Delhi District Court
State vs . Manoj on 7 January, 2013
FIR No. 539/2003
P.S.: Gokalpuri
U/s: 25/55/59 of Arms Act & 103 of D.P. Act.
IN THE COURT OF SH. JITENDRA SINGH, METROPOLITAN
MAGISTRATE, NORTHEAST- 04, KARKARDOOMA COURTS,
DELHI
State Vs. Manoj
FIR No.: 539/2003
P.S.: Gokalpuri
U/S: 25/54/59 of Arms Act & 103 of D.P. Act
JUDGMENT
1. S. No. of the Case : 04/04
2. Date of Commission of Offence : 29.12.2003
3. Date of institution of the case : 21.01.2004
4. Name of the complainant : HC Devender Singh
5. Name of accused, parentage & address. : Manoj S/o Sh. Rattan Singh, R/o;
16/422, Kalayanpuri, Delhi.
6. Offence complained or proved : U/s 25/54/59 of Arms Act & 103
of D.P. Act.
7. Plea of Accused : Pleaded Not Guilty.
8. Final Order : Acquitted
9. Date of Final Order : 07.01.2013
JUDGMENT
1. Accused Manoj S/o Sh. Rattan Singh has been sent up to face trial for offence under Section 25/54/59 of Arms Act & 103 of D.P. Act with the allegations that on 29.12.2003 at about 5.00 p.m. at Nala Wazirabad Road, Gokalpuri, Delhi within the jurisdiction of P.S. Gokalpuri, the accused was 07.01.2013 Page 1 of 14 of Pages FIR No. 539/2003 P.S.: Gokalpuri U/s: 25/55/59 of Arms Act & 103 of D.P. Act.
found in possession of one button actuated knife in contravention of notification of Delhi Administration and as such had allegedly committed the offence under Section 25/54/59 of Arms Act and on the same day accused was also apprehended by the police and found in possession of one Mehroon Colour VIP Suitcase containing several articles, for which accused failed to account for such possession and thereby committed an offence under Section 103 of D.P. Act. After usual investigation, the charge sheet was filed in the court on 21.01.2004 and provisions of Section 207 Cr. P.C were completed on 25.05.2004.
2. Vide order dated 15.03.2005, the accused was charged for offence under Section 25/54/59 of Arms Act and on 12.09.2012 under Section 103 of D.P. Act, to which the accused pleaded "Not Guilty" & claimed trial.
3. In order to substantiate the charge, prosecution had examined 3 witnesses.
PW-1 HC Devender Singh, Belt No. 45/NE had testified that on 29.12.2003, he was posted at P.S. Gokalpuri and when he was on patrolling duty with SubInspector Pawan Kumar, Constable Harender and Constable Raj Kumar, then after they reached near SBI, Gokalpuri, at about 4.40 PM, then one of the secret informer informed the SubInspector Pawan Kumar that some person, who used to steal the things from the vehicles which are out of 07.01.2013 Page 2 of 14 of Pages FIR No. 539/2003 P.S.: Gokalpuri U/s: 25/55/59 of Arms Act & 103 of D.P. Act.
states at ISBT, would come in Gokalpuri DBlock. After receiving this information the said police officials reached at DBlock, near Nala, where the stairs are situated, where after First IO asked some public persons to join the raiding party but all them refused for one reason or the other & left the spot without disclosing their names & addresses. Thereafter, they took position there and at about 5.00 PM, two person came and reached near the stairs of Ganda Nala. At that time they were having each suitcase. Thereafter, at the instance of secret informer they were asked to stop and on it they started running towards Gokalpuri Gol Chakkar. Thereafter, they were chased by the said police party and Ct. Harender overpowered the accused namely, Manoj and other staff overpowered the other persons. PW1 further deposed that thereafter the accused was personally searched by him whereupon one button actuated knife was recovered from right dub of his wearing pant. PW1 also deposed that he had prepared the rough sketch of knife as Ex. PW1/A. Thereafter, the suitcase was also taken into possession under Section 103 of D.P. Act, vide memo Ex. PW1/B. PW1 also deposed that he had sealed the knife with his seal of "DSB" and taken into possession vide memo Ex. PW1/C. PW-1 further deposed that he thereafter had prepared the ruqqa Ex. PW1/D which was sent to the concerned P.S. through Ct. Harender for registration of the FIR. After the registration of the FIR, the I.O., PW3, HC L.N. Sharma arrived at the spot with Ct. Harender & collected the custody of the accused from PW1 vide arrest memo and further conducted the personal search of the 07.01.2013 Page 3 of 14 of Pages FIR No. 539/2003 P.S.: Gokalpuri U/s: 25/55/59 of Arms Act & 103 of D.P. Act.
accused via personal search memo. Thereafter, PW3 Second IO/HC L.N. Sharma prepared the site plan at his instance. Thereafter, his statement was also recorded by the Second IO.
