Delhi District Court
State vs Rajesh on 6 March, 2013
IN THE COURT OF SH. PAWAN KUMAR, MM12,
SOUTH, SAKET COURTS, DELHI
State Versus Rajesh
FIR No. : 119/08
P.S. : Lodhi Colony
Under Section : 292 IPC
1.Serial No. of the case : 788/12
2.Date of commission of offence : 23.05.08
3.Name of the Complainant : ASI Ajay Tyagi
4.Name of the accused and his : Rajesh Kumar
parentage & residence address S/o Sh. Kamleshwari
Poddar R/o WP450, Wazir
Pur Gaon, Ashok Vihar,
New Delhi
5.Date when judgment reserved : 06.03.2013
6.Date when Judgment pronounced : 06.03.2013
7.Offence Complained of or proved : Section 292 IPC
8.Plea of accused : Pleaded not guilty
9.Final Judgment : Acquittal
FIR No. 119/08
State Vs. Rajesh Page No. 1 of 7
1. The accused namely Rajesh is facing trial for the charge of offence U/s 292 IPC.
2. Succinctly, the facts of the case as per prosecution is that on 23.05.08 at around 7.00 pm ASI Ajay Tyagi has received an secret information regarding a boy riding a scooter bearing no. DL8S AJ1874 would come in the Jor Bag Market who was carrying some obscene CDs. Thereafter ASI Ajay Tyagi informed to HC Charan Singh and Ct. Kirpal. At about 7:25 p.m the accused came on riding on a scooter bearing no. DL 8S AJ 1874. On pointing out of secret informer, the accused was apprehended by members of raiding party. On checking, a black polythene was found hanging on the hook inside the center handle of the scooter. Therefore, present FIR was registered U/s 292 IPC. Thereafter, the accused was formally arrested in the present case FIR.
3. On completion of investigation, charge sheet was filed against the accused. The copies of charge sheet and annexed documents were supplied to accused in due compliance of Section 207 Cr.P.C.
4. After considering both the parties, notice was framed U/s 292 IPC against the accused to which he pleaded not guilty and claimed trial.
5. In order to prove its case prosecution examined three witnesses. PW 1 SI Lal Chand deposed that on 20.05.08, he was posted as DO at PS Lodhi Colony and on that day his duty hours were from 4.00 pm to 12.00 mid night and at about 8.30 pm HC Charan Singh had presented a rukka sent by ASI Ajay Singh for registration of the case. He proved the copy of the same as Ex PW1/B. FIR No. 119/08 State Vs. Rajesh Page No. 2 of 7
6. PW 2 Ct. Kripal Singh deposed that he alongwith HC Charan Singh was on patrolling duty on motorcycle and they were present at Khanna Market where ASI Ajay Tyagi met them and informed about one person who would come from the side of Lodhi Colony Road and would go towards Jor Bag, Khanna Market, might be carrying obscene CD and if raid be conducted, he will be apprehended. He alongwith HC Charan Singh and ASI Ajay Tyagi reached at gate no. 1 Jor Bag and started checking the vehicles. They saw one scooter no. 1874 was coming from the side of Lodhi Road and they stopped the vehicles and founded that one black colour plastic polythene was hanging near the handle of the said scooter. ASI Ajay Tyagi checked the said plastic polythene and found 30 CDs covered with obscene picture and 67 CD covered with OK written on cover. IO interrogated and recorded the disclosure statement of accused vide memo Ex PW2/A. IO sealed the aforesaid CD with seal of AKT and seized the same vide memo Ex PW2/B. IO arrested and conducted the personal search of accused vide memo Ex PW2/C and Ex PW2/D respectively. IO prepared the rukka and handed over the same to HC Charan Singh for registration of the FIR. HC Charan Singh went to PS and after registration of FIR came back at the spot with the copy of FIR and original rukka and handed over the same to the IO. Accused got recovered the case property. The case property was deposited in the malkhana. He proved the case property as Ex P1 to Ex P97. In his cross examination, he admitted that he did not remember whether they had seen these blue files whether they are dirty or not.
7. PW 3 HC Charan Singh deposed the whole incident as per contents of FIR and as deposed by PW 2. He further deposed that FIR No. 119/08 State Vs. Rajesh Page No. 3 of 7 at about 7:15 p.m., one person i.e. accused came on a scooter bearing no. DL AG 1874 from the side of Nizamuddin and was going towards Jor Bag. They stopped the scooter and checked. On checking they found one black colour plastic polythene was hanging near the handle of the said scooter containing 97 CDs. He deposed the same facts as deposed by PW2 regarding the recovery of the case property. In his cross examination, he admitted that IO did not give any written notice to any public person to join the investigation. IO did not note down the name and address of the public persons. He failed to remember DD number vide which he was on patrolling duty.
