Delhi District Court
State vs . Raj Kumar @ Nanhe on 20 November, 2010
1
IN THE COURT OF SH. MANISH KHURANA, M. M.(Rohini), Courts, Delhi
STATE Vs. Raj Kumar @ Nanhe
P. S. Bawana
JUDGEMENT
(a) The FIR no. of the case : 100/2005
(b) The date of commission of offence : 19/03/2005
(c) The name of complainant : SI Yog Raj No. 3112
(d) The name and parentage of accused : Raj Kumar @ Nanhe S/o Sh.
Bharat Singh R/o H. No. 1194 D
Kanjhawala Road, Bawana, Delhi.
.
(e) The offence complained or proved : U/s 25/54/59 Arms Act.
(f) The plea of accused : Pleaded not guilty
and claimed trial.
(g) Date of Institution : 25/04/2005
(h) The date on which : 20/11/10
judgment was reserved
(i) The final order : Acquitted
(j) The date of such order : 20/11/10
Brief statement of the reasons for the decision:
1. The prosecution story in brief is that on 19/03/2005 at about 10.50 pm at
DSIDC, Sector 3, MBlock, Bawana Delhi, within the jurisdiction of PS Bawana, the accused was found in possession of one buttondar knife without any permit or license in contravention of notification issued by Delhi Administration and hence the accused has committed an offence u/S 25 Arms Act 1959 for which FIR no. 100/2005 was registered against the accused.
FIR No. 100/05 2
2. After supply of copies U/s 207 Cr.P.C, charge u/s 25 Arms Act was framed against the accused to which the accused pleaded not guilty and claimed trial.
3. In support of its case prosecution has examined 04 witnesses.
4. PW 1 HC Ramphal deposed that on 20/03/2005 he was posted at P. S Bawana and was working as duty officer from 12:00 midnight to 08.00 am and on that day he received a rukka from ASI Vijender Singh through Ct. Jagdish for registration of case FIR and he registered case FIR no. 100/05. The copy of same was Ex PW1/A bearing his signature's at point A (OSR). He also made endorsement on rukka which is Ex. PW1/B bearing his signature at point A.
5. Opportunity to cross examine the witness was given but not availed.
6. PW 2 HC Jagdish deposed that on 19/03/2005 he was posted at P. S Bawana. On that day on receiving DD No. 13A, he alongwith SI Yog Raj, HC Savinder and Ct. Daljit reached at the spot i.e. DSIDC, Sector3, Bawana where one complainant Rambag handed over accused Ramkishan, Raj Kumar @ Nanhe, present. When they and Shivraj along with one Tempo bearing No. DL1LB9994, TATA609 which was loaded with some iron elbows. He further deposed that SI Yog Raj conducted the casual search of the above said accused person and one buttondar knife was recovered from the right hand side pocket of accused Raj Kumar @ Nanhe and further investigation of this case was handed over to ASI Vijender Singh. Thereafter IO ASI Vijender Singh opened the kniefe with the help of button and put the same on the white paper and prepared the sketch of the knife Ex. PW2/A bearing his signature at point A. The total length of knife is 24.5 cm. Length of blade is 12.5 FIR No. 100/05 3 cm and length of handle is 12 cm and width of blade is 3 cm. IO ASI Vijender Singh put the said knife on white cloth and prepared the pullanda and sealed with the seal of VS and seal after used was handed over to him. He further deposed that IO seized the knife vide seizure memo Ex. PW2/B bearing his signature at point A. IO prepared the rukka and handed over to him. He went to P. S. for registration of the case and after registration of the case he returned back at the spot alongwith original rukka and copy of FIR. He further deposed that IO arrested the accused and his personal search was conducted vide arrest memo Ex. PW2/C and personal search memo Ex. PW2/D both bearing his signature at point A. The information of arrest of accused was given to his relatives. Accused was brought to PS and the case property was deposited in the Malkhana. IO recorded his statement. He correctly identified the accused and the case property which is Ex. P1.
7. Opportunity to cross examine the witness was given but not availed.
8. PW 3 Sh. Anil Yadav, UDC Home Department NCT of Delhi deposed (as recorded) that he has brought the notification No. F. 13/203/78Home(g) dt. 17.02.09 issued by the then Under Secretary Home (General) Delhi Administration Delhi. Copy of the same is Ex. PW3/A.
