Delhi District Court
State vs . on 8 December, 2021
IN THE COURT OF METROPOLITAN MAGISTRATE-07,
SOUTH-WEST, DWARKA COURTS,
NEW DELHI
Presided over by- Sh. Dev Chaudhary, DJS
Cr. Case No. -: 2576/2017
Unique Case ID No. -: DLSW020079022017
FIR No. -: 52/2011
Police Station -: Chhawla
Section(s) -: 25 Arms Act and
174A IPC
In the matter of -
STATE
VS.
RAHUL RATHI
S/o Rajender Singh
R/o H. no. 8/9, Gali no. 6, B Block,
New Roshan Pura, New Delhi.
.... Accused
1. Name of Complainant : SI Naresh Kumar
2. Name of Accused : Rahul Rathi
Offence complained of or
3. : 25 Arms Act and 174A IPC
proved
4. Plea of Accused : Not guilty
Date of commission of
5. : 11.03.2011
offence
6. Date of Filing of case : 19.10.2011
7. Date of Reserving Order : 23.11.2021
8. Date of Pronouncement : 08.12.2021
9. Final Order : Acquitted
Argued by -: Sh. Naween Kumar, Ld. APP for the State.
Sh. Virender Yadav, Ld. counsel for the accused.
Cr. Case No. 2576/2017 State vs. Rahul Rathi Page 1 of 17INDEX -
(The headings are hyper-linked)
HEADING PAGES
1. Factual Matrix 2
2. Investigation and appearance of accused 3
3. Prosecution Evidence 3-7
4. Statement of accused and defence evidence 7-8
5. Arguments 8-9
6. Ingredients of the offence 9-10
7. Testimony of star witnesses 10-11
8. Independent witness 12
9. Informant as IO 13
10. Other deficiencies 14-15
11. Section 174A 15-16
12. Conclusion 17
BRIEF STATEMENT OF REASONS FOR THE DECISION -:
FACTUAL MATRIX -
1. Briefly stated, the case of the prosecution is that on 11.03.2011, SI Naresh was on area patrolling duty along with Ct.
Umesh and HC Ompal. Around 5:30 pm, they spotted a person coming from the side of Paprawat village. As soon as he saw the police, he turned back and started walking quickly. The action of the person being doubtful, he was stopped and on checking, it was found that the said person, accused Rahul Rathi, had in his possession two live cartridges. As such, it is alleged that the accused committed the offence punishable under Section 25 Arms Act, 1959 (hereinafter, "the Arms Act") for which FIR No. 52/2011 was registered at the Chhawla Police Station, New Delhi.
Cr. Case No. 2576/2017 State vs. Rahul Rathi Page 2 of 17INVESTIGATION 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 vide order dated 29.11.2011.
3. On his appearance, a copy of charge-sheet was supplied to him in terms of Section 207 of the Code of Criminal Procedure, 1973 (hereinafter, "CrPC"). On finding a prima facie case against the accused, charge under Sections 25 Arms Act was framed against accused Rahul Rathi. The accused pleaded not guilty and claimed trial. However, during the trial, the accused stopped appearing. Process under Section 82 CrPC was issued against him and he was declared an absconder. On his apprehension, the file was revived and an additional charge under Section 174A IPC was framed against the accused. To this charge as well, the accused pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE -
4. During the trial, prosecution led the following oral and documentary evidence against the accused to prove its case beyond reasonable doubt-:
ORAL EVIDENCE PW-1 : Ct. Umesh Kumar (caught the accused) PW-2 : ASI Om Pal (caught the accused) PW-3 : SI Babu Lal (duty officer) PW-4 : V.R Anand (ballistics expert) PW-5 : ASI Bhojraj {MHC(M)} PW-6 : SI Naresh Kumar (complainant and IO) Cr. Case No. 2576/2017 State vs. Rahul Rathi Page 3 of 17 PW-7 : SI Paramjeet Singh (proves sanction) PW-8 : Ct. Satpal (proves investigation) ASI Dinesh Kumar (arrested absconding PW-9 :
accused) Ct. Deepak (arrested absconding PW-10 :
accused)
DOCUMENTARY EVIDENCE
Ex. PW1/A : Sketch of the cartridges
Ex. PW1/B : Seizure memo of cartridges
Ex. PW1/C : Site Plan
Ex. PW1/D : Arrest memo
Ex. PW1/E : Personal Search memo
Ex. PW1/F : Disclosure Statement
Ex. P1 & P2 : Cartridges
Ex. PW3/A : FIR
Ex. PW3/B : Endorsement on rukka
Ex. PW4/A : Report
Ex. PW5/A : Malkhana register
Ex. PW5/B : Register for RC no. 36/21/11
Ex. PW5/C : Acknowledgement of acceptance
Ex. PW6/A : Rukka
Ex. PW7/A : Permission under Section 39 Arms Act.
