Delhi District Court
State vs . Vishal @ Daaku on 29 October, 2022
IN THE COURT OF SH. GAURAV KATARIYA
METROPOLITAN MAGISTRATE07, NORTH, ROHINI, DELHI.
FIR No. 875/2015
U/s 25 of Arms Act, 1959
PS: Jahangir Puri
State vs. Vishal @ Daaku
Date of Institution of case:29.02.2016
Date of Judgment reserved: 29.10.2022
Date on which Judgment pronounced: 29.10.2022
JUDGMENT
Case Number : 4704/2017 Date of Commission : 30.09.2015 of offence Name of the : Ct. Chhotu Ram complainant
Name and address : Vishal @ Daaku S/o Sh. Sanjay Vaidya of the accused Offence complained : 25 of Arms Act, 1959 of Plea of accused : Not Guilty Final Order : Acquitted FIR No. 875/2015 State Vs. Vishal @ Daaku Page 1 of 13 BRIEF STATEMENT OF THE REASONS FOR THE DECISION
1. Vide this Judgment, this court shall dispose of the present case u/s 25 of Arms Act, 1959.
2. The story of the prosecution is that on 30.09.2015 at about 08:35 pm, on Road near Khatta, K Block, Jahangir Puri, Delhi within the jurisdiction of PS Jahangir Puri, accused Vishal @ Daaku was found in possession of one buttondar actuated knife without any license or permit, in contravention to the notification issued by the Delhi Administration and thereby, committed an offence under Section 25 of Arms Act, 1959. The knife was seized and taken into possession by the police. After completing the formalities, investigation was carried out.
3. Charge sheet was filed against the accused under Section 25/54/59 Arms Act in the court. Charge under Section 25 Arms Act was framed against the accused vide order dated 27.07.2016 to which he pleaded not guilty and claimed trial.
4. In order to prove the charge against the accused, the prosecution examined three witnesses :
(a) Constable Chhotu Ram
(b) Head Constable Ashok Kumar
(c) Sub Inspector Dinesh Kumar
5. Prosecution Witness 01 : Constable Chhotu Ram, No. 1837/NW, PS Mukherjee Nagar Ct. Chhotu Ram has deposed that on 30.09.2015, he was posted at PS Jahangir Puri as Constable. On that day, he alongwith Ct. Ashok was on patrolling duty in the area of Beat no. 2, K Block, Jahangir Puri. At about 08:25 pm, they reached at 1000 Wali gali, K Block Near Shiv Mandir, Jahangir Puri and met FIR No. 875/2015 State Vs. Vishal @ Daaku Page 2 of 13 with one secret informer and he informed them that one boy was wandering near the Khatta having a buttondar knife in his hand and showing the same to the passersby and if raided, he would be apprehended with the knife. After that, they went on the road K Block Khatta, Jahangir Puri and at the instance of secret informer, they apprehended the accused Vishal @ Daaku. He has further deposed that during the personal search of accused, one buttondar knife was recovered from the right dub of the pant of the said accused. He gave the said information to DO of PS Jahangir Puri. After some time, HC Dinesh reached at the spot. We handed over the custody of accused and recovered knife to IO. IO requested 4 to 5 public persons to join the investigation but none of them agreed and left the spot without disclosing their names and addresses.
Further, he has deposed, that IO prepared sketch of the recovered knife on white paper, which is exhibited as Ex.PW1/A bearing his signatures at point A. On measuring, the total length of knife was 33.5 cm, length of Fal was 16 cm, the length of dasta was 17.5 cm. Thereafter, IO seized the recovered knife vide memo which is exhibited as Ex.PW1/B bearing his signature at point A. IO prepared pullanda of the recovered knife and sealed it with the seal of DK. After using the seal, IO handed over the seal to Ct. Ashok.
Furthermore, he has deposed, that IO recorded his statement, which is exhibited as Ex.PW1/C bearing his signature at point A. Thereafter, IO prepared rukka on the basis of his statement and handed over the same to Ct. Ashok for registration of FIR. Accordingly, Ct. Ashok went to the PS Jahangir Puri and got registered the present FIR. After registration of FIR, Ct. Ashok came back to the spot and handed over the copy of FIR and original rukka to IO. He further deposed that IO prepared site plan at his instance, which is exhibited as Ex.PW1/D bearing his FIR No. 875/2015 State Vs. Vishal @ Daaku Page 3 of 13 signature at point A. IO recorded disclosure statement of accused vide disclosure memo, which is exhibited as Ex.PW1/E bearing his signatures at point A. IO arrested and personally searched the said accused vide memos which are exhibited as Ex.PW1/F and Ex.PW1/G bearing his signatures at point A. IO recorded his supplementary statement.
