Delhi District Court
State vs . Gajender @ Teenu on 7 April, 2015
IN THE COURT OF SH. HARVINDER SINGH : METROPOLITAN
MAGISTRATE (WEST 03) : DELHI.
FIR No.118/2012
PS Nangloi
State Vs. Gajender @ Teenu
Unique Case ID No.02401R0565072012
J U D G M E N T
(a) Sr. No. of the case 41/2/12
(b) Date of offence(s) 07.05.2012
(c) Complainant HC Abhay Singh, No.137W, PS Nangloi, New Delhi.
(d) Accused person(s) Gajender @ Teenu S/o Sh. Satbir R/o Gali No.27, Harijan
Mohalla, Village Dichau Kalan, New Delhi.
(e) Offences Under Section 25 of The Arms Act, 1959.
(f) Plea of accused Pleaded not guilty
(g) Final Order Acquitted
(h) Date of institution 01.11.2012
(i) Date when judgment Not reserved
was reserved
(j) Date of judgment 07.04.2015
1. The brief facts of the case are that accused person has been charge sheeted for committing offence punishable under Section 25 of The Arms Act, 1959. The allegations against the accused person are that on 07.05.2012 at about 06:50 pm at FIR No.118/2012 Page No.1 of 10 Near Government Senior Secondary School, Camp No.02, Railway Station Road, Nangloi, New Delhi, accused was found in possession of one buttondar knife as per seizure memo mark 'X' which is in contravention of notification issued by Delhi Administration. According to prosecution, accused thereby committed offence punishable under Section 25 of The Arms Act, 1959.
2. After completion of investigation, chargesheet was filed. Accused was supplied with copies in compliance of Section 207 of The Code of Criminal Procedure, 1973. Charge was framed under Section 25 of The Arms Act, 1959 against the accused vide order dated 20.04.2013 to which the accused pleaded not guilty and claimed trial. PROSECUTION EVIDENCE
3. In order to prove its case, prosecution has examined three witnesses. PW1 Retired ASI Ishwar Singh has proved and exhibited formal FIR Ex.PW1/A and endorsement on Rukka Ex.PW1/B. PW1 was examined, crossexamined and was discharged.
4. PW2 HC Abhay Singh has deposed that on 07.05.2012, he was posted at PS Nangloi and was on duty with Ct. Ramesh and Ajeet at beat no.03 & 04 and when they were in the area of Camp No.02, one secret informer informed him that one person who is wearing Tshirt of blue colour and is roaming at Nangloi Railway Station Road is having some arm. He requested 4 - 5 public persons after disclosing FIR No.118/2012 Page No.2 of 10 the abovesaid information to join the investigation, but, none of them agreed and left the spot without disclosing their names and addresses. He prepared the raiding party consisting of himself, Ct. Ramesh, Ct. Ajit and secret informer and reached at the railway station road near Senior Secondary School. At about 6:50 pm, they saw one boy wearing Tshirt of blue colour coming from railway station and going towards Senior Secondary school, but, on seeing them in police uniform, he immediately took Uturn. Secret informer pointed toward the accused. They immediately stopped him at a short distance, inquired from him, but, accused gave vague answers to their queries that raised suspicion in their mind. He took cursory search of accused and found him having a buttondar knife. He made inquiry regarding the buttondar knife from accused, but, he did not give any satisfactory reply. Again, he requested 2 - 4 passerby to join investigation after disclosing the fact of recovery of buttondar knife from the possession of accused, but, none of them agreed and left the spot immediately. Thereafter, he prepared the sketch Ex.PW2/A of buttondar knife mentioning all the measurements of knife. The total length of buttondar knife was 24.6 cm. The length of blade was 11.6 cm and the length of butt was 13 cm. The width of blade was 2.8 cm. Thereafter, he closed the knife with help of button and seized the same vide Ex.PW2/B in a white pullanda with the seal of 'AS'. After use, the seal was handed over to Ct. Ramesh. Thereafter, he prepared Rukka Ex.PW2/C mentioning all the facts and FIR No.118/2012 Page No.3 of 10 handed over Rukka to Ct. Ajit with the direction to get the case registered, however, he alongwith Ct. Ramesh, accused and case property remained at the spot. After registration of FIR at about 09:00 pm - 9:30 pm, Ct. Ajit came alongwith HC Ravinder at the spot. Further investigation in the present matter was handed over to HC Ravinder. Thereafter, he handed over the custody of accused alongwith case property as well as the documents prepared by him to HC Ravinder. He correctly identified the accused and case property buttondar knife as Ex. P1 in the Court. IO prepared site plan at his instance. IO recorded his statement. PW2 was examined, crossexamined and was discharged.
