Delhi District Court
State vs Sunny on 4 October, 2023
IN THE COURT OF METROPOLITAN MAGISTRATE-02,
NORTH EAST DISTRICT, KARKARDOOMA COURTS,
DELHI
PRESIDED BY: SH. VIPUL SANDWAR
STATE Vs. SUNNY
FIR No. : 16/2023, U/s 25 Arms Act
PS : New Usmanpur
1.FIR No. 16/2023
2.Unique Case no. 1134/23
3.Title State Vs. Sunny
3(A).Name of complainant HC Imran Ali
3(B).Name of accused Sunny S/o Kari Mehto, R/o484,
second floor, Kaithwara, near 1st
pushta, Usmanpur, Delhi
4. Representation on behalf of Ms. Amandeep Kaur, Ld. APP
State
4(A).Date of institution of challan 21.02.2023
5.Date of Reserving judgment 23.09.2023
6.Date of pronouncement 04.10.2023
7.Date of commission of offence 09.01.2023
8.Offence complained of U/s 25 Arms Act 1959
9.Offence charged with U/s 25 Arms Act 1959
10.Plea of the accused Pleaded not guilty.
11.Final order Acquitted
State vs. Sunny FIR No.16/23 PS New Usmanpur Page 1 of 11
JUDGMENT
1. The present prosecution case was put into action with the complaint of the complainant, HC Imran Ali wherein he has stated that on 09.01.2023 at about 06:00 pm while he was on patrolling duty behind JPC hospital he saw one boy who was standing near a vehicle and on seeing him started walking suspiciously. He caught him and he disclosed his name as Sunny. On his cursory search one button actuated knife was recovered from right side of his wearing pants in contravention of notification issued by Delhi Administration dt. 29.10.1980 and thereby committed offence punishable u/s 25 Arms Act, 1959 and within the cognizance of this Court.
2. On the basis of the complaint, FIR no.16/23, U/s 25 Arms Act was registered. After completion of investigation, chargesheet was filed U/s 25 Arms Act.
3. On 21.02.2023, cognizance was taken and accused was summoned. Thereafter, charge for the offence punishable u/s 25 Arms Act was framed against the accused Sunny on 21.02.2023 to which he pleaded not guilty and had claimed trial.
4. Prosecution had named total 04 witnesses in the charge sheet. However, accused did not dispute the registration of present FIR prepared by ASI Rajvir, in view of his statement u/s 294 Cr.P.C. Hence, he was dropped. Only 02 witnesses were examined by the prosecution.
State vs. Sunny FIR No.16/23 PS New Usmanpur Page 2 of 11(i) PW1 HC Imran Ali has stated that on 09.01.2023 while he was performing his duty as the beat official in the area near CNG pump, Shastri Park and was present at back side of the road of CNG pump he saw one person hiding behind a car. He called the person who started taking fast steps trying to escape. He apprehended him after running 15-20 foots. He disclosed his name as Sunny S/o Kari Mehto and from his cursory search button actuated knife was recovered from the left side pocket and one mobile phone was recovered from the right side pocket of his wearing pants. He sent an intimation to the PS after which IO/HC Sachin arrived at the spot. FIR was registered vide DD no.93A by the IO through him. He again arrived at the spot and handed over the copy of FIR and original tehrir to the IO. IO prepared the documents in his presence. The witness correctly identified the case property produced before the Court. In his cross examination by Ld. LAC for accused he has stated that he does not remember the DD entry vide which he had departed for his duty. He has conceded that the place from where the accused is apprehended was a public place. He also conceded that he had not offered his personal search before making search of the accused. The call regarding the incident was made to the PS at about 06:15 pm. IO arrived at the spot at about 06:25 pm. Accused was arrested at about 09:30 pm. Efforts were made by the IO to join public persons to the investigation but none joined.
He alongwith IO finally left the spot at about 09:45 pm. He denied the suggestion that accused has been falsely implicated in the present case.
(ii) PW2 HC Sachin is the IO in the present case. He has stated that an intimation regarding the present incident was received State vs. Sunny FIR No.16/23 PS New Usmanpur Page 3 of 11 vide DD no.93A by the DO/ASI Rajvir on 09.01.2023. After receiving the intimation he visited the spot behind JPC hospital, near CNG pump, Shastri Park, Delhi. On reaching there he met HC Imran alongwith one person apprehended from whom button actuated knife and a mobile phone make Redmi was recovered. PW1 handed the articles to him. He recorded statement of PW1, prepared rukka, prepared sketch memo of the knife and seized the knife and the mobile phone. He also recorded the disclosure statement of the accused. He got the FIR registered through PW1. He arrested the accused, conducted his personal search, got his medical examination done. The accused was brought to the PS vide GD no.0123A. Chargesheet was prepared and filed before this Court. In his cross examination by Ld. LAC for accused he has stated that he had not recorded any departure entry after receiving the information of the incident. He had left vide DD no.93A. The spot of incident was a parking area and crowd generally remain present there. The rukka was sent at about 07:30-07:40 pm. He alongwith HC Imran finally left the spot at about 09:20-09:30 pm. He had asked the passerby / public persons to join the investigation but no one joined citing their personal reasons. No notices were served on those public persons. He denied the suggestion that accused has been falsely implicated in the present case.
