Delhi District Court
Officer To Join Independent Witnesses. ... vs . State Of on 17 September, 2007
IN THE COURT OF SH. VINOD YADAV, METROPOLITAN MAGISTRATE,
ROHINI, DELHI
In re,
STATE
VERSUS
Dheeraj Kumar
F.I.R. No.244/05
U/s 25(1-B) of Arms Act 1959
P.S. Uttam Nagar
JUDGMENT
(a) The serial no. of the case : 854/3 (b) The date of commission of offence : 21.03.05 (c) The name of complainant : HC Satyawan Singh
(d)The name, parentage, residence of accused: Dheeraj Kumar S/o Padarth Jha R/o WZ-1, phase-1, Om Vihar, Uttam Nagar , Delhi.
e) The offence complained of/ proved : u/s 25(1-B) of Arms Act .1959 (f) The plea of accused : pleaded not guilty (g) The final order : Acquitted (h) The date of such order : 17.09.2007 (i) Brief statement of the reasons for the decision :
1. The facts of the case in nutshell are that accused was sent up for trial with the case of the prosecution that on 21.03.05 at about 10.25 p.m. at Dawarka road, in front of NSIT college, new bus stand Delhi within the jurisdiction of police station Uttam Nagar the accused was found in possession of one button actuated knife having blade length of 11.02 cms. without any permit or license and thereby the accused committed the offence u/s 25 (1-B) of Arms Act 1959.
2. After filing of the challan in the court in the case, accused was supplied the documents and after hearing arguments on the point of charge, vide oder dated 07.08.07, charge U/s 25(1-B) of Arms Act 1959 was framed against the accused to which the accused pleaded not guilty and claimed trial.
3. In order to proved the charges against the accused, prosecution examined four witnesses, thereafter the PE in the matter was closed and the statement of accused u/s 281 Cr.PC was recorded wherein he claimed himself to be innocent and having been falsely implicated in the case. However he did not offer to examine any witness in his defence. A brief scrutiny of the evidence recorded in the matter is as under:
4. PW-1 Ct. Sukhbir Singh deposed that on 21.03.05 he was posted at Police Station Uttam Nagar and he alongwith HC Satyawan and Ct. Virender Singh was patrolling in the area. He further deposed that at about 10.25 p.m. they reached at in front of NSIT college , Uttam Nagar and they saw the accused sitting in suspicious condition. Upon suspicion they apprehended the accused and upon cursory search of accused one button actuated knife was recovered from his right side pocket of his pant. He further deposed that HC Satyawan prepared the sketch of knife EXPW1/1 and prepared the pullanda of knife and sealed the same with the seal of SS and taken into police possession vide seizure memo EXPW1/B and prepared rukka and handed over the same to Ct. Vijender for registration of case. He further deposed that accused was arrested vide arrest and personal search memo EXPW1/C and D. He identified the knife in the court as EXP-1.
5. PW-2 ASI Naresh was the 2nd IO of the case. He deposed that on 21.3.05 after registration of FIR , further investigation of the matter was marked to him and he alongwith ct. Vijender reached at the spot I.e. Bus stop, NSIT college where Ct, Sukhbir and HC Sataywan alongwith accused met him and they handed over the accused alongwith a sealed pullanda to him. He further deposed that he prepared site plan EXPW2/A at the instance of HC Satyawan and he recorded the statement of HC Satyawan. He further deposed that he arrested the accused vide arrest and personal search memo EXPW1/C and D. He further deposed that he further interrogated the accused and recorded his disclosure statement and upon pointing out of accused recovered one colour TV of IGO, one 14 inch AKAI colour TV, one 14 inch colour Samsung TV, one electronic voltage regulator, one mobile phone black colour of trump and one mobile phone of Motorola and seized the same vide seizure memo EXPW2/B. Witness identify the case property in the court as EXP-1 and P-2.
