Delhi District Court
State vs . Shakeel Page No 1 / 6 on 12 April, 2013
IN THE COURT OF SH. PAWAN KUMAR, LD MM12,
SOUTH EAST, SAKET COURTS, NEW DELHI
STATE : Mohd. Shakeel
FIR No. : 238/08
P.S : Lodhi Colony
Date of commission of offence : 04.11.2008
Date of institution of challan : 29.06.2012
Name of complainant : HC Satender Yadav
Name of accused : Mohd. Shakeel
S/o Sh. Manzoor Ahmed
R/o Mohalla Paledaran,
Sikandrabad, Buland
Sahar, UP.
Offence complained of : U/s 25 Arms Act
Plea of the accused : Pleaded not Guilty.
Arguments heard/ order reserved : 30.03.2013
Final order : Acquittal
Date of such order : 12.04.2013
FIR No. 238/08
State Vs. Shakeel Page No 1 / 6
1.The case of the prosecution in brief is that on 04.11.2008 the accused was apprehended by police on the basis of secret information. On search of the accused one country made pistol and three live cartridges were found in his possession. The investigation proceedings were carried out and charge sheet was filed u/s 173 Cr.PC.
2. On the conclusion of the investigation, the charge sheet was filed and copy was supplied to the accused. Charge was framed against the accused u/s 25 Arms Act, 1959 on 18.08.2011, to which he pleaded not guilty and claimed trial.
3. The prosecution examined total five witnesses. PW1 HC Asgar Ali was the member of the raiding party. He deposed that on dated 04.11.08 he alongwith HC Satender, HC Vinod, Ct. Manjit, Ct. Umesh and ASI K.P. Singh were on patrolling duty. They reached at Rajdhani Nursery at Lodhi Colony on receiving the secret information regarding two persons standing there. On reaching the spot two persons were found. One of them stated to be fled away from the spot and the accused was apprehended on the spot. He further deposed that HC Vinod conducted the search of the accused and recovered one countrymade pistol from left side pocket of his pan and two live cartridges from right side pocket of the pant. On checking, one live cartridge was found in the katta. IO HC Satender is stated to have prepared the sketch of the katta and cartridges. IO prepared the pullanda and sealed with the seal of SY. His further deposition pertains to investigation part carried out by IO. He identify the accused present in the court. The case property i.e. katta is Ex PW1/A, two live cartridges FIR No. 238/08 State Vs. Shakeel Page No 2 / 6 are collectively marked Ex P2. One empty cartridges is Ex P3. In his cross examination he stated that IO asked 45 persons to join the investigation, however, no notice was given by IO. He further stated that he does not remember the colour of pant and shirt worn by accused persons at that time. He also shown his ignorance whether the IO offered his search prior to personal search of the accused or not.
4. PW2 HC Suresh Chand, PW3 Ct. Manjit, PW4 Umesh are member of the raiding party and deposed the same facts as stated by PW1. PW2, PW3 and PW4 are not cross examined despite opportunity being given.
5. PW5 HC Satender is the IO of the case and narrated the same facts as deposed by PW1 with minor variation. In his cross examination he stated that he asked 45 public persons to join the investigation but no notice was given. He also does not remember the colour of their cloths. He further stated that he did not offer his search prior to personal search of the accused. He did not prepare the handing over memo of the seal.
6. Statement of accused U/s 294 CrPC recorded wherein he had admitted the factum of FIR no. 238/08, DD entry no. 15A dt. 04.11.08, FSL report no. 2008/F4505, sanction u/s 39 Arms Act. Accordingly, the respective prosecution witnesses were dropped. After exhausting the list of prosecution witness, prosecution evidence was closed. Thereafter, statement of accused U/s 313 r/w 281 CrPC was recorded in which he pleaded innocence and claimed false implication.
7. I have heard the arguments of Ld. APP for the State and Ld. FIR No. 238/08 State Vs. Shakeel Page No 3 / 6 counsel for the accused and perused the record carefully.
8. In this case, no public witness has been joined in the investigation. PW1 has deposed that 56 public were requested to join the investigation but they refused to join. No notice was served upon those public persons. Admittedly, no notice was given to the public persons who refused to join the investigation. The testimony of official witness does not find corroboration from any independent source. In my view, the nonjoining of public witness is fatal to the prosecution case, particularly when no reasonable explanation has been given by the prosecution for non joining of public witnesses. In the case of Chanan Singh Vs. State 1986 Crl. Rev. No.720 (P&H) 94, it was held that it was obligatory on the part of the police to join independent witnesses and the statement of official witness that witnesses refused to join investigation was rejected as an afterthought.
9. It is well settled proposition that non joining of public witness shrouds doubt over the fairness of the investigation by police. Even Section 100 (4) CrPC casts statutory duty upon the official conducting search to join two respectable persons of the society, which is not done in the present case. In the case of Pawan Kumar Vs. The Delhi Administration, 1989 Crl LJ 127 Delhi, it has been held as under: "Admittedly, there is no impediment in believing the version of the police officials but for that the prosecution has to lay a good foundation. At least one of them should have deposed that they tried to contact the public witnesses or that they refused to join the investigation. Here is a case where no effort was made FIR No. 238/08 State Vs. Shakeel Page No 4 / 6 to join any public witness even though number of them were present. No plausible explanation from the side of the prosecution is forthcoming for not joining the independent witnesses. 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 witnesses. 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 the knife from the person of the accused."
10. Also, the search of the accused person was done without first doing the personal search of police official. The same is accordingly violative of mandatory provision of personal search. Thus, the possibility of planting of the knife cannot be completely ruled out.
11. The prosecution has also failed to prove the Sanction u/s 39 of the Arms Act which is mandatory.
12. The cardinal principle of criminal law cannot be forgotten that the prosecution has to prove the case against accused beyond reasonable doubt. The standard of proof is not preponderance of probabilities but proof beyond reasonable doubt. It is well settled legal proposition that the any benefit of doubt goes in favour of the accused.
13. In these circumstances, there is reasonable doubt of the button operated knife having been recovered from the possession of the FIR No. 238/08 State Vs. Shakeel Page No 5 / 6 accused. It being so, benefit of same is given to the accused. Hence, the accused Shakeel is acquitted of the charge u/s 25 Arms Act, 1959 framed against him by giving him benefit of doubt. Case property be confiscated to the State and be destroyed after expiry of period of appeal. Personal bond and surety bond stand cancelled. Endorsement, if any, be cancelled. Documents, if any, be returned.
14. File be consigned to record room after completion of necessary formalities.
Announced in the Open Court (PAWAN KUMAR) On 12th April, 2013 MM12/ SE/ Saket Courts. FIR No. 238/08 State Vs. Shakeel Page No 6 / 6