Delhi District Court
State vs Sonu on 27 May, 2023
IN THE COURT OF METROPOLITAN MAGISTRATE-12,
SOUTH-EAST, SAKET COURTS,
NEW DELHI
Presided over by- Ms. Neha Barupal, DJS
Cr. Case No. : 5283/2022
CNR No. : DLSE020150352022
FIR No. : 345/2022
Police Station : Amar Colony
Section(s) : 25 Arms Act, 1959
In the matter of :
STATE
VERSUS
SONU
S/o Sh. Malkhan
R/o Shop No. 31, Kela Godown, Nehru Nagar, Amar Colony,
New Delhi.
...... Accused
1. Name of Complainant : Ct. Praveen
2. Name of Accused : Sonu
S. 25 Arms Act,
3. Offence complained of or proved :
1959
4. Plea of Accused : Not guilty
5. Date of commission of offence : 21.05.2022
6. Date of filing of case : 04.06.2022
7. Date of reserving Order : 23.05.2023
8. Date of pronouncement : 27.05.2023
9. Final Order : Acquitted
Argued by -: Mr. Vikas Jangra, Ld. APP for the State.
Mr. Virender Nagar, Ld. LAC for the accused.
Cr. Case No. 5283/2022 State v. Sonu Page 1 of 12BRIEF STATEMENT OF REASONS FOR THE DECISION:
FACTUAL MATRIX -
1. Briefly stated, the case of the prosecution is that on 20.05.2022, Ct. Praveen was on patrolling duty from 4:00 p.m. to 12 p.m. in PCR van K-33A and when they were going towards the police station for duty change at about 12 o'clock at night, they saw one person near waste bin at Captain Gaur Marg in front of Rama Gallery. On seeing the police vehicle the said person started going behind the waste bin but they caught him after taking about 8-10 steps. His name was revealed as Sonu. On his cursory search, a buttondar knife was recovered, which he was carrying with him without any license. As such, it is alleged that the accused has committed the offence punishable under Section 25 Arms Act, 1959 (hereinafter, "Arms Act"), for which FIR No. 345/2022 was registered at the Police Station Amar Colony, New Delhi.
INVESTIGATION AND APPEARANCE OF ACCUSED -
2. After registration of the FIR, the Investigating Officer (hereinafter, "IO") undertook investigation and on culmination of the same, the charge-sheet against the accused was filed. After taking cognizance of the offence, the accused was summoned to face trial.
3. A copy of charge-sheet was supplied to the accused in terms of Section 207 of the Code of Criminal Procedure, 1973 (hereinafter, "CrPC"). On finding a prima facie case, charge under Section 25 Arms Act was framed against the accused. He pleaded Cr. Case No. 5283/2022 State v. Sonu Page 2 of 12 not guilty and claimed trial.
PROSECUTION EVIDENCE-
4. During the trial, the prosecution examined three witnesses to prove its case against the accused.
5. PW-1 (Ct. Praveen) deposed in his examination that on 20.05.2012, he was posted as Ct. at PS Amar Colony. On that day, he was on PCR duty from 04:00 PM. To 12:00 midnight at K-33 A along with Ct. Rakesh. At about 12:00 AM midnight, when they reached in front of Rama Gallery, they saw that accused was present there and after seeing them accused tried to run away behind the Garbage storage, so they stopped their vehicle and apprehended him and asked about the reason for hiding. However, he did not give any satisfactory answer. Thereafter, they took cursory search of the accused and found one buttondar knife from left side of his pants. PW1 informed about the recovery to the PS Amar Colony. Thereafter, HC Santosh and Ct. Neeraj came at the spot. PW1 handed over the custody of the accused and recovered knife to the IO. Thereafter IO recorded his statement Ex. PW-1/A. IO asked some public person to join the investigation but none of them agreed. IO prepared a sketch memo of the recovered knife and found total length of the knife as 24cm, length of blade 11 cm, length of handle 13 cm and width of blade 2.5 cm. IO prepared the sketch memo, Ex. PW-1/B. IO prepared a pulanda with the help of the white cloth, sealed with the seal of 'SK' and prepared seizure memo Ex. PW-1/C. Thereafter IO prepared the rukka and handed over the same to Ct. Neeraj who went to the PS and got the present Cr. Case No. 5283/2022 State v. Sonu Page 3 of 12 case registered. After registration of the FIR, Ct. Rakesh came at the spot and handed over copy of FIR and rukka to IO. Therafter, IO recorded PW1's statement u/s 161 Cr.PC. Accused and case property Ex. P1 were correctly identified by the witness.
