Delhi District Court
State vs . Ajay @ Mota on 10 November, 2014
IN THE COURT OF SH. ARVIND BANSAL
METROPOLITAN MAGISTRATE (SOUTH-EAST) - 05
SAKET COURTS, NEW DELHI
JUDGMENT
FIR No. 330/08 U/s 25 Arms Act & S. 174A IPC PS Sarita Vihar State vs. Ajay @ Mota A Sr. No. of the case 02403R0715952008 B Date of institution 02.07.2008 C Date of commission of offence 11.06.2008 D Name of the complainant Ct. Prakash Chand through State E Name of the accused & his Ajay @ Mota parentage and address S/o Sh. Rajender Prasad R/o A-1/322, J. J. Colony, Madanpur Khadar, New Delhi.
F Offence complained of U/s 25 Arms Act & S. 174A IPC G Plea of the accused Pleaded not guilty H Order Reserved on Not reserved. I Final order Accused acquitted u/s 25 Arms Act & Convicted u/s 174A IPC J Date of such order 10.11.2014
Brief statement of reasons for decision of the case:
1. The case of prosecution against the accused is that on 11.06.08 at about 8:10 pm at Jalebi Chowk, J. J. Colony, Madanpur Khadar, Sarita Vihar, New Delhi, accused was found in possession of a button actuated Knife without any license or permit, as per seizure memo in contravention of Delhi Administration Notification. FIR was got registered at PS Sarita Vihar on the complaint of Ct. Prakash Chand. During investigation, accused was arrested and sent to judicial custody. Finally, after completion of necessary formalities of investigation, charge sheet was filed in the Court against the accused for trial.
FIR No. 330/08, PS Sarita Vihar State vs. Ajay @ Mota. Page No. 1 of 8
2. The Court took cognizance of the offence on the charge sheet filed by the police. Copy of challan was supplied in compliance of Sec. 207 Cr.P.C.
After hearing the parties, a charge for the offence punishable u/s 25/54/59 Arms Act was framed against the accused to which he pleaded not guilty and claimed trial.
3. It is necessary to observe that the accused stopped appearing before the Court and the Court after necessary observations, ordered the issuance of process u/s 82 Cr.P.C against the accused.
The accused failed to appear before the Court despite publication of a declaration U/s 82 (1) Cr.P.C. and was thus, declared PROCLAIMED OFFENDER vide order dated 18.05.2012. The accused by his non appearance before the Court despite publication of a declaration u/s 82 Cr.P.C, committed an offence U/s 174 A IPC. Later, accused was produced before the Court in compliance of statutory requirements. Finally, after completing the necessary formalities of investigation, IO filed a supplementary charge sheet in the Court against the accused for the offence punishable u/s 174 A IPC.
Copy of supplementary challan was supplied to accused and after scrutiny of documents, accused was heard on charge. Prima facie case for the offence u/s 174A IPC having been made out, accused was charged for the same to which he plead not guilty and claim trial.
4. In support of its case u/s 25 Arms Act prosecution produced and examined following witnesses:
PW1 ASI Ajeet Singh (wrongly mentioned as PW2) testified that on 11.06.08, he was posted at PP Madanpur Khadar, PS Sarita Vihar as Head Constable. On that day, he received DD No. 31 at PP Madanpur Khadar and reached the spot i.e. Jalebi Chowk, J J Colony, Madanpur Khadar where Ct.
Prakash Chand and Ct. Ram Kamal met him. They produced one apprehended person whose name was revealed as Ajay @ Mota. Ct. Prakash also produced FIR No. 330/08, PS Sarita Vihar State vs. Ajay @ Mota. Page No. 2 of 8 one buttondar knife by stating that it was recovered from the accused. He opened the knife and prepared sketch memo Ex. PW1/A. Knife was measured. Knife was closed and put into white cloth pulanda and sealed with the seal of "AS". Same was seized vide seizure memo Ex. PW2/B. He recorded statement of Ct. Prakash Chand which is Ex. PW2/C. He prepared Rukka Ex. PW2/D and handed over to Ct. Ram Kamal for registration of FIR. After getting FIR registered, Ct Ram Kamal reached the spot along with copy of FIR and original Rukka and handed over both the documents to him. Site plan was prepared which is Ex. PW2/E. Accused was arrested and personally searched vide memos Ex. PW2/F & Ex. PW2/G respectively. Disclosure statement is Ex. PW2/H. He deposited case property in malkhana and collected Notification of DAD. He recorded the statement of witnesses and prepared charge sheet. He correctly identified the case property i.e buttondar knife as Ex. P-1.
