Delhi District Court
State vs . Gopal on 28 June, 2011
IN THE COURT OF SH. NAVEEN ARORA : ADDITIONAL
CHIEF METROPOLITAN MAGISTRATE : (SE) DELHI
STATE VS. Gopal
FIR NO: 173/06
P. S. New Friends Colony
Date of institution of case : 09.06.2006
Date on which case reserved : 04.06.2011
for judgment
Date of judgment : 28.06.2011
JUDGEMENT U/S 355 Cr.P.C
.:
a) Date of offence : 28.03.2006
b) Offence complained of : U/S 25/54/59 Arms Act
c) Name of complainant : Constable Surender Pal
d) Name of accused, his : Gopal
parentage & residence S/o Sh. Ami Chand
R/o Plot No. 113, Sanjay Colony,
Okhla PhaseII, New Delhi
e) Plea of accused : He is falsely implicated.
g) Final order : Acquittal
FIR NO. 173/06 State Vs. Gopal 1/6
BRIEF FACTS AND REASONS FOR DECISION:
In the present case, the charge sheet was filed U/s 25/54/59 Arms Act alleging that On 280306 Ct. Surender Pal was on patrolling duty in the area of PP Jamia Nagar Police Station NFC. On that day at about 6.00 PM he reached at Gaffar Manzil road near Noor Nagar Pahari where he saw one person who was coming from Gaffar Manzil Road and going towards Jamia University and after seeing Ct. Surender Pal, he turned back and going towards Kacha Rasta, Noor Nagar Pahari. On suspicion Ct. Surender Pal apprehended the person after chasing him at the distance of 1015 steps. On enquiry his name was revealed as Gopal. Ct. Surender Pal took cursory search of accused and found one buttondar knife from the right pocket of his pant. He gave this information to Police Post and in pursuant of which HC Mehtab Singh/IO reached on the spot. He handed over the knife and the accused to the IO who recorded his statement. IO requested 4 to 5 persons to join investigation but they refused and left without telling their names and addresses, by telling their genuine problem.
IO prepared the sketch of knife and sealed the knife in a cloth pulanda with the seal of " MS" and handed over to Ct. Surender Pal. IO prepared rukka and gave it to him registration of FIR and he went to police station and got registration of FIR.
IO arrested the accused and prepared his arrest memo and conducted his personal search. Thereafter IO inspected the spot and prepared the site plan and after recording of statements U/s 161 Cr.PC, he deposited the case property with MHC (M) and put the accused into cell. Charge sheet was prepared and filed in Court U/s 25/54/59 Arms. Act.
Cognizance of the offence was taken vide order dt.
09.06.2006 and accused was summoned and supplied the copy of the charge sheet and FIR NO. 173/06 State Vs. Gopal 2/6 charge was framed against the accused U/s 25/54/59 Arms Act on 09.04.2007 wherein accused pleaded not guilty and claimed trail.
In Prosecution Evidence, prosecution examined the following witnesses:
1 Ct. Surender Pal as PW1. He deposed on the prosecution lines and proved his statement given to the IO Ex.PW1/A, the sketch of the knife Ex.PW1/B, seizure memo Ex.PW1/C. He also proved on record the arrest memo Ex.PW1/D and the case property Ex.P1. He was not examined by the defence counsel.
2 Sh. Prem Chand, UDC, DAD, Delhi Secretariat as PW2. He proved on record the Notification No. 13/203/178 Home (Gen.) Ex.PW2/A. 3 PW Rang Rao was the duty officer who had registered the FIR on receiving Rukka through Ct. Surender Pal. He proved on record the FIR as EX. PW3/A. 4 HC Mehtab Singh was examined as PW4. He also deposed on the prosecution lines and relied upon all the documents proved earlier. He proved on record site plan as Ex.PW4/B. This witness was also not examined.
Malkhana Mohrar was not examined as a witness.
After prosecution evidence, Statement of Accused was recorded wherein he denied all the allegations and stated that he has been falsely implicated. No defence evidence was led on behalf of accused.
After closure of defence evidence, arguments were heard on behalf of State as well as defence and it is argued on behalf of Ld. APP for State that there are no major contradiction in the testimonies of PWS and their testimonies are truthful hence the prosecution has proved its case beyond reasonable doubt, hence accused should be convicted.
