Delhi District Court
State vs Bhupender on 22 November, 2012
IN THE COURT OF SH. MUNEESH GARG,
METROPOLITAN MAGISTRATE
KARKARDOOMA COURTS, DELHI
State versus Bhupender
FIR No. 292/05
U/s 25 Arms Act
PS Farsh Bazar
JUDGMENT
a. Unique ID Number of the case : 02402R0688732005 b. Sl. No. of the case : 296/3 c. Date of institution : 15.12.08 d. Date of commission of offence : 22.09.2005 e. Name of complainant : Constable Kushal Pal f. Name & address of accused person : Bhupender S/o Gareeb Dass R/o 591/9Y, Sehdev Gali, Vishwas Nagar, Shahdara, Delhi-32.
g. Offence complained of : U/s 25 Arms Act h. Plea of accused : Pleaded Not Guilty i. Date when order was reserved : Not reserved j. Final order : Acquitted k. Date of Judgment : 22.11.2012 BRIEF STATEMENT OF REASONS FOR DECISION
01. Briefly stated the case of the prosecution is that on 22.09.2005 at about 09:00 p.m. at Babu Ram School, Bansal sweet house, Bara bazar marg, Delhi within the jurisdiction of PS Farsh Bazar, accused Bhupender was found in possession of one button-actuated knife in contravention of the notification issued by Delhi Administration and FIR No. 292/05 Page No. 1/11 thereby committed an offence punishable u/s 25 Arms Act.
02. After filing of the police report, cognizance of offence under section 25 Arms Act was taken by Ld. Predecessor of the Court and the accused was called upon to face trial after complying with the requirement of section 207 of Cr.P.C.
03. On 07.03.2008, charge was framed against the accused under section 25 Arms Act to which the accused pleaded not guilty and claimed trial.
04. Prosecution adduced evidence in support of its case. PW 1 HC Narender Kumar deposed that on 22.09.2005, he was posted as Duty Officer at PS Farsh Bazar. He registered the FIR Ex. PW 1/A and made endorsement on the rukka Ex. PW1/B.
05. PW-2 HC Neeraj is a recovery witness who deposed that on 22.09.05, he was posted as Constable at Police Station Farsh Bazar. He further deposed that on that day he alongwith Constable Kushal Pal was on patrolling duty in the area of Police Station. At about 08:30 p.m. at the instance of secret informer, they apprehended the accused present in the Court. On his formal search, one buttondar knife was recovered from the right dub of his pant. In the meantime, HC Krishan Chand, IO of the case also reached at the spot and he handed over the accused alongwith recovered case property to him. IO prepared the sketch of the knife Ex. PW 2/A. Knife was seized vide memo Ex. PW 2/B and sealed with the FIR No. 292/05 Page No. 2/11 seal of JSC and seal after use was handed over to him. IO recorded the disclosure statement of the accused which is Ex. PW2/C and prepared rukka on the statement of Ct. Kushal Pal and the same was handed over to him for registration of FIR. He went to police station for registration of FIR and came back at the spot alongwith copy of FIR and rukka and handed over the same to the IO. Accused was arrested vide arrest memo Ex. PW 2/D and personally searched vide memo Ex. PW 2/E. Case property was deposited in the Malkhana. PW 2 identified the accused in the court and case property Ex. P1. PW2 was cross examined by the Ld. Defence Counsel on opportunity being given.
06. PW 3 Head Constable Krishan Chand is Investigating Officer of the case who deposed that on 22.09.05, he was on patrolling duty in the area of PS. When he reached at Bansal Sweet house, near Babu Ram school, he met Ct. Kushalpal and Ct. Neeraj who handed over the accused present in the Court alongwith recovered knife. He asked 4-5 public persons to join the investigation but they all refused and left the spot without disclosing their names and addresses. He prepared the sketch of knife Ex. PW 2/A and seized the knife vide seizure memo Ex. PW-2/C and sealed with the seal of JSC. Seal after use was handed over to Constable Neeraj. He recorded the statement of Constable Kushalpal Ex. PW 3/A and prepared rukka Ex. PW 3/B and handed over the same to Constable Neeraj for registration of FIR. He prepared the site plan Ex. PW 3/C at the instance of Constable Kushalpal. He recorded the disclosure statement of the accused Ex. PW-2/C. He arrested the accused vide arrest memo Ex. PW 2/D and personally searched vide memo Ex.
