Delhi District Court
Case Of The Prosecution Weak And ... vs . on 2 July, 2010
IN THE COURT OF SH. RAVINDER SINGH :
METROPOLITAN MAGISTRATE : NEW DELHI
F.I.R. 723/03
Srl. No. of Case - 200/02
P.S. Malviya Nagar
U/s. 25 (1B) (b) Arms Act
State v. HARIRAM
S/o Sh. Didaar Singh,
R/o Mehrauli, Najaria Peer Dargah
JUDGMENT :
a. Date of Institution : 22.10.03 b. Date of Commission of Offence : 30.10.03 c. Name of the complainant : Ct. Naresh Kumar. d. Offence complained of : U/s. 25 (1B) (b) Arms Act e. Plea of the accused : Pleaded not guilty f. Date of reserving Judgment : 02.07.2010 g. Final order : Acquitted h. Date of pronouncement : 02.07.2010 Brief reasons for the decision of the case.
1. The case of the prosecution in brief is that on 22.10.03 at about 7.30 PM at M.B. Road at the corner of Army Ground, New Delhi while Ct.. Naresh Kumar was on petrolling duty apprehended the accused and got recovered one buttanda knife from his possession. Ct.. Naresh sent the information to PP Pushp Vihar from there. S.I. Dharam Pal and Ct.. Ram Roop came there. Statement of Ct.. Naresh was recorded by S.I. Dharampal and rukka was prepared and thereafter F.I.R. was registered U/s 25/54/59 Arms Act in PS Malviya Nagar. Statement of witnesses were recorded, site plan was prepared, accused was arrested and after completion of all necessary investigation challan U/s 173 Cr.P.C was presented in the Court for trial.
2. Accused was summoned by the Court to face the trial, so copy of challan as required U/s 207 Cr. PC was supplied to him, thereafter case was fixed for consideration of charge.
3. After hearing arguments and on perusal of record, prima facie offence under Section 25 (1B) (b) Arms Act, was made out against the accused Hari Ram. Charge was framed accordingly against the accused on . Thereafter case was fixed for prosecution evidence.
4. Prosecution has produced and examined as many as three witnesses i.e, Ct.. Naresh Kumar as PW 1, Ram Roop as PW 2 and S.I. Dharam Pal as PW 3.
5. PW 1 Ct. Om Prakash testified that on 02.08.02 he was on petrolling duty along with S.I. Vijay Sanwal at about 7.20 pm at village Hauzrani when secret informer shared the information that one person was standing in front of Modi Hospital, Hauzrani Park having illegal knife in his possession . I.O. formed raiding party consisting of PW1 and himself and apprehended the accused. PW1 further testified that on casual search of accused one buttondar knife was recovered from his right side pocket of pant. Thereafter I.O. prepared sketch of knife Ex. PW 1/A and knife was put in a cloth parcel and sealed with the seal of SPS and thereafter seized vide memo Ex. PW 1/B, seal after use was handed over to him. PW 1 further testified that I.O. prepared the rukka and got the case F.I.R. registered through him and thereafter he came back at the spot with H.Ct. Satvir Singh whom S.I. Vijay handed over the accused and along with documents and case property. PW 1 further testified that accused was arrested vide memo Ex. PW 1/C and his personal search was conducted vide memo Ex. PW 1/D. PW1 correctly identified the recovered knife as Ex. P1.
During cross examination PW 1 testified that no notice was issued to the public persons who refused to join the investigation and denied the suggestion to the effect that accused was lifted from his house and false recovery has been planted upon the accused.
6. PW 2 A.S.I. Satvir testified that further investigation of this case was handed over to him so he along with Ct. Om Prakash reached on the spot where S.I. Vijay Sanwal handed over the accused along with case property and relevant documents to him. PW 2 further testified that he prepared the site plan at the instance of S.I. Vijay Sanwal Ex. PW 2/A and arrested the accused vide memo Ex. PW 1/C and conducted the personal search of accused vide memo Ex. PW 1/D. Accused did not prefer to cross examine PW 2.
7. PW3 S.I. Vijay Sanwal testified that on 02.08.02 he was on petrolling duty along with Ct. Om Prakash at about 7.20 pm at village Hauzrani a secret informer met them and shared information that one person was standing in Hauzrani Park having illegal knife in his possession so he request some public persons to join the raiding team but none agreed and left the spot. PW 3 further testified that they reached at Hauzrani Park where accused present in the court was found standing in front of gate of park in white shirt and on seeing them tried to slip from the spot but they apprehended the accused. PW3 further testified that on casual search of accused, he found one buttondar knife was recovered from his right side pocket of pant. Thereafter he prepared sketch of knife Ex. PW 1/A after taking its measurement and knife was put in a cloth parcel and sealed with the seal of SPS and thereafter seized vide memo Ex. PW 1/B, seal after use was handed over to Ct. Om Prakash. PW 3 further testified that he prepared the rukka Ex. PW 3/A and got the case F.I.R. registered through Ct. Om Prakash and thereafter Ct. Om Prakash came back at the spot with H.Ct. Satbir Singh to whom he handed over the accused along with documents and case property. PW 1 further testified that H.Ct. Satbir prepared site plan at his instance. PW1 correctly identified the knife as Ex. P1.
Accused did not prefer to cross examine PW 3.
8. PW3 A.S.I. Mahender Singh testified that on 02.08.2002, he recorded F.I.R. 679/02 Ex. PW4/A on receipt of rukka from Ct. Om Praksh and put his endorsement on the rukka Ex. PW4/B.
