Delhi District Court
Vide This Judgment This Court Shall ... vs State Of on 24 December, 2014
IN THE COURT OF MS. SAUMYA CHAUHAN,
METROPOLITAN MAGISTRATE, WEST DELHI, THC
State v. Raju @ Raja @ Vicky
FIR No. 156/07
PS Paschim Vihar
U/s 25/54/59 Arms Act.
JUDGMENT
C C No. : 792/3/07
Date of Institution : 23.03.2007
Date of Commission of Offence : 20.02.2007
Name of the complainant : Ct. Rajbir Singh No. 990/W
Name & address of the accused : Raju @ Raja @ Vicky
S/o Rohtash
R/o House no. RZ-C-21
Nihal Vihar, Nangloi, 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 : 10.12.2014
Date of announcing of judgment : 24.12.2014
BRIEF STATEMENT OF THE REASONS FOR THE DECISION
1. Vide this judgment this court shall decide the present case u/s 25/54/59 Arms Act.
2. The story of the prosecution is that on 20.02.2007 at about 6.30 pm behind Power House, Park Vindhyanchal Apartment, Mianwali Nagar, Delhi within the State v. Raju @ Raja @ Vicky U/s 25/54/59 Arms Act 1/1 FIR No. 156/07 PS Paschim Vihar jurisdiction of PS Paschim Vihar, the accused was found in possession of one button operated knife 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 01.11.2011 to which he pleaded not guilty and claimed trial.
4. In order to prove the charge against the accused, the prosecution has examined only two witnesses namely (1) ASI Ravinder Kumar and (2) Ct. Rajbir.
5. PW-1 ASI Ravinder Kumar deposed that on 20.02.2007 he was posted at PS Paschim Vihar as Duty Officer. His duty hours were from 4.00 pm to 12.00 mid night. He proved the FIR as Ex.PW1/A and endorsement on rukka as Ex.PW1/B.
6. PW-2 Ct. Rajbir deposed that on 20.02.2007, he was posted at PP Mianwali PS Paschim Vihar as Constable. On that day he was on patrolling duty in the area. At about 06:30 PM, when he was present at NS Road, Mianwali Nagar, one secret informer informed him that one person having a knife was sitting in DDA Park behind Bijli Ghar and if raided he could be apprehended along with knife.
State v. Raju @ Raja @ Vicky U/s 25/54/59 Arms Act 2/2
FIR No. 156/07 PS Paschim Vihar
Thereafter, he asked 3/4 passersby to join the raiding party but none agreed and left the spot without disclosing their names and addresses. He organized a raiding team including the witness and secret informer and reached at the spot at about 06:45 PM. At the spot, on the pointing out by secret informer, he apprehended the accused. On formal search one buttondar knife was recovered from the right side pocket of his pant. Thereafter, he informed police post Mianwali from where HC Dharampal arrived at the spot and he handed over the accused and case property to the IO. IO recorded his statement which is Ex.PW2/A. Thereafter, IO asked 3/4 public persons to join the investigation but they refused to join the same and left the spot. Thereafter, IO put the knife on white paper and prepared the rough sketch of knife which is Ex.PW2/B. IO measured the length of the knife. The total length of the knife was 24 cm, length of blade was 10.8 cm and the length of handle was 12.9 cm and width of blade was 2.5 cm. Thereafter, IO prepared the pullanda and the knife was put in the same and sealed with the seal of DP. The seal was handed over to the witness after use. Thereafter, IO took the possession of case property vide seizure memo Ex.PW2/C. Thereafter, IO prepared tehrir and sent the witness to police station for registration of FIR. After registration of FIR, he returned back at the spot and handed over the original rukka and carbon copy of FIR to IO. IO prepared the site plan at his instance which is Mark X. Thereafter, IO arrested the accused and conducted his personal search vide memos Ex.PW2/D and PW2/E respectively. Thereafter, IO recorded the statement of witnesses u/s 161 State v. Raju @ Raja @ Vicky U/s 25/54/59 Arms Act 3/3 FIR No. 156/07 PS Paschim Vihar Cr.P.C. The case property was deposited in malkhana. After medical examination, the accused was put into the lockup. Ld. APP has asked leading question from the witness after taking permission from the court. In the leading question, he admitted that IO recorded the disclosure statement of Raju @ Vicky which is Ex.PW2/F. He identified the accused and the case property in the court. Case property is Ex.P1.
7. During cross examination, he stated that he along with secret informer were in the raiding party. He admitted that the spot was a public place. He admitted that no public persons were joined the investigation/recovery. He voluntarily stated that several public persons were asked but none agreed to join the same. He did not conduct the personal search of the accused but the same was done in his presence by IO. He denied the suggestion that nothing was recovered from the possession of the accused. He denied the suggestion that the recovery is the planted one. He denied the suggestion that the accused was picked up from his house and has been implicated in this case.
8. 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.
9. I have heard the arguments addressed by the Ld APP for state and the Counsel for accused and carefully perused the documents on record.
10. 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 State v. Raju @ Raja @ Vicky U/s 25/54/59 Arms Act 4/4 FIR No. 156/07 PS Paschim Vihar 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.
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. However, not even a sincere effort was made by the IO to join any public person in investigation. All the witnesses examined are police witnesses. This casts a doubt about the sincere efforts made by the IO to join independent witnesses.
12. The Section 100(4) Cr.P.C 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 State v. Raju @ Raja @ Vicky U/s 25/54/59 Arms Act 5/5 FIR No. 156/07 PS Paschim Vihar 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". In the case at hand, this provision of law has not been complied with by the IO.
13. 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, an 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.
14. Another lacuna in the prosecution case relates to seal. Prosecution case is that the knife was sealed by IO with the seal of DP and was handed over to Ct. Rajbir. 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.
15. It is a cardinal principle of criminal jurisprudence that prosecution has 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 has to stand on its own legs and it cannot derive any benefits whatsoever from the weakness, if State v. Raju @ Raja @ Vicky U/s 25/54/59 Arms Act 6/6 FIR No. 156/07 PS Paschim Vihar any, in the defence of the accused. Accused is entitled to the benefit of every reasonable doubt in the prosecution story and any such doubt in the prosecution case entitles the accused to acquittal.
16. In the present case, all the lapses in investigation puts doubt on the very recovery of the 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 beyond reasonable doubt. Accordingly, accused Raju @ Raja @ Vicky is acquitted under Section 25 Arms Act.
17. Accused be released from the custody if not wanted in any other case.
18. As per Section 437A Cr.P.C, the accused is admitted to bail on his furnishing bail bond in the sum of Rs.10,000/- with one surety of like amount.
ANNOUNCED IN THE OPEN COURTON (SAUMYA CHAUHAN)
24th December 2014 MM-07(West)/ Tis Hazari Court
State v. Raju @ Raja @ Vicky U/s 25/54/59 Arms Act 7/7
FIR No. 156/07 PS Paschim Vihar