Delhi District Court
State vs Ahasan on 29 February, 2024
IN THE COURT OF MS. MEENA CHAUHAN, METROPOLITAN
MAGISTRATE -08 (CENTRAL), TIS HAZARI COURTS : DELHI
FIR No. 1103/2021
PS: Kotwali
U/s 25/54/59 Arms Act
State v. Ahashan
CIS No. 993/2022
Date of Institution of case: 30.01.2022
Date when Judgment reserved: 22.02.2024
Date on which Judgment pronounced: 29.02.2024
JUDGMENT:
a Serial No. of the case : FIR No.: 1103/21 PS: Ahashan b Date of the commission of : 01.12.2021 the offence c Name of the Complainant : ASI Sanjay Kumar, PIS No. 28182449 d Name of Accused person Ahashan S/o Mohd. Jaan, R/o Naiya Wala & his parentage and : Chowk Rashid Ali Gate, Jamal Pur, Loni residence Ghaziabad, U.P. e Offence complained of : U/s 25/54/59 Arms Act f Plea of the Accused and : Pleaded not guilty.
his examination g Final Order : Acquitted u/s 25 Arms Act h Date of Order : 29.02.2024 FIR No. 1103/2021 State vs. Ahashan PS : Kotwali Page no. 1/21 BRIEF REASONS FOR DECISION:
1. The case of the prosecution is that on 01.12.2021 at about 09:50 pm, at Shantiban Red Light, Delhi, within the jurisdiction of P.S. Kotwali, accused was found in possession of a buttondar knife without any license or permit in contravention of DAD Notification of GNCT of Delhi and committed an offence punishable u/s 25 Arms Act, 1959. The buttondar knife was seized and taken into possession by the police.
2. After investigation, a charge sheet was filed against the accused on 30.01.2022. Cognizance of offence as mentioned in the chargesheet was taken by Ld. Predecessor of this court. Copy of charge sheet and other documents were supplied to the accused under section 207 The Code of Criminal Procedure, 1973 (hereinafter called as Cr.P.C) and thereafter a charge under section 25 Arms Act was framed against him on 06.08.2022 to which he pleaded not guilty and claimed trial.
3. The prosecution examined three (03) witnesses to substantiate allegations against the accused.
4. PW-1 Ct. Gaurav has deposed in his examination-in-chief that on 01.12.2021, he alongwith Ct. Daya Ram (PS Kotwali) was on patrolling duty from Hanuman Mandir to Geeta Colony Flyover to Shantivan Chowk, Delhi on their motorcycle bearing number DL-15AF-1380. On FIR No. 1103/2021 State vs. Ahashan PS : Kotwali Page no. 2/21 that day, at about 09:50 p.m during patrolling, when they reached near Chowk Shantivan red Light, they saw one person who was driving the Splendor Motorcycle without helmet and whose back number plate was broken and numbers on the front number plate was also missing. On suspicion, they asked the motorcycle driver to stop the motorcycle but he turned his motorcycle in the wrong direction towards Geeta Colony, Flyover and tried to flee away from the spot. He deposed that they chased the accused and apprehended alongwith his motorcycle at some distance about 200 to 250 meters. On enquiry, his name was revealed as Ahashan S/o Md. Jaan. Thereafter, he carried out a cursory search of the accused and one buttondar knife was recovered from his right pocket/dub and parked his motorcycle bearing number UP-14-CQ-8930 near the corner of the road and locked the same. They took the accused along with them and went to PS Kotwali and handed over the custody of the accused and the buttondar knife to the IO ASI Sanjay Kumar and narrated the whole incident to him. He further deposed that IO/ASI Sanjay Kumar prepared the sketch memo which is Ex.PW-1/A. The total length of the knife was 23.8 cm and the length of butt was 13.1 cm and the width of blade was 2.6 cm having a button on the handle of the knife and the length of the blade was 10.7 cm. IO put the knife in the white pullanda and sealed it with the seal SK and IO prepared the seizure memo of buttondar which is Ex.PW-1/B and recorded his statement which is Ex.PW-1/C. IO prepared Tehrir and got the FIR registered. IO alongwith the accused namely Ahashan and both of them went to the spot i.e. Geeta Colony flyover. IO seized the motorcycle FIR No. 1103/2021 State vs. Ahashan PS : Kotwali Page no. 3/21 splendor pro silver black color vide seizure memo is Ex.PW-1/D. IO prepared the site plan at his instance. They all came back at the PS alongwith the seized motorcycle. IO arrested the accused vide arrest memo which is Ex.PW-1/E and carried out his personal search vide memo is Ex.PW1/F. IO recorded the disclosure statement of accused vide memo is now Ex. PW-1/G. He deposed that the accused was medically examined and IO deposited the case property at the Malkhana. IO recorded his supplementary statement U/s 161 Cr.PC and he was discharged. MHC(M) has produced the case property, in a white pullanda having a particulars of the present case on it and duly sealed with the seal of SK. The seal was intact and with the permission of the court the seal was broken and opened the pullanda. On seeing the case property i.e. the buttondar knife, the witness has correctly identified the case property which is Ex.P-1.
