Delhi District Court
State vs . Shankar @ Bunty on 30 November, 2011
State Vs. Shankar @ Bunty
FIR No. 530/04
PS Model Town
IN THE COURT OF SH. NEERAJ GAUR, METROPOLITAN
MAGISTRATE-IV ROHINI COURTS, DELHI
Brief reasons for the judgment in the case with following particulars:
State V/S Shankar @ Bunty
FIR No. 530/04
PS Model Town
U/S 25/54/59 of Arms Act
C/N No. 151/04
Unique ID No. 02404R6297962004
Date of Institution: 16.10.2004
Date of commission of offence 29.09.2004
Name of the Complainant HC Mohd. Saleem
Name and address of accused Shankar @ Bunty s/o Sh. Sham
Lal, r/o A-32, Sangam Park,
Delhi.
Offence complained of U/S 25/54/59 of Arms Act.
Plea of accused pleaded not guilty
Final Order Acquitted
Date of reserve for orders 30.11.2011
Date for announcing the orders 30.11.2011
Brief Facts and pre-trial procedure:
1. The case of the prosecution is that on 29.09.2004 HC Mohd.
Salim and Ct. Sunil Kumar were on patrolling duty at Gole Chakkar, RP Bagh. At about 09.10 pm, during patrolling he received secret information that one person having illegal knife in his possession was standing behind Mother Dairy Booth. On receiving the information, he C No. 151/04 Unique ID No. 02404R6297962004 Page No. 1 State Vs. Shankar @ Bunty FIR No. 530/04 PS Model Town requested 3 / 4 passersby to join but none agreed and he constituted a raiding party. They along with secret informer reached behind Mother Dairy, RP Bagh and apprehended the accused Shankar @ Bunty on the pointing out of secret informer. On formal personal search one buttondar knife from the right side dub of his pant was recovered. Knife was measured and sketch of the same was prepared and thereafter, the same was sealed with the seal of MS. Rukka was prepared and FIR was got registered. Further investigation was marked to ASI Sajjan Singh who took the custody of the accused, relevant document and case property from first IO ASI Mohd. Salim and prepared site plan. Accused was arrested and personally searched. After completion of investigation, challan was prepared and and accused was sent up for trial.
2. On the basis of these allegations, charge U/S 25/54/59 of Arms Act was framed against the accused on 08.12.2005. The accused pleaded not guilty and claimed trial.
Trial
3. To prove the charges, prosecution examined three witnesses in total whose testimonies are touched upon in brief as under: C No. 151/04 Unique ID No. 02404R6297962004 Page No. 2
State Vs. Shankar @ Bunty FIR No. 530/04 PS Model Town
(i) PW-1 ASI Mohd. Salim is the first IO in the present case who deposed on the same lines as discussed in para No. 1 of this judgment.
He further deposed about sketch of the knife Ex.PW1/A, seizure memo Ex.PW1/B, rukka Ex.PW1/C and site plan Ex.PW1/D. He further deposed that further investigation was handed over to ASI Sajjan Singh. He identified the accused and case property in the court.
(ii) PW-2 Ct. Sunil Kumar deposed that on 29.09.2004, he was on patrolling duty along with first IO / HC Mohd. Salim. At about 09.10 pm, during patrolling, first IO / HC Mohd. Salim received secret information that one person having illegal knife in his possession was standing behind Mother Dairy Booth and if immediate raid is made he can be apprehended. On receiving the information, HC Mohd. Salim requested 3 / 4 passersby to join but none agreed and he constituted a raiding party. At about 09.20 pm they along with secret informer reached behind Mother Dairy, RP Bagh and apprehended the accused Shankar @ Bunty on the pointing out of secret informer. On formal personal search one buttondar knife from the right side dub of his pant was recovered. Knife was measured and total length of the knife, of C No. 151/04 Unique ID No. 02404R6297962004 Page No. 3 State Vs. Shankar @ Bunty FIR No. 530/04 PS Model Town handle and of blade were found as 24 cm, 13 cm and 11 cm respectively. The width of the blade was made of aluminium and steel respectively. The sketch of the knife is Ex.PW1/A. Thereafter, the knife was wrapped in a white cloth and converted into pullanda which was sealed with the seal of MS and taken into possession vide memo Ex.PW1/B. Thereafter, IO prepared rukka handed over to him (PW2) who got the FIR registered at PS and returned back with ASI Sajjan Singh. Further investigation was marked to ASI Sajjan Singh who took the custody of the accused, relevant document and case property from first IO ASI Mohd. Salim and prepared site plan at the instance of first IO. Accused was arrested and personally searched vide memo Ex.PW2/A. The accused was sent to Lokup. His statement was recorded by the IO. PW-2 identified the accused and case property in the court.