9. PW 4 SI Vijender Singh deposed ( as recorded ) that on 19/03/2005 he was posted as ASI at P. S Bawana. On that day SI Yog received DD No. 13A by DO. Thereafter he alongwith SI Yog Raj, HC Savender, Ct. Kishan Kant, Ct. Jagdish and Ct. Daljit reached at the spot i.e. DSIDC, Sector3 Bawana, where they met the complainant Ram Bhaj S/o Dhan Raj who produced four accused persons namely FIR No. 100/05 4 Ram Kishan, Raj Kumar @ Nanhe, Ranbir and Shiv Raj alongwith tempo bearing No. DL1LB9994(TATA609) which was loaded with four Elbow of iron. He further deposed that on casual search of all the accused one buttondar knife was recovered from accused Ranbir Singh whose investigation was marked to HC Savender and one buttondar knife was also recovered from the possession of accused Raj Kumar @ Nanhe whose investigation was marked to him. Thereafter the knife was opened and he measured the same and prepared sketch of the knife which is Ex. PW2/A which bearing his signature at point B. It was found 24.5 cm long. He sealed the knife in a cloth pullanda and served with the seal of VS and seal after use was handed over to Ct. Jagdish. Knife was taken into police possession vide memo Ex. PW2/B bearing his signature at point B. Thereafter he prepared the rukka Ex. PW4/A bearing his signature at point B and handed over the same to Ct Jagdish for registration of the FIR. Ct. Jagdish went to PS for registration of the case. In the meantime he prepared the site plan Ex. PW4/B at the instance of SI Yog Raj which bearing his signature at point A. He further deposed that Ct. Jagdish came back at the spot alongwith copy of FIR and rukka and handed over the same to him. The accused was arrested vide memo Ex. PW 2/C and his personal search was conducted vide memo Ex. PW 2/D both bear his signature at point B. The case property was deposited in the Malkhana. Accused was put behind the bars. He recorded statements of witnesses. The challan was prepared by the SHO and sent to the court. He correctly identified the accused and the case property Ex. P1.
10. In cross examination by Ld. defence counsel he denied the suggestion that accused FIR No. 100/05 5 has been falsely implicated in this case. He further denied the suggestion that nothing was recovered from the possession of the accused. He also denied the suggestion that he was deposing falsely.
11. No other Prosecution witness was examined by the prosecution despite ample opportunities and accordingly, the prosecution evidence was closed.
12. The statement of accused U/s 313 Cr.P.C. was recorded wherein he stated that he is innocent and has been falsely implicated in this case and denied for leading any defence evidence. Thereafter, matter was posted for final arguments.
13. I have heard the Ld. APP for the State and the accused.
14. 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 the criminal law that in order to prove its case on judicial files prosecution is supposed to stand on its own legs and it cannot drive any benefit whatsoever from the weakness if any in the defence of the accused. Further it is a settled proposition of the criminal law that burden of proof of the version of the prosecution in a criminal trial through out the trial is on the prosecution and its never shifts to the accused. Also it is a settled preposition of the criminal law that accused is entitled to the benefit of every reasonable doubt in the prosecution story and such doubts entitled the accused to acquittal.
15. After appreciating the evidence on record it is very much evident that alleged recovery of the knife from the accused has not been witnessesed by any independent public witness. IO has not joined any independent public witness despite the fact that the recovery has been effected from a thickly populated area. FIR No. 100/05 6
16. 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:
''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 shopkeepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the shopkeepers had declined to join the raiding party, the police could have later on taken legal action against such shopkeepers 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''.
Further 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''. 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 FIR No. 100/05 7 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 stereotype 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.
17. In this matter it is clear from the record that after the apprehension of the accused but before taking the formal/casual search of the accused police official(s), had not offered 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 FIR No. 100/05 8 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''.
18. Being guided by above said case law, it can be said that search of the accused by above said police official(s) was in complete violation of the above said case law and the same can be said to be illegal.
19. As per rukka, the seal after use on the pulanda containing the case property allegedly recovered from the accused was given to none else but to one who is a material prosecution witness being a witnesses to the alleged recovery of the knife from the possession of the accused. Such 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 said witness to IO. Even the Ct Vinod kumar and SI Sukram Pal are not examined despite opportunity being given to the prosecution.
20. In view of the above said discussion it is clear that the prosecution has failed to prove its case beyond reasonable doubts. The accused hence stands acquitted. File be consigned to record room.
ANNOUNCED IN THE OPEN COURT
TODAY ON 20/11/10 (MANISH KHURANA )
METROPOLITAN MAGISTRATE
ROHINI DELHI
FIR No. 100/05
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FIR No. 100/05
PS Bawana
U/s 25/54/59 Arms Act
20/11/10
Present: Ld. APP for State.
Accused in person with counsel.
Vide my separate judgment, accused is acquitted on the offence u/s 25/54/59 Arsm Act. Previous bail bond furnished by the accused is extended in terms of section 437 (A) Cr.P.C. File be consigned to Record Room.
( Manish Khurana ) MM/Rohini/Delhi/20.11.2010 FIR No. 100/05