Delhi District Court
State vs . Vijay on 30 April, 2011
IN THE COURT OF SH. HEM RAJ, METROPOLITAN MAGISTRATE,
WEST - 09, TIS HAZARI COURTS, DELHI
State Vs. Vijay
FIR No : 319/2008
U/S : 25/54/59 Arms Act
P.S : Vikas Puri
1. Serial No. of the Case : 1/3
2. Unique ID of the Case : 02401R0647482009
3. Date of Commission of Offence : 23.12.2008
4. Date of institution of the case : 03.01.2009
5. Name of the complainant : Ct. Vijay Kumar
6. Name of accused, parentage & : Vijay@Bijlee S/o Jagdish
address R/o D7172, Hari Enclave, Kirari,
Delhi.
7. Offence complained : U/s 25/54/59 Arms Act.
8. Plea of Accused : Pleaded Not Guilty.
9. Final Order : Acquitted
10.Date of Final Order : 30.04.2011
J U D G M E N T
1 The prosecution filed a charge sheet against the accused on the allegations that on 23.12.2008 at about 9.00 PM near Metro Station Janak Puri, West. Najafgarh Road, OppositeDistrict Center, Vikas Puri, Delhi, the accused was found in possession of one buttondar knife in contravention of FIR No.319/2008 STATE V/s VIJAY PAGE No.1/11 the notification issued by Delhi Government without any license and permit and thereby alleged to have committed an offence as punishable U/S 25 Arms Act 1954.
2 In compliance of Section 207 Cr.P.C, the copy of the charge sheet along with other documents were supplied to the accused. Later on, vide Order dated 29.09.2010, charge for offences under Section 25 of Arms Act 1954 was framed to which accused pleaded not guilty and claimed trial. 3 In order to prove its case against the accused the prosecution examined a total number of five witnesses.
4 PW1 ASI Ishwer Singh was involved in the investigation of the case alongwith PW2 Ct. Ranjit and PW5 HC Manoj.
5 PW2 Ct. Ranjit Singh was involved in the investigation ASI Ishwar Singh and PW5 HC Manoj.
6. PW3 ASI Jai Prakash was the DO in this case who proved FIR as Ex. PW3/A and the endorsement on the rukka as Ex. PW3/B. FIR No.319/2008 STATE V/s VIJAY PAGE No.2/11
7. PW4 Hawa Singh was the IO of this case who reached at the spot after the information reached at the police station.
8. PW5 HC Manoj Kumar was the complainant in this case on whose statement the case was registered. .
9. In his statement under Section 281 Cr.P.C.,the accused denied that any knife was recovered from his possession. He claimed to be innocent and submitted that he was falsely implicated in this case. He chose not to lead any defence evidence despite the opportunity given.
10. It has been submitted by Ld. APP that the prosecution has been able to prove the guilt of accused beyond the reasonable doubt. It has been further stated that the testimonies of the prosecution witnesses are reliable and trustworthy.
11. On the other hand, the Ld. Defence Counsel has argued that no incriminating material has come on the record against the accused and that the prosecution has miserably failed to prove the case against the accused beyond reasonable doubt.
FIR No.319/2008 STATE V/s VIJAY PAGE No.3/11 12 I have heard the Ld. APP for the State and Ld. LAC for the accused. 13 It is well settled principal of law that the prosecution has to prove
the case against the accused beyond reasonable doubt and the prosecution has to stand upon on his own legs. The prosecution also cannot draw any strength from the case of the accused howsoever weak it may be. It is also well settled proposition of criminal law that the accused has a profound right for not to be convicted for an offence which is not established by the evidential standard of proof beyond reasonable doubt. It is also a cardinal principle of criminal law that burden of proof in a criminal trial always rests on the prosecution and the same never shifts upon the accused. 14 After considering evidence on the record I am on the considered opinion that the prosecution has miserably failed to prove the case against the accused beyond the reasonable doubt for the following reasons: A. In the present case the prosecution has not examined any independent public witnesses despite their availability which throws doubt on the genuineness of the prosecution case. As per Rukka and testimonies of prosecution witnesses it has been sought to be shown by the prosecution FIR No.319/2008 STATE V/s VIJAY PAGE No.4/11 that some passersby were asked to join the investigation but none of them agreed to join the investigation. Now as per material on record and the testimonies of prosecution witnesses it is clear that no serious attempt was made by the concerned police officials i.e, the IO of the case to get independent public persons to join the police proceedings of investigation despite availability of such witnesses. In circumstances like the present one, if members of the public had in reality refused to assist the members of the police party, they could have served the said passerby/public witnesses with a notice in writing to join the police proceedings. At least in these facts and circumstances of the case, in my opinion, the police officials concerned must have asked the passersby/public persons available at the spot of the arrest of the accused by serving them a notice in writing and further in case of their refusal, the concerned police people must have taken action against them under Section 187 IPC. Facts and circumstances of the case suggests that no sincere efforts were made by police officials concerned to join independent public witnesses in the concerned police proceedings at any of the available stages.
