Delhi District Court
State vs . Rajender @ Jhaman on 1 June, 2015
IN THE COURT OF SH. HARVINDER SINGH : METROPOLITAN
MAGISTRATE (WEST 03) : DELHI.
FIR No.289/2012
PS - Nangloi
State Vs. Rajender @ Jhaman
Unique Case ID No.02401R0554922012
J U D G M E N T
(a) Sr. No. of the case 44/2/12
(b) Date of offence(s) 10.11.2012
(c) Complainant HC Abhey, No.138W, PS Nangloi, New Delhi.
(d) Accused person(s) Rajender @ Jhaman S/o Sh. Suresh Chand R/o D - 633,
Camp No.02, Nangloi, New Delhi.
(e) Offences Under Section 25 of The Arms Act, 1959.
(f) Plea of accused Pleaded not guilty
(g) Final Order Acquitted
(h) Date of institution 24.11.2012
(i) Date when judgment Not reserved
was reserved
(j) Date of judgment 01.06.2015
1.The brief facts of the case are that accused person has been charge sheeted for committing offence punishable under Section 25 of The Arms Act, 1959. The allegations against the accused person are that on 10.11.2012 at about 03:40 pm at vacant plot near Railway Quarters, Nangloi, New Delhi, accused was found in FIR No.289/2012 Page No.1 of 10 possession of one buttondar knife as per seizure memo which is in contravention of notification issued by Delhi Administration. According to prosecution, accused thereby committed offence punishable under Section 25 of The Arms Act, 1959.
2. After completion of investigation, chargesheet was filed. Accused was supplied with copies in compliance of Section 207 of The Code of Criminal Procedure, 1973. Charge was framed under Section 25 of The Arms Act, 1959 against the accused vide order dated 17.01.2013 to which the accused pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
3. In order to prove its case, prosecution has examined four witnesses. PW1 HC Ajay Kumar has proved and exhibited formal FIR Ex.PW1/A and endorsement on Rukka Ex.PW1/B in his evidence. PW1 was examined, cross examined by accused and was discharged.
4. PW2 HC Abhay Singh and PW3 Ct. Ajit Singh have deposed that on 10.11.2012, they alongwith Ct. Vikram were on patrolling duty in area near Beat No.3 and at about 03:15 pm while they were present near Budh Bazar Road, Camp No.2, one secret informer met with PW2 and informed PW2 that one person aged about 40 years who was wearing check shirt of white and black colour and sky blue jeans is having knife. Informer also told PW2 that said person is planning to commit crime FIR No.289/2012 Page No.2 of 10 and is wandering in vacant plots near railway quarters. PW2 requested 4 - 5 public persons to join raiding party, but, none of them agreed and left the spot without disclosing their names and addresses. Thereafter without wasting time, PW2 prepared raiding party consisting of himself, PW3 and Ct. Vikram. Thereafter, PW2 alongwith raiding party and secret informer went to Railway Quarters, Nangloi where they saw one person in vacant plot. At instance of secret informer, PW2 apprehended accused who disclosed his name as Rajender @ Jhaman and on his cursory search, PW2 found one buttondar knife in his right pocket of his worn pant. PW2 requested 4 - 5 public persons to join the investigation, but, none of them agreed and left the spot without disclosing their names and addresses. PW2 prepared sketch memo Ex.PW2/A of knife by placing the same on plain white paper. The total length of knife was measured to be 24 cm and length of handle was 13 cm while length of blade was 11 cm. Thereafter, pullanda of the same was prepared with white plain cloth and was sealed with seal of 'AS'. Seal after use was handed over to PW3. PW2 seized knife recovered vide Ex.PW2/B, prepared Rukka Ex.PW1/B and handed over the same to Ct. Vikram for registration of FIR. Thereafter, Ct. Vikram went to PS, got FIR registered, came back to spot alongwith HC Ravinder to whom further investigation of this case was marked. PW2 handed over sketch memo, seizure memo and sealed pullanda to 2nd IO HC Ravinder. 2nd IO HC Ravinder prepared site plan at FIR No.289/2012 Page No.3 of 10 instance of PW2 and recorded his statement. PW2 left the spot. Thereafter, HC Ravinder interrogated accused, arrested him vide memo Ex.PW3/A, conducted his personal search vide memo Ex.PW3/B and recorded his disclosure statement. Accused also produced Rs.600/ stating that same were stolen by him from a passenger in a bus and same were also seized by IO vide separate seizure memo Ex.PW3/C. Accused led them to place where he had committed theft vide pointing out memo Ex.PW3/D. Case property was deposited in malkhana. PW2 and PW3 correctly identified the accused and case property Ex.P1. PW2 and PW3 were examined, crossexamined and were discharged.
5. PW4 HC Ravinder has deposed that on 10.11.2012, he was posted at PS Nangloi and on that day, he was assigned the investigation of present case FIR. He was given copy of FIR and original Rukka by Ct. Vikram. He alongwith Ct. Vikram went to spot i.e. vacant land, near Railway Quarters, Nangloi, Near Camp No.02 where HC Abhay and Ct. Ajit were present. HC Abhay produced accused Rajender @ Jhuman alongwith documents and case property in sealed condition. HC Abhay informed that case property containing knife was recovered from the accused. He prepared site plan Ex.PW4/A at instance of HC Abhay, recorded supplementary statement of HC Abhay and HC Abhay was discharged from the spot. Thereafter, he interrogated accused, arrested him vide memo Ex.PW3/A, conducted his personal FIR No.289/2012 Page No.4 of 10 search vide memo Ex.PW3/B, recorded his disclosure regarding his involvement in another case vide Ex.PW4/B. Accused also produced Rs.600/ stating that same were stolen by him from a passenger in a bus and same were kept in a parcel sealed with seal of 'RS' and were seized vide seizure memo Ex.PW3/C. Accused lead them to the place where he had committed theft. Pointing out memo Ex.PW3/D was prepared. He informed HC Dharambir about disclosure and recovery of cash as HC Dharambir was IO of said case. Case property was deposited in police malkhana. He recorded statement of witnesses. Accused was lodged in lockup after medical examination. After completion of investigation, chargesheet was prepared and filed before Court. PW4 was examined, crossexamined and was discharged.