5. During cross-examination of the witness by Ld. Counsel for the accused, he admitted the suggestion that the incident spot is a busy road and the vehicles were passing. He admitted the suggestion that IO did not give written notice to join the investigation to any public person in his presence. IO did not record the name and addresses of the public persons. He admitted the suggestion that the CCTV cameras were not installed on the spot. He denied that the IO did not make any efforts to get the CCTV footage. He admitted the suggestion that he did not offer his personal search before searching the accused person. He denied that the design of the knife is not the same as drawn on the sketch memo. He FIR No. 1103/2021 State vs. Ahashan PS : Kotwali Page no. 4/21 denied that no property was recovered from the accused or that the property was falsely implanted upon the accused. He denied that all the documents were prepared while sitting at the PS. He also denied that he was deposing falsely.
6. PW-2 HC Daya Ram has deposed in his examination-in-chief that on 01.12.2021, he alongwith Ct. Gaurav (PS Timarpur) was on patrolling duty from Hanuman Mandir to Geeta Colony Flyover to Shantivan Chowk, Delhi on their motorcycle bearing number DL-15AF-1380. On that day, at about 09:50 p.m during patrolling when they reached near Chowk Shantivan red Light, they saw one person who was driving the Splendor Motorcycle without helmet and whose back number plate was broken and numbers on the front number plate was also missing. On suspicion, they asked the motorcycle driver to stop the motorcycle but he turned his motorcycle in the wrong direction towards Geeta Colony, Flyover and tried to flee away from the spot. They chased the accused and apprehended alongwith his motorcycle at some distance about 200 to 250 meters. On enquiry his name was revealed as Ahashan S/o Md. Jaan. Thereafter that, Ct. Gaurav carried out a cursory search of the accused and one buttondar knife was recovered from his right pocket/dub and parked his motorcycle bearing number UP-14-CQ-8930 near the corner of the road and locked the same. He deposed that he took the accused and went to PS Kotwali and handed over the custody of the accused and the buttondar knife to the IO ASI Sanjay Kumar and narrated the whole incident to him. IO/ASI Sanjay Kumar prepared the FIR No. 1103/2021 State vs. Ahashan PS : Kotwali Page no. 5/21 sketch memo which is Ex.PW-1/A. The total length of the knife was 23.8 cm and the length of butt was 13.1 cm and the width of blade was 2.6 cm having a button on the handle of the knife and the length of the blade was 10.7 cm. IO put the knife in the white pullanda and sealed it with the seal SK and IO prepared the seizure memo of buttondar which is Ex.PW-1/B. IO recorded the statement of Ct. Gaurav which is Ex.PW-1/C in his presence, prepared Tehrir and got the FIR registered. IO alongwith the accused namely Ahashan and both of them went to the spot i.e. Geeta Colony flyover. IO seized the motorcycle splendor pro silver black color vide seizure memo is Ex.PW-1/D. IO prepared the site plan at the instance of Ct. Gaurav. They all came back at the PS alongwith the seized motorcycle. IO arrested the accused vide arrest memo which is Ex.PW-1/E and carried out his personal search vide memo is Ex.PW1/F. IO recorded the disclosure statement of accused vide memo is Ex. PW-1/G. Accused was medically examined and IO deposited the case property at the Malkhana. IO recorded his statement u/s 161 Cr.P.C and he was discharged. MHC(M) has produced the case property, in a white pullanda having a particulars of the present case on it and duly sealed with the seal of SK. The seal was intact and with the permission of the court the seal was broken and opened the pullanda. On seeing the case property i.e. the buttondar knife, the witness has correctly identified the case property which is Ex.P-1.