9. Statement of accused Anil was recorded U/s 281 Cr.P.C wherein he has denied the allegations of the prosecution and stated that he is innocent and has been falsely implicated in this case. However, accused did not prefer to lead any defence evidence.
10. I have heard the ld. APP for the State and accused and have also carefully perused the entire record and the relevant provisions of the law.
11. On careful perusal and analysis of the entire evidence on record I find that no corroborative, consistent reliable and sufficient evidence to make up the edifice of the prosecution case has been produced by the prosecution. Moreover, the testimonies of the prosecution witnesses do not inspire confidence.
12. It is the case of prosecution that accused was apprehended by the PW1 and PW3 on the pointing out of secret informer when he was standing at the Gate of Hauzrani Park while he was trying to flee away from the spot on seeing them, and on his search a buttondar knife was recovered from possession of accused. PW 3 prepared the sketch of knife Ex. PW 1/A and seized the knife vide memo Ex. PW 1/B and after registration of case PW2 came at the spot and arrested the accused vide memo Ex. PW 1/C.
13. Prosecution has examined two witnesses of recovery of buttondar knife from the possession of the accused i.e. PW1 and PW3 and PW2 is second I.O. who came at the spot after registration of the case.
14. The testimony of PW1 is not corroborated with the IO/PW3. PW 1 testified that secret informer gave information that one person was standing in front of Modi Hospital, Hauzrani Park whereas PW2 testified that information regarding one persons standing in front of Hauzrani Park in white shirt was received, further PW1 testified that the accused was apprehended on the pointing out of secret informer at the spot whereas PW 2 has not deposed anything about apprehension of accused on pointing out of secret informer. Thus there is material contradiction in the testimonies of PW1 and PW3 and create doubt in the mind of court regarding recovery of buttondar knife at the above said place from the possession of accused and contradictory testimonies of PW1 and PW3 cannot be relied upon for the purpose of conviction of accused.
15. Further neither PW 1 nor PW 3 has deposed anything about the breadth of blade of knife. It is also pertinent that Ex. PW 1/A does not show the breadth of blade of knife which was recovered from the possession of accused. As per notification of Delhi Administration: Delhi dated 29.10.1980 the breadth of blade of knife must be 1.72 c.m. or more. In view of this, it cannot be said that accused has violated the terms of notification issued by Delhi Administration regarding breadth of blade of a buttondar knife.
16. During the investigation of the case neither public witnesses were joined nor seems to be any sincere efforts made in this regard, when it was possible to do as PW3 deposed that he requested public persons to be witness of the proceedings present at the spot. So this makes the case of the prosecution weak and suspicious. In State of Punjab vs. Gurmel Singh 1991 (2) Recent Criminal Reporters 361 Hon'ble Court held that : "Where there were 20 shops nearby and the investigating officer had ample opportunity to join independent witness statement of official witnesses would not be sufficient to convict the accused. Contention of the prosecution that the police officials had no ill will to involve the accused in false case was repelled.''
17. PW 3/SI Vijay Sanwal in his examination in chief have deposed that the knife was put into pullanda and it was sealed with the seal of SPS by him and seal after use was given to PW 1. Testimony of PW 3 is totally silent as to whether any seal handing over memo or seal returning memo was prepared. Why such memos were not prepared, which constitutes a material link evidence. Such linking evidence is lacking in the prosecution case.
18. The perusal of the sketch of the knife Ex. PW 1/A and seizure memo Ex PW 1/B shows that FIR number is mentioned therein. There is not a single word in the testimony of PW 3 as to when and at what stage FIR number was inserted in Ex PW 1/A and Ex PW 1/B. Moreover, the testimony of PW1 is also totally silent on this aspect. In these circumstances, either FIR was recorded posterior in time or that documents were prepared after the recording of FIR. In case Mohd Hasim Vs. State 1999 VI AD (Delhi) 569 (Hon'ble Mr. Justice M. S. A Siddiqui) it was observed that documents prepared before registering the FIR bears FIR numbers, meaning thereby either FIR was recorded posterior in time or that documents were prepared after the recording of FIR, and was hold that in both case, prosecution case would collapse.
19. In these circumstances, the testimony of the prosecution witnesses do not inspire confidence.
20. Apart from this, the presence of PW1 and PW3 at the spot is not proved. If he had departed from PS for patrolling duty the entry to this effect must exist in the Roznamcha but that has not been proved, raising an adverse presumption against the prosecution U/s 114 (g) of the Evidence Act and if the said Roznamcha had been produced it would have not shown their departure at all.
21. It is true evidence it to be weighted and not counted but in this case whatever evidence has been produced by the prosecution is not sufficient to fortify the edifice of the prosecution case and th prosecution has failed to prove all the links, the benefit of doubt has been given to the accused. In view of this I am fortified with the observations made in the case State of Rajasthan Vs. Daulat Ram 1980 CAR 169 (SC) where it was held that prosecution failed to proved all the links. Accused was acquitted.
22. In view of the above, I hold that prosecution has failed to prove its case beyond reasonable doubt against accused and he is given the benefit of doubt and therefore accused Hariram is acquitted of the offence punishable U/s. 25 (1B) (b) of the Arms Act for which he stands charged.
Announced in the Open Court
on 02/07/2010 (RAVINDER SINGH)
Metropolitan Magistrate:
New Delhi.