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Delhi District Court

State vs . Jitender@ Jittu on 1 April, 2015

            IN THE COURT OF SH. PANKAJ ARORA, LD. MM­01, WEST, THC, DELHI. 
                                             
 FIR No.  904/04
 U/s 25/54/59 Arms Act 
 PS Punjabi Bagh
State Vs. Jitender@ Jittu


    ID No.                                             02401R6302012004
    Date of commission of offence                      12.10.2004
    Date of institution of the case                    25.10.2004
    Name of the complainant                            HC Ramesh Kaushik
    Name of accused and address                        Jitender   @   Jittu   S/o   Rattan   Lal,   R/o   C­3/6, 
                                                       Sultan Puri, Delhi.   
    Offence complained of or proved                    25 Arms Act.
    Plea of  the accused                               Plead not guilty
    Final order                                        Acquitted
    Date of judgment                                   01.04.2015.

                                                      JUDGMENT

Brief fact of the case are as follows:­ 1 Prosecution case against the accused is that on 12.10.2004 at Road No. 29, E­Block, Kuredan, J.J. Colony near Madipur under the jurisdiction of PS Punjabi Bagh, accused namely Jitender @ Jittu was apprehended by ASI Mohender Singh. In the formal search of accused, button actuated knife was recovered which was sealed and seized and present case FIR came to be registered at PS Punjabi Bagh. During investigation, accused was arrested and sent to police lock up. After completion of necessary formalities of investigation, charge sheet was filed in the court against the accused for trial. Charge for the offence punishable U/s 25 Arms Act was framed against the accused, to which he pleaded not guilty and claimed trial.

2 In order to establish its case against the accused, the prosecution examined only four witnesses in support of its case, which are as follows:­ State Vs. Jitender @ Jitu Page No. 1 of 7

1) ASI Ramesh Kaushik was examined as PW­1. He deposed that on 12.10.2004, he was posted at PS Punjabi Bagh as a HC. He further deposed that he was on patrolling duty in the area of road no. 29, E­Block, Madipur along with Ct. Devender. He further deposed that during patrolling duty, secret informer met him and told him that a person who is moving a on a red color motorcycle in the area for committing offence and he is now present at E Block, near Khatta. He further deposed that he informed to concerned SHO regarding secret information and he directed to him to take appropriate action. He further deposed that he reached at the spot along with secret informer and overpowered accused on the identification of secret informer. He further deposed that accused revealed his name as Jitender @ Jitu. He further deposed that he requested 4­5 passersby to join in the investigation but none agreed they left the spot without disclosing their name and address. He further deposed that he took cursory search of the accused and recovered one buttondar knife from right side pocket of the wearing pant of the accused. He further deposed that he prepared a sketch memo which is Ex. PW­1/A of the recovered knife after open the same with the help of button device. He further deposed that total length o recovered knife was 24 cm out which length of blade was 10.5 cm and width 2.6 cm and wording KK Rampuri (UP) was engraved on the blade of knife, the length of handle was 13.5 cm and same was having a brass button or operating the same. He further deposed that he prepared pulanda of the recovered knife and same was duly sealed with the seal of RK. He further deposed that after use, seal was handed over to Ct. Davender. He further deposed that he took sealed pulanda in police possession vide seizure which is Ex. PW­1/B. He further deposed that he also seized motorcycle of accused bearing no. DL­4SAA­9269 vide seizure memo which is ex. PW­1/B1. He further deposed that he prepared rukka which is Ex. PW­1/C and handed over to Ct. Davender for registration of FIR who took same to the PS and and got FIR registerd and came back at the spot along with ASI Mahender as IInd IO. He further deposed that he handed over accused along with sealed pulanda and relevant documents to IInd IO ASI Mahender. He further deposed that IInd IO ASI Mahender prepared Site Plan at his instance which is Ex. PW­1/D. He further deposed that ASI Mahender recorded his supplementary statement, after that he left the spot. The witness has correctly identified the case property which is Ex. P­1. During his cross­examination, he admitted the suggestion that he had furnished the information to State Vs. Jitender @ Jitu Page No. 2 of 7 concerned SHO but he did not remember whether information was furnished through telephone or his mobile at about 10.05 p.m. He further deposed that he did not remember the color of the wearing pant of th accused. He further deposed that he did not remember the exact date of festival of Diwali or Holi of that year. He further deposed that memos were prepared by him regarding recovery at the spot.