6. Further prosecution evidence was closed on 22.05.2015.
STATEMENT OF ACCUSED
7. After closure of prosecution evidence, the statement of the accused was recorded under Section 313 of Code of Criminal Procedure, 1973. Incriminating evidence was put to the accused. Accused denied all the allegations and stated that he is innocent and has been falsely implicated in this case. The accused opted not to lead evidence in his defence.
8. Final arguments from both sides heard. Record perused.
APPRECIATION OF FACTS/CONTENTIONS/ANALYSIS & FINDINGS FIR No.289/2012 Page No.5 of 10
9. In the present case, accused has been charged for committing an offence punishable under Section 25 of The Arms Act, 1959. In order to prove the guilt of the accused, prosecution has to prove that the accused was found in possession of one buttondar knife as per seizure memo which is in contravention of the notification issued by Delhi Administration and thereby committed an offence punishable under Section 25 of The Arms Act, 1959. As per the case of the prosecution, the accused was caught with one buttondar knife on 10.11.2012 at about 03:40 pm at vacant plot near Railway Quarters, Nangloi, New Delhi. The spot is a busy public place near residential colony. Hence, there must be number of public persons present at the spot at the time of alleged recovery. However, the witnesses have not deposed regarding any concrete effort to join public witnesses made by them at the time of affecting the alleged recovery of knife, despite their availability on the spot.
10. Public witnesses were admittedly not joined in investigation though available. The testimony of official witnesses does not find any corroboration from any independent source. In the opinion of this Court, the nonjoining of public witness is fatal to the prosecution case, particularly when no reasonable explanation has been given by prosecution for not joining public witnesses.
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 FIR No.289/2012 Page No.6 of 10 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.
In the case of "Hem Raj v. State of Haryana" AIR 2005 SC 2110, 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. Nonexamination of independent witness by itself may not give rise to adverse inference against the prosecution. However, when the evidence of the alleged eyewitnesses 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."
In the case of "Sahib Singh v. Sate of Punjab" AIR 1997 SC 2417, 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."
In the case of "D. V. Shanmugham v. State of A.P.", AIR 1997 SC 2583 it has been observed as under : "It also appeared from the evidence of PW2 and PW8 that there were several other FIR No.289/2012 Page No.7 of 10 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."
In the case of "Pawan Kumar Vs. The Delhi Administration", 1989 Cr.LJ 127 Delhi, in which it was observed as follows : "Kalam Singh 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 Jagbir Singh, he did not join any public witness in the case while according to Kalam Singh, 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.'' In the case of "Sadhu Singh Vs. State of Haryana" 2000 (2) CC Cases HC 73, the Court took note of the fact that public witnesses were not joined in investigation to acquit the accused.
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 FIR No.289/2012 Page No.8 of 10 witness regarding the authenticity of the investigation conducted by him. This aspect of the case has not been properly appreciated by the Court below."
In the case of "Chanan Singh Vs. State" 1986 Crl. Rev. No.720 (P&H) 94, 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.
In the cases of "Gurbel Singh Vs. State of Punjab" 1991 Crl. Rev. No. 504 (P&H) and "Dhanpat Vs. State of Punjab" 2000 (1) CC Cases HC 52, it has been held that nonjoining of independent witnesses is fatal to the prosecution case and accused is entitled to benefit of doubt.
11. There are other inconsistencies on the record which have not been explained. According to depositions of prosecution witnesses, the case property was first seized, sketch of one buttondar knife was prepared and then Rukka was sent for registration of FIR. Thus, according to witnesses, FIR was registered after seizure of knife and the sketch was prepared. However, the seizure memo and sketch bear 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 or on the sketch. The existence of FIR number on seizure memo suggests that the seizure memo was prepared after the registration of FIR and is therefore antetimed. This erodes the credibility of the witness who has stated that the seizure memo was prepared on the FIR No.289/2012 Page No.9 of 10 spot and before the registration of FIR. The seal after use was not handed over to any independent person by the IO, therefore, tampering with case property till it remained in PS cannot also be ruled out in this matter. Reliance can be placed upon judgment of Hon'ble High Court of Delhi cited as 1996 JCC 497. In these circumstances, the abovesaid facts also erode the credibility of the prosecution evidence.
12. In view of the aforementioned facts and circumstances, this Court is of the opinion that prosecution has failed to prove its case against the accused beyond reasonable doubt. Accused is given benefit of doubt in this matter, accordingly, accused Rajender @ Jhaman is hereby acquitted for offence punishable under Section 25 of The Arms Act, 1959. Case property be confiscated to the State and be destroyed after expiry of period of appeal.
Announced in the open Court on June 01, 2015.
(HARVINDER SINGH) MM03/THC (West), Delhi/01.06.2015 FIR No.289/2012 Page No.10 of 10