Delhi District Court
State vs Manish on 30 October, 2012
IN THE COURT OF SHRI BHUPINDER SINGH: MM: RC: DELHI State V/s MANISH FIR NO.275/06 PS: ASHOK VIHAR U/s 25/54/59 ARMS ACT. JUDGMENT
A) Sr. No. of the Case : 390/3
B) The date of commission : 13/04/2006
of offence.
C) The name of the complainant : Ct. Satbir Singh No.2069/NW,
PS Ashok Vihar, Delhi.
D) The name & address of accused: Manish S/o Late Sh. Ashok Sharma
E) Offence complained of : U/s 25/54/59 Arms Act
F) The plea of accused : Pleaded not guilty.
G) Final order : Acquitted
H) The date of such order : 30/10/2012
Date of Institution: 06/06/2006
Judgment reserved on: Not reserved
Judgment announced on: 30/10/2012
THE BRIEF REASON FOR THE JUDGMENT:-
1. In brief, the case of the prosecution is that on 13/04/06 at about 8:40 pm at Main Road, near Community Center Nimri Colony, Delhi within the jurisdiction of Police Station Ashok Vihar, accused was found in possession of knife of prohibited category without valid/requisite license in violation of notification of Delhi Govt. and thereby committed an offence U/s 25/54/59 Arms Act.
FIR NO.275/06 Page No. 1/62. After completion of investigation charge sheet was filed by the police U/s. 25/54/59 Arms Act of which cognizance was taken by this court.
Compliance of Sec.207 was carried out and complete set of documents was supplied to the accused.
3. Vide order dated 21.11.2007 charge U/s 25/54/59 Arms Act was framed against the accused by the Ld. Predecessor of this court to which accused pleaded not guilty and claimed trial. Thereafter matter was fixed for prosecution evidence.
4. Prosecution has examined 3 witnesses to prove the allegations against accused Manish. A brief scrutiny of examined PWs is as under.
PW-1 is Ct. Satbir Singh was on patrolling duty and the member of the raiding police party who has recovered the illegal weapon from the possession of the accused. He has proved his statement as Ex.PW-1/A, sketch memo of knife as Ex. PW-1/B, seizure memo as Ex. PW-1/C, site plan as Ex.PW-1/D, arrest memo as Ex. PW-1/E and personal search memo as Ex. PW-1/F, He also correctly identified the case property i.e. buttondar knife as Ex. P1.
PW-2 is Anil Yadav UDC, Home Department who proved the copy of notification No.F.13/203/78-Home(G) dtd.17/02/79 as Ex.PW-2/A. PW-3 is ASI G.T. Bhagat who proved the copy of FIR No.275/06 as Ex.PW-3/A and endorsement on rukka as Ex.PW-3/B. PW-4 is Ct. Bijender Singh who proved the DD No.32PP as Ex.PW-4/A. FIR NO.275/06 Page No. 2/6
5. P.E. was closed vide order dtd.05/10/12 and thereafter statement of accused was recorded under section 281 Cr.P.C. vide order of even date, to which the accused denied the charge and claimed to have been falsely implicated in this case. He declined to lead evidence in defence.
6. I have heard the arguments advanced by Ld. APP for the State as well as Ld. Counsel for the accused and have gone through the evidence and the material available on record.
7. In order to prove its case, the prosecution was required to prove beyond reasonable doubt, the recovery of the illegal weapon from the possession of the accused on the fateful day.
8. Chapter 22 Rule 49 of Punjab Police Rules, 1943, 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, weather 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 & FIR NO.275/06 Page No. 3/6 police posts where Register No. II is maintained."
In the instant case the story of the prosecution is that PW-1 Ct. Satbir Singh was on patrolling duty and on suspicion apprehended the accused along with the weapon. This witness have deposed that he was on patrolling. But the prosecution has not examined DD Writer to prove the DD entry vide which he was in the area on patrolling.
In Rattan Lal Vs. State 1987(2) Crimes 29, Hon'ble High Court of Delhi has observed that if the investigating agency deliberately ignores to comply with the provisions of an Act, the courts will have to approach their action with reservations and then the matter would be viewed by the court with suspicion. Failure to prove the DD entry does creates a doubt regarding presence of PWs at the place of recovery.
9. As has come from the evidence so far, none of the Police party had offered their search to the accused before taking his search and due to this the possibility of the weapon being planted on the accused cannot be ruled out. In view of this fact the conclusion can be arrived at that the seal remained with the IO or with any other member of the raiding party, therefore, the possibility of interference or tempering of the seal and the contents of the case property cannot be ruled out.
I am supported with the judgment of Ramji Singh V/s State of Haryana 2007 (3) R.C.R. (Criminal) 452, wherein the Hon'ble Punjab and Haryana High Court held in Para No. 7 as "The very purpose of giving seal to an independent person is to avoid tampering of the case property. It is well settled that till the case property is not dispatched to the forensic science laboratory, the seal should not be available to the prosecuting agency and in the absence of such a safeguard the possibility of seal, contraband and the samples being tampered with cannot be ruled out".There is nothing to FIR NO.275/06 Page No. 4/6 perceive that I.O. had followed the safeguard to which the accused is entitled to at the time of his arrest.
10. As per the testimonies of PWs, the knife was first seized and the the rukka was prepared which was sent for registration of FIR. This according to the witnesses FIR was registered after seizure of knife. However, the seizure memo bears the FIR No. It is obvious then at the time of seizure. FIR No. was not available and therefore, FIR No. could not have figured on the seizure memo. The very fact that the FIR No. finds mention on the seizure memo suggests that the seizure memo was prepared after the registration of FIR and is therefore, anti timed.
Hon'ble High Court of Delhi has held in Giri Raj V/s State 83 (2000) DELHI LAW TIMES 201, that "The prosecution has not offered any explanation whatsoever as to under what circumstances number of the FIR Ex. PW2/A had appeared on the top of the said documents, which were allegedly on the spot before its registration. This gives rise to two inferences that either the FIR (Ex. PW2/A) was recorded prior to the alleged recovery of the contraband or number of the said FIR was inserted in these documents after its registration. In both the situations, it seriously reflects upon the veracity of the prosecution version and creates a good deal of doubt about recovery of the contraband in the manner alleged by the prosecution. That being so, the benefit arising out of such a situation must necessarily go to the appellant". This erodes the credibility of the witnesses who have stated that the seizure memo was prepared on the spot and before the registration of FIR.
11. In light of above discussions and observations, keeping in view the several loopholes and dent in the story of the prosecution regarding recovery of the said knife from the possession of the accused, I am of the opinion that the same FIR NO.275/06 Page No. 5/6 remains in the shadow of doubt.
12. Prosecution is under legal obligation to prove each and every ingredient of the offence alleged against the accused beyond any reasonable doubt. Suspicion how so ever strong it may be, cannot replace the standard of proof required to establish the guilt of the accused. In the present case, the prosecution has miserably failed to discharge its onus. The evidence available on record is complied with unexplained holes which are not sufficient to substantiate the guilt of the accused and benefit of doubt must go to the accused. Accordingly the accused deserves acquittal for offence charge U/s 25/54/59 Arms Act.
13. It is ordered accordingly.
(Bhupinder Singh) Metropolitan Magistrate Rohini Courts : Delhi Announced in the open court on October 30th, 2012.
FIR NO.275/06 Page No. 6/6