Delhi District Court
State vs . Mordhvaj Singh on 15 December, 2012
IN THE COURT OF SH. DEEPAK SHERAWAT
METROPOLITAN MAGISTRATE, SOUTH EAST DISTRICT
SAKET COURTS, NEW DELHI
FIR No.521/2006
P.S. Sarita Vihar
U/s 25 Arms Act
State Vs. Mordhvaj Singh
JUDGMENT :
a. Sl. No. of the case : 71/3
b. Date of Institution : 16.10.2006
c. Date of Commission of Offence : 06.10.2006
d. Name of the complainant : HC Jogender Singh
PS Sarita Vihar
e. Name of the accused and his : Mordhvaj Singh
parentage and address S/o Teekam Singh
R/o MohallaSatnar, near
Water Tank, Firozabad, U.P.
f. Offence complained of : U/s 25 Arms Act r/w
section174A IPC
g. Plea of the accused : Pleaded not guilty
h. Order reserved : 15.12.2012
i. Final Order : Acquitted
j. Date of such order : 15.12.2012
1. The accused in this case was sent up for trial for the commission of
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PS SARITA VIHAR
offence U/s 25 Arms Act.
2. The facts in brief are that on 06.10.2006, HC Jogender Singh while patrolling duty along with Ct. Manoj reached near Gas Ka Godam, Okhla Tank, Jasola, New Delhi, where at about 6.00 p.m., one secret informer met them and informed that the accused was standing at near Gas Ka Godam and he was having illegal knife with him. Thereafter IO along with Ct. Manoj and secret informer reached the spot at about 6.10 p.m., and at the instance of secret informer, they apprehended the accused and on his search, one button operated knife was recovered from the right side pocket of his pant. During the investigation site plan was prepared. Statement of witnesses were recorded. Accused was arrested and after completing the other formal investigation, the challan was presented before the court for trial.
3. A prima facie case having been made out against the accused, charge was framed against the accused on 22.06.2007, under section 25 of Arms Act to which he pleaded not guilty and claimed trial.
4. During the course of trial, accused was declared PO vide order dated 23.01.2012. Thereafter vide order dated 15.02.2012, accused was produced before the court from J/C on production warrant and a supplementary charge sheet was filed against him under section 174 FIR NO. 521/2006 PAGE 2 OF PAGE 8 PS SARITA VIHAR A IPC and accordingly charge was framed against him under section 174A IPC to which he pleaded not guilty and claimed trial.
5. To prove its case against the accused, the prosecution has examined four witnesses namely HC Manoj Kumar as PW1, HC Vijay Kumar as PW1(a), HC Inderpal as PW1(b) and HC Jogender Singh as PW2.
6. PW1 HC Manoj Kumar has testified that on 06.10.2006, he along with HC Jogender while patrolling duty reached near Gas Ka Godam, Okhla Tank, Jasola, New Delhi where at about 6.00 p.m., one secret informer met with them and informed that one person who was having possession of illegal weapon, was waiting for his friends near Gas ka Godam. PW1 further testified that IO requested some public persons to join the investigation but none of them get ready and left the place on justified excuses. PW1 further testified that at about 6.10 p.m., they reached the spot and on pointing out of secret informer, accused present in the court was apprehended and on his search, one button operated knife was recovered from his right side pocket of his pant. PW1 further testified that IO had prepared the sketch of knife vide Ex.PW1/A and the knife was put into white cloth and pullanda was prepared and the same was sealed with the seal of JSB and seized vide memo Ex. PW1/B and the seal after use was handed over to him. PW1 FIR NO. 521/2006 PAGE 3 OF PAGE 8 PS SARITA VIHAR further testified that IO prepared the rukka and handed over the same to him for the registration of FIR and he got the case registered. PW1 further testified that IO prepared the site plan at his instance. Thereafter accused was arrested and his personal search was conducted vide memo Ex. PW1/C and PW1/D. PW1 had correctly identified the case property vide Ex. P1.
7. PW1(a) HC Vijay Kumar has testified that on 26.03.2012, on receipt of DD No.48A Ex. P1 through HCt. Inder Pal from PS Govind Puri, regarding production of accused Mordhwaj before the court on 12.03.2012. PW1(a) further testified that accused Mordhwaj was declared PO on 23.01.2012 in the present case. PW1(a) further testified that on 26.03.2012, he prepared a challan u/s 174A IPC and filed the same before the court.
8. PW1(b) HC Inder Pal has testified that on 09.02.2011, he had moved an application for the production of accused Mordhwaj Singh before the court and on that day the production warrant was issued against him and he got the production warrants served upon the accused. PW1(b) further testified that the accused present in the court had appeared in the court on 12.03.2012.
9. PW2 HC Jogender Singh has also deposed the same facts as deposed by PW1/Ct. Manoj. PW2 further testified that he prepared FIR NO. 521/2006 PAGE 4 OF PAGE 8 PS SARITA VIHAR the rukka vide memo Ex. PW2/A and also prepared the site plan vide memo Ex. PW2/B. In his cross examination, PW2 has testified that no public person was present at the time of cursory search of accused and no finger prints and chance prints were obtained from the alleged knife.
