Delhi District Court
State vs . Sonu on 6 September, 2022
IN THE COURT OF MS MANSI MALIK,
METROPOLITAN MAGISTRATE03, NORTH WEST,
ROHINI COURTS, DELHI
Cr. Case 1085/2021
State Vs. Sonu
FIR No. 125/2020
PS Raj Park
U/s. 25 Arms Act
State
v.
Sonu @ Nash
S/o Sh. Bijender
R/o H. No. D 29, Punjabi Basti, Nangloi, Delhi
Date of institution of case : 09.05.2020
Date of reserving the judgment : 29.08.2022
Date of pronouncement of judgment : 06.09.2022
JUDGMENT
1. S. No. of the Case: 1085/2021
2. Date of Commission of Offence: 07.03.2020
3. Date of institution of the case: 09.05.2020
4. Name of the complainant: Rajesh Kumar
5. Name of the accused: 1. Sonu @ Nash
2. Nadeem
6. Offence complained or proved: U/s 25 Arms Act
7. Plea of Accused: "Not Guilty"
8. Final Order: Acquitted
State Vs. Sonu @ Nash FIR No. 125/2020 PS Raj Park Page no.1/15 Digitally signed by MANSI MANSI MALIK MALIK Date:
2022.09.06 17:10:52 +0530
9. Date of Final Order: 06.09.2022 BRIEF FACTS AND REASONS FOR DECISION
1. Succintly, the case of prosecution is that the accused Sonu @ Nash has been sent to face trial with the allegations that on 07.03.2020 at about 04:30 PM near HGI Labour Colony, Chhat puja Park, Near Bhalla Factory, Sultanpuri, Delhi, within the jurisdiction of PS Raj Park, the accused persons were found in possession of one buttondar knife each, without any license or permit. Investigation was carried out. Upon completion of the in vestigation the instant chargesheet for the offence punishable under Section 25 Arms Act was filed by the investigating officer against the accused persons. Accused persons were then sum moned by the Ld. PO at the time.
2. The copy of charge sheet and relevant documents were sup plied to the accused persons in compliance of Section 207 of Code of Criminal Procedure, 1973 (hereinafter referred to as Cr.PC).
3. Prima facie case was made out and charge for offence punishable under Section 25 Arms Act was framed on 06.04.2022 to which the accused persons pleaded not guilty and claimed trial. Thereafter, the matter was fixed for recording of prosecution evidence.
State Vs. Sonu @ Nash FIR No. 125/2020 PS Raj Park Page no.2/15 Digitally signed by MANSI MANSI MALIK Date:
MALIK 2022.09.06 17:10:59 +0530
4. In order to substantiate the allegations, the prosecution examined three witnesses. At the onset it would be appropriate to have glance at the gist of deposition made by the witnesses:
5. PW1 ASI Rajesh deposed that on 07.03.2020 he was posted as HC at PS Raj Park. On that day, he along with Ct. Ombir , Ct.
Sony and Ct. Kapil were on patrolling duty in HGI Labour Colony Chhat Pooja Park near balla factory, Sultanpuri, Delhi and saw that two boys were standing at chhat pooja park. Upon seeing them that boys started to walk swiftly towards railway line. They called them to stop. However, they started to flee away from there. He along with staff apprehended both the boys, one boy was apprehended by Ct. Ombir and another was appre hended by Ct. Kapil. Thereafter, both the boys were searched and were found buttondar knife from the possession of them. He gave information to DO PS Raj Park from there SI Kulbir came. He handed over both the accused and buttondar knife to him. IO pre pared rough sketch of buttondar knives which were recovered from the accused persons vide rough sketch Ex. PW1/A and Ex. PW1/B. IO also seized both the knives vide seizure memo Ex. PW1/C. IO recorded his statement Ex. PW1/D on the basis of his statement IO prepared rukka and handed over to Ct. Sonu for registration of FIR. Ct Sonu went to PS for registration of FIR and came back to the spot along with copy of FIR an original rukka and handed over the same to the IO. Thereafter, IO again interogated the accused persons. Thereafter, IO arrested both the accused persons and also got conducted their personal search State Vs. Sonu @ Nash FIR No. 125/2020 PS Raj Park Page no.3/15 Digitally signed by MANSI MANSI MALIK MALIK Date:
2022.09.06 17:11:04 +0530 vide memo Ex. PW1/E, EX. PW1/F, PW1/G and PW1/H re spectively. IO also recorded disclosure statement of accused per sons vide memo PW1/I and PW1/J. Thereafter, we came back to the PS and case property were deposited in Malkhana PS Raj Park. IO also got conducted medical examination of the accused persons along with staff. Both the accused persons present in the Court were correctly identified by the witness. Witness also cor rectly identified the case property.
