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Delhi District Court

State vs Jatin Kalu on 20 March, 2025

   IN THE COURT OF MS. DEEKSHA SETHI, JMFC-08,
  SOUTH WEST DISTRICT, DWARKA COURTS, DELHI
   CNR No.         :       DLSW02-001032-2024
   ID No.          :       340/2024
   FIR No.         :       712/2023
   U/s             :       25 Arms Act
   P.S.            :       Uttam Nagar
   State           v/s     Jatin Kalu

  a) Name & address of the          : Ct Devkant
  complainant                         No. 2487/DW
  b) Name & address of               :Jatin Kalu
  accused                             s/o Chander Shaker
                                      r/o A-3/32, Dal Mil Road,
                                      Uttam Nagar, Dwarka,
                                      Delhi.
   c) Date of Commission of         : 12.12.2023
   offence
   d) Offence complained of         : 25 Arms Act
   e) Plea of the accused           : Pleaded not guilty.
   f) Final Order                   : Acquitted.
   g) Date of Institution           : 06.01.2024
   h) Judgment Pronounced on        : 20.03.2025

                           JUDGMENT

Brief facts

1. The prosecution version in brief is that on 12.12.2023 at about 10 PM, accused Jatin Kalu was found in possession of one buttondar knife at DSIDC, Center Park, D Block, JJ Colony, Uttam Nagar, New Delhi. Thereafter, the complainant Ct. Devkant informed about the said incident to the duty officer at the police station and police official from PS Uttam Nagar reached at the spot. Thereafter, an State v/s Jatin Kalu Page 1 of 11 Cr. Case No. 340/2024 FIR bearing no. 712/2023 u/s 25 Arms Act was registered at PS Uttam Nagar. Investigation of the case was thereafter handed over to Investigating Officer HC Jagbir Singh.

Proceedings before the Court

2. On completion of investigation, a chargesheet u/s 25 Arms Act was filed against the present accused, i.e., Jatin Kalu. After taking cognizance of the offence, the accused was summoned to face trial.

3. On his appearance, a copy of chargesheet along with documents were supplied to the accused in terms of Section 207 of the Code of Criminal Procedure (hereinafter referred to as 'CrPC'). On finding prima facie case against the accused, a charge under section 25 Arms Act was framed against him, to which he had pleaded not guilty and claimed trial.

4. During the trial, prosecution has examined the following witnesses:

(i) PW-1 Ct. Devkant has deposed that he was posted at PS Uttam Nagar as constable. On 12.12.2023, he was on patrolling duy at about 9:55 PM and at that time, he met one secret informer who told him that one boy who is sitting in DSIDC Center park was carrying a buttondar knife and he may commit any incident and secret informer thereafter left the spot.

At about 10:00 PM, he reached at DSIDC Center Park, B Block, JJ Colony and saw there one boy was returning towards 100 foota road from DSIDC State v/s Jatin Kalu Page 2 of 11 Cr. Case No. 340/2024 Centre Park. Upon suspicion, he stopped him and upon his cursory search, one buttondar knife was recovered from right pocket of his wearing pant. Upon inquiry, he came to know the details of said boy were as Jatin @ Klu s/o Chander Shaker r/o A- 3/32, Dalmil road, Uttam Nagar, New Delhi, aged about 21 years. He shared the said information with duty officer of PS Uttam Nagar. HC Jagbir Singh reached at the spot. He produced the apprehended boy Jatin @ Kalu alongwith recovered buttondar knife before the IO. IO asked four to five public person to join the investigation but none agreed. IO put the recovered buttondar knife on white paper and prepared sketch of buttondar knife ExPW1/A. IO prepared pullanda of buttondar knife and sealed with the seal of JS. IO seized the buttondar knife vide memo ExPW1/B. IO recorded his statement ExPW1/C and prepared tehrir and got the FIR registered through him. IO prepared site plan of the place of incident at his instance ExPW1/D. IO interrogated the accused Jatin @ Kalu and recorded his disclosure statement ExPW1/F. IO arrested and conducted personal search of accused vide memo ExPW1/F and ExPW1/F. The case property as well as accused was shifted to PS Uttam Nagar. Accused was sent to Lockup after conducting his medical examination. The case property alongwith relevant documents were deposited at Malkhana of PS Uttam State v/s Jatin Kalu Page 3 of 11 Cr. Case No. 340/2024 Nagar by the IO. Witness correctly identified the accused in the court. Witness also identified the case property. This witness was thoroughly cross examined by Ld. Defence counsel.

