Delhi District Court
State vs . Mukesh on 25 January, 2014
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IN THE COURT OF SH. NEERAJ GAUR ACMM/NW/ROHINI COURTS/DELHI
State Vs. Mukesh
FIR No. 351/08
PS: Keshav Puram
U/s 25/54/59 Arms Act
Case ID No. 24004R0094412009
JUDGEMENT
A) Sl. No. of the case : 2/3
B) The date of commission : 30.12.2008
of offence
C) The name of the complainant : HC Chander Bhushan
PS Keshav Puram, Delhi
D) The name & address of accused : Mukesh
S/o Brij Pal
r/o G1/55, Balmiki Camp,
Jhuggi No. 96, Lawrence Road,
Delhi.
E) Offence complained of : U/s 25/54/59 Arms Act
F) The plea of accused : Pleaded not guilty
G) Final order : Acquitted
H) The date of such order : 25.01.2014
Date of Institution : 14.01.2009
Judgment reserved on : 25.01.2014
Judgment announced on: 25.01.2014
FIR No. 351/08 State Vs. Mukesh Page No. 1/9
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THE BRIEF REASONS FOR THE JUDGEMENT:
1. Briefly stated, the case of the prosecution is that on 30.12.08 at about 6.45 pm in front of the office of Jal Board, Metro Station, Kanhaiya Nagar, Delhi accused Mukesh was found in possession of one buttondar knife without any permit or license & in contravention to the Section 4 of the Arms Act of 1959 and thus he thereby committed an offence punishable U/s 25/54/59 Arms Act.
2. After completion of investigation, charge sheet U/s 25/54/59 Arms Act was prepared against the accused and filed in the Court.
3. After complying with the provisions of Sec. 207 Cr.P.C., arguments on charge were heard and vide order dated 03.09.10, charge was framed U/s 25/54/59 Arms Act against the accused to which he pleaded not guilty and claimed trial.
4. In support of its case, the prosecution examined three witnesses i.e PW1 ASI Ilam Singh, PW2 HC Chander Bhushan and PW3 Ct. Bachchu Singh till 16.01.2014.
5. Thereafter, the statement of accused was recorded under section 313 Cr.P.C. in which the stand of the accused claimed his innocence and alleged false implication by the police officials. The accused opted not to lead DE.
PROSECUTION EVIDENCE
6. PW2 HC Chander Bhushan and PW3 Ct. Bachchu Singh have deposed that on FIR No. 351/08 State Vs. Mukesh Page No. 2/9 3 30.12.08 they were on patrolling duty near the office of Delhi Jal Board, Keshav Puram Metro Station, Delhi. At about 6.45 pm, one person i.e the accused was sighted coming from the side of office of Delhi Jal Board. On seeing the police party he turned back and started moving fast. On suspicion he was apprehended who disclosed his name as Mukesh. On search of the cloths of accused one buttondar knife was recovered from his right side pocket of wearing pant. Several persons collected at the spot. PW2 requested them to join the proceedings, however, none joined and left the spot without disclosing their identity. The knife was put on a white paper and measured. The total length of the knife was 23.5 cm, the length of the blade was 10 cm, the length of the handle was 13.5 cm and width of the knife was 2.5 cm. PW2 prepared the sketch of knife Ex.PW2/A. The knife was taken into police possession vide seizure memo Ex.PW2/B. PW2 prepared rukka Ex.PW2/C and handed over it to Ct. Bachchu Singh. He was sent to PS Keshav Puram for registration of FIR and after sometime Ct. Bachchu Singh came to the spot alongwith HC Peera Ram to whom the further investigation of this case was assigned. PW2 produced accused, sealed parcel of knife, sketch and seizure memo of knife before 2nd IO HC Peera Ram. HC Peera Ram prepared siteplan at the instance of PW2 and recorded his statement. The knife is Ex.P1. Accused was arrested vide memo Ex.PW3/A and his personal search was conducted by IO vide memo Ex.PW3/B.
7. PW1 ASI Ilam Singh is the formal witness and proved the printout of FIR No. 351/08 U/s 25/54/59 Arms Act as Ex.PW1/A. This witness has not been cross examined by the accused despite grant of opportunity.
8. I have heard the arguments of Ld. APP for state and accused in person. I have also FIR No. 351/08 State Vs. Mukesh Page No. 3/9 4 perused the record carefully.
9. As per story of prosecution, after the alleged recovery of buttondar knife, no effort whatsoever was made by the IO to join independent public witness during the investigation. However, it is an undisputed case that no written notice was served upon any such public person who allegedly refused to join the investigation. There was ample time with the IO and he could very well have served such notice to the persons who refused to join the investigation/proceedings.
10. The above referred mechanical excuse given by the prosecution for not joining the public witnesses in the police proceedings/ investigation creates a reasonable doubt in the very recovery of the illicit liquor. It is pertinent to note that IO has not made a note of the excuses given by the above said passersby for not joining the police proceedings. Also there is no explanation from the side of IO as to why he did not record the excuses given by the passersby who were requested to join the police proceedings.
