Delhi District Court
State vs . Raja And Others on 7 July, 2011
IN THE COURT OF SH. SAMAR VISHAL, METROPOLITAN MAGISTRATE05,
SOUTHEAST DISTRICT, NEW DELHI
STATE VS. Raja and others
FIR NO: 154/07
P. S. Ambedkar Nagar
U/s 25 Arms Act
JUDGMENT
Sl. No. of the case and : 123/3 (14.10.2010)
Date of its institution : 28.9.2007
Name of the complainant : SI Neeraj Chaudhary
Date of Commission of offence : 20.2.2007
Name of the accused : 1. Rakesh @ Anna
2. Raja
Offence complained of : Section 25 Arms Act
Plea of accused : Not guilty
Case reserved for orders : 7.7.2011
Final Order : AQUITTED
Date of Judgment : 7.7.2011
BRIEF STATEMENT OF FACTS FOR THE DECISION:
1. This is the trial of the accused persons namely Raja and Rakesh upon the police report filed by P.S. Ambedkar Nagar u/s 25 Arms Act.
State Vs. Raja and other Page 1/9 FIR no. 154/07
2. The prosecution story is that on 24.2.2007 at about 8 pm at near Aggarwal Sweets Khanpur, T point, New Delhi both the accused persons were found in possession of a buttondar knife having total length of 23.5 cm, length of blade 10.5 cm, and length of handle 13 cm respectively without any valid license in contravention of Notification of Delhi Administration and he thus thereby committed an offence punishable under Section 25 Arms Act.
3. After completing the formalities, the investigation was carried out in pursuance of which, the chargesheet u/s 25 Arms Act. The charge was framed against the accused persons u/ s 25 Arms Act to which they pleaded not guilty and claimed trial.
4. Thereafter, in order to prove its case, the prosecution has examined only one witness.
5. PW 1 is HC Rajesh who deposed that on 24.2.2007, he along with SI Neeraj, HC Rajesh no.3282 SD, HC Raj Kumar, SC Prem Jeer were on patrolling duty in the area. At about 7.30 am they were present near Khanpur T point. Secret informer arrived there and delivered his secret information that 23 madrasi type boys would arrive from the side of Madangir headed towards Saket and they are involved in the commission of theft from vehicles parked at parking of the market and the cars stopped at red light. They were habitual thieves of bag, suitcase and other jewellery items. They were also State Vs. Raja and other Page 2/9 FIR no. 154/07 in the possession of knives etc. This information was further transmitted by SI Neeraj Kumar to Inspector Special Staff who directed for appropriate action promptly. Thereafter, SI Neeraj requested to 45 passerby to join the raiding team but they refused to joint the same by showing their reasonable inability and left the spot without disclosing their names and addresses. At about 8 pm secret informed arrived with police party who made a signal towards two boys who were coming from the side of Madangir on foot by saying that these are the same boys who were involving in the thefts of vehicles. Both the boys were apprehended near the Aggrawal Sweets. He along with SI Neeraj apprehended one boy who revealed his name as Rakesh @ Anna @ Madrasi and on his checking one buttondar knife was recovered from his right dub of his pant. Blade of the knife was made of steel type metal and handle was made of alluminium type metal whereon flower and leaves were engraved with red and blue colour. Thereafter, knife was measured and total length of the knife was of 23.5 cm, length of blade of 10.5 cm and width of blade was 2.5 cm. On the blade of the knife Rajhans Rampur was written. Button was made up of brass. Sketch of the knife was prepared, same is Ex.PW1/A which bears his signatures at point A. Thereafter knife was seized by putting the same in a white cloth vide memo Ex.PW1/B which bears his signatures at point A. The boy who was apprehended by HC Raj Kumar revealed his State Vs. Raja and other Page 3/9 FIR no. 154/07 name as Raja and on checking one buttondar knife was recovered from the right dub of his pant. Blade of the knife was made up of steel type metal and handle was made up of alluminium type metal whereon flowers and leaves were engraved with red and blue colour. Button was made up of brass. Thereafter knife was measured and the total length of the knife was 23.5 cm and length of blade was 10.5 cm and width was 2.5 cm. Sketch of the knife was prepared and thereafter seized. Both the knives were seized with the seal NK. Seal after use was handed over to HC Prem Jeet. Thereafter rukka was prepared by SI Neeraj Kumar and handed over it to HC Prem Jeet for the registration of the case. Accordingly he had gone to the PS and after getting registration HC Prem Jeet returned back at the spot along with copy of FIR. During the course of investigation site plan was prepared by SI Neeraj Kumar. Accused Raja and accused Rakesh made a disclosure statement wherein they confessed their guilt, same were recorded by IO in his presence vide memo Ex.PW1/C and PW1/D respectively, both the statements bears his signatures at point A as a witness. Thereafter, accused Rakesh got effected the recovery of laptop and jewellery, same were seized by the IO vide memo Ex.PW1/E and Ex.PW1/F respectively which bears his signatures at point A. Both the accused Rakesh and Raja were arrested. Rakesh was arrested vide memo Ex.PW1/G which bears his signatures at point A and his personal search was State Vs. Raja and other Page 4/9 FIR no. 154/07 carried out vide memo Ex.PW1/H which bears his signatures at point A. (Accused persons have been correctly identified by the witness in the Court).
6. After recording the evidence of this witness, the prosecution evidence was closed. The accused was examined under the provision of section 313 Cr.P.C. and all the incriminating evidence were put to him to which accused persons answered that it is incorrect. Although, he stated that he does not want to lead defence evidence.
