Delhi District Court
State vs . Rakesh Kumar on 9 August, 2012
FIR No. 332/09
PS Kalkaji
dt. 09.08.12
Page no.1
IN THE COURT OF SHRI DEEPAK WASON
METROPOLITAN MAGISTRATE: SAKET COURTS: NEW DELHI.
FIR No. 332/09
U/s. 25/54/59 Arms Act
PS: Kalkaji
State vs. Rakesh Kumar
Date of Institution of case:- 20.08.09
Date of Judgment reserved:- 09.08.12
Date on which Judgment pronounced:- 09.08.12
JUDGMENT
Unique Id. no. of case :02403R0355972009 Date of commission of offence :19.08.09 Name of complainant :Sub-Inspector Darshan Singh, No. D-720, PS Kalkaji, New Delhi.
Name and address of accused :Rakesh Kumar S/o. Sh. Mohan Lal R/o.
House No.1174, Dakshin Puri, New Delhi.
Offence complained of :25/54/59 Arms Act Plea of accused :Pleaded not guilty Date of order :09.08.2012 Final order :Acquitted BRIEF REASONS FOR DECISION:
1. The story of the prosecution in brief is as under:-
The accused has been sent to face trial under Section 25/54/59 Arms Act on the allegations that on 19.08.09 at about 4.45 p.m. at Desh Bandhu College, in front of Kalkaji Park, New Delhi, he was found in possession of a buttondar knife having total length of 24 cm and length of blade 11 cm and that of handle 13 cms without any license or permit in contravention of notification issued by Delhi Administration and on the basis of the said allegations, the present FIR bearing no.332/09 was registered at Police station Kalkaji and the accused has been charged with the offence under Section 25/54/59 Arms Act.
Contd..../-
FIR No. 332/09PS Kalkaji dt. 09.08.12 Page no.2
2. After investigation, charge sheet was filed against the accused. The copies of charge sheet were supplied to the accused in compliance of Section 207 Cr.P.C. and charge U/s. 25/54/59 Arms Act was framed against him vide order dated 16.11.09, to which he has pleaded not guilty and claimed trial.
3. In support of its version, the prosecution has examined two witnesses out of five witnesses as mentioned in the list of witnesses.
4. PW 1 is Constable Pradeep Dagar. He has deposed regarding the proceedings conducted by the IO. He was cross examined by accused.
5. PW 2 is Sub-Inspector Darshan Singh. He is the Investigating officer (IO) of the case and has deposed that on 19.08.09, he alongwith Ct. Pradeep Kumar were on patrolling duty. He has further deposed that at about 4.45 p.m. when they reached near a park at Deshbandhu College, accused was coming from park side. He has further deposed that on seeing them, he turned back and started moving fastly. He has further deposed that on suspicion, he apprehended the accused Rakesh after chasing him. He has further deposed that he requested 3/4 public persons to join the investigation, but they refused to join and left the spot without disclosing their names and addresses. He has further deposed that on formal search, he found one buttondar knife in the right side of wearing pant. He has further deposed that he measured the knife, Contd..../-
FIR No. 332/09PS Kalkaji dt. 09.08.12 Page no.3 prepared sektch memo & pullanda of the same, sealed the same with the seal of DS, seized the case property, prepared rukka, got the FIR registered through Ct. Pradeep Kumar, arrested the accused and conducted his personal search. He has further deposed that he prepared the site plan. He was cross examined by accused.
6. As far as notification is concerned, I take the judicial notice of the same.
7. After examining the abovesaid witnesses, prosecution evidence was closed vide order dated 13.07.12.
8. Subsequent to the recording of statement of witnesses, memorandum of statement of accused was recorded and all the incriminating evidence coming on record was put to the accused in which he has submitted that he has been falsely implicated in the present case. He has further submitted that he does not wish to lead any defence evidence and final arguments were heard.
