Delhi District Court
State vs Satish @ Pelu on 3 March, 2009
1
IN THE COURT OF SH. RAM LAL MEENA :
MM: KARKARDOOMA COURTS: DELHI
FIR No. 148/07
U/s 27 Arms Act
State versus Satish @ Pelu
PS Farsh Bazar
JUDGMENT :355 Cr.P.C
a) the serial number of the : 265 - 03 case
b) the date of the : 15.05.07 commission of the offence
c) the name of the : SI Rajpal complainant (if any)
d) the name of the accused : Satish @ Pelu S/o Dharambir R/o person, and his parentage 2/23, Gajju Katra, Farsh Bazar, and residence Delhi.
e) the offence complained of : U/s 27 Arms Act or proved
f) the plea of the accused : Accused did not plead guilty.
and his examination if any
g) Final order : Acquitted
h Final arguments heard on 03.03.09
i Date of such order : 03/03/09
j a brief statement of the reasons for the decision:-
01. A police report was put up against the accused by the State through Station House Officer of PS Farsh Bazar alleging that on 15.05.07 at about 8:40 pm at near Handa School, Bhola Nath Nagar gali, Delhi, within the jurisdiction of PS Farsh Bazar, accused was found in possession of one button operated knife which he was 2 waving in the public way in the contravention of notification issued by Delhi Administration and thereby committed an offence u/s 27 Arms Act.
02. After filing of the police report, cognizance of offence under section 27 Arms Act was taken by my learned predecessor court and the accused was called upon to face trial after complying with the requirement of section 207 of CrPC.
03. On 27.06.07 having heard the APP for the State and the accused a formal charge was framed against the accused for his having committed an offence punishable under section 27 Arms Act, to which the accused pleaded not guilty and subsequently he was put on trial.
04. In support of its case the prosecution examined as many as five witnesses. PW 1 is ASI Ehatsham Ali, PW 2 is constable Kushal Pal, PW 3 is SI Rajpal Sharma, PW 4 is constable Amrish Tyagi, PW 5 is HC Krishan Pal. During the prosecution evidence documents Ex. PW 1/A, Ex. PW 1/B, Ex. PW 2/A, Ex. PW 2/B, Ex. PW 2/C, Ex. PW 2/D, Ex. PW 2/E, Ex. PW 3/A, Ex. PW 5/A were examined and the case property Ex. P1 was also tendered and subsequently PE was directed to be closed.
05. Accused was examined under section 281 CrPC and all the incriminating evidence were brought to his notice. Accused 3 expressed his innocence during his examination and further submitted that it is a false case. Accused did not lead his defence evidence.
06. I have also gone through the evidence of prosecution which are as under.
PW 1 is ASI Ehatsham Ali who deposed that on 15.05.07 he was posted at PS Farsh Bazar and on that day he recorded FIR of this case on the basis of rukka sent by HC Krishan Chand through constable Amreesh and the copy of said FIR is Ex. PW 1/A and he made endorsement on rukka Ex. PW 1/B. PW 2 is constable Kushal Pal who deposed that on 15.05.07 he was posted in PS Farsh Bazar and on that day he along with constable Amrish and SI Rajpal were on patrolling duty and at about 8:35 pm when they reached Handa school, Bhola Nath Nagar they heard a noise and some crowd was found and in the crowd accused was having an open knife in his hand and waiving the knife and threatening the public. PW 2 further deposed that accused tried to run towards the temple side and was apprehended and knife was taken from his possession. Sketch of the knife Ex. PW 2/A was prepared by SI Rajpal and same was seized with the seal of RPS vide seizure memo Ex. PW 2/B. PW 2 further deposed that IO prepared rukka which was handed over to constable Amrish who went to the 4 police station and came back after registration of the FIR and along with IInd IO HC Kishan Chand, thereafter case property, accused and documents were handed over to the 2nd IO and accused made disclosure statement Ex. PW 2/E, accused was arrested and personally searched vide memo Ex. PW 2/C and Ex. PW 2/D. PW 3 is SI Rajpal Sharma and PW 4 is constable Amrish Tyagi who deposed on the same line of facts as deposed by PW 2 hence same are not reproduced here. PW 2 further deposed that he prepared site plan Ex. PW 3/A. PW 5 is HC Krishan Pal who deposed that on 15.05.07 he was posted at PS Farsh Bazar and was present at the police station and on receiving copy of FIR and rukka he reached at near Handa School, Bhola Nath Nagar, Shahdara along with constable Amrish where constable Kushal Pal and SI Rajpal met him and handed over the accused along with knife and documents, he prepared site plan Ex. PW 5/A at the instance of SI Rajpal, collected the copy of notification mark X1, arrested the accused and his personal search was conducted, he recorded the statement of the witnesses, prepared the challan and filed the same.
07. Accused submits that prosecution has failed to prove its case beyond reasonable doubt. Moreover he has been falsely 5 implicated in the case.
08. After having gone through the submissions of the parties and perusal of the record I find that prosecution has failed to prove its case beyond reasonable doubt.
