Delhi District Court
Title Of The Case: : State vs . Vicky @ Vikram on 26 May, 2023
IN THE COURT OF MS. SANYA DALAL, MM-I (N/W)
ROHINI COURTS, DELHI
New Case No. : R-12/23
Title of the case: : State vs. VICKY @ VIKRAM
FIR No. : 1022/22, PS Sultanpuri
Date of institution : 02.01.2023
Date of reserving Judgment : 26.05.2023
Date of pronouncement : 26.05.2023
(a) The date of commission 27.12.2022
(b)The name of complainant Ct. Kuldeep
(c) The name of accused VICKY @ VIKRAM
S/o Sh. Ravi Chand
R/o C-2/Jhuggi No. 40, Sultanpuri,
Delhi.
(d) The offence complained of Section 25 Arms Act
(e)The plea of the accused Pleaded not guilty
(f)The final order Acquittal
(g)The date of such order 26.05.2023
JUDGEMENT:
1. The accused has faced trial for offence u/s 25 Arms Act, 1959.
2. Stated succinctly, the facts germane for the case of the prosecution are that on 27.12.2022, at about 9.20 PM, Sultanpuri Bus Terminal, Delhi accused was found in possession of one buttondar knife in contravention of the notification issued by Delhi Administration and thereby committed an offence u/s 25 Arms Act.
Digitally signed SANYA by SANYA DALAL DALAL Date: 2023.05.26 04:20:16 +0530 FIR No. 1022/22 State v Vicky @ Vikram 1/8
3. On the written application of the informant, Sultanpuri P.S. registered, in relation to the above incident, a FIR no.1022/22 and, after investigation, submitted the charge sheet against the aforementioned accused u/s 25 Arms Act. Cognizance of the offence was taken on 1022/22 and the accused entered appearance being in Judicial Custody upon which provision of Section 207 Cr.P.C. was complied with.
4. Charge u/s 25 Arms Act was framed on 09.02.2023 and was read over to accused, in Hindi, to which he pleaded not guilty and claimed trial.
5. The prosecution, in order to prove the case beyond all reasonable doubt, examined 03 witnesses in support of its case during the course of trial.
6. PW1 HC Amit deposed that on 27.12.2022, after receiving DD No. 86A, he went to the spot where he met Ct. Kuldeep who handed over custody of accused alongwith recovered buttondar knife. He requested 4-5 public persons to join the investigation but none of them agreed. Thereafter, he prepared sketch memo Ex. PW1/A, pullanda of the same and kept in a transparent plastic box sealed with the seal of AD and prepared seizure memo Ex PW1/B. Thereafter, he recorded statement of Ct. Kuldeep which was Ex. PW1/C and prepared the rukka Ex. PW1/D and got the FIR registered Ct. Kuldeep. He deposed that Ct. Kuldeep came at the spot alongwith ASI Ganga Ram. Further investigation was assigned to ASI Ganga Ram. PW1 handed over the custody of accused alongwith documents prepared by PW1 to ASI Ganga Ram. Case property Ex. P-1 was correctly identified by the witness.
During cross-examination, he admitted that he did not record the name of the public persons who refused to join the investigation. No handing over memo of the seal was prepared. He deposed that he reached at the spot at about 9.40 PM. Finally, he left the spot at about 11.00 PM. Digitally signed by SANYA SANYA DALAL DALAL Date:
2023.05.26 04:20:25 +0530 FIR No. 1022/22 State v Vicky @ Vikram 2/8
7. PW2 ASI Ganga Ram deposed that on 27.12.2022, the investigation of the present case was assigned to him and he went to the spot where he met with HC Amit who handed over the custody of accused alongwith recovered buttondar knife and relevant documents prepared by him. Thereafter, he prepared the site plan at the instance of Ct. Kuldeep which was Ex. PW2/A. He arrested the accused and conducted his personal search vide memo Ex. PW2/B and Ex.PW2/C. He recorded disclosure statement of the accused Ex. PW2/D. The case property Ex. P-1 was correctly identified by the witness.
