Delhi District Court
State vs Sunder Nagar on 18 October, 2011
IN THE COURT OF MS. SHUCHI LALER : MM-04 : KKD COURTS :
DELHI
FIR No. 373/06
U/s 25 Arms Act
PS New Ashok Nagar
STATE Vs SUNDER NAGAR
JUDGMENT:
A Sr. No. of the case 02402R0 54899 2006 B Date of institution 14/09/2006 C Date of commission of 06/09/2006 offence D Name of the complainant HC Sompal
E Name of the accused & Sunder Nagar S/o Sh. Vijay Nagar, R/o his parentage and Balbir Ka Makaan, Vill. Kondli, Delhi.
address F Offence complained of U/s 25 Arms Act G Plea of the accused Pleaded not guilty H Order Reserved on 18/10/2011 I Final order Acquitted J Date of such order 18/10/2011 Brief reasons for the decision of the case.
1. In brief, the case of the prosecution is that on 06/09/06 at about 07.10 pm at Khoda Bus Stand, Mayur Vihar Phase-III, Delhi, the accused Sunder Nagar was found in possession of a button actuated knife without any permit or licence/OPT in contravention of the notification issued by Government of NCT, Delhi. After investigation, challan was filed by the police.
2. Complete set of copies was supplied to the accused and after hearing arguments, vide order dated 27/05/09, charge for punishable offence FIR No. 373/06 PS New Ashok Nagar State Vs. Sunder Nagar Page No... 1/14 u/s 25 Arms Act was framed against the accused by the Ld. Predecessor to which the accused pleaded not guilty and claimed trial.
3. Prosecution in support of present case examined the following six witnesses.
(i) HC Sompal Singh appeared as PW-1 who deposed that on 06.09.2006, he along with SI Yogender and Ct. Puran was on patrolling duty and at about 07:00 pm, when they reached near St. Marry School, Mayur Vihar Phase-III, Delhi, SI Rajesh Dangwal, Ct.
Sanjeev, Ct. Dharmender and Ct. Dheeraj met them and at about 07:10 pm, they all reached at Khoda Bus Stand, Mayur Vihar Phase- III, Delhi, they saw that three boys were coming on a motorcycle bearing no. DL-5SS-8275 from the side of khoda Colony, UP and on suspicion, the motorcycle was stopped and the boys were apprehended. On enquiry, they disclosed their names as Ravinder, Govind and Sunder Nagar. Ravinder was riding the motorcycle, Govind was sitting in the middle and Sunder Nagar was sitting at the last. PW-1 conducted the personal search of the accused Sunder Nagar and one button actuated knife was recovered from the right side of the pant of the accused Sunder Nagar. PW-1 prepared the sketch of the knife Ex.PW-1/A. Total length of the knife was 24.0 cm, width of the knife 2.5 cm, length of blade 11 cm and handle 13.0 cm. Thereafter, he prepared the pullanda of the knife and sealed the same with the seal of SPK and after use, the seal was handed over to Ct. FIR No. 373/06 PS New Ashok Nagar State Vs. Sunder Nagar Page No... 2/14 Dharmender. He seized the same vide Memo Ex. PW-1/B. PW-1 prepared the rukka Ex.PW-1/C and handed over the same to Ct. Dharmender for the registration of the case and after registration of the case, Ct. Dharmender along with IO HC Yudhvir Singh came back at the spot along with copy of FIR and original rukka. Thereafter, PW-1 handed over the seizure memo, case property and the accused to the IO HC Yudhvir Singh. IO prepared the site plan at the instance of PW1. Thereafter, IO interrogated and arrested the accused vide Memo Ex.PW-1/D and personal search of the accused was conducted vide Memo Ex.PW-1/E. PW-1 correctly identified the accused and the case property i.e the knife Ex P1. PW-1 denied the suggestion that nothing was recovered from the possession of the accused and the accused was lifted from his house and has been falsely implicated in the present case. PW-1 further denied the suggestion that all the writing work was done at PS and he was deposing falsely.
