Delhi District Court
State vs Sonu on 22 December, 2023
IN THE COURT OF MS. BHARTI BENIWAL, METROPOLITAN
MAGISTRATE-11, DWARKA COURT, NEW DELHI
FIR No.518/2022
PS Janakpuri
State Vs. Sonu
U/s 25/54/59 Arms Act
CNR No. : DLSW020618582021
Cr Case No. : 12952/2022
Date of institution of the case : 28.10.2022
Date of commission of offence : 29.09.2022
Name of the complainant : HC Amarjeet Singh
Name of accused and address : Sonu
S/o Sh.Murlidhar
R/o A-59, Vikas Enclave,
Shiv Vihar, Vikas Nagar,
Uttam Nagar, Delhi
Offence complained of : U/s 25/54/59 Arms Act
Plea of the accused : Pleaded not guilty.
Ld. APP for the State : Sh.Amit Sehrawat
Final order : Acquital
Date of judgment : 22.12.2023
FIR No.518/2022
State Vs. Sonu
Page No.1/10
JUDGMENT
1. The brief facts of the case of the prosecution are that on 29.09.2022 at about 07 : 25 P.M. near opposite C2 DTC Bus Stand, Janakpuri, Delhi, accused Sonu was found in possession of one button operated knife and after completion of the investigation, charge-sheet was filed against the accused u/s 25/54/59 Arms Act.
2. On receipt of chargesheet, cognizance of offence was taken and accused was summoned. After supply of copy of chargesheet, a formal charge was framed u/s 25/54/59 of Arms Act against the accused to which he pleaded not guilty and claimed trial.
3. Prosecution has examined 2 witnesses to prove its case.
4. The prosecution examined HC Amarjeet Singh as PW1. He deposed that on 29.09.2022, while patrolling, he saw a person standing at C2 Bus Stand. Witness asked the person about his name and address. That the person got scared and could not give any satisfactory answer. On getting suspicion, witness conducted prime facie search of the said person and found one button operated knife from left pocket of pant. That he disclosed his name as Sonu. Witness informed the DO regarding the same. HC Harphool came to the spot with Ct.Kapil. Witness handed over the apprehended person to the IO HC Harphool. Thereafter, HC Harphool prepared sketch of the said knife which is Ex.PW1/A. Knife was seized vide seizure memo Ex.PW1/B. Thereafter, IO took his statement which is Ex.PW1/C and prepared tehrir on the same. IO handed over the said tehrir to Ct.Kapil who went to PS to get the FIR registered on the same. In the meanwhile, IO prepared site plan which is Ex.PW1/D. Thereafter, Ct.Kapil came back to the spot with copy of FIR and original Tehrir. IO formally FIR No.518/2022 State Vs. Sonu Page No.2/10 arrested the accused vide arrest memo Ex.PW1/E. Thereafter, personal search of accused was conducted vide memo Ex.PW1/F. IO recorded disclosure statement of the accused vide memo Ex.PW1/G. Accused was present in the court and he was correctly identified by witness. Witness stated that he can identify the case property.
MHC(M) produced one pullanda having seal of HJ. Seal was removed and pullanda opened. One button operated knife was taken out from the pullanda. Same was correctly identified by the witness. Case property is Ex.P.
5. Witness was cross examined by ld. Defence Counsel wherein he stated that he was doing his patrolling duty on foot in C1 Block, Pankha Road. There were no public persons present at the spot where he saw the accused person standing. There was no tobacco counter at the spot. That the place was not much crowded. That seal was handed over to Ct.Kapil. No handing over memo was prepared. Witness further stated that he had requested from the public person available on road to join the investigation but none agreed. He further stated that he did not serve any written notice to them. He also did not note down their names and address. Witness further stated that he was having a smart phone with him but he did not make the video of recovery of alleged weapon. Departure entry was made by DO. After seeing the file, the witness admits that the departure entry has not been made part of the record. Witness denied the suggestion that no such incident was ever happened at that point of time. Witness further denied the suggestion that he did not visit at the spot and conducted all proceedings while sitting in the PS. Witness further denied the suggestion that he prepared all documents prior to registration of FIR.
