Delhi District Court
State vs . Subhash @ Sikander on 12 April, 2012
IN THE COURT OF SH. SANDEEP GARG, METROPOLITAN
MAGISTRATE (SOUTH)07, NEW DELHI
FIR No. 451/2005
U/s 25/54/59 Arms Act
PS Mehrauli
State Vs. Subhash @ Sikander
JUDGMENT:
a The Sl. No. of the case : 377/1/05
b The date of commission : 28.07.2005
c The name of complainant : Ct. Sukhlal
d The name of accused : Subhash @ Sikander S/o Sh.
: Ram Chander, R/o H. No.
: F198A, PhaseVI, Aya Nagar,
: Mehrauli, New Delhi.
e The offence complained of : 25/54/59 Arms Act
f The plea of accused : Pleaded not guilty
g The final order : Acquitted
h The date of such order : 12.04.2012
i The date of institution
of the case : 17.08.2005
j Date of hearing final arguments
and adjourning the matter
for orders : 12.04.2012
BRIEF REASONS FOR THE DECISION:
1. In brief, case of the prosecution against accused Subhash @ Sikander is that on 28.07.2005, at 05.50 pm, at Mother Dairy, MG Road, near Airforce Station, Aya Nagar, Mehrauli, New Delhi, within the jurisdiction of PS Mehrauli, he was found in possession of one button actuated knife having handle length of 12 cms, blade length of 11 cms and total length of the knife FIR No. 451/2005 PS: Mehrauli 1 of 9 State Vs. Subhash @ Sikander 23 cms, without any license and in contravention of notification of Delhi Administration and thereby committed an offence punishable u/s 25/54/59 Arms Act. On the basis of rukka sent by HC Mahavir Singh, FIR was registered for commission of offence punishable u/s 25/54/59 of Arms Act. The case was investigated into. The investigation ended in the filing of the charge sheet u/s 173 Cr.P.C. on 17.08.2005, charging the accused with the commission of an offence punishable u/s 25/54/59 of Arms Act.
2. Vide order dated 05.05.2008 accused was charged for commission of offence punishable u/s 25/54/59 of Arms Act to which he pleaded not guilty and claimed trial.
3. To substantiate its case, prosecution has examined PW HC Mahavir Singh who is IO of the case. PW Ct. Sukhlal was on patrolling duty in the beat area of P.S. Mehrauli and is a recovery witness. Statement of accused was recorded in terms of section 294 Cr.P.C. on 14.03.12, whereby he has not disputed the genuineness of FIR and notification issued by GNCT of Delhi in respect of forbidden category of knives. PE was closed and statement of accused was recorded U/s 281/313 Cr.P.C. wherein accused denied the case of prosecution in toto. However, accused did not intend to lead DE.
4. I have heard Ld. APP for the State and the accused and gone through case file very carefully.
5. It is submitted by Ld. APP for the State that by virtue of evidence available on judicial file, accused is liable to be convicted for the offence punishable u/s 25/54/59 of Arms Act. On the other hand, accused submits FIR No. 451/2005 PS: Mehrauli 2 of 9 State Vs. Subhash @ Sikander that he has been falsely implicated in the present case and he is totally innocent.
6. I have gone through the material on judicial file very carefully.
7. It is settled proposition of criminal law that prosecution is supposed to prove its case on judicial file beyond reasonable doubts by leading reliable, cogent and convincing evidence. Further, it is a settled proposition of criminal law that in order to prove its case on judicial file, prosecution is supposed to stand on its own legs and it cannot derive any benefit whatsoever from the weaknesses, if any, in the defence of the accused. Further, it is a settled proposition of criminal law that burden of proof of the version of the prosecution in a criminal trial throughout the trial is on the prosecution and it never shifts to the accused. Also it is a settled proposition of criminal law that the accused is entitled to the benefit of every reasonable doubt in the prosecution story and such doubt entitles the accused to acquittal.