8. PW4 SI Ajay Tiygai has deposed that on that day he was posted as ASI in the PS Lodhi Colony and was present in the Khanna Market on patrolling duty. In his testimony he narrated the incident and the investigation proceedings as deposed by PW2 and PW3.
9. Statement of accused U/s 313 r/w 281 CrPC recorded on 05.03.2013.
10. I have carefully perused the case record and have heard arguments advanced by ld APP for the state as well as by the accused.
11. In brief the prosecution case is that the accused was apprehended having the possession of some obscene CDs.
12. In the present case, PW 2, PW 3 and PW4 deposed that IO tried to join some public persons in the investigation but they refused. But none of the witness deposed that any efforts were made by IO to join any public persons at the place from where the alleged recovery was effected. No public persons were made witness to the recovery of the CDs.
FIR No. 119/08 State Vs. Rajesh Page No. 4 of 713. In this case, no public witness has been joined in the investigation. PWs have deposed that they requested some public persons to join the investigation but they refused to join. Admittedly, no notice was given to the public persons who refused to join the investigation. The testimony of official witness does not find corroboration from any independent source. In my view, the non joining of public witness is fatal to the prosecution case, particularly when no reasonable explanation has been given by the prosecution for non joining of public witnesses. In the case of Chanan Singh Vs. State 1986 Crl. Rev. No.720 (P&H) 94, it was held that it was obligatory on the part of the police to join independent witnesses and the statement of official witness that witnesses refused to join investigation was rejected as an afterthought.
14. It is well settled proposition that non joining of public witness shrouds doubt over the fairness of the investigation by police. Even Section 100 (4) CrPC casts statutory duty upon the official conducting search to join two respectable persons of the society, which is not done in the present case. In the case of Pawan Kumar Vs. The Delhi Administration, 1989 Crl LJ 127 Delhi, it has been held as under: "Admittedly, there is no impediment in believing the version of the police officials but for that the prosecution has to lay a good foundation. At least one of them should have deposed that they tried to contact the public witnesses or that they refused to join the investigation. Here is a case where no effort was made to join any public witness even though number of them were present. No plausible explanation from the side of the prosecution is forthcoming for not joining the independent witnesses. It may be that there is an apathy FIR No. 119/08 State Vs. Rajesh Page No. 5 of 7 on the part of the general public to associate themselves with the police raids or the recoveries but that apart, at least the IO should have made an earnest effort to join the independent witnesses. No attempt in this direction appears to have been made and this, by itself, is a circumstance throwing doubt on the arrest or the recovery of the knife from the person of the accused."
15. During cross examination PW 3 stated that he does not remember the DD number vide which he was on patrolling duty. The present case totally rests upon the alleged recovery of the case property from the possession of the accused at the relevant time. The arrival and departure entries of the police officials who apprehended the accused with case property is a vital piece of evidence. Conspicuously, no departure or arrival entries of PW 2 and PW 3 recorded in the daily diary register of Police Station. The police officials are under the statutory duty to mark their departure and arrival in the register kept for the purpose as per the PPR rules. It is apposite at this juncture to reproduce 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 FIR No. 119/08 State Vs. Rajesh Page No. 6 of 7 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.
16. The cardinal principle of criminal law cannot be forgotten that the prosecution has to prove the case against accused beyond reasonable doubt. The standard of proof is not preponderance of probabilities but proof beyond reasonable doubt. It is well settled legal proposition that the any benefit of doubt goes in favour of the accused.
17. In view of above mentioned discussion, there is reasonable doubt of as to the recovery of the alleged obscene CDs from the possession of the accused in pursuant to their disclosure statement. Considering the above facts and circumstance, the prosecution could not establish their case beyond reasonable doubt. Hence, the accused Rajesh Kumar is acquitted of the charge u/s 292 of IPC framed against him by giving him benefit of doubt. Case property be confiscated to the State and be destroyed after expiry of period of appeal. Personal bond and surety bond stand cancelled. Endorsement, if any, be cancelled. Documents, if any, be returned.
18. File be consigned to record room after completion of necessary formalities.
Announced in open Court (PAWAN KUMAR)
On 6th March, 2013 Metropolitan Magistrate - 12,
South East, Saket Courts
FIR No. 119/08
State Vs. Rajesh Page No. 7 of 7