7. During cross-examination of the witness by Ld. Counsel for the accused, PW-2 admitted the suggestion that the incident spot is a busy FIR No. 1103/2021 State vs. Ahashan PS : Kotwali Page no. 6/21 road and the vehicles were passing. He admitted the suggestion that IO did not give written notice to join the investigation to any public person in his presence. IO did not record the name and addresses of the public persons. He admitted the suggestion that the CCTV cameras were not installed on the spot. He denied the suggestion that the IO did not make any efforts to get the CCTV footage. He admitted the suggestion that he did not offer his personal search before searching the accused person. He denied that the design of the knife is not the same as drawn on the sketch memo. He denied that no property was recovered from the accused or that the property was falsely implanted upon the accused. He denied that all the documents were prepared while sitting at the PS. He has denied that he was deposing falsely.
8. PW-3 ASI Sanjay Kumar has deposed in his examination-in-chief that on the intervening night of 01/02.12.2021, he was on emergency night duty at PS Kotwali. On that day, Ct. Gaurav along with Ct. Daya Ram along with the accused came to the PS and narrated the whole incident. They handed over the custody of the accused and the buttondar knife to him. Thereafter, he prepared the sketch memo by putting the knife on white paper which is Ex.PW-1/A. The total length of the knife was 23.8 cm and the length of butt was 13.1 cm and the width of blade was 2.6 cm having a button on the handle of the knife and the length of the blade was 10.7 cm. Thereafter, he put the knife in the white pullanda and sealed it with the seal SK and prepared the seizure memo of buttondar knife which is Ex.PW-1/B. He recorded the statement of Ct. Gaurav which is Ex.PW-1/C, prepared tehrir /rukka and got the FIR FIR No. 1103/2021 State vs. Ahashan PS : Kotwali Page no. 7/21 registered. He along with the accused namely Ahashan and both the constables went to the spot i.e., Geeta Colony flyover. He requested public persons to join the investigation but all of them refused and left the spot without disclosing their name and addresses. Due to paucity of time, no notice was served upon them. He seized the motorcycle splendor pro silver black color on which the number was not visible vide seizure memo which is Ex.PW-1/D. He prepared the site plan at the instance of Ct. Gaurav which is Ex.PW3/B. They all came back at the PS alongwith the seized motorcycle. He arrested the accused vide arrest memo which is Ex.PW-1/E and carried out his personal search vide memo which is Ex.PW1/F. He recorded the disclosure statement of accused vide memo which is Ex. PW-1/G. Accused was taken to the hospital and was medically examined and was later put behind the bars in the lock up of the PS and he deposited the case property in the malkhana. He recorded the statement of both the Ct. Gaurav and Ct. Daya Ram u/s 161 Cr.P.C and they were discharged. Then on the next date, he along with co-staff and the accused went in search of the co- accused that is the source / supplier of case property from which the accused disclosed to purchase the same but the co-accused could not be traced. He enquired about the seized motorcycle. On enquiry, it was found that the owner of the seized motorcycle was Neeraj Kumar and Neeraj Kumar disclosed that the same was stolen on 29.11.2021. On completion of investigation, he filed the charge-sheet before the concerned court.
9. During cross-examination of the witness by Ld. Counsel for the FIR No. 1103/2021 State vs. Ahashan PS : Kotwali Page no. 8/21 accused, he admitted the suggestion that the spot of incident was a public place but it was night time and only traffic was passing through. No written notice was served upon any public person to join the investigation as it was night time. No photograph was taken of the accused along with the case property. No chance prints were obtained from the knife. No CCTV camera was installed at the spot. He admitted the suggestion that he had produced the accused before the concerned MM without case property. Voluntarily, he deposed that he deposited the case property in the malkhana. He denied that he was deposing falsely.
10.Vide statements of the accused recorded U/s 294 Cr.P.C, the accused admitted the factum of FIR number, Certificate under Section 65-B of Indian Evidence Act, DAD notification & GD no. 0045A dated 12.12.2021 which are Ex.A-1, Ex. A-2, Ex. A-3 & Ex.A-4 respectively without admitting the contents of the same.
11.The prosecution evidence was closed on 21.12.2023. Statement of the accused u/s 313 read with section 281 Cr.P.C was recorded in which he stated that he was innocent and had been falsely implicated in the case. He further stated that no knife was recovered from his possession and recovery has been planted. He stated that he has not committed any offence. He also submitted that he did not want to lead defence evidence. Final arguments in the matter were heard.
