Delhi District Court
State vs Dalip on 22 December, 2014
FIR No.565/05
PS: Keshav Puram
U/s 25/54/59 Arms Act
State Vs Dalip
IN THE COURT OF SH. VIPLAV DABAS MM-4(NORTH WEST)
ROHINI COURTS DELHI
FIR No.565/05
PS: Keshav Puram
U/s 25/54/59 Arms Act
State Vs Dalip
Case ID No. 02404R0001342006
Date of Institution of case : 04.01.2006
Date of Judgment : 22.12.2014
JUDGMENT:
a) Date of offence : 20.11.2005 b) Offence complained of : U/s 25/54/59 Arms Act c) Name of Accused, his : Dalip, parentage & residence S/o Sh. Ramu, R/o House No.263, Gali Rumal Wali, Rampura, Delhi d) Plea of Accused : Pleaded not guilty e) Final order : Acquitted Page No.1/11 FIR No.565/05 PS: Keshav Puram U/s 25/54/59 Arms Act State Vs Dalip BRIEF FACTS AND REASONS FOR DECISION:-
1. In the present case, accused Dalip was put to the trial for the offence U/Sec 25/54/59 Arms Act on the allegations that on 20.11.2005 at 3:30 p.m at Factory no. C-42/2 in front of Industrial Area, Lawrence Road, accused was found in possession of one buttondar knife measuring total length was of 23.5 cm, having blade length 10.5 cm, width was of 2.5 cm in contravention of DAD notification in contravention to the Section 4 of the Arms Act 1959. The accused was apprehended by SI Rajbir Singh, Ct. Naveen Kumar and Ct. B.K.Parthe who were on patrolling duty and saw one person standing near the aforesaid factory behind a truck parked there who started fleeing away on seeing the police party. IO PW-2 asked public persons to join investigation but none joined the investigation and left after showing their difficulties. Sketch Ex. PW-2/A of buttondar knife was prepared and case property was sealed with seal of `RSD` and seal after use was handed over to PW-3 Ct. Naveen Kumar. Case Property was taken into possession vide seizure memo Ex. PW-2/B. IO prepared rukka Ex. PW-2/C and got the FIR registered through PW-4 Ct. B.K.Parthe who returned to the spot alongwith HC Suraj Bhan to whom the further investigation of the case was assigned. Site plan was prepared by Second IO HC Suraj Bhan. Accused was arrested vide arrest memo Ex.PW-3/A and his personal search vide Ex. PW-3/B by Second IO HC Suraj Bhan. IO recorded the statements. Case property was deposited in Malkhana with MHC(M). After the usual investigation, the charge sheet for the offence U/Sec 25/54/59 Arms Act was prepared against the accused.
2. The aforesaid charge sheet was filed before the court on 04.01.2006, whereupon the cognizance of the offence was taken against the accused. Thereafter, the provision of section 207 Cr. P.C. was complied with.
3. After hearing the arguments, charge u/s 25/54/59 Arms Act was framed against Page No.2/11 FIR No.565/05 PS: Keshav Puram U/s 25/54/59 Arms Act State Vs Dalip the accused on 24.03.2009 to which the accused pleaded not guilty and claimed trial and matter was fixed for prosecution evidence.
4. During the course of the trial prosecution has examined four witnesses PW-1 HC Shanti Lal, PW-2 SI Rajbir Singh, PW-3 HC Naveen Kumar and PW-4 Ct. B.K.Parthe to substantiate the accusation made against the accused.
5. Thereafter, on 17.12.2014 Prosecution Evidence was closed as all Prosecution Witnesses were examined and matter was fixed for Statement of Accused.
6. The Statement of Accused was recorded U/Sec 281 r/w 313 Cr. P.C on 22.12.2014 and all the incriminating circumstances appearing in evidence were put to the accused to which the accused replied that he is innocent and that he has been falsely implicated by the police officials in the present case. The accused chose not to lead evidence in his defence so the defence evidence was closed and matter was fixed for final arguments.
7. I have heard the arguments of the Ld. APP for the State and the Ld. Counsel for the accused and have gone through the entire record.
8. In the present case, prosecution has produced and examined four witnesses. The testimonies of PW-1 is formal in nature whereas testimonies of PW-2, PW-3 and PW-4 is material one being recovery witnesses.
