Delhi District Court
State vs . Lokesh on 11 September, 2019
IN THE COURT OF SH. KAPIL KUMAR
METROPOLITAN MAGISTRATE05, CENTRAL,
TIS HAZARI COURTS, DELHI
CNR No. DLCT020088772018
CIS No. 3001/18
State Vs. Lokesh
FIR No. 375/17
PS : Nabi Karim
U/s. 25(1B)(b)Arms Act
JUDGMENT
1) The date of commission of offence : 18.11.2017
2) The name of the complainant : Ct. Ram Charan
3) The name & parentage of accused : Lokesh S/o. Late Panna Lal R/o. House No. C400, Sidharth Basti, Nabi Karim, Delhi.
4) Offence complained of : u/s.25(1B)(b)Arms Act
5) The plea of accused : Pleaded not guilty
6) Final order : Acquitted
7) The date of such order : 11.09.2019
Date of Institution : 27.02.2018
Judgment reserved on : 22.08.2019
Judgment announced on : 11.09.2019
BRIEF REASONS FOR THE JUDGMENT:
1) The case of the prosecution against the accused is that on
18.11.17, at about 10.50 PM, near Kuda Khatta, Prem Nagar, Nabi Karim, Delhi, within the jurisdiction of PS Nabi Karim, he was found in possession of one buttondar knife in contravention of Delhi Administration Notification. On the said allegations, accused was charged with the offence under Section 25 (1B)(b) of the Arms Act, 1959.
2) After investigation, chargesheet was filed against the accused. The copy of chargesheet was supplied to the accused in compliance of Section 207 Cr.P.C. Thereafter, charge was framed against the accused under Section 25 of the Arms Act, 1959 to which he pleaded not guilty and claimed trial.
3) In support of its version, prosecution has examined four witnesses. Accused admitted as per section 294 Cr.PC, the factum as to the registration of the present FIR, certificate u/s. 65B Indian Evidence Act, DD No. 37A dated 18.11.17 and notification of Delhi Administration, Delhi, regarding the possession of knife beyond a certain description is illegal.
4) After conclusion of prosecution evidence, statement of accused was recorded separately wherein accused claimed to be innocent and denied the allegations against him. Accused opted not to lead any DE.
5) I have heard Ld. APP for State and Ld. Counsel for accused. I have also perused the record carefully.
6) The testimonies of prosecution witnesses are hereby discussed, in brief, as follows: 6.1) PW3 Ct. Ram Charan deposed that on 18.11.17, he was posted at PS Nabi Karim as constable and was on patrolling duty. He deposed that when he reached at Prem Nagar, Kuda Khatta, Nabi Karim, Delhi, the accused, who was standing near the wall, tried to run away on seeing him. He deposed that on suspicion that person was apprehended and from his search one buttondar knife was recovered. The name of that person was revealed as Lokesh. PW3 further deposed that he informed to duty officer at PS. Ct. Manoj alongwith HC Balwan came at the spot and he handed over the custody of the accused and the knife to HC Balwan. Thereafter, sketch of the knife Ex. PW1/A was prepared. Knife was seized vide seizure memo Ex. PW1/B and thereafter sealed with the seal of GS. IO recorded his statement Ex. PW2/A. Rukka was prepared and FIR got registered. Accused was arrested and personally searched, site plan Ex. PW2/C was prepared. He correctly identified the accused in the court and the knife was proved as Ex. P1.
6.2) PW1 Ct. Manoj Kumar and PW2 HC Balwan deposed on the same lines that on 18.11.17, on receipt of DD No. 37A, they reached at the spot i.e. Kuda Khatta, Prem Nagar, Nabi Karim, Delhi, where they met with Ct. Ram Charan, who handed over the custody of the accused Lokesh and the knife to HC Balwan. Sketch memo of the knife Ex. PW1/A was prepared and thereafter the knife was sealed with the seal of GS and seized vide Ex. PW1/B. Statement of Ct. Ram Charan Ex. PW2/A was recorded. Rukka Ex. PW2/B was prepared, FIR was got registered and site plan Ex. PW2/C was prepared. Accused was arrested and personally searched. The accused and the knife was correctly identified. The knife was proved as Ex. P1.
6.3) PW4 HC Ravi Kant, MHC(M), produced one cloth pullanda, containing the case property i.e. one knife, during the testimony of PW4 HC Ravi Kant and deposed regarding the same.
7) It is the cardinal principle of Criminal Justice delivery system that the prosecution has to prove the guilt of accused person beyond reasonable doubts. No matter how weak the defence of accused is but, the golden rule of the Criminal Jurisprudence is that the case of the prosecution has to stand on its own leg.
