Delhi District Court
In Re: State vs Rajender Kumar on 20 July, 2012
IN THE COURT GAURAV RAO: METROPOLITAN MAGISTRATE: SOUTH
DISTRICT: SAKET COURTS: NEW DELHI
In Re: STATE VERSUS RAJENDER KUMAR
F.I.R. No: 113/01
U/s 25 Arms Act
P.S. Defence Colony
Date of Institution of Case : 26.06.2001
Date of Judgment Reserved for : 20.07.2012
Date of Judgment : 20.07.2012
JUDGMENT:
(a) The serial no. of the case : 97/2/01
(b) The date of commission of offence : 20.02.2001
(c) The name of complainant : SI Bhagwan Sahai
(d) The name, parentage of accused : Rajender Kumar s/o Rishi Pal,
R/o Jhuggi no. 292, J.J. Camp,
Gautam Puri, Ali Goan, New
Delhi.
Present Address :As above
(e) The offence complained of : 25 Arms Act
(f) The plea of accused : Pleaded not guilty
(g) The final order : Acquitted
(h) The date of such order : 20.07.2012
FIR No.113/01 State Vs. Rajender Kumar 1/8
Brief statement of the reasons for the decision:
1. In brief the case of the prosecution is that on 20.02.2001 at about 08.10 p.m. at Central Park, Gautam Nagar, New Delhi within the jurisdiction of PS Defence Colony, accused Rajender Kumar s/o Rishi Pal was found in possession of one button operated knife without any permit or license for the same and in contravention of the notification issued by the Delhi Administration and thus thereby the accused committed offence punishable u/s 25 of Arms Act 1959.
2. Charge sheet filed in the court and in compliance of Section 207 accused was supplied the documents. Thereafter vide order dated 31.01.2004 charge u/s 25 of Arms Act 1959 was framed against accused to which he pleaded not guilty and claimed trial.
3. In order to prove the charges against the accused, prosecution examined three witnesses, thereafter the PE in the matter was closed and the statement of accused u/s 313 Cr.P.C was recorded wherein he claimed himself to be innocent and having been falsely implicated in the case. A brief scrutiny of the evidence recorded in the matter is as under.
4. PW1 ASI Champa Lal deposed that on 20.02.2001 while he was posted as FIR No.113/01 State Vs. Rajender Kumar 2/8 DO at PS Defence Colony he recorded FIR No. 113/01 vide Ex. PW1/A.
5. PW2 Const. Dhan Singh deposed that on 20.02.2001 he was posted at Police Post Gulmohar Park P.S. Defence Colony and on that day he was present at the police post and went on patrolling duty with ASI Bhagwan Sahai. He deposed that during patrolling at about 08.00 p.m. they both reached near Central Park, Gautam Nagar and there a secret information was received by ASI Bhagwan Sahai that one person was sitting in the park near the gate having a knife and on this some public persons were requested to join the investigation but none of them agreed to join. He deposed that thereafter without wasting time they reached inside the park near gate there the accused was found sitting and on seeing the police he tried to escape from there. He deposed that on search of the accused a buttondar knife was recovered from his right side pocket of pant. He deposed that the knife was measured and it was found to be 23 cms in total length with a blade of 10.5 cms, the handle of the knife was of brass. He deposed that the knife was sealed in the pullanda with the seal of BS and was seized. He deposed that the sketch of the knife is Ex. PW2/A and the seizure memo is Ex. PW2/B. He deposed that he was sent to police station with rukka for registration of FIR. After registration of FIR HC Ram Kumar came at the spot for further investigation and he arrested the accused. The personal search of the accused is Ex. PW2/C. This witness correctly identified the case property.
6. During his crossexamination he stated that they were only twp police officials on patrolling and at the time of recovery. He stated that IO HC Ram FIR No.113/01 State Vs. Rajender Kumar 3/8 Kumar reached at spot at about 09.30 p.m. He stated that his statement was recorded at the spot. He stated that there was no public persons present at the spot at the time of arrest of the accused. He denied the suggestion that the accused was apprehended when he was going to his duty and has been falsely implicated in this case. He denied the suggestion that knife Ex. P1 was not recovered from the possession of the accused or that it was planted upon the accused or that he was deposing falsely.
7. PW3 SI Bhagwan Sahai deposed on the same lines as deposed by PW2. In addition to that he stated that HC Ram Kumar prepared the site plan at his instance and same is Ex. PW3/B.
8. This is so far is the prosecution evidence.
9. I have heard the arguments advanced at bar by the accused as also learned APP and have carefully gone through the evidence recorded in the matter and the documents placed on record by the prosecution in this case.
10. After going through the rival contentions as well as the evidence led by the prosecution and the material on record, I am of the considered opinion that the prosecution has failed to bring home the guilt against the accused.