10. After closing of prosecution evidence, statement of accused was recorded U/s 281 of Code of Criminal Procedure s Code,1973 r/w 313 Cr.P.C. In his statement, accused denied to have committed the offence and claimed to have been falsely implicated in this case. Accused further denied to lead any defence evidence.
11. I have heard the Ld. APP for the State and the Ld. Legal Aid Counsel for the accused and have also perused the record.
12. In this case, the prosecution is required to establish beyond reasonable doubt that the accused was in possession of the arms without any valid license. In the present case, PW1 and PW2 are the material witnesses as recovery has been effected by them from the possession of the accused. PW2 is the IO of the case also who had done all the documentary proceedings.
13. In the present case, no public witness has been associated with the investigation. No independent witness has been joined at the time of FIR NO. 521/2006 PAGE 5 OF PAGE 8 PS SARITA VIHAR the arrest of the accused and recovery of the weapon. The witness to the recovery being police official, such recovery does not inspire confidence. Similar view has been expressed by the Supreme Court in Sanspal Singh v. State of Delhi, (1998) 2 SCC 371 and the Delhi High Court in Staila Sayyed v. State, (Delhi)2008(4) JCC 2840.
14. Further it needs to be noted that the sketch memo and the personal search memo regarding the weapon bear the number of FIR. The prosecution has not offered any explanation whatsoever as to under what circumstances number of the FIR has appeared on the top of the aforesaid documents, which were allegedly prepared on the spot before the registration of the FIR. This gives rise to two inferences that either the FIR was recorded prior to the alleged recovery of the contraband or number of the said FIR was inserted in these documents after its registration. In both the situations, it seriously reflects upon the veracity of the prosecution version given by the aforesaid witnesses and creates a good deal of doubt about the recovery in the manner alleged by the prosecution. Reliance may be had to the decision of the Delhi High Court in Lalji Shukla v. State, (Delhi) 2000(1) R.C.R.(Criminal) 305.
15. Again, there is nothing on record to prove that the seal with which the parcel/pullanda containing the article of recovery was sealed was handed over to any independent witnesses after use. PW1 in his FIR NO. 521/2006 PAGE 6 OF PAGE 8 PS SARITA VIHAR testimony has deposed that the seal after use was handed over to him. PW2 has also deposed the same facts as deposed by PW1. In such circumstances possibility of tampering with contents of sealed pullanda cannot be ruled out. It was very essential for the prosecution to have established that sealed pullanda was not tampered with. In this respect, the decision of the Delhi High Court in Safiullah v. State (Delhi Administration), Delhi 1993(1) R.C.R. (Criminal) 622 may be referred to.
16. Moreover, no DD entry in respect of PW1 and PW2 is proved on record to establish that they both were actually present in the area at the relevant time in connection with patrolling duty. Thus the presence of these two witnesses at the alleged time itself is rendered doubtful. This view has been expressed by the Delhi High Court in Shekhar v. State of NCT of Delhi, (Delhi) (D.B.) 2008 Cri.L.J. 3258.
17. Further to establish the charge under section 174A IPC, the prosecution has examined only two witneses i.e. HC Vijay Kumar as PW1(a) and HC Inder Pal as PW1(b). Both these witnesses had apprehended the accused after he had been declared absconder by the court. However, the prosecution has not brought on record anything to prove that the accused was ever declared proclaimed offender. The proclamation order has not proved according to the Evidence Act. Further, the process server who executed the process FIR NO. 521/2006 PAGE 7 OF PAGE 8 PS SARITA VIHAR u/s 82 Cr.P.C against the accused, has also not been examined as a witness by the prosecution.
18. All these infirmities in the prosecution evidence seriously reflects on the veracity of prosecution case the benefit whereof must go to the accused.
19. In the result, I find that Prosecution has failed to prove its case against the accused beyond reasonable doubt and he is given the benefit of doubt and therefore accused Mordhvaj is acquitted for the offence punishable U/s. 25 of Arms Act and section 174A of IPC for which he stands charged.
Announced in the Open Court (DEEPAK SHERAWAT)
On 15.12.2012 Metropolitan Magistrate
South East District/New Delhi
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PS SARITA VIHAR
FIR No.521/2006
PS Sarita Vihar
u/s 25 Arms Act r/w section 174A IPC
15.12.2012
Present: Ld. APP for the State.
Accused produced from J/C with LAC Sh. Hari Om Bhaskar. Statement of accused recorded vide separate sheet. Ld. LAC submits that his final arguments may be heard today itself.
Final arguments heard.
Put up for orders at 1.00 p.m.
(Deepak Sherawat)
MM/South East/15.12.2012
At 1.00 p.m.
Present: As before.
Vide my separate judgment dictated and announced in the open court, accused is acquitted for the offence punishable U/s 25 Arms Act r/w section 174A IPC for which he stands charged.
Accused is released on bail on furnishing personal bond in the sum of Rs.10,000/. Personal bond furnished. Same is accepted. As per section 437A of the Cr.P.C, as amended vide the Amendment Act, which came into force on 31.12.2009, the accused shall remain bound by the personal for a period of six months from today.
Jail Superintendent is directed to release the accused from jail, if not required in any other case.
File be consigned to Record Room.
(Deepak Sherawat)
MM/South East/15.12.2012
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