Delhi District Court
State vs Aman Prakash on 6 December, 2023
IN THE COURT OF MS. BHARTI BENIWAL, METROPOLITAN
MAGISTRATE-11, DWARKA COURT, NEW DELHI
FIR No.424/2023
PS Janakpuri
State Vs. Aman Prakash
U/s 25/54/59 Arms Act
CNR No. : DLSW020583032023
Cr Case No. : 12551/2023
Date of institution of the case : 08.11.2023
Date of commission of offence : 31.10.2023
Name of the complainant : HC Vikram
Name of accused and address : Aman Prakash
S/o Sh.Ram Prakash @
Raju
R/o H.No.A-104, Gali
No.5, Ramesh Enclave,
Budh Vihar, Delhi.
Offence complained of : U/s 25/54/59 Arms Act
Plea of the accused : Pleaded not guilty.
Ld. APP for the State : Sh.Amit Sehrawat
Final order : Acquital
Date of judgment : 06.12.2023
FIR No.424/2023
State vs.Aman Prakash Page No. 1 of 11
JUDGMENT
1. The brief facts of the case of the prosecution are that on 31.10.2023 at about 10 : 30 P.M. at District Park, Janakpuri, Delhi, accused Aman Prakash was found in possession of one button operated knife and after completion of the investigation, charge-sheet was filed against the accused u/s 25/54/59 Arms Act.
2. On receipt of chargesheet, cognizance of offence was taken and accused was summoned. After supply of copy of chargesheet, a formal charge was framed u/s 25/54/59 of Arms Act against the accused to which he pleaded not guilty and claimed trial.
3. Prosecution has examined 3 witnesses to prove its case.
4. Prosecution examined ASI Savita as PW1. He deposed that on 31.10.2023, he was posted as a duty Officer from 8 P.M. to 8 A.M. On that day, HC Vikram had come to the P.S. at about 11:30 P.M. with the Rukka and he had informed the SHO regarding the same and then registered the FIR on the same. Endorsement on rukka is Ex.PW1/A bearing his signature at point 'A'. The copy of FIR is Ex.PW1/B bearing his signatures at point 'A' and certificate u/s 165B of Indian Evidence Act is Ex. PW1/C bearing his signature at point 'A'.
5. Prosecution examined HC Vikram Singh as PW2. He deposed that on 31.10.2023, he was on beat patrolling duty from 5 P.M to 11 P.M. At about 10:30 P.M, while he was patrolling near District Park, Janakpuri, he saw one person sitting inside the said park. Thereafter, as he approached him, accused stood up and started walking and witness chased him and apprehended him and asked him about the purpose of him being at the spot which he could give any satisfactory answer. He got suspicious and conducted his prima facie search and found one button operated knife from FIR No.424/2023 State vs.Aman Prakash Page No. 2 of 11 right pocket of his pants. Thereafter, he called the D.O. P.S. Janakpuri telephonically and informed about the same. Thereafter, after about 10 minutes, IO HC Maange Ram came to the spot and he handed over the accused with recovered knife to him. IO recorded his statement at the spot which is Ex.PW2/A bearing his signatures at point 'A'. IO prepared Tehrir and prepared sketch memo of knife which is Ex.PW2/B bearing his signature at point 'A'. Total length of the knife was 24 CM, length of the blade was 11 CM, length of the but was 13 CM and breadth of the blade was 2.6 CM. Thereafter, he went to P.S. Janakpuri with the Tehrir to get the FIR registered and came back to the spot with copy of FIR and original Tehrir and handed over the same to the IO. Thereafter, IO seized the recovered knife vide seizure memo Ex.PW2/C bearing his signatures at point 'A'. Site plan was prepared by the IO in his presence which is Ex.PW2/D bearing his signatures at point 'A'. The accused was arrested in his presence vide arrest memo Ex.PW2/E bearing his signatures at point 'A' and his personal search was conducted vide personal search memo Ex.PW2/F. Further, disclosure statement of the accused was recorded which is Ex.PW2/G bearing his signatures at point 'A'. Thereafter, the accused was taken for medical examination at DDU Hospital, Hari Nagar and subsequently, the accused was taken to P.S. Janakpuri. The case property was deposited in the Malkhana at P.S. Jankapuri by the IO. Accused was present in the court and he was correctly identified by witness. MHC(M) produced one white pullanda bearing seal of MR. Seal was broken and one button operated knife was taken out and witness correctly identified the same.
6. Witness was cross examined by ld. Defence Counsel, wherein he stated that there was no CCTV Camera installed in the Park. That he did not check if there was any CCTV camera installed near the spot. IO had reached the spot within 10-12 minutes of his making the call to the D.O. However, the witness did not remember the exact time when he came to the spot. There were public persons present at the spot and IO had asked to join the investigation. However, none agreed citing their personal reasons. That no FIR No.424/2023 State vs.Aman Prakash Page No. 3 of 11 notice was served by the IO upon the public persons. IO had put the case property on a white paper and prepared its sketch with its measurements. IO did not seized the pants of the accused from which the case property was recovered. That he did not click any photographs of the case property. There were street light near the spot. That he did not remember the time when he came back to spot with copy of FIR. IO had measured the breadth of the blade via scale. Witness denied the suggestion that the case property was falsely planted upon the accused.