8. In my opinion, as a cumulative effect of following reasons the accused is entitled to be acquitted of the charge against him:
(a) Chapter 22 Rule 49 of Punjab Police Rules, 1934, provides as under:
22.49. 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 FIR No. 451/2005 PS: Mehrauli 3 of 9 State Vs. Subhash @ Sikander 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.
In the present case, the above said provision appears to have not been complied with by prosecution. As per the prosecution version at the time of the apprehension of the accused with Knife, Ex. P1 in his possession PW Ct. Sukhlal was on patrolling duty in the beat area of P.S. Mehrauli, but the DD entry vide which he left the police station for patrolling duty has not been brought on record. In my opinion prosecution was under an obligation to prove on record, the above said DD entry vide which Ct. Sukhlal had left the PS so as to prove the possibility of availability of Ct. Sukhlal at the place of apprehension of the accused. At this juncture, it would be relevant to refer to a case law reported as Rattan Lal V/s State, 1987(2) Crimes 29 wherein the Hon'ble Delhi High Court 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.
9. In the present case, after the apprehension of accused at about 05.50 pm, but before searching his body no attempts whatsoever were made by HC Mahavir Singh to ensure that search of accused by him is witnessed FIR No. 451/2005 PS: Mehrauli 4 of 9 State Vs. Subhash @ Sikander by independent public witnesses who were very much available at the place of apprehension of accused as per the contents of rukka only. After the apprehension of accused, HC Mahavir Singh could very well have served the passersby with notice in writing requiring them to join the police proceedings or to face legal action u/s 187 IPC in as much as by that point of time, accused stood already apprehended and there were no chances of crime going undetected or accused escaping the arrest. Also even the identify of the passersby who were requested to join the police proceedings has not been recorded by HC Mahavir Singh. In such circumstances it cannot be said that on account of reasonable excuses only, passersby had, if it was so, refused to join police proceedings. This failure on the part of prosecution creates reasonable doubt in the prosecution story. It this regard, reliance may be placed on the following case laws:
In a case law reported as Anoop Joshi V/s State 1999(2) C.C. Cases 314 (HC), Hon'ble High Court of Delhi has observed as under:
"18. 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 shopkeepers 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 legal action against such shop keepers because they could not have escaped the rigours of law while declining to perform their legal FIR No. 451/2005 PS: Mehrauli 5 of 9 State Vs. Subhash @ Sikander duty to assist the police in investigation as a citizen, which is an offence under the IPC".
In a case law reported as Roop Chand V/s The State of Haryana 1999 (1) C.L.R. 69, the Hon'ble Punjab & Haryana High Court held as under:
"3. I have heard the learned counsel for the parties and gone through the evidence with their help. The recovery of illicit liquor was effected from the possession of the petitioner during noon time and it is in the evidence of the prosecution witnesses that some witnesses from the public were available and they were asked to join the investigation. The explanation furnished by the prosecution is that the independent witnesses were asked to join the investigation but they refused to do so on the ground that their joining will result into enmity between them and the petitioner".
"4. It is well settled principle of the law that the investigating Agency should join independent witnesses at the time of recovery of contraband articles, if they are available and their failure to do so in such a situation casts a shadow of doubt on the prosecution case. In the present case also admittedly the independent witnesses were available at the time of recovery but they refused to associate themselves in the investigation. This explanation does not inspire confidence because the police officials who are the only witnesses examined in the case have not given the names and addresses of the persons contacted to join. It is a very common excuse that the witnesses from the public refused to join the investigation. A police officer conducting investigation of a crime is entitled to ask anybody to join the investigation and on refusal by a person from the public the investigating Officer can take action against such a person under the law. Had it been a fact that the FIR No. 451/2005 PS: Mehrauli 6 of 9 State Vs. Subhash @ Sikander witnesses from the public had refused to join the investigation, the Investigating Officer must have proceeded against them under the relevant provisions of law. The failure to do so by the police officer is suggestive of the fact that the explanation for non joining the witnesses from the public is an after thought and is not worthy of credence. All these facts taken together make the prosecution case highly doubtful".