He has further deposed that after medical examination of accused, he was put into lock up and the case property was deposited in the malkhana. He had also identified the case property i.e. buttondar knife and thereafter, the said buttondar knife was exhibited as Ex. P1. This witness is duly crossexamined by Ld. Defence Counsel.
6. Prosecution Witness 02 : HC Ashok Kumar, No. 749/W, PIS No. 28103716 It is pertinent to mention that PW - 2 HC Ashok Kumar deposed on the same lines as PW - 1 Ct. Chhotu Ram deposed in his examination in chief, therefore, there is no need of repeating the same deposition for the sake of brevity. This witness is duly crossexamined by Ld. Defence Counsel.
7. Prosecution Witness 03 : SI Dinesh Kumar, No. 130/DAP, PIS No. 28861909.
SI Dinesh Kumar has deposed that on 30.09.2015, he was posted at PS Jahangir Puri as Head Constable. On that day, on receipt of DD No. 34A which is already exhibited as Ex. A2, he went to the spot i.e. on road, K Block, Near Khatta, Jahangir Puri, Delhi, where he met with Ct. Chhotu and Ct. Ashok and thereafter, FIR No. 875/2015 State Vs. Vishal @ Daaku Page 4 of 13 they handed over the custody of accused Vishal @ Daaku and one recovered buttondar knife to him. He also requested 4 to 5 public persons to join the investigation but none of them agreed and left the spot without disclosing their names and addresses. He recorded statement of Ct. Chhotu Ram which is already exhibited as Ex. PW 1/C bearing his signatures at Point B. He prepared sketch of the recovered knife on white paper which is already exhibited as Ex.PW1/A bearing his signature at point C. On measuring, the total length of knife was 33.5 cm, the length of Fal was 16 cm, the length of dasta was 17.5 cm. He seized the recovered knife vide memo which is already exhibited as Ex.PW1/B bearing his signature at point C. He prepared pullanda from the recovered knife and sealed with the seal of DK. After using the seal, he handed over the same to Ct. Ashok. Thereafter, he prepared rukka which is exhibited as Ex. PW 3/A bearing his signature at Point A and handed over the same to Ct. Ashok for registration of FIR. Accordingly, Ct. Ashok went to the PS Jahangir Puri and got registered the present FIR. After registration of FIR, Ct. Ashok came back to the spot and handed over the copy of FIR and original rukka to him.
Further, he has deposed that he prepared site plan at instance of Ct. Chhotu, which is already exhibited as Ex.PW1/D bearing his signatures at Point B. He recorded disclosure statement of accused vide disclosure memo, which is already exhibite das Ex. PW1/E bearing his signatures at point C. He arrested and personally searched the accused Vishal vide memos which are already exhibited as Ex. PW1/F and Ex. PW1/G bearing his signature at point C. He recorded the statement of the witnesses. After medical examination, accused Vishal was put into lock up and case property was deposited in the malkhana. He also identified the case property i.e. one buttondar knife.
This witness was duly crossexamined by Ld. Defence Counsel.
FIR No. 875/2015 State Vs. Vishal @ Daaku Page 5 of 138. Statement of accused Vishal @ Daaku was also recorded u/s 294 Cr.P.C in which, accused has admitted the factum of following documents i.e. Registration of FIR No. 875/2015 which is Ex. A1, DD Entry No. 34A dated 30.09.2015 which is Ex. A2, DD Entry No. 17B dated 30.09.2015 which is Ex. A3, DD Entry No. 30A dated 30.09.2015 which is exhibited as Ex. A4 and DAD Notification Order No. F 13/451/179 which is Ex. A5 and contents of Register No. 19 and 21 regarding the deposition of case property.
9. Thereafter, PE was closed and statement of accused u/s 313 Cr.P.C r/w 281 Cr.P.C. was recorded, wherein, the accused pleaded innocence but did not lead any evidence in his defence.
