Delhi District Court
State vs . Lal Babu @ Mohd Kurban on 16 May, 2023
CNR No. DL WT02-030897-2022
IN THE COURT OF SH. KAPIL KUMAR
CHIEF METROPOLITAN MAGISTRATE- WEST
TIS HAZARI COURTS, DELHI
CNR No. DL WT-02-030897-2022
CIS No. 14559/2022
State Vs. Lal Babu @ Mohd Kurban
FIR No. 533/2022
PS. Kirti Nagar
U/s. 25 Arms Act
JUDGMENT
1) The date of commission of offence : 01.12.2022
2) The name of the complainant : ASI Balram Jat
3) The name & parentage of accused : Lal Babu @ Mohd Kurbaan S/o Ibrahim
4) Offence complained of : u/s. 25 Arms Act
5) The plea of accused : Pleaded not guilty
6) Final order : Acquitted
7) The date of such order : 16.05.2023 Date of Institution : 16.12.2022 Judgment reserved on : 16.05.2023 Judgment announced on : 16.05.2023 Digitally signed by KAPIL KAPIL KUMAR Date:
KUMAR 2023.05.16
14:40:44
+0530
CIS No. 14559/2022, State Vs. Lal Babu @ Mohd Kurban; FIR No.533/2022; PS. Kirti Nagar; U/s. 25 Arms Act 1/7 CNR No. DL WT02-030897-2022 THE BRIEF REASONS FOR THE JUDGMENT:
1) The case of the prosecution against the accused is that on 01.12.2022 at about 11:50 PM near toilet Kamal Nehru Park, Kirti Nagar, he was found in possession of one illegal buttondar knife in contravention of Delhi Administration Notification. On the said allegations, accused was charged with the offence under Section 25 (1-B)(b) of the Arms Act, 1959.
2) After investigation, charge-sheet was filed against the accused. The copy of charge-sheet was supplied to the accused in compliance of Section 207 Cr.P.C. Thereafter, charge was framed against the accused for the offence 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 three witnesses. Accused admitted the factum as to the registration of the present FIR ExA1; endorsement on rukka Ex.A2; certificate u/s 65 B Indian Evidence Act Ex.A3, Notification of Delhi Administration Ex.A4; DD no. 95A Ex.A5; DD no. 104A Ex.A6 and DD no. 10A Ex.A7. 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 defence evidence.
4) I have heard Ld. Additional PP for State and LAC for accused. I have also perused the record carefully.
5) The testimonies of prosecution witnesses are hereby discussed, in brief, as follows:-
5.1) PW2 Ct Devender and PW3 Ct Deepak deposed on the same lines that on 01.12.2022, they were on patrolling duty and at about 11:30 PM when they reached near public toilet near Kamla Nehru CIS No. 14559/2022, State Vs. Lal Babu @ Mohd Kurban; FIR No.533/2022; PS. Kirti Nagar; U/s. 25 Arms Act 2/7 Digitally signed by KAPIL KAPIL KUMAR Date:
KUMAR 2023.05.16 14:40:48 +0530 CNR No. DL WT02-030897-2022 camp, the accused was apprehended on the suspicion and was found in the possession illegal buttondaar knife. They deposed that the information was given in the PS and IO ASI Balram/PW1 reached at the spot. They deposed that the custody of the accused and knife was handed over to ASI Balram. They deposed that public persons were asked to join the investigation but none agreed. They deposed that knife was seized vide seizure memo Ex.PW1/A and sealed with the seal of 'BJ'. They deposed that rukka Ex.PW1/B was prepared and FIR got registered. They deposed that IO prepared the site plan Ex.PW1/C and thereafter sketch memo Ex.PW1/D was prepared. They deposed that the accused was arrested and personally searched vide memos Ex.PW1/F and Ex.PW1/G. They deposed that seal handing over memo Ex.PW1/E was prepared. They correctly identified the accused and the knife which is Ex.P1. 5.2) PW1 ASI Balram deposed on the lines of PW2 and PW3 and also correctly identified the accused and the case property.
6) 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.
7) Ld. LAC for the accused vehemently argued that accused has been falsely implicated in this case. It is submitted that the knife was not recovered from the possession of the accused, rather the same was planted upon him by the police officials. It is further submitted that this got fortified with the fact that there is no public witness in the present case despite the fact that the accused was apprehended from the public place. Considering this argument of Ld LAC it is CIS No. 14559/2022, State Vs. Lal Babu @ Mohd Kurban; FIR No.533/2022; PS. Kirti Nagar; U/s. 25 Arms Act 3/7 Digitally signed KAPIL by KAPIL KUMAR KUMAR 14:40:53 Date: 2023.05.16 +0530 CNR No. DL WT02-030897-2022 necessary to go through the legal aspect on this poser. In State of Punjab v. Balbir Singh, AIR 1994 SC 1872, the Hon'ble Supreme Court 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 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 join the investigation is of no avail. Name of those persons are not mentioned. It is not mentioned as to what action was CIS No. 14559/2022, State Vs. Lal Babu @ Mohd Kurban; FIR No.533/2022; PS. Kirti Nagar; U/s. 25 Arms Act 4/7 Digitally signed by KAPIL KAPIL KUMAR KUMAR Date:
2023.05.16 14:40:58 +0530 CNR No. DL WT02-030897-2022 taken against those persons who refused to join the investigation. Hence, the above-mentioned creates doubt on the case of the prosecution and give teeth to the defence of the accused that he was picked from his home.
8) It was argued by Ld Defence Counsel that the case is false is also coming from the fact that the seal was not handed over to any public persons. Records perused. The seal after use was not handed over to any independent person. Seal after use was handed over to police official. 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."
CIS No. 14559/2022, State Vs. Lal Babu @ Mohd Kurban; FIR No.533/2022; PS. Kirti Nagar; U/s. 25 Arms Act 5/7 Digitally signed by KAPIL KAPIL KUMAR Date:
KUMAR 2023.05.16
14:41:03
+0530
CNR No. DL WT02-030897-2022
The case property was lying in the Malkhana 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.
9) Further, it is also important to mention here that PW2 and PW3 did not offer their personal search prior to taking the search of accused. PW2 and PW3 must have offered their personal search to some independent witness. No such precaution was taken by PW2 and PW3. The doubt as to the false plantation of the case property cannot be ruled out.
10) 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 this scientific evidence by the IO.
11) 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 CIS No. 14559/2022, State Vs. Lal Babu @ Mohd Kurban; FIR No.533/2022; PS. Kirti Nagar; U/s. 25 Arms Act 6/7 Digitally signed by KAPIL KAPIL KUMAR Date:
KUMAR 2023.05.16
14:41:07
+0530
CNR No. DL WT02-030897-2022
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..........................."
12) 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).
13) 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 Lal Babu @ Mohd Kurban 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 signedKAPIL by KAPIL KUMAR KUMAR 14:41:19 Date: 2023.05.16 +0530 Announced in the open court (KAPIL KUMAR) on 16.05.2023 Chief Metropolitan Magistrate West District, Tis Hazari Courts/Delhi CIS No. 14559/2022, State Vs. Lal Babu @ Mohd Kurban; FIR No.533/2022; PS. Kirti Nagar; U/s. 25 Arms Act 7/7