6. The prosecution has examined HC Harphool as PW2. He deposed that on 29.09.2022, he received DD No.129A regarding apprehension of accused and buttondar knife found in his possession at C2 FIR No.518/2022 State Vs. Sonu Page No.3/10 Bus Stand. He alongwith Ct.Kapil reached there at about 08 : 39 PM where HC Amarjeet met him. That he produced one apprehended person namely, Sonu and one button operated knife found in his possession. Accused was present in the court and he was correctly identified by witness. Witness put knife on white paper and prepared its sketch memo Ex.PW1/A. Total length of the knife was 20.8 cm, length of blade was 9.1 cm and length of handle was 11.7 cm. Witness kept knife in white cloth pullanda. Pullanda was sealed with seal of HJ. Witness handed over used seal to Ct.Kapil. Witness seized the pullanda vide seizure memo Ex.PW1/B. Thereafter, witness recorded the statement of HC Amarjeet. Same is Ex.PW1/C. Witness prepared rukka Ex.PW2/A. Witness handed over rukka to Ct.Kapil for registration of FIR. Ct.Kapil went to PS and got registered the FIR. Ct.Kapil returned back at the spot and handed over the copy of FIR and original rukka to witness. He prepared site plan Ex.PW1/D. Witness arrested the accused vide memo Ex.PW1/E. Personal search of accused was conducted vide memo Ex.PW1/F. Witness recorded disclosure statement of accused which is Ex.PW1/G. Witness recorded supplementary statement of HC Amarjeet u/s 161 CrPC. Witness stated he could identify the case property.
MHC(M) produced one pullanda opened in the testimony of PW1 HC Amarjeet. One button operated knife was shown to the witness. Same was correctly identified by the witness. Case property is Ex.P.
7. Witness was cross examined by ld. Defence Counsel wherein he stated that he received DD No.129A at about 08 : 39 PM. That it was personally informed by the DO. That he alongwith Ct.Kapil left the PS and reached at the spot at about 08 : 42 PM on his personal motorcycle. That distance of the PS and the spot is about 1 kms. That there was a road and person and vehicles were passing from the road. That he had requested from the public person available on road but none agreed. That he did not serve any written notice to them. That he also did not note down their names and address. That he remained present at the spot till 11 : 10 PM. Witness further FIR No.518/2022 State Vs. Sonu Page No.4/10 stated that he gave telephonic information of arrest of accused to his wife namely, Ruksana. That he conducted all the proceedings beneath the street light near C2 Bus Stand. Ct.Kapil came back at the spot at about 10 : 45 PM. Witness stated that he was having a smart phone with him but he did not make the video of recovery of alleged weapon. Witness denied the suggestion that he did not visit at the spot and conducted all proceedings while sitting in the PS. Witness denied the suggestion that he prepared all documents prior to registration of FIR.
8. Vide separate statement recorded u/s 294 Cr.P.C, accused had admitted the documents FIR No.518/20200 registered by ASI Moti Ram Ex.A1, Certificate u/s 65B of Indian Evidence Act issued by ASI Moti Ram Ex.A2, Endorsement on rukka by ASI Moti Ram Ex.A3, DD Entry No.141A dt.22.09.2022 Ex.A4 and DAD notification of Delhi Administration Ex.A5. Hence the above documents were ordered to be read in evidence without its formal proof.
9. No other witness was examined by prosecution and hence, PE was closed vide order dated 20.09.2023.
10. Statement of accused under Section 313 Cr.P.C. was recorded wherein the entire incriminating evidence was put to him. According to him, he has been falsely implicated in the present case. Accused chose not to lead any evidence in his defence and hence, the matter was put up for final arguments.
11. Final arguments were thereafter heard on behalf of State as well as the accused.
12. After hearing Sh.Amit Sehrawat, Learned Assistant Public Prosecutor for the state and Sh.Praveen Kumar Goel, Learned Legal Aid FIR No.518/2022 State Vs. Sonu Page No.5/10 Counsel for the accused and having gone through the case file carefully and meticulously, it is observed by the court that it is the case of prosecution that on the fateful day accused was found in possession of one buttondar knife. The court is of the view that to prove the charge against the accused, the prosecution is required to prove the allegation beyond reasonable doubt.
13. The relevant portion of Arms Act is reproduced as under:
Section 25: Punishment for certain offences:
(1) whoever-
(a) Manufactures, sells, transfers, converts, repairs, tests or proves, or exposes or offers for sale or transfer, or has in his possession for sale, transfer, conversion, repair, test or proof, any arms or ammunition in contravention of section 5; or
(b) Shortens the barrel of a firearm or converts an imitation firearm into a firearm in contravention of section 6; or 2[***]
(c) bring into, or takes out of, India, any arms or ammunition of any class or description in contravention of section 11, shall be punishable with imprisonment for a term which not be less than three years but which may extend to seven years and shall also be liable to fine.