7. I have heard the Ld. APP for State and counsel for accused and perused the record.
8. It is argued by the Ld. APP for State that the case has been proved against the accused and he should be convicted.
9. In this case, the prosecution has examined one witness and he has completely supported the prosecution story. He has not been cross examined by the accused probably due to the financial incapacity of the accused.
10. As far as the case of the prosecution is concerned, the accused was apprehended with the knife which he could not hold without valid license.
11. After going through the complete evidence and records of this case I am of the view that the accused deserves acquittal in this case on the following grounds.
12. Firstly, if the police personnel who has apprehended the accused with State Vs. Raja and other Page 5/9 FIR no. 154/07 the knife was on patrolling duty, prosecution should have brought the relevant records showing their arrival and departure and should have proved by documentary evidence that he was on patrolling duty by producing DD entry for the same.
13. As per chapter 22 rule 49 of the Punjab Police Rules, which is reproduced as under;
"Chapter 22 rule 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 the 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.
15. In view of this rule, while deposing none of the prosecution witnesses has told that by what entry in the register no. II, they were patrolling in the particular area. In the present case also this provision has not been complied with by the prosecution witnesses. The relevant entries regarding the arrival and departure of the police officials has not been proved on record. It has been held in Rattan Lal Vs. State 1987 (2) Crimes 29 the Hon'ble Delhi Hgih Court held that;
"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 State Vs. Raja and other Page 6/9 FIR no. 154/07 approach their action with reservations. 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 entries creates a reasonable doubt in the prosecution version and attributes oblique motive on the part of the prosecution."
Apart from this, their presence at the spot is not proved. If they had departed from PS for patrolling duty the entry to this effect must exist in the Roznamancha but that has not been proved, raising an adverse presumption against the prosecution U/s 114 (g) of the Evidence Act that if the said Roznamancha had been produced it would have not shown their departure as all.
16. The next defence is that the public witness are not joined in the investigation. From the overall testimony of the witness, it appears that no effort, what to talk of a sincere/vague effort has been made to join the public persons in the investigation. All the witnesses examined by the prosecution are the police witnesses. Not even a single public witness has been examined by the prosecution not joined in the investigation and no reason has been put forward by the prosecution witnesses that for what reason they are unable to gather support from public or independent witnesses to establish the guilt of the accused. Although, it can be said that it was a chance recovery but the incident had occurred at 8 pm in the evening and at that time from a busy locality and therefore, it cannot be said that no public person would have been available at the spot and even if the prosecution has not the public witnesses it was incumbent upon the prosecution to at least put forward the reasons for not doing so. The failure on the pat of the police personnels goes to suggest that they were not interested in joining the public persons in the police proceedings. Failure on the part of State Vs. Raja and other Page 7/9 FIR no. 154/07 the police officials to make sincere effort to join public witnesses for the proceedings when they may be available creates reasonable doubt in the prosecution story in view of the following case law. In the case of Anoop Joshi Vs. State 1992 (2) C.C. Cases 314 (HC), Hon'ble High Court of Delhi has observed as under;
" It is repeatedly laid down by this Court that in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evident that no such sincere efforts have been made, particularly when we find that shops were open and one or two shop keepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the shopkeepers had declined to join the raiding party, the police could have later on taken legal action against such shopkeepers because they could not have escaped the rigours of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC."
17. During the investigation of the case no public witnesses were joined nor there are seems to be any sincere efforts made in this regard, when it was possible to do so, which makes the case of the prosecution weak and suspicion. Since all the witnesses are police personnels and the necessary safeguards in the investigation has not been followed by the investigating officer, I am of the view that chances of false implication cannot be ruled out at the instance of the police. Knife is such a small thing which can be hidden in a pocket and easily available in market thus can be easily planted.
18. It has been observed by Hon'ble High Court of Delhi in Karambir Vs. State 1997 JCC 520 that "In this regard it was also pointed out that Moharrar Malkhana with whom State Vs. Raja and other Page 8/9 FIR no. 154/07 the case property was deposited, was not examined by the prosecution. Besides it was further pointed out by the learned counsel for the petitioner that the Investigating Officer, RW 3 had not stated that he had deposited the specimen impression of the seal with the Moharrar Malkhana alongwith the case property".
19. Not only this, the seal after its use was not handed over to some independent person till the deposition of the knife in the Malkhana and tampering of the seal or its reuse also cannot be ruled out. The prosecution although, has tried to prove its case but there is still a reasonable doubt regarding the false implication of the accused in the hands of the police. The benefit always goes to the accused and therefore.
It is true evidence is to be weighed and not counted but in this case whatever evidence has been produced by the prosecution is not sufficient to fortify the edifice of the prosecution case and the prosecution has failed to prove all the links. In case where the prosecution has failed to prove all the links, the benefit of doubt has been given to the accused . In my this view prosecution failed to prove all the links. In view of above, I hold that prosecution has failed to prove its case beyond reasonable doubt
20. On the basis of aforesaid discussions, it is held that the prosecution is failed to prove its case beyond reasonable doubt, hence the accused is acquitted of the offence u/s 25 of Arms Act. Personal bond filed by him and surety bond filed by the surety shall remain operative for a further period of six months.
Announced in the open court (Samar Vishal)
on 7 July, 2011
th
Metropolitan Magistrate05,
South East, New Delhi
State Vs. Raja and other Page 9/9 FIR no. 154/07