(iii) PW-3 HC Raj Kumar was the Duty officer in the present case who deposed about the registration of FIR and proved the same as Ex.PW3/A and his endorsement on the rukka as Ex.PW3/B. Statement of accused and defence
4. After closure of prosecution evidence, the statement of C No. 151/04 Unique ID No. 02404R6297962004 Page No. 4 State Vs. Shankar @ Bunty FIR No. 530/04 PS Model Town accused U/S 313 CrPC was recorded. He stated that he was innocent and has been falsely implicated by planting case property upon him. No evidence in defence was led.
Arguments and appreciation of evidence in the light of legal propositions:
5. Having touched upon the statements of PWs, I shall consider the rival contention of parties. Accused has highlighted several infirmities in investigation which are being discussed hereunder alongwith the explanations therefore advanced by Ld. APP for the State.
6. It is firstly highlighted by accused that the IO has not joined any independent public witness despite availability. Admittedly, several public witnesses were present at the time of apprehension of accused and while completing the formalities at the spot but none of the public witnesses was even requested to become witness. This casts doubt about sincere efforts made by the IO to join independent witnesses. In Roop Chand v/s State of Haryana reported in 1990 (1) CLR 69, it was observed that such explanations that the public persons refused to join the proceedings are unreliable and in Pradeep Narayan V/S State of Maharashtra reported in C No. 151/04 Unique ID No. 02404R6297962004 Page No. 5 State Vs. Shankar @ Bunty FIR No. 530/04 PS Model Town AIR 1995 S.C. 1930 held that failure of police to join witness from locality during search creates doubt about fairness of the investigation benefit of which has to go to the accused.
7. It is settled proposition of law that Sub Section 4 of Section 100 CrPC is directory provision, however, explanation of non joining of independent witness should be plausible. The explanation put forward by the prosecution for non-joining of independent witness appears to be implausible for reason that there was ample time with the IO at least to note down the particulars of the persons who refused to join the investigation. The same creates doubt regarding the fairness of the investigation.
8. It is also noteworthy that the most crucial part of the investigation has been conducted by the complainant HC Mohd. Salim. even before registration of FIR. Since, he was present at the spot alongwith other police officials, no explanation has been put forth by the prosecution as to why despite availability, the investigation was not handed over to some other senior officer. In such case, as observed by Hon'ble Supreme Court in the case titled as Megha Singh V/S State of Haryana reported in 1995 Crl. L. J. 3988 and as held in the case titled as C No. 151/04 Unique ID No. 02404R6297962004 Page No. 6 State Vs. Shankar @ Bunty FIR No. 530/04 PS Model Town Sunil V/S State reported in 1999 (1) JCC 85 (Delhi) benefit of doubt is to be given to the accused.
9. It is also highlighted by accused that on the recovery Memo,the FIR number finds mention and it has not been explained by the prosecution. Admittedly, these documents were prepared before registration of FIR. When documents are prepared before registration of FIR and it contains the FIR number, then interference has to be drawn that either FIR was recoded prior in time or the documents were prepared later on and in such cases, benefit of doubt is to be given the the accused.
10. It is next pointed out by accused that the seal was kept by the police officials themselves and was not handed over to any independent person and prosecution has also failed to prove that the case property remained intact and was not tampered with till the time it was produced in the Court which was more important when the seal remained with the police official of the same police station.
11. All the lapses in investigation, discussed herein above creates a doubt on the very recovery of one buttondar knife from the possession of accused. The lapses are material one and cannot be ignored. It is settled C No. 151/04 Unique ID No. 02404R6297962004 Page No. 7 State Vs. Shankar @ Bunty FIR No. 530/04 PS Model Town proposition of law that if the investigation suffers from taint then the entire prosecution case becomes open to serious doubts and challenges. The material is insufficient to record a finding of guilt of the accused and the safer course available is to acquit the accused giving him a benefit of doubt.
Conclusion
12. In view of the above said discussion, the prosecution has failed to prove the guilt of the accused beyond reasonable doubt. Accordingly, I acquit the accused Shankar @ Bunty for the offence U/S 25/54/59 of Arms Act.
13. The Bail Bond stands cancelled and surety for the accused stands discharged. Any endorsement placed on the documents of the surety may accordingly, be cancelled. The original documents of the surety, if retained on record be returned against acknowledgment. File be consigned to record room.
Announced in open court (Neeraj Gaur)
today i.e. 30.11.2011 Metropolitan Magistrate-IV
Rohini Courts, Delhi
C No. 151/04
Unique ID No. 02404R6297962004 Page No. 8