9. PW-1 proved the factum of due registration of the FIR Ex. PW-1/A.
10. PW-2 was the recovery witness who exhibited sketch of buttondar knife Ex. PW-2/A, seizure Memo as Ex. PW-2/B, rukka Ex. PW-2/C. The witness also deposed about the proceedings conducted in his presence and exhibited the case property i.e buttondar Page No.3/11 FIR No.565/05 PS: Keshav Puram U/s 25/54/59 Arms Act State Vs Dalip knife as Ex P-1.
11. PW-3 deposed on the same lines as deposed by PW-2 and relied upon the same documents and proved the arrest memo and personal search memo Ex. PW-3/A and Ex. PW-3/B.
12. PW-4 deposed on the same lines as deposed by PW-2 and PW-3. This witness further deposed that he took the rukka to the police station for registration of the case.
13. The accused admitted the factum of preparation of the site plan as well as the correctness of the DAD notification without admitting his guilt and presence on the spot. In view of the said admission, the witnesses qua the aforesaid documents were dropped by this Court.
It was deposed by PW-3 during his cross examination that IO requested two-three public persons to join the investigation but none joined, that no legal notice was served to those persons who refused to join the investigation and that no photographer as well as finger expert was called at the spot by the IO. PW-4 deposed that IO HC Suraj Bhan did not ask any public person to join the investigation.
14. The manner in which the inquiry, seizure and search etc. was stated to be conducted on the spot at the time of arrest of the accused and alleged recovery of pistol and cartridge makes the prosecution version highly doubtful. It is evident from the testimony of PW-2 and PW-4 that accused was apprehended along-with the buttondar knife at public place and public persons were asked to join the investigation who did not agree still police officials neither served any notice upon them to initiate prosecution for refusal nor recorded their names or addresses to show that the police officials made bonafide efforts to persuade the public persons to join the investigation. It is apparent from the testimony of PW-2, PW-3 and PW-4 that the seal after use was handed over to Page No.4/11 FIR No.565/05 PS: Keshav Puram U/s 25/54/59 Arms Act State Vs Dalip PW-3 by PW-2 and not to any independent witness who both are police officials and were posted in the same police station on the relevant date and time which makes it highly probable that the case property may have been tampered and entire proceedings were conducted at the police station, that the case property was planted one and that nothing was recovered from the accused at the spot. Furthermore, the investigating agency did not prepare any handing over or taking over memo of the seal as well as the documents to the second IO which shows that entire proceedings were conducted at the police station and not at the spot. It is also apparent from the testimony of PWs that prosecution has failed to produce any documentary evidence or the DD entries regarding their arrival and departure from the spot to the police station as well as deposition of the case property. These omissions on the part of the prosecution create doubt on the version that the accused was apprehended with the alleged buttondar knife at the spot by the said PWs.
Further, the testimony of PW-2, PW-3 and PW-4, the record and rukka Ex. PW-2/C shows that the sketch of the buttondar knife Ex. PW-2/A and seizure memo Ex. PW-2/B was prepared prior to the dispatch of the Rukka exhibited as Ex. PW-2/C and registration of the FIR. However, perusal of the said documents clearly shows that the FIR number and other particulars of the present case are mentioned on the said documents. No explanation has come from the prosecution as to how the FIR number surfaced on those documents which were prepared prior to the registration of the case. This fact casts a doubt upon the testimony of PWs because if the said documents were prepared prior to the registration of the present case, then how the FIR number as well as other particulars of the present case surfaced on the said documents. At this stage, reference can also be made of a case titled as Pawan Kumar Vs Delhi Admn. 1987 CC Cases 585 Delhi wherein Hon'ble High Court of Delhi had held that the mention of FIR number on recovery memo etc which were prepared prior to lodging the FIR creates doubt and benefit should go to the accused.
These failures on the part of prosecution creates reasonable doubt in the Page No.5/11 FIR No.565/05 PS: Keshav Puram U/s 25/54/59 Arms Act State Vs Dalip prosecution story and are fatal to the prosecution version which establishes the defence version that there is total false implication of the accused in the present case and that the recovery was planted upon the accused. In support of aforesaid observations reliance may be placed on the following case laws:-
In a case law reported as Anoop Joshi Vs. State 1999(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".
