Delhi District Court
State vs . on 29 April, 2023
IN THE COURT OF METROPOLITAN MAGISTRATE-07,
SOUTH-WEST, DWARKA COURTS,
NEW DELHI
Presided over by- Ms. Medha Arya, DJS
Cr. Case No. -: 9199/2022
Unique Case ID No. -: DLSW020450232022
FIR No. -: 312/2022
Police Station -: CHHAWLA
Section(s) -: 25 Arms Act
In the matter of -
STATE
VS.
UMESH @ RAHUL
S/o Tekchand,
R/o Paprawat Village,
Chhawla, New Delhi.
.... Accused
1. Name of Complainant : Chhotu Lal Meena
2. Name of Accused : Umesh @ Rahul
Offence complained of or
3. : 25 Arms Act
proved
4. Plea of Accused : Not guilty
Date of commission of
5. : 27.06.2022
offence
6. Date of Filing of case : 26.07.2022
7. Date of Reserving Order : 29.04.2023
8. Date of Pronouncement : 29.04.2023
9. Final Order : Acquitted
Argued by -: Ld. APP for the State.
Ld. LAC for the accused.
BRIEF STATEMENT OF REASONS FOR THE DECISION-:
Cr. No. 9199/2022 State vs. Umesh @ Rahul Page no. 1/10 FACTUAL MATRIX -
1. Pithily put, case of the prosecution against accused Umesh @ Rahul S/o Tekchand is that on 27.06.2022 at about 10.00 PM, at Durga Vihar, Phase-II, Main Paprawat Chowk, within the jurisdiction of PS Chhawla, accused was found in possession of a button actuated knife in contravention of relevant Delhi Administration Notification. On the said allegations, accused was charged with the offence punishable under Section 25 of Arms Act,1959 (hereinafter, 'Arms Act').
2. After investigation, accused was charge-sheeted and its copy was supplied to him in compliance of Section 207 Cr.P.C. Thereafter, charge was framed against the accused under Section 25 of Arms Act, to which he pleaded not guilty and claimed trial.
3. In support of its version, prosecution examined four witnesses. Accused admitted as per section 294 Cr.P.C, the factum of registration of FIR Ex. A1, certificate under Section 65B of Indian Evidence Act Ex. A2, DD no. 124A dated 28.06.2022 Ex. A3, and DAD Notification Ex. A4. In view of the said admission, the corresponding prosecution witnesses, formal in nature, were dropped from the list of witnesses to be examined.
4. After conclusion of prosecution evidence, statement of accused was recorded u/s 281/313 Cr.P.C separately wherein he claimed to be innocent and denied the allegations against him. Accused opted not to lead DE in the affirmative.
5. This Court has heard Ld. APP for State and Ld. LAC Cr. No. 9199/2022 State vs. Umesh @ Rahul Page no. 2/10 for the accused in light of record of the case. Considered. The testimonies of prosecution witnesses are hereby discussed, in brief, as follows:-
5.1 Complainant HC Chhotu Lal Meena stated that on 27.06.2022, at the relevant time, he alongwith Ct. Naveen and Ct.
Moti Lal were on patrolling duty in the area concerned and upon the tip of a secret informer and as per the directions of SHO PS concerned, a raiding team was constituted consisting of abovementioned officials and the secret informer. They raided the accused and apprehended him. The accused was detained at the spot and in his personal search, a button actuated knife was recovered from the pocket of his trouser. He prepared the sketch of the knife Ex. PW1/A and the same was sealed with the seal of CL. The seized weapon was thereafter kept in a pullanda vide seizure memo Ex. PW1/B. He prepared the tehrir Ex. PW1/C. He also prepared the site plan Ex PW1/D. The witness correctly identified the case property when produced in the court, which was marked as Ex P-1. He was duly cross examined and discharged.