6. PW2 Ct. Ombir Hooda deposed that on 07.03.2020 he was posted as constable at PS Raj Park. On that day, he along with HC Rajesh, Ct. Sonu and Ct. Kapil were on patrolling duty in area HGI Labour colony, Chhat pooja park near balla factory, Sultanpuri, Delhi and saw that two boys were standing at chhat pooja park. Upon seeing us that boys started to walk swiftly to wards railway line. They called them to stop. However, they started to flee away from there. They along with staff appre hended both the boys, one boy was apprehended by him namely Sonu @ Nash and another was apprehended by Ct. Kapil. There after, both the boys were searched and buttondar knives were found from their possession. HC Rajesh gave information to DO PS Raj Park from there SI Kulbir came. HC Rajesh handed over both the accused and buttondar knives to him. IO prepared rough sketch Ex. PW1/A. IO also seized both the knives vide seizure memo Ex. PW1/C. IO prepared rukka and handed over to Ct.
Sonu for registration of FIR. Ct. Sonu went to PS for registration of FIR and came back to the spot along with copy of FIR and State Vs. Sonu @ Nash FIR No. 125/2020 PS Raj Park Page no.4/15 Digitally signed by MANSI MANSI MALIK MALIK Date:
2022.09.06 17:11:10 +0530 original rukka and handed over the same to the IO. Thereafter, IO again interrogated the accused persons. Thereafter, IO arrested both the accused persons and also got conducted their personal search vide memo Ex. PW1/F, Ex. PW1/H respectively. IO also recorded disclosure statement of accused persons vide memo Ex. PW1/I and Ex. PW1/J. Thereafter, we came back to the PS and case property were deposited in Malkhana PS Raj Park. IO also got conducted medical examination of the accused persons along with staff. Both the accused persons present in the court were correctly identified by the witness. Witness also correctly identified the case property.
7. PW3, SI Kulbir deposed that on 07.03.2020, he was posted as SI at PS Raj Park and he was on emergency duty. He received DD No. 39B same is Ex. PW3/A regarding apprehension of two boys with the buttondar knife at Chhat Pooja Park, near bhalla factory, Sultanpuri, Delhi. Accordingly, he reached at abovesaid place where he met Ct. Kapil, Ct. Sonu, HC Rajesh and Ct. Ombir and they produced accused Sonu @ Nash and accused Nadim with the 2 buttondar Knives. Thereafter, he enquired from the public persons but none agreed. Thereafter, he prepared the sketch of both the recovered knives by putting them on the blank papers which were Ex. PW1/A and Ex. PW1/B. Thereafter, he seized both the knives vide seizure memo Ex. PW1/C. At first, he kept the case property into the transparent box and then he sealed the case property with the seal of 'KS'. Seal after use was handed over to Ct. Sonu. Thereafter, he recorded the statement of State Vs. Sonu @ Nash FIR No. 125/2020 PS Raj Park Page no.5/15 Digitally signed by MANSI MANSI MALIK MALIK Date:
2022.09.06 17:11:16 +0530 HC Rajesh which is Ex. PW1/D. Thereafter, he prepared the rukka which is Ex. PW3/B. Thereafter, he handed over the same to Ct. Sonu for the registration of the FIR. Accordingly, Ct . Sonu went to the PS to get the FIR registered and came back to the spot after some time with the copy of the FIR and original Rukka and same was handed over to him. He also prepared the site plan which is Ex. PW3/C. Both the accused persons were arrested and personally searched by him vide arrest and personal search memo which are Ex. PW1/E, Ex. PW1/F, Ex. PW1/G and Ex. PW1/H respectively. He also filled the age memo of accused Nadim which is Ex. PW3/D. Thereafter, both the accused persons were brought to the PS. He also recorded the disclosure statement of both the accused persons which are Ex. PW1/I and Ex. PW1/J. During the disclosure statement, both the accused persons reveal that they were already involved in a murder case in the PS Nangloi. Thereafter, he brought documents of age proof of accused Nadim from the PS Nangloi which is seized by him and Ex. PW3/E1 to E4 (Colly). After medical examination, both the accused persons were put behind the bars. Case property was deposited in the malkhana. He recorded statement u/s 161 Cr.P.C of the witnesses, accused persons were present in the court on that day and correctly identified by the witness. He could also identify the case property if shown to him. All the witnesses were duly crossexamined by Ld. LAC for both the accused persons.