In a case law reported as Roop Chand Vs. The State of Haryana 1999 (1) CLR 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 so Page No.6/11 FIR No.565/05 PS: Keshav Puram U/s 25/54/59 Arms Act State Vs Dalip 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 the witnesses from the public had refused 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 Vs. State of Punjab, 1997 (3) Crimes 55, 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 Page No.7/11 FIR No.565/05 PS: Keshav Puram U/s 25/54/59 Arms Act State Vs Dalip improbably 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 Nanak Chand Vs. State of Delhi reported as DHC 1992 CRI LJ 55 it is observed as under:-
"that the recovery is proved by three police officials who have differed on who snatched the Kirpan from the petitioner and at what time. The recovery was from a street with houses on both sides and shops nearby. And, yet no witness from the public has been produced. Not that in every case the police officials are to be treated as unworthy of reliance but their failure to join witnesses from the public especially when they are available at their elbow, may, as in the present case, cast doubt. They have again churned out a stereotyped version. Its rejection needs no Napoleon on the Bridge at Arcola".Page No.8/11 FIR No.565/05
PS: Keshav Puram U/s 25/54/59 Arms Act State Vs Dalip
15. The manner in which the search of the Accused was conducted on the spot is also not satisfactory as the police persons had not offered their own search to the Accused before taking the search of Accused which is evident from the testimony of PWs and record as it is no where mentioned that search was offered to the accused in compliance of the settled procedure for investigating the cases like the present one. At this juncture, it would be appropriate to refer to the judgment of Hon'ble Orissa High Court reported as Rabindernath Prusty Vs. 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 other 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 Vs. 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".
16. 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 well established principles of law and the same can be said to be illegal.
It is further apparent from the record that the entire proceedings were conducted at the spot post mid night which implies that presence of source of light on the spot was Page No.9/11 FIR No.565/05 PS: Keshav Puram U/s 25/54/59 Arms Act State Vs Dalip necessary to carry out the investigation. However, no source of light has been shown in the site plan indicating that the proceedings could not have been conducted at the spot and are hence sham. These inconsistent version shows that the prosecution witnesses are not truthful and hence their version can not be believed which creates grave doubts on the prosecution's version of recovery of alleged knife from the possession of the accused from the spot as mentioned in the site plan and substantiates the defence version that the alleged recovery was planted upon the accused at the police station and that entire proceedings were recorded at the police station and not on the spot.
17. In the present facts, it is pertinent to mention the judgment titled as "S.L.Goswami v. State of M.P" reported as 1972 CRI.L.J.511(SC) wherein the Hon'ble Supreme Court held:-
"...... In our view, the onus to proving all the ingredients of an offence is always upon the prosecution and at no stage does it shift to the accused. It is no part of the prosecution duty to somehow hook the crook. Even in cases where the defence of the accused does not appear to be credible or is palpably false that burden does not become any the less. It is only when this burden is discharged that it will be for the accused to explain or controvert the essential elements in the prosecution case, which would negative it. It is not however for the accused even at the initial stage to prove something which has to be eliminated by the prosecution to establish the ingredients of the offence with which he is charged, and even if the onus shifts upon the accused and the accused has to establish his plea, the standard of proof is not the same as that which rests upon the prosecution..........................."
The onus and duty to prove the case against the accused is upon the prosecution and the prosecution must establish the charge beyond reasonable doubt which failed to do so in the present case. It is also a cardinal principle of criminal jurisprudence that if there is a reasonable doubt with regard to the guilt of the accused the accused is Page No.10/11 FIR No.565/05 PS: Keshav Puram U/s 25/54/59 Arms Act State Vs Dalip entitled to benefit of doubt resulting in acquittal of the accused. Reference may also be made to the judgment titled as Nallapati Sivaiah v. Sub Divisional Officer, Guntur reported as VIII(2007) SLT 454(SC).
18. In view of the aforesaid discussion, in my opinion, prosecution has not been able to prove its case against the Accused beyond reasonable doubts. Accordingly, accused Dalip S/o Sh. Ramu is acquitted of the charge leveled against him. Bail bond stands cancelled and Surety be discharged, if any. Documents, if any, be returned to the rightful person against receiving and after cancellation of endorsement, if any. Case property be confiscated to State and be destroyed after expiry of period of appeal. File be consigned to the Record Room after due compliance.
Announced in the Open Court (VIPLAV DABAS)
today i.e on 22.12.2014 MM-04/North West/DELHI
22.12.2014
Page No.11/11