State vs Sanjay Kumar on 21 April, 2008

[Cites 4, Cited by 0]

Delhi District Court

State vs Sanjay Kumar on 21 April, 2008

                                       ::-1-::



     IN THE COURT OF ANAND SWAROOP AGGARWAL : METROPOLITAN
             MAGISTRATE : KARKARDOOMA COURTS, DELHI


                               State V/s Sanjay Kumar
                                                                      FIR No. 278/02
                                                                   U/s 25 of Arms Act
                                                           PS : Dilshad Garden, Delhi

a)   The Sl. No. of the case                     : 2A/03


b)   Date of the commission of offence       :    25/12/02


c)   Name of the complainant                 :    HC Inderpal No. 66/NE


d)   Name of the accused person and his :         Sanjay Kumar, S/o Sh. Avdhesh
     parentage and residence                      Gupta, R/o Vill: Nauru, PS +
                                                  Distt: Jahanabad, Bihar


e)   Offence complained of or proved         :    U/s 25 of Arms Act


f)   Plea of the accused                     :    Accused plead not guilty.


g)   Final order                             :    Acquitted


1.

   Date of institution of case             :    13/01/03


2.   Date of hearing/conclusion   of :            21/04/08
     arguments & fixing the case for
     orders


3.   Judgment delivered on                   :    21/04/08




i)         BRIEF STATEMENTS OF REASONS FOR DECISION

In brief, case of the prosecution against the accused is that on 25/12/02 at 7:00 p.m at road near Sahni Factory, JMI Shahadra, Delhi, accused was found in possession of the button actuated knife in Ex. P1 in violation of a notification mark X issued by the Delhi Administration. On the basis of ruqqa sent by HC Inderpal Singh, a formal FIR Ex. PW1/A was registered for the offence . . . . . Contd. 2/-

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U/s 25 of Arms Act. The case was investigated into. The investigation ended in the filing of the charge-sheet U/s 173 CrPC charging the accused with the commission of the offence punishable U/s 25 of Arms Act.

2. Vide order dated 15/12/03 accused has been charged for the offence punishable U/s 25 of Arms Act to which he did not plead guilty and claimed trial.

3. To substantiate its case on judicial file, prosecution has examined as many as four witnesses. PW1 is HC Jeetender, who was posted as D/O at PS :

Dilshad Garden, Delhi and recorded formal FIR in this case. PW2 is ASI Inder Pal, who is the who is the first IO/complainant of the present case. PW3 Ct Lokender, who is a recovery witness. PW4 HC Laxmi who is the second IO of the present case. Vide order dated 11/04/08 P/E was closed.

4. Today i.e on 21/04/08 statement of accused was recorded U/s 281/313 Cr.PC wherein he denied the prosecution version in toto. However, accused did not intend to lead defence evidence.

5. I have heard Ld. APP for state and accused and have gone through the case file very carefully. Ld. APP for state submits that in the present case accused is liable to be convicted for the offence U/s 25 of Arms Act on the basis of depositions made by various prosecution witnesses. On the other hand, accused submits that he has been falsely implicated in this case. He further submits that there was some quarrel between the accused and his co-worker and the accused was taken to the PS where the case property was planted upon him and he was falsely implicated in this case. With these submissions, accused has prayed for his acquittal.

6. I have given a considered thought to the rival submissions made by Ld. APP for state and accused keeping in view the material available on the judicial file.

7. It is a settled proposition of criminal law that prosecution is supposed to prove its case on judicial file beyond reasonable doubts by leading reliable, cogent and convincing evidence. Further it is a settled proposition of criminal law that in order to prove its case on judicial file, prosecution is supposed to stand on its on legs and it cannot derive any benefit whatsoever from the weaknesses, if any, in the defence of the accused. Further it is a settled proposition of criminal law that burden of proof of the version of the prosecution in a criminal trial throughout the trial is on the prosecution and it never shits to the accused. Also it is a settled proposition of criminal law that accused is entitled to the benefit of every reasonable doubt in the prosecution story and such doubt entitles the . . . . . Contd. 3/-

::-3-::

accused to acquittal.

8. In my considered opinion as a cumulative effect of the following reasons, accused is entitled to be acquitted for the charge against him by reasons of reasonable doubts in the prosecution story:-

9. Chapter 22 Rule 49 of Punjab Police Rules, 1934, provides as under:

''22.49Matters to be entered in Register No. II - The following matters shall, amongst others, be entered :-

(c) The hour of arrival and departure on duty at or from a police station of all enrolled police officers of whatever rank, whether posted at the police station or elsewhere, with a statement of the nature of their duty. This entry shall be made immediately on arrival or prior to the departure of the officer concerned and shall be attested by the latter personally by signature or seal.

Note :- The term Police Station will include all places such as Police Lines and Police Posts where Register No. II is maintained.

10. As per the prosecution on 25/12/2002, HC Inderpal Singh was on area patrolling and when he reached at GT Road, Shahadra, near Deepak Patrol Pump, Ct Lokender met him, who was also on patrolling duty. Thereafter both these police officials reached at 7:00 p.m at the spot i.e Sahney Factory, JMI. But neither the copy of DD entry vide which said police officials had left the PS for patrolling nor the number of the said DD entry has been brought on record by the prosecution so as to inspire the confidence regarding meeting of two police officials at a particular place while on patrolling. In my opinion in the facts and circumstances of the case at least number of the DD entry must have been mentioned in the ruqqa itself so as to inspire confidence in the prosecution version. Also no explanation has come on record as to why the above said DD entry has not been produced/proved on judicial record. At this juncture, it would be relevant to refer to a case law reported as Rattan Lal V/s State, 1987 (2) Crimes 29 the Hon'ble Delhi High Court wherein it has been observed that if the investigating agency deliberately ignores to comply with the provisions of the Act the courts will have to approach their action with reservations. The matter has to be viewed with suspicion if the provisions of law are not strictly complied with and the least that can be said is that it is so done with an oblique motive. This failure to bring on record, the DD entries creates a reasonable doubt in the prosecution version and attributes oblique motive on the . . . . . Contd. 4/-

::-4-::

part of the prosecution.

10. As per ruqqa, in the present case, before taking the formal/casual search of the accused by HC/ASI Inder Pal Singh or Ct Lokender no efforts whatsoever was made to ensure that search of the accused by them is witnessed by independent public witnesses despite the fact that as per depositions of PW2 ASI Inder Pal Sing, public persons were very well available at the spot.

Also as per ruqqa, HC/ASI Inder Pal Singh/Ct Lokender had not offered his/their own search to the accused before taking the search of the accused. At this juncture, it would be appropriate to refer to the judgment of Hon'ble Orissa High Court reported as Rabindernath Prusty V/s State of Orissa, wherein it was held as under:-

''10. 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 in that the searching Officer and others assisting him should give their personal search to the accused before searching the person of the accused. (See AIR 1969 SC 53 : (1969 Cri. L.J 279), State of Bihar V/s Kapil Singh). 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's person was searched. Besides the above, it is in the evidence of PWs 2 and 5 that the accused wanted to know the reason for which his person 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''.

Being guided by above said case law, it can be said that search of the accused by above said police officials was in complete violation of the above said case law and the same can be said to be illegal.

11. As per the ruqqa, in the present case no sincere efforts whatsoever were made by police officials to join independent public witnesses in the police proceedings despite the availability of such witnesses near the place of the apprehension of the accused inasmuch as per the deposition made by PW2 ASI Inder Pal Singh and PW3 Ct Lokender public persons were available at the spot. This failure on the part of the prosecution to make efforts to join independent witnesses in the police proceedings creates very serious doubts in the version of the prosecution case. At least in the facts and circumstances of the case, in my opinion PW2 ASI Inder Pal could very well have served the passersby with notice . . . . . Contd. 5/-

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in writing to join the police proceedings who refused to join the same inasmuch as had the said attempts been made by IO there was no possibility of accused escaping his arrest or crime going undetected because by the said time accused stood already apprehended. As such it can be said that no sincere efforts whatsoever was made by the police officials to join independent public witnesses in the investigation. At this juncture, it would be pertinent to refer to some case laws.

In a case law reported as Anoop Joshi V/s State, 1992 (2) C.C. Cases 314 (HC), Hon'ble High Court of Delhi has observed as under:

18. It is repeatedly laid down by this Court that in such '' cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evident that no such sincere efforts have been made, particularly when we find that shops were open and one or two shop-keepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the shop-keepers had declined to join the raiding party, the police could have later on taken legal action against such shop-keepers because they could not have escaped the rigours of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC''.

In a case law reported as Roop Chand V/s The State of Haryana, 1999 (1) C.L.R 69, the Hon'ble Punjab & Haryana High Court held as under:-

3. I have heard the learned counsel for the parties and gone '' through the evidence with their help. The recovery of illicit liquor was effected from the possession of the petitioner during noon time and it is in the evidence of the prosecution witnesses that some witnesses from the public were available and they were asked to join the investigation. The explanation furnished by the prosecution is that the independent witnesses were asked to join the investigation but they refused to do do so on the ground that their joining will result into enmity between them and the petitioner''.

4. It is well settled principle of the law that the Investigating '' Agency should join independent witnesses at the time of recovery of contraband articles, if they are available and their failure to do so in such a situation casts a shadow of doubt on the prosecution case. In the present case also admittedly the independent witnesses were available at the time of recovery but they refused to associate themselves in the investigation.

This explanation does not inspire confidence because the police officials who are the only witnesses examined in the . . . . . Contd. 6/-

::-6-::

case have not given the names and addresses of the persons contacted to join. It is a very common excuse that the witnesses from the public refused to join the investigation. A police officer conducting investigation of a crime is entitled to ask anybody to join the investigation and on refusal by a person from the public the Investigating Officer can take action against such a person under the law. Had it been a fact that he witnesses from the public had refused to to join the investigation, the Investigating Officer must have proceeded against them under the relevant provisions of law. The failure to do so by the police officer is suggestive of the fact that the explanation for non-joining the witnesses from the public is an after thought and is not worthy of credence. All these facts taken together make the prosecution case highly doubtful''.

In case law reported as Sadhu Singh V/s State of Punjab, 1997 (3) Crimes 55 the Hon'ble Punjab & Haryana High Court observed as under:-

5. 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 improbable or lacks credibility the benefit of doubt necessarily has to go to the accused''.

6. In the present case, the State examined two witnesses '' namely, Harbans Singh ASI who appeared as PW1 and Kartar Singh. PW2. Both the witnesses supported the prosecution version in terms of the recovery of opium from the person of the petitioner, but there was no public witness who had joined. It is not necessary in such recoveries that public witnesses must be joined, but 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 a public witness or that they were not available. A stereo-type statement of non-availability will not be sufficient particularly when at the relevant time, it was not difficult to procure the service of public witness. This reflects adversely on the prosecution version''.

As such it could be said that police officials did not make any sincere efforts to join public witnesses before starting initial investigation of the present case and this failure on the part of the police officials in view of the above said case laws creates a very serious doubt in the prosecution version.

12. As per the depositions made by PW2 ASI Inder Pal Singh, the seal after use on the pulanda containing the knife allegedly recovered from the accused was given to none else but to Ct Lokender, who is a material prosecution witness . . . . . Contd. 7/-

::-7-::

being a witnesses to the alleged recovery of the knife from the possession of the accused. Such a material witness of a case is always interested in the success of the case of the prosecution and keeping in view of this factum chances of fabrication of case property cannot be ruled out beyond doubts. Further it is equally pertinent to note that the entire judicial file is silent as to when the seal was given back by Ct Lokender to IO ASI Inder Pal.

13. In my opinion in view of the above mentioned discussion, it can be safely concluded that prosecution has failed to prove its case on judicial file beyond reasonable doubt. There do exist such doubts in the prosecution story. As such accused is hereby acquitted of the charge against him. Bail bonds stand discharged. File be consigned to Record Room.

ANNOUNCED IN THE OPEN COURT TODAY i.e on 21/04/2008 (ANAND SWAROOP AGGARWAL) METROPOLITAN MAGISTRATE KARKARDOOMA COURTS, DELHI . . . . . Contd. 8/-

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IN THE COURT OF ANAND SWAROOP AGGARWAL : METROPOLITAN MAGISTRATE : KARKARDOOMA COURTS, DELHI Sent on net on 21/04/08 State V/s Anwar FIR No. 59/01 U/s 25 of Arms Act PS : Dilshad Garden, Delhi

a) The Sl. No. of the case : .12/01.

b)   Date of the commission of offence       :     17/03/01


c)   Name of the complainant                 :     HC Shivraj Singh No. 371/NE


d)   Name of the accused person and his :          Anwar S/o Sh. Nisar, R/o B-123,
     parentage and residence                       Welcome, Delhi, Permanent Add:
                                                   Burai, PS Sirsi, Distt: Muradaba,
                                                   U.P


e)   Offence complained of or proved         :     U/s 25 of Arms Act


f)   Plea of the accused                     :     Accused plead not guilty.


g)   Final order                             :     Acquitted


1.   Date of institution of case             :     17/05/01


2.   Date of hearing/conclusion   of :             19/04/08
     arguments & fixing the case for
     orders


3.   Judgment delivered on                   :     19/04/08




i)         BRIEF STATEMENTS OF REASONS FOR DECISION

In brief, case of the prosecution against the accused is that on 17/03/01 at about 7:45 p.m in front of Rupa Convent School at corner of park, accused was found in possession of one button actuated knife Ex. P1 in violation of a notification mark X issued by the Delhi Administration. On the basis of . . . . . Contd. 9/-

::-9-::

ruqqa sent by HC Shivraj, a formal FIR Ex. PW2/A was registered for the offence U/s 25 of Arms Act. The case was investigated into. The investigation ended in the filing of the charge-sheet U/s 173 CrPC charging the accused with the commission of the offence punishable U/s 25 of Arms Act.

2. Vide order dated 13/09/02 accused has been charged for the offence punishable U/s 25 of Arms Act to which he did not plead guilty and claimed trial.

3. To substantiate its case on judicial file, prosecution has examined as many as five witnesses. PW1 is Ct Harinder, who is a witness of recovery. PW2 is HC Sardar Singh, who was D/O at PS : Dilshad Garden, Delhi and recorded formal FIR in this case. PW3 is HC Shivraj Singh, who is the complainant/IO of the present case. PW4 is Ct Veer Singh, who is also a recovery witness. PW5 is HC Virender who is the second IO of the present case. Vide order dated 11/04/08 P/E was closed by Ld. APP for state inasmuch as all the material witnesses stood examined.

4. Today i.e on 19/04/08 statement of accused was recorded U/s 281/313 Cr.PC wherein he denied the prosecution version in toto. However, accused did not intended to lead defence evidence.

5. I have heard Ld. APP for state and accused and have gone through the case file very carefully. Ld. APP for state submits that in the present case accused is liable to be convicted for the offence U/s 25 of Arms Act on the basis of depositions made by various prosecution witnesses. On the other hand, accused submits that he has been falsely implicated in this case. He further submits that he was present at Shahadra road from where he was taken to the PS where has been falsely implicated in this case by falsely planting the case property upon him. With these submissions, accused has prayed for his acquittal.

6. I have given a considered thought to the rival submissions made by Ld. APP for state and accused keeping in view the material available on the judicial file.

