Delhi District Court
State vs . Om Prakash @ Karan @ Pratap on 19 November, 2016
IN THE COURT OF SH. GAJENDER SINGH NAGAR, MM-04,
WEST DISTRICT, TIS HAZARI COURT,DELHI
STATE Vs. OM PRAKASH @ KARAN @ PRATAP
FIR No. 43/2012
PS: MOTI NAGAR
U/S: 25 ARMS ACT
Sr. no. of the case : 43/2012
Case ID Number : 64403/2016
Date of commission of offence : 17.03.2012
Date of institution of the case : 31.03.2012
Name of the complainant : HC Rajesh Kumar
Name of accused and address : Om Prakash @ Karan @
Pratap s/o Sh. Ramji Lal
r/o Jhuggi no. 101, CD
Park, Jahangir Puri, Delhi.
Offence complained of or proved : U/s 25 Arms Act
Plea of the accused : Pleaded not guilty
Final order : Acquitted
Date reserved for judgment : 19.11.2016
Date of judgment : 19.11.2016
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JUDGMENT
1. As per prosecution version, on 17.03.2012, HC Rajesh received secret information that one person namely Karan @ Pratap would come along with his accomplish at around 07.15 PM, who is involved in several snatching and theft cases. It was also informed by secret informer that accused is having in his possession illegal arms, if raid may be conducted then the further offences could be stopped and illegal arms could be recovered. The same information was given to the concerned SHO of PS Moti Nagar. At the direction of SHO raiding party FIR No. 43/2012, PS Moti Nagar Page 1/8 was formed with Ct. Junaid and Ct. Dharmender and thereafter they rushed towards the place of checking I.e. near wine shop situated towards Punjabi Bagh Road. At around 07.10 PM they reached at the place of recovery and at about 07.25 PM accused was apprehended. His formal search was conducted and on his personal search one buttondar knife was recovered from his possession. The accused was having the knife in contravention of notification issued by Delhi Administration. Accordingly, after the investigation, police filed the present charge sheet against the accused U/s 25 Arms Act.
2. The prima facie case U/s 25 Arms Act, 1959 was found to be made out against the accused. Accordingly, charges framed against the accused. The accusation was read over and explained to the accused to which he pleaded not guilty and claimed trial.
3. Thereafter, the matter was posted for prosecution evidence. The prosecution got examined four witnesses in support of its case, which are as follows:-
i). PW1 SI Rameshwar Oraon was the Duty Officer on 17.03.2012, who exhibited on record computer generated copy of FIR as Ex.PW1/A and endorsement on the rukka as Ex.PW1/B.
ii). PW3 HC Manoj deposed that on 17.03.2012 the present case file was handed over to him for further investigation. It is stated that for the further investigation of the present case, initially he went to the spot where he met HC Rajesh, Ct. Dharmender and Ct. Junaid along with the secret informer. It is stated that the accused namely Om Prakash @ Karan @ Pratap already apprehended by the police staff. At the same time, HC Rajesh handed over to him original copy of rukka, FIR, sketch of knife and seizure memo of the same. It is stated that sketch of knife and seizure memo is already Ex. PW2/A and Ex. PW2/B respectively. It is stated that accused was also handed over to him. Thereafter, he interrogated the accused. Then at the instance of HC Rajesh Kumar he prepared the site plan which is Ex. PW3/A. It is stated that accused was arrested vide memo already Ex. PW2/C. It is stated that after arrest FIR No. 43/2012, PS Moti Nagar Page 2/8 personal search of the accused was got conducted vide memo already Ex. PW2/D. Thereafter, accused was removed to hospital for medical examination and after medical examination accused was taken to PS and put behind the bars. On reaching at PS case property was deposited with MHC(M). During the investigation of the present case he recorded the statement of witnesses and on completion of investigation placed the charge sheet before the Hon'ble Court. In his cross examination, it is stated by him that when he reached at the spot the secret informer was present there.