During cross-examination, he deposed that he did not record the name of the public persons who refused to join the investigation. No handing over memo of the seal was prepared. He reached to the spot at about 11.00 PM. Finally, he left the spot at about 11.45 PM. He admitted that in the DD No. 86A, nowhere it was mentioned about the name of the person apprehended.
8. PW3 Ct. Kuldeep deposed that on 27.12.2022, he was on patrolling duty in the area of Sultanpuri and while patrolling, he reached at Sultanpuri bus terminal where he saw one person coming from the side of Pooth Kala and upon seeing him, he tried to flee away. On suspicion, he stopped him and made his cursory search and found one buttondar knife from his right pant pocket. Thereafter, he had given information of the same in PS and after sometime IO/HC Amit came at the spot and he handed over the custody of accused alongwith recovered buttondar knife to IO. Thereafter, IO requested 4-5 public persons to join the investigation but none of them agreed. He identified the case property Ex P-1.
During cross-examination, he deposed that he went from the PS for patrolling duty at about 9.00 PM. The distance between the spot and the PS was about 300 mtrs. IO reached to the spot at about 9.30 PM. Firstly, IO prepared the seizure memo after reaching to the spot. He admitted that the spot was a residential area. No public person joined the investigation and no legal action or written notice served upon them.
SANYA Digitally signed by
SANYA DALAL
DALAL Date: 2023.05.26
04:20:38 +0530
FIR No. 1022/22 State v Vicky @ Vikram 3/8
9. Vide separate statement of the accused u/s 294 Cr.PC r/w 313 Cr.PC he admitted the genuineness of recording of FIR No. 1022/22 and DAD notification . Hence, the related witnesses were dropped on account of the admission made by the accused.
10. Evidence on behalf of the prosecution was closed and the accused was examined u/s 313 Cr.P.C. wherein he chose not to lead DE.
11. Final arguments were thereafter addressed by Ld. Counsel Sh. Satish Kumar for the accused and by Ld. APP for the State. It was argued by Ld. APP for the State that prosecution has successfully established guilt of accused beyond reasonable doubt, hence he be convicted. While on the other hand, it was argued by Ld. Counsel that no independent witness was examined by the prosecution and there are material contradiction in the testimony of the police officials which goes on to reveal that a false case has been planted against the accused.
APPRECIATION OF EVIDENCE
12. The primary issue to be decided in the present case is whether the prosecution has been able to prove its case against the accused beyond all reasonable doubt.
13. On a perusal of the oral and documentary evidence led by the prosecution, the following observation emerge :
a. In the present case, no public witness has been examined on behalf of the prosecution in order to assuage its claim. The recovery is alleged to have been done from the accused on 27.12.2022, at about 9.20 PM, Sultanpuri Bus Terminal, Delhi. Now, it is not the case that the place of incident was a deserted place. PW1 and PW3 categorically deposed that public persons were present at the spot at the time of the Digitally signed SANYA by SANYA DALAL FIR No. 1022/22 State v Vicky @ Vikram DALAL Date:
04:21:04 +0530 4 / 8 2023.05.26 alleged recovery despite the same no efforts were made to involve them in the investigation of the present case. From perusal of the record, no serious effort for joining public witnesses appears to have been made. There is nothing on record to show that the IO had served any notice u/s 160 Cr.P.C. on the public persons who were present at the time when the seizure was effected. The failure to make conscious and serious efforts to give adequate notice to public witnesses is amplified in view of the statuary duty which is imposed u/s 100(4) Cr.P.C. to call upon two respectable persons of the locality to join the search. However, no such notice was served, thereby raising a doubt on the case of the prosecution.
b. Reliance in this regard is placed on paragraph 6 of the judgment in Pawan Kumar v. 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 circumstance throwing doubt on the arrest or the recovery of the knife from the person of the accused." Digitally signed SANYA by SANYA DALAL DALAL Date:
2023.05.26
04:21:15 +0530
FIR No. 1022/22 State v Vicky @ Vikram 5/8
14. PW3 did not furnish anything so as to substantiate that he was on patrolling duty on 27.12.2022, at about 9.20 PM, Sultanpuri Bus Terminal, Delhi at the relevant point of time.
