Delhi District Court
Vide This Judgment This Court Shall ... vs State Of on 8 February, 2013
1
IN THE COURT OF MS. SAUMYA CHAUHAN,
METROPOLITAN MAGISTRATE, SOUTH EAST DELHI, SAKET
State v. Dilshad
FIR No.357/2007
PS HNDIN
U/s 25/54/59 Arms Act.
JUDGMENT
C C No. : 714/10/10
Date of Institution : 11.07.2007
Date of Commission of Offence : 22.06.2007
Name of the complainant : Ct. Krishan Kant
Name & address of the accused : Dilshad @ Dillu
S/o Allahanoor
R/o 32-33 Ki Jhuggi, E-36/391
Trilok Puri, Delhi
Offence complained of : U/s 25/54/59 Arms Act
Plea of accused : Pleaded not guilty
Final Order : Acquitted
Date of reserve for judgment : 08.02.2013
Date of announcing of judgment : 08.02.2013
BRIEF STATEMENT OF THE REASONS FOR THE DECISION
1. Vide this judgment this court shall dispose of the present case u/s 25/54/59 Arms Act.
State v. Dilshad U/s 25/54/59 Arms Act FIR No. 357/2007 , PS HNDIN 2
2. The story of the prosecution is that on 22.06.2007 at about 1.30 pm at Ganda Nala, near Maruti Training Center, New Delhi, within the jurisdiction of PS HNDIN, the accused Dilshad was found in possession of one buttondar knife without any license or permit in contravention to notification issued by the Delhi Administration and thereby committed an offence under Section 25 Arms Act. The knife was seized and taken into possession by the police. After completing the formalities, investigation was carried out.
3. Charge sheet was filed against the accused in the court. Documents were supplied to the accused and thereafter charge under Section 25/54/59 Arms Act was framed against him vide order dated 20.10.2008 to which he pleaded not guilty and claimed trial.
4. In order to prove the charge against the accused, the prosecution examined three witnesses namely (1) HC Dinesh Tyagi (2) Ct. Ravinder (3) Ct. Krishan Kant.
5. PW-1 HC Dinesh Tyagi deposed that on 22.06.2007 he was posted at police post Sarai Kale Khan PS HNDIN as HC when he received DD No. 17 at police post Sarai Kale Khan regarding recovery of the knife from a person near nala opposite Maruti Training Centre. Thereafter he went to the spot alone. There, Ct. Krishan Kant met him. He had apprehended one State v. Dilshad U/s 25/54/59 Arms Act FIR No. 357/2007 , PS HNDIN 3 person. He produced one knife and stated that the same was recovered from the possession of the accused. Thereafter he requested the public persons to join the investigation but none agreed and left the spot without disclosing their names and addresses. The name of the apprehended person disclosed as Dilshad. He prepared the sketch of the knife on blank paper vide memo Ex. PW1/A. The total length of knife was 23.5 cm, blade was 10.5 cm, handle was 13 cm and the width of blade was 2.5 cm. He deposed that the said knife was closed and sealed in the pullanda with the seal of DK. Seal after use was handed over to Ct. Krishan Kant. Pullanda was seized vide seizure memo Ex.PW1/B. He recorded the statement of Ct. Krishan Kant which is Ex. PW1/C. He prepared the rukka Ex. PW1/D and handed over to Ct. Krishan Kant for registration of FIR. After registration of FIR, Ct. Krishan Kant returned back to the spot along with copy of FIR and Rukka and handed over the same to him. He prepared site plan Ex. PW1/E at the instance of Ct. Krishan Kant. Thereafter, the accused was arrested and his personal search was conducted vide memo Ex. PW1/F & G which bear the signature of witness at point A respectively. Accused was sent behind bar after medically examined. He further deposed that one mobile phone and purse was recovered from the State v. Dilshad U/s 25/54/59 Arms Act FIR No. 357/2007 , PS HNDIN 4 possession of the accused in the personal search. On asking of the mobile phone, accused could not give any satisfactory answer and disclosed that it was pick pocketed in the bus. He seized the recovered mobile vide seizure memo Ex. PW1/H . He recorded the statement of witnesses and deposited the case property in the Malkhana. He identified knife Ex. P1 in the court. He also identified one mobile phone make Nokia Ex. P2 in the court.