Ex. PW9/A : Arrest memo
Ex. PW9/B : Personal search memo
Ex. PW9/C : Kalandra
Ex. PW9/D : DD no. 15
5. Ct. Umesh Kumar (PW1) stated that on 11.03.2011, he along with HC Ompal and SI Naresh were on patrolling duty and were in the process of checking suspicious persons passing through main Paprawat road, near Rao Man Singh School, Najafgarh. At about 05:30 PM, one person was coming from Paprawat village and was going towards Najafgarh. On spotting the police in action, he tried to change direction and flee. However, the said person was Cr. Case No. 2576/2017 State vs. Rahul Rathi Page 4 of 17 apprehended. On a cursory search of the said person, two cartridges were recovered from the right pocket of the jacket, and 8mmkf was printed on the bottom of both the cartridges. The name of the accused was revealed as Rahul Rathi. SI Naresh Kumar prepared a sketch of the cartridge which was recovered from the possession of the accused. Both the cartridges were seized and sealed by SI Naresh Kumar with the seal of NK and the same were handed over to HC Ompal. Seizure memo and site plan was prepared. Thereafter, SI Naresh prepared a tehrir and FIR was registered. The accused was thereafter arrested and was subsequently sent to lockup. Case property was correctly identified by the witness.
5.1. In his cross-examination, Ct. Umesh Kumar (PW1) stated that the accused was standing was at a distance of 30-35 steps from the spot where they were conducting checking. He stated that the spot is a busy road and no public persons joined the investigation as they refused to join the same. He prepared the arrest memo at the spot and remained at the spot till 09:00 PM. He stated that
6. SI Naresh Kumar (PW6) is the complainant and the IO in the present matter. He stated that on the date of incident, he along with HC Ompal and Ct. Umesh Kumar were present at Paprawat Road, near Rao Maan Singh School and they were conducting the search of suspicious persons. At about 05:30 PM, he saw a person coming from Paprawat village to Najafgarh. The person suddenly turned back after seeing them and started moving quickly. On suspicion, they chased the said person and his name was revealed as Rahul Rathi. On cursory search, they found two live cartridges from the right-side pocket of his jacket. Thereafter, he Cr. Case No. 2576/2017 State vs. Rahul Rathi Page 5 of 17 deposed about the investigation done. After completing the investigation, he collected the FSL result and prepared the chargesheet.
6.1 In his cross-examination, SI Naresh Kumar (PW6) admitted that he did not receive any written order for patrolling. He stated that the accused was just 10-12 steps away from the spot of patrolling. The witness further admitted that the place of incident is a busy road and at the time of arrest, no public persons were present there. He stated that he was having a bag containing white colour cloth, seal and other articles with him, however, the said fact has not been mentioned in his statement. He stated that he did not remember whether he has seized the jacket of the accused at the time of arrest. He denied the suggestion the cartridges were planted on the accused and that the accused was not coming towards Paprawat road. He admitted that the statements of the witnesses were recorded in the Police Station only.