(ii) HC Dharmender appeared as PW-2 who deposed that on 06.09.2006, at about 07:00 pm, he along with SI Rajesh Dangwal, Ct. Sanjeev and Ct. Dheeraj was on patrolling duty at St. Marry School, Mayur Vihar Phase-III, Delhi. Meanwhile, SI Yogender, Ct. Puran Chand and HC Sompal also came there. At about 07:10 pm, when they reached at Khoda Bus Stand, they saw that three boys were coming on a motorcycle bearing no. DL-5SS-8275 from the side of khoda Colony, UP and on suspicion, the motorcycle was stopped and FIR No. 373/06 PS New Ashok Nagar State Vs. Sunder Nagar Page No... 3/14 the boys were apprehended. On enquiry, they disclosed their names as Ravinder, Govind and Sunder Nagar. Ravinder was riding the motorcycle, Govind was sitting in the middle and Sunder Nagar was sitting at the last. HC Sompal conducted the personal search of the accused Sunder Nagar and one button actuated knife was recovered from the right side of the pant of the accused Sunder Nagar. HC Sompal prepared the sketch of the knife Ex.PW-1/A. Total length of the knife was 24.0 cm, width of the knife 2.5 cm, length of blade 11 cm and handle 13.0 cm. Thereafter, HC Sompal prepared the pullanda of the knife and sealed the same with the seal of SPK and after use, the seal was handed over to PW-2. HC Sompal seized the same vide Memo Ex. PW-1/B. HC Sompal prepared the rukka Ex.PW-1/C and handed over the same to PW-2 for the registration of the case and after registration of the case, PW-2 along with IO HC Yudhvir Singh came back at the spot along with copy of FIR and original rukka. Thereafter, HC Sompal handed over the seizure memo, case property and the accused to the IO HC Yudhvir Singh. IO HC Yudhvir Singh prepared the site plan at the instance of HC Sompal. Thereafter, IO interrogated and arrested the accused vide Memo Ex.PW-1/D and personal search of the accused was conducted vide Memo Ex.PW-1/E. PW-2 correctly identified the accused and the case property i.e the knife Ex P1. PW-2 denied the suggestion that nothing was recovered from the possession of the accused and the accused FIR No. 373/06 PS New Ashok Nagar State Vs. Sunder Nagar Page No... 4/14 was lifted from his house and has been falsely implicated in the present case. PW-2 further denied the suggestion that all the writing work was done at PS and he was deposing falsely.
(iii) HC Sanjeev Kumar appeared as PW-3 who deposed that on 06.09.2006, at about 07:00 pm, he along with SI Rajesh Dangwal, Ct. Dharmender and Ct. Dheeraj was on patrolling duty at St. Marry School, Mayur Vihar Phase-III, Delhi. Meanwhile, SI Yogender, Ct. Puran Chand and HC Sompal also came there. When they reached at Khoda Bus Stand, they saw that three boys were coming on a motorcycle from the side of khoda Colony, UP and on suspicion, the motorcycle was stopped and the boys were apprehended. On enquiry, they disclosed their names as Ravinder, Govind and Sunder Nagar. Ravinder was riding the motorcycle, Govind was sitting in the middle and Sunder Nagar was sitting at the last. All of those boys were formally searched. SI Yogender Sharma took the formal search of the accused Ravinder and found one Dessi Katta, Govind was search by SI Rajesh Dungwal and one Desi Revolver and three alive cartridges were found and Sunder Nagar was searched by HC Sompal and one button actuated knife was recovered from possession of the accused Sunder Nagar. SI Rajesh Dungwal prepared the pullanda of Desi Revolver and three live cartridges and sealed the same with the seal of RD. Thereafter, PW-3 took the rukka for the registration of the case regarding the recovery of Desi Revolver and three live cartridges. FIR No. 373/06 PS New Ashok Nagar State Vs. Sunder Nagar Page No... 5/14 PW-3 correctly identified the accused. PW-3 denied the suggestion that nothing was recovered from the possession of the accused and the accused was lifted from his house and has been falsely implicated in the present case. PW-3 further denied the suggestion that all the writing work was done at PS and he was deposing falsely.
(iv) HC Dheeraj Singh appeared as PW-4 who deposed that on 06.09.2006, at about 07:00 pm, he along with SI Rajesh Dangwal, Ct. Dharmender and Ct. Sanjeev was on patrolling duty at Saint Marry School, Mayur Vihar Phase-III, Delhi. Meanwhile, SI Yogender, Ct. Puran Chand and HC Sompal also came there. When they reached at Khoda Bus Stand, they saw that three boys were coming on a motorcycle from the side of khoda Colony, UP and on suspicion, the motorcycle was stopped and the boys were apprehended. On enquiry, they disclosed their names as Ravinder, Govind and Sunder Nagar. Ravinder was riding the motorcycle, Govind was sitting in the middle and Sunder Nagar was sitting at the last. All of those boys were formally searched. SI Rajesh Dangwal took the personal search of the accused Govind and found one Country made pistol from the left side of the pant of Govind and three alive cartridges from the right side of his pant. SI Yogender took the formal search of the accused Ravinder and found one Country made pistol of 315¨ bore. HC Sompal formally searched the accused Sunder Nagar and one button actuated knife was recovered from possession of the accused Sunder Nagar. PW-4 FIR No. 373/06 PS New Ashok Nagar State Vs. Sunder Nagar Page No... 6/14 correctly identified the accused and the case property i.e. the knife Ex.P1. PW-4 denied the suggestion that nothing was recovered from the possession of the accused and the knife was planted upon the accused and the accused was lifted from his house and has been falsely implicated in the present case and all the writing work was done while sitting at PS and he was deposing falsely.
