Delhi District Court
State vs . Rakesh @ Kabadi on 30 August, 2014
Page No. 1 of 10
IN THE COURT OF SH. ANKIT SINGLA :
M.M.03(SOUTH DISTRICT), SAKET NEW DELHI
STATE Vs. Rakesh @ Kabadi
FIR NO. : 505/2013
P.S. : Neb Sarai
U.S. : U/s. 25 Arms Act and 411 IPC
J U D G M E N T
a. Sl. No. of the case and : 65/3 dt. 20.12.2013 date of its institution b. Name of the complainant : HC Kumher No. 313/SD, PS Neb Sarai c. Date of commission of offence : 22.10.2013 d. Name of the accused : Rakesh @ Kabadi S/o Mangal Singh R/o Vill & PS Porsa, Distt. Murena, MP.
e. Offence complained of : U/s 25 Arms Act and 411 IPC f. Plea of accused : Pleaded not guilty g. Date reserved for orders : 30.08.2014 h. Final order : Acquittal i Date of such order : 30.08.2014
BRIEF STATEMENT OF FACTS FOR THE DECISION: FIR No. 505/13 State Vs. Rakesh @ Kabadi Page No. 2 of 10
1. Vide this order, I shall dispose off present FIR No. 505/2013 which was registered on the complaint of HC Kumher Singh on 22.10.2013.
2. In brief the story of prosecution is that on 22.10.2013 at abut 10.15PM near Bandh Road, MCD Booth, Neb Sarai, accused was found in possession of an illegal deshi katta with one live cartridge and thereby accused committed an offence punishable u/s. 25 Arms Act and 411 IPC.
3. After completion of the investigation, the charge sheet was filed in the Court. Copies were supplied to accused and after completion of necessary formalities, charge u/s. 25/54/59 Arms Act was framed against accused on 03.07.2014 to which accused pleaded not guilty and claimed trial.
4. The prosecution to prove its case examined four (04) PWs.
Statement of accused was also recorded U/sec. 313 Cr.PC whereby accused denied the story of the prosecution. The relevant and material FIR No. 505/13 State Vs. Rakesh @ Kabadi Page No. 3 of 10 extract of evidence produced by the prosecution is as mentioned in the following paragraphs.
5. PW1 HC Jeet Singh deposed that on 23.10.2013, he was performing as duty officer from 12 night to 8AM ; on that day at 12.25AM, Ct. Rajendra produced a rukka sent by ASI Malkhan Singh ; on the basis of the same, he registered the FIR Ex PW1/A and also made his endorsement on the rukka Ex PW1/B.
6. PW2 HC Kumher Singh deposed that on 22.10.2013, he was posted at PS Neb Sarai. On that day he alongwith Ct. Rajender, Ct. Krishan were on vehicle checking duty at Bandh Road, near MCD Booth. During checking at about 10:15pm they noticed one person was coming from the side of Sangam Vihar on motorcycle bearing no. DL12SA0510 and the said vehicle was stopped. Accused Rakesh @ Kabadi was driving the said motorcycle, who was asked to produce the document of vehicle however, he failed to produced the same. Thereafter, they took the cursory search and one loaded Desi Katta was recovered from FIR No. 505/13 State Vs. Rakesh @ Kabadi Page No. 4 of 10 his possession. Thereafter, they informed to the duty officer upon which ASI Makkhan Singh came to the spot and he handed over the custody of accused and loaded Desi katta to ASI Makkhan Singh. IO requested 45 public person to joined the investigation but none agreed. IO checked the Desi Katta and found the same was loaded with one live cartridge. IO prepared sketch of Desi katta and Live cartidge vide memo which is Ex. PW1/A. IO prepared pullanda of above said case properties and same was sealed with the seal of MS. FSL form was filed by IO and seal after used was handed over to him. IO prepared seizure memo of above said pullanda which is Ex. PW 1/B. They also came to know that the above motorcycle was stolen from the area of PS Malviya Nagar and FIR has been registered and same was seized u/s 102 CrPC which is Ex. PW 1/C. IO recorded his statement Ex. PW 1/D and prepared Rukka. FIR was registered through Ct. Rajender. IO prepared site plan at his instance which is Ex. PW 1/E. After interrogation accused was arrested and his personal search was conducted vide memo Ex. PW 1/F & PW FIR No. 505/13 State Vs. Rakesh @ Kabadi Page No. 5 of 10 1/G. Disclosure statement of accused was recorded. Case property was deposited in Malkhana. Accused Rakesh had got recovered other stolen properties of different police station. IO recorded his statement. PW1 correctly identified the case property as Ex P1 (colly).
