Delhi District Court
Vide This Judgment This Court Shall ... vs State Of on 16 October, 2014
IN THE COURT OF MS. SAUMYA CHAUHAN,
METROPOLITAN MAGISTRATE, WEST DELHI, THC
State v. Sonu
FIR No. 436/2001
PS Paschim Vihar
U/s 25/54/59 Arms Act.
JUDGMENT
C C No. : 1207/3/10
Date of Institution : 13.08.2001
Date of Commission of Offence : 13.07.2001
Name of the complainant : Ct. Basti Ram No. 1759/W
Name & address of the accused : Sonu
S/o Munna
R/o Jhuggi No. 666, Meera Bagh,
B-Block, Paschim Vihar, 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 : 16.09.2014
Date of announcing of judgment : 16.10.2014
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.
2. The story of the prosecution is that on 13.07.2001 at about 5.15 pm at Jalebi Chowk, near GH-2, Paschim Vihar, Delhi within the jurisdiction of PS Paschim Vihar, the accused Sonu was found in possession of one buttondar knife State v. Sonu U/s 25/54/59 Arms Act 1/1 FIR No. 436/2001, PS Paschim Vihar without any license or permit in contravention to the 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. Copy of chagesheet and other scruttable documents were supplied to the accused and thereafter charge under Section 25/54/59 Arms Act was framed against him vide order dated 11.09.2002 to which he pleaded not guilty and claimed trial.
4. In order to prove the charge against the accused, the prosecution examined only four witnesses namely (1) HC Naresh (2) Ct. Basti Ram (3) Ct. Mahender Singh (4) HC Jai Singh.
5. PW-1 HC Naresh Kumar deposed that on 13.07.2001 he was posted at PS Paschim Vihar. On that day, he received a rukka through Ct. Mahender sent by HC Jai Singh. On the basis of which, he registered the FIR Ex. PW1/A.
6. PW-2 Ct. Basti Ram deposed that on 13.07.2001 he was on patrolling duty in the area. At about 5.15 pm, he reached Jalebi Chowk near GH-2, Paschim Vihar. Upon seeing him, one boy tried to run away. The witness apprehended him on suspicion. On formal search, one knife was recovered from right pocket of the pant of the accused. On interrogation, he disclosed his name as Sonu. He sent a message to police station by telephone. After sometime, HC Jai Singh along with Ct. Mahinder reached there and HC Jai Singh recorded his statement which is Ex.PW2/A. He produced the knife as well as accused to IO.
State v. Sonu U/s 25/54/59 Arms Act 2/2 FIR No. 436/2001, PS Paschim Vihar IO prepared a sketch map of the knife which is Ex.PW2/B. Knife was measured and total length was 24.4 cm, blade was 11.2 cm, handle was 13.2 cm. Blade was made of steel and handle was made of aluminum bearing a flowery design of white, red and green color. The blade bears "Best Steel". The knife was opened and closed with the help of brass button. Knife was kept in a pulanda and sealed with the seal of JS. Knife was taken into possession vide memo Ex. PW2/C. IO prepared tehrir and handed it over to Ct. Mahender for registration of FIR. He went to PS and after registration of FIR returned back at the spot and handed over the copy of FIR and original rukka to the IO. IO prepared the site plan Ex. PW2/D at his instance. Accused was arrested vide memo Ex. PW2/E and his personal search was conducted vide memo Ex. PW2/F. Accused was sent to hospital for medical examination through Ct. Mahender. Witness identified the accused and the knife in the court.
7. PW-3 Ct. Mahender Singh deposed that on 13.07.2001 he was posted at PS Paschim Vihar. He deposed that on that day Ct. Basti Ram had telephonically informed the PS that he had apprehended one person with illegal knife. On this information, he along with HC Jai Singh had gone to the spot. At the spot, Ct. Basti Ram had handed over to IO the accused and the knife. IO prepared the sketch of the knife which is Ex.PW2/B and measured the same. The length of the knife was 24.4 cm, length of the blade 11.2 cm and handle was 13.2 cm. The handle was made of aluminum and blade was made of steel. Thereafter, IO prepared a pullinda with white cloth and knife was put in the parcel and sealed State v. Sonu U/s 25/54/59 Arms Act 3/3 FIR No. 436/2001, PS Paschim Vihar with the seal of JSR. Seal after use was handed over to Ct. Basti Ram. Knife was seized vide seizure memo Ex. PW2/C. Thereafter, IO prepared a teherir and handed over to the witness for registration of FIR. He went to PS, got the FIR registered and returned back to the spot and handed over the original rukka and copy of FIR to the IO. Accused was arrested and his personal search was conducted. Witness identified the accused and the knife in the court.
8. PW-4 HC Jai Singh deposed that on 13.07.2001 he was posted at PS Paschim Vihar. He has corroborated the testimony of PW-3. He further proved the rukka as Ex. PW3/A. He identified the accused and the knife in the court.
9. The PE was closed by the order of the court 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.
10. I have heard the arguments addressed by the Ld APP for state and the accused himself carefully perused the documents on record.
11. 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 despite availability of public persons. 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, admittedly public persons were present there. All the witnesses examined are police witnesses. This casts a doubt about the sincere efforts made by the IO to join independent State v. Sonu U/s 25/54/59 Arms Act 4/4 FIR No. 436/2001, PS Paschim Vihar witnesses.
12. 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, that whenever any recovery in connection with the place of the commission of offence is made, public persons must be made witness.
13. 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 issued an order in writing to them or any of them so to do". This provision of law has not been complied with by the IO.
14. In the present case, the IO has not joined the public persons in the investigation. The time and place from where the accused was apprehended itself suggest that public persons must have been present at the spot as it was State v. Sonu U/s 25/54/59 Arms Act 5/5 FIR No. 436/2001, PS Paschim Vihar a public place. However, despite that, the IO did not even make a sincere effort to join any public person as witness in the investigation. This creates a doubt regarding the fairness of the investigation. The chances of false implication cannot be ruled out.
15. 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 inference 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.
16. Another lacuna in the prosecution case relates to seal. Prosecution case is that the knife was sealed by IO with the seal of JSR and was handed over to Ct. Basti Ram. However, no handing over memo was prepared. Further, the seal was neither handed over to an independent witness nor deposited in malkhana. No explanation has come on record as to why handing over memo was not made or seal was not handed over to an independent witness or deposited in malkhana. In these circumstances, the possibility of tampering of case property can't be ruled out.
17. It is a cardinal principle of criminal jurisprudence that prosecution is supposed to prove its case beyond reasonable doubts by leading reliable, cogent and convincing evidence. Further, it is a settled proposition of criminal law that in order to successfully bring home the guilt of the accused, prosecution is supposed to stand on its own legs and it cannot derive any benefits whatsoever State v. Sonu U/s 25/54/59 Arms Act 6/6 FIR No. 436/2001, PS Paschim Vihar from the weakness, if any, in the defence of the accused. Accused is entitled to the benefits of every reasonable doubt in the prosecution story and any such doubt in the prosecution case entitles the accused to acquittal.
18. 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 the accused and failed to prove its case beyond reasonable doubt. Accordingly, accused Sonu is acquitted under Section 25 Arms Act.
19. As per section 437A Cr.P.C accused is admitted to bail on his furnishing personal bond in the sum of Rs.10,000/- with one surety of like amount.
ANNOUNCED ON 16.10.2014
(SAUMYA CHAUHAN)
MM-07(West)/ Tis Hazari Court /16.10.2014
State v. Sonu U/s 25/54/59 Arms Act 7/7
FIR No. 436/2001, PS Paschim Vihar