Delhi District Court
State vs . Ruben @ Robin on 14 May, 2011
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IN THE COURT OF MS. MONA TARDI KERKETTA, MM02 (SE)
SAKET COURTS COMPLEX
STATE VS. RUBEN @ ROBIN
FIR NO. : 05/10
P.S. : AMAR COLONY
U.S. : 25/54/59 ARMS ACT
Date of institution of case : 22.03.2011
Date on which case reserved : 14.05.2011
for judgment
Date of judgment : 14.05.2011
JUDGEMENT U/S 355 Cr.P.C
.:
a) Date of offence : 05.01.2010
b) Offence complained of : 25/54/59 Arms Act
c) Name of accused, his : Ruben @ Robin S/o Sh. Inos Meseh
parentage & residence R/o H.No. 952, PhaseI, Gautam Puri, Aligarh,
Badarpur, New Delhi.
d) Plea of accused : Not Guilty.
e) Final order : Acquitted
BRIEF REASONS FOR THE JUST DECISION OF THE CASE:
1.In brief the case of prosecution is that on 05.01.2010 at about 04.10 PM at DDA park, Sapna cinema, Mata Kalka Devi Marg, within the jurisdiction of PS Amar Colony, accused was found in possession of one buttondar knife having blade length of 14 CM and total length of 30 CM, without any valid license and in contravention of the notification of Delhi administration and thereby accused committed an offence punishable u/s 25 Arm Act. Accused was arrested in the present case. However, later on, he was released on bail by the court order being involved in a nonbailable offence.
State Vs. Ruben @ Robin FIR No. 05/10, PS Amar Colony
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2. After completion of investigation charge sheet was filed against the accused in the court. Cognizance of the offence was taken against him by the Ld. Predecessor of this court and accused was summoned to face the trial for the offence allegedly committed by him. Charge for the offence punishable u/s 25 Arms Act was framed against the accused on 25.10.2010 to which he had pleaded not guilty & claimed trial.
3. In order to substantial its version, prosecution examined three witnesses.
4. PW1 HC Tek Chand deposed that he was working as duty officer on 05.01.2010 at PS Amar Colony having his duty hours from 4.00 PM to 12.00 midnight. He had proved the carbon copy of FIR as Ex. PW1/A and his endorsement on the rukka as Ex. PW1/B.
5. PW2 Ct. Jasbir Singh deposed that on 05.01.2010, he was on patrolling duty in the area of Sapna Cinema Chowk . When he reached near DDA park, Sapna Cinema, he found one person jumping the wall. He stopped the said person but he started running away and was apprehended. On his cursory search one buttondar knife was recovered from the right side pocket of his trousers. He further deposed that he informed about the incident at PS Amar colony. On information, HC Subhash came at spot. Thereafter, IO HC Subhash put the said knife on a white paper and prepared a rough sketch Ex. PW2/A and put the said knife in a white cloth pullanda and sealed it with the seal of 'SC'. The same was seized vide seizure memo Ex.PW2/B. Thereafter, rukka was prepared and was handed over to him for registration of the case. After registration of the FIR, he came back at the spot along with the FIR and original rukka, thereafter, IO arrested the accused vide memo Ex.PW2/C and conducted the personal search of accused vide memo Ex.PW2/D and recorded the statement of accused Ex.PW2/E. Witness correctly identified the accused as well as the case property as Ex P1.
State Vs. Ruben @ Robin FIR No. 05/10, PS Amar Colony
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6. During crossexamination by Ld. Defence counsel , he deposed that at the departure of patrolling duty, DD entry is usually done in the morning. However, he did not remember the DD entry number of the present case. He denied the suggestion that he departed for patrolling duty without making any DD entry. He further deposed that he signed the seizure memo and the sketch of knife at about 04.15 PM and thereafter he took the rukka at about 05.30 PM. He further deposed that he could not say as to how many public persons were present at the spot and also that no public person was made to join the investigation despite their availability and admitted that some public persons were coming and going at the spot. He also admitted that he had not offered his search to the accused before conducting the search of the accused. He stated that he could not say if the seized knife is easily available in the market. He also deposed that he did not remember whether any fingerprint impressions of the accused person had been lifted by the IO or not. He denied the suggestion that he was intentionally hiding the fact about the lifting of fingerprints impressions of the accused by IO and that no knife was recovered from the accused.
7. PW3 ASI Subhash Chand deposed on the lines of PW2. He proved the site plan Ex.PW3/A. He also correctly identified the accused and the case property Ex P1.
8. During crossexamination by Ld. Defence counsel, he deposed that first of all, seizure memo of the knife was prepared at about 04.30 PM and that Ct. Jasbir came back to the spot with rukka after registration of the FIR at about 05.45/06.00 PM. He denied the suggestion that all the documents were prepared by him at police station. He admitted that the knife was in a rusted condition and this kind of knife are not usually available in the market. He further denied the suggestion that he did not investigate the matter properly.
9. Thereafter, PE was closed as there was no other witness to be examined.
State Vs. Ruben @ Robin FIR No. 05/10, PS Amar Colony
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10. Accused was examined u/s 313 r/w section 281 Cr.PC and all the incriminating evidences appearing on record against him had been put, to which he denied as false and incorrect and stated that he had been falsely implicated in this case however, he preferred not to lead evidence in his defence.
