Delhi District Court
State vs Ajay Kumar on 22 July, 2011
FIR No. 68/02
PS: Adarsh Nagar
S/v Ajay Kumar
IN THE COURT OF SH. NEERAJ GAUR, METROPOLITAN
MAGISTRATE-IV ROHINI COURTS, DELHI
Brief reasons for the judgment in the case with following particulars:
FIR NO. 68/02
PS Adarsh Nagar
U/S 25/54/59 of Arms Act
C/No. 70/02
Unique ID No. : 02401R0420332002
State V/S Ajay Kumar
Date of Institution: 16.03.2002
Name of the Complainant SI Naresh Bhatia
Name and address of accused Ajay Kumar S/o Sh. Pal Singh
R/o H. No. 467, Gali Manir Wali
Village Azadpur, Delhi.
Offence complained of U/S 25/54/59 of Arms Act.
Plea of accused pleaded not guilty
Final Order Acquitted
Date of reserve for orders 22.07.2011
Date for announcing the orders 22.07.2011
Brief facts and pre trial procedure
1.The case of the prosecution is that on 28.02.2002 PW-4 SI Naresh/ IO was on patrolling duty along with PW-1 Ct. Raghubir near Akash Cinema, Adarsh Nagar, Delhi. At about 09.40 AM, a secret information was received that one person is standing behind Akash Cinama and he is C/No. 70/02 Unique ID No. 02401R0420332002 Page No. 1 FIR No. 68/02 PS: Adarsh Nagar S/v Ajay Kumar having an illegal knife. Thereafter, IO asked 4-5 passers by to join the investigation but none agreed. Without wasting time, they went there and the accused started running after seeing them. On suspicion, they chased him and apprehended the accused Ajay Kumar. On his casual search, one buttondar knife was recovered from his left side pocket of his wearing pant. Sketch of the knife was prepared and same was measured and total length of knife was found to be 21.3 CM, length of handle was 12.1 CM, length of blade was 9.2 CM and the width of blade was 1.9 CM. Knife was made of iron and there was jung on both sides of knife and the butt of the knife seemed to be made of silver and wood. On the butt, there was brass like button by which the knife could be opened. Pullanda of the knife was prepared and same was sealed with seal of VK. Seal was given to Ct. Raghubir after its use. The pullanda was seized. A rukka was prepared and the case was got registered. The accused was arrested by 2nd IO and accused was sent up for trial.
2. After completion of investigation, charge-sheet was filed. Charge U/S 25 Arms Act was framed against the accused to which, accused pleaded not guilty and claimed trial.
C/No. 70/02 Unique ID No. 02401R0420332002 Page No. 2 FIR No. 68/02
PS: Adarsh Nagar S/v Ajay Kumar Trial
3. Prosecution examined four witnesses whose testimonies are touched upon in brief as under :-
3.1 PW-1 and PW-4 deposed that on 28.02.2002 they were on patrolling duty and a secret information was received that one person is standing behind Akash Cinama and he is having an illegal knife. Thereafter, PW-4 asked 4-5 passers by to join the investigation but none agreed.
Without wasting time, they went there and the accused started running after seeing them. On suspicion, they chased him and apprehended the accused Ajay Kumar. On his casual search, one buttondar knife was recovered from his left side pocket of his wearing pant. Sketch of the knife was prepared Ex. PW 1/A by PW-4 and same was measured and total length of knife was found to be 21.3 CM, length of handle was 12.1 CM, length of blade was 9.2 CM and the width of blade was 1.9 CM. Knife was made of iron and there was jung on both sides of knife and the butt of the knife seemed to be made of silver and wood. On the butt, there was brass like button by which the knife could be opened. Pullanda of the knife was prepared and same was sealed with seal of VK. Seal was given to Ct. Raghubir after its use. The C/No. 70/02 Unique ID No. 02401R0420332002 Page No. 3 FIR No. 68/02 PS: Adarsh Nagar S/v Ajay Kumar pullanda was seized vide memo Ex.PW 1/B. A rukka Ex. PW 4/A was prepared by PW-4 and same was handed over to Ct. Raghubir for getting the case registered. After having got the case registered Ct. Raghubir came back to spot with HC Vijay Kumar who was marked further investigation of case. PW-4 handed over the custody of the accused, relevant documents and case property to 2nd IO HC Vijay Kumar who prepared the site plan at his instance. His supplementary statement was recorded and thereafter PW-4 was relieved. PW-1 and PW-4 correctly identified the accused and case property in the Court.
