Delhi District Court
In A Case Law Reported As Anoop Joshi vs . State 1999(2) on 30 July, 2018
IN THE COURT OF SH. PRANJAL ANEJA
METROPOLITAN MAGISTRATE-01, SHAHDRA DISTRICT,
KARKARDOOMA COURTS, DELHI
State v. Jamshed
FIR No. 196/17
PS: Madhu Vihar
U/s 25/54/59 Arms Act
a. Serial No. of the case : 3484/17
b. Date of commission of offence : 18.06.2017
c. Date of institution of the case : 28.09.2017
d. Name of complainant : Ct. Pradeep Kumar
e. Name of accused : Jamshed S/o Bane
R/o Footpath Sabji Mandi,
Shahdara Delhi.
f. Offence complained of : U/s 25/54/59 Arms Act
g. Plea of accused : Pleaded not guilty
h. Arguments heard on : 19.07.2018
i. Final order : Acquitted
j. Date of judgment : 30.07.2018
JUDGMENT
1. Briefly stating, the case as per prosecution is that on 18.06.2017 at about 10:30 am at Duty Local Checking Point, in Gate ISBT Anand Vihar Delhi, accused was found in possession of buttondar knife in contravention of notification issued by Delhi Administration and thereby committed an offence punishable u/s 25 Arms Act.
FIR No. 196/17 PS Madhu Vihar State V. Jamshed 30.07.2018 Pg No. 1/12
2. After completion of investigation, charge-sheet was filed. Upon taking cognizance of the offence, accused was summoned and supplied copy of charge-sheet in compliance of section 207 of Cr.P.C. Charge u/s 25 Arms Act was framed on 14.11.2017. Accused pleaded not guilty and claimed trial.
3. In order to prove its case the prosecution has examined Complainant/Ct.Pradeep as PW-1, Ct. Lalit Bhati as PW-2 and ASI Sushil Kumar as PW-3. Statement U/s 294 Cr.P.C. of accused was recorded on 14.11.2017 whereby he did not dispute FIR (Ex. A1), DD no. 20 dt. 18.06.2017 PP ISBT Anand Vihar (Ex. A-1B), DD no. 48 dt. 17.06.2017 PS Madhu Vihar (Ex.A-1B), notifications (Ex. A-2 & Ex. A- 2A) and endorsement on rukka (Ex. A-3). Thus, the witnesses for said documents were not summoned.
4. PE was closed on 24.05.2018. Statement of accused u/s 313 Cr.P.C was recorded on 05.07.2018. Accused did not opt to lead defense evidence.
5. I have heard the arguments of Ld. APP for the State as well as on behalf of accused through LAC Mr. A.K. Singhal. I have also gone through the evidence on record.
6. In order to establish the guilt of the accused, prosecution was under obligation to prove that the accused on 18.06.2017 at about 10:30 am at Duty Local Checking Point, in Gate ISBT Anand Vihar Delhi, was found in possession of buttondar knife in contravention of notification issued by Delhi Administration.
FIR No. 196/17 PS Madhu Vihar State V. Jamshed 30.07.2018 Pg No. 2/12
7. The testimonies of prosecution witnesses is touched upon in brief as follows:-
7.1 PW1 complainant/Ct. Pradeep deposed that on 17.06.2017 from 08.00 p.m to 02.00 p.m. he was on checking duty at local point main entry gate, ISBT Anand Vihar, Delhi and the boy was coming from Ghazipur towards his side and on suspicion upon the boy, he apprehended the boy after chasing him for some distance and upon search of the boy, he found one buttondar knife in left side pocket of his wearing blue color jeans pant. The name of accused was revealed as Jamshed and thereafter PW-1 made call to DD writer at PP Anand vihar and after sometime ASI Sushil Kumar alongwith Ct. Lalit reached at the spot to whom PW-1 handed over the accused and buttondar knife. PW- also proved some document prepared by IO ASI Sushil Kumar in his presence i.e. Sketch memo of knife Ex.