5.2 PW2 Ct Naveen deposed that on the relevant day of the incident, he was on patrolling duty with HC Chhotu Lal / PW1, and Ct. Moti Lal. He deposed on similar lines as to the apprehension and arrest of accused in possession of the Knife, Ex P-1. He also relied upon the arrest memo of accused Ex. PW2/A, personal search of accused Ex. PW2/B and disclosure statement of accused Ex.PW2/C. He was also duly cross examined, before being discharged.
Cr. No. 9199/2022 State vs. Umesh @ Rahul Page no. 3/10 5.3 PW HC Ashok/IO took the witness stand as PW3. He deposed that on the day of the incident, after registration of FIR, the investigation of the present matter was handed over to him. He alongwith Ct. Moti Lal reached at the spot. HC Chotu Lal handed over him the accused alongwith seized case property / button actuated knife alongwith relevant documents. He interrogated the accused vide memo Ex. PW2/C and arrested the accused vide memo Ex. PW2/A. He also conducted his personal search vide memo Ex. PW2/B. He was duly cross examined, before being discharged.
5.4 PW4 Ct Moti Lal deposed that on the relevant day of the incident, he was on patrolling duty with HC Chhotu Lal / PW1, and Ct. Naveen / PW2. He deposed on similar lines as to the apprehension and arrest of accused in possession of the Knife, Ex P-1. He corroborated the version of HC Chhotu Lal/ PW1 and Ct. Naveen / Ex. PW2. He was also duly cross examined, before being discharged.
FINDINGS
6. The accused has been charged for the offence punishable under section 25 of the Arms Act, 1959. Section 25(1B) of the said Act provides for punishment for possession of a weapon in contravention of section 4 of the Act. Section 4 empowers the Central government to regulate the position acquisition or carrying of any arms other than firearms in a specific area.
7. It is the case of the prosecution that the accused was Cr. No. 9199/2022 State vs. Umesh @ Rahul Page no. 4/10 found in possession of a button activated knife in contravention of the DAD notification dated 29 October 1980. The said notification provides that button actuated knife with a sharp edged blade of 7.62 cm or more in length and 1.72 cm or more in breath cannot be carried manufactured or possessed by any person without a valid licence.
8. The case of the prosecution to the extent that the case property, that is the button activated Ex P1, contravenes the DAD notification has not been challenged by the accused. Further, the accused has also not challenged the case of the prosecution to the extent that the accused did not have any valid license to possess such an arm.
9. The sole basis of the defence taken by the accused, as culled out from the cross examination as well as subsequently his statement recorded under section 313 CrPC, is that no recovery at all of the case property was effected from the accused.
As per section 101 of the Indian Evidence Act, 1872, the primary burden to prove that the recovery of the case property was made from the person of the accused lies upon the prosecution.
10. To prove the recovery of the case property from the accused, the prosecution first examined HC Chhotu Lal Meena. As per the testimony of said witness PW1, the accused was apprehended after he received a tip in this regard from a secret Cr. No. 9199/2022 State vs. Umesh @ Rahul Page no. 5/10 informer. That is to say, he was a chance witness at the spot of the incident. However, PW1 has himself volunteered in his cross-examination that he did not join any independent witness to the investigation, despite the presence of public persons at the spot, thus casting a shadow of doubt upon the case of the prosecution. PW1 has himself deposed that he made efforts to join the public witness, but no one came forward and left the spot without disclosing their particulars. PW2 and PW4 also deposed that efforts were made to join public witnesses to the investigation, but no person came forward. This does not appeal to this court to be a reasonable ground for non-joining of any public witnesses.
11. At this juncture , this Court seeks guidance from the law laid down by the Hon'ble SC of India in Pradeep Narayana V. State of Maharashtra reported AIR 1995 SC 1930, wherein it was held that failure of police to join witness from locality during search creates doubt about fairness of the investigation, benefit of which has to go to the accused. Similarly, it was held in the case of Kuldeep Singh V. State of Haryana 2004(4) RCR 103 and Passi @ Prakash V. State of Haryana 2001(1) RCR 435, that it is settled law that whenever any recovery in connection with the place of the commission of offence is made, public person must be made witness. Further, 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 Cr. No. 9199/2022 State vs. Umesh @ Rahul Page no. 6/10 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."