At this juncture, it would be pertinent to refer to some case laws.
11. In a case law reported as Anoop Joshi v/s State,1992 (2) C.C. Cases 314(HC), Hon'ble High Court of Delhi has observed as under:
"18. It is repeatedly laid down by this court that in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it FIR No. 351/08 State Vs. Mukesh Page No. 4/9 5 is evident that no such sincere efforts have been made, particularly when we find that shops were open and one or two shopkeepers could have been persuaded to joint he raiding party to witness the recovery being made from the appellant. In case any of the shopkeepers had declined to join the raiding party, the police could have later on taken legal action against such shop keepers because they could not have escaped the rigours of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC."
In a case law reported as Roop Chand v/s The State of Haryana, 1999(1) C.L.R 69, the Hon'ble Punjab & Haryana High Court held as under:
3. I have heard the learned counsel for the parties and gone through the evidence with their help. The recovery of illicit liquor was effected from the possession of the petitioner during noon time and it is in the evidence of the petitioner witnesses that some witnesses from the public were available and they were asked to join the investigation. The explanation furnished by the prosecution is that the independent witnesses were asked to join the investigation but they refused to do so on the ground that their joining will result into enmity between them and the petitioner.
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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. In the present case also admittedly the independent witnesses were available at the time of recovery but they refused to associate themselves in the investigation. This explanation does not inspire confidence because the police officials who are the only witnesses examined in the case have not given the name and addresses of the persons contacted to join. It is a very common excuse that the witnesses from the public refused to join the investigation. 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 nonjoining the witnesses from the public is an after thought and is not worthy of credence. All these facts taken together make the prosecution case highly FIR No. 351/08 State Vs. Mukesh Page No. 6/9 7 doubtful."
In case law reported as Sadhu Singh V/s State of Punjab, 1997(3) Crimes 55 the Hon'ble Punjab & Haryana High Court observed as under:
5. In a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubts. It is for the prosecution to travel the entire distance from may have to must have. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused.
6. In the present case, the State examined two witnesses namely, Harbans Singh ASI who appeared as PW1 and Kartar Singh PW2. Both the witnesses supported the prosecution version in terms of the recovery of opium from the person of the petitioner, but there was no public witness who had joined. It is not necessary in such recoveries that public witnesses must be joined, but attempt must be made to join the public witnesses. There can be cases when public witnesses are reluctant to join or are not available. All the same, the prosecution must show a genuine attempt having been made to join a public witness or that they were not available. A stereotype statement of nonavailability will not be sufficient particularly when at the relevant time, it was not FIR No. 351/08 State Vs. Mukesh Page No. 7/9 8 difficult to procure the service of public witness. This reflects adversely on the prosecution version.
12. As such it could be said that IO did not make sincere efforts to join public witnesses before starting initial investigation of the present case and this failure on the part of the IO in view of above said case laws creates a very serious doubt in the prosecution version.
13. The case property and accused remained in control of police officials till the case property was deposited in the malkhana. Hence tampering with the case property cannot be ruled out as the seal remained all along with the police officials.
14. Further in a case law reported as State of Himachal Pradesh v/s Dharam Dass, 1992(1) C.L.R, it has been ruled that the prosecution has to prove the guilt against beyond all reasonable doubt and that too by leading independent, reliable and unimpeachable evidence. There is no controversy to the proposition that the accused is entitled to the benefit of every doubt occurring in the prosecution case.
In Thakorbhi Viribhai Vasava & others V/s The State of Gujrat Crime, Vol (1) 1987/37 Gujrat High Court (D.B), it has been ruled down that in criminal trials even a slightest doubt raised in favour of accused ordinarily entitle the accused to get acquittal.
15. No efforts, whatsoever have been made by the prosecution to find any clue about FIR No. 351/08 State Vs. Mukesh Page No. 8/9 9 the source from where the case property was arranged for by the accused. At least some efforts must have been made by the police to interrogate the accused and conduct requisite investigation to know as to from where accused arranged the same.
16. As per the case of the prosecution, the case property was sealed with the seal belonging to IO. However, admittedly, neither any handing over memo nor returning memo of the seal was prepared by IO. Thus, tampering with the case property can not be ruled out as sealed case property and accused were with the police officials till the time case property was deposited in Malkhana.
17. It is settled preposition of law that in case of any lapse in the investigation, a benefit is accrued in favour of the accused. The lapses in the investigation, as discussed herein above, are not minor but serious lapses. In a case, where possession of something itself is an offence, the investigating officer can not give a go by to the principles enshrined in Section 100(4) of Cr.P.C. Keeping in view the lapses in the investigation, the prosecution case has become doubtful. The accused is entitled to be given a benefit of doubt. Giving the accused a benefit of doubt, I hereby acquit the accused of the charge framed against him. On request of accused personal bond and surety bond of the accused is extended for the period of six months U/s 437(A) Cr.P.C. File be consigned to record room after completion of necessary formalities.
Announced in open Court (NEERAJ GAUR)
Dated: 25.01.2014 Addl. Chief Metropolitan Magistrate/NW
Rohini, Delhi
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