8) Now, I consider the points contended by the Ld. Counsel for the accused one by one. Ld. Counsel for accused argued that no independent witness was joined in the investigation. First of all, I consider the legal position on this point. In State of Punjab v. Balbir Singh, AIR 1994 SC 1872, the Hon'ble Supreme Court held that:
It therefore emerges that noncompliance of these provisions i.e. Sections 100 and 165 Cr.P.C. would amount to an irregularity and the effect of the same on the main case depends upon the facts and circumstances of each case. Of course, in such a situation, the court has to consider whether any prejudice has been caused to the accused and also examine the evidence in respect of search in the light of the fact that these provisions have not been complied with and further consider whether the weight of evidence is in any manner affected because of the non compliance. It is wellsettled that the testimony of a witness is not to be doubted or discarded merely on the ground that he happens to be an official but as a rule of caution and depending upon the circumstances of the case, the courts look for independent corroboration. This again depends on question whether the official has deliberately failed to comply with these provisions or failure was due to lack of time and opportunity to associate some independent witnesses with the search and strictly comply with these provisions. [Emphasis supplied] Considering facts and circumstances of the present case, there was no lack of time and opportunity to associate some independent witnesses with the search and strictly comply with the provisions of Code of Criminal Procedure. Merely mentioning that public persons were requested to joined the investigation is of no avail. Name of those persons are not mentioned. It is not mentioned as to what action was taken against those persons who refused to join the investigation. Hence, the abovementioned creates doubt on the case of the prosecution.
9) Further, the seal after use was not handed over to any independent person. Seal after use was handed over to PW1 Ct. Manoj Kumar. It appears that no efforts was made to hand over the seal after use to independent person. I am conscious of precedent laid down by Hon'ble Delhi High Court in Safiullah v. State, 1993 (1) RCR (Criminal) 622, 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."
Hon'ble Punjab & Haryana High Court also held in Ramji Singh v. State of Haryana, 2007 (3) RCR (Criminal) 452, that "7. The very purpose of giving seal to an independent person is to avoid tampering of the case property."
The case property was lying in the Maalkhana of the same police station, where the police official having the possession of seal was posted. There was ample opportunities for tampering with the case property. Hence, considering the legal position, the benefit of doubt should be given to the accused.
10) Besides all this, in the present case, the sketch memo of the knife Ex. PW1/A and seizure memo of the knife Ex. PW1/B, bears the number of FIR. As per the rukka and testimony of witnesses, the sketch memo of the knife and seizure memo were prepared prior to registration of FIR. If that be so then how Ex. PW1/A and Ex. PW1/B bears the FIR number. Now, I consider the observation made by Hon'ble Delhi High Court in Giri Raj v. State, 83 (2000) DLT 201. This gives rise to two inferences that either the FIR was recorded prior to the alleged recovery of the case property or number of the said FIR was inserted in the document 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 the recovery of the case property in the manner alleged by the prosecution. That being so, the benefit arising out of such a situation must necessarily go to the accused.
11) Further, it is also came on record that PW3 Ct. Ram Charan did not offer his personal search prior to taking the search of accused. PW3 must have offered his personal search to some independent witness. No such precaution was taken by PW3. The doubt as to the false plantation of the case property cannot be ruled out.
12) No efforts were made by any of the police officials to lift the chance finger prints from the knife in question. Had any such efforts been made there would have been scientific evidence in the present case which could be crucial for the case of prosecution. No efforts were made to collect the scientific evidence by the IO.
13) In the judgment titled as "S.L.Goswami v. State of M.P"
reported as 1972 CRI.L.J.511(SC) the Hon'ble Supreme Court held: "...... In our view, the onus to proving all the ingredients of an offence is always upon the prosecution and at no stage does it shift to the accused. It is no part of the prosecution duty to somehow hook the crook. Even in cases where the defence of the accused does not appear to be credible or is palpably false that burden does not become any the less. It is only when this burden is discharged that it will be for the accused to explain or controvert the essential elements in the prosecution case, which would negative it. It is not however for the accused even at the initial stage to prove something which has to be eliminated by the prosecution to establish the ingredients of the offence with which he is charged, and even if the onus shifts upon the accused and the accused has to establish his plea, the standard of proof is not the same as that which rests upon the prosecution..........................."
14) The onus and duty to prove the case against the accused was upon the prosecution and the prosecution must establish the charge beyond reasonable doubt. It is also a cardinal principle of criminal jurisprudence that if there is a reasonable doubt with regard to the guilt of the accused the accused is entitled to benefit of doubt resulting in acquittal of the accused. Reference may also be made to the judgment titled as Nallapati Sivaiah v. Sub Divisional Officer, Guntur reported as VIII(2007) SLT 454(SC).
15) In view of above said discussion, the prosecution has failed to prove the guilt of the accused beyond reasonable doubt. Accordingly, I acquit the accused Lokesh of the charges framed in the present case. Case property be confiscated to the State. Same be destroyed. File be consigned to Record Room after due compliance.
Digitally
signed by
KAPIL KAPIL KUMAR
Date:
KUMAR 2019.09.11
15:55:32
+0530
Announced in the open court (KAPIL KUMAR)
on 11.09.19. Metropolitan Magistrate05 Central District, Tis Hazari Courts/Delhi