(ii) PW-2 HC Jagbir Singh has on 12.12.2023, he was posted as head constable at PS Uttam Nagar. On that day, DD entry 148A was marked to him for further investigation. Thereafter, he went to the spot i.e, DSIDC Center Park B Block, JJ Colony, Uttam Nagar where Ct Dev Kant was present alongwith the accused and he handed over him the custody of the accused and the case property. Thereafter, he asked four to five public persons to join the investigation but none of them agreed to join the investigation. Thereafter he put the recovered buttondar knife on a white paper and prepared the sketch memo of the knife Ex. PW1/A. Thereafter, he prepared the pullinda of knife and sealed with the seal of JS and seized the same vide seizure memo ExPW1/B. He recorded statement of Ct. Dev Kant Ex. PW1/C and prepared the tehrir and got the FIR registered through Ct Dev Kant. After Ct Devkant returned to the spot after registration of FIR, he prepared the site plan at his instance ExPW1/D. Thereafter, he interrogated the accused Jatin @ Kallu and recorded his disclosure statement Ex. PW1/E. Thereafter he arrested and conducted personal search of accused vide memo Ex. PW1/F and ExPW1/G. Thereafter, State v/s Jatin Kalu Page 4 of 11 Cr. Case No. 340/2024 he alongwith the accused went back to PS Uttam Nagar and deposited the case property in the malkhana. After the medical examination of the accused, he produced him before the court where he was sent to JC. Witness correctly identified the accused in the court. The case property was exhibited as Ex. X-1. This witness was thoroughly cross examined by Ld. Defence counsel.

(iii) PW-3 HC Mahipal has deposed that on 13.12.2023, he was posted at PS Uttam Nagar as MHCM. On that day, he took case property/ samples sealed with the seal of JS from IO HC Jagbir and entry to this respect was made in register no.19 at serial no. 5547 (ExPW3/A). This witness was not cross-examined by Ld. Defence counsel despite having been given an opportunity to do so.

5. Vide separate statement of the accused u/s 294 CrPC, he had admitted the genuineness of the FIR no. 712/2023, Certificate U/s 65 B of Indian Evidence Act and DAD notification issued by Delhi Administration. The above- said documents were exhibited as Ex. X-1, Ex.X-2 and Ex. X-3 respectively. Accordingly, the concerned witnesses were dropped by the prosecution.

6. The prosecution evidence was closed and thereafter the statement of accused u/s 313 CrPC r/w section 281 CrPC was recorded wherein all the incriminating evidence appearing against the accused was put to him, which he had denied to be correct and submitted that he was State v/s Jatin Kalu Page 5 of 11 Cr. Case No. 340/2024 innocent and falsely implicated. The accused chose not to lead any evidence in his defence.

7. It is argued by Ld. APP for the State that it is clear from the statement of the complainant and other witnesses as well as the documents appearing on record that the accused was in possession of one button actuated knife without licence. He has thus, submitted that the prosecution has proved its case beyond reasonable doubt against the accused and he be, therefore, held guilty and convicted for the above-said offence.

8. Per contra, Ld. Counsel for the accused has argued that the State has failed to establish its case beyond reasonable doubt and since nothing incriminating has appeared against the accused, he be, therefore, acquitted for the offence charged.

9. I have heard the Ld. APP for the State and Ld. Defence counsel at length, perused the record, gone through the relevant provisions of law and given my thoughts to the matter.

Findings of the Court

10.It is a well settled principle of criminal law that the burden of proof is on the prosecution and the presumption of innocence of the accused has to be rebutted by the prosecution by adducing cogent evidence that points towards the guilt of the accused beyond reasonable doubt.

11.The first argument of Ld. Counsel for the accused is that since no independent witness has been joined at the time of investigation, it is, therefore, difficult to believe the prosecution version as it creates a doubt on the veracity of the statement of police witnesses.

12. This court has given its thoughts to the above contention of Ld. Counsel for the accused. Perusal of the cross examination of PW-1 Ct. Dev Kant (the complainant) and PW-2 HC Jagbir Singh (the IO) reveals that the IO had asked some public persons to join the investigation, but none of them had agreed. Thus, it is not the case of the prosecution that no public person was present at or near the spot of recovery. However, it is equally true that no steps are shown to have been taken to note down the names and addresses of those persons. It is a well settled proposition of law that non-joining of public witness throws doubt over the fairness of the investigation by police. Section 100 (4) of the CrPC also casts a statutory duty on an official conducting search to join two respectable persons of the society. However, no public person has been joined by the IO in the present case. In a case titled as Nanak Chand Vs. State of Delhi, 1990 SCC OnLine Del 469, Hon'ble High Court of Delhi has observed as under:

"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 State v/s Jatin Kalu Page 7 of 11 Cr. Case No. 340/2024 rejection needs no Napoleon on the Bridge at Arcola.'' (Emphasis supplied)

13.In the present case also, non-joining of any public person as a witness creates doubt on the case of the prosecution. Although, this Court is conscious of the fact that it is a well settled law that the prosecution case cannot be thrown out or doubted on the sole ground of non-joining of public witnesses as they keep themselves away from the Court unless it is inevitable, however, in the present case, it is not only the absence of public witnesses which raises a doubt on the prosecution version but there are other circumstances too, as discussed in the later part of the judgment, which raise suspicion over the prosecution case.

