Delhi District Court
State vs . Umesh Kumar @ Udit Kumar on 22 December, 2014
IN THE COURT OF SH. DHEERAJ MOR, METROPOLITAN MAGISTRATE02,
(SOUTH EAST), SAKET COURTS, DELHI.
FIR No. 78/11
U/s. : 25/54/59 Arms Act.
P.S. : OIA
State Vs. Umesh Kumar @ Udit Kumar
JUDGMENT
1. Sl. No of the case : 210/2/11
2. Date of institution of the case : 08/04/11
3. Date of the commission of the offence : 13/03/2011
4. Name of the accused : Umesh Kumar @ Udit Kumar
S/o Banwari Lal
5. Name of the complainant : HC Lal Ram
6. Offence complained of : 25/54/59 Arms Act
7. Plea of accused : Pleaded not guilty
8. Final order : Acquitted
9. Date of such order : 22.12.2014
BRIEF STATEMENT OF THE REASONS FOR THE DECISION
1. The accused has been sent to face trial under section 25/54/59 Arms Act, by the SHO PS OIA.
2. The brief facts of the case as alleged by the prosecution and as unfolded from the charge sheet are that, on 13.03.2011 at about 6.15 pm at Maa Anandmai Marg, Indra Kalyan Vihar, Bus stand, OIAI, New Delhi the accused was found in possession of one button actuated knife without any licence or permit and in contravention of notification issued by Delhi Administration. Therefore, the present FIR No. 78/11, under section 25/54/59 Arms Act was registered at PS OIA. After completion of the investigation, charge sheet was prepared and filed in the Court.
3. The accused was summoned by the court for facing trial for the aforesaid offence. The copy of the challan and documents annexed therewith were supplied to the accused in compliance of Section 207 Cr. PC. Prima facie a charge U/s. 25/54/59 Arms Act was made out against the accused Umesh Kumar @ Udit Kumar. Accordingly, on 14.11.2011, the charge was framed against the accused. The accused pleaded not guilty to the same and claimed trial. Thereafter, the case proceeded for prosecution evidence.
4. In order to substantiate its case, the prosecution examined two witnesses.
5. HC Lal Ram (PW1) is the complainant and one of the recovery witnesses of the knife from the possession of the accused. He has deposed that on 13.03.2011, he alongwith Ct. Dev Kishan was on picket duty at bus stand. At about 6.15 pm when they stopped a bus bearing no. DL1VA1813 for checking, the accused Umesh Kumar @ Udit Kumar got down from the bus and started running. On suspicion, he alongwith Ct. Dev Kishan and conductor Vipin Kumar chased and apprehended the accused. On formal search, one button actuated knife was recovered from his right side pocket of his pant. He prepared the sketch of the knife which was recovered from the accused and the same is Ex. PW1/A. He sealed the case property with the seal of "LR". The seizure memo of the said knife is proved as Ex. PW1/B. He prepared the rukka Ex. PW1/C and sent Ct. Dev Kishan to the police station for registration of FIR who returned to the spot alongwith the copy of FIR and original rukka and handed over the same to him. He prepared the site plan Ex. PW1/D. He prepared the challan against the accused and filed in the court through SHO. He identified the case property. The case property is Ex. P1.
6. PW 2 Abdul Gani is a public witness. He has deposed that on the day of the incident he was driving a RTV bus bearing registration no. 1813. However, he did not remember the date, month and year. He did not remember anything else regarding this case. He was cross examined by Ld. APP for the State as he was resiling from his earlier statement. However, despite that nothing incriminating was extracted from his testimony. Thereafter, PE was closed.
7. Statement of the accused U/s. 313/281 Cr.P.C. was recorded. All the incriminating evidence were put to the accused for seeking his explanation. In the said statement the accused has stated that he has been falsely implicated in the present case and he has further stated that he is innocent. He has further submitted that the knife Ex.P1 was not recovered from his possession and same was falsely planted upon him. He preferred not to lead evidence in defence. Accordingly, the matter was listed for final arguments.
8. I have heard the Ld. APP for the state and Ld. Counsel for the accused. I have carefully perused the case record.
9. The cardinal principle of the criminal law is that the accused is presumed to be innocent till he is proved guilty beyond any reasonable doubt. The burden of proving guilt of the accused lies on the prosecution and the prosecution is required to stands on its own legs to establish the culpability of the accused. The benefit of doubt if any, must go in favour of the accused.
10. In order to sustain conviction U/s. 25/54/59 Arms Act the prosecution is required to prove the following ingredients: i. The accused was found in the possession of the button actuated knife.
ii. He/She was carrying the same without any licence/permit or in contravention of notification of Delhi Administration.
