Delhi District Court
State vs . Bharat Bhushan on 15 October, 2014
IN THE COURT OF SH. SHARAD GUPTA, ACMM / NORTH EAST :
KARKARDOOMA COURTS, DELHI.
State Vs. Bharat Bhushan
FIR No : 59/2004
U/S : 27 of Arms Act
PS : Khajuri Khas
1. FIR No. of the case : 59/2004
2. Date of commission of offence : 16.02.2004
3. Date of institution of the case : 28.02.2004
4. Name of the complainant (if any) : SI Satender Mohan, PS:
Khajuri Khas
5. Name of accused person, : Bharat Bhushan @ Lucky
his parentage and address s/o Kamal Kant,
R/o A73, gali no. 8,
Khajuri Khas, Delhi.
6. Offence complained of or proved : U/s 27 of Arms Act
7. Plea of the accused : Pleaded not guilty
and his examination ( if any)
8. Date of arguments : 15.10.2014.
9. Date of judgment/final arguments : 15.10.2014.
10. Final order : Acquitted
11. Brief statement of the reason for decision :
FIR No. 59/2004 State Vs. Bharat Bhushan 1/6
Judgement :
Vide this judgment, I shall decide this case under Section 25 Arms Act. Brief facts of the prosecution case are as under :
1. Prosecution has alleged that on 16.02.2004 at about 1:40 pm at Pusta road, infront of ABlock, Khajuri Khas, Delhi, accused was found in possession of one button actuated knife in contravention of notification of Delhi administration and he waved the knife in air on seeing the police party . The accused was arrested under Section 27 of Arms Act and chargesheeted after investigation.
2. Accused appeared before this Court and after compliance under Section 207 IPC, charge under section 27 of Arms Act was framed against him vide order dated 26.04.2004 and accused pleaded not guilty and claimed trial.
3. To prove the case, Prosecution has examined three witnesses i.e., PW1 HC Mool Chand, PW2 HC Prem Chand, PW3 SI Ram Kishore and PW4 WASI Tejwati and thereafter PE was closed as PW Satender Mohan was repetitive of the facts already deposed on record by HC Mool Chand and HC Prem Chand. After closure of PE, Statement of accused u/s 281 r/w 313 Cr.PC was recorded. Accused has not led any defence evidence.
4. I have heard the arguments and perused the record. As per the FIR No. 59/2004 State Vs. Bharat Bhushan 2/6 Prosecution story, accused was apprehended by the police officials during patrolling in a public place and one button actuated knife was recovered from his possession. All the PWs are police officials.
5. Ld. Counsel for accused has submitted that accused has been falsely implicated in this case. Although it is not a legal requirement that the testimony of police officials is not reliable, yet the testimony of police officials is to be considered with caution, in view of the facts of the present case. In the present case, accused was apprehended at public place and public witnesses were available, but public persons were not made witness to the recovery or arrest of accused and even no notice was served upon the public persons who allegedly refused to participate in the proceedings. Facts and circumstance of the case suggests that no sincere efforts have been made by police official to join independent public witnesses in the police proceedings.
6. In the case reported as "Anoop Joshi vs. State, 1992 (2) C. C. Cases 314 (HC)", Hon'ble High Court of Delhi has deprecated the practice of the police officials of not making any sincere efforts to join the public witness when they are available. Similarly, in the case reported as "Sadhu Singh vs. State of Punjab, 1997 (3) Crimes 55" the Hon'ble Punjab & Haryana High Court has also not viewed with favour the practice of the police of not joining any public witness and not making FIR No. 59/2004 State Vs. Bharat Bhushan 3/6 any sincere efforts in that regard when they are readily available. Non joining of the public witnesses and not making any sincere efforts in this regard creates a doubt about the case of the prosecution. Furthermore, as per the Punjab Police Rules, entry is mandatorily required to be made as regards the hour of arrival and departure of police personnel on duty.
Chapter 22 Rule 49 of Punjab Police Rules, 1934, provides that the entry of 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 shall be made immediately. However in the present case no DD entry is shown or proved to have been recorded regarding the departure of PW1 HC Mool Chand and PW2 HC Prem Chand for the spot on patrolling or their arrival at PS. This aspect creates a doubt about the case of the prosecution.
7. Further from the record, it appears that after the apprehension of the accused but before taking the formal / casual search of the accused, police official(s) had not offered their own search to the accused before taking his search. At this juncture, it would be appropriate to refer to the judgment of Hon'ble Orissa High Court reported as "Rabindernath Prusty vs. State of Orissa". In this case relying upon the judgment of the Supreme Court in "State of Bihar Vs. Kapil Singh AIR 1969 SC FIR No. 59/2004 State Vs. Bharat Bhushan 4/6 53 : (1969 Cri. L.J 279)", it has been held that one of the formalities that has to be observed in searching a person is that the searching Officer and others assisting him should give their personal search to the accused before searching the person of the accused.
8. Furthermore, as per the prosecution version seal after use was handed over to HC Mool Chand. However, no handing over memo regarding the handing over of seal was prepared by the IO which creates doubt that whether the seal was handed over to any person or it remained with the IO. Thus, the genuineness of the investigation is under doubt and the veracity of the case of the prosecution has been weakened.
9. Another aspect of the case is that as per the prosecution witnesses the sketch memo of case property Ex.PW1/A and the seizure memo Ex.PW1/B were prepared prior to the registration of the FIR. However, the said documents mention the FIR number. It thus appears that there was no occasion for the FIR number to be mentioned on the seizure memo inasmuch as the IO did not know the FIR number at time of the preparation of the said document even as per the prosecution version. In the matter of "Giri Raj vs State 2000 (83) DLT 201", the Hon'ble High Court of Delhi held that where the FIR number was mentioned on the documents prepared prior to registration of the FIR then it gives rise to two inferences either that the FIR was recorded prior to recovery of the FIR No. 59/2004 State Vs. Bharat Bhushan 5/6 articles or that number of the FIR was inserted in the documents later on. In both the cases, it seriously reflects on the veracity of the prosecution version and creates a doubt about the alleged recovery. In the present case also the mentioning of the FIR number on the seizure memo affects the veracity of the version of the prosecution regarding the manner in which the recovery was effected, the benefit whereof has to go to the accused.
10. In fact, in this case, in the absence of any particulars of patrolling time of police officials and absence of public persons as recovery/arrest witness of accused, false implication of the accused may not be ruled out. In fact, prosecution has failed to prove the allegations against the accused beyond reasonable doubt. I hereby give benefit of doubt to the accused. Accused is hereby acquitted of all the charges. Surety discharged. Any documents placed on record, either by surety or accused, be returned against acknowledgment. Case property is forfeited to the State and be destroyed as per rules after appeal. File be consigned to record room after due compliance.
Announced in open Court (SHARAD GUPTA)
on 15.10.2014. ACMM( North East)
Karkardooma Courts, Delhi.
FIR No. 59/2004 State Vs. Bharat Bhushan 6/6
FIR No. 59/2004 State Vs. Bharat Bhushan 7/6