FIR No. 1103/2021State vs. Ahashan PS : Kotwali Page no. 9/21 APPRECIATION OF EVIDENCE:
12.At the time of final arguments, Ld. APP for the State has argued that prosecution has proved its case beyond reasonable doubts and all the ingredients of the relevant section are complete. Per contra, it is vehemently argued by the Ld. Counsel for the accused that all the prosecution witnesses are police witnesses and their testimonies are not corroborated with any public witness. He submitted that the accused has been planted in the present matter. He prayed that the accused be acquitted.
13.I have heard the arguments addressed by the Ld. APP and the Ld. Counsel for the accused and perused the documents on record carefully. I have heard the arguments addressed by the Ld. APP for state and the Ld. Counsel for the accused and carefully perused the documents on record. Before moving on for appreciation of evidence for deciding the present case, the applicable penal provision is reproduced in verbatim as follows:
"25. Punishment for certain offences:-
(1B) Whoever-...
(b) acquires, has in his possession or carries in any place specified by notification under section 4 any arms of such class or description as has been specified in that notification in contravention of that section; or...shall be punishable with imprisonment for a term which shall not be less than 25 [one year] but which may extend to three years and shall also be liable to fine."FIR No. 1103/2021
State vs. Ahashan PS : Kotwali Page no. 10/21
14.It is a cardinal principle of criminal jurisprudence that the prosecution is supposed to prove its case beyond reasonable doubts by leading reliable, cogent and convincing evidence to successfully bring home the guilt of the accused. Further, it cannot derive any benefits whatsoever from the weakness, if any, in the defence of the accused. The accused is entitled to the benefit of every reasonable doubt in the prosecution story and any such reasonable doubt in the prosecution case entitles the accused to acquittal.
15.Coming to the matter in hand, to sustain conviction u/s 25 of Arms Act, the prosecution is required to prove the following ingredients:
(1) The accused was found in the possession of the button actuated knife.
(2) The accused was carrying the same without any licence/permit or in contravention of notification of Delhi Administration.
16.In order to prove the guilt of the accused, the prosecution is required to prove the possession of a buttondar knife with the accused at the very spot, from where the accused was apprehended. As per the case of the prosecution, the accused was apprehended at around 09:50 pm at Shanti Van red light Delhi, which is a public place. PW-1 and PW-2 admitted during their cross-examination that the spot was a busy road and vehicles were passing through. Further, all the prosecution witnesses unanimously deposed their examination that 4-5 public persons were present at the spot who were allegedly requested to join the investigation. The recovery is alleged to have been affected from a public place at around 07;30 P.M. Therefore, in all probability public FIR No. 1103/2021 State vs. Ahashan PS : Kotwali Page no. 11/21 persons must have been present around the place of recovery. Also, all the prosecution witnesses deposed that public persons were requested to join the investigation. It turns out that there was no lack of time and opportunity with the IO 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 join the investigation is of no avail. The names 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.
17.Here, it is pertinent to refer to the judgment of the Hon'ble Supreme Court in State Of Punjab V. Balbir Singh AIR 1994 SC 1872, held that :
"It therefore emerges that non-compliance 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 well-settled 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 the 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]"
18.At this stage, it is crucial here to refer to section 100 of Cr.P.C. which is reproduced here:
FIR No. 1103/2021State vs. Ahashan PS : Kotwali Page no. 12/21
100. Persons in charge of closed place to allow search.
(4) Before making a search under this Chapter, the officer or other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do.
(5) The search shall be made in their presence, and a list of all things seized in the course of such search and of the places in which they are respectively found shall be prepared by such officer or other person and signed by such witnesses; but no person witnessing a search under this section shall be required to attend the Court as a witness of the search unless specially summoned by it. (8) Any person who, without reasonable cause, refuses or neglects to attend and witness a search under this section, when called upon to do so by an order in writing delivered or tendered to him, shall be deemed to have committed an offence under section 187 of the Indian Penal Code (45 of 1860 ).
19.Section 100(4) of the CrPC casts a statutory duty on an official conducting search to join two respectable persons of the society. Further, it is clearly stated that if any such person refuses or neglects to be part of the search without citing any reasonable cause, it is the duty of an official to give him a notice in this regard.
