Delhi District Court
State vs : Gian Chand @ Babu on 12 February, 2014
IN THE COURT OF SH. SUDHANSHU KAUSHIK, ADDITIONAL CHIEF METROPOLITAN MAGISTRATE-01 : CENTRAL DISTRICT : TIS HAZARI COURTS : DELHI State Vs : Gian Chand @ Babu FIR No. : 203/03 U/s : 25 of Arms Act PS : Paharganj Date of Institution : 06.06.2003 Date of Judgment reserved on : 12.02.2014 Date of Judgment : 12.02.2014 Unique ID : 02401R0274092003 ttBrief details of the case A. Sl. No. of the case : 1108/P/08 B. Offence complained of or proved : 25 of Arms Act.
C. Date of Offence : 27.05.2003
D. Name of complainant : ASI Ranbir Singh,
E. Name of accused : Gian Chand @ Babu,
S/o Sh. Babu Lal, R/o A-393,
Holambi Kalan, Metro Vihar,
Narela, Delhi.
F. Plea of accused : Pleaded not guilty
G. Final order : convicted.
H. Date of Order : 12.02.2014
Judgment
The case of the prosecution is that on 27.03.2005 at around 8.35 pm, Opposite Railway Reservation Office, Chemsford Road, Paharganj, Gian Chand (hereinafter referred to as the ' accused' ) was found in possession of a knife in violation of notification issued by Govt. of NCT of Delhi.
Brief facts as unfolded during trial FIR No. 203/03 State Vs. Gian Chand @ Boby Page 1 of 8
2. On the above said date, police officials of Spl Staff including SI Ranbir Singh (PW-2) ASI Surender Gautam (PW-3) and SI Ombir Singh (PW-4) were on patrolling duty in the area of PS Paharganj. At around 8 pm, a secret informer met them in front of New Delhi Railway Station, Chemsford Road and disclosed that three boys carrying illegal weapons would be coming from Cannought Place side in an autorikshaw bearing Regn. No. DL1RC 3079. On receiving the said information, police officials split themselves in three raiding teams and took position near the Reservation Centre of New Delhi Railway Station. At around 8.35 pm, an autorikshaw with two boys sitting on the passenger seat was seeing coming from the pre- disclosed direction. It was stopped and on checking, it was found that both the boys were carrying knifes. Knife was also recovered from the driver of the said autorikshaw. Accused herein is one of the boys who was was sitting on passenger seat. Separate FIRs were registered in respect of recovery of knife from the other boys. In the said background, present FIR bearing No. 203/2003 in respect of recovery of knife from the possession of accused Gian Chand was registered at PS Paharganj.
3. Necessary investigation was carried out and requisite documentation was done. On completion of investigation, chargesheet was put to the Court. Copies of the chargesheet were supplied to the accused and charge under Section 25 of Arms Act was framed against him to which he pleaded ' not guilty' and claimed trial.
FIR No. 203/03 State Vs. Gian Chand @ Boby Page 2 of 8
Witnesses examined
4. In order to establish the charge, prosecution examined four witnesses. The brief gist of their testimony is as under:
PW-1 ASI Udayvir Singh (Duty Officer) mentioned about the registration of FIR. Copy of FIR is Ex. PW1/A. PW-2 SI Ranbir Singh (Recovery Witness) mentioned that he was a member of a raiding party. He supported recovery and mentioned that sketch of knife (Ex PW-2/A) was prepared by him and it was seized vide seizure memo Ex PW-2/B. He stated in his cross-examination that public persons were requested to join investigation but they did not agree.
PW-3 ASI Sunder Gautam (Recovery Witness) was only partly examined.
PW-4 ASI Ombir Singh (Third Recovery Witness) deposed on the lines of ASI Udayvir Singh (PW-1). He mentioned that knife was recovered from the possession of accused. He identified the recovered knife as Ex. P1.
5. Accused in his statement under Section 281 read with 313 Cr.P.C 1973, admitted the case of the prosecution.
Arguments
6. I have heard Learned APP for the State and Ld. Defence Counsel and carefully gone through the entire material available on record.
7. Learned APP for the State has contended that prosecution has proved its case beyond shadow of doubt.
FIR No. 203/03 State Vs. Gian Chand @ Boby Page 3 of 8
Brief reasons for final decision
8. I have given my thoughtful consideration to the rival contentions and carefully perused the entire material available on record.
9. Two recovery witnesses have been examined i.e. SI Ranbir Singh (PW-2) and SI Omveer Singh (PW-4) . ASI Sunder Gautam (PW-3) is also a recovery witness but his incomplete testimony cannot be read in evidence. Record shows that both the recovery witnesses have deposed on similar lines. SI Ranbir Singh has deposed that on 27.05.2003, he was on patrolling duty alongwith ASI Omveer Singh, ASI Sunder Gautam and his other associates. He has supported recovery and narrated the entire episode. He has deposed that during patrolling duty, at around 8 pm, the police party reached near New Delhi Railway Station where a secret informer met them and disclosed that accused would be passing from the spot in an autorikshaw. He categorically mentioned that knife was recovered during personal search of accused Gian Chand. He also mentioned about the recovery of knife from the possession of other boys. The seizure memo of knife is Ex. PW-2/B. The witness identified his signatures on the said seizure memo at Point A. The case property (recovered knife) was produced from the Malkhana and it was identified by him. The record reveals that testimony of this witness about the recovery part has remained unblemished during cross examination.
