Delhi District Court
In A Case Law Reported As Anoop Joshi vs . State 1999(2) on 25 October, 2018
IN THE COURT OF SH. PRANJAL ANEJA
METROPOLITAN MAGISTRATE-01, SHAHDRA DISTRICT,
KARKARDOOMA COURTS, DELHI
State v. Ravi Kumar
FIR No. 118/10
PS: Madhu Vihar
U/s 25/54/59 Arms Act & 482 IPC
a. Comp. ID no. of the case : 76155/2016
b. Date of commission of offence : 12.04.2010
c. Date of institution of the case : 22.05.2010
d. Name of complainant : Ct. Sudhakar
e. Name of accused : Ravi Kumar,
S/o Sh. Sher Singh
R/o 28/125, Shamshan
Ghat, Kasturba Nagar,
Delhi.
f. Offence complained of : U/s 25/54/59 Arms Act &
482 IPC
g. Plea of accused : Pleaded not guilty
h. Arguments heard on : 31.03.2018
i. Final order : Acquitted
j. Date of judgment : 25.10.2018
JUDGMENT
1. Briefly stating, the case as per prosecution is that on 12.04.2010 at about 12:05 pm at Madhu Vihar T-Point, Near police booth, Delhi, the accused was found having possession of one FIR No. 118/10 PS Madhu Vihar State V. Ravi Kumar 25.10.2018 Pg No. 1/15 buttondar knife in contravention of the notification of Delhi Administration Act and was also found in possession of one motorcycle with a fake registration no. DL 7SBC 0823 while the original registration number of the said motorcycle was DL 4SBC 4136 wanted as stolen property in case FIR no. 330/09 PS Uttam Nagar belonging to one S.L. Arora and thus committed an offence punishable u/s 25/54/59 Arms Act and 482 IPC.
2. After completion of investigation, charge-sheet was filed. Upon taking cognizance of the offence, accused was summoned and supplied copy of charge-sheet in compliance of section 207 of Cr.P.C. Charge u/s 25/54/59 Arms Act & U/s 482 IPC was framed on 11.09.2014. Accused pleaded not guilty and claimed trial.
3. In order to prove its case the prosecution examined HC Sudhakar as PW-1 and IO/ASI Anirudh as PW-2. Statement U/s 294 Cr.P.C. of accused was recorded on 14.11.2017 whereby he did not dispute FIR (Ex. A1) and DD no. 3A dt. 12.04.2010 (Ex. A2). Thus, the witnesses for said documents were not summoned.
4. PE was closed on 06.12.2017. Statement of accused u/s 313 Cr.P.C was recorded on 18.12.2017. Accused did not opt to lead defense evidence.
5. I have heard the arguments of Ld. APP for the State as well as on behalf of accused. I have also gone through the evidence on record.
6. In order to establish the guilt of the accused, prosecution FIR No. 118/10 PS Madhu Vihar State V. Ravi Kumar 25.10.2018 Pg No. 2/15 was under obligation to prove that on 12.04.2010 at about 12:05 pm at Madhu Vihar T-Point, Near police booth, Delhi, the accused was found having possession of one buttondar knife in contravention of the notification of Delhi Administration Act and was also found in possession of one stolen motorcycle with a fake registration no. DL 7SBC 0823.
7. The testimonies of prosecution witnesses is touched upon in brief as follows:-
7.1 PW1 HC Sudhakar deposed that on 12.04.2010, he alongwith Ct. Nagender was on vehicle checking duty at Madhu Vihar Chowk, T-Point and at about 12.05 a.m. he signaled to stop two persons coming from the side of Chander Vihar on a motorcycle as they were not wearing helmet but driver of the motorcycle, suddenly applied break and pillion rider immediately get down from the said motorcycle and flee away from the spot however the driver of motorcycle was apprehended by them after chasing for about 10 steps whose name later on came to known as Ravi and upon formal search of accused, one buttondar knife was recovered from right pocket of his track suit. PW-1 further deposed that Ct.