State Vs. Sonu @ Nash FIR No. 125/2020 PS Raj Park Page no.6/15 Digitally signed by MANSI MANSI MALIK MALIK Date:
2022.09.06 17:11:22 +0530
8. Statement of accused persons was recorded u/s 313 Cr.PC., wherein all the incriminating evidence was put to the accused, to which he stated that he has been falsely implicated in this case. Further, the accused person did not opt to lead defence evidence and the matter was listed for final arguments.
9. The Court has carefully perused the case record and has heard arguments advanced by Ld. APP for the state as well as by Ld. Defence counsel.
10. Short point for determination before the court is as under "Whether on 07.03.2020 at about 04:30 PM near HGI Labour Colony, Chhatpuja Park, Near Bhalla Factory, Sultanpuri, Delhi, within the jurisdiction of PS Raj Park, the accused persons Sonu and Nadim were found in possession of one buttondar knife each, without any licence or permit?"
11. It is argued by Ld. APP for the state that from the ocular and documentary evidence on record, prosecution has proved beyond reasonable doubt that accused persons were found in possession of buttondar knife without permit and submitted that accused persons be convicted of the offence charged.
12. Per contra, it is argued by the Ld. LAC for the accused persons that accused persons are completely innocent and recovery of case property has been falsely implanted upon them. It is further submitted by Ld. Counsel that nonjoinder of public State Vs. Sonu @ Nash FIR No. 125/2020 PS Raj Park Page no.7/15 Digitally signed by MANSI MANSI MALIK MALIK Date:
2022.09.06 17:11:28 +0530 witness despite availability cast shadow of doubt on prosecution story. It is further argued by Ld. LAC for the accused persons that tampering with the contents of the sealed parcel cannot be ruled out as seal was not handed to the independent witness. At the end, it is submitted that the prosecution has miserably failed to prove its case beyond reasonable doubt and therefore, the accused persons are liable to be acquitted of the alleged offence.
13. I have heard the rival submissions and have also carefully gone through the entire material available on record and evidence led on behalf of the prosecution. My findings on the point for determination and brief reasons for the same are now being discussed in following paragraphs.
14. In present case, the prosecution was duty bound to prove the possession of the buttondar knife with the accused persons. Same is sought to be proved by the recovery memo and testimony of the witnesses. But the manner of conducting inquiry, seizure and search etc. on the spot at the time of arrest of the accused and alleged recovery of buttondar knife in this case, makes the prosecution version highly doubtful. Incident is stated to have happened at about 04:30 PM and it is evident from the testimony of PW1 that the accused persons were apprehended alongwith the alleged unauthorised buttondar knife at a public place but still no public independent person was cited as a witness in this case. Infact, the testimony of PW1 and PW2 are also contradictory to each other as PW1 states that some public persons were there State Vs. Sonu @ Nash FIR No. 125/2020 PS Raj Park Page no.8/15 Digitally signed by MANSI MANSI MALIK MALIK Date:
2022.09.06 17:11:33 +0530 when the IO reached at the spot but PW2 states that there were no public persons at the spot when the IO reached. Hence, their testimonies are also not consistent.
