Delhi District Court
State vs . Sunil on 26 April, 2023
IN THE COURT OF SH. AAKASH SHARMA, MM-08, WEST
DISTRICT, ROOM NO. 30, TIS HAZARI COURTS, DELHI.
FIR No. : 148/2019
U/s : 25/54/59 Arms Act
P.S. : Paschim Vihar West
State Vs. Sunil
CNR No. DLWT-02-014102-2019
JUDGMENT:
a) Sl. No. of the case : 6823/2019
b) Name & address of the : Ct. Mukesh, No. 1559/OD,
complainant. PS Paschim Vihar West, Delhi.
c) Name & address of : Sunil S/o Shiv Prasad Gupta,
accused R/o H.No. A-14, Gali No. 2,
Panchsheel Enclave, Vikas Nagar,
Uttam Nagar, Delhi.
d) Date of Commission of : 05.04.2019
offence
e) Offence complained off : u/S 25(1B)(b) Arms Act
f) Plea of the accused : Pleaded not guilty.
g) Final Order : Acquitted
h) Date of such order : 26.04.2023
j) State Represented by : Sh. Salil Maheshwari, Ld. APP
k) Accused Represented by : Sh. R.R. Murti, Ld. Counsel
Date of Institution : 03.09.2019
Final arguments heard on : 21.04.2023
STATE Vs. SUNIL FIR NO. 148/2019 Page No. 1/16
Judgment Pronounced on : 26.04.2023
BRIEF STATEMENT OF REASONS FOR DECISION: -
1. Briefly stated, case of the prosecution is that on 05.04.20219 at about 04:30 PM at Sai Baba Mandir, PVC Market, Jwalapuri, Delhi within the jurisdiction of PS Paschim Vihar West, accused was found in possession of one buttondar knife from the right side pocket of the wearing pants of the accused in contravention of notification issued by the Delhi Administration.
2. After investigation, challan for offence u/S 25(1B)(b) Arms Act was filed. Compliance of Section 207 Cr.P.C was done.
3. Charge for committing the offence punishable under Section 25/54/59 Arms Act was framed against accused on 12.02.2020. He pleaded not guilty and claimed trial.
4. To substantiate its case, the prosecution examined three STATE Vs. SUNIL FIR NO. 148/2019 Page No. 2/16 witnesses i.e. PW-1 Ct. Mukesh, PW-2 ASI Anil Kumar and PW-3 Ct. Naveen.
5. PW-1 Ct. Mukesh, No. 1559/OD, PS Paschim Vihar West, is the witness / complainant in the present case, who deposed that on 05.04.2019, he was posted as Constable at PS Paschim Vihar West. On that day, he was on patrolling duty in the area on govt. motorcycle i.e. DL 1SZ 5334 and two other govt. Motorcycles were also accompanying him in the patrolling by Ct. Mahesh having motorcycle no. DL 1SY 3734 and Ct. Naveen having motorcycle no. DL 1SAD 9538. During patrolling, they all three were present at Sai Mandir, PVC market and were conducting joint vehicle checking. At about 4.30 PM, one motorcycle bearing no. DL 4SCT 6542 came from the side of Sayyed Gaon on which three persons were present and on seeing them, started moving back. On suspicion after going ahead 15-20 steps, they stopped the said motorcycle and interrogated them. During interrogation the person sitting in between motorcycle, disclosed his name as Sunil (present in the STATE Vs. SUNIL FIR NO. 148/2019 Page No. 3/16 court that day and correctly identified by the witness), the person driving the motorcycle disclosed his name as Vicky S/o Umesh Kumar. Thereafter, he took cursory search of accused Sunil and found one buttondar knife present in right side pocket of the pant of accused. Thereafter, the said information was transmitted to DO by Ct. Naveen. The third person was apprehended by Ct. Manish, who disclosed his name as Deepak. After about 5-10 minutes, IO/HC Anil Kumar reached at the spot from PS and recorded his statement which was Ex.PW1/A. Thereafter, the IO prepared the sketch of buttondar knife on white blank paper which was Ex.PW1/B. IO seized the said buttondar knife vide seizure memo Ex.PW1/C. IO prepared site plan at his instance. IO arrested the accused Sunil in his presence at the spot vide arrest memo Ex.PW1/D and accused was personally searched vide memo Ex.PW1/D. After that IO handed over seal of AK to him. Medical examination of accused was conducted and after that they went back to PS where the case property was deposited in malkhana and accused was put behind bars. All the documents prepared by IO on the spot were STATE Vs. SUNIL FIR NO. 148/2019 Page No. 4/16 prepared before registration of FIR.
