Delhi District Court
State vs Jitu@Shivam on 13 May, 2024
IN THE COURT OF SH. GAURAV GOYAL
METROPOLITAN MAGISTRATE - 06, CENTRAL DISTRICT
TIS HAZARI COURTS, DELHI.
FIR No. 407/2022
PS - Sadar Bazar
U/s - 25/54/59 Arms Act
State Vs. Jitu @ Shivam
JUDGMENT
(a) Criminal Case No. 3054/2023
(b) CNR No. DLCT02-006054-2023
(c) Date of 20.06.2022 commission of offence
(d) Name of the Ct. Naveen, No. 1377/N PS Sadar Bazar. complainant
(e) Name of the Jitu @ Shivam, S/o Padam, R/o H. No. L-263, accused person(s), Laxman Puri, Pahar Ganj, Delhi. his parentage and residence
(f) Offence(s) Section 25/54/59 Arms Act complained of or proved
(g) Plea of the accused Pleaded not guilty
(h) Final Order Acquitted
(i) Date of institution 03.03.2023 FIR No. 407/2022 PS Sadar Bazar State Vs. Jitu @ Shivam Page No. 1 of 15 Gaurav Digitally signed by Gaurav Goyal Goyal Date: 2024.05.13 18:37:30 +0530 of case
(j) Date when Not reserved judgment was reserved
(k) Date of judgment 13.05.2024 Brief reasons for the decision of the case: -
1. The present charge-sheet has been filed u/s 25/54/59 Arms Act.
The genesis of the prosecution story is that on 20.06.2022 at about 08:15 PM at Idgah Park, Sadar Bazar, Delhi, within the jurisdiction of PS Sadar Bazar, the accused was found in possession of one buttondar knife which is in contravention of the DAD notification.
2. On finding a prima facie case to proceed against the accused, cognizance of the offence was taken on 03.03.2023. The provisions of Section 207 Cr.P.C. were duly complied with. Arguments on the point of charge were heard and a formal charge for commission of offence u/s 25/54/59 of the Arms Act was framed against the accused on 01.05.2023 to which the accused pleaded not guilty and claimed trial.
Gaurav Digitally signed by
Gaurav Goyal
Goyal Date: 2024.05.13
18:37:44 +0530
FIR No. 407/2022 PS Sadar Bazar State Vs. Jitu @ Shivam Page No. 2 of 15
3. In order to prove its case, the prosecution has examined two witnesses: PW1 HC Shankar & PW-2 HC Naveen.
4. The record transpires that during the course of trial, the accused admitted the present FIR No. 407/2022 PS Sadar Bazar, GD No. 61A dated 20.06.2022, GD No. 64A dated 20.06.2022, certificate u/s 65B IEA, Endorsement made on rukka recorded by DO/ASI Bharat Pal, DAD Notification and Entry No. 1838/2022 as Ex. A-1, Ex. A-2, Ex. A-3, Ex. A-4, Ex. A-5, Ex. A-6 & Ex. A-7 respectively and the examination of formal witnesses qua such documents was accordingly dispensed with.
5. The prosecution evidence was closed on 01.04.2024 and the accused was examined u/s 313 r/w 281 Cr.P.C. wherein all incriminating evidence was put to him. The accused submitted that he is innocent and has been falsely implicated in the present case and that the case property was planted upon him. The accused opted not to lead any evidence in his defence.
6. Prior to delving into the merits of the present case, it is relevant to discuss the testimonies of the prosecution witnesses.
