Delhi District Court
State vs . Rajesh, Fir No. 341/06, U/S 25/54/59 ... on 8 August, 2012
State Vs. Rajesh, FIR No. 341/06, U/s 25/54/59 Arms Act, PS Model Town. IN THE COURT OF SH. DHEERAJ MOR, METROPOLITAN MAGISTRATE, ROHINI COURTS, DELHI. FIR No. 341/06 U/s. : 25/54/59 Arms Act. P.S. : Model Town State Vs. Rajesh JUDGMENT
1. Sl. No of the case : 146/06
2. Date of institution of the case : 09.06.2006
3. Date of the commission of the offence : 02.06.2006
4. Name of the accused : Rajesh
S/o Sh. Brij Mohan
5. Name of the complainant : ASI Jai Prakash
6. Offence complained of : 25/54/59 Arms Act
7. Plea of accused : Pleaded not guilty
8. Final order : Acquitted
9. Date of such order : 08.08.2012
BRIEF STATEMENT OF THE REASONS FOR THE DECISION
1. The accused has been sent to face trial under section 25/54/59 Arms Act, by the SHO, PS Model Town, Delhi.
2. The brief facts of the case as alleged by the prosecution and as unfolded from the charge sheet are that, on 02.06.2006 at about 5.45 pm police picket, Kalyan Vihar, Delhi the accused was found in possession of one button actuated knife without any licence or permit and in contravention of notification issued by Delhi Administration. Therefore, the present FIR No. Pages No. 1 State Vs. Rajesh, FIR No. 341/06, U/s 25/54/59 Arms Act, PS Model Town.
341/06, under section 25/54/59 Arms Act, PS Model Town, Delhi, was registered against him. After completion of the investigation, charge sheet was prepared and filed in the Court.
3. The copy of the challan and documents annexed therewith were supplied to the accused in compliance of Section 207 Cr. P. C. Prima facie a charge U/s. 25/54/59 Arms Act was made out against the accused Rajesh. Accordingly, on 02.08.2006 the charge was framed by the Ld. Predecessor of this court. The accused pleaded not guilty to the same and claimed trial. Thereafter, the case proceeded for prosecution evidence.
4. In order to substantiate its case, the prosecution examined two witnesses.
5. PW1/HC Mahavir has deposed that on 02.06.2006 he was posted as DO at PS Model Town, Delhi and on that day he received a rukka from Ct. Dhir Singh and accordingly registered the present FIR No. 341/06, U/s 25/54/59 Arms Act. He has proved the copy of FIR as Ex. PW1/A.
6. PW2/ Ct. Dhir Singh is the recovery witness of the Knife from the possession of the accused. He has testified that on 02.06.2006 he was posted at PS Model Town and on that day, he alongwith ASI Jai Prakash were on patrolling duty in the area of P.S. Model Town, Delhi. He has further testified that at about 5:30 pm, a secret information was received by the IO/ASI Jai Prakash through a secret informer about a person carrying a knife. He has further deposed that IO/ASI Jai Prakash asked 45 person to join the investigation but they refused and went away without disclosing their names and address. He has further deposed that on the pointing out of the secret informer, the accused was apprehended by them. He has further deposed that during the formal search of the accused conducted by the IO/ASI Jai Prakash a buttondar knife was recovered from the right side pocket of his worn pant. He Pages No. 2 State Vs. Rajesh, FIR No. 341/06, U/s 25/54/59 Arms Act, PS Model Town.
has proved the sketch of knife as Ex. PW2/A and its seizure memo as Ex. PW2/B. He has further deposed that the IO prepared rukka and handed over to him to get the FIR registered and after getting the FIR registered he alongwith HC/Balbir returned back at the spot alongwith copy of FIR and original rukka. He has correctly identified the accused. He has proved the arrest memo and personal search memo of the accused as Ex. PW2/C and Ex. PW2/D, respectively and he has correctly identified the recovered knife as Ex. P1. Thereafter, PE was closed.
7. Statement of the accused U/s. 313/281 Cr.P.C. was recorded. All the incriminating evidence were put to the accused for seeking his explanation. In the said statement the accused has stated that he has been falsely implicated in the present case and he has further stated that he is innocent. He has further submitted that the knife Ex.P1 was not recovered from his possession and same was falsely planted on him. He preferred not to lead any evidence in defence. Accordingly, the matter was listed for final arguments.