2) HC Devender was examined as PW­2. He deposed that on 12.10.2004, he was posted at PS P. Bagh as a Ct. He further deposed that on that day, he was on patrolling duty in the area of Road no. 29,E Block Madipur alongwith HC Ramesh. He further deposed that during patrolling duty, one secret informer met with HC Ramesh Kaushik and informed that one person who is moving on a red colour motorcycle in this area and he is now present at E Block near Khatta. He further deposed that then, HC Ramesh informed to concerned SHO regarding secret information and concerned SHO directed them to take appropriate action. He further deposed that thereafter, they reached at the spot alongwith secret informer and requested 4­5 passersby to join in the investigation but none agreed and left the spot without disclosing their name and addresses. He further deposed that then, they overpowered accused Jitender @ Jittu on the identification of secret informer while accused was sitting on a motorcycle no. DL 4S AA 9269. He further deposed that then, HC Ramesh took cursory search of the accused and recovered one button actuated knife from right side pocket of the wearing pent of accused. He further deposed that then, IO prepared sketch memo of recovered knife which is already Ex.PW1/A. He further deposed that the total length of recovered knife was 24 cm out of which length of blade was 10.5 cm and width was 2.5 cm and length of handle was 13.5 cm. He further deposed that the wording KK Rampuri (UP) was engraved on the blade of recovered knife. He further deposed that then IO prepared pullanda of said knife and sealed the same with the seal of RK. He further deposed that IO took recovered knife and said motorcycle into police possession vide respective seizure memo which are already Ex. PW1/B and PW1/B­1. He further deposed that after use, IO handed over seal to him. He further deposed that then, IO prepared rukka and handed over to him for registration of FIR. He further deposed that he took the same to the PS and got FIR registered and came back at the spot along with 2 nd IO ASI Mahender Singh. He further deposed that then Ist IO HC Ramesh handed over accused to the 2nd IO along with sealed pullanda and State Vs. Jitender @ Jitu Page No. 3 of 7 relevant documents. He further deposed that then 2nd IO prepared site plan at the instance of Ist IO. He further deposed that 2nd IO recorded supplementary statement of Ist IO and thereafter first IO left the spot. He further deposed that then 2nd IO interrogated accused and arrested him vide arrest memo Ex. PW2/A. He further deposed that personal search of accused was carried out as per personal search of accused Ex. PW2/B. He further deposed that thereafter accused was sent to police lock up after his medical examination and case property deposited in the malkhana. The witness was not cross­examined despite having given the opportunity.

3) SI Sultan Singh was the duty officer who registered the present FIR No. 904/04 which is already Ex. PW­3/A and made the endorsement on rukka which is already Ex. PW­1/C. The witness was not cross­examined despite having given the opportunity.

4) ASI Mahender Singh was examined as PW­4. He deposed that On 12.10.2004, he was posted at PP Madipur as ASI. He further deposed that on that day, the then SHO marked investigation of the present case to him. He further deposed that he along with Ct. Devender reached at the spot i.e. Road no. 29, E Block Madipur near Khatta where HC Ramesh Kaushik produced the accused Jitender @ Jitu along with sealed case property with seal of RK and seizure memo already Ex. PW1/B. He further deposed that HC Ramesh Kaushik also handedover to him seized motorcycle bearing registration no. DL­4SAA­9269 along with seizure memo thereof which is already Ex. PW1/B1. He further deposed that he has also handed over to me sketch memo which is already Ex. PW1/A. He further deposed that he prepared site plan already which is Ex. PW­1/D at the instance of HC Ramesh Kaushik. He further deposed that thereafter, I interrogated the accused and arrested the accused vise arrest memo which is already Ex. PW­2/A bearing my signatures at point B. he further deposed that thereafter, I got the accused medically examined at Maharaja Agarsen Hospital and thereafter he was taken to police lockup. He further deposed that on the next day accused was produced in the court and he was sent to JC. He further deposed that after completion of investigation, he filed the challan. The witness was cross­examined but nothing material came out in his cross­examination.

3 In his statement recorded u/s 313 Cr.P.C., accused denied the prosecution case in its entirety and stated that Accused stated that he was innocent and has falsely been implicated in this case. State Vs. Jitender @ Jitu Page No. 4 of 7 Accused opted not to lead DE.

4 Heard the Ld. APP for the State and Ld. Defence counsel for the accused and perused the judicial record carefully.

It is pertinent to mention here that it has been held in case of Sadhu Singh V/s State of Punjab 1997(3) Crime 55 the Hon'ble Punjab & Haryana High Court :­ "In a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubts. It is for the prosecution to travel the entire distance from may have to must have. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused."

As per chapter 22 rule 49 of the Punjab Police Rules it is necessary to record DD Entry of arrival and departure of the police official. Chapter 22 Rule 49 of Punjab Police Rules, 1934, is reproduced 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, whether 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 and Police Posts where Register No. II is maintained.