5. PE was closed on 04.08.2023 and on the same date statement of the accused u/s 313 Cr.P.C read with Section 281 Cr.P.C wherein he denied the allegations in toto. He stated that he does not wish to lead DE and has been falsely implicated in the present case.
State vs. Sunny FIR No.16/23 PS New Usmanpur Page 4 of 116. Final arguments were addressed by Ld APP for the state and no arguments were advanced on behalf of accused.
7. I have heard the submissions and perused the material on record. However, before proceeding to the merits of the case, I wish to reiterate that in a criminal trial, it is for the prosecution to prove its case beyond all reasonable doubts. An accused is presumed to be innocent, until proven guilty. It is for the prosecution to travel the entire distance from the accused "may have" to accused "must have" committed the offence. With respect to offences pertaining to recovery of contraband items from the possession of accused, I find it pertinent to refer to the importance of joining a public witness to the investigation. If a public witness is not available, then the prosecution must show that sincere effort was made to ensure the presence of public witness to join the raiding party. Here I would like to refer to the observations of the Hon'ble High Court of Delhi in Anoop Joshi Vs. State, 1992 (2) C.C. Cases 314 (HC), "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 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."
State vs. Sunny FIR No.16/23 PS New Usmanpur Page 5 of 118. Additionally, Hon'ble High Court of Delhi in Pawan Kumar vs. Delhi Administration 1987 SCC OnLine Del 290 observed "....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 a 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 circumstance throwing doubt on the arrest or the recovery of the knife from the person of the accused...."
9. The said position also find support from the observations of the Hon'ble Apex Court in Sahib Singh Vs State of Punjab wherein it was held that:
"Before conducting a search the police officer concerned is required to call upon some independent and respectable people of the locality to witness the search. In a given case it may so happen that no such person is available or, even if available, is not willing to be a party to such search. It may also be that after joining the search, such persons later on turn hostile. In any of these eventualities the evidence of the police officers who conducted the search cannot be disbelieved solely on the ground that no independent and respectable witness was examined to prove the search but if it is found -- as in the present case -- that no attempt was made even by the police officer concerned to join with him some persons of the locality who were admittedly available to witness the recovery, it would affect the weight of evidence of the police officer, though not its admissibility."State vs. Sunny FIR No.16/23 PS New Usmanpur Page 6 of 11
10. Now proceeding upon the basis of aforesaid principles of law, I shall render my finding against the accused qua the offence. Onus is on the prosecution to prove:
i. Recovery of button actuated knife from the accused.
ii. Accused was in conscious possession said button actuated knife.
11. The present case was registered on the basis of complaint by HC Imran that on 09.01.2023 at about 06:00 pm while he was on patrolling duty behind JPC hospital he saw accused hiding behind the car and on seeing on suspicion he apprehended him. On his search accused was found in conscious possession of a button actuated knife. Hence, PW1 is the star witness of the prosecution and his testimony requires careful scrutiny. In his testimony, PW1 has stated that he does not remember the DD number vide which he had departed for duty. Nothing has been mentioned as to why no public persons were made to join the investigation. Nothing has been reflected from the deposition that even an attempt was made to include public persons in the investigation.
12. 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. There is no independent public witness of the recovery and the explanation offered by the prosecution for the absence of public witness does not seem plausible. It is a very common State vs. Sunny FIR No.16/23 PS New Usmanpur Page 7 of 11 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. No notice in writing was given to them to join the investigation. No action was taken qua the persons who refused to disclose their names or addresses. It is also not in dispute that the place of incident is a public place and there are lot of public offices/shops nearby. If the first few people did not join the investigation, other people could have been requested. It is not in dispute that that the spot was a public place where public persons were present. But no sincere efforts were made to make a public person to join the investigation. A public witness would have been an important link in the chain of circumstances to support the prosecution version. 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 afterthought and is not worthy of credence.
13. Hence, testimony of PW1 is insufficient to prove the recovery of button actuated knife from the accused. No effort was made by IO/HC Sachin to join any public witness. In his cross examination he conceded that no notice was given to the public persons to join the investigation. It is also pertinent to note that no handing over memo of the seal was prepared. Thereafter, the possibility of tampering with the case property cannot be ruled out. Further, none of the prosecution witnesses have deposed in their examination in chief that they offered their personal search to the accused before inspecting the accused.
