Delhi District Court
State vs . Jani Massi on 23 January, 2012
State vs. Jani Massi
IN THE COURT OF SH ANUJ AGARWAL: MM01(SE)/
SAKET COURT: DELHI
State vs. Jani Massi
FIR NO. : 461/03
U/S : 25/54/59 Arms Act
PS : Badarpur
JUDGMENT
a) Sl. No. of the case : 416/2
b) Date of institution of the case : 08.01.03
c) Date of commission of offence: 16.09.03
d) Name of the complainant : SI Ravi Shankar
e) Name & address of the : Jani Massi S/o Babu Massi
accused R/o H. No. 292, Dhaka Jad
near Pankhawala Gurudwara
Parmanand Colony, Delhi9.
f) Offence complained off : 25 Arms Act
g) Plea of the accused : Pleaded not guilty.
h) Arguments heard on : 23.01.12
i) Final order : Acquitted
j) Date of Judgment : 23.01.12
BRIEF STATEMENT OF REASONS FOR DECISION:
1. Briefly stated, accused Jani Massi has been sent to face trial FIR No. 461/03 PS Badarpur 1 of 9 State vs. Jani Massi for offence U/s 25/54/59 Arms Act with the allegations that on 16.09.03 at about 8.00 PM near Shauchalaya, Gautampuri, PhaseI, Badarpur, New Delhi, within the jurisdiction of PS Badarpur, accused was found in possession of a buttondar knife having total length 23.6 Cm, blade 10.5 Cms in contravention of notification issued by Delhi Admn. without any permit or licence. Investigation was carried out.
2. Upon completion of investigation charge sheet U/s 173 Cr.P.C.
was filed on behalf of the IO and the accused person was consequently summoned. A formal charge U/s 25 Arms Act was framed against the accused to which he pleaded not guilty and claimed trial.
3. In order to substantiate the allegations, four witnesses have been examined on behalf of the prosecution.
4. PW1 ASI Mainuddin is the duty officer who recorded the formal FIR. He proved copy of FIR as Ex.PW 1/A and his endorsement on rukka as Ex.PW1/B.
5. PW2 is Ct. Pradeep who has deposed that on 16.09.03 while patrolling alongwith SI Ravi Shanker they reached at Gautam Puri near Shauchalaya where public persons had gathered and accused was seen quarreling with the public persons and was apprehended.
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State vs. Jani Massi
He has further deposed that from the search of accused, one buttondar knife measuring 23.6 Cms in length, blade 10.5 Cms was recovered. The sketch memo was proved as Ex.PW2/A. Witness has further deposed that the knife was seized vide memo Ex.PW2/B. He further deposed that IO prepared Tehrir and he got the case registered. He further proved arrest memo Ex.PW3/C and personal search memo Ex.PW3/D.
6. PW3 is HC Mahesh who the second IO of the case. He has duly proved site plan Ex.PW3/A.
7. PW4 is the first IO who has deposed on similar lines as that of PW2 and had apprehended the accused with the help of Ct. Pradeep. He has deposed that he asked public persons to join the proceedings but none of them agreed.
8. Memorandum of statement of accused U/s 281 Cr.P.C was recorded, wherein he has refuted the allegations levelled against him in toto. Accused chose not to lead any defence evidence in his favour.
9. I have heard the rival submissions and carefully perused the record.
10. It has been held in case of Sadhu Singh V/s State of Punjab 1997(3) Crime 55 the Hon'ble Punjab & Haryana High Court : FIR No. 461/03 PS Badarpur 3 of 9 State vs. Jani Massi "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."
11. As per chapter 22 rule 49 of the Punjab Police Rules, which is reproduced herein for ready reference: 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.
12. In the present case, the above said provision appears to have FIR No. 461/03 PS Badarpur 4 of 9 State vs. Jani Massi not been complied with by prosecution. The relevant entries regarding the arrival and departure of the police official has not been proved on 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."
13. In the present case, as per prosecution story, public persons were asked to join proceedings but no one agreed. However there is no explanation as to why no written notice was served upon public person to join. This failure goes to suggest that prosecution did not make any sincere efforts to join the passersby in the police proceedings. At least in the facts and circumstances of the present case, IO could have very well served the passersby with notice in FIR No. 461/03 PS Badarpur 5 of 9 State vs. Jani Massi writing requiring them to join the police proceedings or to face action u/s 187 IPC. Failure on the part of prosecution to make any efforts for joining independent public witnesses in the proceedings when they are available creates reasonable doubt in the prosecution in view of the following case laws.
14. 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 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''.
15. In Roop Chand V/s The State of Haryana,1999 (1) C.L.R 69, the Hon'ble Punjab & Haryana High Court held as under: FIR No. 461/03 PS Badarpur 6 of 9 State vs. Jani Massi 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 nonjoining 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''.
16. Furthermore, as per chargesheet, the seal after use was handed FIR No. 461/03 PS Badarpur 7 of 9 State vs. Jani Massi over to Ct. Pradeep who was a member of raiding party. To my mind, in such circumstances, chances of fabrication with the case property cannot be ruled out, in as much as, police officials are invariably interested in the conviction of the accused.
17. In the present case, the complainant and the first IO were same person which tendency has been strongly deprecated by Apex Court. It has been observed by the Hon'ble Apex Court in the matter of Megha Singh vs. State of Haryana (1996) XI SCC, 709 that: "We have also noted another disturbing feature in this case. PW 3 HC Shree Chand arrested accused. On search being conducted by him, a pistol and a cartridge were recovered from the accused. It was on his complaint that a formal FIR was lodged and case was initiated. He being complainant should not have proceeded with the investigation of the case but he carried on with the investigation and examining witnesses u/s 161 Cr.P.C. Such practice, to say the least, should not be resorted to show that there may not be any occasion to suspect fair and impartial investigation."
18. In view of the aforesaid, I am of the opinion that the prosecution has failed to prove its case beyond all reasonable doubts and the benefit of doubt must necessarily go to the accused person.
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Accused is accordingly acquitted for the charges U/s 25 Arms Act levelled against him. His bail bond are extended for a period of six months for the purpose of Sec. 437A Cr.PC. File be consigned to record room after due compliance.
Announced in the open court
on 23.01.2012 (Anuj Aggarwal)
MM01(SE)/Delhi / 23.01.12
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