7. It is a settled proposition of criminal law that prosecution is supposed to prove its case on judicial file beyond reasonable doubts by leading reliable, cogent and convincing evidence. Further it is a settled proposition of criminal law that in order to prove its case on judicial file, prosecution is supposed to stand on its on legs and it cannot derive any benefit whatsoever from the weaknesses, if any, in the defence of the accused. Further it is a settled proposition of criminal law that burden of proof of the version of the prosecution in a criminal trial . . . . . Contd. 10/-

::-10-::

throughout the trial is on the prosecution and it never shits to the accused. Also it is a settled proposition of criminal law that accused is entitled to the benefit of every reasonable doubt in the prosecution story and such doubt entitles the accused to acquittal.

8. Chapter 22 Rule 49 of Punjab Police Rules, 1934, provides as under:

''22.49Matters to be entered in Register No. II - The following matters shall, amongst others, be entered :-

(c) The hour of arrival and departure on duty at or from a police station of all enrolled police officers of whatever rank, whether posted at the police station or elsewhere, with a statement of the nature of their duty. This entry shall be made immediately on arrival or prior to the departure of the officer concerned and shall be attested by the latter personally by signature or seal.

Note :- The term Police Station will include all places such as Police Lines and Police Posts where Register No. II is maintained.

9. As per the prosecution version at the time of the apprehension of the accused, police party comprising SI M.C. Pandey, SI Manoj Kumar, ASI Jogender Singh, HC Shivraj, Ct Anup Singh, Ct Sunil Kumar, Ct Harender Kumar, Ct Veer Singh, Ct Om Pal and Ct Baljeet Singh were on patrolling duty. But neither the copy of DD entry vide which said police party had left the PS for patrolling nor the number of the said DD entry has been brought on record by the prosecution. In my opinion at least number of the DD entry must have been mentioned in the ruqqa itself so as to inspire confidence in the prosecution version. Also no explanation has come on record as to why the above said DD entry has not been produced/proved on judicial record. At this juncture, it would be relevant to refer to a case law reported as Rattan Lal V/s State, 1987 (2) Crimes 29 the Hon'ble Delhi High Court wherein it has been observed that if the investigating agency deliberately ignores to comply with the provisions of the Act the courts will have to approach their action with reservations. The matter has to be viewed with suspicion if the provisions of law are not strictly complied with and the least that can be said is that it is so done with an oblique motive. This failure to bring on record, the DD entries creates a reasonable doubt in the prosecution version and attributes oblique motive on the part of the prosecution.

10. As per ruqqa, in the present case, before taking the formal/casual search of the accused by HC Shivraj/Ct Veer Singh/Ct Harender no efforts whatsoever was made to ensure that search of the accused by them is witnessed by . . . . . Contd. 11/-

::-11-::

independent public witnesses despite the fact that as per depositions of PW1 Ct Harinder and PW3 HC Shivraj Singh, public persons were very well available at the spot.

Also as per ruqqa, HC Shivraj/Ct Veer Singh/Ct Harender had not offered his own search to the accused before taking the search of the accused. Further, PW3 HC Shivraj Singh deposed in his cross-examination that he had offered his search to the accused before taking the search of the accused though he is absolutely silent on this aspect in his examination-in-chief and also in the ruqqa prepared and sent by him there is no such mention, which creates a reasonable doubt in the version of the prosecution in so far as offering of personal search to the accused before taking his personal search by the police officials. Further PW1 Ct Harinder deposed in his cross-examination that they had not offered their search to the accused before taking the search of the accused. As such there is also material contradictions in the depositions of PW1 and PW3 which also creates a reasonable doubt in the prosecution version. At this juncture, it would be appropriate to refer to the judgment of Hon'ble Orissa High Court reported as Rabindernath Prusty V/s State of Orissa, wherein it was held as under:-

10. 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 in that the searching Officer and others assisting him should give their personal search to the accused before searching the person of the accused. (See AIR 1969 SC 53 : (1969 Cri.

L.J 279), State of Bihar V/s Kapil Singh). 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's person was searched. Besides the above, it is in the evidence of PWs 2 and 5 that the accused wanted to know the reason for which his person 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''.

Being guided by above said case law, it can be said that search of the accused by above said police officials was in complete violation of the above said case law and the same can be said to be illegal.

11. As per the ruqqa, in the present case no efforts whatsoever were made by police officials to join independent public witnesses in the police proceedings . . . . . Contd. 12/-

::-12-::

despite the availability of such witnesses near the place of the apprehension of the accused inasmuch as per the deposition made by PW1 Ct Harinder and PW3 IO HC Shivraj public persons were also available at the spot. This failure on the part of the prosecution to make efforts to join independent witnesses in the police proceedings creates very serious doubts in the version of the prosecution case. Further as per depositions made by PW1 Ct Harinder the spot from where the accused was apprehended is a thorough public passage and public persons were requested to join the investigation after apprehension of the accused but they did not join the investigation. He (PW1) also admitted in his cross-examination that no notice was given to the public persons, who refused to join the investigation. Further as per deposition made in cross-examination, PW3 HC Shivraj Singh has admitted that he had asked the public persons to join the investigation but nobody joined the same nor they disclosed their names and addresses. Though both these PWs are absolutely silent regarding this fact in their examinations-in- chief and also there is no such mention in the ruqqa. As such it seems that these PWs have made an improvement over the prosecution version. The above said version of the prosecution does not appeal good to the judicial mind. At least in the facts and circumstances of the case, in my opinion IO HC Shivraj Singh could very well have served the passersby with notice in writing to join the police proceedings inasmuch as had the said attempts been made by IO there was no possibility of accused escaping his arrest or crime going undetected because by the said time accused stood already apprehended. As such it can be said that no sincere efforts whatsoever was made by the police officials to join independent public witnesses in the investigation. At this juncture, it would be pertinent to refer to some case laws.

In a case law reported as Anoop Joshi V/s State, 1992 (2) C.C. Cases 314 (HC), Hon'ble High Court of Delhi has observed as under:

18. It is repeatedly laid down by this Court that in such '' cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evident that no such sincere efforts have been made, particularly when we find that shops were open and one or two shop-keepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the shop-keepers had declined to join the raiding party, the police could have later on taken legal action against such shop-keepers because they could not have escaped the rigours of law while declining to perform . . . . . Contd. 13/-

::-13-::

their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC''.

In a case law reported as Roop Chand V/s The State of Haryana, 1999 (1) C.L.R 69, the Hon'ble Punjab & Haryana High Court held as under:-

3. I have heard the learned counsel for the parties and gone '' through the evidence with their help. The recovery of illicit liquor was effected from the possession of the petitioner during noon time and it is in the evidence of the prosecution witnesses that some witnesses from the public were available and they were asked to join the investigation. The explanation furnished by the prosecution is that the independent witnesses were asked to join the investigation but they refused to do do so on the ground that their joining will result into enmity between them and the petitioner''.

4. It is well settled principle of the law that the Investigating '' Agency should join independent witnesses at the time of recovery of contraband articles, if they are available and their failure to do so in such a situation casts a shadow of doubt on the prosecution case. In the present case also admittedly the independent witnesses were available at the time of recovery but they refused to associate themselves in the investigation.

This explanation does not inspire confidence because the police officials who are the only witnesses examined in the case have not given the names and addresses of the persons contacted to join. It is a very common excuse that the witnesses from the public refused to join the investigation. A police officer conducting investigation of a crime is entitled to ask anybody to join the investigation and on refusal by a person from the public the Investigating Officer can take action against such a person under the law. Had it been a fact that he witnesses from the public had refused to to join the investigation, the Investigating Officer must have proceeded against them under the relevant provisions of law. The failure to do so by the police officer is suggestive of the fact that the explanation for non-joining the witnesses from the public is an after thought and is not worthy of credence. All these facts taken together make the prosecution case highly doubtful''.

In case law reported as Sadhu Singh V/s State of Punjab, 1997 (3) Crimes 55 the Hon'ble Punjab & Haryana High Court observed as under:-

5. 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 improbable or lacks credibility the benefit of doubt necessarily has to go to the accused''.

6. In the present case, the State examined two witnesses '' namely, Harbans Singh ASI who appeared as PW1 and . . . . . Contd. 14/-

::-14-::

Kartar Singh. PW2. Both the witnesses supported the prosecution version in terms of the recovery of opium from the person of the petitioner, but there was no public witness who had joined. It is not necessary in such recoveries that public witnesses must be joined, but 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 a public witness or that they were not available. A stereo-type statement of non-availability will not be sufficient particularly when at the relevant time, it was not difficult to procure the service of public witness. This reflects adversely on the prosecution version''.

As such it could be said that police officials did not make sincere efforts to join public witnesses before starting initial investigation of the present case and this failure on the part of the police officials in view of the above said case laws creates a very serious doubt in the prosecution version.

12. As per the depositions made by PW3 HC Shivraj Singh, the seal after use on the pulanda containing the knife allegedly recovered from the accused was given to none else but to Ct Harvinder, who is a material prosecution witness being a witnesses to the alleged recovery of the knife from the possession of the accused. Such a material witness of a case is always interested in the success of the case of the prosecution and keeping in view of this factum chances of fabrication of case property cannot be ruled out beyond doubts. Further it is equally pertinent to note that the entire judicial file is silent as to when the seal was given back by Ct Harinder to IO HC Shivraj Singh.

ANNOUNCED IN THE OPEN COURT TODAY i.e on 19/04/2008 (ANAND SWAROOP AGGARWAL) METROPOLITAN MAGISTRATE KARKARDOOMA COURTS, DELHI . . . . . Contd. 15/-

::-15-::

IN THE COURT OF ANAND SWAROOP AGGARWAL : METROPOLITAN MAGISTRATE : KARKARDOOMA COURTS, DELHI State V/s Gurdeep FIR No. 145/03 U/s 25 of Arms Act PS : Dilshad Garden, Delhi

a) The Sl. No. of the case : 191/3

b) Date of the commission of offence : 25/06/03

c) Name of the complainant : Ct Nand Kishore No. 734/NE

d) Name of the accused person and his : Gurdeep S/o Late Sh. Gyan parentage and residence Chand, R/o J-304, Old Seemapuri, Delhi

e) Offence complained of or proved : U/s 25 of Arms Act

f) Plea of the accused : Accused plead not guilty.

g)   Final order                             :    Acquitted


1.   Date of institution of case             :    17/07/03


2.   Date of hearing/conclusion   of :            28/03/08
     arguments & fixing the case for
     orders


3.   Judgment delivered on                   :    28/03/08




i)         BRIEF STATEMENTS OF REASONS FOR DECISION

In brief, case of the prosecution against the accused is that on 25/06/03 at about 9:50 p.m near SDN Chowk, Mazar Peer, Dilshad Garden, Delhi, within the area of PS : Dilshad Garden, Delhi, accused was found in possession of one button actuated knife Ex. P1 in violation of a notification issued by the Delhi Administration. On the basis of statement of Ct Nand Kishore Ex. PW2/A and pursuant to ruqqa sent by HC Jagatjeet Singh, a formal FIR . . . . . Contd. 16/-

::-16-::

Ex. PW1/A was registered for the offence U/s 25 of Arms Act. The case was investigated into. The investigation ended in the filing of the charge-sheet U/s 173 CrPC charging the accused with the commission of the offence punishable U/s 25 of Arms Act.

2. Vide order dated 12/07/04 accused was charged for the offence punishable U/s 25 of Arms Act to which he did not plead guilty and claimed trial.

3. To substantiate its case on judicial file, prosecution has examined as many as three witnesses. PW1 is Sh. Om Parkash, who posted at PS : Dilshad Garden, Delhi as D/O and recorded FIR in this case Ex PW1/A. PW2 is HC Jagatjeet Singh, who is the IO of the present case. PW3 is Ct Nand Kishore, who is the complainant of the present case. Vide order dated 29/03/08 P/E was closed by court order despite the request of Ld. APP for state for one more opportunity to conclude entire P/E.

4. Today i.e on 29/03/08 statement of accused was recorded U/s 281/313 Cr.PC wherein he denied the prosecution version in toto. However, accused did not intended to lead defence evidence.

5. I have heard Ld. APP for state and accused and have gone through the case file very carefully.

6. Ld. APP for state submits that in the present case accused is liable to be convicted for the offence U/s 25 of Arms Act on the basis of depositions made by various prosecution witnesses. On the other hand, accused submits that he was lifted from the gate of the GTB and was taken to the PS and was falsely implicated in this case. He further submits that he is totally innocent. With these submissions, acquittal of the accused has been prayed for.

7. I have given a considered thought to the rival submissions made by Ld. APP for state and accused keeping in view the material available on the judicial file.

8. It is a settled proposition of criminal law that prosecution is supposed to prove its case on judicial file beyond reasonable doubts by leading reliable, cogent and convincing evidence. Further it is a settled proposition of criminal law that in order to prove its case on judicial file, prosecution is supposed to stand on its on legs and it cannot derive any benefit whatsoever from the weaknesses, if any, in the defence of the accused. Further it is a settled proposition of criminal law that burden of proof of the version of the prosecution in a criminal trial throughout the trial is on the prosecution and it never shifts to the accused. Also it is a settled proposition of criminal law that accused is entitled to the benefit of . . . . . Contd. 17/-

::-17-::

every reasonable doubt in the prosecution story and such doubt entitles the accused to acquittal.

9. In my considered opinion as a cumulative effect of the following reasons, accused is entitled to be acquitted for the charge against him by reasons of reasonable doubts in the prosecution story:-

(a) Chapter 22 Rule 49 of Punjab Police Rules, 1934, provides as under:-

''22.49 Matters to be entered in Register No. II - The following matters shall, amongst others, be entered :-

(c) The hour of arrival and departure on duty at or from a police station of all enrolled police officers of whatever rank, whether posted at the police station or elsewhere, with a statement of the nature of their duty. This entry shall be made immediately on arrival or prior to the departure of the officer concerned and shall be attested by the latter personally by signature or seal.

Note :- The term Police Station will include all places such as Police Lines and Police Posts where Register No. II is maintained.

In the present case, the above said provision appears to have not been complied with by prosecution inasmuch as the DD entry vide which Ct Nand Kishore alongwith Ct Satish had left the P/S for patrolling in the area of SDN Chowk has not been produced or proved on judicial record. Even the number of the said DD entries made in Register No. II has not been brought on judicial record. In my opinion, at least in the facts and circumstances of the case, prosecution was under an obligation to prove on record, the above said DD entries vide which Ct Nand Kishore and Ct Satish had left the P/S for patrolling duty so as to prove the possibility of both the police officials available at the place of apprehension of the accused. At this juncture, it would be relevant to refer to a case law reported as Rattan Lal V/s State, 1987 (2) Crimes 29 the Hon'ble Delhi High Court wherein it has been observed that if the investigating agency deliberately ignores to comply with the provisions of the Act the courts will have to approach their action with reservations. The matter has to be viewed with suspicion if the provisions of law are not strictly complied with and the least that can be said is that it is so done with an oblique motive. This failure to bring on record, the DD entries creates a reasonable doubt in the prosecution version and attributes oblique motive on the part of the prosecution. Further as per the prosecution version after the apprehension of the accused intimation was given to the PS by Ct Satish regarding the apprehension . . . . . Contd. 18/-

::-18-::

of the accused through telephone. Neither the number of said telephone has been brought on record nor it has been brought on record as to whom the said telephone belongs. In my opinion to inspire confidence in the prosecution version the number of the telephone/other details thereof as to its situation and ownership must have been brought on record by the prosecution.

