Delhi District Court
State vs Dharmender @ Lala on 23 September, 2011
FIR No. 309/02
PS: Adarsh Nagar
S/v Dharmender @ Lala
IN THE COURT OF SH. NEERAJ GAUR, METROPOLITAN
MAGISTRATE-IV ROHINI COURTS, DELHI
Brief reasons for the judgment in the case with following particulars:
FIR No. 309/02
PS Adarsh Nagar
U/S 25/54/59 of Arms Act
C/No. 283/02
Unique ID No. : 02401R0163352002
State V/S Dharmender @ Lala
Date of Institution: 25.09.02
Name of the Complainant HC Bijender Singh
Name and address of accused Dharmender @ Lala
s/o Sh. Phool Kumar,
r/o H. NO. 183, Railway Road,
Sadi Nagar, 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 23.09.2011
Date for announcing the orders 23.09.2011
Brief facts and pre trial procedure
1.The case of the prosecution is that on 07.08.2002 HC Bijender / PW3 / first IO was on patrolling duty alongwith Ct. Dalbir Singh and Ct. Shekh Hanif at AT Mill, GTK ROad. On a secret information about the accused with illegal weapon, first IO requested some public persons to join C/No. 283/02 Unique ID No. 02401R0163352002 Page No. 1 FIR No. 309/02 PS: Adarsh Nagar S/v Dharmender @ Lala the raiding party but none agreed. Thereafter, he prepared the raiding team comprising the staff available with him and went to the spot where at the instance of secret informer, they stopped and apprehended the accused. On his casual search, one buttondar knife was recovered. Sketch of the same was prepared and it was measured. First IO prepared the rukka and sent Ct. Dalbir for registration of FIR. Ct. Dalbir returned at the spot with second IO / HC Suresh who prepared site plan at the instance of first IO. Second IO arrested the accused and conducted personal search. After competition of investigation challan was filed before the court.
2. Charge U/S 25 Arms Act was framed against the accused to which, accused pleaded not guilty and claimed trial.
Trial
3. Prosecution examined four witnesses whose testimonies are touched upon in brief as under :-
3.1 PW-1 Ct. Shekh Hanif supported the prosecution case qua the investigation party and deposed same as discussed in para No. 1 of the Judgment. He deposed about sketch Ex.PW1/A, seizure memo Ex.PW1/B, C/No. 283/02 Unique ID No. 02401R0163352002 Page No. 2 FIR No. 309/02 PS: Adarsh Nagar S/v Dharmender @ Lala site plan Ex.PW1/C, arrest memo Ex.PW1/D and personal search memo Ex.PW1/E. He correctly identified the accused and case property in the court.
3.2 PW-2 ASI Shanti Lal was the Duty Officer at the relevant time who deposed about the registration of FIR and proved the same as Ex.PW2/A. He also made his endorsement on the rukka Ex. PW2/B. 3.3 PW-3 HC Bijender Singh is the first IO in the present case who deposed that on 07.08.02, he was on patrolling duty alongwith Ct. Shekh Hanif and Ct. Dalbir at AT Mill, Azadpur near Bus Terminal. At about 07.30 pm, a secret information through an informer was received to him that one young boy would come from Shadique Nagar having illegal weapon and he may commit any offence. On this information, PW-3 requested 4 /5 public persons to join the investigation but none agreed. A raiding party was prepared comprising the above staff and they went at AT Mill near an STD Booth. At about 07.50 pm, they saw that accused was coming from the side of Shadique Nagar. At the instance of secret informer, they stopped and apprehended him near STD Booth. On his casual search, one buttondar C/No. 283/02 Unique ID No. 02401R0163352002 Page No. 3 FIR No. 309/02 PS: Adarsh Nagar S/v Dharmender @ Lala knife was recovered from the right dub of the pant of the accused. PW-3 after opening the buttondar knife, prepared the sketch of the knife vide Ex.PW1/A and same was measured and total length of knife was found to be 24.00 CM, length of handle was 13.3 CM, length of blade was 10.7 CM and the width of blade was 2.3 CM. Pullanda of the knife was prepared and same was sealed with seal of BSS. Seal was given to Ct. Dalbir Singh after its use. The pullanda was seized vide memo Ex.PW1/B. A rukka Ex.PW3/A was prepared by PW-3 and same was handed over to Ct. Dalbir for getting the case registered. After having got the case registered Ct.