Gaurav Digitally signed by Gaurav Goyal Goyal Date: 2024.05.13 18:37:52 +0530 FIR No. 407/2022 PS Sadar Bazar State Vs. Jitu @ Shivam Page No. 3 of 15
7. PW1: HC Shankar deposed that on 20.06.2022, he was posted at PS Sadar Bazar as HC. DD No. 64A regarding apprehension of one person with knife was assigned to him. He along with Ct. Naveen apprehended the person and recovered the knife from him. He further deposed that he had prepared the sketch of knife after opening the same with the help of button on a white sheet Ex. PW-1/A and seized the knife and prepared the pullanda with the seal of "SK" and prepared the seizure memo Ex. PW-1/B. He further deposed that he recorded the statement of Ct. Naveen Ex. PW-1/C and prepared the rukka Ex. PW-1/D and handed over the same to Ct. Naveen to get the FIR registered. He further deposed that he prepared the site plan at the instance of Ct. Naveen Ex. PW-1/E and recorded the disclosure statement of the accused Ex. PW-1/F and arrested him vide arrest memo Ex. PW-1/G and conducted his personal search vide personal search memo Ex. PW-1/H. The witness correctly identified the case property and the accused before the court. Thereafter, the witness was cross-examined by Ld. Defence Counsel at length.
8. PW2: HC Naveen deposed on similar lines as deposed by PW1 HC Shankar and contents his testimony are dispensed for the sake of brevity.
Witness was cross-examined by Ld. Counsel for accused at length.
9. This is the entire evidence on case record.
FIR No. 407/2022 PS Sadar Bazar State Vs. Jitu @ Shivam Page No. 4 of 15 Gaurav Digitally signed by Gaurav Goyal Goyal Date: 2024.05.13 18:38:08 +0530
10. I have given a considered thought to the rival submissions made by Ld. APP for the State and Ld. Counsel for accused keeping in view the material available on the judicial file.
11. Ld. APP for the State has contended that prosecution has established the guilt of accused beyond all reasonable doubts and, therefore, the accused deserves to be convicted for the offence in question.
12. Per contra, Ld. Counsel for accused has argued that the accused has been falsely implicated in the present case and the case property has been planted upon him. It has been further argued that no independent public witness was asked to join the investigation despite availability and the only witnesses examined by the prosecution are the police officials whose testimonies are not reliable without corroboration by public witnesses. Thus, it has been argued that the prosecution has not been able to prove its case beyond reasonable doubts and the accused is entitled to acquittal.
13. In the aforementioned backdrop, the Court shall now proceed to deliberate upon the evidence appearing on record so as to evaluate Gaurav Digitally signed by Gaurav Goyal Goyal Date: 2024.05.13 18:38:25 +0530 FIR No. 407/2022 PS Sadar Bazar State Vs. Jitu @ Shivam Page No. 5 of 15 if the prosecution has proved its case on the requisite yardsticks or not.
14. Before proceeding with the appreciation of evidence, the cardinal principle of criminal jurisprudence is to be borne in mind, that prosecution has to prove its case beyond all reasonable doubts by leading reliable, cogent and convincing evidence. 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 accused. It is for the prosecution to travel the entire distance from may have to must have and accused is entitled to benefit of reasonable doubts in the prosecution story and any such doubts in the prosecution case entitles the accused to acquittal.
15. It has been argued by Ld. Counsel for accused that no public witness was joined by the IO during investigation of the present case and at the time of alleged recovery of the case property, despite their availability. Reference is made to the testimony of the prosecution witnesses, who during their cross-examination by Ld. Counsel for accused, admitted that the spot was a busy public place Gaurav Digitally signed by Gaurav Goyal Goyal Date: 2024.05.13 18:38:32 +0530 FIR No. 407/2022 PS Sadar Bazar State Vs. Jitu @ Shivam Page No. 6 of 15 and there were several houses and shops situated near the spot and people were coming and going from there. They also admitted that no person from the houses and shops was called to join the investigation and that no public witness was cited as prosecution witness. They also admitted that names of public persons who refused to join was not mentioned and no notice was served upon them.
Ld. Counsel for accused submits that the prosecution has only examined police officials whose testimonies are not reliable without corroboration by public witnesses. He has further argued that recovery of case property has been planted upon the accused.
No doubt, it is settled law that the testimony of police witnesses can be relied upon if it inspires confidence of the court but in this case, no plausible explanation has been put forth by the prosecution for failure to join public witnesses during the investigation and specifically at the time of alleged recovery of case property, despite their availability in compliance of Section 100 (4) Cr.P.C. The same brings the seizure under a cloud of doubt.