(v) HC Puran Chand appeared as PW-5 who deposed that on 06.09.2006, he along with SI Yogender and HC Som Pal was on patrolling duty and at about 07:10 pm, when they reached at Khoda Bus Stand, SI Rajesh Dangwal, Ct. Sanjeev, Ct. Dharmender and Ct. Dheeraj met them, they saw that three boys were coming on a motorcycle from the side of khoda Colony, UP and on suspicion, the motorcycle was stopped and the boys were apprehended. On enquiry, they disclosed their names as Ravinder, Govind and Sunder Nagar. Ravinder was riding the motorcycle, Govind was sitting in the middle and Sunder Nagar was sitting at the last. HC Sompal conducted the personal search of the accused Sunder Nagar and one button actuated knife was recovered from the right side of the accused Sunder Nagar. HC Sompal prepared the sketch of the knife Ex.PW-1/A. Total length of the knife was 24.0 cm, width of the knife 2.5 cm, length of blade 11 cm and handle 13.0 cm. Thereafter, the pullanda of the knife was prepared and the same was sealed with the seal of SPK and after use, the seal was handed over to Ct. FIR No. 373/06 PS New Ashok Nagar State Vs. Sunder Nagar Page No... 7/14 Dharmender. HC Sompal seized the same vide Memo Ex. PW-1/B. HC Sompal prepared the rukka Ex.PW-1/C and handed over the same to Ct. Dharmender for the registration of the case and after registration of the case, Ct. Dharmender along with IO HC Yudhvir Singh came back at the spot along with copy of FIR and original rukka. Thereafter, HC Sompal handed over the seizure memo, case property and the accused to the IO HC Yudhvir Singh. IO HC Yudhvir prepared the site plan. Thereafter, the accused was arrested vide Memo Ex.PW-1/D and personal search of the accused was conducted vide Memo Ex.PW-1/E. PW-5 correctly identified the accused and the case property i.e the knife Ex P1. PW-5 denied the suggestion that nothing was recovered from the possession of the accused and the knife was planted upon the accused and he was deposing falsely.
(vi) ASI Yudhvir Singh appeared as PW-6 who deposed that on 06.09.2006, he along with Ct. Dharmender reached at the spot at Khoda Bus Stand and Ct. Dharmender handed over the copy of FIR and original rukka to HC Sompal. Thereafter, HC Sompal handed over the seizure memo, case property and the accused to PW-6. PW-6 prepared the site plan Ex.PW-6/A. Thereafter, he interrogated and arrested the accused vide Memo Ex.PW-1/D and personal search of the accused was conducted vide Memo Ex.PW-1/E. PW-6 correctly identified the accused and the case property i.e the knife Ex P1. PW-6 denied the suggestion that nothing was recovered from the possession FIR No. 373/06 PS New Ashok Nagar State Vs. Sunder Nagar Page No... 8/14 of the accused and the knife was planted upon the accused and he was deposing falsely.
4. Statement of accused was recorded wherein he pleaded innocence and false implication in this case, however, he did not wish to examine any witness in support of his defence.
5. I have heard the Ld. APP for State and Ld. Defence Counsel and have perused the record. After going through the rival contentions as well as the evidence led by the prosecution and the material on record, I am of the considered opinion that the prosecution has failed to bring home the guilt against the accused.
It is pertinent to mention that no independent witness from the place of recovery of the alleged knife has been joined in the investigation despite the fact that admittedly public persons were present at the spot. PW-1 has stated that he did not record the statement of any public witness.
Sec.100 of Cr.P.C. mandates that while conducting search under chapter VII, two or more independent and respectable inhabitants of the locality (in which the place to be search is situated or of any other locality, if no such inhabitants of the said locality is available or is willing to be a witness to the search), shall be called upon to attend and witness the search. Furthermore, the officers conducting search may issue an order in writing in this regard. In the case titled as Nanak Chand Vs. State of Delhi, 1992(1) R.C.R. (Cr.) FIR No. 373/06 PS New Ashok Nagar State Vs. Sunder Nagar Page No... 9/14 412, the Hon'ble High Court of Delhi observed that "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 witness from the public specially when they are available, may, as in the present case creates doubt. They have again, churned out a stereo typed version."