State vs. Sunny FIR No.16/23 PS New Usmanpur Page 8 of 11Principles of natural justice demand that accused should have been offered their personal search by the recovery witness and this fact should have been reduced into writing. This fact is another missing link in the prosecution's case.
14. In a criminal trial, the burden on the prosecution is beyond reasonable doubt. The reasonable doubt is a rule of caution laid down by the Courts of Law in respect of assessing the evidence in criminal cases. In Awadhi Yadav v. State of Bihar , (1971) 3 SCC 116 at page 117, Hon'ble Supreme Court has observed that:
"Before a person can be convicted on the strength of circumstantial evidence, the circumstances in question must be satisfactorily established and the proved circumstances must bring home the offence to the accused beyond reasonable doubt. If those circumstances or some of them can be explained by any other reasonable hypothesis then the accused must have the benefit of that hypothesis. But in assessing the evidence imaginary possibilities have no place. What is to be considered are ordinary human probabilities."
15. In State of Haryana v. Bhagirath, (1999) 5 SCC 96 :
1999 SCC (Cri) 658 : 1999 SCC OnLine SC 577 at page 99 Hon'ble Supreme Court has observed that:
"But the principle of benefit of doubt belongs exclusively to criminal jurisprudence. The pristine doctrine of benefit of doubt can be invoked when there is reasonable doubt regarding the guilt of the accused. It is the reasonable doubt which a conscientious judicial mind entertains on a conspectus of the entire evidence that the accused might not have committed the offence, which affords the benefit to the accused at the end of the criminal trial. Benefit of doubt is not a legal dosage to be administered at every segment of State vs. Sunny FIR No.16/23 PS New Usmanpur Page 9 of 11 the evidence, but an advantage to be afforded to the accused at the final end after consideration of the entire evidence, if the Judge conscientiously and reasonably entertains doubt regarding the guilt of the accused. It is nearly impossible in any criminal trial to prove all the elements with a scientific precision. A criminal court could be convinced of the guilt only beyond the range of a reasonable doubt. Of course, the expression "reasonable doubt" is incapable of definition. Modern thinking is in favour of the view that proof beyond a reasonable doubt is the same as proof which affords moral certainty to the Judge."
16. Francis Wharton, a celebrated writer on criminal law in the United States has quoted from judicial pronouncements in his book Wharton's Criminal Evidence (at p. 31, Vol. 1 of the 12th Edn.) as follows:
"It is difficult to define the phrase 'reasonable doubt'. However, in all criminal cases a careful explanation of the term ought to be given. A definition often quoted or followed is that given by Chief Justice Shaw in the Webster case. He says: 'It is not mere possible doubt, because everything relating to human affairs and depending upon moral evidence is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that consideration that they cannot say they feel an abiding conviction to a moral certainty of the truth of the charge."
17. In the treatise The Law of Criminal Evidence authored by H.C. Underhill it is stated (at p. 34, Vol. 1 of the 5th Edn.) thus:
"The doubt to be reasonable must be such a one as an honest, sensible and fair-minded man might, with reason, entertain consistent with a conscientious desire to ascertain the truth. An honestly entertained doubt of guilt is a reasonable doubt. A vague conjecture or an State vs. Sunny FIR No.16/23 PS New Usmanpur Page 10 of 11 inference of the possibility of the innocence of the accused is not a reasonable doubt. A reasonable doubt is one which arises from a consideration of all the evidence in a fair and reasonable way. There must be a candid consideration of all the evidence and if, after this candid consideration is had by the jurors, there remains in the minds a conviction of the guilt of the accused, then there is no room for a reasonable doubt."
18. Considering the aforesaid infirmities and inconsistencies in the prosecution version, I find that the prosecution has failed to prove the recovery of button actuated knife from the possession of accused. Hence, question whether the accused was in conscious possession of said arms and ammunition in contravention of Delhi Administration Notification issued in this respect does not arise. Benefit of doubt must go in favour of accused. It is cardinal principle of criminal law that accused is presumed to be innocent until proven guilty. In view of material inconsistencies in the prosecution version as discussed above, I find that the prosecution has failed to prove its case beyond reasonable doubt. Accordingly, accused Sunny is acquitted for the offence under section 25 Arms Act. His bail bond stands cancelled and surety stands discharged.
Digitally signed by VIPUL VIPUL SANDWAR
SANDWAR Date:
2023.10.04
15:42:35 +0530
Announced in the open (VIPUL SANDWAR)
Court on 04 th October, 2023 MM-02/NE/KKD COURTS
State vs. Sunny FIR No.16/23 PS New Usmanpur Page 11 of 11