7. ASI Dinesh Kumar (PW9) stated that on 12.01.2017, he was posted at Inter-State Cell, Crime Branch, Delhi as ASI. On that day, Ct. Deepak was also with him when he received information from secret informer regarding absconder namely Rahul Rathi being in the area of Dwarka Mor. The witness conveyed the information to senior officers and as per the directions, prepared raiding party. After they reached the spot, six-seven persons were asked to join the investigation but no one agreed to do so. Due to lapse of time no written notice could be given to them. At around 07:20 PM, one person came towards them and after the secret informer identified him, the accused was apprehended. Thereafter, he was interrogated, arrested and a Kalandra under Section 41(1)(c) Cr. Case No. 2576/2017 State vs. Rahul Rathi Page 6 of 17 CrPC was prepared. Information was given to PS Chhawla. 7.1 In the cross-examination, ASI Dinesh Kumar (PW9) admitted that he had no information in writing regarding the absconder prior to the arrest of the accused. He admitted that from the raiding party, only Ct. Deepak was cited as witness in the Kalandra. He denied the suggestion that he had illegally arrested the accused Rahul Rathi.
8. Rest of the prosecution witnesses supported the case of the prosecution and proved the documents mentioned in the Table above.
STATEMENT OF ACCUSED AND DEFENCE EVIDENCE -
9. Thereafter, before the start of defence evidence, in order to allow the accused to personally explain the incriminating circumstances appearing in evidence against him, the statement of the accused was recorded without oath under Section 281 read with Section 313 CrPC. In reply, the accused stated that on the day of the incident, he was returning from a party along with his friend, suddenly near his home, police officials caught him and put him behind bars. Nothing was recovered from his possession and police officials have implicated him in a false case. Thereafter, he stated that he wished to lead evidence in his defence.
10. During the trial, defence led the following oral and documentary evidence-:
ORAL EVIDENCE DW-1 : Rahul Rathi (accused) DOCUMENTARY EVIDENCE
---- : ----Cr. Case No. 2576/2017 State vs. Rahul Rathi Page 7 of 17
11. Rahul Rathi (DW1) is the accused in the present case, who entered in the witness box and deposed that the incident took place in the month of March 2011. He further stated that he along with his friend went to attend the marriage of relative of his friend which was solemnized at Najafgarh, New Delhi. On that day, at about 11:00 PM, his friend dropped him near Reliance Fresh store and thereafter he was going towards his house on foot. The police officials met him and stopped him. Thereafter, he was taken to the police station and again interrogated by the police official in PS. Next day, he was sent to jail. He further stated that he did not know as to why he was sent to jail by the police officials and SI Naresh had contacted his mother in the night and also demanded money. 11.1. In his cross-examination, Rahul Rathi (DW1) stated that he does not know the name of the relative of Santy Gulia whose wedding he had gone to attend. He further stated that he did not remember the name of the marriage hall. He denied the suggestion that he did not go anywhere to attend the marriage party and he is deposing falsely just to save himself. He further stated that he had informed his friend about the FIR after about 02-04 days of being released on bail. He admitted that he has not made any complaint to the senior officers for implicating him in a false case.
ARGUMENTS -
12. I have heard the ld. APP for the State and ld. counsel for the accused at length. I have also given my thoughtful consideration to the material appearing on record.
Cr. Case No. 2576/2017 State vs. Rahul Rathi Page 8 of 1713. It is argued by the ld. APP for the State that all the ingredients of the offence are fulfilled in the present case. He has argued that the eye-witness to the incident have categorically deposed about the recovery from the accused. He contends that the documentary evidence has proved the offence beyond reasonable doubt. Further, he has argued that the mere fact that the accused tried to flee after looking at the police officials points towards the fact that the possession of the ammunition was conscious. As such, it is prayed that the accused be punished for the said offences.
14. Per contra, ld. counsel for the accused has argued that the State has failed to establish its case beyond reasonable doubt. Ld. counsel has argued that the complainant is the IO in the present case. The whole case is false and fabricated and the same is evident from the material inconsistencies and contradictions borne out from the material on record. He contends that it is an admitted fact that all the investigation was done in the Police Station. It is argued that the prosecution has failed to discharge the burden cast upon it. As such, it is prayed that the accused be acquitted for the said offences.