At that stage, MHC(M) had produced one pulanda bearing particulars of the case and seal of AK. Same was ordered to be opened with the permission of the Court and found containing one buttondar knife. Same was shown to witness, who correctly identified the same stating that the same was recovered from the right side pocket of accused Sunil. Case property was Ex.P1.
Cross-examination was treated as nil despite opportunity given.
6. PW-2 ASI Anil Kumar, No. 1230/OD, PS Paschim Vihar West, Delhi, is the witness / IO in the present case, who deposed that on 05.04.2019, he was posted as HC at PS Paschim Vihar West. On that day, he received a call from the DO in the PS regarding apprehension of 3 boys and asked him to reach at the spot i.e. Sai Baba Mandir, PVC Market, Paschim Vihar, Jwalapuri, Delhi. After about 5-10 minutes, he reached at the spot from PS and found Ct. Mukesh present at the spot alongwith accused STATE Vs. SUNIL FIR NO. 148/2019 Page No. 5/16 Sunil (present in the court that day and correctly identified by the witness. He was the summoned witness. He was the IO in the present case. On 05.04.2019 at 04.45 PM, CT Mukesh, CT Naveen and CT Mahesh were on the patrolling duty on their motorcycle and were checking the vehicles near Sai Baba Temple, PVC market, Paschim Vihar. During the checking, all these police officials found that three persons namely Sunil (who was present in the Court that day and correctly identified by the witness), Naveen and another person whose name he was not able to recall were coming on a motorcycle of the make Hero Honda, during their personal search a bronze button knife was recovered from the left pocket of the trouser of accused Sunil. The seizure memo was already exhibited as Ex. PW1/C and the sketch of the knife was already Ex. PW1/B. Accordingly, the personal search memo of the accused was also prepared as the same was already Ex. PW1/E . Then, accused was formally arrested on the spot vide arrest memo which was already Ex.PW1/D. Thereafter, the whole incident was brought into the notice of the SHO concerned. Accordingly, the interrogation STATE Vs. SUNIL FIR NO. 148/2019 Page No. 6/16 report of accused Sunil was prepared and the same was Ex.PW4/A. Thereafter, the FIR was registered on the complaint of the complainant/CT Mukesh and the complaint of the CT Mukesh was already Ex. PW1/A. On the basis of his complaint the present FIR was registered. Accordingly, at the instance of CT Mukesh/complainant he prepared the site plan which was Ex.PW4/B. Accordingly, he seized the recovered knife with the seal mark of 'AK' and sumitted before MHCM(CP) and report qua the same was Ex.PW4/C. Thereafter, the accused was taken to Sanjay Gandhi Hospital for his medical examination and the report qua the receiving of the recovered knife was Ex.PW4/D. Accordingly, in the course of investigation, he recorded the statement of CT Mukesh, CT Naveen u/S 161 Cr.P.C. He had also endorsed the rukka which was Ex. PW4/E. In his cross-examination, witness deposed that he was on duty from 08:00 am to 08:00 pm. He could not tell about the DD entry pertaining to the patrolling duty of the CT Mukesh, CT Naveen, CT Mahesh. He did not remember the possession no. of the motorcycle of the police officials who were on their patrolling STATE Vs. SUNIL FIR NO. 148/2019 Page No. 7/16 duty. The checking of the vehicles were conducted without picket duty. He had not prepared pointing out memo to show the position of the police officials who was conducting checking of the vehicles. Public persons were present at the spot. He could not tell the no. of vehicles, which were checked by the police officials on that day. He also could not tell the registration no. of the vehicles which were checked by the police