure of prosecution evidence, the statement of the accused was recorded under [SECTION] of [ACT]. Incriminating evidence was put to the accused. He denied all the allegations and stated that he is innocent and has been falsely implicated in this case. The accused opted not to lead any evidence in his defence.
10. Final arguments heard. Record perused.
11. In the present case, accused has been charged for committing an offence under [SECTION] of [ACT]. In order to prove the guilt of the accused, prosecution has to prove that the accused was found having button actuated knife in contravention of notification issued by Delhi Administration and thereby committed an offence under [SECTION] of [ACT]. Prosecution has examined PW1 [ENTITY] and PW5 SI [ENTITY] to prove recovery of knife from the accused. The spot from where the recovery was allegedly effected is a busy road and there must be number of public persons present at the time of alleged recovery. However, the witnesses have not deposed regarding any effort to join public witnesses at the time of effecting the alleged recovery of buttondar knife, despite their availability on the spot or if none agreed to join whether any notice was given to such persons.
12. In case titled as "Roop Chand Vs. State of Haryana reported as CC Cases 3 (HC)", it was held as that where the police has failed to join independent witnesses in the investigation despite their availability and further failed to take action against those who refused to take part in investigation nor their names were noted down by the police, the explanation of the police for not joining independent witnesses is an afterthought and liable to be rejected.
13. In the case of "[PRECEDENT]", it has been observed that :-
"The fact that no independent witness though available, was examined and not even an explanation was sought to be given for not examining such witness is a serious infirmity in the prosecution case. Amongst the independent witnesses one who was very much in the know of things from the beginning was not examined by the prosecution. Non- examination of independent witness by itself may not give rise to adverse inference against the prosecution. However, when the evidence of the alleged eye-witnesses raise serious doubts on the point of their presence at the time of actual occurrence, the unexplained omission to examine the independent witness would assume significance."
14. In the case of "[PRECEDENT]", it has been held as under:-
"Having gone through the record we find much substance in each of the above contentions. Before conducting a search the concerned police officer is required to call upon some independent and respectable people of the locality to witness the search. In a given case it may so happen that no such person is available or, even if available, is not willing to be a party to such search. It may also be that after joining the search, such persons later on turn hostile. In any of these eventualities the evidence of the police officers who conducted the search cannot be disbelieved solely on the ground that no independent and respectable witness was examined to prove the search but if it is found - as in the present case - that no attempt was even made by the concerned police officer to join with him some persons of the locality who were admittedly available to witness the recovery, it would affect the weight of evidence of the Police Officer, though not its admissibility."
15. In the case of "[PRECEDENT]" it has been observed as under:-
"It also appeared from the evidence of PW-2 and PW-8 that there were several other people who witnessed the occurrence and they are not the residents of that locality. If such independent witnesses were available and yet were not examined by the prosecution and only those persons who are related to the deceased were examined then in such a situation the prosecution case has to be scrutinised with more care and caution."
16. In the case of "[PRECEDENT], in which it was observed as follows:
"[ENTITY] has to admit that at the time of the arrest and recovery of the knife, there was a lot of rush of public at the bus stop near Subhash Bazar. According to [ENTITY], he did not join any public witness in the case while according to [ENTITY], no public person was present there. It hardly stands to reason that at a place like a bus stop near Subhash Bazar, there would be no person present at a crucial time like 7.30 pm when there is a lot of rush of commuters for boarding the buses to their respective destinations. Admittedly, there is no impediment in believing the version of the police officials but for that the prosecution has to lay a good foundation. At least one of them should have deposed that they tried to contact the public witnesses or that they refused to join the investigation. Here is a case where no effort was made to join any public witness even though number of them were present. No plausible from the side of the prosecution is forthcoming for not joining the Independent witnesses in case of a serious nature like the present one. It may be that there is an apathy on the part of the general public to associate themselves with the police raids or the recoveries but that apart, at least the IO should have made an earnest effort to join the independent witnesses. No attempt in this direction appears to have been made and this, by itself, is a circumstance throwing doubt on the arrest or the recovery of the knife from the person of the accused.