14. In the case in hand, the incident took place at Opposite C2, DTC Bus Stand at about 07 : 25 PM. In cross examination of PW1 HC Amarjeet, it has specifically been stated by him that the place is crowded place but despite that, he did not request any public person to join the investigation. However, in cross examination of PW2 HC Harphool, he also admitted the fact that the place was a crowded place. He further stated that he asked public persons to join the investigation, however, none agreed to join the investigation. All the prosecution witnesses stated that no public witness agreed to give statement. However, none of the police officials stated the FIR No.518/2022 State Vs. Sonu Page No.6/10 description of the persons who had allegedly refused to join the investigation. Further, there is nothing on record to show that the complainant or the IO had served any notice under Section 160 CrPC upon the persons who refused to join the investigation. Thus, the prosecution has failed to prove that any serious effort was made by PW2 to join public witness in the proceedings. It is a well settled proposition that non-joining of public witness shrowds doubt over the fairness of the investigation by police.
15. In case law reported as "Anoop Joshi Vs. State" 1992 (2) C.C. Cases 314 (HC), High Court of Delhi had observed as under:-
"18. It is repeatedly laid down by this Court in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evidence that no such sincere efforts have been made, particularly when we find that shops were open and one or two shop-keepers 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".
16. In a case law reported as "Roop Chand Vs. The State of Haryana" 1999 (1) C.L.R. 69, the 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 FIR No.518/2022 State Vs. Sonu Page No.7/10 asked to join the investigation. The explanation furnished by the prosecution is that the independent witnesses were asked to join the investigation but they refused to to 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 Investigating agency should join independent witnesses at the time of 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 the witnesses from the public had refused to join the investigation, the Investigating Officer must have proceeded against them under the relevant provision of law. The failure to do so by the police officer is suggestive of the fact that the explanation for non-joining 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".
17. Non joining of public witnesses despite availability casts a doubt on the fairness of the investigation. Reliance is placed on paragraph 6 of the judgment in Pawan Kumar v. The Delhi Administration, 1989 Cri.L.J. 127, wherein the Hon'ble High Court of Delhi had observed as under:
FIR No.518/2022State Vs. Sonu Page No.8/10 " ... According to Jagbir Singh, he did not join any public witness in the case while according to Kalam Singh, no public person was present there. It hardly stands to reason that at a place like a bus stop near Subhas Bazar, there would be no person present at a crucial time like 07.30 p.m. when there is a lot of rush of commuters for boarding the buses to their respective destinations. Admittedly, there is no impediment in believing the version of the Police officials but for that the prosecution has to lay a good foundation. At least one of them should deposed that they tried to contact the public witnesses or that they refused to join the investigation. Here is a case where no effort was made to join any public witness even though number of them were present. No plausible explanation from the side of the prosecution is forthcoming for not joining the independent witnesses in a case of serious nature like the present one. It may be that there is an apathy on the part of the general public to associate themselves with the Police raids or the recoveries but that apart, at least the I.O. should have made an earnest effort to join the independent witnesses. No attempt in this direction appears to have been made and this, by itself, is a circumstance throwing doubt on the arrest or the recovery of the knife from the person of the accused."
18. This Court is, however, conscious that the prosecution case cannot be 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, as has been held in Appabhai and another v. State of Gujarat, AIR 1988 SC 696. 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 suscpicion over the prosecution version.
19. Further, the seal remained with a police official only and it has not been proved that the seal was handed over to any other independent FIR No.518/2022 State Vs. Sonu Page No.9/10 public person and therefore, the possibility of sample being tempered with cannot be ruled out. Reference may be made to the judgment of Subeg Singh v. State of Haryana, reported as 1992(3) RCR (Criminal) 596. In the judgment titled as Karambir v. State of Delhi reported as 1997 JCC 520 it has been held that absence of proof that the specimen impression of the seal was deposited with MHCM(M) along with case property results in miscarriage of justice and is fatal to the prosecution.
20. 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.
21. Thus, in view of the foregoing analysis, this Court is of the considered opinion that the benefit of doubt ought to be granted to the accused, who is entitled to be exonerated of the charges against him in the present case. The accused Sonu is hereby acquitted of the offence punishable under Section 25 of Arms Act. Accused be set at liberty.
Pronounced in open Court on this 22nd Day of December 2023.
This judgment consists of 10 pages and each pages are signed by the undersigned.
(BHARTI BENIWAL) Metropolitan Magistrate-11 South West Dwarka Courts/New Delhi FIR No.518/2022 State Vs. Sonu Page No.10/10