3.2 PW-2 ASI Vijay Kumar deposed that on 28.02.2002, Ct. Raghubir handed over him a rukka and copy of FIR of the present case for further investigation of the case. Thereafter, he along with Ct. Raghubir went to the spot i.e. Akash Cinema Azadpur. There, SI Naresh Bhatia handed over him the custody of accused, a sealed pullanda and relevant documents. PW-2 prepared a site plan Ex. PW 2/A at the instance of SI Naresh Bhatia whose supplementary statement was recorded by him and thereafter he was relieved. Thereafter, accused was arrested and personally searched vide memo Ex. PW 1/C and Ex. PW 1/D. PW-2 recorded the C/No. 70/02 Unique ID No. 02401R0420332002 Page No. 4 FIR No. 68/02 PS: Adarsh Nagar S/v Ajay Kumar statement of Ct. The case property was deposited in mallkhana and accused was put behind the bars. PW-2 also placed on record the photocopy of notification mark A. During cross examination conducted by Ld. Defence Counsel PW-2 stated that his duty hours were from 08.00 AM to 08.00 PM. The distance between Akash Cinema and PS is about ½ kms/ ¾ kms. At about 11.45 AM, he left the PS for spot. He went to the spot on foot. He further stated that he draw the site plan without scale. 3.3 PW-3 W/ASI Bhagwan Devi deposed that she was the Duty Officer at the relevant time and she registered the FIR Ex. PW 3/A on the basis of the abovesaid rukka and also made his endorsement on the rukka Ex. PW 3/B. Statement of accused and defence
4. In his statement recorded U/S 313 CrPC, accused claimed his innocence. He took the defence of false implication by planting case property. He did not prefer to examine any witness in defence. Appreciation of evidence in light of arguments advanced by the parties
5. Having touched upon the statements of PWs, I shall consider the rival contention of parties. Accused has highlighted several infirmities in C/No. 70/02 Unique ID No. 02401R0420332002 Page No. 5 FIR No. 68/02 PS: Adarsh Nagar S/v Ajay Kumar investigation which are being discussed hereunder along with the explanations therefore advanced by Ld. APP for the State. 5.1 It is firstly highlighted by accused that the IO has not joined any independent public witness despite availability. Admittedly, several public witnesses were present at the time of apprehension of accused and while completing the formalities at the spot but none of the public witnesses was even requested to become witness. This casts doubt about sincere efforts made by the IO to join independent witnesses. In Roop Chand v/s State of Haryana reported in 1990 (1) CLR 69, it was observed that such explanations that the public persons refused to join the proceedings are unreliable and in Pradeep Narayan V/S State of Maharashtra reported in AIR 1995 S.C. 1930 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.
5.2 It is settled proposition of law that Sub Section 4 of Section 100 CrPC is directory provision, however, explanation of non joining of independent witness should be plausible. The explanation put forward by the prosecution for non joining of independent witness appears to be implausible for reason C/No. 70/02 Unique ID No. 02401R0420332002 Page No. 6 FIR No. 68/02 PS: Adarsh Nagar S/v Ajay Kumar that there was ample time with the IO at least to note down the particulars of the persons who refused to join the investigation. The same creates doubt regarding the fairness of the investigation.
5.3 It is also noteworthy that the most crucial part of the investigation has been conducted by the complainant ASI Kaptan Singh even before registration of FIR. Since, he was present at the spot along with other police official, no explanation has been put forth by the prosecution as to why despite availability, the investigation was not handed over to some other senior officer. In such case, as observed by Hon'ble Supreme Court in the case titled as Megha Singh V/S State of Haryana reported in 1995 Crl. L. J. 3988 and as held in the case titled as Sunil V/S State reported in 1999 (1) JCC 85 (Delhi) benefit of doubt is to be given to the accused. 5.4 It is also highlighted by accused that on the recovery Memo,the FIR number finds mention and it has not been explained by the prosecution. Admittedly, these documents were prepared before registration of FIR. When documents are prepared before registration of FIR and it contains the FIR number, then interference has to be drawn that either FIR was recoded prior in time or the documents were prepared later on and in such cases, C/No. 70/02 Unique ID No. 02401R0420332002 Page No. 7 FIR No. 68/02 PS: Adarsh Nagar S/v Ajay Kumar benefit of doubt is to be given the the accused.
5.5 It is next pointed out by accused that the seal was kept by the police officials themselves and was not handed over to any independent person and prosecution has also failed to prove that the case property remained intact and was not tampered with till the time it was produced in the Court which was more important when the seal remained with the police official of the same police station.
5.6 It is noteworthy that no effort at all was made by the police to ascertain the source from where the alleged weapon was acquired by the accused. No explanation is coming forthwith on such effort so not made. This lapse in investigation certainly accrues a benefit in favour of accused.
6. All the lapses in investigation, discussed herein above creates a doubt on the very recovery of one buttondar knife from the possession of accused. The lapses are material one and cannot be ignored. It is settled proposition of law that if the investigation suffers from taint then the entire prosecution case becomes open to serious doubts and challenges. The material is insufficient to record a finding of guilt of the accused and the safer course available is to acquit the accused giving him a benefit of doubt. C/No. 70/02 Unique ID No. 02401R0420332002 Page No. 8 FIR No. 68/02
PS: Adarsh Nagar S/v Ajay Kumar In view of the above said discussion, the prosecution has failed to prove the guilt of the accused beyond reasonable doubt. Accordingly, I acquit the accused Ajay Kumar for the offence U/S 25/54/59 of Arms Act.
7. The Bail Bond stands cancelled and surety for the accused stands discharged. Any endorsement placed on the documents of the surety may accordingly, be cancelled. The original documents of the surety, if retained on record be returned against acknowledgment. File be consigned to record room.
Announced in open court (Neeraj Gaur)
dated 22.07.2011 Metropolitan Magistrate-IV
Rohini Courts, Delhi
C/No. 70/02
Unique ID No. 02401R0420332002 Page No. 9