The witness was duly cross examined by defence counsel.
PW2 (wrongly mentioned as PW3) ASI Kishore Kumar proved the present FIR as Ex. PW3/A and endorsement on Rukka made him as Ex. PW3/B. PW3 (wrongly mentioned as PW4) HC Ram Kamal testified that on 11.06.08, he alongwith Ct. Prakash Meena was on patrolling duty. At about 8 PM, while they were patrolling near Samosa Chowk, saw a person standing at Jalebi Chowk and he, on seeing them, turned back and started walking fast. On suspicion, they chased and apprehended him. They took cursory search and found one buttondar knife from right side pocket of his wearing pant. The information was sent to PS from where HC Ajeet Singh came at the spot. They handed over the custody of accused along with recovered knife. The accused revealed his name as Ajay @ Mota. IO requested 4-5 passersby to join in investigation but they all refused and left without disclosing their names and addresses on personal grounds. IO prepared sketch of knife which is already Ex. PW2/A. IO put the knife into a pulanda and sealed with the seal of 'AS'. IO FIR No. 330/08, PS Sarita Vihar State vs. Ajay @ Mota. Page No. 3 of 8 seized the recovered knife vide seizure memo Ex. PW2/B. Seal after use was handed over to him. IO prepared Rukka and handed over to him for registration of FIR. After registration of FIR, he came back to spot and handed over copy of FIR and original Rukka to IO. IO prepared site plan which is Ex. PW2/E at my instance. IO arrested and personally searched the accused vide memos Ex. PW2/F & Ex. PW2/G respectively. IO recorded his statement. Thereafter, he was set free by the IO.
The witness was duly cross examined by the defence counsel.
PW4 (wrongly mentioned as PW4) HC Abad Haider testified that on 24.08.2013, vide DD No. 68B, accused Ajay @ Mota (as he was declared Proclaimed Offender vide order dated 18.05.2012) was produced before Ld. Metropolitan Magistrate, Saket Courts, New Delhi on receipt of information by the police official of PS Pul Prahladpur. He prepared supplementary challan u/s 174A IPC against accused Ajay @ Mota and filed the same before the Court.
Vide separate statement recorded u/s 294 Cr.P.C r/w S. 313(1)(a) Cr.P.C, accused admitted the genuineness of DAD Notification dated 17.02.1979 as Ex. C1.
5. In his statement recorded u/s 313 Cr.P.C., accused denied all the incriminating evidence against him and pleaded false implication. However, he chose not to lead evidence in his defence.
Final arguments advanced by Ld. Sub. APP for State and accused heard. Record carefully perused.
Appreciation of Evidence:
6. The scrutiny of testimonies of police witnesses and Rukka Ex. PW2/D provides that accused was allegedly caught red handed with the alleged buttondar knife on 11.06.08 at about 8:10 pm at Jalebi Chowk, J. J. Colony, FIR No. 330/08, PS Sarita Vihar State vs. Ajay @ Mota. Page No. 4 of 8 Madanpur Khadar, New Delhi. PW1 & PW3 deposed in their examination that request was made to public persons to join investigation but they all refused and left without disclosing their names and addresses.
In such circumstances, Court is of the opinion that the public persons present at / around the place of incident could have been easily joined in the proceedings of the present matter. The IO had ample time to make those independent persons understand the nature of proceedings and their role as a witness. The IO, however, failed to act prudently and join those independent public persons as witness to the proceedings of the present matter.
It is required to be understood that the recovery, arrest and search before an independent witness imparts authenticity and creditworthiness to the proceedings carried out by the police authorities. It also strengthens the prosecution case against the accused. Moreover, it acts as a safeguard against the arbitrary conduct or high handedness, if any, of the police officials. The absence of such a safeguard in the form of a public witness is to seen with suspicion.
In the absence of any independent witness having been joined in the investigation, despite IO having sufficient time to make efforts for the same, false implication of the accused by the local police in the present case cannot be ruled out.