(b) Perusal of the ruqqa, depositions of PW2 HC Jagatjeet and PW3 Ct Nand Kishore reveal that no sincere efforts (except the stereotype excuse to the effect that IO requested 4-5 passersby but all they left the spot by telling their reasonable excuses without telling their names and addresses) were made by police officials to join independent public witnesses in the police proceedings.

At least in the facts and circumstances of the case, in my opinion HC Jagatjeet Singh could very well have served the passersby with notice in writing to join the police proceedings inasmuch as had the said attempts been made by HC Jagatjeet Singh there was no possibility of accused escaping his arrest or crime going undetected because by the said time accused stood already apprehended. The above referred mechanical excuse given by the prosecution for not joining the public witnesses in the police proceedings/investigation creates a reasonable doubt in the prosecution version in view of the case law discussed hereinbelow, and the accused cannot be convicted for the offence U/s 25 of Arms Act.

In a case law reported as Anoop Joshi V/s State, 1992 (2) C.C. Cases 314 (HC), Hon'ble High Court of Delhi has observed as under:

18. It is repeatedly laid down by this Court that in such '' cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evident that no such sincere efforts have been made, particularly when we find that shops were open and one or two shop-keepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the shop-keepers had declined to join the raiding party, the police could have later on taken legal action against such shop-keepers because they could not have escaped the rigours of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC''.

In a case law reported as Roop Chand V/s The State of Haryana, 1999 (1) C.L.R 69, the Hon'ble Punjab & Haryana High Court held as under:-

. . . . . Contd. 19/-

::-19-::

3. I have heard the learned counsel for the parties and gone '' through the evidence with their help. The recovery of illicit liquor was effected from the possession of the petitioner during noon time and it is in the evidence of the prosecution witnesses that some witnesses from the public were available and they were asked to join the investigation. The explanation furnished by the prosecution is that the independent witnesses were asked to join the investigation but they refused to do do so on the ground that their joining will result into enmity between them and the petitioner''.

4. It is well settled principle of the law that the Investigating '' Agency should join independent witnesses at the time of recovery of contraband articles, if they are available and their failure to do so in such a situation casts a shadow of doubt on the prosecution case. In the present case also admittedly the independent witnesses were available at the time of recovery but they refused to associate themselves in the investigation.

In case law reported as Sadhu Singh V/s State of Punjab, 1997 (3) Crimes 55 the Hon'ble Punjab & Haryana High Court observed as under:-

5. 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 improbable or lacks credibility the benefit of doubt necessarily has to go to the accused''.

6. In the present case, the State examined two witnesses '' namely, Harbans Singh ASI who appeared as PW1 and Kartar Singh. PW2. Both the witnesses supported the prosecution version in terms of the recovery of opium from the person of the petitioner, but there was no public witness who had joined. It is not necessary in such recoveries that public witnesses must be joined, but 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 . . . . . Contd. 20/-

::-20-::

same, the prosecution must show a genuine attempt having been made to join a public witness or that they were not available. A stereo-type statement of non-availability will not be sufficient particularly when at the relevant time, it was not difficult to procure the service of public witness. This reflects adversely on the prosecution version''.

(c) As per the depositions of PW3 Ct Nand Kishore and Ct Satish Kumar no efforts whatsoever was made by the police party to ensure that search of the accused is witnessed by some independent public person. Also PW3 Nand Kishore and Ct Satish Kumar had not offered their own search before taking the search of the accused. At this juncture it would be relevant to refer to a case law of Hon'ble Orissa High Court reported as Rabindernath Prusty V/s State of Orissa, wherein it was held as under:-

10. 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 in that the searching Officer and others assisting him should give their personal search to the accused before searching the person of the accused. (See AIR 1969 SC 53 : (1969 Cri.

Being guided by above said case law, it can be said that search of the accused by PW3 Ct Nand Kishore and Ct Satish Kumar was in complete violation of the above said case law and the same can be said to be illegal.

(d) As per the depositions made by PW3 Ct Nand Kishore, the seal after use on the pulanda containing the knife allegedly recovered from the accused was given to none else but to Ct Nand Kishore, who is the complainant/material witness of the present case, being a witnesses to the alleged recovery of the knife from the possession of the accused. Such a material witness/complainant of a case is always interested in the success of the case of the prosecution and keeping in view of this factum chances of fabrication of case . . . . . Contd. 21/-

::-21-::

property cannot be ruled out beyond doubts. Further it is equally pertinent to note that the entire judicial file as well as police file is silent as to when the seal was given back by Ct Nand Kishore to IO.

As such accused is hereby acquitted of the charge against him. Bail bonds of accused stands discharged. File be consigned to Record Room.

ANNOUNCED IN THE OPEN COURT TODAY i.e on 29/03/2008 (ANAND SWAROOP AGGARWAL) METROPOLITAN MAGISTRATE KARKARDOOMA COURTS, DELHI . . . . . Contd. 22/-

::-22-::

IN THE COURT OF ANAND SWAROOP AGGARWAL : METROPOLITAN MAGISTRATE : KARKARDOOMA COURTS, DELHI Sent on net on 27/03/08 State V/s Mehmood @ Mehboob FIR No. 97/02 U/s 25 of Arms Act PS : Dilshad Garden, Delhi

a) The Sl. No. of the case : 43/2

b) Date of the commission of offence : 24/04/02

c) Name of the complainant : Ct Satyabir Singh NO. 1673/NE

d) Name of the accused person and his : Mehmood @ Mehboob S/o Mani @ parentage and residence Suleman, R/o E-57/D-87, Kaddi Wali Masjid, Sunder Nagri, Delhi

e) Offence complained of or proved : U/s 25 of Arms Act

f) Plea of the accused : Accused plead not guilty.

g)   Final order                             :    Acquitted


1.   Date of institution of case             :    07/05/02


2.   Date of hearing/conclusion   of :            26/03/08
     arguments & fixing the case for
     orders


3.   Judgment delivered on                   :    26/03/08




i)         BRIEF STATEMENTS OF REASONS FOR DECISION

In brief, case of the prosecution against the accused is that on 24/04/02 at 6:00 p.m at near Anjuman Masjid, Janta Flat, GTB Enclave, Delhi, within the area of PS : Dilshad Garden, Delhi accused was found in possession of one button actuated knife Ex. P1 in violation of a notification issued by the Delhi Administration. On the basis of statement of Ct Satyabeer Singh Ex. PW3/A and pursuant to ruqqa sent by ASI Neyaz Mehndi, a formal FIR Ex. PW1/A was . . . . . Contd. 23/-

::-23-::

registered for the offence U/s 25 of Arms Act. The case was investigated into. The investigation ended in the filing of the charge-sheet U/s 173 CrPC charging the accused with the commission of the offence punishable U/s 25 of Arms Act.

2. Vide order dated 07/11/03 accused was charged for the offence punishable U/s 25 of Arms Act to which he did not plead guilty and claimed trial.

3. To substantiate its case on judicial file, prosecution has examined as many as four witnesses. PW1 is HC Keshav Dev, who was posted as D/O at PS :

Dilshad Garden, Delhi and recorded FIR in this case. PW2 is Ct Mohd. Khalid, who is a recovery witness. PW3 is ASI Neyaz Mehndi, who is the IO of this case. PW4 is HC Satbir Singh, who is the complainant of the present case. Vide order dated 20/03/08 P/E was closed by Ld. APP for state.

4. Today i.e on 26/03/08 statement of accused was recorded U/s 281/313 Cr.PC wherein he denied the prosecution version in toto. However, accused did not intended to lead defence evidence.

5. I have heard Ld. APP for state and accused and have gone through the case file very carefully.

6. Ld. APP for state submits that in the present case accused is liable to be convicted for the offence U/s 25 of Arms Act on the basis of depositions made by various prosecution witnesses. On the other hand, accused submits that he was present at his house and police officials taken him to the P/S where case property was planted upon him and he has been falsely implicated in this case.

He further submits that he is totally innocent. With these submissions, acquittal of the accused has been prayed for.

7. I have given a considered thought to the rival submissions made by Ld. APP for state and accused keeping in view the material available on the judicial file.

8. It is a settled proposition of criminal law that prosecution is supposed to prove its case on judicial file beyond reasonable doubts by leading reliable, cogent and convincing evidence. Further it is a settled proposition of criminal law that in order to prove its case on judicial file, prosecution is supposed to stand on its on legs and it cannot derive any benefit whatsoever from the weaknesses, if any, in the defence of the accused. Further it is a settled proposition of criminal law that burden of proof of the version of the prosecution in a criminal trial throughout the trial is on the prosecution and it never shifts to the accused. Also it is a settled proposition of criminal law that accused is entitled to the benefit of every reasonable doubt in the prosecution story and such doubt entitles the . . . . . Contd. 24/-

::-24-::

accused to acquittal.

9. In my considered opinion as a cumulative effect of the following reasons, accused is entitled to be acquitted for the charge against him by reasons of reasonable doubts in the prosecution story:-

(a) Chapter 22 Rule 49 of Punjab Police Rules, 1934, provides as under:-

''22.49 Matters to be entered in Register No. II - The following matters shall, amongst others, be entered :-

(c) The hour of arrival and departure on duty at or from a police station of all enrolled police officers of whatever rank, whether posted at the police station or elsewhere, with a statement of the nature of their duty. This entry shall be made immediately on arrival or prior to the departure of the officer concerned and shall be attested by the latter personally by signature or seal.

Note :- The term Police Station will include all places such as Police Lines and Police Posts where Register No. II is maintained.

In the present case, the above said provision appears to have not been complied with by prosecution. The DD entry vide which HC Satbir alongwith Ct Khalid had left the P/S for patrolling near Janta Flat, Anjuman Masjid has not been produced on judicial record. Even the number of the said DD entries made in Register No. II has not been brought on judicial record. In my opinion, at least in the facts and circumstances of the case, prosecution was under an obligation to prove on record, the above said DD entries vide which HC Satbir alongwith Ct Khalid and ASI Neyaz Ahmed had left P/S for patrolling duty so as to prove the possibility of all the police officials available at the same place i.e the place of apprehension of the accused. In this case immediately after the apprehension of the accused by HC Satbir alongwith Ct Khalid, ASI Neyaz Ahmed also happened to reach at the spot of the incident. At this juncture, it would be relevant to refer to a case law reported as Rattan Lal V/s State, 1987 (2) Crimes 29 the Hon'ble Delhi High Court wherein it has been observed that if the investigating agency deliberately ignores to comply with the provisions of the Act the courts will have to approach their action with reservations. The matter has to be viewed with suspicion if the provisions of law are not strictly complied with and the least that can be said is that it is so done with an oblique motive. This failure to bring on record, the DD entries creates a reasonable doubt in the prosecution version and attributes oblique motive on the part of the prosecution.

. . . . . Contd. 25/-

::-25-::

(b) Perusal of the ruqqa, depositions of PW2 Ct Mohd. Khalid, PW3 ASI Neyaz Mehndi and PW4 HC Satbir reveal that no sincere efforts were made by police officials to join independent public witnesses in the police proceedings whereas the time and place of apprehension of the accused indicates that independent public witnesses must be available at the place of the apprehension of the accused. Moreover PW4 HC Satbir deposed in his cross-

examination to the effect that the public persons were passing through the spot. Above failure on the part of the prosecution in my opinion creates reasonable doubt in the prosecution story in view of the case law discussed hereinbelow, and the accused cannot be convicted for the offence U/s 25 of Arms Act.

In case law reported as Pawan Kumar V/s The Delhi Administration, 1987 C.C. Cases 585 (HC), the Hon'ble Delhi High Court observed as under:-

6. ................................................................... Admittedly, '' there is no impediment in believing the version of the Police officials but for that the procedure has to lay a good foundation. At least one of them should have deposed that they tried to contact the public witnesses of that they refused to join the investigation. Here is a case where no effort was made to join any public witnesses even though number of them were present. No plausible explanation from the side of the prosecution is forthcoming for not-joining the independent witnesses in a 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 circumstances throwing doubt on the arrest or the recovery of the knife from the person of the accused''.

In Sans Pal Singh Vs. State of Delhi 1999, CRI.L.J.19, Hon'ble Supreme Court of India has observed as under:-

''3. Inter alia, it has been urged by learned counsel for the appellant that it would not be safe to maintain the conviction because the recovery of the illicit arms did not inspire confidence, supported as it is, by the evidence of two police officials alone, unassociated by the testimony of any independent witnesses. It has also been urged that witnesses of the public were available and neither were they associated nor was any explanation given at the trial as to why they were not associated. From the evidence of PW-5 Head . . . . . Contd. 26/-

::-26-::

Constable, Sat Pal Singh, it is clear that the police party did not ask public witness to be witness at the time of search of the accused. Likewise P.W.6 Sub Inspector, Mahipal Singh has also stated that no public witness was joined at the time when the recovery was being effected. It is thus evident that public witnesses were available and could have been associated to witness the recovery. It would have been a different mater altogether had there been no public witness available or none was willing to associate. Here, as said before, public witnesses were available but no explanation on these lines is forthcoming. Thus, we got to the view that it would be unsafe to maintain the conviction of the appellant for the offences charged. We, therefore, order his acquittal''.

In case law reported as Pardeep Narayan Madgonkar etc, etc., Vs. State of Maharashtra, AIR 1995, Supreme Court 1930, Hon'ble Supreme Court of India has observed that failure of police to join any independent witnesses of locality creates doubt about fairness of investigation. Accused would be entitled to benefit of doubt.

(c) As per the depositions of PW4 HC Satbir and PW2 Ct Mohd Khalid no efforts whatsoever was made by the police party to ensure that search of the accused is witnessed by some independent public person. Also PW4 HC Satbir and PW2 Ct Mohd Khalid had not offered their own search before getting the search of the accused. At this juncture it would be relevant to refer to a case law of Hon'ble Orissa High Court reported as Rabindernath Prusty V/s State of Orissa, wherein it was held as under:-

10. 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 in that the searching Officer and others assisting him should give their personal search to the accused before searching the person of the accused. (See AIR 1969 SC 53 : (1969 Cri. L.J 279), State of Bihar V/s Kapil Singh). 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's person was searched. Besides the above, it is in the evidence of PWs 2 and 5 that the accused wanted to know the reason for which his person 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''.

Being guided by above said case law, it can be said that search of the . . . . . Contd. 27/-

::-27-::

accused by PW4 HC Satbir was in complete violation of the above said case law and the same can be said to be illegal.

(d) As per the depositions made by PW3 IO ASI Neyaz Mehndi Ahmed, the seal after use on the pulanda containing the knife allegedly recovered from the accused was given to none else but to Ct Mohd. Khalid, who is a material prosecution witness, being a witnesses to the alleged recovery of the knife from the possession of the accused. Such a material witness of a case is always interested in the success of the case of the prosecution and keeping in view of this factum chances of fabrication of case property cannot be ruled out beyond doubts. Further it is equally pertinent to note that the entire judicial file as well as police file is silent as to when the seal was given back by Ct Mohd. Khalid to IO.