5. PW3 HC Ravinder has deposed that on 07.05.2012, he was posted as Head Constable at PS Nangloi and on that day at about 08:45 pm, investigation of the present case was marked to him by the then SHO. He alongwith Ct. Ajit reached at the spot with copy of FIR and Rukka. At the spot he found, HC Abhay Singh and Ct. Ramesh alongwith accused. HC Abhay Singh handed over to him documents sketch memo and seizure memo of buttondar knife and also gave custody of accused Gajender to him alongwith sealed buttondar knife. Site plan Ex.PW3/A was prepared at the instance of HC Abhay Singh. He recorded the statement of HC Abhay Singh on the spot. He interrogated the accused Gajender, took his personal search vide memo Ex.PW3/B and arrested him vide memo Ex.PW3/C. He informed one lady Shakuntla, FIR No.118/2012 Page No.4 of 10 the mother of the accused regarding the arrest. Accused was got medically examined at SGM Hospital. Thereafter, they came back to the PS. He deposited the said recovered buttondar knife in sealed condition in malkhana. Accused was lodged in lock up. He recorded the statements of witnesses during investigation. He correctly identified the accused. PW3 was examined, crossexamined and was discharged.
6. Further prosecution evidence was closed on 27.02.2015.
STATEMENT OF ACCUSED
7. After closure of prosecution evidence, the statement of the accused was recorded under Section 313 of Code of Criminal Procedure, 1973. Incriminating evidence was put to the accused. Accused denied all the allegations and stated that he is innocent and has been falsely implicated in this case. The accused opted not to lead any evidence in his defence.
8. Final arguments from both sides heard. Record perused.
APPRECIATION OF FACTS/CONTENTIONS/ANALYSIS & FINDINGS
9. In the present case, accused has been charged for committing an offence punishable under Section 25 of The Arms Act, 1959. In order to prove the guilt of the accused, prosecution has to prove that the accused was found in possession of one buttondar knife as per seizure memo which is in contravention of the notification issued by Delhi Administration and thereby committed an offence punishable under FIR No.118/2012 Page No.5 of 10 Section 25 of The Arms Act, 1959. As per the case of the prosecution, the accused was caught with one buttondar knife on 07.05.2012 at about 06:50 pm at Near Government Senior Secondary School, Camp No.02, Railway Station Road, Nangloi, New Delhi. The spot is a busy public place near national highway. Hence, there must be number of public persons present at the spot at the time of alleged recovery. However, the witnesses have not deposed regarding any concrete effort to join public witnesses made by them at the time of affecting the alleged recovery of knife, despite their availability on the spot.
10. Public witnesses were admittedly not joined in investigation though available. The testimony of official witnesses does not find any corroboration from any independent source. In the opinion of this Court, the nonjoining of public witness is fatal to the prosecution case, particularly when no reasonable explanation has been given by prosecution for not joining public witnesses.
In case titled as "Roop Chand Vs. State of Haryana" reported as CC Cases 3 (HC), it was held as that where the police has failed to join independent witnesses in the investigation despite their availability and further failed to take action against those who refused to take part in investigation nor their names were noted down by the police, the explanation of the police for not joining independent witnesses is an afterthought and liable to be rejected.
FIR No.118/2012 Page No.6 of 10
In the case of "Hem Raj v. State of Haryana" AIR 2005 SC 2110, it has been observed that : "The fact that no independent witness though available, was examined and not even an explanation was sought to be given for not examining such witness is a serious infirmity in the prosecution case. Amongst the independent witnesses one who was very much in the know of things from the beginning was not examined by the prosecution. Nonexamination of independent witness by itself may not give rise to adverse inference against the prosecution. However, when the evidence of the alleged eyewitnesses raise serious doubts on the point of their presence at the time of actual occurrence, the unexplained omission to examine the independent witness would assume significance."