Dalbir came back to spot with HC Suresh who was marked further investigation of case to whom the custody of the accused, relevant documents and case property was handed over by PW-3. HC Suresh / Second IO prepared the site plan at the instance of PW-3. Supplementary statement of PW-3 was recorded by second IO and thereafter PW-3 was relieved. He correctly identified the accused and case property in the court. 3.4 PW-4 HC Suresh Kumar deposed that on 07.08.02, Ct. Dalbir handed over him rukka and copy of FIR and he (PW4) was assigned further C/No. 283/02 Unique ID No. 02401R0163352002 Page No. 4 FIR No. 309/02 PS: Adarsh Nagar S/v Dharmender @ Lala investigation of the present case. Thereafter, PW-4 along with Ct. Dalbir went to the spot i.e. GTK Road, AT Mill, Azadpur near Bus Terminal. There PW-4 met with HC Vijender / first IO who handed over him the custody of the accused, relevant documents and case property. PW-4 prepared site plan vide Ex.PW1/C at the instance of first IO. PW-4 recorded the supplementary statement of first IO and relieved him. Accused was arrested and personally searched vide memos Ex.PW1/D & PW1/E respectively. PW-4 recorded the statement of witnesses. Case property was deposited in malkhana and accused was put behind the bars. Thereafter, under the supervision of SHO, PW-4 prepared the charge-sheet and filed before the court. He was cross-examined by Ld. LAC during which he stated that he asked the public persons available at juice shop and STD Book to join the investigation but none agreed. No notice was served upon them. He further stated that he asked the accused regarding the source of knife but he did not disclose about the same. He did not give any reference in the charge-sheet regarding this proceeding. Brother of the accused was intimated through telephone regarding the arrest of the accused. He denied C/No. 283/02 Unique ID No. 02401R0163352002 Page No. 5 FIR No. 309/02 PS: Adarsh Nagar S/v Dharmender @ Lala the suggestion put to him by Ld. LAC for the accused.
Statement of accused and defence
4. In his statement recorded U/S 313 CrPC, accused claimed his innocence. He took the defence of false implication by planting case property. He did not prefer to examine any witness in defence. Appreciation of evidence in light of arguments advanced by the parties
5. 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 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 C/No. 283/02 Unique ID No. 02401R0163352002 Page No. 6 FIR No. 309/02 PS: Adarsh Nagar S/v Dharmender @ Lala which has to go to the accused.
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.
It is also noteworthy that the most crucial part of the investigation has been conducted by the complainant HC Bijender even before registration of FIR. Since, he was present at the spot along with 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 Sunil V/S State reported in 1999 (1) JCC 85 (Delhi) benefit of doubt is to be given to the accused. C/No. 283/02 Unique ID No. 02401R0163352002 Page No. 7 FIR No. 309/02
PS: Adarsh Nagar S/v Dharmender @ Lala 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.
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.
It is noteworthy that no effort at all was made by the police to ascertain the source from where the alleged weapon was acquired by the accused. No explanation is coming forthwith on such effort so not made. This lapse in investigation certainly accrues a benefit in favour of accused. C/No. 283/02 Unique ID No. 02401R0163352002 Page No. 8 FIR No. 309/02
PS: Adarsh Nagar S/v Dharmender @ Lala
6. 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 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. 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 Dharmender @ Lala for the offence U/S 25/54/59 of Arms Act. Accused be released forthwith if not required in any other case.
7. File be consigned to Record Room.
Announced in open court (Neeraj Gaur)
today i.e. 23.09.2011 Metropolitan Magistrate-IV
Rohini Courts, Delhi
C/No. 283/02
Unique ID No. 02401R0163352002 Page No. 9