7. Prosecution examined HC Mange Ram as PW3. He deposed that on 31.10.2023, he was on beat patrolling duty but was present in the P.S. when he received the DD No.170. Thereafter, he reached at the spot near District Park, Janakpuri where he met with HC Vikram who handed over the accused with recovered knife to him. He recorded his statement at the spot which is Ex.PW2/A bearing his signature at point 'B'. He prepared Tehrir which is Ex.PW3/A bearing his signature at point 'A' and prepared sketch memo of knife which is Ex.PW2/B bearing his signature at point 'B'. Total length of the knife was 24 CM, length of the blade was 11 CM, length of the but was 13 CM and breadth of the blade was 2.6 CM. Thereafter, he went to P.S. Janakpuri with the Tehrir to get the FIR registered and came back to the spot with copy of FIR and original Tehrir and handed over the same to him. Thereafter, he seized the recovered knife vide seizure memo Ex.PW2/C bearing his signature at point 'B'. Site plan was prepared by him which is Ex.PW2/D bearing his signatures at point 'B'. The accused was arrested by him vide arrest memo Ex.PW2/E bearing his signatures at point 'B' and his personal search was conducted vide personal search memo Ex.PW2/F bearing his signature at point 'A'. Further, disclosure statement of the accused was recorded which is Ex. PW2/G bearing his signatures at point 'B'. One mobile phone make VIVO was recovered at the instance of the accused which was disclosed by him in his disclosure statement which is Ex.PW2/G and he seized the same vide seizure memo Ex.PW3/B bearing his signatures at point 'A'. Thereafter, the accused was taken for medical FIR No.424/2023 State vs.Aman Prakash Page No. 4 of 11 examination at DDU Hospital, Hari Nagar and subsequently, the accused was taken to P.S. Janakpuri. The case property was deposited in the Malkhana at P.S. Jankapuri by him. Accused was present in the court and he was correctly identified by the witness. MHC(M) produced one white pullanda opened in the testimony of PW2 and witness correctly identified the same.
8. Witness was cross examined by ld. Defence Counsel wherein he stated that there was no CCTV camera installed in the park. That he did not check if there was any CCTV camera installed near the spot. That he had reached the spot at about 10:45 P.M. That there were public persons present at the spot and he had asked to join the investigation, however, none agreed citing their personal reasons. No notice was served by him upon the public persons. That he had put the case property on a white paper and prepared its sketch with its measurements by IO kit. That he did not seize the pants of the accused from which the case property was recovered. That he did not click any photographs of the case property. That he did not remember the time when HC Vikram came back to spot at 11:15 P.M. That he had measured the breadth of the blade via IO Kit.
9. Vide separate statement recorded u/s 294 Cr.P.C, accused had admitted the documents MHC(M) PS Janakpuri with register no.19 Ex.A1 and Concerned Clerk Office Home (General) Delhi Administration, Delhi with original DAD Notification No.F-13/451/179 Home (General) dt.29.10.1980. Hence the above documents were ordered to be read in evidence without its formal proof.
10. No other witness was examined by prosecution and hence, PE was closed vide order dated 01.12.2023.
FIR No.424/2023 State vs.Aman Prakash Page No. 5 of 1111. Statement of accused under Section 313 Cr.P.C. was recorded wherein the entire incriminating evidence was put to him. According to him, he has been falsely implicated in the present case. That he was lifted by police officials and the recovery of weapon has been falsely planted upon him. Accused chose not to lead any evidence in his defence and hence, the matter was put up for final arguments.
12. Final arguments were thereafter heard on behalf of State as well as the accused.
13. After hearing Sh.Amit Sehrawat, Learned Assistant Public Prosecutor for the state and Ms.Priyanka, Learned Legal Aid Counsel for the accused and having gone through the case file carefully and meticulously, it is observed by the court that it is the case of prosecution that on the fateful day accused was found in possession of one buttondar knife. The court is of the view that to prove the charge against the accused, the prosecution is required to prove the allegation beyond reasonable doubt.
14. The relevant portion of Arms Act is reproduced as under:
Section 25: Punishment for certain offences:
(1) whoever-
(a) Manufactures, sells, transfers, converts, repairs, tests or proves, or exposes or offers for sale or transfer, or has in his possession for sale, transfer, conversion, repair, test or proof, any arms or ammunition in contravention of section 5; or FIR No.424/2023 State vs.Aman Prakash Page No. 6 of 11
(b) Shortens the barrel of a firearm or converts an imitation firearm into a firearm in contravention of section 6; or 2[***]
(c) bring into, or takes out of, India, any arms or ammunition of any class or description in contravention of section 11, shall be punishable with imprisonment for a term which not be less than three years but which may extend to seven years and shall also be liable to fine.
