IN THE COURT OF SH. [ENTITY] METROPOLITAN MAGISTRATE, SOUTH DISTRICT SAKET COURTS, NEW DELHI FIR No. 394/2006 P.S. Malviya Nagar U/[SECTION] [ACT] State Vs. [ENTITY] JUDGMENT :
a. Sl. No. of the case : 35/3 b. Date of Institution : 10.05.2006 c. Date of Commission of Offence : 03.04.2006 d. Name of the complainant : Ct. [ENTITY]. e. Name of the accused and his : [ENTITY] parentage and address S/o [ENTITY] r/oH.no.1507, Gali No.13, Govind Puri, PS Kalkaji, New Delhi f. Offence complained of : U/[SECTION] [ACT] g. Plea of the accused : Pleaded not guilty h. Order reserved : 04.11.2011 i. Final Order : Acquitted j. Date of such order : 04.11.2011 1. The accused in this case was sent up for trial for the commission of offence U/[SECTION] [ACT]. The facts in brief are that on 03.04.2006, while FIR No.394/06 Page1 of Page8 PS Malviya Nagar patrolling at about 6.30 p.m., Near Hanuman Mandir, he received an information from one [ENTITY] that one person was having
illicit knife in the park thereafter the accused on seeing him tried to run away and with the help of one [ENTITY], Ct. [ENTITY]. apprehended the accused. Thereafter HC [ENTITY] reached the spot to whom the accused with case property was handed over. Thereafter on the basis of [ENTITY], the present case FIR no. 394/2006 was registered in PS Malviya Nagar. During the investigation site plan was prepared. Statement of witnesses were recorded. Accused was arrested and after completing the other formal investigation, the challan was presented before the court for trial.
3. A prima facie case having been made out against the accused, charge was framed against the accused on 10.05.2006 under [SECTION] [ACT] to which he pleaded not guilty and claimed trial.
4. To prove its case against the accused, the prosecution has examined three witnesses namely [ENTITY]. as PW1, [ENTITY] as PW2 and [ENTITY] as PW3.
5. PW1 [ENTITY]. has testified that on 03.04.2006, while patrolling at about 6.30 p.m., near Hanuman Mandir, he received an information from one [ENTITY] that one person was having illicit knife in the park. Thereafter the accused present in the court on seeing him tried to run away. PW1 further testified that FIR No.394/06 Page2 of Page8 PS Malviya Nagar with the help of one [ENTITY], he apprehended the accused as the accused had tried to escape. Thereafter HC [ENTITY] reached the spot to whom the accused alongwith the case property was handed over. PW1 further testified that IO recorded his statement vide Ex. PW1/A. Thereafter the knife was measured and total length was found 24 cm, blade was 11cm. Thereafter sketch memo of knife was prepared vide Ex. PW1/B. PW1 further testified that thereafter the knife was was put into a cloth parcel sealed with the seal of [ENTITY] and seized vide memo Ex. PW1/C. Thereafter IO prepared the tehrir Ex. PW1/D and he got the case registered. Thereafter accused was arrested and his personal search was conducted vide memo Ex. PW1/E and F. PW1 correctly identified the case property which is Ex. P-1.
Accused did not prefer to cross examine PW1.
6. PW2 [ENTITY] has testified that on 03.04.2006, on receipt of [ENTITY] through Ct. [ENTITY]., he recorded the present case FIR Ex. PW2/A. His endorsement on [ENTITY] is Ex. PW2/B. Accused did not prefer to cross examine PW2.
7. PW3 [ENTITY] has testified that on 03.04.2006, on receipt of DD No. 21, he reached in between the park near Hanuman Mandir, Chirag Delhi where he met with Ct. [ENTITY]. who handed over the accused [ENTITY] present in the court alongwith one buttondar knife. PW3 further testified that two public FIR No.394/06 Page3 of Page8 PS Malviya Nagar witnesses namely [ENTITY] and [ENTITY] also met him at the spot. Thereafter the knife was opened with the help of button and it was measure and total length of knife was 24 cm, blade was 11 cm, handle was 13 cm and width of blade was 2.5 cm. PW3 further testified that design of circle was engraved on both the sides of handle and blade was of steel and handle was of aluminum. Further alphabet Rampur Best Steel was engraved on blade of knife. Thereafter sketch of knife was prepared vide Ex. PW1/B. Thereafter knife was closed with the help of button and sealed in a pullanad with the seal of [ENTITY] and the seal after use was handed over to witness [ENTITY]. Thereafter case property was taken into possession vide memo Ex. PW1/C. PW3 recorded the statement of Ct. [ENTITY] vide Ex. PW1/A on which [ENTITY] Ex. PW3/A was prepared and send Ct. [ENTITY] to police station for registration of FIR. PW3 further testified that he prepared the site plan Ex. PW3/B at the instance of [ENTITY]. Thereafter accused was arrested and his personal search was conducted vide memo Ex. PW1/E and F. PW3 also correctly identified the case property which is Ex. P-1.
