Delhi District Court
State vs . Anil Kumar @ Kale on 10 April, 2012
IN THE COURT OF SH. RAJINDER KUMAR, MM07,
WEST DISTRICT, TIS HAZARI COURT,DELHI
STATE Vs. ANIL KUMAR @ KALE
FIR No. 169/2002
PS: PASCHIM VIHAR
U/S: 411 IPC & 25 OF ARMS ACT, 1959
Sr. no. of the case : 1278/3/2
Date of commission of offence : 19.04.2002
Date of institution of the case : 20.06.2002
Name of the complainant : SI Rajesh Kumar
Name of accused and address : Anil Kumar @ Kale
S/o Sh. Om Prakash,
R/o RZ106 Sukhi Ram
Park, Matiala, Uttam
Nagar, Delhi.
Offence complained of or proved : U/s 25 of Arms Act &
411 IPC
Plea of the accused : Pleaded not guilty
Final Order : Acquitted
Date of judgment : 10.04.2012
J U D G M E N T
1. The story of the prosecution in brief is that on 19.04.2002 at about 03:25 PM in front of Daya Nursing Home, Paschim Vihar, Delhi, accused Anil Kumar @ Kale was found in possession of one Maruti800 Car without number plate and one two wheeler LML NV Scooter knowing and having reason to believe the same to be stolen FIR No. 169/2002, PS Paschim Vihar Page 1/11 property and also in possession of one loaded country made revolver with one live cartridge and one buttondar knife having total length of 30 CM without any permit or licence in contravention of notification issued by Delhi Administration.
2. The prima facie case was found to be made out against the accused. Accordingly, charges U/s 411 IPC r/w Section 25 of the Arms Act. The same shall be dealt with separately as under: Section 411 IPC regarding recovery of a Maruti Car:
3. As per story of prosecution on 19.04.2012 at about 03:25 PM in front of Daya Nursing Home, accused was found in possession of a Maruti800 Car without number plate having dishonestly received/retained to be a stolen property.
It is contended by the accused that in case FIR No.56/2002 PS Moti Nagar for the charges punishable U/s 411 IPC, he had already been acquitted vide order dated 12.12.2002 by the Ld. M.M. This contention of the accused had already been declined by the Court vide order dated 16.07.2004 and also vide subsequent order dated 11.01.2005.
4. The prosecution got examined five witnesses in support of its case, which are as follows:
(1) PW1 HC Naresh Prasad, the Duty Officer.
(2) PW2 HC Bachu Singh, who took the rukka to the PS for
FIR No. 169/2002, PS Paschim Vihar Page 2/11
registration of the case.
(3) PW3 SI Raj Kumar, 1st IO of the case.
(4) PW4 HC Ravinder Pal, the witness to the memos.
(5) PW5 SI Rajesh Kumar, 2nd IO of the case.
5. It is pertinent to mention her that the evidence led by SI Raj Kumar (PW3) is incomplete one. The prosecution also has failed to get the evidence of this witness completed despite having several opportunities. Hence, the evidence of this witness cannot be read in evidence.
6. While under crossexamination of HC Bachu Singh (PW2), it was deposed by the witness that they remained at the spot for about 1½ hour outside Daya Hospital. It was further stated that the IO did not ask the Santri of the Hospital to join the investigation. It was further deposed that no public persons gathered at the spot.
7. Both HC Ravinder Pal (PW4) and SI Rajesh Kumar (PW5) admitted the spot to be a busy public place. It was also admitted by both the PWs that no written notice was served upon the persons refusing to join the investigation which confirms the availability/ presence of the public persons at the spot.
Section 25 of Arms Act regarding possession of a revolver.
8. As per story of prosecution on 19.04.2012 at about 03:25 PM in front of Daya Nursing Home, accused was found in possession of a FIR No. 169/2002, PS Paschim Vihar Page 3/11 loaded country made revolver and one additional live cartridge without any permit or licence in contravention of notification issued by Delhi Administration.
9. It is contended by the accused that the investigation is bad in the absence of the Sanction required. As per PWs, on formal search of accused, one loaded desi katta was recovered from his right dub with one live cartridge. It was also deposed by (PW2) that the same after use was handed over to him but there is no memo/case diary placed on record to this effect.
While under crossexamination of HC Bachu Singh (PW2), it was deposed by the witness that they remained at the spot for about 1½ hour outside Daya Hospital. It was further stated that the IO did not ask the Santri of the Hospital to join the investigation. It was further deposed by the witness that no public persons gathered at the spot.
Both HC Ravinder Pal (PW4) and SI Rajesh Kumar (PW5) admitted the spot to be a busy public place. It was also admitted by both the PWs that no written notice was served upon the persons refusing to join the investigation which confirms the availability/ presence of the public persons at the spot.
Section 25 of Arms Act regarding possession of a knife.
10. As per story of prosecution on 19.04.2012, accused was found FIR No. 169/2002, PS Paschim Vihar Page 4/11 in possession of one buttondar knife measuring the total length of 30 CM without any permit or licence in contravention of notification issued by Delhi Administration.
It has been held in case of Sadhu Singh V/s State of Punjab 1997(3) Crime 55 the Hon'ble Punjab & Haryana High Court: "In a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubts. It is for the prosecution to travel the entire distance from may have to must have. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused."
As per chapter 22 rule 49 of the Punjab Police Rules, which is reproduced herein for ready reference: Chapter 22 Rule 49 of Punjab Police Rules, 1934, provides 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 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.
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In the present case, the above said provision appears to have not been complied with by prosecution. The relevant entries regarding the arrival and departure of the police official has not been proved on record. At this juncture, it would be relevant to refer to a case law reported as Rattan Lal V/s 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 reservations. 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 entries creates a reasonable doubt in the prosecution version and attributes oblique motive on the part of the prosecution."