5.1 PW-1 was cross examined by Ld. LAC wherein he admitted that he had not served notice to any public person to join in the investigation and had not placed his departure entry. PW1 admitted that no independent public witness joined in the investigation. He denied the suggestion that accused has been falsely implicated in the present case and recovered case property is a planted case property. PW1 admitted that he prepared sketch memo and seizure memo prior to the registration of the FIR.
6. PW-2 (Ct. Rakesh) deposed in his examination that on 20.05.2012, he was on PCR duty from 04:00 PM to 12:00 midnight at K-33 A along with Ct. Praveen. He confirmed the version of PW1 as to apprehending the accused and rest of the steps undertaken.
6.1 PW-2 was cross examined by the Ld. LAC where PW2 admitted that he had not served notice to any public person to join in the investigation and had not placed his departure entry. PW2 admitted that no independent public witness joined in the investigation. PW2 denied the rest of the suggestions which were put to him.
7. PW-3 (ASI Santosh Kumar) entered into witness box and deposed on oath that on 21.05.2022 he had received the information vide DD No. 2A. He along with Ct. Neeraj reached at in front of Rama Gallery Near Kudedan, Capt. Gaur Marg and met Ct.
Cr. Case No. 5283/2022 State v. Sonu Page 4 of 12Praveen and Ct. Rakesh, who produced the apprehended person namely Sonu along with the recovered knife. PW3 requested some public persons to join the investigation, however, none of them were ready to join the same. He did not serve any notice upon them due to the paucity of time and urgency of the matter. He recorded the statement of the complainant. He put the recovered knife on white paper and prepared the sketch memo of the knife. Thereafter he put the knife in a plastic transparent box and put the doctor tape and sealed the same with the help of seal of 'SK'. The seal was handed over to the Ct. Praveen. PW3 prepared the seizure memo and seal handing over memo and he made the endorsement on the rukka and handed over the same to Ct. Rakesh for registration of FIR. Thereafter, he prepared the site plan (Ex. PW3/A) at the instance of the Ct. Sandeep. He inquired from the accused and arrested the accused vide arrest memo Ex. PW3/B and conduucted his personal search, the search memo being Ex PW3/C. They brought the accused and case property to the PS. He recorded the disclosure statement of the accused Ex. PW/D. The accused was then taken to the lock up. PW3 made the effort to trace out the source of the illegal knife, however, the same was not traceable at that time. He recorded the statement of the witnesses u/s 161 Cr.PC. After the completion of the investigation, he prepared the challan sheet and submitted the same before the Court. He correctly identified the case property and accused in the Court.
7.1 PW3 was cross examined by Ld. LAC for the accused, where he stated that he received the information at around 12:20 AM. He admitted the suggestion that recovery was effected in the Cr. Case No. 5283/2022 State v. Sonu Page 5 of 12 presence of the Ct. Praveen and Ct. Rakesh. There was no photography/videography at the time of recovery. PW3 did not remember the exact time when Ct. Rakesh left the spot along with the rukka. Ct. Rakesh returned after registration of FIR at 03:00- 03:30 AM. He deposed that he had prepared the sketch memo, seizure memo, handing over seal memo and endorsement on rukka before the registration of the FIR. PW3 admitted the suggestion that he marked the point at which the accused was apprehended on the site plan. Witness was confronted with the site plan Ex. PW3/A from the judicial record after which he stated that the said point has not been marked. PW3 denied rest of the suggestions which were put to him.
