Delhi District Court
State vs . Manoj Katyal on 15 January, 2013
IN THE COURT OF SHRI SUNIL KUMAR, METROPOLITAN
MAGISTRATE, ROHINI DISTRICT COURTS, DELHI.
State Vs. Manoj Katyal
FIR No.498/02
U/s 25/54/59 Arms Act
PS Jahangirpuri
The date of institution of case: 25.10.2002
The date of reserving the order : 15.01.2013
The date on which Judgment pronounced: 15.01.2013
JUDGMENT
Unique Identification No. : 02401R0327202002 Date of commission of offence : 31.07.2002 Name of the complainant : ASI Ram Pal Name & address of accused : Manoj Katyal @ Happy, S/o Sh. Hans Raj, R/o H. No. 4509, Gali Khosla, Arya Pura, Old Subzi Mandi, Roshanara, Delhi.
Offence complained of : Section 25/54/59 Arms Act Final order : Acquitted Date of order : 15.01.2013
BRIEF STATEMENT OF THE REASONS FOR THE DECISION :
1 The accused has been sent to face trial under section 25/54/59 Arms Act, by the SHO PS Jahangir Puri.
2 The brief facts of the case as alleged by the prosecution and as unfolded from the charge sheet are that, on 31.07.2002 at about 8.50 pm at Prayas, Shah Alam Bandh Road, Near Water Supply Office, Jahangirpuri, Delhi, the accused was found in possession of one State vs Manoj Katyal, FIR No.498/02, PS Jahangirpuri Page no.1/10 button actuated knife without any license or permit and in contravention of notification issued by Delhi Administration.
Therefore, the present FIR under section 25/54/59 Arms Act was registered at PS Jahangirpuri. After completion of the investigation, charge sheet was prepared and filed in the Court.
3 The copy of the challan and documents annexed therewith were supplied to the accused in compliance of Section 207 Cr. P. C. Prima facie a charge U/S 25/54/59 Arms Act was made out against the accused Ramesh. Accordingly, on 06.07.2007 the charge was framed by the then ld. Predecessor of this court. The accused pleaded not guilty to the same and claimed trial.
4 In order to substantiate its case, the prosecution has examined 02 witnesses.
5 PW2 Ct. Ramesh Kumar has deposed that on 31.07.2002, he alongwith ASI Ram Pal/first IO and Ct. Viju were on patrolling duty and when they reached at Prayas TPoint, Kushal Cinema Road, Jahangirpuri, Delhi at about 8.45 pm, they saw that the accused present in the court was coming from Shah Alam Bandh and on seeing them, the accused tried to take Uturn immediately. On suspicion, they chased and apprehended him. Thereafter, they took the cursory search of the accused and recovered one buttondar knife from his right dub of his wearing pant. The name of the accused was revealed as Manoj Katyal. Thereafter, IO prepared the sketch of the knife vide Ex. PW1/A and seized the same vide seizure memo Ex. PW1/B. The State vs Manoj Katyal, FIR No.498/02, PS Jahangirpuri Page no.2/10 pullanda was sealed with the seal of RPS. Thereafter, IO prepared rukka and handed over to Ct. Viju for registration of the case and he got the present case registered. Thereafter, investigation was marked to HC Om Prakash/second IO. Ct. Viju alongwith second IO came at the spot. First IO handed over the custody of the accused, seizure memo and relevant documents to second IO, who prepared site plan at the instance of first IO. Second IO recorded the statement of first IO and thereafter, he was relieved. He further proved the case property as Ex. P1.
This witness was not crossexamined on behalf of the accused despite opportunity granted to him.
6 PW1 ASI Ram Pal is the first IO in the present case, who has deposed almost on the same lines as deposed by PW2Ct. Ramesh Kumar hereinabove and hence, his testimony is not being discussed for the sake of brevity. He has proved the sketch of the knife as Ex.PW1/A, seizure memo Ex.PW1/B, rukka Ex. PW1/C and site plan Ex. PW1/D. He has also proved the case property as Ex.P1.
This witness was also not crossexamined on behalf of the accused despite opportunity granted to him. Thereafter, PE was closed.
7 Statement of the accused U/S 281 Cr.P.C was recorded. All the incriminating evidence were put to the accused for seeking his explanation. In the said statement the accused has stated that he has been falsely implicated in the present case and he has further stated that he is innocent. He has further submitted that the case property State vs Manoj Katyal, FIR No.498/02, PS Jahangirpuri Page no.3/10 was falsely planted upon him. He has preferred not to lead any evidence in his defence.