officials on that day. He did not serve any written notice u/s 160 Cr.P.C. to any public person for the purpose of joining the investigation. He orally requested to the public person but they all refused. He did not took any action against the public person, who refused to join the investigation. It was correct that no any official photographer joined in the investigation of the present case. He could not tell the registration no. of the vehicle of the accused. He had not offered their personal search prior to entering into the personal search of the alleged accused person. He could not tell the colour of the attire of the alleged accused person which he was wearing at the time of the alleged incident. He had not called crime team at the spot. He had not taken chance print STATE Vs. SUNIL FIR NO. 148/2019 Page No. 8/16 and finger print from the alleged knife and cloth of the alleged accused. It was correct to (sic) public person was joined at the time of alleged recovery. There were many shops near the spot, since it was a clustered settlement. He prepared the tehrir at around 04:45 pm and handed over the same to CT Mukesh at around 05:00pm. The seizure memo was prepared at around 07:45 pm at the malkhana of the PS. The arrest memo was prepared at around 04:40 pm. He received the computerized copy of FIR and tehrir at around 07:45 pm. It was correct that he had mentioned the pinpointed positioning of each police official who were conducting the search operation at the spot.
At that stage, the witness was confronted with the site plan which was Ex.PW4/B wherein the same was not mentioned on the site plan. At around 07:40 pm along with the other related person left the spot. It was wrong to suggest that he was not present on the spot therefore, he was not aware of the correct facts. It was wrong to suggest that no recovery was affected from the alleged accused person. It was wrong to suggest that all the documentation work pertaining to the STATE Vs. SUNIL FIR NO. 148/2019 Page No. 9/16 present case in hand was done in the PS. It was wrong to suggest that he was deposing falsely being the IO of the case in order to falsely implicate the alleged accused.
7. PW Ct. Naveen, No. 3101/OD, PS Mangol Puri, Delhi, is the witness in the present case, who deposed that on 05.04.2019, he was posted as Ct. at PS Paschim Vihar West. On that day he was on patrolling duty in the area on Govt. Motorcycle bearing registration No. DL-1SAD-9538 and two other Govt. Motorcycles were also accompanying him in the patrolling by Ct. Mahesh having Motorcycle No. DL-1SY-3734 and Ct. Mukesh having Motorcycle No. DL-1SZ-5334. During patrolling, they all three were present at Sai Mandir, PVC Market and were conducting joint vehicle checking. At about 04:30 PM, one motorcycle bearing no. DLSCT-6542 came from the side of Sayyed Gaon on which three persons were present and on seeing them, started moving back. On suspicion after going ahead 15-20 steps, they stopped the said motorcycle and interrogated them. During interrogation the person sitting in STATE Vs. SUNIL FIR NO. 148/2019 Page No. 10/16 between motorcycle disclosed his name as Sunil, who were present in the Court that day and correctly identified by the witness. The person driving the motorcycle disclosed his name as Vicky S/o Umesh Kumar. IO came at the spot and he produced the motorcycle of the accused before the IO.
Upon cross-examination by the Ld. Counsel for accused, witness deposed that it was correct that knife was not recovered from the accused in his presence.
8. Accused admitted u/S 294 Cr.P.C. FIR 148/2019, Certificate 65-B Indian Evidence Act, DD No. 48-B dated 05.04.2019 and DAD Notification 3/1/3/203/7/8 Home (G) dated 17.02.1979 vide Ex.A1 - Ex.A4 respectively.
