Delhi District Court
State vs . Sanjay @ Manoj on 4 May, 2010
1
FIR No. 156/07
State vs. Sanjay @ Manoj
IN THE COURT OF SH. SANDEEP GARG, METROPOLITAN
MAGISTRATE (CENTRAL)-05, DELHI
FIR No. 156/2007
U/s 25/54/59 Arms Act
PS- Nabi Karim
State Vs. Sanjay @ Manoj
JUDGMENT:
a The Sl. No. of the case : 1052/2
b The date of commission : 19.04.2007
c The name of complainant : HC Udaivir Singh
d The name of accused : Sanjay @ Manoj S/o Bhagwandas
: R/o L-240, Laxman Puri, Nabi
: Karim, Delhi.
e The offence complained of : 25/54/59 Arms Act
f The plea of accused : Pleaded not guilty
g The final order : Acquitted
h The date of such order : 04.05.2010
i The date of institution
of the case : 18.06.2007
j Date of hearing final arguments
and adjourning the matter
for orders : 04.05.2010
BRIEF REASONS FOR THE DECISION:
1. In brief, case of the prosecution against accused Sanjay @ Manoj is that on 19.04.2007 at about 06:15 PM, at Qutub Road, in front of MCD office, Nabi Karim, Delhi, within the jurisdiction of PS Nabi Karim, accused was found in possession of one button actuated knife, Ex. P-1 having total length 23.5 cm long with blade of 10.5 cm in length and width 2.5 cm in contravention of notification issued under Arms Act. As such, as per prosecution, accused committed an offence punishable u/s 25 Arms Act. On the basis of rukka sent by HC Udaivir Singh, formal FIR, Ex. PW-2/A was registered for offence u/s 25 of Arms Act. The case was investigated into. The investigation ended in Page 1 of 8 2 FIR No. 156/07 State vs. Sanjay @ Manoj the filing of the charge-sheet u/s 173 Cr.P.C. charging the accused with the commission of an offence punishable u/s 25 of Arms Act.
2. Vide order dated, 04.09.2008, accused was charged for offence u/s 25 of Arms Act to which he pleaded not guilty and claimed trial.
3. To substantiate its case on judicial file, prosecution has examined as many as four witnesses. PW-2 is HC Mool Chand, who being duty officer proved carbon copy of FIR, Ex. PW-2/A. PW-1 is HC Udaivir Singh. He is the recovery witness and is the 1st IO of the case. PW-3 is Ct. Manveer Singh who was on patrolling duty along with HC Udaivir Singh and is a recovery witness. PW-4 is HC Satbir Singh, who is 2nd IO of the case. Vide order dated, 27.04.2010, PE was closed and on 28.04.2010 statement of accused was recorded u/s 281/313 Cr.P.C. wherein accused denied the case of prosecution in toto. However, accused did not intend to lead DE.
4. I have heard Ld. APP for the State and the accused and gone through case file very carefully.
5. It is submitted by Ld. APP for the State that by virtue of evidence available on judicial file, accused is liable to be convicted for the offence punishable u/s 25 of Arms Act. On the other hand, accused submits that he has been falsely implicated in the present case and he is totally innocent.
6. I have gone through the material on judicial file very carefully.
7. It is settled proposition of criminal law that prosecution is supposed to prove its case on judicial file beyond reasonable doubts by leading reliable, cogent and convincing evidence. Further, it is a settled proposition of criminal law that in order to prove its case on judicial file, prosecution is supposed to stand on its own legs and it cannot derive any Page 2 of 8 3 FIR No. 156/07 State vs. Sanjay @ Manoj benefit whatsoever from the weaknesses, if any, in the defence of the accused. Further, it is a settled proposition of criminal law that burden of proof of the version of the prosecution in a criminal trial throughout the trial is on the prosecution and it never shifts to the accused. Also it is a settled proposition of criminal law that the accused is entitled to the benefit of every reasonable doubt in the prosecution story and such doubt entitles the accused to acquittal.
8. In my opinion, as a cumulative effect of following reasons the accused is entitled to be acquitted of the charge against him:-
(a) Chapter 22 Rule 49 of Punjab Police Rules, 1934, provides as under:
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 personally by signature or seal.
Note:- The term Police Station will include all places such as Police Lines and Police Posts where Register No.II is maintained.