In the case of "Sahib Singh v. Sate of Punjab" AIR 1997 SC 2417, it has been held as under : "Having gone through the record we find much substance in each of the above contentions. Before conducting a search the concerned police officer is required to call upon some independent and respectable people of the locality to witness the search. In a given case it may so happen that no such person is available or, even if available, is not willing to be a party to such search. It may also be that after joining the search, such persons later on turn hostile. In any of these eventualities the evidence of the police officers who conducted the search cannot be disbelieved solely on the ground that no independent and respectable witness was examined to prove the search but if it is found as in the present case that no attempt was even made by the concerned police officer to join with him some persons of the locality who were admittedly available to witness the recovery, it would affect the weight of evidence of the Police Officer, though not its admissibility."
In the case of "D. V. Shanmugham v. State of A.P.", AIR 1997 SC 2583 it has been observed as under : "It also appeared from the evidence of PW2 and PW8 that there were several other people who witnessed the occurrence and they are not the residents of that locality. If such independent witnesses were available and yet were not examined by the prosecution and only those persons who are related to the deceased were examined then in such a situation the prosecution case has to be scrutinised with more care and caution."
In the case of "Pawan Kumar Vs. The Delhi Administration", 1989 Cr.LJ 127 Delhi, in which it was observed as follows : FIR No.118/2012 Page No.7 of 10 "Kalam Singh has to admit that at the time of the arrest and recovery of the knife, there was a lot of rush of public at the bus stop near Subhash Bazar. According to Jagbir Singh, he did not join any public witness in the case while according to Kalam Singh, no public person was present there. It hardly stands to reason that at a place like a bus stop near Subhash Bazar, there would be no person present at a crucial time like 7.30 pm when there is a lot of rush of commuters for boarding the buses to their respective destinations. 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 to join any public witness even though number of them were present. No plausible from the side of the prosecution is forthcoming for not joining the Independent witnesses in case of a serious nature like the present one. 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.'' In the case of "Sadhu Singh Vs. State of Haryana" 2000 (2) CC Cases HC 73, the Court took note of the fact that public witnesses were not joined in investigation to acquit the accused.
In the case of "Massa Singh Vs. State of Punjab" 2000 (2) C.C. Cases HC 11, conviction was set aside on the ground that it was obligatory on the part of investigating officer to take assistance of independent witnesses to lend authenticity to the investigation conducted by him. It was observed as under : "The recovery has been effected from a public place. The Investigating Officer could have taken the trouble to associate an independent witness to get the attestation of such independent witness regarding the authenticity of the investigation conducted by him. This aspect of the case has not been properly appreciated by the Court below."
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 FIR No.118/2012 Page No.8 of 10 investigation was rejected as an afterthought.
In the cases of "Gurbel Singh Vs. State of Punjab" 1991 Crl. Rev. No. 504 (P&H) and "Dhanpat Vs. State of Punjab" 2000 (1) CC Cases HC 52, it has been held that nonjoining of independent witnesses is fatal to the prosecution case and accused is entitled to benefit of doubt.
11. There are other inconsistencies on the record which have not been explained. According to the depositions of prosecution witnesses, the case property was first seized, sketch of one buttondar knife was prepared and then Rukka was sent for registration of FIR. Thus, according to the witnesses, FIR was registered after seizure of knife and the sketch was prepared. However, the seizure memo and sketch bear the FIR number. At the time of the seizure, FIR number was not available and therefore, FIR number could not have figured on the seizure memo or on the sketch. The existence of FIR number on seizure memo suggests that the seizure memo was prepared after the registration of FIR and is therefore antetimed. This erodes the credibility of the witnesses who have stated that the seizure memo was prepared on the spot and before the registration of FIR. The seal after use was not handed over to any independent person by the IO, therefore, tampering with case property till it remained in PS cannot also be ruled out in this matter. Reliance can be placed upon judgment of Hon'ble High Court of Delhi cited as 1996 JCC 497. In these circumstances, the FIR No.118/2012 Page No.9 of 10 abovesaid facts also erode the credibility of the prosecution evidence.
12. In view of the aforementioned facts and circumstances, this Court is of the opinion that prosecution has failed to prove its case against the accused beyond reasonable doubt. Accused is given benefit of doubt in this matter, accordingly, accused Gajender @ Teenu is hereby acquitted for offence punishable under Section 25 of The Arms Act, 1959. Case property be confiscated to the State and be destroyed after expiry of period of appeal.
Announced in the open Court on April 07, 2015.
(HARVINDER SINGH) MM03/THC (West), Delhi/07.04.2015 FIR No.118/2012 Page No.10 of 10