Delhi District Court
Vide This Judgment This Court Shall ... vs State Of on 31 August, 2012
1
IN THE COURT OF MS. SAUMYA CHAUHAN,
METROPOLITAN MAGISTRATE, SOUTH EAST DELHI, SAKET
State v. Arun Kumar Yadav
FIR No. 487/06
PS HNDIN
U/s 25/54/59 Arms Act.
JUDGMENT
C C No. : 194/10/10
Date of Institution : 27.09.2006
Date of Commission of Offence : 08.07.2006
Name of the complainant : Ct. Rakesh Kumar
Name & address of the accused : Arun Kumar Yadav @ Kailash
S/o Nand Kishore Yadav
r/o Village Bari PO Khas PS
Nizamabad, District Azamgarh,
UP.
Offence complained of : U/s 25/54/59 Arms Act
Plea of accused : Pleaded not guilty
Final Order : Acquitted
Date of reserve for judgment : 30.08.2012
Date of announcing of judgment : 31.08.2012
BRIEF STATEMENT OF THE REASONS FOR THE DECISION
1. Vide this judgment this court shall dispose of the present case u/s 25/54/59 Arms Act.
State v. Arun Kumar Yadav U/s 25/54/59 Arms Act FIR No.487/06, PS HNDIN 2
2. The story of the prosecution is that on 08.07.2006 at about 7.30 pm at Gate No.2, I P Park, Ring Road, Sarai Kale Khan, New Delhi within the jurisdiction of PS HNDIN, the accused Arun Kumar Yadav was found in possession of one buttondar knife having total length 24 cm without any license or permit, in contravention to the notification issued by the Delhi Administration and thereby committed an offence under Section 25 Arms Act. The knife was seized and taken into possession by the police. After completing the formalities, investigation was carried out.
3. Charge sheet was filed against the accused under Section 25 Arms Act in the court. Charge under Section 25/54/59 Arms Act was framed against the accused vide order dated 02.08.2001 to which he pleaded not guilty and claimed trial.
4. In order to prove the charge against the accused, the prosecution examined five witnesses namely (1) Ct. Rakesh (2) HC Jhamman Singh (3) HC Mahesh Tyagi (4) HC Sunil Kumar (5) Anil Yadav
5. PW-1 Ct. Anil Kumar deposed that on 08.07.2006 he was posted as constable at PP Sarai Kale Khan in PS HNDIN. On that day, he was on patrolling duty in the area of ring road, I P Park, bus stop, gate no.1. At State v. Arun Kumar Yadav U/s 25/54/59 Arms Act FIR No.487/06, PS HNDIN 3 about 7.20 pm, one secret informer met him and informed him that one person was present at footpath near gate no.2 with an illegal knife. On that information, he requested 4-5 public persons to join the investigation and raiding party but none agreed and left the spot without disclosing their names and addresses. At about 7.30 pm, he reached there and tried to overpower the accused, who tried to run away towards gate no.3 I P Park, but after chasing 20-25 steps, he was apprehended. On search of the accused, one buttondar knife was recovered from the back pocket of his trousers.
6. The witness had given the information at PP Sarai Kale Khan and IO/HC Mahesh Tyagi came at the spot. The accused along with knife was handed over to HC Mahesh Tyagi. His statement Ex. PW1/A was recorded. The knife was opened, measured and its sketch was prepared by the IO HC Mahesh Tyagi vide memo Ex. PW1/B. He has also deposed that the total length of the knife was measured as 24 cm, handle was 13 cm and blade was 11 cm. The knife was closed with the help of button and put into the pulanda and sealed with the seal of MT and seal after use was handed over to Ct. Sunil Kumar. Knife was seized vide seizure State v. Arun Kumar Yadav U/s 25/54/59 Arms Act FIR No.487/06, PS HNDIN 4 memo Ex. PW1/C. IO prepared the site plan Ex. PW1/D. IO prepared the rukka Ex. PW2/A and the same was handed over to Ct. Sunil for registration of FIR. Accused was arrested and his personal search was conducted vide memo Ex. PW1/E and Ex. PW1/F respectively. The witness identified the case property i.e buttandar knife in the court as Ex.P-1.
7. During cross examination he deposed that he was only having a danda at the time of departure for patrolling from PP Sarai Kale Khan. He could not recall that he did not remember the number of departure entry.He deposed that the secret informer had pointed out from a distance of 15-20 steps. He deposed that there was a bus stand at gate no.1 I P Park. He admitted that the place of occurrence was a public place and about 10-15 public persons were present at the bus stop. He further deposed that there were two bus stops at I P Park, one at gate no.1 and another at gate no.3. He deposed that he caught hold the accused with the help of Ct. Sunil. He deposed that no public person was gathered at the time of apprehension of accused. He deposed that Ct. Sunil came at the spot after registration of FIR. He deposed that he had signed the site plan at State v. Arun Kumar Yadav U/s 25/54/59 Arms Act FIR No.487/06, PS HNDIN 5 the spot but there was no signature of the witness on the site plan.