11. During the course of arguments, Ld. Defence Counsel submitted that keeping in view the contradictions appearing in the testimonies of PWs, the guilt of accused does not stand proved beyond reasonable doubt. He also pointed out towards following irregularities committed during the investigation and also relied upon the various judgments:
Firstly, no independent public persons were made to join the entire investigation proceeding.(Narsi Vs state Of Haryana,1998(8) Supreme 435). Secondly, if the police officer is arresting an accused and recovering the case property as well as lodging the FIR as complainant. He should not proceed with the investigation being the complainant.(Mahesh Vs state of MP, 2009(3) crimes 337(MP).
Thirdly, no DD entries have been placed on record to establish the departure and arrival of the said police officials on patrolling.(Pappu alias Irfan Vs State of UP, 2005[1] JCC [Narcotics]31).
Fourthly, a perusal of record reveals that the recovery/seizure memo bears the FIR number although this document was prepared prior to registration of FIR. It has not been explained as to how and under what circumstances, FIR number appeared on the recovery memo. This also creates a suspicion regarding the recovery of the alleged knife.(Lalji Shukla Vs State,2000(2)JCC424(Delhi). Fifthly, the identity of the knife is in doubt. The buttondar knife allegedly recovered from the possession of accused was neither sent for chemical analysis nor fingerprints were lifted from the knife for the purpose of comparison by the expert. (Bishnu Vs.State,1996 JCC 469).
Sixthly, the IO did not offer his personal search before effecting the search of the accused.((Resham singh Vs state,1981 CRI.LJ 1691).
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12. Ld. Public Prosecutor on the other hand, argued that the testimonies of Police witnesses can not be discarded completely. Their testimonies are equally reliable in view of judgment of titled as Mohd. Akbar Butt Vs. State 138(2007) DLT 43(DB).
13. I have heard the arguments of Ld. Public Prosecutor and Ld. Defence Counsel and have also gone through the entire record.
12. After appreciation of the testimonies of the witnesses as well as the material placed on record by the prosecution, I have no hesitation in holding that the prosecution has miserably failed to prove the case against the accused beyond reasonable doubt for the following reasons:
(I) No independent/public witness joined the investigation to witness the recovery, search or other proceedings despite their availability. No written notice was given either who refused to join the investigation. The failure on the part of the prosecution to join public witnesses especially when they are available also casts a doubt on the prosecution story. It is true that the testimonies of police witnesses can not be discarded completely however, no plausible explanation has come either on behalf of the prosecution for non joining of independent witnesses. Reference may be made to the judgment titled as PREM SINGH VS. STATE, 1996 Crl. L.J. 3604, PAWAN KUMAR VS. DELHI ADMN 1989 Crl. L.J. 127 (Delhi HC), NANAK CHAND VS. STATE OF DELHI, 1992 Crl. LJ 55 (Delhi HC). Hence, NonJoinder of public/independent witnesses casts a serious doubt over the truthfulness of the prosecution case.
(II) No efforts were made to handover the seal to independent public persons after its use. The seal remained with the police officials only. The handing over of the seal to public witness has not been proved hence it cannot be ruled out that the opportunity to tamper with the case property was very much there as the seal remained within the possession of police officials. This also creates a doubt upon State Vs. Ruben @ Robin FIR No. 05/10, PS Amar Colony 6 of 7 the prosecution story. Reference may be made to the judgment titled as "Prem Singh Vs. State" reported as 1996 CRI. L. J/ 3604 in this respect.
(III) I find force in the submissions of Ld. defence counsel with reagrd to the points discussed at para 13. The irregularities committed while conducting the proceedings of the present as pointed out by the defence counsel renders the prosecution version doubtful. The prosecution is duty bound to stand on its own legs by proving the case against the accused beyond reasonable doubt and this burden can not be shifted. There is nothing on record to show at what time the police personnel proceeded for patrolling duty. Strangely none of the witness could tell as to what time they proceeded for such patrolling. It is also not on record to prove that the concerned IO had offered his personal search for effecting the search of the accused. The necessary inference can be easily drawn that the legal formality of search was not observed before recovery of the Knife from the accused.
(IV) Furthermore, no explanation has come from the prosecution that as to how the rukka and seizure memo bear the FIR number. The number of FIR given on the top of the aforesaid documents clearly indicates that these documents were prepared at the same time. It seriously reflects upon the veracity of the prosecution story. Also the fact that the alleged recovered knife was not sent for chemical analysis nor the fingerprints lifted from it, makes the identity of the knife doubtful.
13. However, this court finds the defence argument untenable that if the police officer is arresting an accused and recovering the case property as well as lodging the FIR as complainant. He should not proceed with the investigation being the complainant. It was correctly pointed out by the prosecution that the investigating officer and the informant or the complainant in the present case are two different police personnel.
14. The onus and duty to prove the case against the accused is upon the prosecution and the prosecution must establish the charge beyond reasonable doubts. It is the cardinal principle of criminal jurisprudence procedure that if there is a reasonable doubt with regard to the guilt of the accused, the accused is entitled to the benefit of State Vs. Ruben @ Robin FIR No. 05/10, PS Amar Colony 7 of 7 doubt.
15. Hence, this court is of the view that prosecution has failed to bring such material on record which would have gone to establish the guilt of the accused beyond reasonable doubt holding him guilty for the offence alleged to have been committed by him resulting into his conviction and sentence. The accused is accordingly acquitted from the charge of offence u/s 25 of Arms Act. File be consigned to record room after due compliance.
Announced & Dictated in (Mona Tardi Kerketta)
the Open Court on 14.05.2011 MM02/SouthEast
Saket Courts Complex,
New Delhi
State Vs. Ruben @ Robin FIR No. 05/10, PS Amar Colony