As such accused is hereby acquitted of the charge against him. Bail bonds of accused stands discharged. File be consigned to Record Room.

ANNOUNCED IN THE OPEN COURT TODAY i.e on 26/03/2008 (ANAND SWAROOP AGGARWAL) METROPOLITAN MAGISTRATE KARKARDOOMA COURTS, DELHI . . . . . Contd. 28/-

::-28-::

IN THE COURT OF ANAND SWAROOP AGGARWAL : METROPOLITAN MAGISTRATE : KARKARDOOMA COURTS, DELHI State V/s Alam FIR No. 136/02 U/s 25 of Arms Act PS : Khajuri Khas, Delhi

a) The Sl. No. of the case : 121/2

b) Date of the commission of offence : 26/07/02

c) Name of the complainant : Ct Sudhir Kumar No. 1421/NE

d) Name of the accused person and his : Alam S/o Sh. Shahid, R/o 151, parentage and residence Gali No. 6, Chand Bagh, Delhi

e) Offence complained of or proved : U/s 25 of Arms Act

f) Plea of the accused : Accused plead not guilty.

g)   Final order                              :    Acquitted


1.   Date of institution of case              :    02/09/02


2.   Date of hearing/conclusion   of :             24/03/08
     arguments & fixing the case for
     orders


3.   Judgment delivered on                    :    24/03/08




i)         BRIEF STATEMENTS OF REASONS FOR DECISION

In brief, case of the prosecution against the accused is that on 26/07/02 at about 9:20 p.m at Patri R.T.G Gate, Khajoori Khas, Delhi, within the area of PS : Khajuri Khas, Delhi accused was found in possession of one button actuated knife Ex. P1 in violation of a notification issued by the Delhi Administration. On the basis of statement of Ct Sudhir Kumar and pursuant to ruqqa sent by SI Virender Singh, a formal FIR Ex. PW1/A was registered for the . . . . . Contd. 29/-

::-29-::

offence U/s 25 of Arms Act. The case was investigated into. The investigation ended in the filing of the charge-sheet U/s 173 CrPC charging the accused with the commission of the offence punishable U/s 25 of Arms Act.

2. Vide order dated 20/01/03 accused was charged for the offence punishable U/s 25 of Arms Act to which he did not plead guilty and claimed trial.

3. To substantiate its case on judicial file, prosecution has examined as many as three witnesses. PW1 is SI Ram Manohar, who was posted at PS :

Khajuri Khas, Delhi as D/O and recorded FIR in this case Ex. PW1/A. PW2 is Ct Sudhir Kumar who is the complainant of the present case. PW3 is Ct Khurshid Ahmed who is a recovery witness. Vide order even date P/E was closed despite the request of Ld. APP for state for one more opportunity.

4. Today i.e on 23/03/08 PW2 Ct Sudhir Kumar has been recalled for his cross-examination and he has been discharged after completion of his cross-

examination. PW3 Ct Khurshid Ahmed has also been examined and discharged. Statement of accused was recorded U/s 281/313 Cr.PC wherein he denied the prosecution version in toto. However, accused did not intended to lead defence evidence.

5. I have heard Ld. APP for state and accused and have gone through the case file very carefully.

6. Ld. APP for state submits that in the present case accused is liable to be convicted for the offence U/s 25 of Arms Act on the basis of depositions made by various prosecution witnesses. On the other hand, accused submits that he has been falsely implicated in this case. He further submits that he is totally innocent. With these submissions, acquittal of the accused has been prayed for.

7. I have given a considered thought to the rival submissions made by Ld. APP for state and accused keeping in view the material available on the judicial file.

::-30-::

every reasonable doubt in the prosecution story and such doubt entitles the accused to acquittal.

9. In my considered opinion as a cumulative effect of the following reasons, accused is entitled to be acquitted for the charge against him by reasons of reasonable doubts in the prosecution story:-

(a) Chapter 22 Rule 49 of Punjab Police Rules, 1934, provides as under:-

''22.49 Matters to be entered in Register No. II - The following matters shall, amongst others, be entered :-

(c) The hour of arrival and departure on duty at or from a police station of all enrolled police officers of whatever rank, whether posted at the police station or elsewhere, with a statement of the nature of their duty. This entry shall be made immediately on arrival or prior to the departure of the officer concerned and shall be attested by the latter personally by signature or seal.

Note :- The term Police Station will include all places such as Police Lines and Police Posts where Register No. II is maintained.

As per the prosecution version at the time of the apprehension of the accused, PW2 Ct Sudhir Kumar and PW3 Ct Khurshid Ahmed was present at Sardanand Market, Tukmirpur. But the DD entry by which Ct Sudhir Kumar and PW3 Ct Khurshid Ahmed had left the PS has not been produced or proved on judicial record. In my opinion at least number of the DD entry must have been mentioned in the statement of Ct Sudhir Kumar so as to inspire confidence in the prosecution version regarding the possibility of Ct Sudhir Kumar and Ct Khurshid Ahmed being available at the place of apprehension of the accused. Also no explanation has come on record as to why the above said DD entry has not been produced/proved on judicial record. At this juncture, it would be relevant to refer to a case law reported as Rattan Lal V/s State, 1987 (2) Crimes 29 the Hon'ble Delhi High Court wherein it has been observed that if the investigating agency deliberately ignores to comply with the provisions of the Act the courts will have to approach their action with reservations. The matter has to be viewed with suspicion if the provisions of law are not strictly complied with and the least that can be said is that it is so done with an oblique motive. This failure to bring on record, the DD entries creates a reasonable doubt in the prosecution version and attributes oblique motive on the part of the prosecution.

. . . . . Contd. 31/-

::-31-::

(b) Perusal of the ruqqa, depositions of PW2 Ct Sudhir Kumar and PW3 Ct Khurshid Ahmed suggest that no efforts whatsoever was made by either PW2 Ct Sudhir Kumar or PW3 Ct Khurshid Ahmed to join public independent witnesses in the police proceedings whereas the time and place of apprehension of the accused suggest that independent public witnesses must be available at the place of the apprehension of the accused. Above failure on the part of the prosecution in my opinion creates reasonable doubt in the prosecution story in view of the case law discussed hereinbelow, and the accused cannot be convicted for the offence U/s 25 of Arms Act.

In case law reported as Pawan Kumar V/s The Delhi Administration, 1987 C.C. Cases 585 (HC), the Hon'ble Delhi High Court observed as under:-

6. ................................................................... Admittedly, '' there is no impediment in believing the version of the Police officials but for that the procedure has to lay a good foundation. At least one of them should have deposed that they tried to contact the public witnesses of that they refused to join the investigation. Here is a case where no effort was made to join any public witnesses even though number of them were present. No plausible explanation from the side of the prosecution is forthcoming for not-joining the independent witnesses in a 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 circumstances throwing doubt on the arrest or the recovery of the knife from the person of the accused''.

In Sans Pal Singh Vs. State of Delhi 1999, CRI.L.J.19, Hon'ble Supreme Court of India has observed as under:-

''3. Inter alia, it has been urged by learned counsel for the appellant that it would not be safe to maintain the conviction because the recovery of the illicit arms did not inspire confidence, supported as it is, by the evidence of two police officials alone, unassociated by the testimony of any independent witnesses. It has also been urged that witnesses of the public were available and neither were they associated nor was any explanation given at the trial as to why they were not associated. From the evidence of PW-5 Head Constable, Sat Pal Singh, it is clear that the police party did not ask public witness to be witness at the time of search of the accused. Likewise P.W.6 Sub Inspector, Mahipal Singh has also stated that no public witness was joined at the time when the recovery was being effected. It is thus evident that . . . . . Contd. 32/-

::-32-::

public witnesses were available and could have been associated to witness the recovery. It would have been a different mater altogether had there been no public witness available or none was willing to associate. Here, as said before, public witnesses were available but no explanation on these lines is forthcoming. Thus, we got to the view that it would be unsafe to maintain the conviction of the appellant for the offences charged. We, therefore, order his acquittal''.

In case law reported as Pardeep Narayan Madgonkar etc, etc., Vs. State of Maharashtra, AIR 1995, Supreme Court 1930, Hon'ble Supreme Court of India has observed that failure of police to join any independent witnesses of locality creates doubt about fairness of investigation. Accused would be entitled to benefit of doubt.

(c) As per the depositions of PW2 Ct Sudhir Kumar and PW3 Ct Khurshid Ahmed no efforts whatsoever was made by the police party to ensure that search of the accused is witnessed by some independent public person. Also PW2 Ct Sudhir Kumar and PW3 Ct Khurshid Ahmed had not offered their own search before getting the search of the accused. At this juncture it would be relevant to refer to a case law of Hon'ble Orissa High Court reported as Rabindernath Prusty V/s State of Orissa, wherein it was held as under:-

10. 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 in that the searching Officer and others assisting him should give their personal search to the accused before searching the person of the accused. (See AIR 1969 SC 53 : (1969 Cri.

Being guided by above said case law, it can be said that search of the accused by Ct Sudhir Kumar and Ct Khurshid Ahmed was in complete violation of the above said case law and the same can be said to be illegal.

(d) As per the depositions made by PW2 Ct Sudhir Kumar and PW3 Ct Khurshid Ahmed, the seal after use on the pulanda containing the knife . . . . . Contd. 33/-

::-33-::

allegedly recovered from the accused was given to none else but to Ct Sudhir Kumar, who is the complainant and star/material prosecution witness, being a witnesses to the alleged recovery of the knife from the possession of the accused. Such a material witness of a case is always interested in the success of the case of the prosecution and keeping in view of this factum chances of fabrication of case property cannot be ruled out beyond doubts. Further it is equally pertinent to note that the entire judicial file as well as police file is silent as to when the seal was given back by Ct Sudhir Kumar to IO.

As such accused is hereby acquitted of the charge against him. He be set at liberty forthwith if not required in any other case. File be consigned to Record Room.

ANNOUNCED IN THE OPEN COURT TODAY i.e on 24/03/2008 (ANAND SWAROOP AGGARWAL) METROPOLITAN MAGISTRATE KARKARDOOMA COURTS, DELHI . . . . . Contd. 34/-

::-34-::

IN THE COURT OF ANAND SWAROOP AGGARWAL : METROPOLITAN MAGISTRATE : KARKARDOOMA COURTS, DELHI Sent on net on 24/03/08 State V/s Ikramuddin FIR No. 267/03 U/s 25 of Arms Act PS : Dilshad Garden, Delhi

a) The Sl. No. of the case : 378/3

b) Date of the commission of offence : 12/11/03

c) Name of the complainant : Ct Soran Singh No. 975/NE

d) Name of the accused person and his : Ikramuddin @ Ummed S/o Qasim parentage and residence Mistri, R/o House No. O-553, Sunder Nagri, Delhi

e) Offence complained of or proved : U/s 25 of Arms Act

f) Plea of the accused : Accused plead not guilty.

g)   Final order                             :    Acquitted


1.   Date of institution of case             :    22/11/03


2.   Date of hearing/conclusion   of :            20/03/08
     arguments & fixing the case for
     orders


3.   Judgment delivered on                   :    20/03/08




i)         BRIEF STATEMENTS OF REASONS FOR DECISION

In brief, case of the prosecution against the accused is that on 12/11/03 at about 7:30 p.m at Main Road, C-Block, near Aggarwal Sweets, Dilshad Garden, Delhi, within the area of PS : Dilshad Garden, Delhi accused was found in possession of one button actuated knife Ex. P1 in violation of a notification issued by the Delhi Administration. On the basis of statement of Ct Soran Singh and pursuant to ruqqa sent by HC Vijay Om a formal FIR . . . . . Contd. 35/-

::-35-::

Ex. PW1/B was registered for the offence U/s 25 of Arms Act. The case was investigated into. The investigation ended in the filing of the charge-sheet U/s 173 CrPC charging the accused with the commission of the offence punishable U/s 25 of Arms Act.

2. Vide order dated 15/02/05 accused was charged for the offence punishable U/s 25 of Arms Act to which he did not plead guilty and claimed trial.

3. To substantiate its case on judicial file, prosecution has examined as many as three witnesses. PW1 is ASI Mani Oraon, who was posted as D/O at PS :

Dilshad Garden, Delhi and recorded FIR in this case Ex. PW1/A. PW2 is HC Vijay Om, who is the IO of this case. PW3 is Ct Soran Singh, who is the complainant of this case. Vide order dated 11/03/08 P/E was closed by Ld. APP for state.

4. Today i.e on 20/03/08 statement of accused was recorded U/s 281/313 Cr.PC wherein he denied the prosecution version in toto. However, accused did not intended to lead defence evidence.

5. I have heard Ld. APP for state and accused and have gone through the case file very carefully.

6. Ld. APP for state submits that in the present case accused is liable to be convicted for the offence U/s 25 of Arms Act on the basis of depositions made by various prosecution witnesses. On the other hand, accused submits that he has been falsely implicated in this case. He further submits that he is totally innocent. With these submissions, acquittal of the accused has been prayed for.

7. I have given a considered thought to the rival submissions made by Ld. APP for state and accused keeping in view the material available on the judicial file.

8. It is a settled proposition of criminal law that prosecution is supposed to prove its case on judicial file beyond reasonable doubts by leading reliable, cogent and convincing evidence. Further it is a settled proposition of criminal law that in order to prove its case on judicial file, prosecution is supposed to stand on its on legs and it cannot derive any benefit whatsoever from the weaknesses, if any, in the defence of the accused. Further it is a settled proposition of criminal law that burden of proof of the version of the prosecution in a criminal trial throughout the trial is on the prosecution and it never shifts to the accused. Also it is a settled proposition of criminal law that accused is entitled to the benefit of every reasonable doubt in the prosecution story and such doubt entitles the accused to acquittal.

9. In my considered opinion as a cumulative effect of the following . . . . . Contd. 36/-

::-36-::

reasons, accused is entitled to be acquitted for the charge against him by reasons of reasonable doubts in the prosecution story:-

(a) Chapter 22 Rule 49 of Punjab Police Rules, 1934, provides as under:

''22.49 Matters to be entered in Register No. II - The following matters shall, amongst others, be entered :-

(c) The hour of arrival and departure on duty at or from a police station of all enrolled police officers of whatever rank, whether posted at the police station or elsewhere, with a statement of the nature of their duty. This entry shall be made immediately on arrival or prior to the departure of the officer concerned and shall be attested by the latter personally by signature or seal.

Note :- The term Police Station will include all places such as Police Lines and Police Posts where Register No. II is maintained.

