Delhi District Court
State vs . Aakash @ Raj on 17 October, 2022
IN THE COURT OF MS MANSI MALIK,
METROPOLITAN MAGISTRATE-03, NORTH WEST,
ROHINI COURTS, DELHI
Cr. Case No. 4331/2022
FIR No. : 332/2022
P.S. : Raj Park
State Vs. Aakash @ Raj
U/s. 25/54/59 Arms Act
State
v.
Aakash @ Raj
S/o Sh. Ashok Kumar,
R/o P-3/32, 143 Mangolpuri, Delhi
Raj Park, Outer District, Delhi India
Date of institution of case : 07.04.2022
Date of reserving the judgment : 06.10.2022
Date of pronouncement of judgment : 17.10.2022
JUDGMENT
1. S. No. of the Case: 4331/2022 2. Date of Commission of Offence: 11.03.2022 3. Date of institution of the case: 07.04.2022 4. Name of the complainant: Ct. Ranveer Singh 5. Name of the accused: Aakash @ Raj 6. Offence complained or proved: U/s 25 Arms Act 7. Plea of Accused: "Not Guilty" 8. Final Order: Acquitted 9. Date of Final Order: 17.10.2022 State vs. Aakash @ Raj FIR no. 332/22 PS Raj Park Page No. 1/12 MANSI Digitally signed by MANSI MALIK MALIK Date: 2022.10.17 16:27:09 +0530 BRIEF FACTS AND REASONS FOR DECISION
1. Succintly, the case of prosecution is that the accused Aakash @ Raj has been sent to face trial with the allegations that on 11.03.2022 at about 10:30 PM at Road No. 316, Near Aggarsen Park, Mangolpuri, Delhi, within the jurisdiction of PS Raj Park, accused was found in possession of one buttondar knife, without any license or permit. Investigation was carried out. Upon completion of the investigation the in- stant charge-sheet for the offence punishable under Section 25 Arms Act was filed by the investigating officer against the accused. The accused was then summoned by the undersigned.
2. The copy of charge sheet and relevant documents was supplied to the accused in compliance of Section 207 of Code of Criminal Procedure, 1973 (hereinafter re- ferred to as Cr.PC).
3. Prima facie case was made out and charge for offence punishable under Section 25 Arms Act was framed on 19.05.2022 to which the accused pleaded not guilty and claimed trial. Thereafter, the matter was fixed for recording of prosecution evidence.
4. In order to substantiate the allegations, the prosecution examined three witnesses. At the onset it would be appropriate to have glance at the gist of deposition made by the witnesses:
5. PW-1 Ct. Ranveer Singh deposed in his examination in chief that on 11.03.2022, he was posted as Constable at PS Raj Park and he was on patrolling duty with Ct . Dinesh and his duty hours were 4:00 PM to 12:00 midnight and they were State vs. Aakash @ Raj FIR no. 332/22 PS Raj Park Page No. 2/12 MANSI Digitally signed by MANSI MALIK MALIK Date: 2022.10.17 16:27:18 +0530 patrolling in beat no. 4, Mangolpuri and reached on road no. 316 near Agar Sain Park, Mangolpuri, Delhi. PW-1 further deposed that at about 10:30 PM one person was coming on motorcycle from the area of the B-Block Mangolpuri towards Agar Sain, Park, Mangolpuri, Delhi and on seeing the police party stopped his motorcycle and took a U-turn and started running away from there towards B-Block Mangolpuri and in hurry his bike got skild and he fell on the road. PW-1 further deposed that living behind the motorcycle he ran away from there and he along with Ct. Dinesh Kumar apprehended the accused and they had inquired about his name and he revealed his name as Aakash @ Raj. PW-1 further deposed that when he was searched then one buttondar knife was taken out of his pocket of wearing pant and they asked him to show the documents pertaining to the motorcycle but he could not produce any docu- ment. PW-1 further deposed that the particulars pertaining to the motorcycle but he could not produce any document and the particulars of the aforesaid motorcycle was also checked through Zip net and it was found to be stolen from the jurisdiction of PF Nangloi and e-FIR no. 004901 dated 23.02.2022 was also registered and thereafter, they informed to the PS. PW-1 further deposed that the IO/HC Devender came to the spot and they along with buttoned knife, motorcycle and custody of the accused were handed over to IO and thereafter, IO recorded his statement and same is Ex. PW-1/A and IO prepared the sketch plan of the knifes prior to their seizure and same is Ex. PW-1/B and prepared pullinda of the aforesaid knife and duly sealed the same with the seal of DS. PW-1 further deposed that seal after use was given to Ct. Dinesh Ku- mar and seized the aforesaid knife vide seizure memo and same is Ex.PW-1/C. PW-1 further deposed that motorcycle was also seized vide seizure memo Ex. PW-1/D and IO prepared rukka and sent Ct. Dinesh Kumar to PS alongwith Rukka for lodging the FIR and Ct. Dinesh came back to the spot with the copy of FIR and original rukka. PW-1 further deposed that IO had prepared site plan at their instance which is Ex. PW-1/E and thereafter accused was arrested vide arrest and personal search memo Ex. PW-1/F and Ex. PW-1/G and disclosure statement of the accused Aakash @ Raj State vs. Aakash @ Raj FIR no. 332/22 PS Raj Park Page No. 3/12 MANSI Digitally signed by MANSI MALIK Date: 2022.10.17 MALIK 16:27:28 +0530 was also recorded in his presence and same is Ex. PW-1/H. PW-1 further deposed that thereafter, medical examination of accused was got conducted and they came to the PS alongwith the accused and case property. PW-1 further deposed that case prop- erty was deposited in the malkhana and IO recorded his statement.