FIR NO. 173/06 State Vs. Gopal 3/6 In reply to the submission of Ld. APP for State, it is argued on behalf of accused by defence counsel that the prosecution has utterly failed to prove its case beyond reasonable doubt against the accused and stated that all the witnesses are police witnesses and all of them have deposed in routine manner as they deposed in any other case of 25 Arms Act. It is argued that it is known to every one that police makes these cases just to maintain the statistics of solved cases and raised the following grounds against the case of prosecution.
1. No independent witness has been joined at the time of recovery or during investigation despite their availability as the place where the alleged recovery has been affected was a public place. It is argued that mere a general allegation that IO asked 45 persons to join the investigation but they refused to participate and left the place by telling their genuine problem is not sufficient to evade the mandatory requirement of law of joining public witnesses. It is submitted that no notice was given to those persons who refused to join the investigation nor their particulars were recorded and the bald allegations of witnesses and IO in this regard is of no legal consequence.
2 The mentioned of FIR Number on sketch memo and seizure memo clearly shows that these memos were prepared after registration of FIR and not prior to registration of FIR as alleged in the prosecution story. This fact clearly shows that all the proceeding have been done in the police station and not at the spot as alleged by PWS which proves that PWS are not stating the truth before the court.
3 Malkhana Moharrar was not examined and the entries of Malkhana register were not proved on record to show that IO had deposited the specimen impression of his seal with the case property in Malkhana.
I have heard the arguments and perused the record. In my FIR NO. 173/06 State Vs. Gopal 4/6 opinion, all the points raised by the defence counsel are material points which cannot be over looked just on the ground that testimonies of all the witnesses are almost identical and on the lines of prosecution case or because of the fact that some of the PWS were even not cross examined. It is well settled law that even without cross examination if the testimonies of witnesses are not found convincing or satisfactory, they are not to be relied upon and mere their non rebuttal in cross examination is no ground for their admission in evidence against the accused. In the present case only general allegations have been made that IO made efforts to join public witnesses but nothing material has come on record to show the same such as the name of the person who were asked to join the proceeding etc. Though, it is not the case that police witnesses are not material witnesses or on their sole testimonies accused cannot be convicted but it is well settled that in the absence of any independent witness the contradictions in the testimonies though minor in nature should be viewed seriously as decided in Kuldeep Singh Vs State of Haryana, 2004(4) RCR 103 wherein it is held that: Recovery effected at a place where independent witness were available but not joined Discrepancies in statement of official witnesses Discrepancies assume importance when no independent witness was joined.
In Pawan Kumar Vs Delhi Admn. 1987 CC. Cases 585(HC) wherein it has been held that:
in the normal circumstances, the FIR number should not find mention on the recovery memo or the sketch plan which had come into existence before the registration of the case. However, from the perusal of the recovery memo, I find that the FIR is mentioned whereas the sketch plan does not show the number of FIR. It is not explained as to how and under what circumstances, the recovery memo came to bear the FIR number which had already come into existence before the registration FIR NO. 173/06 State Vs. Gopal 5/6 of the case. These are few of the circumstances which created a doubt about the genuineness of the weapon of offence alleged to have been recovered from the accused. If in the recovery memo description of the weapon shows defers or did not find mentioned in the sketch plan, it creates a doubt about the identify of the weapon from the accused. It was also held that where the IO does not make any attempt to make any public witness despite the presence of large number of persons on the spot and no plausible explanation comes from the side of prosecution in forth coming for non joining of independent witnesses in a case of serious nature like 25 Arms Act, it creates a doubt on the arrest and the recovery of the weapon from the person of the accused.
In Karambir Vs State 1997 JCC 520 wherein it has been held that: Malkhana Moharrar where the recovered property was deposited not examined in court and no explanation for non examination forth coming and IO did not say that he had deposited specimen impression of the seal with the Moharrar Malkhana along with the case property. All these deficiencies resulted in the mis carriage of justice. Under the circumstances benefit goes to the accused.
In view of above mentioned judgments, I am of the opinion that merely on the basis of routine identical statements of police witnesses it would not be safe to hold accused guilty as there are above mentioned short coming in the case of prosecution which cast a doubt and makes the accused entitled for benefit of doubt, hence I am of the opinion that prosecution has failed to prove its case beyond reasonable doubt against the accused and accused is stands acquitted for the offence U/s 25/54/59 Arms Act. Ordered accordingly.
ANNOUNCED IN THE OPEN COURT ( NAVEEN ARORA )
TODAY ON 28th June, 2011 ACMM/SE/ Saket
FIR NO. 173/06 State Vs. Gopal 6/6