Delhi District Court
State vs . Satish Chand on 7 March, 2011
State Vs. Satish Chand
FIR No. 38/03
PS Adarsh Nagar
IN THE COURT OF SH. NEERAJ GAUR, METROPOLITAN
MAGISTRATE-IV ROHINI COURTS, DELHI
Brief reasons for the judgment in the case with following particulars
FIR No. 38/03
PS Adarsh Nagar
U/S 61/1/14 of Excise Act
State V/S Suresh Chand
C/No. 49/03
U.ID No. 02401R0338702003
Date of Institution: 14.02.2003
Name of the Complainant ASI Richhpal Singh
Name and address of accused Satish Chand S/o Late Sh.
Surjeet Lal R/o K-712,
Jahangirpuri Delhi.
Offence complained of U/S 61/1/14 of Excise Act.
Plea of accused Pleaded not guilty
Final Order Acquitted
Date of reserve for orders 07.03.2011
Date for announcing the orders 07.03.2011
Brief Facts
1. The case of the prosecution is that on 30.01.2003 at 08.30 PM, the complainant ASI Richhpal Singh was on patrolling duty along with C/N No. 49/03 Unique ID No. 02401R0338702003 1 State Vs. Satish Chand FIR No. 38/03 PS Adarsh Nagar Ct. Pardeep Kumar and when they reached at GTK Road, near Bus Stand Kali ka Mandir, Delhi, they saw one person ie. the accused Satish Kumar who tried to escape after seeing the police party. On suspicion, they chased the accused and apprehended him. On casual search, one buttondar knife was recovered from the right side pocket of the wearing pent of accused. The knife was measured and the total length of the knife was found to be 24 cms. The pullanda of knife was prepared and same was sealed with the seal of RPS. The pullanda of knife was seized and thereafter a rukka was prepared and the instant case was got registered. Thereafter, Ct. Pardeep/ PW-3 came back at the spot with HC Vijay/ IO of the case. The site plan was prepared and the accused was arrested and sent up for trial.
2. On completion of investigation, accused was charge-sheeted U/S 25 Arms Act.
Pre trial procedure
3. In compliance of Section 207 CrPC, copies were supplied to C/N No. 49/03 Unique ID No. 02401R0338702003 2 State Vs. Satish Chand FIR No. 38/03 PS Adarsh Nagar accused. Charge U/S 25 Arms Act was framed against the accused on 07.03.2003 to which, accused pleaded not guilty and claimed trial.
Trial
4. To prove the charges, prosecution examined four witnesses in total whose testimonies are touched upon in brief as under:-
(i) PW-1 ASI Richpal Singh / complainant deposed that on 30.01.2003 at 08.30 PM, he was on patrolling duty along with Ct.
Pardeep Kumar and when they reached at GTK Road, near Bus Stand Kali ka Mandir, Delhi, they saw one person i.e. the accused Satish Kumar who tried to escape after seeing the police party. On suspicion, they chased the accused and apprehended him. On casual search, one buttondar knife was recovered from the right side pocket of the wearing pent of accused. 4 / 5 passersby were requested to join the investigation but none agreed. He opened the knife and prepared the sketch of the knife which is Ex.PW1/A. The knife was measured and the total length of the knife was found to be 24 cms. He closed the knife and kept the same in cloth pullanda and C/N No. 49/03 Unique ID No. 02401R0338702003 3 State Vs. Satish Chand FIR No. 38/03 PS Adarsh Nagar same was sealed with the seal of RPS. The pullanda of knife was seized vide memo Ex.PW1/B. A rukka Ex.PW1/C was prepared and the instant case was got registered through Ct. Pardeep. Thereafter, he came back with HC Vijay and further investigation of the case was handed over to the HC Vijay. He identified the case property and accused in the court.
(ii) PW-2 HC Kamaljit was the Duty Officer in the present case who proved the registration of the FIR as Ex.PW2/A.
(iii) PW-3 Ct. Pardeep Kumar on the same lines of PW-1/ASI Richpal and he further deposed that after registration of the FIR he returned back at the spot along with HC Vijay/Second IO to whom the case property, relevant documents and custody of the accused was handed over by PW-1. He further deposed that PW-4 / HC Vijay Kumar arrested the accused and conducted his personal search vide memos Ex.PW3/A & PW3/B respectively. He identified the case property in the court.
(iv) PW-4 HC Vijay Kumar is the IO of the case who also supported the prosecution case regarding preparation of site plan Ex.PW4/A, arrest C/N No. 49/03 Unique ID No. 02401R0338702003 4 State Vs. Satish Chand FIR No. 38/03 PS Adarsh Nagar memo Ex.PW3/A and personal search memo Ex.PW3/B. He also proved the copy of notification as Ex.PX. After completion of investigation, he filed the challan in the court.