10. It is argued by Ld. APP that from ocular and documentary evidence or record, Prosecution has proved the case beyond reasonable doubt that accused Vishal @ Daaku was found in possession of knife and submitted that accused person should be convicted of the offence charged.
11. Per contra, it is argued by Ld. Counsel for accused that neither any person was made witness nor any handing over memo of seal was prepared. Further, no notice was served to the public persons, hence, the prosecution has miserably failed to prove its case beyond reasonable doubt. Therefore, the accused is liable to be acquitted.
12. I have heard the arguments addressed by the Ld. APP and the Ld counsel for the accused and perused the documents on record carefully.
FIR No. 875/2015 State Vs. Vishal @ Daaku Page 6 of 1313. Points for determination: Whether on "30.09.2015 at about 08:35 pm, on Road near Khatta, K Block, Jahangir Puri, Delhi within the jurisdiction of PS Jahangir Puri, accused Vishal @ Daaku was found in possession of one buttondar actuated knife without any license or permit, in contravention to the notification issued by the Delhi Administration".
14. From the over all testimony of the witnesses, it is clear that the IO has not joined any public witness in the investigation. In fact, not even an effort was made to join the public witnesses. There is a possibility that it was a chance recovery, however, at the time and place from where the accused was apprehended and when the formalities were being completed, there must be public persons around as it is a public place, which is expected to be crowded with people. Also, no reason as to why no public witness could be found has been put forth by the prosecution. All the witnesses examined are police witnesses. This casts a doubt about the sincere efforts made by the IO to join independent witnesses.
15. Regarding the importance of joining independent witness during investigation in a case like the present one, reliance may be placed on "Anoop Joshi Vs. State 1999(2) C.C. Cases 314 (HC), wherein, 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 shopkeepers could have been persuaded to FIR No. 875/2015 State Vs. Vishal @ Daaku Page 7 of 13 join the raiding party to 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".
16. Similarly, in Nanak Chand Vs. State of Delhi reported as DHC 1992 CRI LJ 55, it is observed as under:-
"that the recovery is proved by three police officials who have differed on who snatched the Kirpan from the petitioner and at what time. The recovery was from a street with houses on both sides and shops nearby. And, yet no witness from the public has been produced. Not that in every case the police officials are to be treated as unworthy of reliance but their failure to join witnesses from the public especially when they are available at their elbow, may, as in the present case, cast doubt. They have again churned out a stereotyped version. Its rejection needs no Napoleon on the Bridge at Arcola".
17. Also, in State of Punjab v. Balbir Singh, AIR 1994 SC 1872, the Hon'ble Supreme Court of India held as under :-
"It therefore emerges that non-compliance of these provisions i.e. Sections 100 and 165 Cr.P.C. would amount to an FIR No. 875/2015 State Vs. Vishal @ Daaku Page 8 of 13 irregularity and the effect of the same on the main case depends upon the facts and circumstances of each case. Of course, in such a situation, the court has to consider whether any prejudice has been caused to the accused and also examine the evidence in respect of search in the light of the fact that these provisions have not been complied with and further consider whether the weight of evidence is in any manner affected because of the non- compliance. It is well-settled that the testimony of a witness is not to be doubted or discarded merely on the ground that he happens to be an official but as a rule of caution and depending upon the circumstances of the case, the courts look for independent corroboration. This again depends on question whether the official has deliberately failed to comply with these provisions or failure was due to lack of time and opportunity to associate some independent witnesses with the search and strictly comply with these provisions." [Emphasis supplied]
18. Considering the aforesaid observations made by the Higher Courts, the omissions / failure on the part of investigating agency to join independent public witnesses create reasonable doubt in the prosecution story.
19. None of the recovery witnesses in their examination-in-chief have stated that they offered their personal search to accused before inspecting the knife carried by the accused persons. Principles of natural justice demanded that accused should have been offered search by recovery witness who allegedly recovered case property from accused and should have reduced this fact into writing which has not been done in present case and which fact diminishes credibility of prosecution version. Reliance being placed on a judgment of Hon'ble Orissa High Court reported as "Rabindernath Prusty Vs. State of Orissa". In this situation, it can be FIR No. 875/2015 State Vs. Vishal @ Daaku Page 9 of 13 said that search of the accused by above said police officials was in complete violation of the above said case law and the same can be said to be illegal & motivated.