As per the prosecution version at the time of the apprehension of the accused, PW3 Ct Soran Singh was on area patrolling duty. But the DD entry by which Ct Soran had left the PS for patrolling has not been produced or proved on judicial record. In my opinion at least number of the DD entry must have been mentioned in the statement of Ct Soran Singh so as to inspire confidence in the prosecution version regarding the possibility of Ct Soran Singh being available at the place of apprehension of the accused. Also no explanation has come on record as to why the above said DD entry has not been produced/proved on judicial record. At this juncture, it would be relevant to refer to a case law reported as Rattan Lal V/s State, 1987 (2) Crimes 29 the Hon'ble Delhi High Court wherein it has been observed that if the investigating agency deliberately ignores to comply with the provisions of the Act the courts will have to approach their action with reservations. The matter has to be viewed with suspicion if the provisions of law are not strictly complied with and the least that can be said is that it is so done with an oblique motive. This failure to bring on record, the DD entries creates a reasonable doubt in the prosecution version and attributes oblique motive on the part of the prosecution. Further as per the prosecution version after the apprehension of the accused intimation was given to the PS by Ct Soran Singh regarding the apprehension of the accused through telephone. Neither the number of said telephone has been brought on record nor it has been brought on record as to whom the said telephone belongs. In my opinion to inspire confidence in the prosecution version the number of the . . . . . Contd. 37/-

::-37-::

telephone/other details thereof as to its situation and ownership must have been brought on record by the prosecution.

(b) Perusal of the ruqqa, depositions of PW2 HC Vijay Om and PW3 Ct Soran Singh suggest that no efforts whatever was made by either PW2 HC Vijay Om or PW3 Ct Soran Singh to join public independent witnesses in the police proceedings whereas the time of apprehension of the accused and site plan suggest that there independent public witnesses must be available at the place of the apprehension of the accused. Above failure on the part of the prosecution in my opinion creates reasonable doubt in the prosecution story in view of the case law discussed hereinbelow, and the accused cannot be convicted for the offence U/s 25 of Arms Act.

In case law reported as Pawan Kumar V/s The Delhi Administration, 1987 C.C. Cases 585 (HC), the Hon'ble Delhi High Court observed as under:-

6. ................................................................... Admittedly, '' there is no impediment in believing the version of the Police officials but for that the procedure has to lay a good foundation. At least one of them should have deposed that they tried to contact the public witnesses of that they refused to join the investigation. Here is a case where no effort was made to join any public witnesses even though number of them were present. No plausible explanation from the side of the prosecution is forthcoming for not-joining the independent witnesses in a 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 circumstances throwing doubt on the arrest or the recovery of the knife from the person of the accused''.

In Sans Pal Singh Vs. State of Delhi 1999, CRI.L.J.19, Hon'ble Supreme Court of India has observed as under:-

''3. Inter alia, it has been urged by learned counsel for the appellant that it would not be safe to maintain the conviction because the recovery of the illicit arms did not inspire confidence, supported as it is, by the evidence of two police officials alone, unassociated by the testimony of any independent witnesses. It has also been urged that witnesses of the public were available and neither were they associated nor was any explanation given at the trial as to why they were not associated. From the evidence of PW-5 Head Constable, Sat Pal Singh, it is clear that the police party did not ask public witness to be witness at the time of search of . . . . . Contd. 38/-

::-38-::

the accused. Likewise P.W.6 Sub Inspector, Mahipal Singh has also stated that no public witness was joined at the time when the recovery was being effected. It is thus evident that public witnesses were available and could have been associated to witness the recovery. It would have been a different mater altogether had there been no public witness available or none was willing to associate. Here, as said before, public witnesses were available but no explanation on these lines is forthcoming. Thus, we got to the view that it would be unsafe to maintain the conviction of the appellant for the offences charged. We, therefore, order his acquittal''.

In case law reported as Pardeep Narayan Madgonkar etc, etc., vs. State of Maharashtra, AIR 1995, Supreme Court 1930, Hon'ble Supreme Court of India has observed that failure of police to join any independent witnesses of locality creates doubt about fairness of investigation. Accused would be entitled to benefit of doubt.

(c) As per the depositions of PW2 HC Vijay Om and PW3 Ct Soran Singh no efforts whatsoever was made by the police party to ensure that search of the accused is witnessed by some independent public person. Also PW3 Ct Soran Singh had not offered his own search before getting the search of the accused. At this juncture it would be relevant to refer to a case law of Hon'ble Orissa High Court reported as Rabindernath Prusty V/s State of Orissa, wherein it was held as under:-

10. 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 in that the searching Officer and others assisting him should give their personal search to the accused before searching the person of the accused. (See AIR 1969 SC 53 : (1969 Cri.

Being guided by above said case law, it can be said that search of the accused by Ct Soran Singh was in complete violation of the above said case law and the same can be said to be illegal.

. . . . . Contd. 39/-

::-39-::

(d) As per the depositions made by PW2 IO HC Vijay Om, the seal after use on the pulanda containing the knife allegedly recovered from the accused was given to none else but to Ct Soran Singh, who is the complainant and star/material prosecution witness, being a witnesses to the alleged recovery of the knife from the possession of the accused. Such a material witness of a case is always interested in the success of the case of the prosecution and keeping in view of this factum chances of fabrication of case property cannot be ruled out beyond doubts. Further it is equally pertinent to note that the entire judicial file as well as police file is silent as to when the seal was given back by Ct Soran Singh to IO HC Vijay Om.

As such accused is hereby acquitted of the charge against him. His bail bonds stands discharged. File be consigned to Record Room.

ANNOUNCED IN THE OPEN COURT TODAY i.e on 20/03/2008 (ANAND SWAROOP AGGARWAL) METROPOLITAN MAGISTRATE KARKARDOOMA COURTS, DELHI . . . . . Contd. 40/-

::-40-::

IN THE COURT OF ANAND SWAROOP AGGARWAL : METROPOLITAN MAGISTRATE : KARKARDOOMA COURTS, DELHI Sent on net on 17/03/08 State V/s Santosh Sharma FIR No. 326/05 U/s 25 of Arms Act PS : Khajuri Khas, Delhi

a) The Sl. No. of the case : 194/3

b) Date of the commission of offence : 21/08/05

c) Name of the complainant : SI Rajesh Kumar

d) Name of the accused person and his : Santosh Sharma @ Chaturbhuj parentage and residence S/o Om Prakash, R/o C-154, Gali No. 7, Nehru Vihar, Delhi

e) Offence complained of or proved : U/s 25 of Arms Act

f) Plea of the accused : Accused plead not guilty.

g)   Final order                            :    Acquitted


1.   Date of institution of case            :    05/09/05


2.   Date of hearing/conclusion   of :           15/03/08
     arguments & fixing the case for
     orders


3.   Judgment delivered on                  :    15/03/08




i)         BRIEF STATEMENTS OF REASONS FOR DECISION

In brief, case of the prosecution against the accused is that on 21/08/05 at 4:50 p.m at Khajuri Chowk near Bus Stand towards Bhajanpura, Delhi, within the area of PS : Khajuri Khas, Delhi accused was found in possession of one button actuated knife Ex. P1 in violation of a notification mark 'A' issued by the Delhi Administration. On the basis of ruqqa sent by PW2 SI Rajesh Dogra a formal FIR Ex. PW1/A was registered for the offence U/s 25 of . . . . . Contd. 41/-

::-41-::

Arms Act. The case was investigated into. The investigation ended in the filing of the charge-sheet U/s 173 CrPC charging the accused with the commission of the offence punishable U/s 25 of Arms Act.

2. Vide order dated 06/09/06 accused has been charge-sheeted for the offence punishable U/s 25 of Arms Act to which he did not plead guilty and claimed trial.

3. To substantiate its case on judicial file, prosecution has examined as many as four witnesses. PW1 is HC Satish Kumar, who was posted as D/O at PS : Khajuri Khas, Delhi and recorded FIR of this case Ex. PW1/A. PW2 is SI Rajesh Dogra, who is the complainant of this case. PW3 is HC Khagnesh who is the IO of the case. PW4 is Ct Virender who is a recovery witness. Vide order dated 10/03/08 P/E was closed by Ld. APP for state.

4. Today i.e on 15/03/08 statement of accused was recorded U/s 281/313 Cr.PC wherein he denied the prosecution version in toto. However, accused did not intended to lead defence evidence.

5. I have heard Ld. APP for state and Ld. Counsel Sh. Rajesh Kumar, Adv for accused and have gone through the case file very carefully.

6. Ld. APP for state submits that in the present case accused is liable to be convicted for the offence U/s 25 of Arms Act on the basis of depositions made by various prosecution witnesses. On the other hand, Ld. Counsel for accused submits that accused has been falsely implicated in this case. He further submits that accused is totally innocent. With these submissions, acquittal of the accused has been prayed for.

7. I have given a considered thought to the rival submissions made by Ld. APP for state and Ld. Defence Counsel keeping in view the material available on the judicial file.

8. It is a settled proposition of criminal law that prosecution is supposed to prove its case on judicial file beyond reasonable doubts by leading reliable, cogent and convincing evidence. Further it is a settled proposition of criminal law that in order to prove its case on judicial file, prosecution is supposed to stand on its on legs and it cannot derive any benefit whatsoever from the weaknesses, if any, in the defence of the accused. Further it is a settled proposition of criminal law that burden of proof of the version of the prosecution in a criminal trial throughout the trial is on the prosecution and it never shits to the accused. Also it is a settled proposition of criminal law that accused is entitled to the benefit of every reasonable doubt in the prosecution story and such doubt entitles the . . . . . Contd. 42/-

::-42-::

accused to acquittal.

9. In my considered opinion as a cumulative effect of the following reasons, accused is entitled to be acquitted for the charge against him by reasons of reasonable doubts in the prosecution story:-

(a) In the present case as per prosecution story SI Rajesh Dogra after receiving the secret information had requested 4-5 public persons to join the investigation by telling the facts of the secret information but they did not join the investigation and went away from the spot without telling their names and addresses. Thereafter, at about 4:50 p.m, PW2 SI Rajesh Dogra had found accused coming from Bhajanpura side and secret informer had pointed towards the accused and consequently accused was apprehended and his formal search was conducted and from the right pocket of blue colour jeans pant of the accused one button actuated knife was recovered from the possession of the accused.

The above depositions suggest that before effecting the formal search of the accused neither PW2 SI Rajesh Dogra nor PW4 Ct Virender had offered their own search to the accused and that before effecting the search of the accused no attempt whatsoever was made by PW2 SI Rajesh Dogra or PW4 Ct Virender to ensure that search of the accused was them is witnessed by independent public witnesses, which were very much available at the time of the apprehension of the accused. At the same time is pertinent to mention that no efforts whatsoever were made by PW3 HC Khagnesh IO of the case to join independent public witnesses in the police proceedings. Above failure on the part of the prosecution in my opinion creates reasonable doubt in the prosecution story in view of the case law discussed hereinabelow, and the accused cannot be convicted for the offence U/s 25 of Arms Act.

In a case law of Hon'ble Orissa High Court reported as Rabindernath Prusty V/s State of Orissa, wherein it was held as under:-

10. 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 in that the searching Officer and others assisting him should give their personal search to the accused before searching the person of the accused. (See AIR 1969 SC 53 : (1969 Cri.

::-43-::

his person 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''.

In a case law reported as Anoop Joshi V/s State, 1992 (2) C.C. Cases 314 (HC), Hon'ble High Court of Delhi has observed as under:

18. It is repeatedly laid down by this Court that in such '' cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evident that no such sincere efforts have been made, particularly when we find that shops were open and one or two shop-keepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the shop-keepers had declined to join the raiding party, the police could have later on taken legal action against such shop-keepers because they could not have escaped the rigours of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC''.

In a case law reported as Roop Chand V/s The State of Haryana, 1999 (1) C.L.R 69, the Hon'ble Punjab & Haryana High Court held as under:-

3. I have heard the learned counsel for the parties and gone '' through the evidence with their help. The recovery of illicit liquor was effected from the possession of the petitioner during noon time and it is in the evidence of the prosecution witnesses that some witnesses from the public were available and they were asked to join the investigation. The explanation furnished by the prosecution is that the independent witnesses were asked to join the investigation but they refused to do do so on the ground that their joining will result into enmity between them and the petitioner''.

4. It is well settled principle of the law that the Investigating '' Agency should join independent witnesses at the time of recovery of contraband articles, if they are available and their failure to do so in such a situation casts a shadow of doubt on the prosecution case. In the present case also admittedly the independent witnesses were available at the time of recovery but they refused to associate themselves in the investigation.

::-44-::

action against such a person under the law. Had it been a fact that he witnesses from the public had refused to to join the investigation, the Investigating Officer must have proceeded against them under the relevant provisions of law. The failure to do so by the police officer is suggestive of the fact that the explanation for non-joining the witnesses from the public is an after thought and is not worthy of credence. All these facts taken together make the prosecution case highly doubtful''.

In case law reported as Sadhu Singh V/s State of Punjab, 1997 (3) Crimes 55 the Hon'ble Punjab & Haryana High Court observed as under:-

5. 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 improbable or lacks credibility the benefit of doubt necessarily has to go to the accused''.

6. In the present case, the State examined two witnesses '' namely, Harbans Singh ASI who appeared as PW1 and Kartar Singh. PW2. Both the witnesses supported the prosecution version in terms of the recovery of opium from the person of the petitioner, but there was no public witness who had joined. It is not necessary in such recoveries that public witnesses must be joined, but 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 a public witness or that they were not available. A stereo-type statement of non-availability will not be sufficient particularly when at the relevant time, it was not difficult to procure the service of public witness. This reflects adversely on the prosecution version''.

In case law reported as Pawan Kumar V/s The Delhi Administration, 1987 C.C. Cases 585 (HC), the Hon'ble Delhi High Court observed as under:-

6. ................................................................... Admittedly, '' there is no impediment in believing the version of the Police officials but for that the procedure has to lay a good foundation. At least one of them should have deposed that they tried to contact the public witnesses of that they refused to join the investigation. Here is a case where no effort was made to join any public witnesses even though number of them were present. No plausible explanation from the side of the prosecution is forthcoming for not-joining the independent witnesses in a 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 . . . . . Contd. 45/-

::-45-::

an earnest effort to join the independent witnesses. No attempt in this direction appears to have been made and this, by itself, is a circumstances throwing doubt on the arrest or the recovery of the knife from the person of the accused''.

In Sans Pal Singh Vs. State of Delhi 1999, CRI.L.J.19, Hon'ble Supreme Court of India has observed as under:-

''3. Inter alia, it has been urged by learned counsel for the appellant that it would not be safe to maintain the conviction because the recovery of the illicit arms did not inspire confidence, supported as it is, by the evidence of two police officials alone, unassociated by the testimony of any independent witnesses. It has also been urged that witnesses of the public were available and neither were they associated nor was any explanation given at the trial as to why they were not associated. From the evidence of PW-5 Head Constable, Sat Pal Singh, it is clear that the police party did not ask public witness to be witness at the time of search of the accused. Likewise P.W.6 Sub Inspector, Mahipal Singh has also stated that no public witness was joined at the time when the recovery was being effected. It is thus evident that public witnesses were available and could have been associated to witness the recovery. It would have been a different mater altogether had there been no public witness available or none was willing to associate. Here, as said before, public witnesses were available but no explanation on these lines is forthcoming. Thus, we got to the view that it would be unsafe to maintain the conviction of the appellant for the offences charged. We, therefore, order his acquittal''.

In case law reported as Pardeep Narayan Madgonkar etc, etc., vs. State of Maharashtra, AIR 1995, Supreme Court 1930, Hon'ble Supreme Court of India has observed that failure of police to join any independent witnesses of locality creates doubt about fairness of investigation. Accused would be entitled to benefit of doubt.

