Delhi District Court
State vs . Bhola on 12 July, 2011
IN THE COURT OF SH. SAMAR VISHAL, METROPOLITAN MAGISTRATE05,
SOUTHEAST DISTRICT, NEW DELHI
STATE VS. Bhola
FIR NO: 320/06
P. S. Ambedkar Nagar
U/s 25 Arms Act
JUDGMENT
Sl. No. of the case and : 400/2/(02.06.2006)
Date of its institution : 01.06.2006
Name of the complainant : Ct. Keshav Dutt
Date of Commission of offence : 04.05.2006
Name of the accused : Bhola, S/o Tej Singh
Offence complained of : Section 25 Arms Act
Plea of accused : Not guilty
Case reserved for orders : 12.07.2011
Final Order : AQUITTED
Date of Judgment : 12.07.2011.
State Vs. Bhola Page 1/10 FIR no. 320/06
BRIEF STATEMENT OF FACTS FOR THE DECISION:
1. This is the trial of the accused Bhola upon the police report filed by P.S. Ambedkar Nagar u/s 25 Arms Act.
2. The prosecution story is that on 04.05.2006 at about 11.30 pm at Devli More, Khanpur near PNB New Delhi, the accused was found in possession of buttondar knife having total length of 24.1 cm and length of blade and handle was 10.9 cm and 13.2 cm respectively without any valid license in contravention of Notification of Delhi Administration and he thus thereby committed an offence punishable under Section 25 Arms Act.
3. After completing the formalities, the investigation was carried out in pursuance of which, the chargesheet u/s 25 Arms Act. The charge was framed against the accused u/ s 25 Arms Act to which he pleaded not guilty and claimed trial.
4. Thereafter, in order to prove its case, the prosecution has examined three witnesses.
5. PW 1 is Ct. Keshav who deposed that on 4.5.2006, he was posted as constable at PS Ambedkar Nagar. On that day he was on patrolling duty and was present at Devli Mor. At that time one person came from the side of Devli and on State Vs. Bhola Page 2/10 FIR no. 320/06 seeing him in police uniform he turned back and tried to run away. On suspicion he chased and apprehended the accused. Accused was checked and on his checking one buttondar knife was recovered from the right dub of his pant. On interrogation accused revealed his name as Bhola, S/o Tej Singh. The recovery of buttondar knife was transmitted by him to PP Madangir. After some time, HC Vijender Singh reached the spot. After his arrival, he handed over the accused Bhola and a buttondar knife recovered from him to HC Vijender Singh. HC Vijender Singh recorded his statement. Thereafter, HC Vijender Singh requested to 45 passersby to join the investigation but due to night all of them refused the same and left the spot showing their reasonable inability. Thereafter, recovered knife from the possession of accused Bhola was measured. Total length of knife was 24.1 cm, length of blade was 13.2 cm, and length of handle 10.9. Blade was made up of steel type metal and handle was made up of alluminium like metal. Button was made up of brass. Sketch of the knife was prepared, same is Ex.PW1/A. Thereafter knife was seized with the seal of VS vide memo Ex.PW1/B. Therefore, HC Vijender Singh prepared rukka, and sent it to PS for the registration of the case through him. After getting registration he returned back at the spot and handed over the copy of FIR and rukka to HC Vijender Singh. During the course of State Vs. Bhola Page 3/10 FIR no. 320/06 investigation, HC Vijender Singh prepared site plan and arrested the accused Bhola present in the Court today vide memo Ex.PW1/C and his personal search was carried out vide memo Ex.PW1/D. Case property is Ex. P1. (Accused has been correctly identified by the witness in the Court).
6. PW 2 is HC Vijender Singh who deposed that on 4.5.2006, he was posted as HC at PS Ambedkar Nagar. On that day on receiving of DD no.44, same is Mark A he reached at the spot Devli Mor, Khanpur, near PNB where Ct. Keshav met to him and handed over accused Bhola alongwith recovered buttondar knife from his possession. He recorded statement of Ct. Keshav, same is Ex.PW2/A. Thereafter, he requested to 45 passersby to join the investigation but due to night all of them refused the same and left the spot showing their reasonable inability. Thereafter, recovered knife from the possession of accused Bhola was measured. Total length of knife was 24.1 cm, length of blade was 10.9 cm, and length of handle 13.2. Blade was made up of steel type metal and handle was made up of alluminium like metal. Button was made up of brass. Sketch of the knife was prepared, same is Ex.PW1/A. Thereafter knife was seized with the seal of VS vide memo Ex.PW1/B. Seal after use was handed over to Ct. Keshav. Therefore, he prepared rukka, same is Ex.PW2/B and sent it to PS for the registration of the State Vs. Bhola Page 4/10 FIR no. 320/06 case through Ct. Keshav. After getting registration Ct. Kehsav returned back at the spot and handed over the copy of FIR and rukka to him. During the course of investigation, he prepared site plan on the instance of Ct. Keshav, same is Ex.PW2/C and arrested the accused Bhola vide memo already Ex.PW1/C and and his personal search was carried out vide memo Ex.PW1/D. During the course of investigation he recorded the statement of witnesses, collected copy of DAD notification, same is Mark B and after completion of investigation prepared charge sheet and filed it through SHO. Case property is Ex. P1. (Accused has been correctly identified by the witness in the Court).