8. PW-3 (PW-2) HC Jhamman Singh has proved the FIR No.487/06 under Section 25/54/59 Arms Act, which is Ex. PW3/A.
9. PW-4 (PW-3) HC Mahesh Tyagi deposed that on 08.07.2006 he was posted at PP Sarai Kale Khan. On that day he received DD No.19 Ex. PW4/A at about 7.40 PM at PP Sarai Kale Khan and thereafter he reached at the spot at about 7.45 pm at Gate no.2 I P Park Ring Road where Ct. Rakesh and Ct. Sunil met him and produced the accused Arun. He further corroborated the testimony of PW-1.
10.During cross examination PW-4 deposed that he was present at PP Sarai Kale Khan when DD No.19 was received. He reached the spot on foot. He further deposed that the distance between the spot and the PP is about 250-300 meters. He admitted that public persons were passing nearby the spot and deposed that public persons might have been sitting inside the park.He deposed that no notice was given to the public persons who refused to join the proceedings. He deposed that the measurement of the knife was taken with the help of plastic scale.
11.PW-5 (PW-4) Sunil Kumar corroborated the testimony of PW-1. State v. Arun Kumar Yadav U/s 25/54/59 Arms Act FIR No.487/06, PS HNDIN 6
12.PW-6 Anil Yadav, UDC Home Department proved the notification no. F/13/203/78 dated 17.02.1979 issued by the then Under Secretary Home (General) regarding carrying a possession of knife. During cross examination he deposed that no separate authority letter to depose in the court has been given to him, however, the summons to the department was marked to him. He admitted that there was no signature, stamp, and date of authority regarding whom he represented was attached with the summons. He had deposed that he was posted on the above designation since 2007. He deposed that original order was not issued in his tenure and he did not have any personal knowledge regarding the same.
13.Thereafter PE was closed and statement of accused was recorded wherein the accused pleaded innocence but did not lead any evidence in his defence.
14.I have heard the arguments addressed by the Ld. APP and the Ld counsel for the accused and perused the documents on record carefully.
15.From the overall testimony of the witnesses, it is clear that the IO has not joined any public witness in the investigation. Infact, not even an effort was made to join the public witnesses. There is a possibility that it was a State v. Arun Kumar Yadav U/s 25/54/59 Arms Act FIR No.487/06, PS HNDIN 7 chance recovery, however,at the time and place from where the accused was apprehended and when the formalities were being completed, there must be public persons around as it is a public park, which is expected to be crowded with people even during evening time. Also, no reason as to why no public witness could be found has been put forth by the prosecution. All the witnesses examined are police witnesses. This casts a doubt about the sincere efforts made by the IO to join independent witnesses.
16.In Roop Chand v. 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. In case of Pradeep Narayana V. State of Maharashtra reported AIR 1995 Supreme Court 1930, it was 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. Similarly it was held in the case of Kuldeep Singh V. State of Haryana 2004(4) RCR 103 and Passi @ Prakash V. State of Haryana 2001(1) RCR 435, it is settled law that whenever any recovery in connection with the place of the commission of offence is made, public State v. Arun Kumar Yadav U/s 25/54/59 Arms Act FIR No.487/06, PS HNDIN 8 person must be made witness.
17. The Section 100(4) CrPC provided that " before making a search of the officer or other person about to make it shall call upon the two or more independent and respectable inhabitants of the locality in which the place to be searched is situated or any other locality if no such inhabitant of the said locality is available or is willing to be a witness of the search, to attend the witness the search and may issued an order in writing to them or any of them so to do" .
18.In the present case, the IO has even failed to note down the particulars of the person who refused to join the investigation and this creates doubt regarding the fairness of the investigation. The chances of false implication cannot be ruled out.
19.It has also been noticed that the recovery memo documents were prepared before the registration of FIR. When documents are prepared before registration of FIR, it contains the FIR number, then interference has to be drawn that either FIR was recorded prior in time or the documents were prepared later on and in such cases, benefit of doubt is to be given to the accused.
State v. Arun Kumar Yadav U/s 25/54/59 Arms Act FIR No.487/06, PS HNDIN 9
20.All the lapses in investigation creates doubt on the very recovery of a buttondar knife from the possession of the accused. The court is of the considered view that prosecution has not been able to prove the guilt of accused beyond reasonable doubt.
21.In view of the above discussion, the court is of the view that prosecution has failed to prove its case beyond reasonable doubt. Accordingly, accused Arun Yadav is acquitted.
22.As per section 437-A of the Cr.P.C, as amended vide the Amendment 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.
23.File be consigned to Record Room.
Announced in the open court (SAUMYA CHAUHAN)
on 31.08.2012 METROPOLITAN MAGISTRATE
SOUTH EAST, SAKET COURTS, NEW DELHI
State v. Arun Kumar Yadav U/s 25/54/59 Arms Act
FIR No.487/06, PS HNDIN