iii). PW4 HC Rajesh deposed that on 17.03.2012 at around 06.45 PM he received secret information that one person namely Karan @ Pratap who is accused in the present case would come along with his accomplish at around 07.15 PM, it is also informed that accused is involved in several snatching and theft cases. It was also informed by the secret informer that accused is having in his possession illegal arms, if raid may be conducted then the further offences could be stopped and illegal arms could be recovered. The same information was given to the concerned SHO of PS Moti Nagar. It is stated that at the direction of SHO the same information was reduced in roznamcha vide DD no. 33A which is Ex. PW4/A. Thereafter, at the direction of SHO raiding party was formed with Ct. Junaid and Ct. Dharmender and thereafter vide DD no. 34A (departure entry) they all rushed towards the place of checking or recovery I.e. near wine shop situated on the way towards Punjabi Bagh Road. DD no. 34 A is Ex. PW4/B. It is stated that at around 07.10 PM they reached at the place of recovery and at the spot asked 4-5 public persons to join the raiding party but none of them agreed and left the spot without disclosing their names and addresses.
Due to paucity of time no notice was served to anyone of them. Thereafter, at around 07.25 PM accused Om Prakash @ Karan @ Pratap was found standing in suspicious circumstances between wall or trees at the spot. It is stated that on suspicion as well as at the instance of secret informer accused was apprehended and initially he (accused) FIR No. 43/2012, PS Moti Nagar Page 3/8 was asked about his name and address. Thereafter, formal search of the accused was got conducted wherein from left side pocket of his trouser one buttondar knife was recovered. It is stated that after recovery, first of all he (this witness) prepared the sketch of the knife which is already Ex. PW2/A. Thereafter, the recovered knife was put in a white cloth and a pullanda of the same was prepared and sealed with the seal of 'RK'. The same was taken into possession vide seizure memo already Ex. PW2/B. It is stated that seal after use was handed over to Ct. Junaid. Thereafter, he prepared the tehrir and the same was handed over to Ct. Junaid for registration of FIR. After registration of FIR HC Manoj Kumar came at the spot along with Ct. Junaid along with original tehrir and copy of FIR as the further investigation of the present case was handed over to HC Manoj Kumar. It is stated that he handed over to HC Manoj Kumar sealed pullanda of knife and seizure memo as well as the accused. Thereafter, at his instance IO HC Manoj Kumar prepared the site plan which is already Ex. PW3/A. Thereafter, he left the spot. In his cross examination, it is stated by him that he had not reduced the names and addresses of public persons who refused to join the raiding party.
iv). PW2 HC Dharmender deposed on the same lines as that of PW4 HC Rajesh.
4. Thereafter, Statement of Accused U/s 281 Cr.P.C was recorded on in which all incriminating material appearing in evidence against accused was put to him to which he stated that he is innocent and that he has been falsely implicated in this case. Accused did not lead any defence evidence.
5. Arguments addressed by defence counsel and Ld. APP have been heard and record has been perused.
6. It is a settled proposition of criminal law that prosecution is supposed to prove its case on judicial file beyond reasonable doubt by leading reliable, cogent and convincing evidence. In order to prove its case on judicial file, prosecution is supposed to stand on its own legs and it cannot FIR No. 43/2012, PS Moti Nagar Page 4/8 derive any benefit whatsoever from the weaknesses, if any, of the defence of the accused. The burden of proof of the version of the prosecution in a criminal trial throughout the trial is on the prosecution and it never shifts on to the accused. Also it is a settled proposition of criminal law that accused is entitled to the benefit of reasonable doubt in the prosecution story and such reasonable doubt entitles the accused to be acquitted.
