Delhi District Court
State vs . Bhim Bahadur Thapa on 28 September, 2011
IN THE COURT OF SH. SAURABH PRATAP SINGH LALER
METROPOLITAN MAGISTRATE-06 (East), KARKARDOOMA
COURTS, DELHI.
FIR No. 410/06
PS: Preet Vihar
Offence complaint of : 25 of Arms Act
Date of commission of offence : 23.6.06
Unique Case ID No. : 02402R0509112006
STATE Vs. Bhim Bahadur Thapa
S/o Late Sh. Til Bahadur Thapa
R/o H.No. 71, Old Arjun Nagar,
Delhi ............ Accused
ASI Jai Pal, PS Preet Vihar ............. Complainant
Date of Institution : 25.8.06
Plea of accused : Pleaded not guilty
Date of reserving judgment/order : 28.9.2011
Date of pronouncement : 28.9.2011
Final Order : Acquitted
BRIFE STATEMENT FOR THE REASONS FOR DECISION:
1.The case of the prosecution is that on 23.6.06 at about 9.15 PM at T Point, Vikas Marg, PSK, Delhi within the jurisdiction of PS Preet Vihar accused Dhani Bhim Bahadur Thapa was found in possession of a button actuated knife having total length 24 cm and length of blade 11 cm without any permission or license and in contravention of notification FIR No. 410/06 State Vs. Bhim Bahadur Thapa 1 of 9 issued by Delhi Administration and thereby accused committed offence punishable u/s 25 of Arms Act.
On the basis of above facts an FIR No. 410/06 was registered in the PS Preet Vihar against the accused U/s 25 Arms Act.
Statement of witnesses were recorded, site plan was prepared, the accused was arrested and after completion of all necessary investigation challan U/s 173 Cr. P.C was presented in the court for trial on 25.8.06.
2. The Accused was summoned by the Court to face the trial. On appearance, copy of the charge sheet, as required under section 207 Cr. PC, was supplied to accused. Thereafter case was fixed for consideration on charge.
3. On hearing arguments and on perusal of record, prima facie charge for the offence under section 25 of Arms Act was made out against the accused. Accordingly charge framed against the accused on 16.5.08. Thereafter case was fixed for prosecution evidence.
4. In order to prove its case the prosecution examined two witnesses namely Ct. Ram Kumar as PW1 and ASI Jai Pal as PW2.
5. PW1 Ct. Ram Kumar is the star witness as he is a recovery witness who deposed that in the year 2006 on receipt of DD No. 69B he FIR No. 410/06 State Vs. Bhim Bahadur Thapa 2 of 9 along with IO/ASI Jai Pal Singh went to the spot i.e. PSK, T Point where they found public persons gathered there. He further deposed that among the crowd one lady came and made a complaint on which the accused was formally searched and a button actuated knife was recovered from his possession. PW1 further deposed that the knife was measured and kept in a pullanda and sealed with the seal of JP and the FIR was registered through him. This witness also proved the sketch of the knife as Ex.PW1/A, its seizure memo as Ex.PW1/B, arrest memo as Ex.PW1/C and personal search memo as Ex.PW1/D.
6. PW2 ASI Jai Pal is also the recovery witness and the IO who deposed on the aspects of the investigation that on 23.6.06 during patrolling he along with Ct. Raj Kumar reached T Point, VSK where Ct. one lady Kavita Rohtagi met them and and she made a complaint regarding snatching of her chain by a person who was present there as he was apprehended by public persons and beaten up. On this PW2 conducted person search of that person, a button actuated knife was recovered from his possession. This witness also proved the sketch of the knife as Ex.PW1/A, its seizure memo as Ex.PW1/B, tehrir as Ex.PW2/B, site plan as Ex.PW2/B, arrest memo as Ex.PW1/D and personal search memo as Ex.PW1/E.
7. On 20.9.2011 statement of the accused was recorded u/s 281 Cr.PC. wherein he denied the allegations of prosecution and claimed innocence. Accused did not desire to lead evidence in his defence.
FIR No. 410/06 State Vs. Bhim Bahadur Thapa 3 of 9
8. I have heard the Ld.APP for the state and Ld. Defence counsel and have also carefully perused the entire record and the relevant provisions of the law.
9. It is settled proposition of criminal law that prosecution is supposed to prove its case on the judicial file by leading cogent, convincing reliable and trustworthy evidence beyond reasonable doubts. The case of prosecution has to fall or stand on its own legs and it cannot drive any benefit from the weakness if any, in the defence of the accused. It is not for the accused to disprove the case of the prosecution and onus to prove the case against the accused beyond reasonable doubts never shifts and it always remains on the prosecution. Further, benefit of doubt in the prosecution story always goes to the accused and it entitles the accused to acquittal.
10. From careful perusal of testimonies of this witnesses, it reveals that the witnesses admitted in examination that several public persons were available at the spot but they were not made witness in the present case and it is a serious lapse on the part of IO/prosecution and there are also several material contradictions in the testimony of the PWs.
11. In the present case, the Investigating Officers have not joined any independent public witness despite availability. Admittedly, several public witnesses were present at the time of apprehension of accused (as admitted by PW1 and PW2 in their examination) and while completing the FIR No. 410/06 State Vs. Bhim Bahadur Thapa 4 of 9 formalities.