INGREDIENTS OF THE OFFENCE -
15. The accused has been charged for the offence under Section 25 of the Arms Act. Under sub-clause (1-B) of the provision, acquisition, possession or carrying of arms or ammunition in contravention of Section 3 of the Arms Act is an offence. Section 3 stipulates that no person shall acquire or possess any firearm or ammunition unless he has a valid license for such acquisition or possession. The provision also contains certain exceptions, none of which is applicable in the present case. Further, Cr. Case No. 2576/2017 State vs. Rahul Rathi Page 9 of 17 it is settled that possession under the provision ought to be conscious possession. Reliance is placed on Gunwantlal vs. State of Madhya Pradesh (1972) 2 SCC 194 in this regard. The accused has also been charged under Section 174A IPC, which is an offence for non-appearance in pursuance of a proclamation issued under Section 82 CrPC.
16. Needless to mention, in criminal law, the burden of proof on the prosecution is that of beyond reasonable doubt. 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. The evidence in the present case is to be weighed keeping in view the above legal standards.
TESTIMONY OF STAR WITNESSES -
17. In the present matter, there are three star witnesses of the prosecution. PW1 and PW2 were on patrolling duty alongwith PW6. In their examination-in-chief, PW1 and PW2 have deposed similarly with respect to the incident. They have stated that on the date of incident, they were assigned duty to check suspicious characters at Paprawat road, near Rao Man Singh School, Najafgarh. The accused came near them and as soon as he realised that the police were checking passersby, he backtracked and started going in the other direction. His actions alerted the witnesses, who then caught hold of him and found ammunition on him, without any valid license for the same.
18. However, in the opinion of this Court, the testimony of all the star witnesses does not inspire confidence. Even though mere fact that the witnesses are police officials is not sufficient to doubt Cr. Case No. 2576/2017 State vs. Rahul Rathi Page 10 of 17 their testimony, the other factors discussed below throw a doubt on the reliability of the police witnesses. In this regard, it is to be noted at the outset that the prosecution has failed to produce any documentary evidence to prove that the police witnesses were on patrolling duty of the date of incident.
19. In fact, PW2 has stated in his cross examination that they were present on the spot on oral directions of the SHO. The IO PW6 has admitted that he had not received any written direction for patrolling the area. He has not deposed as to who had directed him to go for the said duty. The SHO has not been examined as a witness. Further, the prosecution has not placed on record any arrival/departure entries of the official witnesses to support its case. The departure/arrival entry in the Daily Diary would have been a substantial piece of evidence to corroborate the version of the police officials. It has not been proved on record, for reasons best known to the prosecution. It is pertinent to mention here that the duty to record the departure and arrival is mandatory for the police officials, 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."
Therefore, non-production of DD entries to prove that the witnesses were on patrolling duty on the day of incident, throws a doubt on the presence of the police officials at the place of incident.
Cr. Case No. 2576/2017 State vs. Rahul Rathi Page 11 of 17INDEPENDENT WITNESSES -
20. The next assertion of the ld. counsel for the accused is that no independent witnesses were joined by the police. He has argued that non-joining of public witnesses is fatal to the prosecution's case. On the contrary, ld. APP for the State has argued that the prosecution version cannot be disbelieved merely because all the witnesses are police officials.
21. Although it is true that non-joining of independent witnesses cannot be a sole ground to discard the evidence of police witnesses (Refer: Appabhai vs. State of Gujarat AIR 1988 SC 696), however, evidence in every case is to be weighed in light of the peculiar facts of the case. In the present case, the prosecution's version is that the accused was caught at main Paprawat road at about 5:30 pm. PW1 in his deposition has admitted that the place where they were present is a busy road. This fact has also been confirmed by PW2 and PW6. A school is also located nearby. The accused was allegedly caught in the evening, in the month of March, at a busy road. However, no public persons were joined in the investigation. The reason for doing the same is the stereotypical refusal on part of such persons to join the instigation. The availability of public persons at/near the place of incident is undeniable. The IO did not make any sincere efforts to join the public persons. There is no assertion on part of the witnesses that the IO took down the names of the public persons or issued them notices to join the investigation. Thus, the fact that despite availability, no public persons were joined, casts a doubt on the version of the prosecution.