15. As per version of PW3/IO, after apprehension of the accused, public persons were available at the spot. PW3 requested public persons to join the investigation but all the public persons refused to join the same. However, a perusal of the record shows that no written notice was served on the public persons. The said explanation given by PW3 cannot be accepted by the court since, the IO was under obligation to issue notice in writing to the public persons, who refused to join the police investigation particularly in the background when the accused persons have already been apprehended by the police and there was no apprehension that accused persons might escape. Moreover, the IO has not even placed on record the names of the passersby who were asked to join the investigation and neither have any reasons been mentioned by the IO for refusal by the people who were approached to join the investigation. In the facts and circumstances of the case, this court finds that police has not made any sincere effort to join independent public witnesses during investigation. In this regard reliance is being placed on the following judgments: In a case law reported as "Anoop V/s State", 1992 (2) C.C. Cases 314 (HC), Hon'ble High Court of Delhi has observed as under:
"18. It is repeatedly laid down by this Court that in such cases it should be State Vs. Sonu @ Nash FIR No. 125/2020 PS Raj Park Page no.9/15 Digitally signed MANSI by MANSI MALIK MALIK Date: 2022.09.06 17:11:39 +0530 shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evident that no such sincere efforts have been made, particularly when we find that shops were open and one or two shopkeepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the shopkeepers had declined to join the raiding party, the police could have later on taken legal action against such shopkeepers because they could not have escaped the rigours of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC".
In an case law reported as "Roop Chand V/s The State of Haryana", 1999 (1) C.L.R 69, the Hon'ble Punjab & Haryana High Court held as under: "3. I have heard the learned counsel for the parties and gone through the evidence with their help. The recovery of illicit liquor was effected from the possession of the petitioner during noon time and it is in the evidence of the prosecution witnesses that some witnesses from the public were available and they were asked to join the investigation but they refused to do do so on the ground that their joining will result into enmity between them and the petitioner". "4. It is well settled principle of the law that the Investigation Agency should join independent witnesses at the time of State Vs. Sonu @ Nash FIR No. 125/2020 PS Raj Park Page no.10/15 Digitally signed by MANSI MANSI MALIK Date: MALIK 2022.09.06 17:11:45 +0530 recovery of contraband articles, if they are available and their failure to do so in such a situation casts a shadow of doubt on the prosecution case. In the present case also admittedly the independent witnesses were available at the time of recovery but they refused to associate themselves in the investigation. This explanation does not inspire confidence because the police officials who are the only witnesses examined in the case have not given the names and addresses of the persons contacted to join. It is a very common excuse that the witnesses from the public refused to join the investigation.
A police officer conducting investigation of a crime is entitled to ask anybody to join the investigation and on refusal by a person from the public the Investigating Officer can take action against such a person under the law. Had it been a fact that he witnesses from the public had refused to to join the investigation, the Investigating Officer must have proceeded against them under the relevant provisions of law. The failure to do so by the police officer is suggestive of the fact that the explanation for nonjoining the witnesses from the public is an after thought and is not worthy of credence. All these facts taken together make the prosecution case highly doubtful".
In case law reported as "Sadhu Singh V/s State of Punjab", 1997 (3) Crimes 55 the Hon'ble Punjab & Haryana High Court observed as under: State Vs. Sonu @ Nash FIR No. 125/2020 PS Raj Park Page no.11/15 MANSI MALIK Digitally signed by MANSI MALIK Date: 2022.09.06 17:11:51 +0530 "5. In a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubts. It is for the prosecution to travel the entire distance from may have to must have. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused" "6. In the present case, the State examined two witnesses namely, Harbans Singh ASI who appeared as PW1 and Kartar Singh. PW2. Both the witnesses supported the prosecution version in terms of the recovery of opium from the person of the petitioner, but there was no public witness who had joined. It is not necessary in such recoveries that public witnesses must be joined, but attempt must be made to join the public witnesses. There can be cases when public witnesses are reluctant to join or are not available. All the same, the prosecution must show a genuine attempt having been made to join a public witness or that they were not available. A stereotype statement of nonavailability will not be sufficient particularly when at the relevant time, it was not difficult to procure the service of public witness. This reflects adversely on the prosecution version".
