Delhi District Court
State vs . Deepak @ Lala @ Ashu on 2 December, 2011
State Vs. Deepak @ Lala @ Ashu
FIR No. 159/11
PS Adarsh Nagar
IN THE COURT OF SH. NEERAJ GAUR, METROPOLITAN
MAGISTRATE-IV ROHINI COURTS, DELHI
Brief reasons for the judgment in the case with following particulars:
State V/S Deepak @ Lala @ Ashu
FIR No. 159/11
PS Adarsh Nagar
U/S 25/54/59 of Arms Act
C/N No. 95/11
Unique ID No. 02404R0216122011
Date of Institution: 09.08.2011
Date of commission of offence 27.06.2011
Name of the Complainant ASI Udai Singh
Name and address of accused Deepak @ Lala @ Ashu
S/o Sh. Mahipal, r/o 217,
MCD Flats, Jahangir Puri,
Gate No. 2, Delhi.
Offence complained of U/S 25/54/59 of Arms Act.
Plea of accused pleaded not guilty
Final Order Acquitted
Date of reserve for orders 02.12.2011
Date for announcing the orders 02.12.2011
Brief Facts and pre-trial procedure:
1. The case of the prosecution is that on 27.06.2011, ASI Udai Singh / first IO was on patrolling duty along with Ct. Ashraf, Ct. Subhash at road no. 51, MCD colony. At about 07.00 PM they saw that the accused was coming out from the MCD colony who on seeing them tried to run C No. 95/11 Unique ID No. 02404R0216122011 Page No. 1 State Vs. Deepak @ Lala @ Ashu FIR No. 159/11 PS Adarsh Nagar back and on suspicion, they chased him for about 25-30 paces and apprehended him. On his casual search, one buttondar knife was recovered from his right side pocket of his wearing pant. Sketch of the knife was prepared and same was measured and total length of knife was found to be 34 CM, length of handle was 15.5 CM and length of blade was 18.5 CM. Pullanda of the knife was prepared and same was sealed with seal of USY. Seal was given to Ct. Subhash after its use. The pullanda was seized. A rukka was prepared by ASI Udai Singh / first IO and same was handed over to Ct. Ashraf for getting the case registered. After having got the case registered he came back to spot with SI Narender / second IO who was marked further investigation of case. First IO handed over the custody of the accused, relevant documents and case property to 2nd IO / SI Narender who prepared the site plan at the instance of first IO. Supplementary statement of first IO was recorded by second and thereafter he was relieved. Accused was interrogated. Accused was arrested and personally searched. After completion of investigation, challan was prepared and and accused was sent up for trial.
C No. 95/11 Unique ID No. 02404R0216122011 Page No. 2
State Vs. Deepak @ Lala @ Ashu FIR No. 159/11 PS Adarsh Nagar
2. On the basis of these allegations, charge U/S 25/54/59 of Arms Act was framed against the accused. . The accused pleaded not guilty and claimed trial.
Trial
3. To prove the charges, prosecution examined four witnesses in total whose testimonies are touched upon in brief as under:
(i) PW-1 HC Prahlad Singh is a formal witness who being duty officer deposed about the registration of FIR and proved the same as Ex.PW1/A and his endorsement on the rukka as Ex.PW1/B.
(ii) PW-2 Ct. Jitender deposed that on 28.06.2011, he joined the investigation of the present case and he along with PSI Narender Kumar and Ct. Kamlesh reached at MCD Colony, Rameshwar Nagar near wall of MCD Colony at Block No. 34 and at the pointing out of the accused Deepak @ Lala seized the motorcycle No. DL 9S AA 2933 make of Bajaj Pulsar of black colour which was stolen from the area of PS Vijay Vihar in the case FIR No. 220/11. Thereafter, IO took into possession the said motorcycle and prepared seizure memo vide Ex.PW/A. Thereafter, C No. 95/11 Unique ID No. 02404R0216122011 Page No. 3 State Vs. Deepak @ Lala @ Ashu FIR No. 159/11 PS Adarsh Nagar motorcycle was deposited in malkhana and accused was brought to the court of Ld. Duty MM and thereafter, accused was sent to J/C. IO recorded his statement.
(iii) PW-3 Ct. Ashraf deposed supported the prosecution case qua investigation part and deposed same as discussed in para No. 1 of the Judgment. He further deposed about sketch of the knife Ex.PW3/A and seizure memo Ex.PW3/B. He further deposed that accused was interrogated and during interrogation, he disclosed that he stole two motorcycles and he could get recovered the same vide disclosure statement Ex.PW3/D1. Accused was arrested and personally searched vide memos Ex.PW3/C & PW3/D respectively. He was cross-examined by the Ld. LAC for the accused at length.