Cr. Case No. 2576/2017 State vs. Rahul Rathi Page 12 of 17INFORMANT AS IO -
22. The next objection of the ld. counsel for the accused is that the IO SI Naresh is also the complainant/informant in the present case. He has contended that the complainant who has allegedly caught the accused later on became the investigating officer and has investigated the case, which is in violation of principles of natural justice. Per contra, ld. APP has contended that there is no bar in the complainant also being the IO.
23. In this regard, it is observed that the legal position qua the aforesaid issue is now settled in view of the pronouncement of the Constitution Bench judgment of the Hon'ble Supreme Court in Mukesh Singh vs. State (Narcotic Branch of Delhi) (2020) 10 SCC
120. It was held, inter alia, as under -
"13.2.II. In a case where the informant himself is the investigator, by that itself cannot be said that the investigation is vitiated on the ground of bias or the like factor. The question of bias or prejudice would depend upon the facts and circumstances of each case. Therefore, merely because the informant is the investigator, by that itself the investigation would not suffer the vice of unfairness or bias and therefore on the sole ground that informant is the investigator, the accused is not entitled to acquittal. The matter has to be decided on a case to case basis. A contrary decision of this Court in the case of Mohan Lal v. State of Punjab (2018) 17 SCC 627 and any other decision taking a contrary view that the informant cannot be the investigator and in such a case the accused is entitled to acquittal are not good law and they are specifically overruled."
Therefore, solely because the complainant/informant is the IO is not sufficient to acquit the accused. However, the peculiar facts of the case are to be evaluated to see if the cumulative effect of other factors, in addition to the fact that the informant is the IO, are sufficient to acquit the accused. In the present case, the deficiencies in the case of the prosecution when viewed in light of the fact that the informant is the IO, weakens the case of the prosecution.
Cr. Case No. 2576/2017 State vs. Rahul Rathi Page 13 of 17OTHER DEFICIENCIES -
24. Apart from the circumstances narrated above, it is pertinent to note the sequence of events as narrated by the IO. The IO PW6 has stated in his examination-in-chief that after the accused was nabbed, he prepared a sketch memo, Ex. PW1/A, of the cartridges. Thereafter, he prepared the seizure memo Ex. PW1/B. After doing the same, he handed over the rukka Ex. PW6/A to PW1, who then got the FIR registered at the Police Station and returned back to the spot. The arrest etc. was done subsequently. PW1 and PW2 have stated that the site plan Ex. PW1/C was also prepared by the IO before the registration of FIR. The IO PW6 has however stated that the same was prepared after the registration of the FIR.
25. However, the narration of the witnesses appears to be not true. The sketch memo Ex. PW1/A and seizure memo Ex. PW1/B were admittedly prepared before registration of the FIR, as per the version of all the prosecution witnesses. However, it remains unexplained as to how the FIR No. and its details figure on the top of these documents. It is not the case of any witness of the prosecution that the IO had inserted these details later on. This throws a doubt on the investigation being done in the present case.
26. Further, it is deposed by PW2 that they had put barricades on main Paprawat road, at the time when they were checking persons. However, this fact is not reflected either in the testimony of PW1/PW6 or the site plan Ex. PW1/C.
27. As per the site plan Ex. PW1/C, the accused was at a distance of 10-15 steps from where the checking was going on. Similar is the deposition of the IO PW6. However, PW1 in his cross examination has stated that the distance of the accused was about Cr. Case No. 2576/2017 State vs. Rahul Rathi Page 14 of 17 30-35 steps from the place where they were standing.