Nagender informed the PS upon which IO/HC Anirudh reached at the spot and accused alongwith motorcycle bearing no. DL 7SBC 0823 and recovered knife was handed over to him. PW-1 further deposed that IO recorded his statement Ex. PW1/A, prepared sketch of knife Ex. PW1/B, took the measurement of knife and FIR No. 118/10 PS Madhu Vihar State V. Ravi Kumar 25.10.2018 Pg No. 3/15 sealed the same with the seal of BDS and seal after use handed over to him. PW-1 further deposed that after interrogation, it came to know that accused is not the owner of the motorcycle make Baja Pulsor and on inquiry by IO, it came to know that registered owner of the motorcycle is Devashish Sarkar and on the instruction of IO, he went to the house of Devashish Sarkar at B-174, New Ashok Nagar where said Devashish Sarkar told that his motorcycle bearing abovesaid registration number was lying in his house and recovered motorcycle did not belong to him. PW-1 further deposed that he stated the said facts to the IO and thereafter, IO took the registration number plate off and sealed it with the seal of BDS and seized the recovered knife, fake number plate and motorcycle vide seizure memo Ex. PW1/C, Ex. PW1/D and Ex. PW1/E, recorded the disclosure statement of accused Ex. PW1/F, prepared rukka and got registered the FIR through Ct. Nagender and thereafter, arrested and personally searched the accused vide memo Ex. PW1/G & Ex. PW1/H. PW1 correctly identified accused in the court. PW1 also correctly identified the case property i.e. knife as Ex. P1 & number plate as Ex. P2.
In cross-examination, PW1 was not able to tell whether any departure DD entry was made by him or not. PW-1 stated that he did not make any entry in the register regarding checking of vehicles; they did not offer their personal search to the accused prior to his formal search; he did not ask any public person to join the FIR No. 118/10 PS Madhu Vihar State V. Ravi Kumar 25.10.2018 Pg No. 4/15 investigation; he did not try to apprehend the pillion rider and he did not investigate regarding motorcycle. PW-1 stated that he received the seal at about 03.00 a.m. and when he went to the house of Devashish Sarkar then he had not made any DD entry and did not try to join the investigation in the present case to Devashish Sarkar. PW-1 further stated that IO had not tried to apprehend the pillion rider in his presence during the complete investigation on that day.
7.2 PW-2 is IO ASI Anirudh who conducted the investigation of the present case and deposed on receiving call regarding one apprehended with knife during checking at Madhu vihar market police booth, New Delhi, he went at the spot where Ct. Sudharkar and Ct. Nagender handed over the accused Ravi with one buttondar knife and one motorcycle to him and he recorded the statement of Ct. Sudhakar Ex PW1/A. PW- 1 further deposed that on inquiry regarding vehicle through auto match it transpired that accused Ravi Kumar is not the owner of the vehicle bearing no. DL 7SBC 0823 and thereafter, he prepared rukka Ex. PW2/A and get the FIR registered through Ct. Nagender and thereafter, prepared site plan at the instance of Ct. Sudhakar Ex. PW2/B and prepared the sketch memo of buttondar knife Ex. PW2/C. PW-1 further supported the case of prosecution and deposed that he conducted further investigation and seized the case property i.e. knife and fake number plate, sealed the same with the FIR No. 118/10 PS Madhu Vihar State V. Ravi Kumar 25.10.2018 Pg No. 5/15 seal of BDS, prepared seizure memos of the case property and motorcycle, arrest memo and personal search memo and recorded disclosure statement of accused. PW-2 has correctly identified the accused.
In cross-examination, PW-2 stated that he reached at the spot at about 12.20 p.m. and admitted that spot is a public place and person were going through there. PW-2 stated that he asked public persons to join the investigation but none agreed to join the same. PW-2 further stated that there is no other vehicle near the spot except the vehicle of accused and he did not make any specific mark on the buttondar knife. PW-2 further stated that he handed over the rukka to Ct. Nagender at about 11.30 p.m and he returned back at the spot at about 02.30 a.m. PW-2 further stated that he had done the written work while sitting on patri at the spot under the street light but the street light is not shown in the site plan. Further PW-2 was unable to tell the original number of motorcycle, name of police official who got conducted the medical examination of accused and to whom the intimation regarding the arrest of accused was given.
7.3 In examination of accused u/s 313 Cr.P.C., accused stated that he has been falsely implicated in the present case and he is innocent and police obtained his signatures on various documents. He did not opt to lead defence evidence.