7. PW3 Ct. Rajener also deposed in line of PW2.
8. PW4 ASI Makhan Singh is the IO of the present case who deposed that on 22.10.2013, I was posted at PS Neb Sarai. On that day on receipt of DD No 73B Mark 4/1, he reached at the spot at Bandh Road, near MCD Booth where custody of accused and loaded desi katta to him. He requested 45 public person to joined the investigation but none agreed. He checked the Desi Katta and found the same was loaded with one live cartridge. He prepared sketch of desi katta and live cartridge vide memo which is already Ex. PW1/A. He prepared pullanda of above said case properties and same was sealed with the seal of MS. FSL form FIR No. 505/13 State Vs. Rakesh @ Kabadi Page No. 6 of 10 was filed by him and seal after used was handed over to HC Khumer. He prepared seizure memo of above said pullanda which is Ex. PW 1/B. They also came to know that the above motorcycle was stolen from the area of PS Malviya Nagar and FIR has been registered and same was seized u/s 102 CrPC which is Ex. PW 1/C. He recorded statement of HC Khumer and prepared Rukka which is Ex PW 4/A. FIR was registered through Ct.Rajender. He prepared the site plan at the instance of HC Khumer which is already Ex. PW 1/E. After registration of the case Ct. Rajender came back to spot and handed over copy of FIR and Rukka to him. After interrogation accused was arrested and his personal search was conducted vide memo Ex. PW 1/F & PW 1/G. Disclosure statement of accused was recorded. Case property was deposited in Malkhana. Accused Rakesh had got recovered other stolen properties of different police station. He recorded statement of witnesses. After medical examination accused put behind the bar. During the course of investigation said case property were deposited in FSL, Rohini through Ct.
FIR No. 505/13 State Vs. Rakesh @ Kabadi Page No. 7 of 10 Dinesh and collected the FSL result and obtained sanction 39 Arms Act. Case property Ex. P1was correctly identified by the witness.
9. Vide his separate statement recorded u/s. 294 CrPC, accused admitted the genuineness of FSL result and sanction u/s. 39 Arms Act as Ex AD1 and AD2.
10. No other witnesses were examined by the prosecution and PE was closed. Statement u/s 313 Cr.PC of accused was recorded whereby he submitted that he has been falsely implicated. The accused did not lead defence evidence. Arguments as advanced by Ld. APP as well as Defence counsels were heard.
11. In the present case, it is submitted by Ld. APP for the state that the recovery witness has proved the case of the prosecution beyond reasonable doubt. Whereas Ld. Counsel for the accused has argued that as no public witness has been joined the investigation, the story of the prosecution can not be believed.
FIR No. 505/13 State Vs. Rakesh @ Kabadi Page No. 8 of 10
12. I have carefully perused the material on record and gone through the submissions of Ld. APP for the State and Ld. counsel for the accused.
13. In the present case there is no public witness to the recovery, which is essential in such cases where recovery in itself forms the sole ground for conviction of the accused. The incident occurred at a busy road in the day hours and at a time at which the spot would not usually the isolated rather it is bubbling with activities at that time. My this view is further fortified by the Judgement titled State of Rajasthan Vs. Teja Singh 2001 (II) AD (SC) 125, Hon'ble Supreme Court held:
The failure of the prosecution to examine independent witnesses though available is fatal for their case.
In the case titled State of Punjab Vs. Gurdyal Singh 1992 (1) RCR (DB) 646, Roop Chand Vs. State of Haryana 1989 (2) RCR 504 and State of Punjab Vs. Sukhdev Singh 1992 (3) RCR 311, it was held by the Hon'ble Court that: Where the IO has failed to even note down the names and addresses of the persons, who have refused to join a public witnesses, couple with the fact that no action was taken against FIR No. 505/13 State Vs. Rakesh @ Kabadi Page No. 9 of 10 them, the case is rendered doubtful.
The court would also like to refer to the judgment titled Ritesh Chakarvarti Vs. State of Madhya Pradesh, (SC) 2006 (4) R.C.R (Criminal) 480 : "If it was a busy place, the officers would expectedly ask those to be witnesses to the seizure who were present at the time in the place of occurrence. But, not only no such attempt was made, even nobody else who had witnessed the occurrence was made a witness. Even their names and addresses had not been taken.
Further Illustration (g) appended to Section 114 of the Indian Evidence Act reads thus:
"The court may presume
(a)***
(b)***
(c)***
(d)***
(e)***
(f)***
(g) That evidence which could be and is not produced would, if produced, be unfavourable to the person who holds its."
Thus on the basis of this provision of law, an adverse inference, therefore, could be drawn for nonexamination of material witnesses.
17. Further no DD entry with regard to departure has been produced before the court. Prosecution should have brought the relevant records showing their arrival and departure and should FIR No. 505/13 State Vs. Rakesh @ Kabadi Page No. 10 of 10 have proved by documentary evidence that he was on patrolling duty by producing DD entry for the same.
18. As per chapter 22 rule 49 of the Punjab Police Rules, which is reproduced as under;
"Chapter 22 rule 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.
19. In view of this rule, while deposing none of the prosecution witnesses has told that by what entry in the register no. II, they were on vehicle checking duty in the particular area. In the present case also this provision has not been complied with by the prosecution witnesses. The relevant entries regarding the arrival and departure of the police officials has not been proved on record. It has been held in Rattan Lal Vs. State 1987 (2) Crimes 29 the Hon'ble Delhi High Court held that;
"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 FIR No. 505/13 State Vs. Rakesh @ Kabadi Page No. 11 of 10 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."
20. Thus, keeping in view the fact that there are no public witnesses to the recovery or explanation as to why public persons were not joined in the raiding party, the prosecution has failed to prove the recovery of the illegal weapon from the possession of the accused beyond reasonable doubt.
21Thus, the prosecution has not been able to prove the guilt of the accused beyond reasonable doubt.
22. In absence of such proof, accused is hereby acquitted U/s 25 Arms Act.
23. File be consigned to Record Room.
Announced and dictated in (ANKIT SINGLA)
the open Court on 30.05.2014 MM(03)/South District
Saket / New Delhi
FIR No. 505/13 State Vs. Rakesh @ Kabadi