At this stage, reference can be taken from the provision enshrined in 22 rule 49 of the Punjab Police Rules, which is reproduced as under;
"Chapter 22 rule 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.
Note: The term Police Station will include all places such as Police Lines and Police Posts where Register No. II is maintained.
Perusal of the above rule clearly suggests that the police officials are mandated to record their time of arrival and departure on duty at or from the police station. In the instant case, this provision has not been complied by the concerned police witnesses. The relevant entries regarding the arrival and departure of the police officials have not been proved on record. It has been held by Hon'ble High Court of Delhi in Rattan Lal Vs. State 1987 (2) Crimes 29, held that;
"if the investigating agency deliberately ignores to comply with the provisions of the Act the Courts will have to approach their action with reservations. The matter has to be viewed with suspicion if the provisions of law are not strictly complied with and the least that can be said is that it is so done with an oblique motive. This failure to bring on record, the DD entries creates a reasonable doubt in the prosecution version and attributes oblique motive on the part of the prosecution."
15. No photography of case property was carried out by the investigating agency.
Also, the testimony of all the prosecution witnesses is completely silent upon the aspect of the photography of the case property. Accordingly, no photographs of the case property were taken at the time of recovery.
16. It is also evident that at no point prosecution witnesses offered their own personal search to any independent witness prior to conducting the personal search of FIR No. 1022/22 State v Vicky @ Vikram 6/8 the accused in the case of Rabinder Nath Prusty v. State of Orissa, Hon'ble Orissa High Court has held that "on of the formalities that have to be observed in searching a person is that the searching Officer and other assisting him should give their search to the accused before searching the person of the accused".
17. It is the settled proposition of law that the testimony of police officials cannot be discarded away merely because of the fact that no public witnesses were examined however, their testimonies should be scrutinized in more detail. If it is found during the course of investigation that the police officials did not even make the endeavor to ask the public witnesses to join the investigation then it would caste a very serious doubt on the testimony of police officials.
The Hon'ble Supreme Court in case of Pradeep Narayan Madgaonkar Vs. State of Maharashtra (1995) 4 SCC255 dealt with the issue of requirement of examination of an independent witness and whether the evidence of a police witness requires corroboration. The Hon'ble Apex Court held that though the same must be subjected to strict scrutiny, however, the evidence of police officials cannot be discarded merely on the ground that they belong to the police force and are entrusted either in the investigation or in the prosecution. However, as far as possible, the corroboration of their evidence on material particulars should be sought.
18. In the instant case as discussed above, no serious efforts seems to have been made to involve public witnesses to join the investigation and there is no handing over memo of the seal which can suggest that case property remained intact and there is no tampering with the same.
In such circumstances, the testimony of the police officials without any independent corroboration cannot establish beyond reasonable doubt that the accused was found in the possession of a buttondar knife on the alleged date and time.
Accordingly, the court is of the view that prosecution had failed to Digitally signed discharge its burden of proving its case against the accused. SANYA by SANYA DALAL DALAL Date:
2023.05.26 04:21:39 +0530 FIR No. 1022/22 State v Vicky @ Vikram 7/8
19. Hence, accused Vicky @ Vikram cannot be saddled with criminal liability for offence u/s 25 of the Arms Act. Hence, he stands acquitted.
20. File be consigned to record room after due compliance.
Digitally
signed by
Announced, dictated and signed in open court
SANYA SANYA DALAL
Date:
DALAL 2023.05.26
04:21:49
on 26th May, 2023 +0530
(SANYA DALAL)
Metropolitan Magistrate-01
Rohini Courts, Delhi.
FIR No. 1022/22 State v Vicky @ Vikram 8/8