28. The witnesses have also deposed about the IO handing over the seal to PW2, after preparing the seizure memo. However, the seal was not handed over to any independent witness and was only handed over to a fellow police official, who was with the IO during the whole investigation. Further, there is no seal handing over memo etc. document to support this assertion.
29. The defence of the accused DW1 is that he was returning from attending a wedding and he was picked by the police and sent to jail without any rhyme or reason. This is his defence in his statement under Section 313 CrPC as well. Ld. APP has argued that the accused has not even deposed about the venue or name of the person whose wedding he attended. The incident took place in the year 2011 and the accused entered into the witness box in the year 2021. More than a decade has passed since the incident. Therefore, the fact that the accused could not recite the name of the venue or the name of the person cannot be read against the accused. Human memory fades with efflux of time and the details are not so important that they would be etched in memory of a person forever. Even otherwise, the prosecution has to stand on its own legs and weakness of the defence is not a ground to convict the accused.
SECTION 174 A IPC -
30. Apart from the main offence, the accused has also been charged for the offence under Section 174A IPC, on account of his abscondence during the trial. It is alleged that the accused did not appear during the trial and after issuing warrants of his arrest, process under Section 82 CrPC was issued against the accused vide Cr. Case No. 2576/2017 State vs. Rahul Rathi Page 15 of 17 order dated 01.08.2013, which was received back executed on 13.09.2013. The process server was examined and the accused was declared absconder vide order dated 19.10.2013. During the trial, the prosecution has led evidence of two witnesses to prove the charge of the offence under Section 174A IPC.
31. PW9 and PW10 have deposed that on 12.01.2017, they got information from a secret informer regarding the presence of the accused in Dwarka Mor area. A raiding party was prepared and thereafter, the accused was apprehended. A kalandra Ex. PW9/A was prepared. However, in the opinion of this Court, the evidence led by the prosecution is not sufficient to convict the accused. The order vide which the accused was declared absconder and the process issued against him under Section 82 CrPC has not been exhibited during the trial. Even if it is assumed that the order being part of judicial record can be considered, other vital evidences are missing. Proclamation is the basis for the offence under Section 174A IPC. The process server, although examined at the time of declaring the accused absconder, has not been examined during the trial. As such, the accused has lost a valuable right to test the testimony of the witness on the anvil of cross examination. The only evidence is that of the witnesses who arrested him later on. Even the witnesses have stated that at the time of arrest of the accused, they had no written document pointing towards the fact that the accused has been declared an absconder. They merely acted on the information of a secret informer. Thus, the offence under Section 174 A IPC is also not proved beyond reasonable doubt.
Cr. Case No. 2576/2017 State vs. Rahul Rathi Page 16 of 17CONCLUSION -
32. To recapitulate the above discussion, to bring home the guilt of the accused, the prosecution was required to prove the offences under Section 25 Arms Act and Section 174A IPC beyond reasonable doubt. The accused has been successful in pointing out the deficiencies in the case of the prosecution. The recovery of the illicit liquor from the possession of the accused, which was the essential ingredient of the offence, is highly doubtful, owing to various circumstances. The evidence of police witnesses is not reliable and no independent witnesses were joined, despite abundant availability. Other inconsistencies in the version of the prosecution has crumbled the whole case of the prosecution. Crucial witness has not been examined qua the offence under Section 174A IPC.
33. Resultantly, the accused RAHUL RATHI is entitled for benefit of reasonable doubt and is hereby found not guilty. He is hereby ACQUITTED of the offences under Section 25 Arms Act and Section 174A IPC.
Pronounced in open court on 08.12.2021 in presence of the accused.
This judgment contains 17 pages and each page has been signed by the undersigned.
(DEV CHAUDHARY) Metropolitan Magistrate - 07 South-West District, Dwarka Courts, New Delhi/ 08.12.2021 Cr. Case No. 2576/2017 State vs. Rahul Rathi Page 17 of 17