4. The next witness witness of the prosecution was PW2 Retd. SI Vikram Singh, who had deposed that on 29.12.2003, he was the duty officer at P.S. Gokalpuri from 4.00 p.m. to 12.00 night, where on the said date at 6.45 p.m., PW2 brought a tehrir/rukka, whereafter the present FIR was lodged. The FIR in question which was lodged was proved as Ex. PW2/A.
5. The other witness of prosecution was PW3 SI L.N. Sharma, who had deposed that on 29.12.2003, he was assigned the investigation of the present case, whereafter he arrived at the spot with Ct. Harender & had started investigation. PW3 further deposed that PW1 handed over the accused as well as documents to him, whereafter he prepared the site plan Ex. PW1/E, personal search memo of the accused Ex. PW3/B & arrest memo of the accused as Ex. PW3/A.
6. No other witness was examined by the prosecution and after completion of prosecution evidence, all the incriminating evidence was put to the accused in the statement of accused recorded under Section 313 Cr. P.C. wherein while denying the allegations, the accused had taken the plea of "False Implication". No evidence in defence was led however by the accused. 07.01.2013 Page 4 of 14 of Pages FIR No. 539/2003 P.S.: Gokalpuri U/s: 25/55/59 of Arms Act & 103 of D.P. Act.
7. I have heard Ld. APP for State and the accused, who has appeared in person and has also gone through the case file very carefully.
Ld. APP for the State submitted that in the present case, the accused is liable to be convicted for the offence under Section 25 Arms Act as well as under Section 103 of D.P. Act, on the basis of depositions made by various prosecution witnesses.
On the other hand, counsel for the accused submitted that accused has been falsely implicated in this case and case property has been falsely planted upon the accused and thus acquittal with respect to the accused has been prayed for.
8. I have given a considered thought to the rival submissions made by Ld. APP for state and counsel for the accused, keeping in view the material available on the judicial file.
9. 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. Further it is a settled proposition of criminal law that in order to prove its case on judicial file, prosecution is supposed to stand on its own legs and it cannot derive any benefit whatsoever from the weaknesses, if any, of the defence of the accused. Further it is a 07.01.2013 Page 5 of 14 of Pages FIR No. 539/2003 P.S.: Gokalpuri U/s: 25/55/59 of Arms Act & 103 of D.P. Act.
settled proposition of criminal law that 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 every reasonable doubt in the prosecution story and such reasonable doubt entitles the accused to acquittal.
10. In my considered opinion as a cumulative effect of the following reasons, accused is entitled to be acquitted for the charge against him by reasons of reasonable doubts in the prosecution story.
11. 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 personality by signature or seal. Note: The term Police Station will include all places such as Police Lines & Police Posts where Register No. II is maintained.
12. In the present case, the above said provision appears to have not been complied with by the prosecution. As per the prosecution version, at the 07.01.2013 Page 6 of 14 of Pages FIR No. 539/2003 P.S.: Gokalpuri U/s: 25/55/59 of Arms Act & 103 of D.P. Act.
time of the apprehension of the accused with one button actuated knife alongwith one suitcase in his possession, PW-1 alongwith other police officials were on area patrolling duty, but the said DD entry vide which they had left the P/S for patrolling has not been brought on record. In my opinion, the prosecution was under an obligation to bring on record and prove the above said DD entry vide which the above said police officials had left the PS for patrolling duty, so as to prove the possibility of availability of PW 1 & other police officials at the place of apprehension of the accused. In the facts and circumstances of the case, the prosecution ought to have brought on record & prove the DD entry by which the above said police officials PW1 & other police officials had left the PS, so as to inspire the confidence regarding their availability/presence at the place of apprehension of the accused, since the said police officials were under bounden duty to enter their departure & arrival from/at the police station by making a D.D. entry in that respect as per the aforesaid mentioned P.P. Rule.
At this juncture, it would be relevant to refer to a case law reported as "Rattan Lal Vs. State" 1987 (2) Crimes 29, wherein the Delhi High Court has 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 & thus the matter has to be viewed by the court with suspicion, if the necessary provisions of law are not strictly complied with and then it can at least be said that it was so done with an oblique motive. This failure of the 07.01.2013 Page 7 of 14 of Pages FIR No. 539/2003 P.S.: Gokalpuri U/s: 25/55/59 of Arms Act & 103 of D.P. Act.
prosecution to bring on record & prove the relevant DD entry as discussed above creates a reasonable doubt in the prosecution version and attributes oblique motive on to the actions of the members of the raiding party.
13. As per rukka Ex. PW1/D and testimony of PW1 before conducting the raid asked the some passerby's to join the raid, but all of them left the spot after giving reasonable excuses without disclosing their names and addresses. Now as per rukka, it is clear that no serious attempt was made by the concerned police officials i.e. PW1 & other police officials to get independent public persons to join the police proceedings of raid and of subsequent apprehension of the accused 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 raiding party, they could have served the said passerby/public witnesses with a notice in writing to join the police proceedings either at the time of seeking their initial assistance for joining the raid or later at the time of apprehension of the accused since after the apprehension of the accused, there was no possibility of accused escaping his arrest or crime going undetected. 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 conceptualization of the raid on information from the secret informer and also at the spot of the arrest & search of the accused on the spot of apprehension by serving them a notice in 07.01.2013 Page 8 of 14 of Pages FIR No. 539/2003 P.S.: Gokalpuri U/s: 25/55/59 of Arms Act & 103 of D.P. Act.