Statement of accused and defence
5. After closure of prosecution evidence, the statement of accused U/S 313 CrPC was recorded. He denied all the evidence put to him and claimed his innocence. He took the defence of false implication by planting the case property. He did not prefer to lead any defence evidence.
Arguments and appreciation of evidence in the light of legal propositions
6. Having touched upon the statements of PWs, I shall consider the rival contention of parties. Accused has highlighted several infirmities in investigation which are being discussed hereunder alongwith the explanations therefore advanced by Ld. APP for the State.
It is firstly highlighted by accused that the IO has not joined any independent public witness despite availability. Admittedly, several public C/N No. 49/03 Unique ID No. 02401R0338702003 5 State Vs. Satish Chand FIR No. 38/03 PS Adarsh Nagar witnesses were present at the time of apprehension of accused and while completing the formalities at the spot but none of the public witnesses was even requested to become witness. This casts doubt about sincere efforts made by the IO to join independent witnesses. In Roop Chand v/s State of Haryana reported in 1990 (1) CLR 69, it was observed that such explanations that the public persons refused to join the proceedings are unreliable and in Pradeep Narayan V/S State of Maharashtra reported in AIR 1995 S.C. 1930 held that failure of police to join witness from locality during search creates doubt about fairness of the investigation benefit of which has to go to the accused.
It is settled proposition of law that Sub Section 4 of Section 100 CrPC is directory provision, however, explanation of non joining of independent witness should be plausible. The explanation put forward by the prosecution for non joining of independent witness appears to be implausible for reason that there was ample time with the IO at least to note down the particulars of the persons who refused to join the C/N No. 49/03 Unique ID No. 02401R0338702003 6 State Vs. Satish Chand FIR No. 38/03 PS Adarsh Nagar investigation. The same creates doubt regarding the fairness of the investigation.
It is also noteworthy that the most crucial part of the investigation has been conducted by the complainant ASI Richpal even before registration of FIR. Since, he was present at the spot alongwith other police officials, no explanation has been put forth by the prosecution as to why despite availability, the investigation was not handed over to some other senior officer. In such case, as observed by Hon'ble Supreme Court in the case titled as Megha Singh V/S State of Haryana reported in 1995 Crl. L. J. 3988 and as held in the case titled as Sunil V/S State reported in 1999 (1) JCC 85 (Delhi) benefit of doubt is to be given to the accused.
It is also highlighted by accused that on the recovery Memo,the FIR number finds mention and it has not been explained by the prosecution. Admittedly, these documents were prepared before registration of FIR. When documents are prepared before registration of FIR and it contains the FIR number, then interference has to be drawn that C/N No. 49/03 Unique ID No. 02401R0338702003 7 State Vs. Satish Chand FIR No. 38/03 PS Adarsh Nagar either FIR was recoded prior in time or the documents were prepared later on and in such cases, benefit of doubt is to be given the the accused.
It is next pointed out by accused that the seal was kept by the police officials themselves and was not handed over to any independent person and prosecution has also failed to prove that the case property remained intact and was not tampered with till the time it was produced in the Court which was more important when the seal remained with the police official of the same police station.
It is noteworthy that no effort at all was made by the police to ascertain the source from where the alleged weapon was acquired by the accused. No explanation is coming forthwith on such effort so not made. This lapse in investigation certainly accrues a benefit in favour of accused.
7. All the lapses in investigation, discussed herein above creates a doubt on the very recovery of one buttondar knife from the possession of accused. The lapses are material one and cannot be ignored. It is settled proposition of law that if the investigation suffers from taint then the C/N No. 49/03 Unique ID No. 02401R0338702003 8 State Vs. Satish Chand FIR No. 38/03 PS Adarsh Nagar entire prosecution case becomes open to serious doubts and challenges. The material is insufficient to record a finding of guilt of the accused and the safer course available is to acquit the accused giving him a benefit of doubt. In view of the above said discussion, the prosecution has failed to prove the guilt of the accused beyond reasonable doubt. Accordingly, I acquit the accused Satish Chand for the offence U/S 25/54/59 of Arms Act.
8. The Bail Bond stands cancelled and surety for the accused stands discharged. Any endorsement placed on the documents of the surety may accordingly, be cancelled. The original documents of the surety, if retained on record be returned against acknowledgment. File be consigned to record room.
Announced in open court (Neeraj Gaur)
Dated 07.03.2011 Metropolitan Magistrate
Rohini Courts, Delhi
C/N No. 49/03
Unique ID No. 02401R0338702003 9