15. In the present case, the incident took place at a crowded place and that too around the festive season. Despite that, investigating officer has not bothered to join any independent witness in the investigation. In the present matter, no mentioning of attempts of joining any independent witness has been mentioned in rukka Ex.PW3/A. I have also perused testimony of PW2/Complainant HC Vikram and PW3/IO HC Mange Ram. In the cross examination, it has been admitted by PW2 and PW3 that there were public persons present at the spot and IO had asked them to join the investigation but none agreed citing their personal reasons. It is pertinent to note that neither PW1/complainant stated the aforesaid fact in his complaint Ex.PW2/A and nor the PW2/IO has mentioned the same in the rukka. No sincere efforts can be seen on the part of police officials to join any independent witness. No description of the aforesaid independent persons, if any, mentioned by the police officials.
16. In case law reported as "Anoop Joshi Vs. State" 1992 (2) C.C. Cases 314 (HC), High Court of Delhi had observed as under:-
"18. It is repeatedly laid down by this Court 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 evidence 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 FIR No.424/2023 State vs.Aman Prakash Page No. 7 of 11 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 shopkeepers 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".
17. In a case law reported as "Roop Chand Vs. The State of Haryana" 1999 (1) C.L.R. 69, the 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 to 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 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 FIR No.424/2023 State vs.Aman Prakash Page No. 8 of 11 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 provision 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".
18. Non joining of public witnesses despite availability casts a doubt on the fairness of the investigation. Reliance is placed on paragraph 6 of the judgment in Pawan Kumar v. The Delhi Administration, 1989 Cri.L.J. 127, wherein the Hon'ble High Court of Delhi had observed as under:
" ... According to Jagbir Singh, he did not join any public witness in the case while according to Kalam Singh, no public person was present there. It hardly stands to reason that at a place like a bus stop near Subhas Bazar, there would be no person present at a crucial time like 07.30 p.m. when there is a lot of rush of commuters for boarding the buses to their respective destinations. Admittedly, there is no impediment in believing the version of the Police officials but for that the prosecution has to lay a good foundation. At least one of them should deposed that they tried to contact the public witnesses or that they refused to join the investigation. Here is a case where no effort was made to join any public witness even though number of them were present. No plausible explanation from the side of the prosecution is forthcoming for not joining the independent witnesses in a case of serious nature like the present one. It may be that there is an apathy on the part of the general public to associate themselves with the Police raids or the recoveries but that apart, at least the I.O. should have made an earnest effort to join the independent witnesses. No attempt in this direction appears to have been made and this, by itself, is a FIR No.424/2023 State vs.Aman Prakash Page No. 9 of 11 circumstance throwing doubt on the arrest or the recovery of the knife from the person of the accused."
19. This Court is, however, conscious that the prosecution case cannot be thrown out or doubted on the sole ground of non-joining of public witnesses as public witnesses keep themselves away from the Court unless it is inevitable, as has been held in Appabhai and another v. State of Gujarat, AIR 1988 SC 696. However, in the present case, it is not only the absence of public witnesses which raises a doubt on the prosecution but there are other circumstances too, as discussed hereinafter, which raise suscpicion over the prosecution version.
20. Further, the seal remained with a police official only and it has not been proved that the seal was handed over to any other independent public person and therefore, the possibility of sample being tempered with cannot be ruled out. Reference may be made to the judgment of Subeg Singh v. State of Haryana, reported as 1992(3) RCR (Criminal) 596. In the judgment titled as Karambir v. State of Delhi reported as 1997 JCC 520 it has been held that absence of proof that the specimen impression of the seal was deposited with MHCM(M) along with case property results in miscarriage of justice and is fatal to the prosecution.
21. It is trite in criminal jurisprudence that the prosecution is under an obligation to prove its case against the accused beyond reasonable doubt. The standard of proof to be adopted in criminal cases is not merely of preponderance of probabilities but proof beyond reasonable doubt on the basis of cogent, convincing and reliable evidence. It is also well settled that in case of doubt, the benefit must necessarily be allowed to the accused.
22. Thus, in view of the foregoing analysis, this Court is of the considered opinion that the benefit of doubt ought to be granted to the FIR No.424/2023 State vs.Aman Prakash Page No. 10 of 11 accused, who is entitled to be exonerated of the charges against him in the present case. The accused Aman Prakash is hereby acquitted of the offence punishable under Section 25 of Arms Act.
Accused be set at liberty.
Pronounced in open Court on this 6th Day of December, 2023. This judgment consists of 11 pages and each pages are signed by the undersigned.
(BHARTI BENIWAL) Metropolitan Magistrate-11 South West District, Dwarka Courts New Delhi FIR No.424/2023 State vs.Aman Prakash Page No. 11 of 11