17. In the case of "[PRECEDENT]", the Court took note of the fact that public witnesses were not joined in investigation to acquit the accused.
18. In the case of "Massa Singh Vs. State of Punjab 2000 (2) C.C. Cases HC 11", conviction was set aside on the ground that it was obligatory on the part of investigating officer to take assistance of independent witnesses to lend authenticity to the investigation conducted by him. It was observed as under:-
"The recovery has been effected from a public place. The Investigating Officer could have taken the trouble to associate an independent witness to get the attestation of such independent witness regarding the authenticity of the investigation conducted by him. This aspect of the case has not been properly appreciated by the Court below."
19. In the case of "[PRECEDENT], it was held that it was obligatory on the part of the police to join independent witnesses and the statement of official witness that witnesses refused to join investigation was rejected as an afterthought.
20. In the cases of "[PRECEDENT] and [PRECEDENT], it has been held that non-joining of independent witnesses is fatal to the prosecution case and accused is entitled to benefit of doubt. The testimony of official witnesses does not find any corroboration from any independent source. In my view, the non-joining of public witness is fatal to the prosecution case, particularly when no reasonable explanation has been given by prosecution for not joining public witnesses or no notice being given to the public witnesses.
21. Further, disclosure statement Ex.PW1/E has not been recorded in the presence of any independent witness. Also PW5 during his cross examination has not been able to clarify what were the documents, which were prepared by him. There are material contradictions in his cross examination as regards the preparation of seizure memo, sketch of the State v. [ENTITY] FIR No. 220/2008 Page of 9 knife. This raises further doubt on the story of the prosecution.
22. Further, there are other inconsistencies on the record which have not been explained. According to the depositions of prosecution witness, the case property was first seized and then rukka was prepared for registration of FIR. Thus according to the witness, FIR was registered after seizure of knife. However, the seizure memo Ex.PW1/B bears the FIR number. At the time of the seizure, FIR number was not available and therefore, FIR number could not have figured on the seizure memo. This issue of FIR no. on the documents prepared before registration of FIR came up before the Hon'ble Delhi HC in the case titled as [PRECEDENT] wherein Hon'ble High Court observed that the mention of FIR number on the recovery memo which was prepared prior to lodging of FIR creates a doubt and the benefit should go to the accused. In the present case in hand also no explanation has been offered as to the presence of FIR No. on seizure memo Ex. PW1/B. This fact also create a doubt in the prosecution version.
23. Another fact which requires consideration is the presence of the recovery witness at the spot. PW1 [ENTITY] and PW5 SI [ENTITY] deposed that he was on checking duty. But no evidence has been led by the prosecution which can prove the presence of PW1 [ENTITY] and PW5 SI [ENTITY] at the spot. No DD entry or duty roaster has been filed by the prosecution which could show his presence at the relevant time and place. This fact assumes much importance when seen in the context that the material witnesses in the present case are police officials. The benefit for the same has to be given to the accused. The existence of FIR number on seizure memo suggests that the seizure memo was prepared after the registration of FIR and is therefore ante- timed. This erodes the credibility of the witnesses who had stated that the State v. [ENTITY] FIR No. 220/2008 Page of 9 seizure memo was prepared on the spot and before the registration of FIR.
24. In view of the aforementioned facts and circumstances, I am of the opinion that prosecution has failed to prove its case against the accused beyond reasonable doubt. I give benefit of doubt to the accused. Accused is accordingly acquitted.
25. Bail bonds are cancelled and sureties are discharged. Original documents of accused be released to him against acknowledgment. Original documents of surety, if any, be returned to him after cancellation of endorsement. Case property be confiscated to the State and be destroyed after expiry of period of appeal. File be consigned to Record Room, after due compliance.
Announced in the Open Court [[ENTITY]] Today on 29.5.2012 MM-07 (NORTH) DELHI State v. [ENTITY] FIR No. 220/2008 Page of 9