20.In the present case, on perusal of the documentary records relied on by the prosecution, it is clear that neither the tehrir/rukka which is PW1/C, nor FIR which is Ex.A-1 mentioned any public witness or independent witness. The fact of not noting down the name or address of any witness in the diary, or giving notice to public persons who refused to be part of the investigation, casts doubt on the story of the prosecution that whether any serious efforts were made to join any public witness in the FIR No. 1103/2021 State vs. Ahashan PS : Kotwali Page no. 13/21 proceedings. All the four prosecution witnesses examined in the present matter are police witnesses. The testimony of official witnesses doesn't find any corroboration from any independent source. In the opinion of this court, non-joining of independent/public witnesses is fatal to the prosecution case and creates serious doubts regarding the genuineness of investigation proceedings done at the spot.
21.In Roop Chand v. State of Haryana 1990(1) CLR 69, it was observed that such explanations that the public persons refused to join the proceedings are unreliable. Further, in Passi @ Prakash V. State of Haryana 2001(1) RCR 435, that whenever any recovery in connection with the place of the commission of the offence is made, public persons must be made witnesses. Also, in Pawan Kumar v/s Delhi Administration 1989 Cri. L.J. 127, it was observed that in case failure to join independent witness benefit of doubt must be given to the accused.
22.In the present case, all the prosecution witnesses examined in the present matter are police witnesses. The testimony of official witnesses doesn't find any corroboration from any independent source. In the opinion of this court, non-joining of independent/public witnesses is fatal to the prosecution case and creates serious doubts regarding the genuineness of investigation proceedings done at the spot.
23.This Court is, however, conscious that the prosecution case cannot be FIR No. 1103/2021 State vs. Ahashan PS : Kotwali Page no. 14/21 thrown out or doubted on the sole ground of non-joining of public witnesses as public witnesses 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 but there are other circumstances too, as discussed hereinafter, which raise suspicion over the prosecution version.
24.Further, as per the prosecution version, a button actuated knife had been recovered from the possession of the accused. To substantiate this allegation, the prosecution produced a rukka which mentioned that the case property was first sketched, measured, seized and sealed only thereafter, the rukka was sent for registration of FIR. However, the seizure memo and sketch of the case property bear an FIR number. As per rukka and FIR, at the time of the seizure the FIR number was not available and therefore, the FIR number could not have figured on the seizure memo or the sketch. The existence of the FIR number on these documents suggests that the seizure memo, and sketch memo were all prepared after the registration of the FIR. In view of the above discussion, it is not clear whether FIR was registered before all paperwork related to the case property was done or after. This erodes the credibility of the prosecution witnesses. The possibility of tampering cannot be ruled out. This further pointed out the quality of investigation done by police in the present matter.
25.In paragraph 4 of Mohd. Hashim v. State, 1999 VI AD (Delhi) 569, the Hon'ble High Court of Delhi observed:
FIR No. 1103/2021State vs. Ahashan PS : Kotwali Page no. 15/21 ".. 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 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."
26.Another dent in the prosecution case is related to the seal. It is crucial to note here that there are three major discrepancies in this regard:
● No seal-handling memo was prepared.
● Seal not handed over to independent witness after use.
● Deposition of seal in Malkhana or any other place has not been proved.
27.This Court is conscious of precedent laid down by Hon'ble Delhi High Court in Safiullah v. State 1993 (1) RCR (CRIMINAL) 622, that:
"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."
28.Coming to the factual matrix of the present case, the recovery witnesses namely PW-1 and PW-2 have deposed in their examination-in-chief that PW-3 has seized and sealed the case property at the spot in a white pullanda with the seal of SK. However, there is no deposition qua FIR No. 1103/2021 State vs. Ahashan PS : Kotwali Page no. 16/21 deposition of seal or handing over of seal to any other person after its use. It is open to interpretation as to in whose possession the seal was after its use by PW-3, it may be possible that it remained with the IO only. The seal remained with the material prosecution witness, who was already interested in the case of the prosecution and not handed over to an independent witness nor deposited in malkhana. No explanation has come on record as to why the handing over memo was not made or the seal was not handed over to an independent witness or deposited in malkhana. Further, the examination-in-chief of PW-3 is silent about handing over the seal after its use to him. In such a factual backdrop, the seal remained with the police officials of the same police station and therefore, the possibility of tampering with the case property cannot be ruled out. Moreover, it is not even the case of the prosecution that the seal was not within the reach of the said witness and thus, there was no scope of tampering of case property.