(iv) PW-4 SI Narender Kumar deposed that on 27.06.2011, Ct. Ashraf handed over him a rukka and the copy of FIR of the present case for further investigation. Thereafter he along with him went to the spot i.e. main gate MCD Colony, Azadpur Road. There ASI Udai Singh handed over him the custody of accused, sealed pullanda and relevant documents. C No. 95/11 Unique ID No. 02404R0216122011 Page No. 4
State Vs. Deepak @ Lala @ Ashu FIR No. 159/11 PS Adarsh Nagar He prepared a site plan Ex.PW4/A at the instance of first IO whose supplementary statement was recorded by him and thereafter he was relieved. The accused was interrogated and during interrogation, he disclosed that he stole two motorcycles from the area of PS Vijay Vihar and could get recover the same. Thereafter, accused was arrested and personally searched vide memos Ex.PW3/B & PW3/C respectively. The accused was put behind bars and case property was deposited in Malkhana at PS. He further deposed that in pursuance of the disclosure statement, accused got recovered one motorcycle No. DL9S AA 2933 make of Bajaj Pulsar from the side of wall of MCD colony, Azadpur, Rameshwar Nagar and the above said recovered motorcycle was deposited in malkhana. The motorcycle was taken into possession u/s 102 CrPC vide memo Ex.PW2/A. The information about the recovery of motorcycle was sent at PS Vijay Vihar.
Statement of accused and defence
4. After closure of prosecution evidence, the statement of accused U/S 313 CrPC was recorded. He stated that he was innocent and has been C No. 95/11 Unique ID No. 02404R0216122011 Page No. 5 State Vs. Deepak @ Lala @ Ashu FIR No. 159/11 PS Adarsh Nagar falsely implicated by planting case property upon him. No evidence in defence was led.
Arguments and appreciation of evidence in the light of legal propositions:
5. Having touched upon the statements of PWs, I shall consider the rival contention of parties. Accused has highlighted several infirmities in investigation which are being discussed hereunder alongwith the explanations therefore advanced by Ld. APP for the State.
6. It is firstly highlighted by accused that the IO has not joined any independent public witness despite availability. Admittedly, several public witnesses were present at the time of apprehension of accused and while completing the formalities at the spot but none of the public witnesses was even requested to become witness. This casts doubt about sincere efforts made by the IO to join independent witnesses. In Roop Chand v/s State of Haryana reported in 1990 (1) CLR 69, it was observed that such explanations that the public persons refused to join the proceedings are unreliable and in Pradeep Narayan V/S State of Maharashtra reported in C No. 95/11 Unique ID No. 02404R0216122011 Page No. 6 State Vs. Deepak @ Lala @ Ashu FIR No. 159/11 PS Adarsh Nagar AIR 1995 S.C. 1930 held that failure of police to join witness from locality during search creates doubt about fairness of the investigation benefit of which has to go to the accused.
7. It is settled proposition of law that Sub Section 4 of Section 100 CrPC is directory provision, however, explanation of non joining of independent witness should be plausible. The explanation put forward by the prosecution for non-joining of independent witness appears to be implausible for reason that there was ample time with the IO at least to note down the particulars of the persons who refused to join the investigation. The same creates doubt regarding the fairness of the investigation.
8. It is also noteworthy that the most crucial part of the investigation has been conducted by the complainant ASI Udai Singh. even before registration of FIR. Since, he was present at the spot alongwith other police officials, no explanation has been put forth by the prosecution as to why despite availability, the investigation was not handed over to some other senior officer. In such case, as observed by Hon'ble Supreme Court in the case titled as Megha Singh V/S State of Haryana reported in 1995 Crl. L. J. C No. 95/11 Unique ID No. 02404R0216122011 Page No. 7
State Vs. Deepak @ Lala @ Ashu FIR No. 159/11 PS Adarsh Nagar 3988 and as held in the case titled as Sunil V/S State reported in 1999 (1) JCC 85 (Delhi) benefit of doubt is to be given to the accused.
9. It is also highlighted by accused that on the recovery Memo,the FIR number finds mention and it has not been explained by the prosecution. Admittedly, these documents were prepared before registration of FIR. When documents are prepared before registration of FIR and it contains the FIR number, then interference has to be drawn that either FIR was recoded prior in time or the documents were prepared later on and in such cases, benefit of doubt is to be given the the accused.
10. It is next pointed out by accused that the seal was kept by the police officials themselves and was not handed over to any independent person and prosecution has also failed to prove that the case property remained intact and was not tampered with till the time it was produced in the Court which was more important when the seal remained with the police official of the same police station.
11. All the lapses in investigation, discussed herein above creates a doubt on the very recovery of one buttondar knife from the possession of C No. 95/11 Unique ID No. 02404R0216122011 Page No. 8 State Vs. Deepak @ Lala @ Ashu FIR No. 159/11 PS Adarsh Nagar accused. The lapses are material one and cannot be ignored. It is settled proposition of law that if the investigation suffers from taint then the entire prosecution case becomes open to serious doubts and challenges. The material is insufficient to record a finding of guilt of the accused and the safer course available is to acquit the accused giving him a benefit of doubt.
Conclusion
12. In view of the above said discussion, the prosecution has failed to prove the guilt of the accused beyond reasonable doubt. Accordingly, I acquit the accused Deepak @ Lala @ Ashu for the offence U/S 25/54/59 of Arms Act.
13. The Bail Bond stands cancelled and surety for the accused stands discharged. Any endorsement placed on the documents of the surety may accordingly, be cancelled. The original documents of the surety, if retained on record be returned against acknowledgment. File be consigned to record room.
Announced in open court (Neeraj Gaur)
today i.e. 02.12.2011 Metropolitan Magistrate-IV
Rohini Courts, Delhi
C No. 95/11
Unique ID No. 02404R0216122011 Page No. 9