. . . . . Contd. 46/-

::-46-::

(b) In the present case complainant of the case is Rajesh Dogra and IO of the case is PW3 HC Khagnesh. In the present case all the material proceedings of the investigation namely preparing of the seizure memo of the knife Ex. PW2/B, sketch of the knife Ex. PW2/A were prepared by none-else but by the complainant himself. IO of the case namely PW3 HC Khagnesh merely prepared the site plan at the spot and arrested the accused and prepared his formal search memo. The factum that material part of the investigation has been conducted by the complainant himself, who is always interested in success of the case, creates a reasonable doubt in the prosecuting story. In this regard reliance has been placed on the judgment famously known as Megha Singh case.

As such accused is hereby acquitted of the charge against him. His bail bonds stands discharged. File be consigned to Record Room.

ANNOUNCED IN THE OPEN COURT TODAY i.e on 15/03/2008 (ANAND SWAROOP AGGARWAL) METROPOLITAN MAGISTRATE KARKARDOOMA COURTS, DELHI . . . . . Contd. 47/-

::-47-::

IN THE COURT OF ANAND SWAROOP AGGARWAL : METROPOLITAN MAGISTRATE : KARKARDOOMA COURTS, DELHI Sent on net on 18/03/08 State V/s Mohd. Yusuf FIR No. 136/02 U/s 25 of Arms Act PS : Dilshad Garden, Delhi

a) The Sl. No. of the case : 58/3

b) Date of the commission of offence : 10/06/02

c) Name of the complainant : Ct Gavender Singh No. 1215/NE

d) Name of the accused person and his : Mohd. Yusuf @ Tinku, S/o Mohd.

parentage and residence Saleem Khan, R/o 6/1, No. 6, Jug Jeevan Nagar, Delhi

e) Offence complained of or proved : U/s 25 of Arms Act

f) Plea of the accused : Accused plead not guilty.

g)   Final order                             :    Acquitted


1.   Date of institution of case             :    01/07/02


2.   Date of hearing/conclusion   of :            17/03/08
     arguments & fixing the case for
     orders


3.   Judgment delivered on                   :    17/03/08




i)         BRIEF STATEMENTS OF REASONS FOR DECISION

In brief, case of the prosecution against the accused is that on 10/06/02 at 8:10 p.m at Under Flyover, Gali No. 1, Friends Colony Nukkar, Delhi, within the area of PS : Dilshad Garden, Delhi accused was found in possession of one 'garidar' knife Ex. P1 in violation of a notification mark 'A' issued by the Delhi Administration. On the basis of ruqqa sent by HC Naresh Pal a formal FIR Ex. PW1/A was registered for the offence U/s 25 of Arms Act. The . . . . . Contd. 48/-

::-48-::

case was investigated into. The investigation ended in the filing of the charge- sheet U/s 173 CrPC charging the accused with the commission of the offence punishable U/s 25 of Arms Act.

2. Vide order dated 18/12/04 accused has been charge-sheeted for the offence punishable U/s 25 of Arms Act to which he did not plead guilty and claimed trial.

3. To substantiate its case on judicial file, prosecution has examined as many as three witnesses. PW1 is HC Keshav Dev, who was posted as D/O at PS :

Dilshad Garden, Delhi and recorded FIR of this case Ex. PW1/A. PW2 is HC Sukhpal who was posted as DD Writer and recorded DD No. 24B in this case Ex. PW2/A. PW3 is Ct Devender, who is a recovery witness. Vide order dated 17/03/08 P/E was closed by court order.

4. Today i.e on 17/03/08 statement of accused was recorded U/s 281/313 Cr.PC wherein he denied the prosecution version in toto. However, accused did not intended to lead defence evidence.

5. I have heard Ld. APP for state and accused in person and have gone through the case file very carefully.

6. Ld. APP for state submits that in the present case accused is liable to be convicted for the offence U/s 25 of Arms Act on the basis of depositions made by various prosecution witnesses. On the other hand accused submits that he has been falsely implicated in this case. He further submits that he is totally innocent. With these submissions, acquittal of the accused has been prayed for.

7. I have given a considered thought to the rival submissions made by Ld. APP for state and accused himself keeping in view the material available on the judicial file.

8. It is a settled proposition of criminal law that prosecution is supposed to prove its case on judicial file beyond reasonable doubts by leading reliable, cogent and convincing evidence. Further it is a settled proposition of criminal law that in order to prove its case on judicial file, prosecution is supposed to stand on its on legs and it cannot derive any benefit whatsoever from the weaknesses, if any, in the defence of the accused. Further it is a settled proposition of criminal law that burden of proof of the version of the prosecution in a criminal trial throughout the trial is on the prosecution and it never shits to the accused. Also it is a settled proposition of criminal law that accused is entitled to the benefit of every reasonable doubt in the prosecution story and such doubt entitles the accused to acquittal.

. . . . . Contd. 49/-

::-49-::

9. In my considered opinion as a cumulative effect of the following reasons, accused is entitled to be acquitted for the charge against him by reasons of reasonable doubts in the prosecution story:-

(a) Chapter 22 Rule 49 of Punjab Police Rules, 1934, provides as under:

''22.49 Matters to be entered in Register No. II - The following matters shall, amongst others, be entered :-

(c) The hour of arrival and departure on duty at or from a police station of all enrolled police officers of whatever rank, whether posted at the police station or elsewhere, with a statement of the nature of their duty. This entry shall be made immediately on arrival or prior to the departure of the officer concerned and shall be attested by the latter personally by signature or seal.

Note :- The term Police Station will include all places such as Police Lines and Police Posts where Register No. II is maintained.

(b) As per the prosecution version at the time of the apprehension of the accused, Ct Gavender and Ct Devender were on patrolling duty. Further as per the prosecution version Ct Gavender had by chance happened to meet Ct Devender while patrolling in the area of PS : Dilshad Garden, Delhi. But the DD entry by which Ct Gavender and Ct Devender had left the PS for patrolling has not been produced or proved on judicial record. In my opinion at least number of the DD entry must have been mentioned in the statement of Ct Devender so as to inspire confidence in the prosecution version regarding the possibility of Ct Gavender and Devender being available at the place of apprehension of the accused and meeting together by chance while patrolling. Also no explanation has come on record as to why the above said DD entry has not been produced/proved on judicial record. At this juncture, it would be relevant to refer to a case law reported as Rattan Lal V/s State, 1987 (2) Crimes 29 the Hon'ble Delhi High Court wherein it has been observed that if the investigating agency deliberately ignores to comply with the provisions of the Act the courts will have to approach their action with reservations. The matter has to be viewed with suspicion if the provisions of law are not strictly complied with and the least that can be said is that it is so done with an oblique motive. This failure to bring on record, the DD entries creates a reasonable doubt in the prosecution version and attributes oblique motive on the part of the prosecution. Further as per the prosecution version after the . . . . . Contd. 50/-

::-50-::

apprehension of the accused intimation was given to the PS regarding the apprehension of the accused through telephone. Neither the number of said telephone has been brought on record nor it has been brought on record as to to whom the said telephone belongs. The number of the telephone has not been mentioned even in DD No. 42B Ex. PW2/A. In my opinion to inspire confidence in the prosecution version the number of the telephone/other details thereof as to its situation and ownership must have been brought on record by the prosecution.

(c) Further as per the prosecution version HC Naresh Pal after reaching at the spot had requested 4-5 passersby to join the police investigation but all let the spot without telling their names and addresses after giving reasonable excuses. In my opinion, in the facts and circumstances of the case IO could very well have served the passersby with notices in writing requiring them to join the investigation or otherwise to face the legal consequences but he did not do so. In the facts and circumstance of the case there was no possibility of accused escaping the arrest or crime go undetected if such an attempt would have been made by HC Naresh Pal. Failure to make sincere efforts to join independent public witnesses in the police proceedings creates a reasonable doubt in the prosecution version. At this juncture it would be relevant to refer to certain case laws.

In a case law reported as Anoop Joshi V/s State, 1992 (2) C.C. Cases 314 (HC), Hon'ble High Court of Delhi has observed as under:

18. It is repeatedly laid down by this Court that in such '' cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evident that no such sincere efforts have been made, particularly when we find that shops were open and one or two shop-keepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the shop-keepers had declined to join the raiding party, the police could have later on taken legal action against such shop-keepers because they could not have escaped the rigours of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC''.

In a case law reported as Roop Chand V/s The State of Haryana, 1999 (1) C.L.R 69, the Hon'ble Punjab & Haryana High Court held as under:-

3. I have heard the learned counsel for the parties and gone '' . . . . . Contd. 51/-

::-51-::

through the evidence with their help. The recovery of illicit liquor was effected from the possession of the petitioner during noon time and it is in the evidence of the prosecution witnesses that some witnesses from the public were available and they were asked to join the investigation. The explanation furnished by the prosecution is that the independent witnesses were asked to join the investigation but they refused to do do so on the ground that their joining will result into enmity between them and the petitioner''.

4. It is well settled principle of the law that the Investigating '' Agency should join independent witnesses at the time of recovery of contraband articles, if they are available and their failure to do so in such a situation casts a shadow of doubt on the prosecution case. In the present case also admittedly the independent witnesses were available at the time of recovery but they refused to associate themselves in the investigation.

In case law reported as Sadhu Singh V/s State of Punjab, 1997 (3) Crimes 55 the Hon'ble Punjab & Haryana High Court observed as under:-

5. 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 improbable or lacks credibility the benefit of doubt necessarily has to go to the accused''.

6. In the present case, the State examined two witnesses '' namely, Harbans Singh ASI who appeared as PW1 and Kartar Singh. PW2. Both the witnesses supported the prosecution version in terms of the recovery of opium from the person of the petitioner, but there was no public witness who had joined. It is not necessary in such recoveries that public witnesses must be joined, but 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 . . . . . Contd. 52/-

::-52-::

been made to join a public witness or that they were not available. A stereo-type statement of non-availability will not be sufficient particularly when at the relevant time, it was not difficult to procure the service of public witness. This reflects adversely on the prosecution version''.

In case law reported as Pawan Kumar V/s The Delhi Administration, 1987 C.C. Cases 585 (HC), the Hon'ble Delhi High Court observed as under:-

6. ................................................................... Admittedly, '' there is no impediment in believing the version of the Police officials but for that the procedure has to lay a good foundation. At least one of them should have deposed that they tried to contact the public witnesses of that they refused to join the investigation. Here is a case where no effort was made to join any public witnesses even though number of them were present. No plausible explanation from the side of the prosecution is forthcoming for not-joining the independent witnesses in a 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 circumstances throwing doubt on the arrest or the recovery of the knife from the person of the accused''.

In Sans Pal Singh Vs. State of Delhi 1999, CRI.L.J.19, Hon'ble Supreme Court of India has observed as under:-

''3. Inter alia, it has been urged by learned counsel for the appellant that it would not be safe to maintain the conviction because the recovery of the illicit arms did not inspire confidence, supported as it is, by the evidence of two police officials alone, unassociated by the testimony of any independent witnesses. It has also been urged that witnesses of the public were available and neither were they associated nor was any explanation given at the trial as to why they were not associated. From the evidence of PW-5 Head Constable, Sat Pal Singh, it is clear that the police party did not ask public witness to be witness at the time of search of the accused. Likewise P.W.6 Sub Inspector, Mahipal Singh has also stated that no public witness was joined at the time when the recovery was being effected. It is thus evident that public witnesses were available and could have been associated to witness the recovery. It would have been a different mater altogether had there been no public witness available or none was willing to associate. Here, as said before, public witnesses were available but no explanation on these lines is forthcoming. Thus, we got to the view that it would be unsafe to maintain the conviction of the appellant for the offences charged. We, therefore, order his acquittal''.

. . . . . Contd. 53/-

::-53-::

In case law reported as Pardeep Narayan Madgonkar etc, etc., vs. State of Maharashtra, AIR 1995, Supreme Court 1930, Hon'ble Supreme Court of India has observed that failure of police to join any independent witnesses of locality creates doubt about fairness of investigation. Accused would be entitled to benefit of doubt.

(d) Further statement made by Ct Gavender Kumar as well as depositions made by PW3 Ct Devender go to suggest that before effecting search of the accused, none of Ct Gavender and Ct Devender had offered their own search to the accused. Also no efforts whatsoever were made by these PWs to ensure that search of the accused by them is witnessed by independent public witnesses despite the fact that accused was apprehended from a place which is thickly populated and there were shops in that area.

In a case law of Hon'ble Orissa High Court reported as Rabindernath Prusty V/s State of Orissa, wherein it was held as under:-

10. 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 in that the searching Officer and others assisting him should give their personal search to the accused before searching the person of the accused. (See AIR 1969 SC 53 : (1969 Cri. L.J 279), State of Bihar V/s Kapil Singh). 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's person was searched. Besides the above, it is in the evidence of PWs 2 and 5 that the accused wanted to know the reason for which his person 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''.

(e) As per the ruqqa seal after use on the pulanda containing the knife allegedly recovered from the accused was given to none else but to Ct Gavender, who is the complainant and star/material prosecution witness, being a witnesses to the alleged recovery of the knife from the possession of the accused. Such a material witness of a case is always interested in the success of the case of the prosecution and keeping in view of this factum chances of fabrication of case property cannot be ruled out beyond doubts. Further it is equally pertinent . . . . . Contd. 54/-

::-54-::

to note that the entire judicial file is silent as to when the seal was given back by Ct Gavender to IO.

As such accused is hereby acquitted of the charge against him. His bail bonds stands discharged. File be consigned to Record Room.

ANNOUNCED IN THE OPEN COURT TODAY i.e on 17/03/2008 (ANAND SWAROOP AGGARWAL) METROPOLITAN MAGISTRATE KARKARDOOMA COURTS, DELHI . . . . . Contd. 55/-

::-55-::

IN THE COURT OF ANAND SWAROOP AGGARWAL : METROPOLITAN MAGISTRATE : KARKARDOOMA COURTS, DELHI Sent on net on 25/02/08 State V/s Amit Solanki FIR No. 224/01 U/s 25 of Arms Act PS : Dilshad Garden, Delhi

a) The Sl. No. of the case : 48/2

b) Date of the commission of offence : 07/09/01

c) Name of the complainant : Ct Charan Singh No. 1323 N/E

d) Name of the accused person and his : Amit Solanki, S/o Sh. Rampal parentage and residence Singh, R/o D-5, Shanti Nagar, Delhi

e) Offence complained of or proved : U/s 25 of Arms Act

f) Plea of the accused : Accused plead not guilty.

g)   Final order                             :    Acquitted


1.   Date of institution of case             :    27/05/02


2.   Date of hearing/conclusion   of :            23/02/08
     arguments & fixing the case for
     orders


3.   Judgment delivered on                   :    23/02/08




i)         BRIEF STATEMENTS OF REASONS FOR DECISION

In brief, case of the prosecution against the accused is that on 07/09/01 at about 5:45 p.m under Shahadra Flyover near Railway Line, within the area of PS : Dilshad Garden, Delhi, accused was found in possession of one button actuated knife Ex. P1 in violation of a notification mark A issued by the Delhi Administration. On the basis of statement of Ct Charan Singh and . . . . . Contd. 56/-

::-56-::

pursuant to ruqqa sent by SI Kumar Santosh a formal FIR Ex. PW3/A was registered for the offence U/s 25 of Arms Act. The case was investigated into. The investigation ended in the filing of the charge-sheet U/s 173 CrPC charging the accused with the commission of the offence punishable U/s 25 of Arms Act.