9. Statement Under Section 313 Cr.P.C. was recorded of the accused and all the incriminating evidence was put to him and the accused stated that the witnesses have deposed falsely against him and that they are interested witnesses. That he has been falsely implicated and the case property has been planted STATE Vs. SUNIL FIR NO. 148/2019 Page No. 11/16 upon him. Accused did not wish to lead defence evidence.
10. I have heard Ld. APP for the State, Ld. Counsel for the accused and have carefully gone through the record.
11. 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 is supposed to stand on its own legs and it cannot derive any benefits whatsoever from the weakness, if 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.
12. To infer the innocence of the accused being such a crowded place i.e. near Sai Baba Mandir, PVC market Jwalapuri, where admittedly public persons were present. It is seen that no independent public witness has been cited qua the recovery by the STATE Vs. SUNIL FIR NO. 148/2019 Page No. 12/16 investigating agency even though, as per the testimony of PW-1, two other persons apart from the accused Sunil namely, Vicky S/o Umesh Kumar and third unknown person were also there on the motorcycle itself. Whereas as per, Section 165 (4) Cr.P.C the provision of Section 100 Cr.P.C. is applicable whenever the police officer conducts personal search and in the present case the police had ample opportunity to join public persons by giving a written notice u/S 160 Cr.P.C. and if they refused to note their names and addresses so as to take action against them. 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 proceedings are unreliable. In case of "Pradeep Narayana V. State of Maharashtra" 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 STATE Vs. SUNIL FIR NO. 148/2019 Page No. 13/16 witness.
13. From the overall testimony of the witnesses, it is clear that neither the PW-1 Ct. Mukesh, who conducted the personal search of the accused nor the IO /PW2 ASI Anil Kumar joined any public witness at the time of recovery/arrest or while completing the formalities despite availability of public persons on such a busy area. PW-2 could have easily joined an independent witness at the time and place, where the accused was apprehended and when the seizure formalities were being completed, since public persons were admittedly present as deposed. Even then, PW1 and PW2 failed to join any public witness. All the witnesses examined are police witnesses. This casts a doubt about the sincere efforts made by the investigation agency to join independent witnesses.
14. The Section 100(4) CrPC provides that "Before making a search, the officer or other person about to make it shall call upon 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 said locality is available or is STATE Vs. SUNIL FIR NO. 148/2019 Page No. 14/16 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".
15. In the case at hand, the above stated provision has not been complied with.
16. Perusal of the testimony of witnesses reflects that the seizure memo of knife Ex.PW1/C, was prepared before the registration of FIR. At the time only DD entry No. 48-B was in the knowledge of the IO, then how could IO have written the FIR no. upon the seizure memo of knife i.e. Ex.PW1/C. When document seizure memo was prepared before registration of FIR and 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. In this regard, it is also noticeable that IO did not obtain any chanceprint from the buttondar knife or even the finger prints of the accused so as to conduct a forensic examination to establish the possession of the alleged buttondar knife with the accused and STATE Vs. SUNIL FIR NO. 148/2019 Page No. 15/16 to inspire confidence in the case of the prosecution. It is also noticeable that as per the narration of the chargesheet, all three persons on the motorcycle DL-4SCT-6542 were found in possession of incriminating articles and it is described that two of them were carrying buttondar knife, whereas one was having three mobile phones. However, in the chargesheet names of only two persons i.e. Vicky and Sunil (present accused) was stated and the name of the third person is conspicuously missing in the chargesheet.
17. In the case at hand, all the lapses in investigation cast a doubt on the very recovery of the buttondar knife from the possession of the accused. This court is of the considered view that prosecution has not been able to prove the guilt of the accused and has failed to prove its case beyond reasonable doubt. Accordingly, accused Sunil is acquitted of the offence under Section 25(1B)(b) Arms Act.
Dictated & Announced in Open Court (Aakash Sharma) On the 26th day of Aprilr, 2023 MM-08(West)/Delhi 26.04.2023 STATE Vs. SUNIL FIR NO. 148/2019 Page No. 16/16