8. I have heard the Ld. APP for the state and Ld. Counsel for the accused. I have carefully perused the case record.
9. The cardinal principle of the criminal law is that the accused is presumed to be innocent till he is proved guilty beyond any reasonable doubt. The burden of proving guilt of the accused lies on the prosecution and the prosecution is required to stands on its own legs to establish the culpability of the accused. The benefit of doubt if any, must go in favour of the accused.
10. In order to sustain conviction U/s. 25/54/59 Arms Act the prosecution is required to prove the following ingredients: i. The accused was found in the possession of the button actuated knife. ii. He/She was carrying the same without any licence/permit or in contravention of notification of Delhi Administration.
Pages No. 3State Vs. Rajesh, FIR No. 341/06, U/s 25/54/59 Arms Act, PS Model Town.
11. The prosecution is required to prove that the alleged knife was recovered from the possession of the accused. PW2/Ct. Dhir Singh and ASI Jai Prakash are material witnesses as they are the alleged recovery witnesses. However, the prosecution has failed to place and prove on record the departure entry of the said witnesses to establish their presence at the spot of alleged recovery. PW2/Ct. Dhir Singh in his examination in chief has deposed that he alongwith ASI Jai Prakash were on patrolling duty at the time of alleged recovery of the knife from the accused. However, no DD entry has been placed or proved on record to establish that the said witnesses together left the police station on the said date for the purpose of patrolling. Therefore, their presence at the alleged place, time and date of recovery of the knife from the possession of the accused is doubtful.
12. Moreover, the seizure memo of the case property i.e. button actuated knife as Ex. PW2/B, finds mention the number of FIR written on its top in the same handwriting, same flow and the same pen. It is the case of the prosecution that the FIR was registered after the seizure memo of case property Ex.PW2/B was prepared. Therefore, in these circumstances, I have failed to comprehend how the aforesaid facts regarding the number of the FIR, came to the knowledge of the IO even prior to the registration of the FIR. This fact further shows that the case of the prosecution suffers with material infirmities. I find support from the findings given by the Hon'ble Delhi High Court titled as Mewa Ram Vs. State, 2000 Cri.L.J.114, wherein it was held as under:
"In the instant case, the FIR (Ex.PW6/A) was admittedly registered at the Police Station at 7.40 p.m. The evidence of ASI Mange Ram (PW6) shows that the accused was apprehended at 6.30 p.m. and the formalities of search and seizure of the contraband were completed by 7 p.m. And after completion of the said formalities, he sent the rukka (Ex.PW6/A) to the Police Pages No. 4 State Vs. Rajesh, FIR No. 341/06, U/s 25/54/59 Arms Act, PS Model Town.
Station on the basis of which the FIR (Ex.PW6/A) was registered. Surprisingly, the seizure memo (Ex.PW2/B), the search memo (Ex.PW2/C) and the special report (Ex.PW6/D), alleged to have been prepared on the spot, bear the number of the FIR (Ex.PW6/A). The number of the FIR (Ex.PW6/A) given on the top of the aforesaid documents is in the same ink and in the same handwriting, which clearly indicate that these documents were prepared at the same time. The prosecution has not offered any explanation as to how and under what circumstances number of FIR (Ex.PW6/A) had appeared on the top of the aforesaid documents. If the FIR (Ex.PW6/A) was registered after the alleged recovery had taken place, then these documents could not have recited the number of the FIR (Ex.PW6/A) at all. This circumstance gives rise to two inferences, firstly the FIR (Ex.PW6/A) was recorded prior to the alleged recovery of the contraband and secondly, number of the FIR (Ex.PW6/A) was inserted in these documents after registration of the FIR. In both the situations, it seriously reflects upon the veracity of the prosecution version and the benefit arising out of such a situation must necessarily go to the accused. The aforesaid circumstance has shaken the foundation of the whole prosecution case to an irreparable extent. Consequently, the appellant's conviction and sentence under Section 18 of the Act cannot be sustained."