14.Perusal of the tehrir prepared by IO HC Jagbir Singh reveals that the IO had first prepared the sketch of recovered button actuated knife (Ex. PW1/A) and the seizure memo of the case property Ex. PW-1/B and after that rukka was prepared and sent to the police station for registration of FIR through PW-1 Ct Devkant and thereafter, present FIR was registered. It is, therefore, clear that the sketch of the case property as well as its seizure memo were prepared before the rukka was handed over to the police official for registration of the FIR. The FIR was thus, registered after the preparation of the sketch of recovered button actuated knife (Ex. PW1/A) and the seizure memo of the case property Ex. PW-1/B, however, surprisingly, sketch of recovered button actuated knife (Ex. PW1/A) and the seizure memo of the case property Ex.

PW-1/B bear the FIR number and it is thus, amazing since the number of the FIR could have come to his knowledge (PW-2) only after a copy of the FIR was brought to the spot. Thus, the number of FIR in no circumstances could have been mentioned by the IO on sketch of the case property and its seizure memo, which came into existence before registration of the FIR. However, as discussed above, the sketch of recovered button actuated knife (Ex. PW1/A) and the seizure memo of the case property Ex. PW-1/B bear the FIR number and case details. In this context, Hon'ble High Court of Delhi in one of the case titled Pawan Kumar v. The Delhi Administration, 1987 SCC OnLine Del 290, has observed as under in paragraph 6:

"... Learned counsel for the State concedes that immediately after the arrest of the accused, his personal search was effected and the memo Ex. PW11/D was prepared. Thereafter, the sketch plan of the knife was prepared in the presence of the witnesses. After that, the ruqa EX. PW11/F was sent to the Police Station for the registration of the case on the basis of which the FIR, PW11/G was recorded. The F.I.R. is numbered as 36, a copy of which was sent to the I.O. after its registration. It comes to that the number of F.I.R. came to the knowledge of the I.O. after a copy of it was delivered to him at the spot by a constable. In the normal circumstances, the F.I.R. No. should not find mention in the recovery memo or the sketch plan which had come into existence before the registration of the case. However, from the perusal of the recovery memo, I find that the FIR is mentioned whereas the sketch plan does not show the number of the FIR. It is not explained as to how and under what circumstances the recovery memo came to bear the F.I.R. No. which had already come into existence before the registration of the case. These are few of the circumstances which create a doubt, in my mind, State v/s Jatin Kalu Page 9 of 11 Cr. Case No. 340/2024 about the genuineness of the weapon of offence alleged to have been recovered from the accused."

(Emphasis supplied)

15.In another case titled Mohd. Hashim v. State, 1999 SCC OnLine Del 859, the Hon'ble High Court of Delhi while dealing with an appeal under the Narcotic Drugs and Psychotropic Substances Act, 1985 has also observed about the discrepancy, i.e., appearance of FIR number on seizure memo and other documents before registration of FIR and it runs as under:

"... Surprisingly, the secret information (Ex. PW7/A) received by the Sub-Inspector Narender Kumar Tyagi (PW-7), the notice under Section 50 of the Act (Ex. PW5/A) alleged to have been served on the appellant, the seizure memo (Ex. PW1/A) and the report submitted under State v. Om Prakash Section 57 of the Act (Ex. PW7/D) bear the number of the FIR (Ex. PW4/B). The number of the FIR (Ex. PW4/B) 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 as to under what circumstance number of the FIR (Ex. PW4/B) had appeared on the top of the aforesaid documents, which were allegedly prepared on the spot. This gives rise to two inferences that either the FIR (Ex. PW4/B) 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 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."

(Emphasis supplied)

16.In the present case also, it remains unexplained as to how the FIR No. and its details figure on the top of the documents, i.e., sketch of recovered button actuated knife (Ex. PW1/A) and the seizure memo of the case property State v/s Jatin Kalu Page 10 of 11 Cr. Case No. 340/2024 Ex. PW-1/B. This creates serious doubt on the prosecution version and alleged recovery button actuated knife and it leads to only one conclusion that either the said documents were prepared later on or that the FIR was registered earlier in point of time. In both the aforesaid eventualities, a reasonable doubt has been raised on the version of the prosecution.

17.Thus, in light of the above discussion which throws doubt on the authenticity of the prosecution version, this court is of the opinion that prosecution has failed to prove its case beyond reasonable doubt that a button actuated knife was recovered from the possession of the accused. The accused Jatin Kalu is, therefore, acquitted of the offence u/s 25 Arms Act.

18.This judgment contains 11 pages and the same has been pronounced by the undersigned in open court today and each page bears my signatures.

19.Let a copy of the judgment be uploaded on the official website of District Courts, Dwarka forthwith.

Digitally signed by DEEKSHA ANNOUNCED IN THE OPEN COURT DEEKSHA SETHI SETHI Date:

TODAY, i.e., ON 20.03.2025 2025.03.20 15:37:18 +0530 Deeksha Sethi Judicial Magistrate First Class-08 South-West District/New Delhi

20.03.2025 State v/s Jatin Kalu Page 11 of 11 Cr. Case No. 340/2024