Delhi District Court
State vs . Dharmender @ Lala on 13 December, 2011
State Vs. Dharmender @ Lala
FIR No. 406/06
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:
State V/S Dharmender @ Lala
FIR No. 406/06
PS Adarsh Nagar
U/S 25/54/59 of Arms Act
C/N No. 323/06
Unique ID No. 02404R0424512006
Date of Institution: 31.07.2006
Date of commission of offence 17.07.2006
Name of the Complainant ASI Ram Kishan
Name and address of accused Dharmender @ Lala
s/o Sh. Phool Chand,
R/o H. NO. 183, Shadi Nagar,
Azadpur, Delhi.
Offence complained of U/S 25/54/59 of Arms Act.
Plea of accused pleaded not guilty
Final Order Acquitted
Date of reserve for orders 13.12.2011
Date for announcing the orders 13.12.2011
Brief Facts and pre-trial procedure:
1. The case of the prosecution is that on 17.07.2006, HC Vinod Kumar was on patrolling duty at Village Azadpur who received a secret C No. 323/06 Unique ID No. 02404R0424512006 Page No. 1 State Vs. Dharmender @ Lala FIR No. 406/06 PS Adarsh Nagar information that one person was standing at railway line, near flyover Azadpur with button actuated knife and if raid would be conducted, he could be apprehended. Meanwhile ASI Ram Kishan / IO also reached there. They went to the spot and from there at the instance of secret informer, apprehended the accused. On his casual search, one buttondar knife was recovered from his possession. Sketch of knife was prepared and same was measured. Pullanda of the knife was prepared and same was sealed with seal of RK. Further investigation of the case was assigned to HC Shamsher Singh who arrested and personally searched the accused. After completion of investigation, challan was prepared and and accused was sent up for trial.
2. On the basis of these allegations, charge U/S 25/54/59 of Arms Act was framed against the accused. The accused pleaded not guilty and claimed trial.
Trial
3. To prove the charges, prosecution examined three witnesses in total whose testimonies are touched upon in brief as under:
(i) PW-1 ASI Radha Rani is a formal witness who being Duty Officer C No. 323/06 Unique ID No. 02404R0424512006 Page No. 2 State Vs. Dharmender @ Lala FIR No. 406/06 PS Adarsh Nagar deposed about the registration of FIR and proved the same as Ex.PW1/A.
(ii) PW-2 HC Vinod Kumar deposed that on 17.07.06 during patrolling duty at Village Azadpur he received a secret information that one person was standing at railway line, near flyover Azadpur with button actuated knife and if raid would be conducted, he could be apprehended.
Meanwhile ASI Ram Kishan / IO also reached there. He shared the secret information with ASI Ram Kishan / IO. They went to the spot and from there apprehended the accused. On his casual search, one buttondar knife was recovered from his possession. The name of the accused came to know as Dharmender. Sketch Ex.PW2/A of knife was prepared by IO and same was measured and total length of knie was found to be 24 cms, length of handle was 13 cm, length of blade was 11 cm and the width of blade was 2.5 cm. Pullanda of the knife was prepared and same was sealed with seal of RK. Pullanda was seized vide Ex.PW2/B. Rukka was prepared by first IO and PW2 got the case registered and came back at the spot with HC Shamsher Singh / second IO to whom the further investigation of the case was assigned. First IO handed over the custody of the accused, relevant documents and case property to second IO who prepared site plan at the C No. 323/06 Unique ID No. 02404R0424512006 Page No. 3 State Vs. Dharmender @ Lala FIR No. 406/06 PS Adarsh Nagar instance of first IO. Second IO recorded the supplementary statement of first IO and thereafter, he was relieved. The accused was arrested and personally searched vide memos Ex.PW2/C & PW2/D. Accused was put behind the bars and case property was deposited in malkhana. PW2 identified the accused and case property in the court.
(iii) PW-3 HC Shamsher Singh is the second IO in the present case who deposed that on 17.07.06, DO handed over him a rukka and the copy of FIR of the present case for further investigation. Thereafter he along with Ct. Vinod Kumar went to the spot i.e. Railway Line, near Flyover, Azadpur. There ASI Ram Kishan handed over him the custody of accused, sealed pullanda which was sealed with the seal of RK and relevant documents. He prepared a site plan Ex.PW3/A at the instance of ASI Ram Kishan whose supplementary statement was recorded by him and thereafter he was relieved. The accused was interrogated and thereafter, he was arrested and personally searched vide memos Ex.PW2/C & PW2/D respectively. The case property and accused were taken to PS where the case property was deposited in Malkhana and accused was put behind bars. The charge-sheet was prepared under the supervision of SHO. He was C No. 323/06 Unique ID No. 02404R0424512006 Page No. 4 State Vs. Dharmender @ Lala FIR No. 406/06 PS Adarsh Nagar cross-examined by Sh. Deepak Sharma, Ld. Legal Aid Counsel for the accused during which he stated that at about 01.00 pm he reached on the spot. It took about 3 to 4 minutes to reach at the spot. He did not ask about the source of knife from the accused. He did not ask from the accused if he has committed any crime with the said knife or not. Some public persons were asked to join the investigation but none agreed. Neither their names and addresses nor their reasonable excuses were reduced into writing. He denied the suggestions put to him by Ld. Legal Aid Counsel.
Statement of accused and defence
4. After closure of prosecution evidence, the statement of accused U/S 313 CrPC was recorded. He stated that he was innocent and has been falsely implicated by planting case property upon him. No evidence in defence was led.
Arguments and appreciation of evidence in the light of legal propositions:
5. Having touched upon the statements of PWs, I shall consider the rival contention of parties. Accused has highlighted several infirmities in C No. 323/06 Unique ID No. 02404R0424512006 Page No. 5 State Vs. Dharmender @ Lala FIR No. 406/06 PS Adarsh Nagar investigation which are being discussed hereunder alongwith the explanations therefore advanced by Ld. APP for the State.
6. It is firstly highlighted by accused that the IO has not joined any independent public witness despite availability. Admittedly, several public 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.
7. 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 C No. 323/06 Unique ID No. 02404R0424512006 Page No. 6 State Vs. Dharmender @ Lala FIR No. 406/06 PS Adarsh Nagar 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 investigation. The same creates doubt regarding the fairness of the investigation.
8. It is also noteworthy that the most crucial part of the investigation has been conducted by the complainant ASI Ram Kishan. 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.
9. 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 either FIR was recoded prior in time or the documents were prepared later on and in such cases, benefit of C No. 323/06 Unique ID No. 02404R0424512006 Page No. 7 State Vs. Dharmender @ Lala FIR No. 406/06 PS Adarsh Nagar doubt is to be given the the accused.
10. 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.
11. 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 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.
Conclusion
12. 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 Dharmender @ Lala for the offence U/S 25/54/59 of Arms Act. C No. 323/06 Unique ID No. 02404R0424512006 Page No. 8
State Vs. Dharmender @ Lala FIR No. 406/06 PS Adarsh Nagar
13. 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)
today i.e. 13.12.2011 Metropolitan Magistrate-IV
Rohini Courts, Delhi
C No. 323/06
Unique ID No. 02404R0424512006 Page No. 9