In the present case, the above said provision appears to have not been complied with by prosecution. As per the prosecution version at the time of the apprehension of the accused with Knife, Ex. P-1 in his possession HC Udaivir Singh and Ct. Manveer Singh were on area patrolling duty near main Bazaar, Nabi Karim, at about 05:35 PM, but the DD entry vide which HC Udaivir Singh and Ct. Manveer Singh had left the PS for patrolling has not been brought on record. Even the number of the said DD Page 3 of 8 4 FIR No. 156/07 State vs. Sanjay @ Manoj entries made in Register No. II has not been brought on judicial record. In my opinion prosecution was under an obligation to prove on record, the above said DD entries vide which HC Udaivir Singh and Ct. Manveer Singh had left the PS for patrolling duty so as to prove the possibility of availability of HC Udaivir Singh and Ct. Manveer Singh at the place of apprehension of the accused. At this juncture, it would be relevant to refer to a case law reported as Rattan Lal V/s State, 1987(2) Crimes 29 wherein the Hon'ble Delhi High Court has been observed that if the investigating agency deliberately ignores to comply with the provisions of the Act, the courts will have to approach their action with reservations. The matter has to be viewed with suspicion if the provisions of law are not strictly complied with and the least that can be said is that it is so done with an oblique motive. This failure to bring on record, the DD entries creates a reasonable doubt in the prosecution version and attributes oblique motive on the part of the prosecution.
9. In the present case, after the apprehension of accused at about 06:15 PM, but before searching his body no attempts whatsoever were made by HC Udaivir Singh to ensure that search of accused by him is witnessed by independent public witnesses who were very much available at the place of apprehension of accused as per the contents of rukka only. After the apprehension of accused, HC Udaivir Singh could very well have served the passersby with notice in writing requiring them to join the police proceedings or to face legal action u/s 187 IPC in as much as by that point of time, accused stood already apprehended and there were no chances of crime going undetected or accused escaping the arrest. Also even the identify of the passersby who were requested to join the police proceedings has not been recorded by IO on the rukka. In such circumstances it cannot be said that on account of reasonable excuses only, passer bys had, if it was so, Page 4 of 8 5 FIR No. 156/07 State vs. Sanjay @ Manoj refused to join police proceedings. This failure on the part of prosecution creates reasonable doubt in the prosecution story. It this regard, reliance may be placed on the following case laws:
In a case law reported as Anoop Joshi V/s State 1999(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 is evident that no such sincere efforts have been made, particularly when we find that shops were open and one or two shop-keepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the shop-keepers 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 prosecution 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".
"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 Page 5 of 8 6 FIR No. 156/07 State vs. Sanjay @ Manoj police officials who are the only witnesses examined in the case have not given the names 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 non-joining 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 doubtful".
In case law reported as Sadhu Singh vs 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 stereo- type statement of non-availability will not be sufficient particularly when at the relevant time, it was not difficult to procure the service of public witness. This reflects adversely on the prosecution version".
10. In the present case, seal after use on the pullanda containing case property was given to Ct. Manveer Singh who is a material prosecution witness being witness to the Page 6 of 8 7 FIR No. 156/07 State vs. Sanjay @ Manoj recovery of knife from the possession of the accused. To my mind, in such circumstances, chances of fabrication with the case property cannot be ruled out in as much as a material prosecution witness is always interested in the conviction of the accused. Further, it is pertinent to note that no memo has been placed on record showing the date and time when the seal was returned to PW HC Udaivir Singh by PW Ct. Manveer Singh. Even PW-1 HC Udaivir Singh is silent in this regard absolutely.
11. In the present case, before taking the formal/ casual search of the accused after his apprehension police official (s) had made no efforts to ensure that search of the accused by him them is witnessed by independent public witnesses.
Also HC Udaivir Singh and Ct. Manveer Singh had not offered their own search to the accused before taking the search of the accused. 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, wherein it was held as under:
"10. The next part of the prosecution case is relating to the search and recovery of Rs. 500/- from the accused. One of the formalities that has to be observed in searching a person in that the searching Officer and other assisting him should give their personal search to the accused before searching the person of the accused. (See AIR 1969 SC 53 : (1969 Cri L.J. 279), State of Bihar V/s Kapil Singh). This rule is meant to avoid the possibility of implanting the object which was brought out by the search. There is no evidence on record whatsoever that the raiding party gave their personal search to the accused before the latter's person was searched. Besides the above, it is in the evidence of PWs 2 and 5 that the accused wanted to know the reason for which his person was to be searched and the reason for such search was not intimated to the accused. No independent witness had witnessed the search. In the above premises, my conclusion is that the search was illegal and consequently the conviction based thereon is also vitiated".
Being guided by above said case law, it can be said that search of the accused by Page 7 of 8 8 FIR No. 156/07 State vs. Sanjay @ Manoj above said police officials was in complete violation of the above said case law and the same can be said to be illegal.
12. In view of the aforesaid discussion, in my opinion, prosecution has not been able to prove its case against the accused beyond reasonable doubts. Accordingly, accused is acquitted of the charge levelled against him. His Bail bond stands discharged. Case property be confiscated to State and be destroyed after expiry of period of appeal. File be consigned to Record Room.
Announced in the open (Sandeep Garg)
Court on 04.05.2010 MM(Central)-05,
Delhi.
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