FIR No. 292/05 Page No. 3/11PW 2/E. Case property was deposited in the Malkhana. PW 3 recorded the statement of witnesses under section 161 Code of Criminal Procedure. PW 3 identified the accused in the Court and the case property Ex. P1.
07. After closure of prosecution evidence, the statement of the accused was recorded u/s 313 of Code of Criminal Procedure, 1973. Incriminating evidence was put to the accused and he was questioned generally on the case. He 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 defence evidence.
08. I have gone through the rival submissions of both the parties as well as material on record carefully.
09. As per the prosecution version, there are two recovery witnesses PW 2 HC Neeraj and Constable Kushalpal. PW-2 HC Neeraj deposed in his testimony that on 22.09.05, he alongwith Constable Kushalpal was on patrolling duty in the area of Babu Ram School, Farsh Bazar, however no document / DD entry have been shown by which it can be proved that they were on patrolling duty in the concerned area.
For knowing the importance of the DD entry of arrival and departure of the police officials from the police station, I have perused Chapter 22 Rule 49 of Punjab Police Rules, 1934 which reads as under:
FIR No. 292/05 Page No. 4/11"22.49 Matters to be entered in Register No. II. The following matters shall, amongst others, be entered:
(c) The hour of arrival and departure on duty at or from a police station of all enrolled police officers of whatever rank, whether posted at all police station or elsewhere, with a statement of the nature of their duty. This entry shall be made immediately on arrival or prior to the departure of the officer concerned and shall be attested by the latter personally by signature or seal.
Note: The term Police Station will include all places such as Police Lines and Police Posts where Register No. II is maintained.
In the present case, the above said provision appears to have not been complied with by prosecution. As per the prosecution version, at the time of the apprehension of the accused with one buttondar knife in his possession, PW 2 and Constable Kushalpal were on patrolling duty at the relevant time but the DD entry vide which they had left the PS for patrolling duty has not been brought on record. PW 2 stated in his cross- examination that he does not remember the DD number vide which he left the police station for patrolling duty. The number of the said DD entry made in Register No. II has not even been brought on judicial record. In my opinion prosecution was under an obligation to prove on record, the above said DD entry vide which above said police officials had left the PS for patrolling duty, so as to prove the possibility of availability of prosecution witnesses at the place of apprehension of the accused. In the facts and circumstances of the case, the prosecution FIR No. 292/05 Page No. 5/11 ought to have proved the DD entry by which the above said police officials had left the PS so as to inspire the confidence regarding their availability / presence at the place of apprehension of the accused.
At this juncture, it would be relevant to refer to a case law reported as Rattan Lal versus State 1987 (2) Crimes 29 the Hon'ble Delhi High Court wherein it has been observed that:
"If the investigating agency deliberately ignores to comply with the provisions of the Act the courts will have to approach their action with reservation. The matter has to be viewed with suspicion if the provisions of law are not strictly complied with and the least that can be said is that it is so done with an oblique motive. This failure to bring on record, the DD entry creates a reasonable doubt in the prosecution version and attributes oblique motive on the part of the prosecution.
10. PW 2 HC Neeraj deposed that on 22.09.05 he alongwith Constable Kushalpal was on patrolling duty in the area of Police Station. At about 08:30 p.m. at the instance of secret informer, they apprehended the accused. On his formal search, one buttondar knife was recovered from the right dub of his pant. In the meantime, HC Krishan Chand, IO of the case also reached at the spot and he handed over the accused alongwith recovered case property to him. IO asked 3-4 public persons to join the investigation but they all refused and left the spot without disclosing their names and addresses. From his testimony, it is clear that he did not make any attempt to join public witnesses prior to recovery of the knife. PW 2 deposed that IO asked 3-4 persons to join the FIR No. 292/05 Page No. 6/11 investigation but they all refused and left the spot without disclosing their names and addresses. At that time, since the recovery had already been effected, there was no requirement of joining public witnesses as there was nothing left to be witnessed. It seems that the attempt to join public witnesses was a sham.
11. IO PW 3 Head Constable Krishan Chand has also not made any public witnesses of the recovery of the alleged knife despite the fact that alleged spot was a public area. In this regard, the explanation of the Prosecution witnesses is that none of the public persons agreed to join the investigation. The explanation given by the prosecution witnesses does not seem plausible because in the police report as well as the testimony of the prosecution witnesses, the names of the public persons, who were requested to join the investigations, have not been mentioned. IO has also not taken any action against such public persons who did not tender help to the public servant despite they were being under an obligation to render help on the legitimate request of the public servant.