10. The second examined recovery witness, ASI Omveer Singh (PW-4) has deposed on similar lines. He supported and corroborated the version of ASI Ranbir Singh (PW-1) on all the material aspects. He deposed FIR No. 203/03 State Vs. Gian Chand @ Boby Page 4 of 8 that after recovering knife, SI Ranbir Singh prepared the rough sketch. The said sketch is Ex. PW-2/A. He has mentioned about sealing of the case property. He has deposed that after preparing rough sketch, knife was kept in a cloth and it was sealed with the seal of 'RSD'.
11. Ld. Defence Counsel has vehemently argued that accused should be acquitted as there is no public witness to recovery. Admittedly, no independent public witness has been joined in the investigation. Only police personnel are witnesses to the recovery, however, the said fact itself cannot be the sole ground for discarding their testimony. Statutory desirability in the matter of search and seizure is that there should be support from unbiased and neutral corner. The search before an independent witness imparts much more authenticity and credit worthiness to the search and seizure proceedings. Such safeguard is intended to avoid criticism of arbitrary and highhanded action against police officers. This is to lend credibility to the procedure relating to search and seizure. Indubitably, if the evidence of the official witnesses is found to be credible and coherent, same can alone prove to be foundation for conviction and normally, prosecution case cannot be thrown away straightaway merely because chief plank of evidence is that of official witnesses. However, it puts the Court on guard and the testimony of such official witnesses is, in such a situation, liable to be scrutinized with extra caution. Simultaneously, prosecution has to offer satisfactory explanation for not associating independent witnesses. In such a situation, courts are fully justified in finding out the reasons as to why no such person FIR No. 203/03 State Vs. Gian Chand @ Boby Page 5 of 8 came forward and whether the investigating agency did its best to persuade independent persons.
12. I am of the considered opinion that the testimony of police personnel cannot be brushed aside merely because no public persons have been joined in investigation. The provisions as provided under Section 100 (4) Cr. PC are only directory and failure to comply with the said provisions will not invariably be fatal for the case of the prosecution. It has been held by the Hon'ble Supreme Court in " State of Punjab Vs. Balbir Singh"
reported in " AIR 1994 SC 1872 " that " The scope of these two sections (section 100 and 165 of Code of Criminal Procedure) have been examined in a number of cases. In " Wasan Singh v. State (1981) 2 SCC" this Court has clearly held that irregularity in a search cannot vitiate the seizure of the articles. In " Suder Singh v. State 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 " State of Maharashtra v. P.K. Pathak, AIR SC 1224," it is held that absence of any independent person from the locality to witness the search does not affect the trial and the conviction of the accused under the Customs Act. In " Radha Kishan v. State 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 " Matajog Dubey v. H.C. Bahri, AIR 1956 SC 44" 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.......FIR No. 203/03 State Vs. Gian Chand @ Boby Page 6 of 8
.....This again depends on question whether the official has deliberately failed to comply with these provisions or failure was due to lack of time and opportunity to associate some independent witnesses with the search and strictly comply with these provisions."
13. On applying the abovesaid preposition to the present matter, it is evident that the recovery of knife has been proved by prosecution. The police officials have made substantial efforts to join independent witness at the time of recovery and their testimony cannot be discarded merely because public persons refused to join investigation. There is no reason to doubt the testimony of recovery witnesses merely because they are police personnel. It has been held by the Hon'ble Supreme Court in " Karamjit Singh Vs. State (Delhi Administration)" reported in " AIR 2003 SC 1311."
" ........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....."
14. In the light of the said judgment, the testimony of the police personnel cannot be discarded. The initial investigation was done by ASI Ranbir Singh who has mentioned that he requested 3-4 passersby to join investigation but none of them agreed. The witness has stated that after receiving information, the police party immediately reached the spot and apprehended the accused. Thus, it is apparent from his testimony that there FIR No. 203/03 State Vs. Gian Chand @ Boby Page 7 of 8 was hardly any time with police officials to join a public person in investigation. The explanation tendered by them is plausible and their testimony cannot be brushed aside merely because of the said fact. The reluctance of the general public in joining the investigation cannot be ignored while appreciating the explanation tendered by the police for their failure to join an independent witness.
15. The arrest memo has been proved on record. It further lends support to the version of witnesses that accused was apprehended from the spot. The FIR has been registered promptly and there is no inordinate delay which may raise any doubt. Record shows that even the accused has admitted that he was found in possession of a knife. He has admitted the said fact in his statement recorded under section 281 Cr.P.C read with section 313 Cr.P.C. It is proved beyond reasonable doubt that on on 27.03.2005, at around 8.35 pm, Opposite Railway Reservation Office, Chemsford Road, Paharganj, Gian Chand was found in possession of a knife in violation of notification issued by Govt. of NCT of Delhi. Accused Gian Chand stands convicted for committing offence punishable under Section 25 of Arms Act.
18. File be consigned to record room after necessary compliance.
Announced in open Court (Sudhanshu Kaushik)
on 12.02.2014 Addl. Chief Metropolitan Magistrate-01,
Central District,Tis Hazari Courts, Delhi.
It is certified that this judgement contains 8 (eight) pages and each page bears my signature.
(Sudhanshu Kaushik) Addl. Chief Metropolitan Magistrate-01, Central District, Tis Hazari Courts, Delhi FIR No. 203/03 State Vs. Gian Chand @ Boby Page 8 of 8