9. I have heard the arguments of Ld. APP for the state, Ld. Legal aid counsel as well as perused the record.
10. In the present matter, the accused has been charged for the offence U/s. 25/54/59 of Arms Act and to convict the accused, the prosecution has to prove that the accused was found in possession of a buttondar knife, as alleged.
11. In the present matter, it has come in the evidence of Contd..../-
FIR No. 332/09PS Kalkaji dt. 09.08.12 Page no.4 witnesses that public persons were asked to join investigation but they left without disclosing their identities. Further, it has also come in his cross examination of PW 2 that he had not given any written notice to the public witnesses. In these circumstances like the present one, the police officials should have made an effort to join public witnesses during the recovery proceedings and if public persons would have refused to assist the members of the police party, they could have served the said public witnesses with a notice in writing to join the police proceedings. This thing has not been happened in the present case.
12. In a case law reported as "Roop Chand Vs. The State of Haryana" 1999 (1) C.L.R. 69, the Punjab & Haryana High Court held as under:-
"4. It is well settled principle of the law that the Investigating Agency should join independent witnesses at the time of recovery of contraband articles, if they are available and their failure to do so in such a situation casts a shadow of doubt on the prosecution case. A police officer conducting investigation of a crime is entitled to ask anybody to join the investigation and on refusal by a person from the public the Investigating Officer can take action against such a person under the law. Had it been a fact that the witnesses from the public had refused to join the investigation, the Investigating Officer must have proceeded against them under the relevant provisions of law. The failure to do so by the police officer is suggestive of the fact that the explanation for non-joining the witnesses from the public is an after thought and is not worth of credence. All these facts taken together make the prosecution case highly doubtful".
Hence, in view of the law discussed above, it casts a Contd..../-
FIR No. 332/09PS Kalkaji dt. 09.08.12 Page no.5 shadow of doubt in the prosecution case.
13. Further, as per the deposition of PW 1 & 2 on 19.08.09, they were on patrolling duty meaning thereby that at the time they were not in the police station. Be that as it may, now if the said police officials were not present within the P.S. at the time of the alleged recovery and rather admittedly were outside the police station, then as per Punjab Police Rules, they being on duty were required to enter their departure & arrival to & from the P.S. Kalkaji in the D.D. Register of the said P.S. As per Chapter 22 Rule 49 of Punjab Police Rules, 1934:-
"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 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 personality by signature or seal.
Note:- The term police Station will include all places such as Police Lines & Police Posts where Register No. II is maintained.
14. Now, in the present case clearly the above said provision appears to have not been complied with in respect of the departure and arrival of PW 1 & 2 from and to the police station Kalkaji. The prosecution has produced no evidence whatsoever on record in the nature of documentary evidence of the required D.D. entries, so as to establish the presence of PW 1 & 2 at or near the place of the recovery on 19.08.09.
Contd..../-
FIR No. 332/09PS Kalkaji dt. 09.08.12 Page no.6
15. In the facts and circumstances of the case, the prosecution ought to have brought on record & prove the aforementioned DD entries by which the PW 1 & 2 had left the PS before the recovery and by which they had arrived at the P.S. after the recovery, so as to inspire the confidence of the Court regarding their availability/presence at the place of apprehension of the accused, since the said police officials were under bounden duty to enter their departure & arrival from/at the police station by making a D.D. Entry in that respect as per the aforesaid mentioned P.P. Rule. Hence, it also creates doubt in the prosecution story.
16. In the present case, no efforts were made to hand over the seal after use in the presence of independent public persons. In such circumstances, the possibility of tampering the case property cannot be ruled out.
17. In view of the above said discussion, I am of the considered view that the prosecution has failed to prove the guilt of the accused, beyond reasonable doubts. Accordingly, the accused stands acquitted from the charges U/s. 25/54/59 of Arms Act.
18. Previous bail bond of accused is extended U/s. 437 A Cr.P.C. File be consigned to Record room after necessary compliance.
Deepak Wason Metropolitan Magistrate Saket Courts, Delhi.
Announced in open court TODAY i.e on 09th August, 2012.
Contd..../-