2. Vide order dated 29/04/03 accused has been charge-sheeted for the offence punishable U/s 25 of Arms Act to which he did not plead guilty and claimed trial.

3. To substantiate its case on judicial file, prosecution has examined as many as four witnesses. PW1 is Ct Satish Kumar, who is a recovery witness. PW2 is also a recovery witness/complainant. PW3 HC Inderpal Singh, who was posted as D/O at PS : Dilshad Garden, Delhi and recorded formal FIR in this case. PW4 SI Kumar Santosh, who is the IO of this case. Vide order dated 20/02/08 P/E was closed by court order despite the request of Ld. APP for state for further opportunity for P/E.

4. Today i.e on 23/02/08 statement of accused was recorded U/s 281/313 Cr.PC wherein he denied the prosecution version in toto. However, accused did not intended to lead defence evidence.

5. I have heard Ld. APP for state and Ld. Counsel Sh. S.K. Gill for accused and have gone through the case file very carefully.

6. Ld. APP for state submits that in the present case accused is liable to be convicted for the offence U/s 25 of Arms Act on the basis of depositions made by various prosecution witnesses. On the other hand, Ld. Counsel for accused submits that accused has been falsely implicated in this case. He further submits that accused is a student and totally innocent. With these submissions, acquittal of the accused has been prayed for.

7. I have given a considered thought to the rival submissions made by Ld. APP for state and Ld. Defence Counsel keeping in view the material available on the judicial file.

8. It is a settled proposition of criminal law that prosecution is supposed to prove its case on judicial file beyond reasonable doubts by leading reliable, cogent and convincing evidence. Further it is a settled proposition of criminal law that in order to prove its case on judicial file, prosecution is supposed to stand on its on legs and it cannot derive any benefit whatsoever from the weaknesses, if any, in the defence of the accused. Further it is a settled proposition of criminal law that burden of proof of the version of the prosecution in a criminal trial throughout the trial is on the prosecution and it never shits to the accused. Also . . . . . Contd. 57/-

::-57-::

it is a settled proposition of criminal law that accused is entitled to the benefit of every reasonable doubt in the prosecution story and such doubt entitles the accused to acquittal.

9. Chapter 22 Rule 49 of Punjab Police Rules, 1934, provides as under:

''22.49 Matters to be entered in Register No. II - The following matters shall, amongst others, be entered :-

(c) The hour of arrival and departure on duty at or from a police station of all enrolled police officers of whatever rank, whether posted at the police station or elsewhere, with a statement of the nature of their duty. This entry shall be made immediately on arrival or prior to the departure of the officer concerned and shall be attested by the latter personally by signature or seal.

Note :- The term Police Station will include all places such as Police Lines and Police Posts where Register No. II is maintained.

10. As per the prosecution version at the time of the apprehension of the accused, complainant, Ct Charan Singh alongwith HC Balram was on patrolling duty on government motorcycle NO. DL-1SK-2264 was on patrolling duty and in the meantime he had met with Ct Satish and thereafter they started the checking of vehicles. But neither the copy of DD entry vide which Ct Charan Singh and HC Balram had left the PS for patrolling nor the number of the said DD entry has been brought on record by the prosecution. In my opinion at least number of the DD entry must have been mentioned in the ruqqa itself so as to inspire confidence in the prosecution version. Also no explanation has come on record as to why the above said DD entry has not been produced/proved on judicial record. At this juncture, it would be relevant to refer to a case law reported as Rattan Lal V/s State, 1987 (2) Crimes 29 the Hon'ble Delhi High Court wherein it has been observed that if the investigating agency deliberately ignores to comply with the provisions of the Act the courts will have to approach their action with reservations. The matter has to be viewed with suspicion if the provisions of law are not strictly complied with and the least that can be said is that it is so done with an oblique motive. This failure to bring on record, the DD entry creates a reasonable doubt in the prosecution version and attributes oblique motive on the part of the prosecution.

11. As per the statement of Ct Charan Singh no efforts whatever was made by the police party to ensure that search of the accused is witnessed by some independent public person. Also PW2 HC Charan Singh had not offered his own . . . . . Contd. 58/-

::-58-::

search before getting the search of the accused. At this juncture it would be relevant to refer to a case law reported as under:-

In a case law of Hon'ble Orissa High Court reported as Rabindernath Prusty V/s State of Orissa, wherein it was held as under:-

10. 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 in that the searching Officer and others assisting him should give their personal search to the accused before searching the person of the accused. (See AIR 1969 SC 53 : (1969 Cri.

Being guided by above said case law, it can be said that search of the accused by Ct Charan Singh was in complete violation of the above said case law and the same can be said to be illegal.

12. As per the statement of Ct Charan Singh and ruqqa sent by SI Santosh Kumar no efforts whatsoever appears to have been made to join independent public persons in the police proceedings. However in the course of his cross- examination PW4 SI Santosh Kumar has deposed that he tried to join public persons but they did not join the investigation. Further he deposed that no notice was given to those persons as they did not stop at the spot. Further this witness has deposed that there were houses near the spot and no notice was given to nearby residents regarding the proceedings. By making these depositions in his cross-examination, PW4 SI Kumar Santosh had made improvement over the version of the prosecution amounting to contradiction. In my opinion, in the facts and circumstances of the case IO could very well have served the passersby with notices in writing requiring them to join the investigation or otherwise to face the legal consequences but he did not do so. In the facts and circumstance of the case there was no possibility of accused escaping the arrest or crime go undetected if such an attempt would have been made by SI Kumar Santosh.

. . . . . Contd. 59/-

::-59-::

Failure to make sincere efforts to join independent public witnesses in the police proceedings creates a reasonable doubt in the prosecution version. At this juncture it would be relevant to refer to certain case laws.

In case law reported as Pawan Kumar V/s The Delhi Administration, 1987 C.C. Cases 585 (HC), the Hon'ble Delhi High Court observed as under:-

6. ................................................................... Admittedly, '' there is no impediment in believing the version of the Police officials but for that the procedure has to lay a good foundation. At least one of them should have deposed that they tried to contact the public witnesses of that they refused to join the investigation. Here is a case where no effort was made to join any public witnesses even though number of them were present. No plausible explanation from the side of the prosecution is forthcoming for not-joining the independent witnesses in a 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 circumstances throwing doubt on the arrest or the recovery of the knife from the person of the accused''.

In Sans Pal Singh Vs. State of Delhi 1999, CRI.L.J.19, Hon'ble Supreme Court of India has observed as under:-

''3. Inter alia, it has been urged by learned counsel for the appellant that it would not be safe to maintain the conviction because the recovery of the illicit arms did not inspire confidence, supported as it is, by the evidence of two police officials alone, unassociated by the testimony of any independent witnesses. It has also been urged that witnesses of the public were available and neither were they associated nor was any explanation given at the trial as to why they were not associated. From the evidence of PW-5 Head Constable, Sat Pal Singh, it is clear that the police party did not ask public witness to be witness at the time of search of the accused. Likewise P.W.6 Sub Inspector, Mahipal Singh has also stated that no public witness was joined at the time when the recovery was being effected. It is thus evident that public witnesses were available and could have been associated to witness the recovery. It would have been a different mater altogether had there been no public witness available or none was willing to associate. Here, as said before, public witnesses were available but no explanation on these lines is forthcoming. Thus, we got to the view that it would be unsafe to maintain the conviction of the appellant for the offences charged. We, therefore, order his acquittal''.

In case law reported as Pardeep Narayan Madgonkar etc, V/s . . . . . Contd. 60/-

::-60-::

State of Maharashtra, AIR 1995, Supreme Court 1930, Hon'ble Supreme Court of India has observed that failure of police to join any independent witnesses of locality creates doubt about fairness of investigation. Accused would be entitled to benefit of doubt.

As such it could be said that SI Kumar Santosh did not make sincere efforts to join public witnesses in the investigation of the present case and this failure on the part of the SI Kumar Santosh in view of the above said case laws creates a very serious doubt in the prosecution version.

13. In the present case when the case property was produced in the court in the course of examination of PW2 HC Charan Singh the complainant, seal on pulanda was not visible. Also this witness has not in his examination-in-chief disclosed about the description of the knife in question. He gives details about the knife only cross-examination by the Ld. APP fro state while leading questions were put to him. As such it can be said that identification of the case property has not been proved on judicial record beyond reasonable doubt.

As such accused is hereby acquitted of the charge against him. His bail bonds stands discharged. File be consigned to Record Room.

ANNOUNCED IN THE OPEN COURT TODAY i.e on 23/02/2008 (ANAND SWAROOP AGGARWAL) METROPOLITAN MAGISTRATE KARKARDOOMA COURTS, DELHI . . . . . Contd. 61/-

::-61-::

IN THE COURT OF ANAND SWAROOP AGGARWAL : METROPOLITAN MAGISTRATE : KARKARDOOMA COURTS, DELHI State V/s Dharmender @ Chottu FIR No. 35/06 U/s 25 of Arms Act PS : Dilshad Garden, Delhi

a) The Sl. No. of the case : 60/3

b) Date of the commission of offence : 09/02/06

c) Name of the complainant : Ct Raj Kumar No. 1570/NE

d) Name of the accused person and his : Dharmender @ Chottu, S/o Lal parentage and residence Bihari, R/o H. No. E-4/450, Nand Nagri, Delhi

e) Offence complained of or proved : U/s 25 of Arms Act

f) Plea of the accused : Accused plead not guilty.

g)   Final order                            :    Acquitted


1.   Date of institution of case            :    23/02/06


2.   Date of hearing/conclusion   of :           22/02/08
     arguments & fixing the case for
     orders


3.   Judgment delivered on                  :    22/02/08




i)         BRIEF STATEMENTS OF REASONS FOR DECISION

In brief, case of the prosecution against the accused is that on 09/02/06 at about 7:50 p.m at Ambedkar Park, Janta Flats, GTB Enclave, Delhi, within the area of PS : Dilshad Garden, Delhi, accused was found in possession of one button actuated knife in violation of a notification mark X issued by the Delhi Administration. On the basis of statement of Ct Raj Kumar and pursuant to ruqqa sent by SI Kiran Pal, a formal FIR Ex. PW1/A was registered for the offence . . . . . Contd. 62/-

::-62-::

U/s 25 of Arms Act. The case was investigated into. The investigation ended in the filing of the charge-sheet U/s 173 CrPC charging the accused with the commission of the offence punishable U/s 25 of Arms Act.

2. Vide order dated 23/11/07 accused has been charge-sheeted for the offence punishable U/s 25 of Arms Act to which he did not plead guilty and claimed trial.

3. To substantiate its case on judicial file, prosecution has examined as many as three witnesses. PW1 ASI Kanhaiya Lal, who was D/O at PS : Dilshad Garden, Delhi and recorded formal FIR Ex. PW1/A. PW2 is SI Kiran Pal who is the IO of this case. PW3 is Ct Raj Kumar, who is the recovery witness/complainant. Vide order even date P/E was closed by Ld. APP for state inasmuch as all the material witnesses stand examined.

4. On 22/02/08 statement of accused was recorded U/s 281/313 Cr.PC wherein he denied the prosecution version in toto. However, accused did not intended to lead defence evidence.

5. I have heard Ld. APP for state and Ld. Counsel for accused and have gone through the case file very carefully. Ld. APP for state submits that in the present case accused is liable to be convicted for the offence U/s 25 of Arms Act on the basis of depositions made by various prosecution witnesses. On the other hand, Ld. Counsel for accused submits that accused has been falsely implicated in this case. He further submits that accused is innocent. With these submissions, acquittal of the accused has been prayed for.

6. I have given a considered thought to the rival submissions made by Ld. APP for state and accused keeping in view the material available on the judicial file.

7. It is a settled proposition of criminal law that prosecution is supposed to prove its case on judicial file beyond reasonable doubts by leading reliable, cogent and convincing evidence. Further it is a settled proposition of criminal law that in order to prove its case on judicial file, prosecution is supposed to stand on its on legs and it cannot derive any benefit whatsoever from the weaknesses, if any, in the defence of the accused. Further it is a settled proposition of criminal law that burden of proof of the version of the prosecution in a criminal trial throughout the trial is on the prosecution and it never shits to the accused. Also it is a settled proposition of criminal law that accused is entitled to the benefit of every reasonable doubt in the prosecution story and such doubt entitles the accused to acquittal.

. . . . . Contd. 63/-

::-63-::

8. Chapter 22 Rule 49 of Punjab Police Rules, 1934, provides as under:

''22.49 Matters to be entered in Register No. II - The following matters shall, amongst others, be entered :-

(c) The hour of arrival and departure on duty at or from a police station of all enrolled police officers of whatever rank, whether posted at the police station or elsewhere, with a statement of the nature of their duty. This entry shall be made immediately on arrival or prior to the departure of the officer concerned and shall be attested by the latter personally by signature or seal.

Note :- The term Police Station will include all places such as Police Lines and Police Posts where Register No. II is maintained.

9. As per the prosecution version at the time of the apprehension of the accused, complainant, Ct Raj Kumar was on patrolling duty. But neither the copy of DD entry vide which he had left the PS for patrolling nor the number of the said DD entry has been brought on record by the prosecution. In my opinion at least number of the DD entry must have been mentioned in the ruqqa itself so as to inspire confidence in the prosecution version. Also no explanation has come on record as to why the above said DD entry has not been produced/proved on judicial record. At this juncture, it would be relevant to refer to a case law reported as Rattan Lal V/s State, 1987 (2) Crimes 29 the Hon'ble Delhi High Court wherein it has been observed that if the investigating agency deliberately ignores to comply with the provisions of the Act the courts will have to approach their action with reservations. The matter has to be viewed with suspicion if the provisions of law are not strictly complied with and the least that can be said is that it is so done with an oblique motive. This failure to bring on record, the DD entry creates a reasonable doubt in the prosecution version and attributes oblique motive on the part of the prosecution.

10. As per the ruqqa, IO SI Kiran Pal requested 4-5 public persons for joining police proceedings but they refused to join the same and left the spot without telling their names and addresses. Further as per depositions of PW2 SI Kiran Pal made in the court, he did not give any notice to public persons who refused to join the police proceedings. This failure on the part of the prosecution to make efforts to join independent witnesses in the police proceedings creates very serious doubts in the version of the prosecution case at least in the facts and circumstances of this case.

In this case by the time PW SI Kiran Pal had reached the spot, accused stood apprehended with button operated knife in his possession. Also time was . . . . . Contd. 64/-

::-64-::

routine night time of 8:10 p.m. In these circumstance, in my opinion, PW2 SI Kiran Pal must have served the passersby with notice in writing directing them to join the police proceedings else to face legal consequences inasmuch as had the said attempts been made by SI Kiran Pal there was no possibility of accused escaping his arrest or crime going undetected because by the said time accused stood already apprehended. But PW2 SI Kiran Pal did not opt to do so. At this juncture it would be relevant to refer to certain case laws.