FIR No. 118/10 PS Madhu Vihar State V. Ravi Kumar 25.10.2018 Pg No. 6/15
8. Considering the points contended on behalf of accused, it is observed that there is no independent witness joined in the investigation. In State of Punjab v. Balbir Singh, AIR 1994 SC 1872, the Hon'ble Supreme Court held that:
"It therefore emerges that non-compliance of these provisions i.e. Sections 100 and 165 Cr.P.C. would amount to an irregularity and the effect of the same on the main case depends upon the facts and circumstances of each case. Of course, in such a situation, the court has to consider whether any prejudice has been caused to the accused and also examine the evidence in respect of search in the light of the fact that these provisions have not been complied with and further consider whether the weight of evidence is in any manner affected because of the non-compliance. It is well-settled that the testimony of a witness is not to be doubted or discarded merely on the ground that he happens to be an official but as a rule of caution and depending upon the circumstances of the case, the courts look for independent corroboration. This again depends on question whether the official has deliberately failed to comply with these provisions or failure was due to lack of time and opportunity to associate some independent witnesses with the search and strictly comply with these provisions. [Emphasis supplied]"
FIR No. 118/10 PS Madhu Vihar State V. Ravi Kumar 25.10.2018 Pg No. 7/15 Considering facts and circumstances of the present case, there was no lack of time and opportunity to associate some independent witnesses with the search and strictly comply with the provisions of Code of Criminal Procedure. Merely mentioning that public persons were requested to joined the investigation is of no avail. Name of those persons are not mentioned. PW1 HC Sudhakar did not even ask any public person to join investigation, as seen from his deposition. It assumes importance, since he was the one who initially apprehended the accused and IO came later on call. Prosecution has not examined any other independent public witness. Further, it is noted that Devashish Sarkar, to whom Ct. (now HC) Sudhakar visited, is not made as witness in the present case who, as per IO, stated that motorcycle bearing no. DL 7SBC 0823 is lying in his house and stolen motorcycle does not belong to him. Neither the alleged real owner S.L. Arora has been made a witness by the police. No document of the motorcycle has even been tendered in evidence. Regarding the importance of joining independent witness during investigation in a case like the present one, 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 FIR No. 118/10 PS Madhu Vihar State V. Ravi Kumar 25.10.2018 Pg No. 8/15 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 case law Nanak Chand Vs. State of Delhi 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".
In Sadhu Singh versus State of Punjab, (1997) 3 Crimes 55 (PH) wherein it is held that:
FIR No. 118/10 PS Madhu Vihar State V. Ravi Kumar 25.10.2018 Pg No. 9/15 "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 public witnesses. It is further held that a stereotype statement of non availability of any public witness will not be sufficient particularly when at the relevant time, it was not difficult to procure the services of public witness."
Keeping in view of the above authorities, I am of the considered opinion that prosecution has failed to show a genuine effort to make a public witness with regard to the apprehension of accused and alleged recovery of Knife and motorcycle from the possession of the accused.
9. Regarding entry and departure of police personnels, Chapter 22 rule 49 of the Punjab Police Rules, is reproduced herein for ready reference:
''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, whether posted at the police station or elsewhere, with a statement of the nature of their duty. This FIR No. 118/10 PS Madhu Vihar State V. Ravi Kumar 25.10.2018 Pg No. 10/15 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 and Police Posts where Register No. II is maintained."
At this juncture, it would be relevant to refer to a case law reported as Rattan Lal V/s State, 1987 (2) Crimes 29 in which the Hon'ble Delhi High Court has been held as under:
"if the investigating agency deliberately ignores to comply with the provisions of the Act the courts will have to approach their action with reservations. The matter has to be viewed with suspicion if the provisions of law are not strictly complied with and the least that can be said is that it is so done with an oblique motive. This failure to bring on record, the DD entries creates a reasonable doubt in the prosecution version and attributes oblique motive on the part of the prosecution."
In the present case, the above said provision has not been complied with by prosecution. The relevant entries regarding the arrival and departure of the police officials have not been proved on record.
FIR No. 118/10 PS Madhu Vihar State V. Ravi Kumar 25.10.2018 Pg No. 11/15 This raises a doubt regarding the presence of police on the spot and all consequential event such as arrest, seizure, investigation etc.