Reference is made to the judgment of Hon'ble Punjab and Haryana FIR No. 407/2022 PS Sadar Bazar State Vs. Jitu @ Shivam Page No. 7 of 15 Gaurav Digitally signed by Gaurav Goyal Goyal Date: 2024.05.13 18:38:39 +0530 High Court in the case of Roop Chand Vs. State of Haryana 1999 (1) CLR 69 wherein it was observed that, "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 person from the public the Investigating Officer can take action against such a person under the law. Had it been a fact that he witnesses from the public had refused to to join the investigation, the Investigating Officer must have proceeded against them under the relevant provisions of law. The failure to do so by the police officer is FIR No. 407/2022 PS Sadar Bazar State Vs. Jitu @ Shivam Page No. 8 of 15 Gaurav Digitally signed by Gaurav Goyal Goyal Date: 2024.05.13 18:38:45 +0530 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''.
Reference is also made to the judgment in the case titled as Anoop Joshi V/s State, 1992 (2) C.C. Cases 314 (HC) wherein the Hon'ble High Court of Delhi observed that, "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 shop-keepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the shopkeeeprs 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".
Gaurav Digitally signed by Gaurav Goyal Goyal Date: 2024.05.13 18:38:52 +0530 FIR No. 407/2022 PS Sadar Bazar State Vs. Jitu @ Shivam Page No. 9 of 15 This Court is of the considered opinion that in order to lend credibility to the prosecution case and to ensure transparency and fairness during search and seizure, some independent person should have been associated by the IO during investigation. However, no sincere efforts were made by the IO to persuade any public witness to join the investigation and admittedly, no written notice was also served upon any of the public persons. It has also not been mentioned as to what action was taken against those persons who refused to join the investigation.
16. It has been further argued by Ld. Counsel for accused that case property has been tampered with as no seal handing over or taking over memo was prepared by the IO. Perusal of testimony of prosecution witnesses reflects that pursuant to seizure of case property, IO sealed the case property with the seal of 'SK' and after completion of necessary formalities, the case property was deposited in the Malkhana.
It is pertinent to note that admittedly, the seal after use was not handed over to any person. This Court is of the considered opinion that PW1 himself being material witness, he would always FIR No. 407/2022 PS Sadar Bazar State Vs. Jitu @ Shivam Page No. 10 of 15 Gaurav Digitally signed by Gaurav Goyal Goyal Date: 2024.05.13 18:38:59 +0530 be interested in the success of the case of the prosecution and thus chances of tampering of case property cannot be ruled out.
Reference is made to the judgment of Hon'ble High Court of Delhi in Safiullah vs State (Delhi Administration) 49 (1993) DLT 193 wherein it was held that:
"It is nowhere the case of the prosecution that the seal after use was handed over to the independent witness Public Witness Even the Public Witness does not utter a word regarding the handing over of the seal after use. Therefore, the conclusion which can be arrived at is that the seal remained with the Investigating Officer or with the other member of the raiding party therefore the possibility of interference or tempering of the seal and the contents of the parcel cannot be ruled out."
Reference is also made to the judgment of Hon'ble Punjab and Haryana High Court in Ramji Singh v. State of Haryana, 2007 (3) RCR (Criminal) 452, wherein it was held that, "The very purpose of giving seal to an independent person is to avoid tampering of the case property."
Digitally signedGaurav by Gaurav Goyal Date:
Goyal 2024.05.13 18:39:06 +0530 FIR No. 407/2022 PS Sadar Bazar State Vs. Jitu @ Shivam Page No. 11 of 15 In the present case, the possibility of tampering of case property cannot be ruled out as it was lying in the same Malkhana where the police official having possession of the seal was posted.
17. It is further pertinent to note that seizure memo of the buttondar knife and as well as sketch memo of the knife Ex. PW-1/A bear the number and particulars of the present FIR.