6. PW-3 Ct. Vijender deposed almost on identical lines of PW-1 Ct. Sukhbir Singh. He however deposed that after registration of FIR he came back at the spot alongwith copy of FIR , original rukka and ASI Naresh. He further deposed that ASI Naresh recorded the statement of HC Sataywan and prepared site plan at the instance of HC Sataywan. This witness identified the knife in the court as EXP-1.
7. PW-4 HC Sataywan deposed almost on identical lines of PW-1 ct. Sukhbir Singh. He however deposed that he produced the accused , sealed pullanda and other documents before ASI Naresh. He further deposed that ASI Naresh prepared the site plan at his instance and thereafter he was discharged from the spot. This witness identify the knife in the court as EXP-1.
8. This is all as far as prosecution evidence in the matter is concerned.
9. I have heard the arguments advanced at bar by the ld. Defence counsel as also Ld. APP and have carefully gone through the evidence recorded in the matter and the documents placed on record by the prosecution in this case.
10.In the present case the investigating officer has not joined any independent public witness despite availability. Admittedly several public witnesses were present at the time of apprehension of the accused and while completing the formalities and admittedly several residential houses are located near the place of alleged recovery but none of the occupants from any of the said houses were even requested to become witness. This casts doubt about sincere efforts made by the investigating officer to join independent witnesses. In ROOP CHAND VS. STATE OF HARYANA 1990 (1) CLR 69 it was observed that such explanations that the public persons refused to join the proceedings are unreliable. In the case of PREM SINGH VS. STATE 1996 CRI. L. J. 3604 (DELHI) and in the case of PAWAN KUMAR VS. DELHI ADMN. 1989 CRI. L.J. 127 it was observed that in case of failure to join independent witness benefit of doubt must be given to the accused.
11. Also in this case no efforts were made to hand over the seal after use to independent public persons and in such cases in view of SAIFULLA VS. STATE 1998 (1) CCC 497(DELHI) and ABDUL GAFFAR VS. STATE 1996 JCC 497 (DELHI) benefit of doubt is to be given to the accused.
12. In this case on the recovery memo and the sketch of knife the F.I.R. No. finds mention and it has not been explained by the prosecution. Admittedly these documents were prepared before registration of F.I.R. In the case of MOHD.
HASHIM VS. STATE 1999(6) A.D. (DELHI) 569 it was observed that when documents are prepared before registration of F.I.R. and it contains the F.I.R. No. then inference has to be drawn that either F.I.R. was recorded prior in time or the documents were prepared later on and in such cases benefit of doubt is to be given to the accused.
13. In this case the seal was kept by the police officials themselves and was not handed over to any independent person and prosecution has also failed to prove that the case property remained intact and was not tampered with till the time it was produced in the court which was more important when the seal remained with the police official of the same police station. The Malkhana moharrar has not been examined in this case to prove the same.
14.It is further argued by ld. Defence counsel that in the present case MHCM has not been examined by the prosecution . Therefore entry in register no. 19 has not been proved on record and the benefit of the same definately goes to the accused.
15. Lastly the departure and arrival of the police officials to the police station have not been proved by the prosecution to lend credence to the version of the prosecution.
16. In view of above discussion , I am of the considered opinion that the prosecution has not been able to prove the charges against the accused Dheeraj Kumar beyond the shadow of doubt. Accused Dheeraj Kumar is accordingly entitled for acquittal. I order accordingly. Accused be released from JC immediately if not wanted in another case. File be consigned to record room.
Announced in open court (Vinod Yadav)
On 17.09.07 Metropolitan Magistrate
Rohini, Delhi
FIR No.: 244/05
PS Uttam Nagar
17.09.2007
Present: APP for the State.
Accused is in JC with amicus curie Sh. A.N. Sharma
Satatement of accused U/s 281 Cr.PC recorded separately. Arguments heard.
Vide separate judgment announced in the open court today, accused Dheeraj Kumar is acquitted of the charges in the case. Accused be released from JC immediately , if not wanted in another case. No further orders are required to be passed in the matter. File be consigned to Record Room.
(Vinod Yadav) MM/Rohini 17.09.2007