The aforesaid observation of the Court is fortified by following observations in case titled Roop Chand vs. State of Haryana, 1999 (1)C.L.R 69, by Hon'ble High Court of Punjab & Haryana:
"...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 FIR No. 330/08, PS Sarita Vihar State vs. Ajay @ Mota. Page No. 5 of 8 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..."
8. The aforesaid lapse on the part of police officials assumes significance on account of another grave contradiction apparent in sketch and seizure memo Ex.PW2/A and Ex. PW2/B respectively. Both the said documents bear FIR number. Careful scrutiny of both these documents also provide that FIR number has been written by the same person who prepared documents Ex. PW2/A and B. It is an admitted case of the prosecution that the said documents were prepared by IO before sending Constable Ram Kamal with Rukka for registration of FIR.
This also raises doubt about the recovery of the said knife from the present accused and strengthens the possibility of planting of the knife upon the accused.
9. The prosecution has failed to prove the presence of both the patrolling police officials at the spot by bringing on record any DD entry showing their departure from the police station. Such a deficiency which basically is nothing but the violation of Rule 22.49 Punjab Police Rules is adverse to the prosecution version. Such a contradiction raises clear doubts in the mind of Court regarding the manner of investigation conducted by IO. The contradictions being material in nature, the effect thereof on the case of prosecution is also fatal and cannot be overlooked.
10. The prosecution has not brought on record any document of handing over of seal of 'AS' by IO to HC Ram Kamal after using the same for sealing the case property. There is nothing on record to prove whether the said seal was ever deposited in the Malkhana of Police Station Sarita Vihar. In these circumstances, the possibility of tempering with case property cannot be ruled out. Even otherwise, the failure to prepare any such document for this purpose also leads to a missing link in the entire series of investigation raising doubt FIR No. 330/08, PS Sarita Vihar State vs. Ajay @ Mota. Page No. 6 of 8 over the reasonable and rational manner of investigation as claimed by prosecution.
11. These factors and infirmities, in the considered opinion of the Court, are sufficient enough to raise a doubt on the veracity of the entire prosecution case against the accused and extend the benefit of doubt to the accused. In view of the foregoing discussion, accused Ajay @ Mota is given benefit of doubt and is, accordingly, acquitted of the charged offence punishable u/s 25 Arms Act.
12. To establish the offence u/s 174A IPC beyond reasonable doubt, the prosecution is required to prove the following ingredients:-
(A) that a proclamation U/s 82 (1) Cr.P.C. was issued against the accused by the Court.
(B) that the accused failed to appear at the specified place and time as required by the proclamation.
13. The Court shall scrutinize the entire evidence on record to appreciate whether the prosecution has succeeded to prove the ingredients of offence 'beyond reasonable doubt' or the accused succeeded to raise reasonable doubt in the version of prosecution on the standard of preponderance of probabilities.
14. The first ingredient of the offence i.e. the publication of a proclamation against the accused stands proved from the order dated 18.05.2012 of this Court. The statement of process server Ct. Sanjay Kumar who had executed the process against the accused has also been perused. The process was issued against the accused U/s 82 (1) Cr.P.C. and he was declared PROCLAIMED OFFENDER accordingly.
As per the proclamation published against the accused, he had to appear before the Court on 18.05.2012 at 10 AM but he failed to appear despite the publication of the proclamation and hence, was declared PROCLAIMED OFFENDER.
FIR No. 330/08, PS Sarita Vihar State vs. Ajay @ Mota. Page No. 7 of 8 The proceedings carried out by the police officials on 24.08.2013 i.e. the arrest of the accused is a subsequent development which does not affect the factum of issuance of proclamation and the non appearance of the accused thereupon.
The accused has failed to accord any reasonable ground for his non appearance before the Court as required by the declaration U/s 82 (1) Cr.P.C. and thus, has failed to raise any defence on the standard of preponderance of probabilities. Even otherwise, S.174A IPC does not create or provide any defence or exception to the accused which he could use to his benefit.
15. In view of the aforesaid discussion, Court is of the considered opinion that prosecution has proved its case against the accused beyond reasonable doubt and hence, accused Ajay @ Mota is hereby convicted of the offence u/s 174A IPC.
Announced in the open Court on 10.11.2014 (ARVIND BANSAL) Metropolitan Magistrate -05 South - East District Saket Courts, New Delhi FIR No. 330/08, PS Sarita Vihar State vs. Ajay @ Mota. Page No. 8 of 8