Reference is made to the judgment of Hon'ble High Court of Delhi in Giri Raj vs State 83 (2000) DLT 201 wherein it was held that, "The number of the FIR (Ex. PW-2/A) given on the top of the aforesaid documents is in the same ink and in the same handwriting, which clearly indicates that these documents were prepared at the same time. The prosecution has not offered any explanation whatsoever as to under what circumstances number of the FIR (Ex. PW-2/A) had appeared on the top of the said documents, which were allegedly prepared on the spot before its registration. This gives rise to two inferences that either the FIR (Ex. PW-2/A) was recorded prior to the alleged recovery of the contraband or number of the said FIR was inserted in these documents after its registration. In both the situations, it seriously FIR No. 407/2022 PS Sadar Bazar State Vs. Jitu @ Shivam Page No. 12 of 15 Gaurav Digitally signed by Gaurav Goyal Goyal Date: 2024.05.13 18:39:14 +0530 reflects upon the veracity of the prosecution version and creates a good deal of doubt about recovery of the contraband in the manner alleged by the prosecution. That being so, the benefit arising out of such a situation must necessarily go to the appellant."
18. It has been further argued by Ld. Counsel for accused that site plan has not been duly proved by the prosecution. It has been pointed out that as per the testimony of PW1 HC Shankar IO prepared the site plan Ex. PW-1/E at the instance of PW2 HC Naveen.
19. It is also pertinent to note that no efforts were made by any of the police officials to lift the chance finger prints from the knife in question. Had any such efforts been made, there would have been scientific evidence in the present case which would have been crucial for the case of prosecution. However, no such efforts were made to collect this scientific evidence for reasons unexplained by the IO.
20. It has been further contended by Ld. counsel for accused that all documents of the present case were prepared in the police station and not at the spot of alleged incident and the accused has been falsely implicated in the present case. Reference is made to the FIR No. 407/2022 PS Sadar Bazar State Vs. Jitu @ Shivam Page No. 13 of 15 Gaurav Digitally signed by Gaurav Goyal Goyal Date: 2024.05.13 18:39:21 +0530 testimony of prosecution witnesses, who during their cross- examination by Ld. counsel for accused, admitted that no photograph of the case property was taken at the spot.
21. Thus, there are major lacunaes in the case of the prosecution. The aforementioned lacunaes and contradictions surfacing from the testimonies of various prosecution witnesses makes it extremely doubtful that on the fateful day, the accused was found in possession of buttondar knife at the alleged time and place. Furthermore, the recovery of case property from the possession of accused has also not been proved by the prosecution beyond reasonable doubts since no independent public witnesses have been joined during the investigation and at the time of alleged recovery of case property, thereby diluting the case of the prosecution.
22. Thus, in light of the discussion made above, this Court is of the firm view that prosecution has failed to establish the charge levelled against the accused beyond shadow of doubt. Thus, the accused cannot be held liable for the offence with which he has been charged. Accordingly, accused Jitu @ Shivam is acquitted in the present case for the offence punishable u/s 25/54/59 Arms Act.
FIR No. 407/2022 PS Sadar Bazar State Vs. Jitu @ Shivam Page No. 14 of 15 Gaurav Digitally signed by Gaurav Goyal Goyal Date: 2024.05.13 18:39:28 +0530
23. The bail bonds, if any, furnished by the accused at the time of commencement of trial stand cancelled. Surety, if any, stands discharged. Documents, if any, shall be returned to its rightful owner as per rules. Endorsement, if any, stands cancelled. Case property, if any, shall be disposed of as per rules after expiration of period to assail this judgment and in case of appeal, as per the directions of Ld. Appellate Court. Case file be consigned to the record room after due compliance.
This judgement consists 15 signed pages.
ANNOUNCED IN OPEN COURT Gaurav Digitally signed by Gaurav Goyal on :13.05.2024 Goyal Date: 2024.05.13 18:39:35 +0530 (GAURAV GOYAL) MM-06(C)/THC/Delhi/13.05.2024 FIR No. 407/2022 PS Sadar Bazar State Vs. Jitu @ Shivam Page No. 15 of 15