PW-2 deposed on similar lines as of PW-1.
PW-1 and PW-2 have correctly identified the case property Ex. P-1. PW-1 and PW-2 have also correctly identified the accused in the Court.
PW-1 and PW-2 were duly cross examined by the Ld. LAC.
6. PW-3 HC Devender Kumar desposed in his examination in chief that on 11.03.2022, he was posted as HC at PS Raj Park and on that day he received DD No. 109 regarding apprehending of the accused alongwith buttoned knife, motorcycle and the said DD is Ex. PW-3/A. PW-3 further deposed that he reached at the spot i.e., Road No. 316, Agrasen Park, Mangolpuri, Delhi and met with Ct. Ranveer and Ct. Dinesh and they handed over the custody of the accused alongwith the case property and he recorded statement of Ct. Ranvir Ex. PW1/A. PW-3 further deposed that he had also prepared the sketch plan Ex. PW-1/B of the knifes prior to their seizure and prepared pulinda of the aforesaid knives and duly sealed the same with the seal of DS. PW-3 further deposed that seal after use was handed over to Ct. Dinesh and seized the aforesaid knife vide seizure memo Ex. PW-1/C and after that the aforesaid motorcycle was also seized vide memo Ex. PW-1/D. PW-3 further deposed that he prepared the rukka Ex. PW-3/B and sent Ct. Dinesh to police station alongwith rukka for lodging the FIR and after getting the FIR registered he came back to the spot with copy of FIR, original Rukka and handed over the same to him. PW-3 further deposed that he had prepared site plan at their instance Ex. PW-1/E and accused was arrested vide arrest and personal search memo Ex. PW-1/F and Ex. PW-1/G and disclosure statement of the Akash @ Raj Ex. PW-1/H was also recorded by him. PW-3 further deposed that medical examination of the accused was got conducted and they came at State vs. Aakash @ Raj FIR no. 332/22 PS Raj Park Page No. 4/12 Digitally signed by MANSI MANSI MALIK Date:
MALIK 2022.10.17 16:27:35 +0530 PS alongwith the accused and case property and case property was deposited in the Malkhana. PW-3 further deposed that he recorded the statement of the witnesses.
PW-3 has correctly identified the case property Ex. P-1. PW-3 has also correctly identified the accused in the Court.
PW-3 was duly cross examined by the Ld. LAC.
7. The accused also admitted the genuineness of FIR no. 332/22, PS Raj Park i.e Mark X, Certificate u/s 65-B Indian Evidence Act regarding the aforesaid FIR i.e. Mark X-2, GD No. 104A which is Mark X-3, DAD notification which is Mark X-4 ans Endorsement on Rukka which is Mark X-5, Entries in register no. 19 to prove hte case property which is already Ex. P-1, u/s 294 Cr.PC, without admitting the contents of the same. In view of the above, witnesses mentioned at serial no. 2, 3 and 4 in the list of prosection witnesses were dropped. Prosecution evidence was thereafter closed on 08.09.2022.
8. Statement of accused person was recorded u/s 313 Cr.PC., wherein all the incriminating evidence was put to the accused, to which he stated that he has been falsely implicated in this case. Further, the accused person did not opt to lead defence evidence and the matter was listed for final arguments.
9. The Court has carefully perused the case record and has heard arguments advanced by Ld. APP for the state as well as by Ld. Defence counsel.