10. Further observed that the seal after use was not handed over to any independent person. Seal was handed over to PW-1 HC Sudharkar. It appears that no efforts was made to hand over the seal after use to independent person. I am conscious of precedent laid down by Hon'ble Delhi High Court in Safiullah v. State, 1993 (1) RCR (Criminal) 622, that:
"10. The seals after use were kept by the police officials themselves. Therefore the possibility of tampering with the contents of the sealed parcel cannot be ruled out. It was very essential for the prosecution to have established from stage to stage the fact that the sample was not tampered with. ..... Once a doubt is created in the preservation of the sample the benefit of the same should go to the accused."
Hon'ble Punjab & Haryana High Court also held in Ramji Singh v. State of Haryana, 2007 (3) RCR (Criminal) 452, that "7. The very purpose of giving seal to an independent person is to avoid tampering of the case property."
Hence, considering the legal position, the benefit of doubt should be given to the accused.
11. Now, I consider the observation made by Hon'ble Delhi FIR No. 118/10 PS Madhu Vihar State V. Ravi Kumar 25.10.2018 Pg No. 12/15 High Court in Giri Raj v. State, 83 (2000) DLT 201. In the present case, the sketch and seizure memo of case property Ex.PW2/C (Ex. PW1/B) and Ex.PW1/C, Ex. PW1/D & Ex. PW1/E respectively bear the number of FIR. At the time of the seizure, FIR number was not available and therefore, FIR number could not have figured on the seizure memos or on the sketch. The existence of FIR number on seizure memos suggests that the seizure memos were prepared after the registration of FIR and is therefore antetime. It is not the case of prosecution that FIR number was later appended/mentioned upon these memos. This erodes the credibility of the witnesses who have stated that the sketch and seizure memo was prepared on the spot and before the registration of FIR. That being so, the benefit arising out of such a situation must necessarily go to the accused.
12. Furthermore, it also came on record that 1 st IO/PW1 or accompanying police personnel Ct. Nagender did not give their personal search to any one before checking the accused. When the raiding members took the personal search of the accused then they must have offered their personal search to someone so that the possibility of false plantation of the property could be ruled out. In the present case no such precaution was taken by the IO and as such the possibility of false planting the case property upon the accused could not be ruled out. Further noted that in the rukka IO/HC Aniruddh states that upon reaching the spot he personally searched the accused and found the knife from his right pocket. But such recovery appears to be meaningless as recovery of knife was already made by HC Sudhakar who made a call DD no. 3A dated 12.04.2010 in this regard stating such recovery. This raises doubt upon the proceedings of IO/HC Aniruddh as to the alleged recovery of Knife.
FIR No. 118/10 PS Madhu Vihar State V. Ravi Kumar 25.10.2018 Pg No. 13/15 In the judgment titled as S.L.Goswami v. State of M.P reported as 1972 CRI.L.J.511(SC) 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..........................."
Regarding the charge of Section 482 IPC, as already noted, no witness such as the registered owner or owner of number mentioned on alleged fake number plate has been examined in this regard nor any document with respect to the registration etc. of the alleged vehicle has been tendered in evidence.
FIR No. 118/10 PS Madhu Vihar State V. Ravi Kumar 25.10.2018 Pg No. 14/15
13. In view of the above appreciation of evidence, no confidence is inspired to record any conviction in this case. It is the cardinal principle of criminal justice delivery system that the prosecution has to prove the guilt of accused beyond reasonable doubts. No matter how weak the defence of accused is, but the golden rule of criminal jurisprudence is that the case of the prosecution has to stand on its own legs. It is evident from the above analysis that prosecution has failed to establish that the accused committed the offence charged upon him.
14. Accordingly, the accused Ravi Kumar is acquitted in this case.
Digitally signed by PRANJAL ANEJA PRANJAL Location:
Karkardooma
ANEJA Courts, Delhi
Directly Dictated on the Date: 2018.10.25
17:29:15 +0530
Computer System and
Announced in the open (PRANJAL ANEJA)
Court on 25.10.2018 Metropolitan Magistrate-01
Shahdra District, Karkardooma
Courts, Delhi
FIR No. 118/10 PS Madhu Vihar State V. Ravi Kumar 25.10.2018 Pg No. 15/15