The explanation put forth by the prosecution for non joining of independent witness appears to be implausible and no notice whatsoever was given to the persons refusing to join the investigation. This creates a doubt on the recovery of button actuated knife from the possession of the accused.
No efforts were made to hand over the seal after use to independent public person and in such cases, in view of Saifulla V/s State 1998 (1) CCC 497 (Delhi) and Gaffar V/s State 1996 JCC 497 (Delhi) benefit of doubt has to be given to the accused. PW-1 HC Sompal has deposed that he seized the knife and sealed it with the seal of SPK. He has mentioned that the seal was handed over to Ct. Dharmender. There is no memo on record either of handing over of said seal or of the return of the seal.
Further from the record, it appears that after the apprehension of the accused but before taking the formal/ casual search of the accused, police official(s) had not offered their own FIR No. 373/06 PS New Ashok Nagar State Vs. Sunder Nagar Page No... 10/14 search to the accused before taking his search. At this juncture, it would be appropriate to refer to the judgment of the Hon'ble Orissa High Court reported as Rabindernath Prusty vs. State of Orissa, wherein it was held as under:-
"10. The next part of the prosecution´s case is relating to the search and recovery of Rs. 500/- from the accused. One of the formalities that has to be observed in searching a person is that the searching Officer and others assisting him should give their personal search to the accused before searching the person of the accused. (See AIR 1969 SC 53 : Cri. L.J 279), State of Bihar Vs. Kapil Singh). This rule is meant to avoid the possibility of implanting the object which was brought out by the search. There is no evidence on record whatsoever that the raiding party gave their personal search to the accused before the latter's person was searched. No independent witness had witnessed the search. Being guided by above said case law, it can be said that search of the accused by police official(s) was in complete violation and the same can be said to be illegal.¨ There is also an admitted discrepancy as to the preparation of the documents viz. sketch of the knife, Ex. PW-1/A and the seizure memo of knife Ex.PW-1/B, as these documents bear FIR Number when these have been prepared prior to the registration of the FIR. Once the documents have been prepared prior to the registration of the FIR, there is nothing for the IO to add FIR Number on the said FIR No. 373/06 PS New Ashok Nagar State Vs. Sunder Nagar Page No... 11/14 documents. I am fortified in my opinion by the judgment titled as Mohd. Hasim Vs. State, 1999 VI AD (DELHI) 569 wherein it has been observed "Documents prepared before registering the FIR bears FIR Number, meaning thereby either FIR was recorded posterior in time or that documents were prepared after the recording the FIR, and was held that in both case, prosecution case would collapse." Thus, this contradiction of noting of FIR Number in the sketch and seizure memo, which admittedly as per prosecution case, have been prepared prior to registration of FIR raises a grave doubt on the veracity of the prosecution case as to the apprehension of the accused with button actuated knife.
As per the Punjab Police Rules, entry is mandatorily required to be made as regards the hour of arrival and departure of police personnel on duty. Chapter 22 Rule 49 of Punjab Police Rules, 1934, 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, 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.
FIR No. 373/06 PS New Ashok Nagar State Vs. Sunder Nagar Page No... 12/14 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 has not been complied with by prosecution. As per the prosecution version, at the time of the apprehension of the accused with the button actuated knife in his possession, police personnel were on patrolling duty but the DD entry vide which they had left the police station has not been brought on record. Even the number of the said DD entry made in Register No. II has not been brought on judicial record. The fact that no DD entry was made by the police personnel creates a doubt about their presence at the spot at the relevant time. At this juncture, it would be also relevant to refer to a case law reported as Rattan Lal vs. State, 1987 (2) Crimes 29 wherein the Hon'ble Delhi High Court 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.
Thus, there are sufficient reasons to believe that prosecution has failed to prove its case beyond reasonable doubt and the benefit thereof must be given to the accused.
In view of foregoing reasons, accused Sunder Nagar is acquitted of the offence punishable u/s 25 Arms Act in FIR No.373/06, FIR No. 373/06 PS New Ashok Nagar State Vs. Sunder Nagar Page No... 13/14 PS New Ashok Nagar. Bail bond of the accused shall remain in force and surety of the accused shall not be discharged for a period of six months in view of the section 437A Cr.P.C. Case property be confiscated to the State and same be destroyed.
File be consigned to Record Room.
Announced in open (SHUCHI LALER ) court on 18.10.2011. MM-04/ East/ KKD, Delhi FIR No. 373/06 PS New Ashok Nagar State Vs. Sunder Nagar Page No... 14/14