6. PW-2 Ct. Ravinder deposed that on 22.06.2007 he was posted as DD writer at police post Sarai Kale Khan PS HNDIN. At about 1.40 pm he received a telephonic information of recovery of knife at Ganda Nala. He reduced the same information in writing vide DD No. 17 Ex. PW2/A and handed over the same to HC Dinesh Tyagi.
7. PW-3 Ct. Krishan Kant deposed that on 22.06.2007 he was posted at police post Sarai Kale Khan PS HNDIN as constable. He deposed that on that day, he was on patrolling duty at beat area, Sarai Kale Khan, Delhi. At about 1.35 pm, he reached at the ganda nala near Maruti Training Centre, there he saw that one young boy was coming towards him and on seeing him, he suddenly stopped and started running in opposite side. Thereafter, he chased and apprehended him after chasing 10-15 steps. Name of the State v. Dilshad U/s 25/54/59 Arms Act FIR No. 357/2007 , PS HNDIN 5 said person disclosed as Dilshad. On cursory search of the accused, one buttondar knife was recovered from the right side pocket of his wearing pant. He gave said information to the police post Sarai Kale Khan by telephone. On that information HC Dinesh Tyagi reached at the spot. He handed over the recovered knife and the accused to HC Dinesh Tyagi. Thereafter he corroborated the testimony of PW-1. He also identified the accused and the case property in the court.
8. The PE was closed and statement of accused was recorded wherein the accused pleaded innocence and stated that he was falsely implicated in this case. Accused did not lead DE.
9. I have heard the arguments addressed by the Ld APP for state and the Ld. Counsel for accused and carefully perused the documents on record.
10.From the overall testimony of the witnesses, it is clear that the IO has not joined any public witness at the time of arrest or while completing the formalities. Infact, not even an effort was made to join the public witnesses. There is a possibility that it was a chance recovery, however, at the time and place from where the accused was apprehended and when the formalities were being completed, there must be public persons around as it was a public place and it was not too late in night. All the witnesses State v. Dilshad U/s 25/54/59 Arms Act FIR No. 357/2007 , PS HNDIN 6 examined are police witnesses. This casts a doubt about the sincere efforts made by the IO to join independent witnesses.
11.In Roop Chand v. 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. In case of Pradeep Narayana V. State of Maharashtra reported AIR 1995 Supreme Court 1930, it was 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. Similarly it was held in the case of Kuldeep Singh V. State of Haryana 2004(4) RCR 103 and Passi @ Prakash V. State of Haryana 2001(1) RCR 435, it is settled law that whenever any recovery in connection with the place of the commission of offence is made, public person must be made witness.
12.The Section 100(4) CrPC provided that "before making a search of the officer or other person about to make it shall call upon the two or more independent and respectable inhabitants of the locality in which the place to be searched is situated or any other locality if no such inhabitant of the said locality is available or is willing to be a witness of the search, to attend the witness the search and may State v. Dilshad U/s 25/54/59 Arms Act FIR No. 357/2007 , PS HNDIN 7 issued an order in writing to them or any of them so to do".
13.In the present case, the IO has even failed to note down the particulars of the person who refused to join the investigation and this creates doubt regarding the fairness of the investigation. The chances of false implication cannot be ruled out.
14.It has also been noticed that the recovery memo and other documents were prepared before the registration of FIR. When documents are prepared before registration of FIR, it contains the FIR number, and interference has to be drawn that either FIR was recorded prior in time or the documents were prepared later on and in such cases, benefit of doubt is to be given to the accused.
15.All the lapses in investigation creates doubt on the very recovery of the buttondar knife from the possession of the accused. The court is of the considered view that prosecution has not been able to prove the guilt of accused beyond reasonable doubt.
16.In view of the above discussion, the court is of the view that prosecution has failed to prove its case beyond reasonable doubt. Accordingly, accused Dilshad is acquitted.
State v. Dilshad U/s 25/54/59 Arms Act FIR No. 357/2007 , PS HNDIN 8
17.As per section 437-A of the Cr.P.C, as amended vide the Amendment Act, which came into force on 31.12.2009, the accused as well as the surety shall remain bound by the personal and the surety bond respectively for a period of six months from today. File be consigned to Record Room.
Announced in the open court (SAUMYA CHAUHAN)
on 08.02.2013 METROPOLITAN MAGISTRATE
SOUTH EAST/SAKET COURT/NEW DELHI
State v. Dilshad U/s 25/54/59 Arms Act
FIR No. 357/2007 , PS HNDIN