PW1/A, seizure memo of case property Ex. PW1/B, his statement recorded by IO as Ex. PW1/C, arrest memo of accused Ex. PW1/D & personal search memo of accused Ex. PW1/E, site plan Ex. PW1/F. PW-1 also identify the case property as Ex. P1 In cross-examination, PW1 stated he did not request to the public persons to join the investigation and did not offer his personal search to the accused prior his personal search. PW-1 was unable to depose whether at the time of arrest of accused, public persons were asked to join the investigation or not. PW-1 stated FIR No. 196/17 PS Madhu Vihar State V. Jamshed 30.07.2018 Pg No. 3/12 that IO reached at spot at about 10.30 a.m. 7.2 PW2 Ct. Lalit Bhati deposed that on 18.06.2017, at about 10.30 a.m. after receiving call from duty officer, he alongwith ASI Sushil reached at the spot where Ct. Pradeep told that after seeing him accused started running and due to suspicion he apprehended the accused and upon search one buttondar knife was recovered and thereafter, IO took over the possession of accused and buttondar Knife. PW-2 further stated that IO prepared sketch memo of knife and sealed the same with the seal of SK. PW-2 further supported the case of prosecution and stated that accused was interrogated by the IO and IO recorded disclosure statement of accused as Ex. PW2/A. In cross-examination, PW-2 stated that recovery of knife was no effected in his presence and no public persons were called in presence as a witness. PW-2 stated that he took rukka to PS at about 12.00 noon and came back at spot at about 01.00 p.m. PW-2 that IO did not prepared any document after the FIR registration.
7.3 PW3 is the IO ASI Sushil Kumar who deposed that on 18.06.2017 on receipt of DD no. 20PP through DD writer he alongwith Ct. Lalit Bhat reached at the spot ie. Local checking point main entry gate ISBT Anand Vihar (Bus stand) where Ct. Pradeep handed over to him one boy i.e. .accused and buttondar knife and told FIR No. 196/17 PS Madhu Vihar State V. Jamshed 30.07.2018 Pg No. 4/12 that same was recovered from the possession of accused. PW-3 further stated that he took the measurement of knife, prepared sketch memo and rukka Ex. PW3/B and further supported the case of prosecution.
In cross-examination, PW3 stated that DD writer handed over to him 20PP and thereafter he reached at the spot. He further deposed that he did not make request to public persons to join the investigation in the present case. PW-3 deposed that he offered his search prior to the search of accused by accused denied to the same. PW-3 stated that he prepared rukka at about 10.45 a.m. and after that he prepared site plan, seizure memo, personal search and arrest memo etc.
8. I have heard the ld. APP for the State and Ld. LAC Sh. A.K. Singhal for the accused and perused the record.
9. Considering the points contended on behalf of accused, it is observed that there is no independent witness joined in the investigation. In State of Punjab v. Balbir Singh, AIR 1994 SC 1872, the Hon'ble Supreme Court held that:
"It therefore emerges that non-compliance of these provisions i.e. Sections 100 and 165 Cr.P.C. would amount to an irregularity and the effect of the same on the main case depends upon the facts and circumstances of each case. Of course, in such a situation, the court has to consider whether any prejudice has been FIR No. 196/17 PS Madhu Vihar State V. Jamshed 30.07.2018 Pg No. 5/12 caused to the accused and also examine the evidence in respect of search in the light of the fact that these provisions have not been complied with and further consider whether the weight of evidence is in any manner affected because of the non-compliance. It is well-settled that the testimony of a witness is not to be doubted or discarded merely on the ground that he happens to be an official but as a rule of caution and depending upon the circumstances of the case, the courts look for independent corroboration. This again depends on question whether the official has deliberately failed to comply with these provisions or failure was due to lack of time and opportunity to associate some independent witnesses with the search and strictly comply with these provisions. [Emphasis supplied]"
Considering facts and circumstances of the present case, there was no lack of time and opportunity to associate some independent witnesses with the search and strictly comply with the provisions of Code of Criminal Procedure. It is important to note herein that PW-1 and PW-3 in their cross-examination stated that they did not request any public person to join the investigation. Prosecution has not examined any other independent public witness. Regarding the importance of joining independent witness during investigation in a case like the present one, reliance may be placed on the following case laws:
FIR No. 196/17 PS Madhu Vihar State V. Jamshed 30.07.2018 Pg No. 6/12 In a case law reported as Anoop Joshi Vs. State 1999(2) C.C. Cases 314 (HC), Hon'ble High Court of Delhi has observed as under:
"18. It is repeatedly laid down by this court that 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 evident 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 case law Nanak Chand Vs. State of Delhi DHC 1992 CRI LJ 55 it is observed as under:-
"that the recovery is proved by three police officials who have differed on who snatched the Kirpan from the petitioner and at what time. The recovery was from a street with houses on both sides and shops nearby. And, yet no witness from the public has been produced. Not that in every case the police FIR No. 196/17 PS Madhu Vihar State V. Jamshed 30.07.2018 Pg No. 7/12 officials are to be treated as unworthy of reliance but their failure to join witnesses from the public especially when they are available at their elbow, may, as in the present case, cast doubt. They have again churned out a stereotyped version. Its rejection needs no Napoleon on the Bridge at Arcola".