7. After considering respective arguments and evidence led by prosecution, the undersigned is of the considered opinion that prosecution has not been able to prove guilt of accused beyond reasonable doubt. The reasons as to why the undersigned have arrived at such a conclusion are as follows:
i). None of the recovery witness has stated in his examination that he offered his personal search to the accused or to any public person prior to conducting formal search of the accused. Principles of natural justice demanded that accused should have been offered personal search by recovery witness who allegedly recovered case property from accused and should have reduced this fact into writing which has not been done in present case and which fact diminishes credibility of prosecution version. Reliance being placed on a judgment of Orissa High Court reported as "Rabindernath Prusty Vs. State of Orissa. In this situation, it can be said that search of the accused by above said police officials was in complete violation of the above said case law and the same can be said to be illegal & motivated.
ii). Further, from prosecution version, it does not appear that before frisking accused, recovery witness asked any public person to witness search of accused. The place at which accused was allegedly apprehended appears to be a public place and it is not the case of prosecution that public witnesses were not available at that place. PWs in their examination-in-chief have stated that IO asked public persons to join the proceedings but none agreed, however, no written notice was given to any such public person and even FIR No. 43/2012, PS Moti Nagar Page 5/8 their names or other particulars were not recorded, which shows that sincere efforts was not made by the police officials to join the public persons. Non joining of public witnesses also causes a dent in credibility of prosecution version and had public witnesses witnessed search of accused, prosecution version would have been more authentic. This is not to say that testimony of police officials is not reliable but addition of public witnesses before search of accused would have made prosecution version more reliable. As it is established principle of law that where a number of public persons would be available, but no public witness has been engaged in this case nor any sufficient explanation given for non-
joining the public witness at the time of apprehension of accused. In the case where the public witness are easily available and they are not being joined without any justified reason, the statement of police witnesses only cannot be relied. In this regard reliance is being placed on the case law reported as "Anoop Joshi Vs. State"
1992(2) C.C. Cases 314(HC) in which High Court of Delhi had observed as under:
"18. It is repeatedly laid down by this Court 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 evidence that no such sincere efforts have been made, particularly when we find that shops were open and one or two shop-keepers 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 rigors 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".
iii). Further as per the testimonies of prosecution witnesses, the seal after use on the pullinda containing the knife allegedly recovered from the accused was given to none else but to Ct. Junaid. Ct.
FIR No. 43/2012, PS Moti Nagar Page 6/8Junaid is himself a material prosecution witness being the witness to the alleged recovery of knife from the possession of the accused. Such material witness of a case is always interested in the success of the case of the prosecution and keeping in view this fact, the chances of fabrication & planting of the case property cannot be ruled out beyond reasonable doubt. Further no DD entry of handing over or returning of seal has been proved on record. It is not stated by the IO that he had produced the seized knife before the Court at the time of first production of the accused before the Court, which is clear contravention of Section 52 of Cr.P.C. These are material missing link in version of prosecution and tampering of case property in these circumstances cannot be ruled out.
iv). As per prosecution version seizure memo and sketch of the case property was prepared prior to the registration of FIR. However, from the perusal of the seizure memo and sketch, it is apparent that the same are having complete FIR number written on them. It is also to be noted that the FIR number written on the top of seizure memo & sketch and the entire seizure memo & sketch are in the same handwriting. There is nothing on record to suggest that someone had written the FIR number on the top of seizure memo and sketch after registration of FIR. The mention of FIR number on a documents purportedly prepared prior to registration of FIR, shows that the proceedings were not conducted in the manner and at the time as claimed by the police.
8. In the circumstances as mentioned in various preceding paras i.e when tempering in case property cannot be ruled out and version of prosecution is not trustworthy, the undersigned is of the considered opinion that prosecution has failed to prove guilt of accused beyond reasonable doubt and planting of buttondar knife upon accused cannot be ruled out. Accordingly it is a fit case in which benefit of doubt must be given to accused which is accordingly given. Accused Om Prakash @ Karan @ Pratap is acquitted of offence U/s 25 of Arms Act.
FIR No. 43/2012, PS Moti Nagar Page 7/89. Accused has furnished fresh bail/surety bonds in terms of Section 437-A Cr.P.C. The same has been accepted. File be consigned to record room.
ANNOUNCED IN THE OPEN (GAJENDER SINGH NAGAR) COURT ON 19.11.2016 MM-04 (WEST)/DELHI
Containing 8 pages all signed by the presiding officer.
(GAJENDER SINGH NAGAR) MM-04 (WEST)/DELHI FIR No. 43/2012, PS Moti Nagar Page 8/8