Delhi District Court
State vs Rakesh on 10 May, 2011
FIR No. 26/03
PS: Adarsh Nagar
S/v Rakesh
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. 26/03
PS Adarsh Nagar
U/S 25/54/59 of Arms Act
C/No. 56/03
Unique ID No. : 02401R0783742003
State V/S Rakesh
Date of Institution: 17.02.2003
Name of the Complainant ASI Kaptan Singh
Name and address of accused Rakesh S/o Sh. Kunwarpal
R/o Jhuggi No. 17, TPT
Centre near Railway Line
Pull, NS Mandi, Azadpur,
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 10.05.2011
Date for announcing the orders 10.05.2011
Brief facts and pre trial procedure
1.The case of the prosecution is that on 19.01.2003 PW-1 was C/No. 56/03 Unique ID No. 02401R0783742003 Page No. 1 FIR No. 26/03 PS: Adarsh Nagar S/v Rakesh on patrolling duty along with PW-4 at TPT Centre Jhuggi, NS Mandi. At about 7 PM, one boy started going towards jhuggis at TPT Centre on seeing them. On suspicion, they chased him and apprehended him. On his casual search, one buttondar knife was recovered from right side pocket of his wearing pant. Sketch of the knife was prepared and same was measured and total length of knife was found to be 33 CM, length of handle was 18 CM, length of blade was 15 CM and the width of blade was 03 CM. Pullanda of the knife was prepared and same was seized. 1st IO/ PW-1 prepared the rukka and on the basis of said rukka, the FIR was got registered. The accused was arrested and sent up for trial.
2. After completion of investigation, charge-sheet was filed.
Charge U/S 25 Arms Act was framed against the accused on 26.07.2005 to which, accused pleaded not guilty and claimed trial.
Trial
3. Prosecution examined four witnesses whose testimonies are touched upon in brief as under :-
C/No. 56/03 Unique ID No. 02401R0783742003 Page No. 2 FIR No. 26/03
PS: Adarsh Nagar S/v Rakesh 3.1 PW-1 and PW-4 deposed that on 19.01.2003 they were on patrolling duty at TPT Centre Jhuggi, NS Mandi. At about 7 PM, one boy started running after seeing them. On suspicion, they chased him and apprehended him. On his casual search, one buttondar knife was recovered from right side pocket of his wearing pant. Sketch of the knife was prepared vide Ex. PW 1/A and same was measured and total length of knife was found to be 33 CM, length of handle was 18 CM, length of blade was 15 CM and the width of blade was 03 CM. Pullanda of the knife was prepared and same was sealed with seal of KS. The pullanda was seized vide memo Ex. PW 1/B. A rukka Ex. PW 1/C was prepared by PW-1 and same was handed over to PW-4 for getting the case registered. After having got the case registered PW-4 came back to spot with PW-3. PW-1 handed over the custody of accused Rakesh, sealed case property and relevant documents to PW-3. PW-4 further deposed that PW-3 prepared a site plan Ex.PW3/A at the instance of PW-1 whose supplementary statement was recorded by PW-3 and thereafter he was relieved. The accused was arrested and C/No. 56/03 Unique ID No. 02401R0783742003 Page No. 3 FIR No. 26/03 PS: Adarsh Nagar S/v Rakesh personally searched vide memos Ex.PW3/B & PW3/C respectively.
The accused was put behind the bar and the case property was deposited in Malkhana. PW-1 and PW-4 correctly identified the accused and case property in the Court.
3.2 PW-3 Retd. SI Richhpal Singh deposed that on 19.01.2003 he was posted at PP NS Mandi PS Adarsh Nagar as ASI. On that day, Ct. Ravinder handed over him a rukka and copy of FIR of the present case and thereafter, he along with Ct. Ravinder went to the spot i.e. TPT Centre , Railway Line near Flyover Azadpur Mandi where PW-1 handed over him the custody of accused, sealed case property and relevant documents. PW-3 prepared a site plan Ex.PW3/A at the instance of PW-1 whose supplementary statement was recorded by PW-3 and thereafter he was relieved. The accused was arrested and personally searched vide memos Ex.PW3/B & PW3/C respectively. The accused was put behind the bar and the case property was deposited in Malkhana. The charge-sheet was prepared under the supervision of SHO.
C/No. 56/03 Unique ID No. 02401R0783742003 Page No. 4 FIR No. 26/03
PS: Adarsh Nagar S/v Rakesh 3.3 PW-2 HC Suresh deposed that he was the Duty Officer at the relevant time and he registered the FIR Ex. PW 2/A on the basis of the abovesaid rukka and also made his endorsement on the rukka Ex. PW 2/B. 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. 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 along with the explanations therefore advanced by Ld. APP for the State.
5.1 It is firstly highlighted by accused that the IO has not joined any independent public witness despite availability. Admittedly, C/No. 56/03 Unique ID No. 02401R0783742003 Page No. 5 FIR No. 26/03 PS: Adarsh Nagar S/v Rakesh 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 which has to go to the accused.
5.2 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 C/No. 56/03 Unique ID No. 02401R0783742003 Page No. 6 FIR No. 26/03 PS: Adarsh Nagar S/v Rakesh refused to join the investigation. The same creates doubt regarding the fairness of the investigation.
5.3 It is also noteworthy that the most crucial part of the investigation has been conducted by the complainant ASI Kaptan Singh even before registration of FIR. Since, he was present at the spot along with other police official, 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.
5.4 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 C/No. 56/03 Unique ID No. 02401R0783742003 Page No. 7 FIR No. 26/03 PS: Adarsh Nagar S/v Rakesh 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.
5.5 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.
5.6 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.
6. All the lapses in investigation, discussed herein above C/No. 56/03 Unique ID No. 02401R0783742003 Page No. 8 FIR No. 26/03 PS: Adarsh Nagar S/v Rakesh 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 Rakesh for the offence U/S 25/54/59 of Arms Act.
7. Accused be released forthwith, if not, required in any other case. File be consigned to Record Room.
Announced in open court (Neeraj Gaur)
dated 10.05.2011 Metropolitan Magistrate-IV
Rohini Courts, Delhi
C/No. 56/03
Unique ID No. 02401R0783742003 Page No. 9