16. Considering the aforesaid observations made by the Higher Courts, the omissions/ failure on the part of investigating agency to join independent public witnesses create reasonable doubt in the prosecution story. Making bald averments that public persons were asked to join the investigation but none agreed without State Vs. Sonu @ Nash FIR No. 125/2020 PS Raj Park Page no.12/15 Digitally signed by MANSI MANSI MALIK MALIK Date:
2022.09.06 17:11:56 +0530 giving any written notice to them does not inspire the confidence of the Court.
17. Further, as per evidence on record, the seal after use was not given to any independent public person but was infact given to Ct. Sonu, who was also a material prosecution witness being a witness to the alleged recovery of the illicit knife from the possession of the accused, such material witness of a case is always interested in the success of the case of the prosecution and keeping view this factum chances of fabrication of case property cannot be ruled out. Moreover, no seal handing over memo is also on record. Hence, considering the legal position, the benefit of doubt should be given to the accused, as tampering with case property in such a scenario cannot be ruled out. Reliance is placed on the judgment of Ramji Singh Vs. State of Haryana 2007 (3) R.C.C. (Criminal) 452, wherein it is held that "7. The very purpose of giving 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." Similarly, Hon'ble Delhi High Court in Safiullah v. State, 1993 (1) RCR (Criminal) 622, held that "10. The seals after use were kept by the police officials themselves. Therefore the possibility of tampering with the State Vs. Sonu @ Nash FIR No. 125/2020 PS Raj Park Page no.13/15 Digitally signed by MANSI MANSI MALIK MALIK Date:
2022.09.06 17:12:19 +0530 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."
18. From the aforesaid discussion, it is very clear that the manner in which the inquiry, seizure and search etc. has been conducted on the spot at the time of alleged recovery of weapon, makes the prosecution version highly doubtful. At this stage, it would also be worthwhile to refer to the judgment of Hon'ble Supreme Court in Sarwan Singh vs State of Punjab (AIR 1957 SC 637) regard ing the nature of burden of proof on the prosecution to prove its case. The ratio of this judgment is applied with the same vigour even after passing of more than 50 years. It was held in this case that: "There may also be an element of truth in the prosecution story against the accused. Considered as a whole, the prosecu tion story may be true; but between 'may be true' and 'must be true' there is inevitably a long distance to travel and the whole of this distance must be covered by the prosecution by legal, reli able and unimpeachable evidence before an accused can be con victed." Again in Jagdish Prasad vs State (Govt Of NCT Of Delhi) 2011 (9) LRC 206 (Del), the Hon'ble High of Delhi had observed that "It is well settled that in a criminal case, in order to bring home the guilt of the accused, the prosecution is re quired to establish the guilt beyond a shadow of reasonable doubt. If, on consideration of the prosecution evidence, a reason State Vs. Sonu @ Nash FIR No. 125/2020 PS Raj Park Page no.14/15 Digitally signed by MANSI MANSI MALIK MALIK Date:
2022.09.06 17:12:36 +0530 able doubt remains in respect of culpability of the accused, he is entitled to benefit of doubt.
19. In view of the above discussion, this Court is of considered view that in the present case the prosecution has failed to prove its case against the accused beyond reasonable doubt.
Accordingly, accused Sonu and accused Nadeem are acquitted for the offence punishable u/s 25 Arms Act.
20. Bail bonds u/s 437A of CrPC are to be furnished which would remain valid for a period of six months.
Digitally
signed by
MANSI
MANSI MALIK
MALIK Date:
Announced in open Court (MANSI MALIK)
2022.09.06
17:12:41
+0530
on 6th September, 2022 Metropolitan Magistrate03,
NorthWest, Rohini Courts, Delhi
State Vs. Sonu @ Nash FIR No. 125/2020 PS Raj Park Page no.15/15