In a case law reported as Anoop Joshi V/s State, 1992 (2) C.C. Cases 314 (HC), Hon'ble High Court of Delhi has observed as under:

18. It is repeatedly laid down by this Court that in such '' cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evident that no such sincere efforts have been made, particularly when we find that shops were open and one or two shop-keepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the shop-keepers had declined to join the raiding party, the police could have later on taken legal action against such shop-keepers because they could not have escaped the rigours of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC''.

In a case law reported as Roop Chand V/s The State of Haryana, 1999 (1) C.L.R 69, the Hon'ble Punjab & Haryana High Court held as under:-

3. I have heard the learned counsel for the parties and gone '' through the evidence with their help. The recovery of illicit liquor was effected from the possession of the petitioner during noon time and it is in the evidence of the prosecution witnesses that some witnesses from the public were available and they were asked to join the investigation. The explanation furnished by the prosecution is that the independent witnesses were asked to join the investigation but they refused to do do so on the ground that their joining will result into enmity between them and the petitioner''.

4. It is well settled principle of the law that the Investigating '' Agency should join independent witnesses at the time of recovery of contraband articles, if they are available and their failure to do so in such a situation casts a shadow of doubt on the prosecution case. In the present case also admittedly the independent witnesses were available at the time of recovery but they refused to associate themselves in the investigation.

This explanation does not inspire confidence because the police officials who are the only witnesses examined in the . . . . . Contd. 65/-

::-65-::

case have not given the names and addresses of the persons contacted to join. It is a very common excuse that the witnesses from the public refused to join the investigation. A police officer conducting investigation of a crime is entitled to ask anybody to join the investigation and on refusal by a person from the public the Investigating Officer can take action against such a person under the law. Had it been a fact that he witnesses from the public had refused to to join the investigation, the Investigating Officer must have proceeded against them under the relevant provisions of law. The failure to do so by the police officer is suggestive of the fact that the explanation for non-joining the witnesses from the public is an after thought and is not worthy of credence. All these facts taken together make the prosecution case highly doubtful''.

In case law reported as Sadhu Singh V/s State of Punjab, 1997 (3) Crimes 55 the Hon'ble Punjab & Haryana High Court observed as under:-

5. 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 improbable or lacks credibility the benefit of doubt necessarily has to go to the accused''.

6. In the present case, the State examined two witnesses '' namely, Harbans Singh ASI who appeared as PW1 and Kartar Singh. PW2. Both the witnesses supported the prosecution version in terms of the recovery of opium from the person of the petitioner, but there was no public witness who had joined. It is not necessary in such recoveries that public witnesses must be joined, but 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 a public witness or that they were not available. A stereo-type statement of non-availability will not be sufficient particularly when at the relevant time, it was not difficult to procure the service of public witness. This reflects adversely on the prosecution version''.

As such it could be said that SI Kiran Pal did not make sincere efforts to join public witnesses before starting initial investigation of the present case and this failure on the part of the SI Kiran Pal in view of the above said case laws creates a very serious doubt in the prosecution version.

. . . . . Contd. 66/-

::-66-::

11. In the present case, before effecting the search of the accused, no efforts whatsoever were made by Ct Raj Kumar to ensure that search of accused by him is witnessed by some independent public witness. At this juncture it would be relevant to refer to a case law reported as under:-

In a case law of Hon'ble Orissa High Court reported as Rabindernath Prusty V/s State of Orissa, wherein it was held as under:-

10. 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 in that the searching Officer and others assisting him should give their personal search to the accused before searching the person of the accused. (See AIR 1969 SC 53 : (1969 Cri.

Being guided by above said case law, it can be said that search of the accused by Ct Raj Kumar was in complete violation of the above said case law and the same can be said to be illegal.

12. In this case as per the version of the prosecution, accused was in possession of a button operated knife without any licence/permit for the same. Very surprisingly, no efforts whatsoever have been made by the prosecution to have clue about the source from where knife was arranged for by the accused. At least some efforts must have been made by the police to interrogate the accused and conduct requisite investigation to know as to from where accused arranged the button operated knife.

13. As per the depositions made by PW2 SI Kiran Pal, the seal after used on the pulanda containing the knife allegedly recovered from the accused was given to none else but to Ct Raj Kumar, who is the complainant and star/material prosecution witness, being a witnesses to the alleged recovery of the knife from the possession of the accused. Such a material witness of a case is always interested in the success of the case of the prosecution and keeping in view of . . . . . Contd. 67/-

::-67-::

this factum chances of fabrication of case property cannot be ruled out beyond doubts. Further is is equally pertinent to note that the entire judicial file as well as police file is silent as to when the seal was given back by Ct Raj Kumar to IO SI Kiran Pal.

14. In my opinion in view of the above mentioned discussion, it can be safely concluded that prosecution has failed to prove its case on judicial file beyond reasonable doubt. There do exist such doubts in the prosecution story. As such accused is hereby acquitted of the charge against him. He be set at liberty if not required in any other case. File be consigned to Record Room.

ANNOUNCED IN THE OPEN COURT TODAY i.e on 22/02/2008 (ANAND SWAROOP AGGARWAL) METROPOLITAN MAGISTRATE KARKARDOOMA COURTS, DELHI . . . . . Contd. 68/-

::-68-::

IN THE COURT OF ANAND SWAROOP AGGARWAL : METROPOLITAN MAGISTRATE : KARKARDOOMA COURTS, DELHI Sent on net on 21/02/08 State V/s Jai Kishan FIR No. 382/03 U/s 25/27/54/59 of Arms Act PS : Khajuri Khas, Delhi

a) The Sl. No. of the case : 390/3

b) Date of the commission of offence : 25/11/03

c) Name of the complainant : Ct Raghubir Singh No. 1754 NE

d) Name of the accused person and his : Jai Kishan @ Jaiki, S/o Puran Lal, parentage and residence R/o B-9/113, Dayalpur Extension, Delhi

e) Offence complained of or proved : U/s 25/27/54/59 of Arms Act

f) Plea of the accused : Accused plead not guilty.

g)   Final order                            :    Acquitted


1.   Date of institution of case            :    15/12/03


2.   Date of hearing/conclusion   of :           20/02/08
     arguments & fixing the case for
     orders


3.   Judgment delivered on                  :    20/02/08




i)         BRIEF STATEMENTS OF REASONS FOR DECISION

In brief, case of the prosecution against the accused is that on 25/11/03 at 9:00 p.m at Tiraha Sri Ram Colony, Pusta Road, accused was found in possession of one opened button actuated knife in violation of a notification mark X issued by the Delhi Administration. On the basis of statement of Ct Raghubir Singh and pursuant to ruqqa sent by SI Mahender Singh, a formal FIR Ex. PW2/A was registered for the offence U/s 25 of Arms Act. The case was investigated into. The investigation ended in the filing of the charge-sheet U/s 173 CrPC charging the accused with the commission of the offence punishable . . . . . Contd. 69/-

::-69-::

U/s 25/27/54/59 of Arms Act.

2. Vide order dated 06/01/04 accused has been charge-sheeted for the offence punishable U/s 25 of Arms Act to which he did not plead guilty and claimed trial.

3. To substantiate its case on judicial file, prosecution has examined as many as five witnesses were examined. PW1 Ct Raghubir, who is a recovery witness/complainant. PW2 is HC Om Parkash, who was D/O at PS : Khajuri Khas, Delhi and recorded formal FIR in this case. PW3 is Ct Arvind, who is also a recovery witness. PW4 is Ct Jai Parkash Singh, who had taken the accused from the lock-up of PS Bhajanpura tto District Line, Seelampur for the purpose of getting his finger prints and also to the GTB hospital for his medical examination.

PW5 is Rtd SI Mahender Singh, who is the IO of the case. Vide order even date P/E was closed by Ld. APP for state inasmuch as all the material witnesses stand examined.

4. On 20/02/08 statement of accused was recorded U/s 281/313 Cr.PC wherein he denied the prosecution version in toto. However, accused did not intended to lead defence evidence.

5. I have heard Ld. APP for state and Ld. Counsel for accused in and have gone through the case file very carefully. Ld. APP for state submits that in the present case accused is liable to be convicted for the offence U/s 25 of Arms Act on the basis of depositions made by various prosecution witnesses. On the other hand, Ld. Counsel for accused submits that accused has been falsely implicated in this case. He further submits that accused accused used to run a eggs 'rehdi' and when he refused to pay money to the police officials he has been taken to the PS where alleged knife was planted upon him and accused has been falsely implicated in this case. With these submissions, accused has prayed for his acquittal.

6. I have given a considered thought to the rival submissions made by Ld. APP for state and accused keeping in view the material available on the judicial file.

::-70-::

law that burden of proof of the version of the prosecution in a criminal trial throughout the trial is on the prosecution and it never shits to the accused. Also it is a settled proposition of criminal law that accused is entitled to the benefit of every reasonable doubt in the prosecution story and such doubt entitles the accused to acquittal.

8. Chapter 22 Rule 49 of Punjab Police Rules, 1934, provides as under:

''22.49 Matters to be entered in Register No. II - The following matters shall, amongst others, be entered :-

(c) The hour of arrival and departure on duty at or from a police station of all enrolled police officers of whatever rank, whether posted at the police station or elsewhere, with a statement of the nature of their duty. This entry shall be made immediately on arrival or prior to the departure of the officer concerned and shall be attested by the latter personally by signature or seal.

Note :- The term Police Station will include all places such as Police Lines and Police Posts where Register No. II is maintained.

9. As per the prosecution version at the time of the apprehension of the accused, police party comprising Ct Raghubir, Ct Arvind and IO SI Mahender Singh were on patrolling duty. But neither the copy of DD entry vide which said police party had left the PS for patrolling nor the number of the said DD entry has been brought on record by the prosecution. In my opinion at least number of the DD entry must have been mentioned in the ruqqa itself so as to inspire confidence in the prosecution version. Also no explanation has come on record as to why the above said DD entry has not been produced/proved on judicial record. At this juncture, it would be relevant to refer to a case law reported as Rattan Lal V/s State, 1987 (2) Crimes 29 the Hon'ble Delhi High Court wherein it has been observed that if the investigating agency deliberately ignores to comply with the provisions of the Act the courts will have to approach their action with reservations. The matter has to be viewed with suspicion if the provisions of law are not strictly complied with and the least that can be said is that it is so done with an oblique motive. This failure to bring on record, the DD entries creates a reasonable doubt in the prosecution version and attributes oblique motive on the part of the prosecution.

10. As per the ruqqa, in the present case no efforts whatsoever were made . . . . . Contd. 71/-

::-71-::

by SI Mahender Singh to join independent public witnesses in the police proceedings despite the availability of the such witnesses near the place of the apprehension of the accused inasmuch as per the deposition made by PW1 Ct Raghubir the spot is near the market and shopkeepers were also available in the market. This failure on the part of the prosecution to make efforts to join independent witnesses in the police proceedings creates very serious doubts in the version of the prosecution case. In his cross-examination PW1 Ct Raghubir has deposed that IO had requested some public persons but due to fear of the accused none of them has joined the investigation and also did not disclose their names. Above said depositions made by PW1 are not in consonance with the contents of the ruqqa or the depositions made by PW5 Rtd SI Mahender Singh. As per ruqqa/depositions made by PW5 SI Mahender Singh no efforts whatever was made to join independent public witnesses in the investigation. At this juncture, it would be pertinent to refer to some case laws.

In case law reported as Pawan Kumar V/s The Delhi Administration, 1987 C.C. Cases 585 (HC), the Hon'ble Delhi High Court observed as under:-

6. ................................................................... Admittedly, '' there is no impediment in believing the version of the Police officials but for that the procedure has to lay a good foundation. At least one of them should have deposed that they tried to contact the public witnesses of that they refused to join the investigation. Here is a case where no effort was made to join any public witnesses even though number of them were present. No plausible explanation from the side of the prosecution is forthcoming for not-joining the independent witnesses in a 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 circumstances throwing doubt on the arrest or the recovery of the knife from the person of the accused''.

In Sans Pal Singh Vs. State of Delhi 1999, CRI.L.J.19, Hon'ble Supreme Court of India has observed as under:-

''3. Inter alia, it has been urged by learned counsel for the appellant that it would not be safe to maintain the conviction because the recovery of the illicit arms did not inspire confidence, supported as it is, by the evidence of two police officials alone, unassociated by the testimony of any independent witnesses. It has also been urged that . . . . . Contd. 72/-

::-72-::

witnesses of the public were available and neither were they associated nor was any explanation given at the trial as to why they were not associated. From the evidence of PW-5 Head Constable, Sat Pal Singh, it is clear that the police party did not ask public witness to be witness at the time of search of the accused. Likewise P.W.6 Sub Inspector, Mahipal Singh has also stated that no public witness was joined at the time when the recovery was being effected. It is thus evident that public witnesses were available and could have been associated to witness the recovery. It would have been a different mater altogether had there been no public witness available or none was willing to associate. Here, as said before, public witnesses were available but no explanation on these lines is forthcoming. Thus, we got to the view that it would be unsafe to maintain the conviction of the appellant for the offences charged. We, therefore, order his acquittal''.

In case law reported as Pardeep Narayan Madgonkar etc, V/s State of Maharashtra, AIR 1995, Supreme Court 1930, Hon'ble Supreme Court of India has observed that failure of police to join any independent witnesses of locality creates doubt about fairness of investigation. Accused would be entitled to benefit of doubt.

In a case law reported as Anoop Joshi V/s State, 1992 (2) C.C. Cases 314 (HC), Hon'ble High Court of Delhi has observed as under:

18. It is repeatedly laid down by this Court that in such '' cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evident that no such sincere efforts have been made, particularly when we find that shops were open and one or two shop-keepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the shop-keepers had declined to join the raiding party, the police could have later on taken legal action against such shop-keepers because they could not have escaped the rigours of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC''.

Failure to make efforts by SI Mahender Singh to join independent witnesses is fatal to the prosecution story.

12. In this case as per the version of the prosecution, accused was in possession of a button operated knife without any licence/permit for the same.

. . . . . Contd. 73/-

::-73-::

Very surprisingly, no efforts whatsoever have been made by the prosecution to have clue about the source from where knife was arranged for by the accused. At least some efforts must have been made by the police to interrogate the accused and conduct requisite investigation to know as to from where accused arranged the button operated knife.

13. As per the depositions made by PW5 Rtd SI Mahender Singh, the seal after used on the pulanda containing the knife allegedly recovered from the accused was given to none else but to Ct Arvind, who is a material prosecution witness being a witnesses to the alleged recovery of the knife from the possession of the accused. Such a material witness of a case is always interested in the success of the case of the prosecution and keeping in view of this factum chances of fabrication of case property cannot be ruled out beyond doubts. Further is is equally pertinent to note that the entire judicial file as well as police file is silent as to when the seal was given back by Ct Arvind to IO SI Mahender Singh.

14. In my opinion in view of the above mentioned discussion, it can be safely concluded that prosecution has failed to prove its case on judicial file beyond reasonable doubt. There do exist such doubts in the prosecution story. As such accused is hereby acquitted of the charge against him. Bail bonds stand discharged. File be consigned to Record Room.

ANNOUNCED IN THE OPEN COURT TODAY i.e on 20/02/2008 (ANAND SWAROOP AGGARWAL) METROPOLITAN MAGISTRATE KARKARDOOMA COURTS, DELHI . . . . . Contd. 74/-

::-74-::

. . . . . Contd. /-

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