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. In this regard reliance is being placed on the following judgments: In case law reported as "Anoop Joshi Vs. State" 1992(2) C.C. Cases 314(HC), 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 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 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 07.01.2013 Page 9 of 14 of Pages FIR No. 539/2003 P.S.: Gokalpuri U/s: 25/55/59 of Arms Act & 103 of D.P. Act.
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".
14. In case law reported as "Sadhu Singh Vs. State of Punjab" 1997 (3) Crime 55 the Punjab & Haryana High Court had observed as under: "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 07.01.2013 Page 10 of 14 of Pages FIR No. 539/2003 P.S.: Gokalpuri U/s: 25/55/59 of Arms Act & 103 of D.P. Act.
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".
15. The prosecution has failed to prove that the raiding party had offered their own search to the accused or to any other member of the public before conducting the search of the accused, which led to the recovery of the impugned weapon from the accused. It is not mentioned anywhere in the ruqqa that PW1 had offered his own personal search to the accused or to any other member of the public before conducting the search of the accused. The said contradiction on the aspect of the personal search by PW1, so appearing in the testimonies of PW1 & other police officials, who were members of joint patrolling & raiding party, creates a shadow of doubt on the aspect as to in reality whether the members of the raiding party had offered their own search before searching the accused. The aforesaid contradiction makes it a probability that the case property might have been planted over the accused.
At this juncture, it would be appropriate to refer to the judgment of Orissa High Court reported as "Rabindernath Prusty Vs. State of Orissa" wherein it was held as under: 07.01.2013 Page 11 of 14 of Pages FIR No. 539/2003 P.S.: Gokalpuri U/s: 25/55/59 of Arms Act & 103 of D.P. Act.
"10. The next part of the prosecution 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 in 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 : (1969 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. Besides the above, it is in the evidence of PWs 2 & 5 that the accused wanted to know the reason for which his person was to be searched and the reason for such search was not intimated to the accused. No independent witness had witnessed the search. In the above premises, my conclusion is that the search was illegal and consequently the conviction based thereon is also vitiated".
16. Being guided by above said case law, it can be said that search of the accused by above said police official (s) i.e. members of the raiding party was in complete violation of the above said case law and the same can be said to be illegal & motivated, more so, in the circumstances as discussed herein above which otherwise makes the story of prosecution doubtful.
17. As per rukka and testimony of PW1 , the seal i.e. "DSB" after use on the pulanda containing the case property allegedly recovered from the accused was given to none else but to PW1, who himself is a material prosecution witness being member of the raiding party & one of the witnesses to the alleged recovery of the illegal knife as well as suitcase from the possession of the accused. Further, despite several opportunities the 07.01.2013 Page 12 of 14 of Pages FIR No. 539/2003 P.S.: Gokalpuri U/s: 25/55/59 of Arms Act & 103 of D.P. Act.
prosecution has failed to produce the suitcase which alleged to have been recovered 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.
18. Moreover the testimony of PW1 & PW3 cannot be read in evidence as their examination in chief was never completed and the incomplete deposition by the witnesses are no evidence in the eyes of law and therefore cannot be used for the purpose of proving any particular fact. I am enlightened by the judgment of Hon'ble Delhi High Court in case titled as "Ripen Kumar Vs. Department of Customs" cited as 2001 Cr.L.J. 1288. The relevant extract of the same is reproduced below for easy reference: "9. ...... This observation of the Learned ASJ is contrary to the well understood expression of the word "evidence". The words "all statements" include the examinationinchief as well as cross examination and subject to the permission reexamination also. It is only when the witness is permitted to be cross examined that the credibility of the witness can be looked into. The emphasis is on the fact that the witness had been cross examined fully. Only thereafter the evidence given by a witness in judicial proceedings is relevant for the purpose of proving a particular fact...".
19. In my opinion framed in view of the above mentioned discussion, it 07.01.2013 Page 13 of 14 of Pages FIR No. 539/2003 P.S.: Gokalpuri U/s: 25/55/59 of Arms Act & 103 of D.P. Act.
can be safely concluded that prosecution has failed to prove its case on judicial file beyond reasonable doubt. There do exist such doubts & unexplained holes in the prosecution story and as such accused is given benefit of doubt & is hereby acquitted of the charge framed against him. File be consigned to record room.
Announced in the open court on 07.01.2013 (JITENDRA SINGH) METROPLITAN MAGISTRATE KARKARDOOMA COURTS, DELHI 07.01.2013 Page 14 of 14 of Pages FIR No. 539/2003 P.S.: Gokalpuri U/s: 25/55/59 of Arms Act & 103 of D.P. Act.
07.01.2013 Page 15 of 14 of Pages