In the present case, the above said provision appears to have not been complied with by prosecution. The relevant entries regarding the arrival and departure of the police official has not been proved on record as the DD Writer was not examined and no explanation is given as to why DD Writer is not made the witness in the present case. At this juncture, it would be relevant to refer to a case law reported as Rattan Lal V/s State, 1987 (2) Crimes 29 the Hon'ble Delhi High Court "wherein it has been observed that 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 State Vs. Jitender @ Jitu Page No. 5 of 7 on the part of the prosecution."

In the present case, the above said provision appears to have not been complied with by prosecution.

In a case law reported as Anoop Joshi V/s State, 1992 (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 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 Roop Chand V/s The State of Haryana,1999 (1) C.L.R 69, the Hon'ble Punjab & Haryana High Court held as under:­ "It is well settled principle of the law that the Investigating Agency should join independent witnesses at the time of recovery of contraband articles, if they are available and their failure to do so in such a situation casts a shadow of doubt on the prosecution case. In the present case also admittedly the independent witnesses were available at the time of recovery but they refused to associate themselves in the investigation. This explanation does not inspire confidence because the police officials who are the only witnesses examined in the case have not given the names and addresses of the persons contacted to join. It is a very common excuse that the witnesses from the public refused to join the investigation. A police officer conducting investigation of a crime is entitled to ask anybody to join the investigation and on refusal by a person from the public the Investigating Officer can take action against such a person under the law. Had it been a fact that he witnesses from the public had refused to to join the investigation, the Investigating Officer must have proceeded against them under the relevant provisions of law. The failure to do so by the police officer is suggestive of the fact that the explanation for non­joining the witnesses from the public is an after thought and is not worthy of credence. All these facts taken together make the prosecution case highly doubtful''. It has been held by Hon'ble High Court of Delhi in Ramesh Prakash Vs. State 1999 VI AD (DELHI) 536 that, "the number of the FIR (Ex PW­3/B) given on the top of the aforesaid documents is in the same ink and in the same handwriting, which clearly, indicates that these documents were prepared at the same time. The prosecution has not received any explanation whatsoever as to under what circumstances number of the FIR (Ex. PW­3/B) had appeared on the State Vs. Jitender @ Jitu Page No. 6 of 7 top of the aforesaid documents.

This gives rise to two inferences that either the FIR (Ex. PW­3/B) was registered prior to the receipt of the secret information and alleged recovery of the contraband or number of the FIR was inserted in these document after its registration. In both the situations, is seriously reflect upon the veracity of the prosecution version given by Vijay (PW­5), Inspector O.P. Sharma (PW­6), SI Sehdev (PW­7) and SI Brijdender (PW­8) and creates a good deal of doubt about­recovery of the contraband in the manner alleged by the prosecution. Thus the benefit arising out of such a situation must necessarily go to the appellant".

5 It is observed that it is clear from the record that public persons were available at the spot and police officials have not made sincere efforts to make them as witness in this case. It is apparent from the testimony of police official PW­1 that some public persons were available at the spot. There is nothing on record if any written notice has been served to those passers­by who refused to join the investigation. Further, it has come on record through the prosecution evidence that the IO has done the writing work at the spot. When the IO has done the writing work at the spot itself which must have taken them some time, they ought to have made some sincere efforts in joining the passers­by as witnesses to the investigation which admittedly is not so in the present case. Thus, the parrot like narration of the facts by the prosecution witnesses cannot alone be said to be sufficient to arrive at the conclusion of guilt of accused. A grave doubt is also raised on the veracity of the testimony of prosecution witnesses on account of the apparent discrepancy in the documents Ex. As Ex. PW­1/A, Ex. PW­1/B & Ex. PW­1/B1. Admittedly, as per the prosecution case all these documents were prepared before registration of the FIR. When the FIR is yet to be registered, mentioning of the FIR number on the said documents without any explanation only leads to the conclusion that the said documents have not been prepared in the way and manner as asserted by the witness.

6 In view of the foregoing, accused namely Jitender @ Jitu is given benefit of doubt and is accordingly acquitted of the offence punishable U/s 25/54/59 Arms Act. He be set at liberty forthwith.

Announced in the open Court on 01.04.2015 (Pankaj Arora) MM­01 (West)/Delhi 01.04.2015 State Vs. Jitender @ Jitu Page No. 7 of 7 FIR No. 904/04 PS: P. Bagh 01.04.2015 Present: Ld. APP for the State.

Accused namely Jitender @ Jitu in person.

Vide separate judgment dictated in the open court, the accused namely Jitender @ Jitu is hereby acquitted for the commission of offence U/s 25 Arms Act.

Put up for filing of Bail Bond under Section 437A of Cr.P.C. by the accused on 04.04.2015.

(Pankaj Arora) MM­01 (West)/Delhi 01.04.2015 State Vs. Jitender @ Jitu Page No. 8 of 7