10. Short point for determination before the court is as under -
"Whether on 11.03.2022 at about 10:30 PM at Road No. 316, Near Ag garsen Park, Mangolpuri, Delhi, within the jurisdiction of PS Raj Park, the ac cused Aakash @ Raj was found in possession of one buttondar knife, without any licence or permit?"State vs. Aakash @ Raj FIR no. 332/22 PS Raj Park Page No. 5/12
Digitally signed by MANSI MANSI MALIK MALIK Date:
2022.10.17 16:27:49 +0530
11. It is argued by Ld. APP for the state that from the ocular and documentary evidence on record, prosecution has proved beyond reasonable doubt that accused was found in possession of buttondar knife without permit and submitted that accused be convicted of the offence charged.
12. Per contra, it is argued by the Ld. LAC for the accused that accused is completely innocent and recovery of case property has been falsely implanted upon him. It is further submitted by Ld. LAC that nonjoinder of public witness despite availability cast shadow of doubt on prosecution story. It is further argued by Ld. LAC for the accused that tampering with the contents of the sealed parcel cannot be ruled out as seal was not handed to the independent witness. At the end, it is submitted that the prosecution has miserably failed to prove its case beyond reasonable doubt and therefore, the accused is liable to be acquitted of the alleged offence.
13. I have heard the rival submissions and have also carefully gone through the entire material available on record and evidence led on behalf of the prosecution. My findings on the point for determination and brief reasons for the same are now being discussed in following paragraphs.
14. In present case, the prosecution was duty bound to prove the possession of the buttondar knife with the accused. Same is sought to be proved by the recovery memo and testimony of the witnesses. But the manner of conducting inquiry, seizure and search etc. on the spot at the time of arrest of the accused and alleged recovery of buttondar knife in this case, makes the prosecution version highly doubtful. Incident is stated to have happened at about 10:30 PM and it is evident from the testimony of PW1 that the accused was apprehended alongwith the alleged unauthorised State vs. Aakash @ Raj FIR no. 332/22 PS Raj Park Page No. 6/12 Digitally signed MANSI by MANSI MALIK MALIK Date: 2022.10.17 16:27:57 +0530 buttondar knife at a public place but still no public independent person was cited as a witness in this case.
15. The aforesaid observations have been deduced from the testimony of PW1, PW 2 and PW3. PW1 and PW2 have dpeosed that no written notice was served upon the public persons who refused to join the investigation by the IO. Even as per version of PW3/IO, after apprehension of the accused, public persons were available at the spot but no written notice was served on the public persons to join the investigation. The said explanation given by PW3 cannot be accepted by the court since, the IO was under obligation to issue notice in writing to the public persons, who refused to join the police investigation particularly in the background when the accused has already been apprehended by the police and there was no apprehension that accused might escape. Moreover, the IO has not even placed on record the names of the passersby who were asked to join the investigation and neither have any reasons been mentioned by the IO for refusal by the people who were approached to join the investigation. In the facts and circumstances of the case, this court finds that police has not made any sincere effort to join independent public witnesses during investigation. In this regard reliance is being placed on the following judgments: In a case law reported as "Anoop V/s State", 1992 (2) C.C. Cases 314 (HC), 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 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 State vs. Aakash @ Raj FIR no. 332/22 PS Raj Park Page No. 7/12 Digitally signed by MANSI MANSI MALIK MALIK Date:
2022.10.17 16:28:04 +0530 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".
In an case law reported as "Roop Chand V/s The State of Haryana", 1999 (1) C.L.R 69, the Hon'ble 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 but they refused to do do 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 Investigation 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 suggestive of the fact that the explanation for nonjoining 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 State vs. Aakash @ Raj FIR no. 332/22 PS Raj Park Page No. 8/12 MANSI Digitally signed by MANSI MALIK Date: 2022.10.17 MALIK 16:28:11 +0530 doubtful".
In case law reported as "Sadhu Singh V/s State of Punjab", 1997 (3) Crimes 55 the Hon'ble Punjab & Haryana High Court observed as under: "5. In a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubts. 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" "6. In the present case, the State examined two witnesses namely, Harbans Singh ASI who appeared as PW1 and Kartar Singh. PW2. Both the witnesses supported the prosecution version in terms of the recovery of opium from the person of the petitioner, but there was no public witness who had joined. It is not necessary in such recoveries that public witnesses must be joined, but attempt must be made to join the public witnesses. There can be cases when public witnesses are reluctant to join or are not available. All the same, the prosecution must show a genuine attempt having been made to join a public witness or that they were not available. A stereotype statement of nonavailability will not be sufficient particularly when at the relevant time, it was not difficult to procure the service of public witness. This reflects adversely on the prosecution version".
16. 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. Making bald averments that public persons were asked to join the investigation but none agreed without giving any written notice to them does not inspire the confidence of the Court.