8 Ld. Counsel for the accused has submitted that the accused has been falsely implicated in this case by the police officials. It is further argued that the case of the prosecution rests entirely upon the testimony of police witnesses and there are no independent witnesses to corroborate their testimonies. It is further argued that nothing was recovered from the possession of the accused and the recovery, if any, is the planted one upon the accused. It is further argued that there is material contradictions in the testimony of the witnesses which is fatal to the case of Prosecution. It is further argued that since the Prosecution could not establish the case against the accused for the alleged offence beyond shadow of doubt, it is, therefore, prayed that the accused may be acquitted of the alleged offence.
9 On the contrary, Ld. APP for the State has submitted that every discrepancy in statements of the witnesses could not be fatal to the Prosecution case. It is further argued that the discrepancies which does not effect the Prosecution case materially does not create infirmity and there is no material discrepancies/contradictions in the Prosecution case. It is further argued that the prosecution has successfully established its case against the accused. Hence, it is, prayed that the accused may be convicted accordingly.
10 I have heard the Ld. APP for the state and Ld. Counsel for the accused. I have carefully perused the case record.
State vs Manoj Katyal, FIR No.498/02, PS Jahangirpuri Page no.4/10 11 The cardinal principle of the criminal law is that the accused is presumed to be innocent till he is proved guilty beyond any reasonable doubt. The burden of proving guilt of the accused lies on the prosecution and the prosecution is required to stands on its own legs to establish the culpability of the accused. The benefit of doubt if any, must go in favour of the accused.
12 In order to sustain conviction U/S 25/54/59 Arms Act the prosecution is required to prove the following ingredients: i. The accused was found in the possession of the button actuated knife.
ii. He/She was carrying the same without any license/permit or in contravention of notification of Delhi Administration.
13 I have given my thoughtful consideration to the testimonies of the witnesses and perused the entire material on record carefully. As per the prosecution story the accused was found in possession of a button actuated knife without any license or permit, but the prosecution has failed to prove the said allegations upon the accused beyond reasonable doubt as nothing substantial and convincing has come in the testimony of the witnesses which could inculpate the accused in the present offence. The police officials have not joined any public person (Passersby or local residents) during the proceedings despite opportunities to them. There is nothing on record to suggest that whether IO had tried to join public persons during the proceeding or not, as it is highly unnatural that the IO could not get even a single person to join in the proceeding despite the fact that public persons were present there at the spot and he had even State vs Manoj Katyal, FIR No.498/02, PS Jahangirpuri Page no.5/10 asked some public persons to join the investigation. If it is presumed, however not admitted that no public persons agreed to join the investigation, there is nothing on the record to suggest that the IO had taken some action against those public persons who refused to join the proceedings. If the IO would have filed some documentary proof in this respect, his testimony would have been appreciated in right perspectives. The police officials failed to give reasonable excuse as to why no public person was joined in the police proceedings with notice in writing or why they failed to take legal action u/s 187 IPC on refusal of the public persons. This failure on the part of the prosecution creates reasonable doubts in the prosecution story.
14 In view of the facts and circumstances of the present case, reliance may be placed on the following case laws: In case reported as Roop Chand vs. State of Haryana 1990 CCC 3, the Hon'ble Punjab & Haryana High Court has held that:
''When some witness from the public were available then the explanation furnished by the prosecution that they refused to join the investigation, the same is wholly unsatisfactory, particularly when the IO did not note down the names and addresses and did not take any action against them''.
The Hon'ble High Court in Pawan Kumar vs. Delhi Administration 1987 C.C cases 585 (HC) that:
State vs Manoj Katyal, FIR No.498/02, PS Jahangirpuri Page no.6/10 "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 witness. 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 knife from the person of accused."
The Hon'ble Delhi High Court in case reported as Nanak Chand vs. State of Delhi 1991(1)CCC 14 has also held that non joining of independent witnesses of locality in arms cases caused doubt on the prosecution case.
15 In the above mentioned cases, there were no public witnesses who had been joined in the proceedings. It is not necessary in such recovery that public witnesses must be joined but sincere attempt must be made to join the public witnesses. There can be cases when public witnesses are reluctant to join or are not available. All the same, the prosecution must show a genuine attempt having been made to join public witnesses or that they were not available. A stereotype statement of nonavailability or nonagreement on behalf of the witnesses will not be sufficient to serve the purpose.