In case law reported as Sadhu Singh vs State of Punjab, 1997 (3) Crimes 55, the Hon'ble Punjab & Haryana High Court observed as under:
"5. In a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubts. It is for the prosecution to travel the entire distance from may have to must have. If the prosecution appears to be improbable or lacks credibility, the benefit of doubt necessarily has to go to the accused".
"6. In the present case, the State examined two witnesses namely, Harbans Singh ASI who appeared as PW1 and Kartar Singh PW2. Both the witnesses supported the prosecution version in terms of the recovery of opium from the person of the petitioner, but there was no public witness who had joined. It is not necessary in such recoveries that public witnesses must be joined, but attempt must be made to join the public witnesses. There can be cases when public witnesses are reluctant to join or are not available. All the same, the prosecution must show a genuine attempt having been made to join a public witness or that they were not available. A stereotype statement of nonavailability will not be sufficient particularly when at the relevant time, it was not difficult to procure the service of public witness. This reflects adversely on the prosecution version".
FIR No. 451/2005 PS: Mehrauli 7 of 9 State Vs. Subhash @ Sikander
10. In the present case, seal after use on the pullanda containing case property was given to Ct. Sukhlal, who is a material prosecution witness being witness to the recovery of knife from the possession of the accused. To my mind, in such circumstances, chances of fabrication with the case property cannot be ruled out in as much as a material prosecution witness is always interested in the conviction of the accused. Further, it is pertinent to note that no memo has been placed on record showing the date and time when the seal was returned to HC Mahavir Singh by Ct. Sukhlal. Both PW Ct. Sukhlal and PW HC Mahavir Singh are silent in this regard absolutely.
11. In the present case, before taking the formal/casual search of the accused after his apprehension police official (s) had made no efforts to ensure that search of the accused by him them is witnessed by independent public witnesses.
Also PW Ct. Sukhlal had not offered his own search to the accused before taking the search of the accused. At this juncture, it would be appropriate to refer to the judgment of Hon'ble Orissa High Court reported as Rabindernath Prusty Vs. State of Orissa, wherein it was held as under:
"10. The next part of the prosecution case is relating to the search and recovery of Rs. 500/ from the accused. One of the formalities that has to be observed in searching a person in that the searching Officer and other assisting him should give their personal search to the accused before searching the person of the accused. (See AIR 1969 SC 53 : (1969 Cri L.J. 279), State of Bihar V/s Kapil Singh). This rule is meant to avoid the possibility of implanting the object which was brought out by the search. There is no evidence on record whatsoever that the raiding party gave their FIR No. 451/2005 PS: Mehrauli 8 of 9 State Vs. Subhash @ Sikander personal search to the accused before the latter's person was searched. Besides the above, it is in the evidence of PWs 2 and 5 that the accused wanted to know the reason for which his person was to be searched and the reason for such search was not intimated to the accused. No independent witness had witnessed the search. In the above premises, my conclusion is that the search was illegal and consequently the conviction based thereon is also vitiated".
Being guided by above said case law, it can be said that search of the accused by above said police officials was in complete violation of the above said case law and the same can be said to be illegal.
12. In view of the aforesaid discussion, in my opinion, prosecution has not been able to prove its case against the accused beyond reasonable doubts. Accordingly, accused is acquitted of the charge levelled against him. His bail bond stands discharged. Case property be confiscated to State and be destroyed after expiry of period of appeal. File be consigned to Record Room.
Announced in the open (Sandeep Garg)
Court on 12.04.2012 MM(South)07,
New Delhi.
FIR No. 451/2005 PS: Mehrauli 9 of 9
State Vs. Subhash @ Sikander