11. As per HC Bachu Singh (PW2), the accused made his disclosure statement and got effected recovery of scooter and buttondar knife from his house. IO prepared a Kalandra and sealed the knife with the seal of RKD.
While under crossexamination, it was stated by the witness that the IO did no ask any resident of the locality to join the search proceedings of the house of the accused. It was admitted by the witness that the place of Nakabandi has not been shown in the site FIR No. 169/2002, PS Paschim Vihar Page 6/11 plan. None joining of public persons to the recovery of knife, makes the recovery doubtful.
Section 411 IPC regarding recovery of an LML Scooter
12. As per story of prosecution on 19.04.2012, accused was found in possession of one LML NV Scooter without number plate having dishonestly received/retained to be a stolen property.
It is also pertinent to mention here that the accused has already been charged for the similar offence in case FIR No.116/02 PS Kirti Nagar for the offence U/s 411 IPC. Vide order dated 16.07.2004, the case file FIR No.116/02 PS Kirti Nagar was ordered to be clubbed with the main case file i.e. FIR No.169/02 PS Paschim Vihar. It was also further clarified that the evidence already recorded to be read in this case with respect to charges for the offence U/s 411 IPC.
The prosecution got examined 3 witnesses in case FIR No. 116/02 PS Kirti Nagar as Under: (1) PW1 HC Kalpana, the Duty Officer.
(2) PW2 HC Phool Kanwar, the MHC(M).
(3) PW3 Ct. Bijender, who took the rukka to the PS for registration of the case.
Ct. Bijender (PW3) has deposed that after getting the FIR registered, he came back at the spot and thereafter, they searched the accused but all in vain. It was further deposed by the witness that the FIR No. 169/2002, PS Paschim Vihar Page 7/11 accused was sent to lockup. I am unable to understand as to how an accused, who is not traceable can be sent to lockup.
It is contended by the accused that he is innocent and has been falsely implicated in all the cases. It is also contended that nothing was recovered from his possession.
13. Statement of accused U/s 281 Cr.P.C. was recorded, in which all the incriminating evidence was put to the accused. The accused controverted and denied the allegations levelled against him. Accused stated that he is innocent and has been falsely implicated in the present case. It was contended by the accused that he was picked up from his house and not from the spot (as alleged by the prosecution). It was further contended that the recovery was implanted one.
14. It is a cardinal principle of criminal jurisprudence that prosecution is supposed to prove its case beyond reasonable doubts by leading reliable, cogent and convincing evidence. Further, it is a settled proposition of criminal law that in order to successfully bring home the guilty of the accused, prosecution is supposed to stand on its own legs and it cannot derive any benefits whatsoever from the weakness, if any, in the defence of the accused. It is also a settled proposition that burden of proof of the version of the prosecution case in a criminal trial throughout the course of the trial rests entirely and entirely on the prosecution and never shifts to the accused. FIR No. 169/2002, PS Paschim Vihar Page 8/11 Accused is entitled to the benefits of every reasonable doubt in the prosecution story and any such reason doubt in the prosecution case entitles the accused to acquittal.
15. So far as the charges punishable U/s 411 IPC regarding the recovery of a Maruti800 Car is concerned, no public witness joined the recovery/investigation for the reasons best known to the investigating officer. Admittedly, the public persons were present at the spot and there is nothing on record for the non joining of such public persons to the recovery/investigation for the reasons best known to the IO. In a case law reported as Anoop Joshi V/s State, 1992 (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 FIR No. 169/2002, PS Paschim Vihar Page 9/11 the IPC''.
Roop Chand V/s The State of Haryana,1999 (1) C.L.R 69, the Hon'ble Punjab & Haryana High Court held as under: It is well settled principle of the law that the Investigating Agency should join independent witnesses at the time of recovery of contraband articles, if they are available and their failure to do so in such a situation casts a shadow of doubt on the prosecution case. In the present case also admittedly the independent witnesses were available at the time of recovery but they refused to associate themselves in the investigation. This explanation does not inspire confidence because the police officials who are the only witnesses examined in the case have not given the names and addresses of the persons contacted to join. It is a very common excuse that the witnesses from the public refused to join the investigation. A police officer conducting investigation of a crime is entitled to ask anybody to join the investigation and on refusal by a person from the public the Investigating Officer can take action against such a person under the law. Had it been a fact that he witnesses from the public had refused to to join the investigation, the Investigating Officer must have proceeded against them under the relevant provisions of law. The failure to do so by the police officer is suggestive of the fact that the explanation for nonjoining the witnesses from the public is an after thought and is not worthy of credence. All these facts taken together make the prosecution case highly doubtful''.
In view of above, without sanction, the investigation is FIR No. 169/2002, PS Paschim Vihar Page 10/11 improper and bad in the eyes of law.
16. So far as the charges for the offence punishable U/s 25 of Arms Act regarding possession of a knife is concerned, there is no public witness to the recovery/investigation for the reasons best known to the IO. As per HC Bachu Singh (PW2), the seal after use was handed over to him but there is nothing on record like memo/tehrir regarding the giving and taking of the seal to him.
17. Hence, in the absence of the public witness and also the contradictions in the evidence led by the witness, the story of the prosecution becomes doubtful regarding the recovery of a Maruti800 Car, LML NV Scooter, Knife and also a revolver from the possession of the accused and the benefit of doubts certainly goes in favour of the accused. In view of above, the prosecution has failed to prove its case beyond all reasonable doubts against the accused.
Let a copy of the judgment be placed in case FIR No.116/02 PS Kirti Nagar as well.
ANNOUNCED IN THE OPEN (RAJINDER KUMAR)
COURT ON 10.04.2012 MM07(WEST)/DELHI
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