8. The accused admitted the genuineness of the following documents without prejudice to his defence: Copy of FIR without contents (Ex. A-1), DD No. 13A dated 21.05.2022 (Ex. A-2), certificate under Section 65-B of Indian Evidence Act (Ex. A-3), DD entry 2A dated 21.05.2022 (Ex. A-4), DAD notification dated 29.10.1980 (Ex. A-5). Therefore, formal examination of witness HC Mohan Lal Meena and Ct. Neeraj were dispensed with under section 294 Cr.P.C.
STATEMENT OF ACCUSED AND DEFENCE EVIDENCE -
9. Thereafter, to enable the accused to personally explain the incriminating circumstances appearing in evidence against him, the statement of the accused was recorded without oath under Section 313(1)(b) Cr.P.C. read with section 281 Cr.P.C. In reply, the accused stated that he is totally innocent and has been falsely implicated in Cr. Case No. 5283/2022 State v. Sonu Page 6 of 12 the present case. He chose to not lead any defence evidence.
10. Final arguments were addressed on behalf of both sides. This court has given thoughtful consideration to the material appearing on record as well as the arguments.
ARGUMENTS -
11. It was argued by the learned APP for the State that all the ingredients of the offences are fulfilled in the present case. He submitted that there is no ground to disbelieve the testimony of prosecution witnesses merely because they are police officials. Thus, it is prayed that the accused be convicted for the said offence.
12. Per contra, learned LAC for the accused contended that the State has failed to establish its case beyond reasonable doubt. He urged that the fact of not joining any public persons in the investigation, nor giving notice to any public person to join the investigation shows that it is a false case. He argued that the accused was falsely implicated in the case. He also contended that there are discrepancies in the testimony of the prosecution witnesses on the point of who took the rukka for registration of FIR and that the seizure memo and sketch memo bear the FIR details even though they were supposedly prepared prior to registration of the FIR. As such, it is prayed that the accused deserves to be acquitted of the said offence.
STANDARD OF PROOF -
13. Before dwelling into the facts of the present case, it would be apt to discuss the legal standards required to be met by Cr. Case No. 5283/2022 State v. Sonu Page 7 of 12 both sides. In criminal law, the burden of proving the guilt of the accused exclusively lies on the prosecution which must prove the offence charged beyond reasonable doubt. The benefit of doubt, if any, must go in favour of the accused.
14. The accused has been charged for the offence under Section 25 of Arms Act. The prosecution must prove that the accused was found in possession of arms in contravention of notification issued under section 4 of Arms Act.
APPRECIATION OF EVIDENCE -
15. In the present matter, the prosecution has examined three witnesses. PW1 was on patrolling duty on the date of incident with PW2. During formal search, a buttondar knife was recovered from the possession of the accused by PW1. Since he recovered the alleged knife from the accused, his testimony is of prime importance in the present case. Upon giving information in the police station, PW3 (IO) came to the spot. All three witnesses have been cross-examined by the ld. LAC for the accused.
16. On an examination of the testimonies of these witnesses, it is clear that the prosecution case does not stand on its own legs. Even though mere fact that the witnesses are police officials is not sufficient to doubt their testimony, sufficient factors exist in the present case to hold their version unreliable. These factors are discussed hereinafter.
17. At the outset, it is pertinent to note that there is no evidence on record to prove that PW-1 and PW-2 were on Cr. Case No. 5283/2022 State v. Sonu Page 8 of 12 patrolling duty on the date of the incident. The departure/arrival entry in the Daily Diary would have served as a substantial piece of evidence to corroborate the version of the police officials. There is no explanation as to why such entry was not made. It is pertinent to mention here that a mandatory duty is cast upon police officials to record the departure and arrival as per Rule 49, Chapter 22 of the Punjab Police Rules, 1934. The relevant port of the said Rule 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 of elsewhere, with a statement of the nature of their duty. This entry shall be made immediately on the arrival or prior to the departure of the officer concerned and shall be attested by the latter personally by signature or seal."