Firstly, As accused stated that he was lifted by the police from his home whereas PW 1, Amrish deposed that he and SI Rajpal were on patrolling and on the date of the incident and on the aforesaid date they heard a noise from the crowd, then they went there and find that accused was waving his knife and threatening to the public, thereafter accused was apprehended by them. After perusal of case file it appears that prosecution has failed to show that the aforesaid Pws were on patrolling on the date of incident.
For knowing the importance of the DD entry of arrival and departure of the police officials from the police station, I have perused Chapter 22 Rule 49 of Punjab Police Rules, 1934 which reads 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 all police station or elsewhere, with a statement of the nature of their duty. This entry shall be made immediately on 6 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.
In the present case, the above said provision appears to have not been complied with by prosecution. As per the prosecution version at the time of the apprehension of the accused with one button operated knife in his possession, Constable Kushalpal, constable Amrish and SI Rajpal were on the area patrolling duty but the DD entry vide which they had left the PS for patrolling has not been brought on record. Even the number of the said DD entry made in Register No. II has not been brought on judicial record. In my opinion prosecution was under an obligation to prove on record, the above said DD entry vide which above said police officials had left the PS for patrolling duty so as to prove the possibility of availability of Constable Kushalpal, constable Amrish and SI Rajpal Richpal at the place of apprehension of the accused. In the facts and circumstances of the case, the prosecution ought to have proved the DD entry by which the above said police officials had left the PS so as to inspire the confidence regarding their availability / presence at the place of apprehension of the accused. At this juncture, it would be relevant to refer to a case law reported 7 as Rattan Lal versus State 1987 (2) Crimes 29 the Hon'ble Delhi High Court wherein it has been observed that if the investigating agency deliberately ignores to comply with the provisions of the Act the courts will have to approach their action with reservation. The matter has to be viewed with suspicion if the provisions of law are not strictly complied with and the least that can be said is that it is so done with an oblique motive. This failure to bring on record, the DD entry creates a reasonable doubt in the prosecution version and attributes oblique motive on the part of the prosecution.
Secondly, prosecution examined five witnesses who are all police witnesses. PW 2, PW 3 and PW 4 are the recovery witnesses of the case but they have material contradictions in their testimonies. PW 2 deposed that that constable Amrish went to PS along with rukka at 9:15 pm on foot and came back at the PS at 10:00 pm whereas PW 3 deposed that constable Amrish took the rukka to PS on motor cycle at about 9:40 pm and came back at the spot at 10:30 pm. Further more PW 2 deposed that they finally left the spot at 10:20 pm whereas PW 3 and 4 deposed that they finally left the spot at 10:30 pm and 11:30 pm respectively. The aforesaid contradictions in regard of the time of the leaving the spot by the aforesaid PW shows that they are not aware about the actual time of leaving the spot. PW 4 deposed that accused was arrested in 8 between 11:30 and 11:45 pm but perusal of the arrest memo of the accused shows that accused was arrested at 11:00 pm. Further more, PW 5, IO claimed that he prepared site plan Ex. PW 5/A at the instance of SI Rajpal, perusal of the site plan shows that there is not signatures of the aforesaid person namely SI Rajpal. The aforesaid contradictions strengthen the defence view that proceedings may have been done at the police station.
Thirdly, I also find that IO has also not made any public witnesses of the recovery of the alleged illicit liquor despite the fact that alleged spot was a residential. In this regard, the explanation of the prosecution witnesses has been that none of the public persons agreed to join the investigation. The explanation given by the prosecution witness does not seem plausible because in the police report as well as the testimony of the prosecution witnesses, the names of the public persons, who were requested to join the investigations have not been mentioned. IO has also not taken any action against such public persons who did not tender help to the public servant despite they were being under an obligation to render help on the legitimate request of the public servant.
I have also relied upon citation 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 9 available. All the same, the prosecution must show a genius attempt having been made to join public witnesses. It is further held that a stereo type 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 citation, I am of the considered view that prosecution has failed to show a genuine effort to make a public witness in regard of alleged recovery of case property from the possession of the accused.
09. Keeping in view of the aforesaid fact, I am of the considered view that prosecution has failed to prove the guilt of the accused beyond reasonable doubt.
10. In view of the above discussion I hold that the accused is not found guilty of the charge framed against him and he is acquitted of the charge under section 27 Arms Act framed against him. Accused be set at his liberty if he is not required in any other case. After compliance file be sent to record room.
ANNOUNCED IN THE OPEN (RAM LAL MEENA)
COURT ON 03.03.09 METROPOLITAN MAGISTRATE
KARKARDOOMA COURTS, DELHI
10
FIR No. 148/07
U/s 27 Arms Act
PS Farsh Bazar
03.03.09
Present: None for the State.
Accused in JC.
Vide my separate judgment, accused is acquitted of the charge under section 27 Arms Act. Accused be set at his liberty if he is not required in any other case. Bail bond of the accused is cancelled if any. Surety discharged. After compliance file be sent to record room.
(RL Meena) MM/KKD/03.03.09