13. The alleged incident pertains to have occurred at about 5:45 pm near police picket, Kalyan Vihar, Delhi. The spot of recovery is admittedly a crowded and residential area. Moreover, PW2/Ct. Dhir Singh has also admitted the presence of public persons at the spot. Therefore, it is convincingly established that there were many public persons available at the spot of alleged recovery. Despite that IO of the case did not join any public/independent witness. The criminal law has duly empowered the investigating officer/police officials to initiate action against the persons who refuse to participate in the investigation. But still, IO neither made any efforts to join public /independent witnesses nor advanced any plausible explanation Pages No. 5 State Vs. Rajesh, FIR No. 341/06, U/s 25/54/59 Arms Act, PS Model Town.
as to why no independent witnesses were examined by him. Hence, story of the prosecution is further shrouded in suspicion.
14. The prosecution has failed to examine any public witness therefore, the version of the prosecution has remained uncorroborated by an independent material witness. The witnesses that are examined by the prosecution in the present case are police witnesses who are interested in the success of the prosecution case and therefore, the probability of them being guided by the extraneous factors, other than truth, cannot be ruled out. The police witnesses cannot be straightaway termed as unreliable witnesses, however, when there is a possibility of joining any public witness in the investigation and still no genuine efforts are made to join the independent person as witness, then the testimony of the police witness does not lends sufficient credence/reliability, unless it is corroborated by independent material witness. In view of above discussion, it is duly established that genuine efforts were not made by the IO of the case to join the public witness. The non joining of the public witness creates doubt in the story of the prosecution as held in :
PAWAN KUMAR Vs. DELHI ADMINISTRATION 1987 CC 585 DELHI HC.
15. Keeping in view the fact that the version of PWs have remained uncorroborated by any other independent witness regarding the alleged recovery of knife, it will be highly unsafe to rely upon their version to pass the order of conviction against the accused. It has been held in:
1975 CAR 309 (SC) that:
"Prosecution case resting solely on the testimony of head constable and no independent witness examinedprosecution story appearing improbable and unnatural. Held that the prosecution case can not be said to be free from reasonable doubt and the accused is liable to be acquitted".
16. In view of the above discussion, the prosecution has failed to Pages No. 6 State Vs. Rajesh, FIR No. 341/06, U/s 25/54/59 Arms Act, PS Model Town.
discharge the onus placed upon it and so have failed to prove its case beyond any reasonable doubt. Accordingly, benefit of doubt is given to the accused Rajesh and he is acquitted of the charge U/s. 25/54/59 Arms Act. The accused is directed to furnish fresh personal bond in a sum of Rs. 10,000/ with one surety in like amount, in accordance with Section 437A Cr.P.C. He has submitted that his previous bail bonds and surety bonds be extended for next six months. The said request is allowed and they are accepted for next six months. The case property be confiscated to the State.
File be consigned to record room after due compliance.
Announced in the open court on 08.08.2012 (DHEERAJ MOR) METROPOLITAN MAGISTRATEIV ROHINI/DELHI Pages No. 7 State Vs. Rajesh, FIR No. 341/06, U/s 25/54/59 Arms Act, PS Model Town.
FIR No. 341/06U/s. : 25/54/59 Arms Act.
P.S. : Model Town
State Vs. Rajesh
Present: Ld. APP for the State.
Accused is on bail alongwith counsel.
PW2 examined and discharged. No other PW is present. The prosecution has already availed several sufficient opportunities for concluding entire PE. The fundamental right of the accused for expeditious trial cannot be defeated on unreasonable and unwarranted grounds. Thus, PE stands closed.
Separate statement of the accused U/s 313/281 Cr .P. C recorded. The accused has stated that she does not want to lead any defence evidence. Put up for final arguments at 2.00 pm. (Dheeraj Mor) MM/Rohini/Delhi/08.08.2012.
At. 2.00pm
Present: As above.
Final arguments heard. Case file perused.
Vide my separate judgment announced in the open court today, the accused Rajesh stands acquitted for the offence punishable U/s 25/54/59 Arms Act.The accused is directed to furnish fresh personal bond in a sum of Rs. 10,000/ with one surety in like amount, in accordance with Section 437A Cr.P.C. He has submitted that his previous bail bonds and surety bonds be extended for next six months. The said request is allowed and they are accepted for next six months. The case property be confiscated to the State.
File be consigned to Record Room after due compliance.
(Dheeraj Mor) MM/Rohini/Delhi/08.08.2012.
Pages No. 8