29.In this regard, judgment in a case titled as Ramji Singh Vs. State of Haryana 2007 (3) RCR (CRIMINAL) 452, may be adverted to, wherein it was observed in paragraph 7 that:
"...The very purpose of giving a 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."FIR No. 1103/2021
State vs. Ahashan PS : Kotwali Page no. 17/21
30.Another lacuna in the case of prosecution is that the arrival and departure entries of the recovery witness are not proved on record. It is an established statutory obligation upon the Police officials to mark their departure and arrival in the register kept in the police station for the 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.
Note: The term Police Station will include all places such as Police Lines and Police Posts where Register No. II is maintained."
31.Since public persons were not joined in the investigation, the departure entry of the complainant i.e. PW-1 and PW-2 when they apprehended the accused with case property, became a vital piece of evidence. As per the version of PW-1, on 01.12.2021, he was on patrolling duty along with HC Daya Ram and they both apprehended the accused with a buttondar knife. However, no such daily diary entry regarding departure of the said witness is present on record and proved. Hence, the relevant entries regarding the arrival and departure of the police officials who FIR No. 1103/2021 State vs. Ahashan PS : Kotwali Page no. 18/21 were the material prosecution witnesses have not been proved on record. In Rattan Lal Vs. State 1987 (2) Crimes 29, the Hon'ble Delhi High Court 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 the 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."
32.Hence, the presence of recovery witnesses who were examined by the prosecution i.e. PW-1 and PW-2 at the spot are not proved. If they had departed from PS for patrolling the entry to this effect must exist in the Roznamcha but that has not been proved, raising an adverse presumption against the prosecution U/s 114 (g) of the Evidence Act that if the said Roznamancha had been produced it would have not shown their departure as all.
33.With regard to the personal search of the accused before the alleged recovery of the buttondar knife from the possession of the accused, it was stated by the PW-1 Ct. Gaurav that he made a cursory search of the accused. During the examination-in-chief of the above witness, he has not mentioned giving the opportunity to the accused to search himself before and then did the personal search of the accused so as to eliminate the chance of planting illegal arms. This fact was not mentioned in either tehrir which further erodes the testimony of the PW-3 in this FIR No. 1103/2021 State vs. Ahashan PS : Kotwali Page no. 19/21 regard. In the case of Orissa High Court reported as Rabindernath Prusty v/s State of Orissa, it was held that "One 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." In the present case, no independent witness deposed about the search being done by the accused before his personal search whereby the buttondar knife was recovered from him. All these circumstances raise serious doubt regarding the fairness and credibility of investigation proceedings conducted by the police at the alleged date, time and place.
34.CONCLUSION:
35.It is trite in criminal jurisprudence that the prosecution is under an obligation to prove its case against the accused beyond reasonable doubt. The standard of proof to be adopted in criminal cases is not merely of preponderance of probabilities but proof beyond reasonable doubt on the basis of cogent, convincing and reliable evidence. It is also well settled that in case of doubt, the benefit must necessarily be allowed to the accused.
36.On careful perusal and analysis of the entire evidence, I find that there is no corroborative, consistent and sufficient evidence to make up the edifice of the prosecution case which has been produced by the prosecution. Given the aforementioned facts and circumstances, it has to be concluded that the prosecution has failed to prove its case against the accused beyond reasonable doubt. Therefore, the Accused is given FIR No. 1103/2021 State vs. Ahashan PS : Kotwali Page no. 20/21 the benefit of doubt. Accordingly, the accused Ahashan S/o Mohd. Jaan, R/o Naiya Wala Chowk Rashid Ali Gate, Jamal Pur, Loni Ghaziabad, U.P. is hereby acquitted for an offence punishable under Section 25 of The Arms Act, 1959. Case property be confiscated to the State and be destroyed after expiry of the period of appeal.
37.File be consigned to Record Room subject to compliance of section 437-A Cr.PC.
Announced in the open court today i.e. 29.02.2024 Digitally signed by MEENA MEENA CHAUHAN CHAUHAN Date: 2024.02.27 17:04:05 +0530 (MEENA CHAUHAN) Metropolitan Magistrate-08 Central District, Tis Hazari Courts/Delhi [This judgment contains twenty one pages and each page bears the initials of the undersigned and the last page bears the complete sign of undersigned.] FIR No. 1103/2021 State vs. Ahashan PS : Kotwali Page no. 21/21