17. The next inconsistency in the case of the prosecution is the failure to prove the arrival and departure entries of the police officials. It is pertinent to mention that the present case rests entirely on the alleged recovery of case property, i.e. knife from the State vs. Aakash @ Raj FIR no. 332/22 PS Raj Park Page No. 9/12 Digitally signed MANSI by MANSI MALIK MALIK Date: 2022.10.17 16:28:18 +0530 possession of the accused at the relevant time by the police officials who were on patrolling duty at the relevant time and place, as per the prosecution story. Police officials are under a statutory duty to mark their departure and arrival in the register kept in the police station for above purpose as per the Punjab Police Rules. It is relevant here to reproduce Chapter 22 Rule 49 of the Punjab Police Rules, 1934, which reads as under:
"22.49 Matters to be entered in Register No. II.
The following matters shall, amongst others, be entered:
(c) The hour of arrival and departure on duty at or from a police station of all enrolled police officers of whatever rank, whether posted at the police station or elsewhere, with a statement of the nature of their duty. This entry shall be made immediately on arrival or prior to the departure of the officer concerned and shall be attested by the latter personally by signature or seal."
18. Since public persons were not joined in the investigation, the departure entry of the aforesaid police officials who were allegedly on patrolling duty at the relevant time and had apprehended the accused with case property becomes a vital piece of evidence. In the case in hand neither the departure entry nor arrival entry was proved by prosecution, however, proof of the said entry is indispensable as the present case rests solely on the alleged recovery made by the aforesaid police official. PW2 has himself stated in his crossexamination that they did not make any arrival or departure entries. Therefore, the failure to prove the aforementioned entries casts a doubt on the story of the prosecution.
19. Further, as per evidence on record, the seal after use was not given to any independent public person but was infact given to PW2/HC Dinesh Kumar, who was also a material prosecution witness being a witness to the alleged recovery of the State vs. Aakash @ Raj FIR no. 332/22 PS Raj Park Page No. 10/12 Digitally signed by MANSI MANSI MALIK Date:
MALIK 2022.10.17 16:28:24 +0530 illicit knife from the possession of the accused, such material witness of a case is always interested in the success of the case of the prosecution and keeping view this factum chances of fabrication of case property cannot be ruled out. Moreover, no seal handing over memo is also on record. Hence, considering the legal position, the benefit of doubt should be given to the accused, as tampering with case property in such a scenario cannot be ruled out. Reliance is placed on the judgment of Ramji Singh Vs. State of Haryana 2007 (3) R.C.C. (Criminal) 452, wherein it is 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."
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."
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, makes the prosecution version highly doubtful. At this stage, it would also be worthwhile to refer to the judgment of Hon'ble Supreme Court in Sar State vs. Aakash @ Raj FIR no. 332/22 PS Raj Park Page No. 11/12 Digitally signed by MANSI MANSI MALIK Date:
MALIK 2022.10.17 16:28:31 +0530 wan Singh vs State of Punjab (AIR 1957 SC 637) regarding the nature of burden of proof on the prosecution to prove its case. The ratio of this judgment is applied with the same vigour even after passing of more than 50 years. It was held in this case that: "There may also be an element of truth in the prosecution story against the ac cused. Considered as a whole, the prosecution story may be true; but between 'may be true' and 'must be true' there is inevitably a long distance to travel and the whole of this distance must be covered by the prosecution by legal, reliable and unimpeach able evidence before an accused can be convicted." Again in Jagdish Prasad vs State (Govt Of NCT Of Delhi) 2011 (9) LRC 206 (Del), the Hon'ble High of Delhi had observed that "It is well settled that in a criminal case, in order to bring home the guilt of the accused, the prosecution is required to establish the guilt beyond a shadow of reasonable doubt. If, on consideration of the prosecution evidence, a rea sonable doubt remains in respect of culpability of the accused, he is entitled to bene fit of doubt.
21. In view of the above discussion, this Court is of considered view that in the present case the prosecution has failed to prove its case against the accused Aakash @ Raj beyond reasonable doubt. Accordingly, the accused Aakash @ Raj is acquitted for the offence punishable u/s 25 Arms Act.
22. Bail bonds u/s 437A of CrPC are to be furnished which would remain valid for a period of six months. Digitally signed by MANSI MANSI MALIK MALIK Date:
2022.10.17 16:28:38 Announced in open Court (MANSI MALIK)+0530 on 17th Day of October, 2022 Metropolitan Magistrate NorthWest, Rohini, Delhi State vs. Aakash @ Raj FIR no. 332/22 PS Raj Park Page No. 12/12