I have also relied upon citation Sadhu Singh versus State of Punjab, (1997) 3 Crimes 55 (PH) wherein it is held that:
"there can be cases when public witnesses are reluctant to join or are not available. All the same, the prosecution must show a genius attempt having been made to join public witnesses. It is further held that a stereotype statement of non availability of any public witness will not be sufficient particularly when at the relevant time, it was not difficult to procure the services of public witness."FIR No. 292/05 Page No. 7/11
Keeping in view of the citation, I am of the considered view that prosecution has failed to show a genuine effort to make a public witness in regard of alleged recovery of case property from the possession of the accused.
12. There are other inconsistencies on the record which have not been explained. According to the deposition of Prosecution Witnesses, the case property was first seized and then rukka was prepared for registration of FIR. Thus according to the prosecution witnesses, FIR was registered after seizure of buttondar knife. However, the seizure memo bears 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. The existence of FIR number on seizure memo suggests that the seizure memo was prepared after the registration of FIR and is therefore, ante timed. This erodes the credibility of the witnesses who has stated that the seizure memo was prepared on the spot and before the registration of FIR.
In Lalji Shukla Vs. State (2000) 1 AD (Cr.) DHC, M.S.A. Siddiqui, J. of Delhi High Court observed as follows:
"4.....the prosecution has not offered an explanation whatsoever as to under what circumstances number of the FIR (Ex. PW6/B) has appeared on the top of the aforesaid documents, which were allegedly prepared on the spot before registration of the FIR. This give rise to two inferences that either the FIR (Ex PW6/B) was recorded prior to the alleged recovery of the contraband or number of FIR No. 292/05 Page No. 8/11 the FIR was inserted in these documents after its registration. In both the situations, it seriously reflects upon the veracity of the prosecution version given by the aforesaid witnesses and creates a good deal of doubt about recovery of the contraband in the manner alleged by the prosecution. That being so, the benefit arising out of such a situation must necessarily go to the appellant."
13. There are other contradictions in the testimony of prosecution witnesses which raises a serious doubt on the version of the prosecution. PW-2 deposed in his cross examination that knife was measured with the help of steel scale,whereas PW- 3 deposed in his cross examination that knife was measured with the help of iron scale. PW-2 in his cross examination stated that accused was arrested at 11:00 p.m. whereas perusal of the arrest memo Ex. PW-2/D reveals that accused was arrested at 09:00 p.m.
14. Also, no efforts whatsoever have been made by the prosecution to have clue about the source from where buttondar knife was arranged for by the accused. Atleast, some efforts must have been made by the police to interrogate the accused and conduct the requisite investigation to know as to from where the accused arranged the buttandar knife. It could be a result of either a hasty investigation or a shoddy investigation but in either case, the benefit should go to the accused.
15. In view of the aforesaid discussion, I am of the considered view that prosecution has failed to prove the guilt of the accused beyond FIR No. 292/05 Page No. 9/11 reasonable doubt. I hold that the accused is not found guilty of the charge framed against him and he is acquitted of the charge under section 25 Arms Act framed against him. Bail bond of accused and surety be discharged after six months in view of the section 437 A CrPC. After compliance file be sent to record room. Case property be confiscated to State as per rules and same be destroyed.
ANNOUNCED IN THE OPEN (MUNEESH GARG)
COURT ON 22.11.12 METROPOLITAN MAGISTRATE
KARKARDOOMA COURTS, DELHI
FIR No. 292/05 Page No. 10/11
State versus Bhupender
FIR No. 292/05
U/s 25 Arms Act
PS Farsh Bazar
22.11.2012
Present: Ld. APP for the State.
Accused on bail with counsel Sh. Roop Kishore from Legal Aid.
Final arguments heard.
Vide my separate judgment of even date, accused is acquitted of the charge under section 25 Arms Act. In compliance of u/s 437 A Cr.P.C., bail bond of accused, if any, is extended for the prescribed period.
Documents, if any, be released after cancellation of endorsement to the person entitles. File be consigned to record room after compliance.
(Muneesh Garg) MM/KKD/22.11.2012 FIR No. 292/05 Page No. 11/11