B. In case law reported as " Anoop Joshi Vs. State" 1992(2) C.C. Cases 314(HC), High Court of Delhi had observed as under: FIR No.319/2008 STATE V/s VIJAY PAGE No.5/11 "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 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 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".
C. In a case law reported as "Roop Chand Vs. The State of Haryana"
1999 (1) C.L.R. 69, the Punjab & Haryana High Court held as under: "3. I have heard the learned counsel for the parties and gone through the evidence with their help. The recovery of illicit liquor was effected from the possession of the petitioner during noon time and it is in the evidence of the prosecution witnesses that some witnesses form the public were available and they were asked to join the investigation. The explanation furnished by the prosecution is that the independent witnesses were asked to join the investigation but they refused to do so on the ground that their joining will FIR No.319/2008 STATE V/s VIJAY PAGE No.6/11 result into enmity between them and the petitioner".
"4. 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 the witnesses from the public had refused 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".
D. In case law reported as "Sadhu Singh Vs. State of Punjab" 1997(3) Crime 55 the Punjab & Haryana High Court had observed as under: FIR No.319/2008 STATE V/s VIJAY PAGE No.7/11 "5. 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".
"6. In the present case, the State examined two witnesses namely, Harbans Singh ASI who appeared as PW1 and Kartar Singh, PW2. Both the witnesses supported the prosecution version in terms of the recovery of opium from the person of the petitioner, but there was no public witness who had joint. It is not necessary in such recoveries that public witnesses must be joined, but attempt must be made to join the public witnesses. 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 a public witness or that they were not available. A stereotype statement of nonavailability will not be sufficient particularly when at the relevant time, it was not difficult to procure the service of public witness. This reflects adversely on the prosecution version".
E. Furthermore there are material contradictions in the oral testimonies and the documentary evidence on the record which rendered the case of the FIR No.319/2008 STATE V/s VIJAY PAGE No.8/11 prosecution as inspiring no confidence and unbelievable. As per the case of the prosecution after the recovery of the knife HC Hawa Singh reached at the spot when the information was conveyed to the police station. As per all the eye witnesses the search of the bus was started at about 9 pm but PW1 ASI Ishwar Singh stated that he informed the DO at about 9.30 pm and HC Hawa Singh reached at the spot at about 9.45 pm. PW2 Ct. Ranjit Singh deposed that HC Ishwar Singh informed DO within five minutes after the recovery of the knife from the accused persons. However, PW5 stated that HC Ishwar informed DO at about 9.05 pm and HC Hawa Singh reached at the spot after 5/10 minutes. Hence it is clear on the record that there are material contradictions on the record about the fact as to when the DO was informed about the recoveries of the knife from the accused and as to when the IO HC Hawa Singh reached at the spot. There is no consistency in the statements of the said witnesses which would normally have been there had they been the eye witnesses of the incident. Hence, in my considered opinion, there is a reasonable doubt in the story of the prosecution on this count. F. Moreover, as per the statement of the complainant namely HC Mano the knife was recovered from the right dubb of the pants of the accused but in his deposition he stated that the knife Ex P1 was recovered from the right FIR No.319/2008 STATE V/s VIJAY PAGE No.9/11 pocket of the pants of the accused. PW 5 HC Manoj was the recovery witness in this case but he has not supported the case of the prosecution and there remained a doubt about the fact as to from the knife actually was recovered. This is sufficient to create a fairly reasonable doubt in the story of the prosecution and for this reason the prosecution case has fallen short from being proved beyond reasonable doubt.
H. Lastly, as per the prosecution case the seal after use was handed over to HC Ishwar Singh but it is not clear on the record as to when the said seal has been returned to the IO. In my considered opinion, the question of misusing the seal cannot be ruled out altogether as admittedly both HC Hawa Singh and ASI Ishwar Singh were working in the same police station and any other knife can be easily planted on the accused by misusing the seal. 15 Therefore, in view of the above mentioned discussion, it can be safely concluded that prosecution has failed to prove its case against the accused beyond reasonable doubt. There do exist reasonable doubts & unexplained holes in the prosecution story and as such accused Vijay is hereby acquitted of the offences he has been charged with. His bail bonds & the surety bond stands extended for a period of six months from today for the purposes of FIR No.319/2008 STATE V/s VIJAY PAGE No.10/11 section 437A Cr.P.C. File be consigned to record room.
PRONOUNCED IN THE OPEN COURT (HEM RAJ)
TODAY i.e. ON 30TH APRIL, 2011 MM09:WEST:THC
30.04.2011
FIR No.319/2008 STATE V/s VIJAY PAGE No.11/11