12. Investigating Agency had sufficient opportunity to join a public witness. Merely stating that they tried to join public witness, but public persons refused to join, is insufficient as they have not obtained even the names of such public persons and have also failed to explain as to why the provisions of section 174 IPC r/w Section 42 of the Cr. P.C. was not brought into action against such public persons.
In the state of Rajasthan Vs. Teja Singh 2001 (II) AD (SC) 125, Hon'ble Supreme Court held:
"The failure of the prosecution to examined independent witnesses though available is fatal for their case."
In the case titled State of Punjab Vs. Gurdyal Singh 1992(1) RCR (DB) 646, Roop Chand Vs. State of Haryana 1989 (2) RCR 504 and State of Punjab Vs. Sukhdev Singh 1992 (3) RCR 311, it was held by the Hon'ble Court that :-
"Where the IO has failed to even note down the names and addresses of the persons, who have refused to join a public witnesses, couple with the fact that no action was taken against them, the case is rendered doubtful."
The Court would also like to refer to the judgment titled Ritesh Chakarvarti Vs. State of Madhya Pradesh, (SC) 2006 (4) R.C.R (Criminal) 480 the division bench of Honorable Justices Sh. S. B. Sinha and Sh. Dalveer Bhandari Observed:
FIR No. 410/06 State Vs. Bhim Bahadur Thapa 5 of 9 "If it was a busy place, the officers would expectedly ask those to be witnesses to the seizure memo who were present at the time in the place of occurrence. But, not only no such attempt was made, even nobody else who had witnessed the occurrence was made a witnesses. Even their names and addresses had not been taken.
Illustration (g) appended to Section 114 of the Indian Evidence Act reads thus :
" The Court may presume -
(a) ***
(b) *** (c ) ***
(d) ***
(e) ***
(f) ***
(g) that evidence which could be and is not produced would, if produced be, unfavourable to the person who holds its." An adverse inference, therefore, could be drawn for non-examination of material witnesses." (emphasis supplied) In absence of a public witness to the recovery and also in absence of an explanation as to why a public person was not joined in the investigation, the prosecution has failed to prove the recovery of the weapon from the accused beyond reasonable doubt.
FIR No. 410/06 State Vs. Bhim Bahadur Thapa 6 of 9
13. Also in this case no efforts were made to hand over the seal after use to any independent public person and in such cases, in view of Saifulla Vs. State 1998(1) CCC 497 (DELHI) & Abdul Gaffar Vs. State 1996 JCC 497 (DELHI), benefit of doubt must be given to the accused persons.
14. Further it is found that sketch of the knife as well as the seizure memo of the knife Ex.PW2/B and Ex.PW2/C respectively bear the number of FIR, though, as per rukka Ex.PW2/C the said documents were prepared before registration of FIR. However, the fact that said seizure memo Ex.PW2/C and sketch of the knife Ex.PW2/B bear FIR number gives rise to two inferences that either FIR was registered after the alleged recovery of the knife or the number of the FIR was inserted in the documents (seizure memo and sketch of the knife) after its registration. In both the situations it seriously reflects on the veracity of the prosecution case and robs the efficacy of the evidence of the aforesaid police official regarding the alleged recovery of the knife from the possession of the accused. Reliance is placed upon judgment titled "Prithvi Pal Singh @ Munna Vs. State 2000 II AD (Cr.) DHC 61".
15. In view of my above discussion, I am of the considered opinion that prosecution has miserably failed to prove its case against the accused beyond reasonable doubt. Therefore, in the absence of any cogent evidence against the accused, accused deserves to be acquitted. So, benefit of doubt is given to the accused.
FIR No. 410/06 State Vs. Bhim Bahadur Thapa 7 of 9 Accordingly, accused Bhim Bahadur Thapa is acquitted of the offence u/s 25 of Arms Act for which he stands charged in the present case.
Bail bond and surety bond each shall remain intact u/s 437A Cr.PC. till six months with further directions to appear before appellate Court as and when receives notice in this behalf.
File be consigned to Record Room.
Announced in the open Court on 28.9.2011 ( S.P.S. Laler) Metropolitan Magistrate KKD, Delhi Certified that this judgment contains 8 pages and each page bears my signature.
( S.P.S. Laler) Metropolitan Magistrate KKD, Delhi FIR No. 410/06 State Vs. Bhim Bahadur Thapa 8 of 9 FIR No. 410/06 PS Preet Vihar 20.9.2011 Present:- Ld. APP for State.
Accused on bail with counsel.
S.A. recorded in which accused did not prefer defence evidence. Put up for final arguments on 28.9.2011.
(S.P.S. LALER) MM(EAST)/KKD/DELHI 20.9.2011 28.9.2011 Present:- Ld. APP for State.
Accused on bail with LAC Sh. Sanjeev Kumar.
Arguments heard.
Vide separate judgment, accused Bhim Bahadur Thapa is acquitted of offence u/s 25 of Arms Act for which he is charged in the present case.
Bail bond and surety bond each shall remain intact u/s 437A Cr.PC. till six months with further directions to appear before appellate Court as and when receives notice in this behalf.
File be consigned to Record Room.
(S.P.S. LALER) MM(EAST)/KKD/DELHI 28.9.2011 FIR No. 410/06 State Vs. Bhim Bahadur Thapa 9 of 9