Thus, non-production of DD entries to prove that the witness was on picket duty on the day of incident throws a doubt on the presence of the witness at the place of incident.
18. Ld. LAC for the accused has argued that non-joining of public persons in the investigation shows that the case is a falsely implicated one. This court is in agreement with the ld. LAC and finds that lack of independent witnesses in this case constitutes a grave lacuna. Even though all three prosecution witnesses deposed that the place where the accused was apprehended is Cr. Case No. 5283/2022 State v. Sonu Page 9 of 12 public place, it can be seen that there is complete lack of any sincere efforts on the part of police officials to join public witnesses in the proceedings. It is admitted fact that the no notice was served to any public person to join the investigation. When there is a possibility of joining any public witness in the investigation and still no genuine efforts are made to join the independent person as witness, then the testimony of the police witness does not lend sufficient credence to the prosecution case.
19. It is relevant to note that the accused was apprehended at about 12:00 a.m. after which the rest of the steps as deposed by the witnesses were taken. The time of arrest on the arrest memo is 2:50 a.m. This implies that the police officials were at the spot, which was a public area, for ample time and during this period no public persons were joined in the investigation. Not even their names were noted by the police officials. Thus, the fact that despite availability, no public persons were joined, casts a doubt on the version of the prosecution.
20. Furthermore, no mention has been made by any of the prosecution witnesses as to what was measures were taken to ensure that the custody of the case property was unassailable after its seizure. The case property and accused remained in control of police officials till the case property was deposited in the malkhana. Hence, tampering with the case property cannot be ruled out as the seal remained with the police officials the entire time. Reliance may be placed on Saifullah v. State 1998 (1) C.C. Cases 497 (Delhi) in this regard. Thus, tampering/planting of the case Cr. Case No. 5283/2022 State v. Sonu Page 10 of 12 property cannot be ruled out as sealed case property and accused were with the police officials till the time case property was deposited in Malkhana.
21. An inconsistency in the depositions of the witnesses has been pointed out by Ld. LAC for accused that both PW1 and PW2 stated that Ct. Neeraj took the rukka for registration of FIR whereas PW3 deposed that it was taken by Ct. Rakesh. PW3 had stated that he marked the place of arrest on the site plan, however on being confronted with the same, he stated that it is not so marked. This shows that the witnesses are not entirely reliable.
22. The sketch memo and seizure memo bear the details of the FIR even though they were purportedly prepared before the registration of the FIR and PW1 and PW2 have testified to the same in their cross-examination. There is no explanation on record on this aspect. This further shows that the investigation may not have taken place in the manner as testified.
23. The general principles of criminal jurisprudence, namely, that the prosecution has to prove its case beyond reasonable doubt and that the accused is entitled to the benefit of a reasonable doubt, are to be borne in mind. All the aforementioned lapses in investigation cast a doubt on the recovery of buttondar knife from the possession of accused without permit or legal license. The lapses are material in nature and cannot be ignored. Thus, the accused is entitled to the benefit of doubt created by the inconsistencies.
24. Keeping in view the aforesaid discussion, the Cr. Case No. 5283/2022 State v. Sonu Page 11 of 12 prosecution has failed to prove its case beyond reasonable doubt whereas the accused has been successful in pointing out the deficiencies in the case of the prosecution. The recovery of the illicit arm from the possession of the accused, which was the essential ingredient of the offence, is highly doubtful.
CONCLUSION -
25. Consequently, accused Sonu is hereby ACQUITTED of the offence under Section 25 of the Arms Act, 1959.
ORDER -: ACQUITTED Pronounced in open court on 27.05.2023.
This judgment comprises of 12 signed pages.
(NEHA BARUPAL) Metropolitan Magistrate - 12 South-East District, Saket Courts New Delhi/27.05.2023 Cr. Case No. 5283/2022 State v. Sonu Page 12 of 12