12. Given the facts and circumstances of the present case, it is seen that there was no lack of time or opportunity to get associated independent witnesses at the time of the search of the accused to strictly comply with the provisions of Code of Criminal Procedure. Merely mentioning that public persons were requested to join the investigation does not accord the case of the prosecution any credibility . Name of any such persons asked have no-where been mentioned either. This has been admitted by PW1, PW2 and PW4 in their testimonies. Testimonies of PW1, PW2 and PW4 make it abundantly clear that no steps were taken against the said witnesses who refused to join investigation. In view of the same, the above- mentioned circumstances as to the Cr. No. 9199/2022 State vs. Umesh @ Rahul Page no. 7/10 arrest of the accused from the place of the incident in question, as alleged, become suspect.
13. Further, it is also seen that the seal, used for seizure of the weapon in question also, after use, was not handed over to any independent person. The importance of the seal not being handed over to some independent person in such cases has been laid down by Hon'ble Delhi High Court in Safiullah v. State 1993 (1) RCR (Criminal) 622. It has been held therein 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."
14. Record of the case reveals that case property was lying in the Maalkhana of the same police station, where police officials having the possession of seal were posted. As such therefore, there were ample opportunities for tampering with the case property. If that be so, the inherent veracity of the claims as put forth by the state gets shrouded in dubeity, with the benefit of doubt inuring to the advantage of the accused.
15. Furthermore, this Court finds itself in agreement of the arguments of ld. LAC for the accused to the effect that the fact that although as per the testimony of PW1 HC Chhote Lal Cr. No. 9199/2022 State vs. Umesh @ Rahul Page no. 8/10 the seizure memo exhibit PW1/B, the site plan Ex PW1/D and the sketch of the button actuated knife Ex PW1/A were prepared prior to the registration of the FIR, they all bear the details of the FIR makes the veracity of the documents, and consequently, the factum of recovery, suspect, for it gives rise to the inference that the FIR was either registered before the incident took place, or the documents were created after the registration of the FIR, contrary to the testimonies of PW1, PW2 and PW4. This Court is fortified in this opinion by the judgment of the Hon'ble High Court of Delhi titled Ramesh Prakash vs State 1999(2) JCC (Delhi) 538 wherein it is held that the circumstance that such documents bear the FIR number seriously reflects upon the veracity of the prosecution version, the benefit of which must go to the prosecution.
16. Another important lacuna in the case qua the recovery of the weapon in question from the accused is that that the complainant did not offer his own personal search prior to taking the search of accused as the recovery is claimed to be a planted one. Complainant should have offered his personal search first to some independent witness. However, no such precaution is seen to have been taken at the time. That again, creates doubt as to false planting of the case property upon the person of the accused and it indeed cannot be ruled out.
17. These loopholes in the prosecution case lead to the inescapable conclusion that the prosecution has not been able to prove the recovery of the case property Ex. P-1 from the Cr. No. 9199/2022 State vs. Umesh @ Rahul Page no. 9/10 accused. Accordingly, accused Umesh @ Rahul S/o Tekchand is hereby acquitted of the charges framed against him in the present case.
18. Case property be confiscated to the State. Same be destroyed. File be consigned to Record Room after due compliance.
19. File be consigned to record room after compliance of Section 437A CrPC.
Pronounced in open court on 18.04.2023 in presence of accused person.
This judgment contains 10 pages and each page has been signed by the undersigned. Digitally signed MEDHA ARYA by MEDHA ARYA Date: 2023.04.29 16:58:13 +0530 (MEDHA ARYA) Metropolitan Magistrate - 07 South-West District, Dwarka Courts, New Delhi, 18.04.2023 Cr. No. 9199/2022 State vs. Umesh @ Rahul Page no. 10/10