Accused did not prefer to cross examine PW3 also.
8. Thereafter, several opportunities were afforded to the prosecution to adduce the evidence requisite to prove the case against the accused but the prosecution has not been able to produce the public witnesses [ENTITY] and [ENTITY]. Consequently, prosecution evidence was closed on 20.09.2011.
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9. After closing of prosecution evidence, statement of accused was recorded U/[SECTION] of [ACT] r/w 313 [ACT] In his statement, accused denied to have committed the offence and claimed to have been falsely implicated in this case.
10. I have heard the Ld. APP for the State and Ld. counsel for the accused and have also carefully perused the entire record and the relevant provisions of the law.
11. In this case, the prosecution is required to establish beyond reasonable doubt that the accused was in possession of the arms without any valid license. All the three witnesses produced by the prosecution are police officials. All of them have supported the prosecution version. PW1 is the material witness as the recovery of knife has been effected by him from the possession of accused. PW2 is the duty officer who has recorded the present case FIR Ex. PW2/A. PW3 is the IO of the case to whom the further investigation of this case was handed over.
12. In the instant case, two public witnesses namely [ENTITY] and [ENTITY] have been associated with the investigation but the same could not be produced or examined by the prosecution despite several opportunities given in this behalf. The only witness to the recovery being police official , such recovery does not inspire confidence. Similar view has been expressed by the Supreme Court FIR No.394/06 Page5 of Page8 PS Malviya Nagar in [PRECEDENT] and the Delhi High Court in [PRECEDENT].
13. Further it needs to be noted that the sketch plan and the seizure memo regarding the weapon bear the number of FIR. The prosecution has not offered any explanation whatsoever as to under what circumstances number of the FIR has appeared on the top of the aforesaid documents, which were allegedly prepared on the spot before the registration of the FIR. This gives rise to two inferences that either the FIR was recorded prior to the alleged recovery of the contraband or number of the said FIR was inserted in these documents after its registration. In both the situations, it seriously reflects upon the veracity of the prosecution version given by the aforesaid witnesses and creates a good deal of doubt about the recovery in the manner alleged by the prosecution. Reliance may be had to the decision of the Delhi High Court in [PRECEDENT].
14. Further PW3 in his testimony has deposed that the seal with which the parcel containing the article of recovery was sealed was handed over to independent witness i.e. [ENTITY] after use. But the said [ENTITY] has not been examined by the prosecution to prove this fact. Further, PW1 has not deposed a single word about handing over the seal to witness [ENTITY]. In such circumstances possibility of tampering with contents of sealed pullanda cannot FIR No.394/06 Page6 of Page8 PS Malviya Nagar be ruled out. It was very essential for the prosecution to have established that sealed pullanda was not tampered with. In this respect, the decision of the Delhi High Court in [PRECEDENT] may be referred to.
15. Moreover, no DD entry in respect of PW1 is proved on record to establish that he was actually present in the area at the relevant time in connection with patrolling of the area. Thus, the presence of this witness at the alleged time itself is rendered doubtful. This view has been expressed by the Delhi High Court in [PRECEDENT].
16. All these infirmities in the prosecution evidence seriously reflects on the veracity of prosecution case the benefit whereof must go to the accused.
17. In the result, I find that Prosecution has failed to prove its case against the accused beyond reasonable doubt and he is given the benefit of doubt and therefore accused [ENTITY] is acquitted for the offence punishable U/[SECTION] of [ACT] for which he stands charged.
Announced in the Open Court ([ENTITY]) On 04.11.2011 Metropolitan Magistrate South District/New Delhi FIR No.394/06 Page7 of Page8 PS Malviya Nagar P.S. Malviya Nagar U/[SECTION] [ACT] 04.11.2011 Present: Ld. APP for the State. Accused on bail with counsel. Vide my separate judgment dictated and
announced in the open court accused is acquitted for the offence punishable U/[SECTION] of [ACT] for which he stands charged.
Accused is re-admitted to bail on furnishing fresh bail bond in the sum of Rs. 10,000/-with one surety in the like amount. Bail bond furnished. As per [SECTION] of the [ACT], as amended vide the [ACT], which came into force on 31.12.2009, the accused as well as the surety shall remain bound by the personal and the surety bond respectively for a period of six months from today.
File be consigned to Record Room.
([ENTITY]) MM/South Delhi/ 04.11.2011 FIR No.394/06 Page8 of Page8 PS Malviya Nagar