7. PW 3 is HC Bansi Ram who is the duty officer who proved the FIR as Ex. 3/A upon a rukka Ex.PW3/B.
8. After recording the evidence of this witness, the prosecution evidence was closed. The accused was examined under the provision of section 313 Cr.P.C. and all the incriminating evidence were put to him to which he answered that it is incorrect. Although, he stated that he does not want to lead defence evidence.
9. I have heard the Ld. APP for State and counsel for accused and perused the record.
10. It is argued by the Ld. APP for State that the case has been proved against State Vs. Bhola Page 5/10 FIR no. 320/06 the accused and he should be convicted.
11. As far as the case of the prosecution is concerned, the accused was apprehended with the knife which he could not hold without valid license.
12. After going through the complete evidence and records of this case I am of the view that the accused deserves acquittal in this case on the following grounds.
13. Firstly, if the police personnel who has apprehended the accused with the knife was on patrolling duty, prosecution should have brought the relevant records showing their arrival and departure and should have proved by documentary evidence that he was on patrolling duty by producing DD entry for the same.
14. 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 State Vs. Bhola Page 6/10 FIR no. 320/06 Lines and Police Posts where Register No. II is maintained.
15. 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 patrolling 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 Hgih 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 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."
Apart from this, their presence at the spot is not proved. If they had departed from PS for patrolling duty the entry to this effect must exist in the Roznamancha but that has not been proved, raising an adverse presumption against the prosecution U/s 114 (g) of the Evidence Act that if the said Roznamancha had been produced it would have not shown their departure as all.
16. The next defence is that the public witness are not joined in the investigation. From the overall testimony of the witness, it appears that no effort, what to talk of a sincere/vague effort has been made to join the public persons in State Vs. Bhola Page 7/10 FIR no. 320/06 the investigation. All the witnesses examined by the prosecution are the police witnesses. Not even a single public witness has been examined by the prosecution not joined in the investigation and no reason has been put forward by the prosecution witnesses that for what reason they are unable to gather support from public or independent witnesses to establish the guilt of the accused. Although, it can be said that it was a chance recovery but the incident had occurred at 11.30 pm in the evening and at that time from a busy locality and therefore, it cannot be said that no public person would have been available at the spot and even if the prosecution has not the public witnesses it was incumbent upon the prosecution to at least put forward the reasons for not doing so. The failure on the pat of the police personnels goes to suggest that they were not interested in joining the public persons in the police proceedings. Failure on the part of the police officials to make sincere effort to join public witnesses for the proceedings when they may be available creates reasonable doubt in the prosecution story in view of the following case law. In the case of Anoop Joshi Vs. State 1992 (2) C.C. Cases 314 (HC), Hon'ble High Court of Delhi has observed as under;
" 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 shop keepers 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 State Vs. Bhola Page 8/10 FIR no. 320/06 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."
17. During the investigation of the case no public witnesses were joined nor there are seems to be any sincere efforts made in this regard, when it was possible to do so, which makes the case of the prosecution weak and suspicion. Since all the witnesses are police personnels and the necessary safeguards in the investigation has not been followed by the investigating officer, I am of the view that chances of false implication cannot be ruled out at the instance of the police. Knife is such a small thing which can be hidden in a pocket and easily available in market thus can be easily planted. Although no motive has been put forward on behalf of the accused but considering the fact that he has not conducted his defence properly by cross examining the witnesses, his resources to contradict the claim of the prosecution could have been meager.
18. It has been observed by Hon'ble High Court of Delhi in Karambir Vs. State 1997 JCC 520 that "In this regard it was also pointed out that Moharrar Malkhana with whom the case property was deposited, was not examined by the prosecution. Besides it was further pointed out by the learned counsel for the petitioner that the Investigating Officer, RW 3 had not stated that he had deposited the specimen impression of the seal with the Moharrar Malkhana alongwith the case property".
19. Not only this, the seal after its use was not handed over to some independent person till the deposition of the knife in the Malkhana and tampering State Vs. Bhola Page 9/10 FIR no. 320/06 of the seal or its reuse also cannot be ruled out. The prosecution although, has tried to prove its case but there is still a reasonable doubt regarding the false implication of the accused in the hands of the police. The benefit always goes to the accused .
It is true evidence is to be weighed and not counted but in this case whatever evidence has been produced by the prosecution is not sufficient to fortify the edifice of the prosecution case and the prosecution has failed to prove all the links. In case where the prosecution has failed to prove all the links, the benefit of doubt has been given to the accused. In my this view wherein it was held that prosecution failed to prove all the links. In view of above, I hold that prosecution has failed to prove its case beyond reasonable doubt.
20. On the basis of aforesaid discussions, it is held that the prosecution is failed to prove its case beyond reasonable doubt, hence the accused is acquitted of the offence u/s 25 of Arms Act. Personal bond filed by him and surety bond filed by the surety shall remain operative for a further period of six months.
Announced in the open court (Samar Vishal)
on 12th July, 2011 Metropolitan Magistrate05,
South East, New Delhi
State Vs. Bhola Page 10/10 FIR no. 320/06