In Sadhu Singh versus State of Punjab, (1997) 3 Crimes 55 (PH) wherein it is held that:
"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 public witnesses. It is further held that a stereotype statement of non availability of any public witness will not be sufficient particularly when at the relevant time, it was not difficult to procure the services of public witness."
Keeping in view of the above authorities, I am of the considered opinion that prosecution has failed to show a genuine effort to make a public witness with regard to the apprehension of accused and alleged recovery of buttondar knife from the possession of the accused.
10. Regarding entry and departure of police personnels, FIR No. 196/17 PS Madhu Vihar State V. Jamshed 30.07.2018 Pg No. 8/12 Chapter 22 rule 49 of the Punjab Police Rules, is reproduced herein for ready reference:
''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 personally by signature or seal. Note ;- The term Police Station will include all places such as Police Lines and Police Posts where Register No. II is maintained."
At this juncture, it would be relevant to refer to a case law reported as Rattan Lal V/s State, 1987 (2) Crimes 29 in which the Hon'ble Delhi High Court has been held as under:
"if the investigating agency deliberately ignores to comply with the provisions of the Act the courts will have to approach their action with reservations. The matter has to be viewed with suspicion if the provisions of law are not strictly complied with and the FIR No. 196/17 PS Madhu Vihar State V. Jamshed 30.07.2018 Pg No. 9/12 least that can be said is that it is so done with an oblique motive. This failure to bring on record, the DD entries creates a reasonable doubt in the prosecution version and attributes oblique motive on the part of the prosecution."
In the present case, the above said provision has not been complied with by prosecution. The relevant entries regarding the arrival and departure of the police officials have not been proved on record. This raises a doubt regarding the presence of police on the spot and all consequential event such as arrest, seizure, investigation etc.
11. Now, I consider the observation made by Hon'ble Delhi High Court in Giri Raj v. State, 83 (2000) DLT 201. In the present case, the sketch and seizure memo of case property Ex.PW1/A and Ex.PW1/B respectively bear the number of FIR. At the time of the seizure, FIR number was not available and therefore, FIR number could not have figured on the seizure memo or on the sketch memo. The existence of FIR number on seizure memo suggests that the seizure memo was prepared after the registration of FIR and is therefore antetime. It is not the case of prosecution that FIR number was later appended/mentioned upon these memos. This erodes the credibility of the witnesses who have stated that the sketch and seizure memo was prepared on the spot and before the registration of FIR. That being so, the benefit arising out of such a situation must necessarily go to the accused.
12. Furthermore, it also came on record that PW1 Ct. Pradeep FIR No. 196/17 PS Madhu Vihar State V. Jamshed 30.07.2018 Pg No. 10/12 did not give his personal search to any one before checking the accused. When the raiding members took the personal search of the accused then they must have offered their personal search to someone so that the possibility of false plantation of the property could be ruled out. In the present case no such precaution was taken by the IO and as such the possibility of false planting the case property upon the accused could not be ruled out.
In the judgment titled as S.L.Goswami v. State of M.P reported as 1972 CRI.L.J.511(SC) the Hon'ble Supreme Court held:
"...... In our view, the onus to proving all the ingredients of an offence is always upon the prosecution and at no stage does it shift to the accused. It is no part of the prosecution duty to somehow hook the crook. Even in cases where the defence of the accused does not appear to be credible or is palpably false that burden does not become any the less. It is only when this burden is discharged that it will be for the accused to explain or controvert the essential elements in the prosecution case, which would negative it. It is not however for the accused even at the initial stage to prove something which has to be eliminated by the prosecution to establish the ingredients of the offence with which he is charged, and even if the onus shifts upon the accused and the accused has to establish his plea, the standard of proof is not the same as that which rests upon the FIR No. 196/17 PS Madhu Vihar State V. Jamshed 30.07.2018 Pg No. 11/12 prosecution..........................."
13. In view of the above appreciation of evidence, no confidence is inspired to record any conviction in this case. It is the cardinal principle of criminal justice delivery system that the prosecution has to prove the guilt of accused beyond reasonable doubts. No matter how weak the defence of accused is, but the golden rule of criminal jurisprudence is that the case of the prosecution has to stand on its own legs. It is evident from the above analysis that prosecution has failed to establish that the accused committed the offence charged upon him.
14. Accordingly, the accused Jamshed is acquitted in this case. Digitally signed by PRANJAL PRANJAL ANEJA Directly Dictate on the ANEJA Date:
2018.07.30 Computer System & 17:48:47 +0530 Announced in the open (PRANJAL ANEJA) Court on 30.07.2018 Metropolitan Magistrate-01 Shahdra District, Karkardooma Courts, Delhi FIR No. 196/17 PS Madhu Vihar State V. Jamshed 30.07.2018 Pg No. 12/12