11. Despite availability the police officials failed to join the public witness FIR No.113/01 State Vs. Rajender Kumar 4/8 and the explanation given that they were asked but they refused to join the investigation/arrest and seizure of weapon from the accused does not inspire much confidence. I have perused the site plan Ex. PW3/B, the spot/place of arrest/recovery is shown at Central Park, Gautam Nagar, New Delhi which is a public park with a school and residential colony situated just adjacent to the park. Admittedly, as admitted by Pws during their crossexamination numerous public persons were also present at the time of alleged arrest of the accused. It is beyond my contemplation that the police official could not find any public person at the spot to join in the investigation despite the fact that it was a very busy place and admittedly public persons were available. If indeed public persons refused to join the proceedings action ought to have been taken against them as per the Code of Criminal Procedure. But no efforts were made to do the same as admitted by the IO and other recovery witnesses. It is yet another typical story of requesting the public persons to join and their refusal.
12. In the case titled as Jagdish Raj Jaggi v. State, (Delhi) 1987(2) R.C.R.(Criminal) 1 which was also the case under Arms Act, while acquitting the accused due to absence/ nonjoining of public witness the Court observed as under:
"The question is not whether the testimony of police officers should or should not be approached with a suspicion. The question is of being conscious of an inherent danger that is involved in relying upon the evidence of police officers only unless it is supported by some FIR No.113/01 State Vs. Rajender Kumar 5/8 corroborative evidence or unless circumstances of the case sufficiently lend assurance to the court that all that is being stated by the police officers is correct. Normally speaking when a raid of this kind is arranged one should expect the police officer to involve independent witnesses. In this case the court is told that an effort was made but nobody came forward. It has been my unfortunate experience that this explanation is now being tendered in almost all cases. Normal rule is the involvement of public witnesses and if that is not followed it must be sufficiently explained as to why it was not so".
13. Similar observation was made by the Hon'ble Apex court in Sans Pal Singh v. State of Delhi, (SC) 1999 A.I.R. (SC) 49.
14. I have also gone through the observations made in ''1990 CCC 3'', titled as ''Roop Chand V/s State of Haryana'' wherein it was held as under:
''When some witness from the public was available then the explanation furnished by the prosecution that they refused to join the investigation is wholly unsatisfactory, particularly when the IO did not note down the names and addresses and did not take any action against them''.
15. In the landmark judgment of Nanak Chand v. State of Delhi, (Delhi) 1992(1) R.C.R.(Criminal) 412 while acquitting the accused the Hon'ble High Court Of Delhi observed:
FIR No.113/01 State Vs. Rajender Kumar 6/8 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 officials are to be treated as unworthy of reliance but their failure to join witnesses from the public especially then 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.
16. Similar observations were made in case titled as Chitwant Singh v. State of Punjab (SC) 1999 A.I.R (SC) 1606, Nachhattar Singh v. State of Punjab (P&H) (DB) 2003 (1) R.C.R. (Criminal) 68 as well as State of Punjab V. Gurdeep Singh (P&H) (DB) 1993 (3) R.C.R. (Criminal) 121.
17. It has been observed by Hon'ble High Court in ''Pawan Kumar V/s Delhi Administration 1987 C.C cases 585 (HC)'' that:
"It may be that there is an apathy on the part of the general public to associate themselves with the police raids or the recoveries but that apart, at least the IO should have made an earnest effort to join the independent witness. No attempt in this direction appears to have been made and this, by itself, is a circumstance throwing doubt on the arrest or the recovery of knife from the person of accused."
18. The deposition of the prosecution witnesses did not inspire FIR No.113/01 State Vs. Rajender Kumar 7/8 confidence also on account of fact that (1) they failed to prove the departure and the arrival entry at the PS and ( 2) the seal remained with the police officials hence, the case property being tempered cannot be ruled out. Reliance may be placed in this regard upon the law laid down in Ramji Singh Vs. State of Haryana 2007 (3) R.C.R. (Criminal) 452 and Rajesh Jagdamba Avasthi Vs. State of Goa (2005) 9 SCC 773.
19. All these contradiction casts serious doubts on the prosecution story.
20. In view of the above discussion, I am of the considered opinion that the prosecution has not been able to prove the charges against the accused beyond the shadow of doubt. Accused is accordingly entitled for acquittal.
21. I order accordingly.
Announced in the open (Gaurav Rao) Court on 20.07.2012 MM (South)/Delhi. FIR No.113/01 State Vs. Rajender Kumar 8/8 F.I.R. No:113/01 U/s 25 Arms Act P.S. Defence Colony 20.07.2012 Pr: Ld. APP for state. Accused is on bail present today.
PW SI Bhagwan Sahai is present and he has been examined, cross examined and discharged as PW3.
IO has already expired. Record reveals that all material prosecution witnesses have been examined. Accordingly, PE stands closed.
SA of accused u/s 313 Cr.P.C. recorded separately.
It is submitted by counsel Sh. Tej Narain and he is ready with final arguments. Final arguments heard.
Vide my separate judgment announced today in the open court, accused has been acquitted of the charges in the present case.
Bail bond cancelled, surety discharged, endorsement if any be cancelled, original documents be returned as per rules and procedure.
File be consigned to Record Room.
(Gaurav Rao)
MM01 (SD)/N. Delhi
20.07.2012
FIR No.113/01 State Vs. Rajender Kumar 9/8