20. From the aforesaid discussion, it is very clear that the manner in which the inquiry, seizure and search etc. has been conducted on the spot at the time of alleged recovery of weapon, it makes the prosecution version highly doubtful. In a criminal trial, the onus remains on the prosecution to prove the guilt of accused beyond all reasonable doubts and benefit of doubt, if any, must necessarily go in favour of the accused. 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.
21. The Section 100(4) Cr.P.C. provided that " before making a search of the officer or other person about to make it shall call upon the 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 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".
22. In the present case, the IO has even failed to note down the particulars of the person who refused to join the investigation and this creates doubt regarding the fairness of the investigation. The chances of false implication cannot be ruled out.
23. PW 1 and PW 2 both categorically deposed in their crossexaminations that, "
It is correct that handing over memo of seal was not prepared in his presence."FIR No. 875/2015 State Vs. Vishal @ Daaku Page 10 of 13
In these circumstances, the possibility of tampering of case property cannot be ruled out. Reliance is placed on "Ramji Singh V/s State of Haryana" 2007 (3) R.C.R. (Criminal) 452, the Hon'ble Punjab and Haryana High Court held that:
7. "The very purpose of giving seal to an independent person is to avoid tampering of the case property. It is well settled that till the case property is not dispatched to the forensic science laboratory, the seal should not be available to the prosecuting agency and in the absence of such a safeguard the possibility of seal, contraband and the samples being tampered with cannot be ruled out".
24. Similarly, Hon'ble Delhi High Court in "Safiullah v. State", 1993 (1) RCR (Criminal) 622, held that -
"10. The seals after use were kept by the police officials themselves. Therefore the possibility of tampering with the contents of the sealed parcel cannot be ruled out. It was very essential for the prosecution to have established from stage to stage the fact that the sample was not tampered with. Once a doubt is created in the preservation of the sample the benefit of the same should go to the accused."
25. It is pertinent to mention that PW 1 and PW 2 both in their cross - examinations that " they do not remember the DD Number vide which they were on patrolling duty". Further, Chapter 22 Rule 49 of Punjab Police Rules, 1934, provides that the hour of arrival and departure on duty at or from a police station of FIR No. 875/2015 State Vs. Vishal @ Daaku Page 11 of 13 all enrolled police officers of whatever rank, whether posted at the police station or elsewhere, with a statement of the nature of their duty shall be entered vide a separate entry and this entry shall be made immediately on arrival or prior to the departure of the officer concerned and shall be attested by the latter personality by signature or seal. In the present case, complete departure or the arrival entries have not been proved on the record by the prosecution. In absence of such proof, the presence of the police officials at the spot cannot be believed. Reference can be made to on "Rattan Lal Vs. State 1987 (2) Crimes 29".
26. All the lapses in investigation creates doubt on the very recovery of a buttondar knife from the possession of the accused. The court is of the considered view that prosecution has not been able to prove the guilt of accused beyond reasonable doubt.
27. It is noteworthy that PW - 3 in his cross examination has deposed that the medical examination of the accused was done at about 03:00 am, however, on perusal of FIR and Arrest Memo, the FIR has been registered between 10:15 pm and 10:30 pm and accused was arrested at 11:20 PM. The inordinate delay in the medical examination has remained unexplained by the prosecution. However, it is strange that no MLC has been placed on record nor it has been cited in the list of documents of chargesheet. This is a huge lacuna on the part of Investigating Agency and clearly casts shadow of doubt on the prosecution story.
28. In view of the above discussion, the court is of the view that prosecution has failed to prove its case beyond reasonable doubt and in the absence of any cogent evidence against accused Vishal @ Daaku, he is hereby acquitted for offence under section 25 of Arms Act. Case property be confiscated to the state as per rules and the same be destroyed.
FIR No. 875/2015 State Vs. Vishal @ Daaku Page 12 of 1329. File be consigned to Record Room.
30. This Judgment consists of 13 pages and all pages bear my signatures.
Announced and dictated directly
into the computer in open court (Gaurav Katariya)
on 29th Day of October 2022. MM07/North District
Rohini Courts, Delhi.
FIR No. 875/2015
State Vs. Vishal @ Daaku Page 13 of 13