11. The prosecution is required to prove that the alleged knife was recovered from the possession of the accused. HC Lala Ram (PW1) and Ct. Dev Kishan are the material witnesses as they are alleged recovery witnesses, in addition to two public witnesses namely Vipin Kumar Ojha and Abdul Ghani. PW 2 Abdul Ghani has turned hostile and he has failed to support the prosecution version. The other public witness namely Vipin Kumar Ojha remained untraceable. He was even summoned through DCP South East. But it also yielded no fruitful results. The aforesaid two police recovery witnesses were stated to be on picket duty at the time of alleged recovery of knife from the accused. Besides, even PW1/HC Lala Ram has deposed that they were together on picket duty at the time of alleged recovery of the knife from the accused. However, no DD entry has been placed or proved on record to establish that the said witnesses together left the police station on the said date for the purpose of picket duty. The said departure entry is indispensable for establishing the presence of the said recovery witnesses/police officials at the place of alleged recovery of knife. In absence of its proof, their presence at the alleged place, time and date of recovery of the knife from the possession of the accused is doubtful.
12. The recovery of knife from the accused was allegedly witnessed by two public witnesses, who were even cited as witnesses in the list of Pws. However, one of them has turned hostile and the other never entered in the witness box for proving the case of the prosecution. Therefore, the testimony of complainant/IO/PW1 Lala Ram has not been corroborated by the independent public witness. The witness who has supported the prosecution case is the complainant/IO/police officials, who is interested in the success of the prosecution case and therefore, the probability of him being guided by the extraneous factors, other than truth, cannot be ruled out. The police witnesses cannot be straightaway termed as unreliable witnesses. However, when the public/independent witnesses have been examined during investigation and in the court, they failed to support the case of the prosecution, then the sole testimony of the police witness does not lend sufficient credence/reliability. The non supporting testimony of the public witnesses creates doubt in the story of the prosecution as held in "Pawan Kumar Vs. Delhi Administration 1987 CC 585 DELHI HC".
13. Keeping in view the fact that the version of PWs have remained uncorroborated by any other independent witness regarding the alleged recovery of knife, it will be highly unsafe to rely upon their version to pass the order of conviction against the accused. It has been held in: 1975 CAR 309 (SC) that :
"Prosecution case resting solely on the testimony of head constable and no independent witness examinedprosecution story appearing improbable and unnatural. Held that the prosecution case can not be said to be free from reasonable doubt and the accused is liable to be acquitted".
14. In the instant case, the investigation was conducted by the complainant himself. It is against principles of natural justice that the same person who lodges the complaint conducts the investigation to ascertain the veracity/genuineness of the said complaint. The investigation should have been conducted by an independent person, other than the complainant, as there is possibility of apparent bias and therefore, it cannot be termed as fair and impartial investigation. It itself is sufficient to create aspersion on the investigation and it has created suspicion in the story of the prosecution. The observations made by Hon'ble Apex Court in case title as Megha Singh Vs. State of Haryana, 1995 AIR (SC) 2339 are relevant and reproduced as under: " 4......................We have also noted another disturbing feature in this reliability of the prosecution case. PW 3 Siri Chand, HC arrested the accused and on search being conducted by him a pistol and the cartridges were recovered from the accused. It was on his complaint a formal first information report was lodged and the case was initiated. He being complainant should not have proceeded with the investigation of the case. But it appears to us that he was not only the complainant in the case but he carried on which the investigation and examined witnesses under section 161, Cr.P.C. Such practice, to say the least, should not be restored to so that there may not be any occasion to suspect fair and impartial investigation".
15. In view of the above discussion, the prosecution has failed to discharge the onus placed upon it and so have failed to prove its case beyond any reasonable doubt. Accordingly, benefit of doubt is given to the accused Umesh Kumar @ Udit Kumar and he is acquitted of the charge U/s. 25/54/59 Arms Act. He is directed to furnish fresh personal bond in a sum of Rs. 10,000/ with one surety in like amount, in accordance with Section 437A Cr.P.C. He has submitted that his previous bail bonds and surety bonds be extended for next six months. The said request is allowed and they are accepted for next six months. Case property be confiscated to the State.
File be consigned to record room after due compliance.
Announced in the open court today.
i.e. on 22.12.2014 (DHEERAJ MOR) METROPOLITAN MAGISTRATE02 DISTRICT SOUTH EAST, SAKET COURT, DELHI FIR No. 78/11 U/s. : 25/54/59 Arms Act.
P.S. : OIA State Vs. Umesh Kumar @ Udit Kumar 22.12.2014 Present: Ld. APP for the State.
Accused Umesh Kumar @ Udit Kumar is on bail with his counsel Sh. Siddharth Gautam.
No PW is present. The prosecution has already availed several sufficient opportunities for concluding entire PE. The fundamental right of the accused for expeditious trial cannot be defeated on unreasonable and unwarranted grounds. Thus, PE stands closed.
Separate statement of the accused U/s 313/281 Cr.P.C. is recorded. The accused has stated that he does not want to lead any defence evidence.
Final arguments are heard. Case file is perused.
Vide my separate judgment announced in the open court today, the accused Umesh Kumar @ Udit Kuamr stands acquitted for the offence punishable U/s 25/54/59 Arms Act. He is directed to furnish fresh personal bond in a sum of Rs. 10,000/ with one surety in like amount, in accordance with Section 437A Cr.P.C. He has submitted that his previous bail bonds and surety bonds be extended for next six months. The said request is allowed and they are accepted for next six months. Case property be confiscated to the State.
File be consigned to Record Room after due compliance.
(Dheeraj Mor) MM/North/Delhi/22.12.2014