16 Even, there is nothing on the record to suggest that the IO had made any efforts to hand over the seal after use to any independent witness. In such cases in view of Saifulla vs. State 1998 (1) CCC 497(Delhi) and Abdul Gaffar vs. State 1996 JCC 497 (Delhi) which State vs Manoj Katyal, FIR No.498/02, PS Jahangirpuri Page no.7/10 held that benefit of doubt is to be given to the accused. In this case, it is an admitted fact that the seal after use was handed over to PW2 Ct. Ramesh, meaning thereby the seal was kept by the police officials themselves and was not handed over to any independent person. Hence, the possibility of tempering with the case property also can not be ruled out in this case as the seal remained with the police official of the same police station.
17 Further, the manner in which the search of the accused was conducted on the spot is also not satisfactory as there is nothing on the record to suggest that the police persons had ever offered their own search to the accused before taking the search of accused. At this juncture, it would be appropriate to refer to the judgment of Hon'ble High Court of Orissa reported as Rabindernath Prusty vs. State of Orissa, wherein it was held as under:
"The next part of the prosecution case is relating to the search and recovery of Rs.
500/ from the accused. One of the formalities that has to be observed in searching a person is that the searching officer and other assisting him should give their personal search to the accused before searching the person of the accused. (See AIR 1969 SC 53 : State of Bihar vs. Kapil Singh 1969 Cri L. J. 279). This rule is meant to avoid the possibility of implanting the object which was brought out by the search. There is no evidence on record whatsoever that the raiding party gave their personal search to the accused before the latter' person was searched. Besides the above, it is in the evidence of Pws 2 and 5 that the State vs Manoj Katyal, FIR No.498/02, PS Jahangirpuri Page no.8/10 accused wanted to know the reason for which his persons was to be searched and the reason for such search was not intimated to the accused. No independent witness had witnessed the search. In the above premises, my conclusion is that the search was illegal and consequently the conviction based thereon is also vitiated"
18 Being guided by above said case law, it is well established that the search of the accused by above said police officials was in complete violation of the above said case law there is no evidence on record to show that the raiding party gave their personal search to the accused before the latter' person was searched. No independent witness had witnessed the search and hence in my view also it is concluded that the search of the accused was illegal and consequently the conviction based thereon is also spoiled.
19 There are major discrepancies in the case of the Prosecution which have effected the Prosecution case materially.
In case law reported as Sadhu Singh vs. State of Punjab 1997 (3) Crimes 55, the Hon'ble Punjab & Haryana High Court observed as under: "In a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubts. It is for the prosecution to travel the entire distance from may have to must have. If the prosecution appears to be improbably or lacks credibility, the benefits of doubt necessarily has to go to the accused".
State vs Manoj Katyal, FIR No.498/02, PS Jahangirpuri Page no.9/10 20 In view of the facts and circumstances of the case, it is crystal clear that the Prosecution has failed to prove its case beyond the shadow of reasonable doubt. There is no convincing evidence on the record which could substantiate any charge upon the accused.
21 Under the aforesaid discussion, it can safely be concluded that in the present case the evidence on the record is not at all sufficient to hold the accused guilty of the alleged offence, as the Prosecution story is highly doubtful and the benefit of doubt is the right of the accused. It is also an established law of the land that the accused should not be convicted in doubtful circumstances. Even, if there are two views possible, the view favourable to the accused has to be accepted. Since, the Prosecution has failed to establish a case against the accused for the alleged offences beyond reasonable doubt, I am also not inclined to convict the accused in doubtful circumstances. Consequently, by giving benefit of doubt, I hereby acquit the accused Manoj Katyal for the offences U/S 25/54/59 Arms Act. Bail bond of accused stands cancelled. Surety stands discharged. Documents of his surety, if any be returned after cancellation of endorsement on it.
22 Case property, if any, be destroyed in accordance with rules on expiry of period of Appeal/Revision, if none is preferred or subject to decision thereof. The file be consigned to record room.
Announced and dictated in the open court today i.e. on 15.01.2013 (Sunil Kumar) MM/Rohini Courts Delhi State vs Manoj Katyal, FIR No.498/02, PS Jahangirpuri Page no.10/10