Delhi District Court
State vs . Aman Kumar Sharma @ Maman on 20 April, 2022
DLCT-02-0103872022
IN THE COURT OF SH. KAPIL KUMAR
METROPOLITAN MAGISTRATE-07, CENTRAL,
TIS HAZARI COURTS, DELHI
CNR No. DLCT02-0103872022
CIS No. 5910/2022
State Vs. Aman Kumar Sharma @ Maman
FIR No.320/2022
PS : Wazirabad
U/s. 25(1-B)(b)Arms Act
JUDGMENT
1) The date of commission of offence : 13.04.2022
2) The name of the complainant : HC Nagender
3) The name & parentage of accused : Aman Kumar Sharma @ Maman S/o Vijay Kumar Sharma
4) Offence complained of : U/s.25 (1-B)
(b)Arms Act
5) The plea of accused : Pleaded not guilty
6) Final order : Acquitted
7) The date of such order : 20.04.2022 Date of Institution : 18.04.2022 Judgment reserved on : 20.04.2022 Judgment announced on : 20.04.2022 Digitally signed by KAPIL KAPIL KUMAR KUMAR Date:
2022.04.20 15:04:50 +0530 CIS No. 5910/2022; State Vs Aman Kumar Sharma @ Maman; FIR No.320/2022; PS : Wazirabad; U/s. 25(1-B)(b)Arms Act 1/8 DLCT-02-0103872022 BRIEF REASONS FOR THE JUDGMENT:
1) The case of the prosecution against the accused is that on 13.04.2022 at about 6:30 PM at gali no.15 and 13, milane wali gali Harizan Basti Jharoda, Burari, Delhi he was found in possession of one 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 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. 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. APP 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) PW1 HC Nagender and PW2 HC Pankaj deposed on the same lines that on 13.04.2022 they were on patrolling duty and the accused was apprehended on the basis of suspicion and was found in the possession of one buttondaar knife. They deposed that public persons were asked to join the proceedings but none agreed. They deposed that information was given in the police station. They deposed that the sketch memo of knife Ex.PW1/A was prepared, followed by the preparation of seizure memo CIS No. 5910/2022; State Vs Aman Kumar Sharma @ Maman; FIR No.320/2022; PS : Wazirabad; U/s. 25(1-B)(b)Arms Act 2/8 Digitally signed KAPIL by KAPIL KUMAR KUMAR Date: 2022.04.20 15:04:57 +0530 DLCT-02-0103872022 Ex.PW1/B. They deposed that pullanda was prepared sealed with the seal of NK. They deposed that rukka Ex.PW1/C was prepared and FIR Ex.A1 was got registered. They deposed that the accused was arrested and personally searched. They correctly identified the knife which was proved as Ex.P1 and the accused in the court.
5.2) PW2 HC Ashwani Kumar deposed that on 13.04.2022, the investigation of the present case was marked to him and therefore he reached at the spot where the custody of the accused and the case property was handed over to him. He deposed that he prepared the site plan Ex.PW3/A. He deposed as to the arrest of the accused and completion of codal formalities. He correctly identified the accused in the court.
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 was picked from his home by the police officials and thereafter the knife was planted upon him. 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 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 CIS No. 5910/2022; State Vs Aman Kumar Sharma @ Maman; FIR No.320/2022; PS : Wazirabad; U/s. 25(1-B)(b)Arms Act 3/8 Digitally signed KAPIL by KAPIL KUMAR KUMAR Date: 2022.04.20 15:05:04 +0530 DLCT-02-0103872022 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]
8) Bu virtue of testimony of PW1 and PW2 it is clear that accused was apprehended from a public place at evening time.
The presence of public persons was admittedly there at the spot. There is nothing on record as to whom the request was made to join the proceedings. It is not on record whether those persons were shopkeepers, hawkers or some other persons. The testimony of PW1 and PW2 is completely ambiguous on this aspect.
9) 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 CIS No. 5910/2022; State Vs Aman Kumar Sharma @ Maman; FIR No.320/2022; PS : Wazirabad; U/s. 25(1-B)(b)Arms Act 4/8 Digitally signed KAPIL by KAPIL KUMAR KUMAR Date: 2022.04.20 15:05:10 +0530 DLCT-02-0103872022 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 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.
10) Further, the seal after use was not handed over to any independent person. Seal after use was handed over to HC Pankaj. 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."
The case property was lying in the Maalkhana of the same police station, where the police official having the possession of CIS No. 5910/2022; State Vs Aman Kumar Sharma @ Maman; FIR No.320/2022; PS : Wazirabad; U/s. 25(1-B)(b)Arms Act 5/8 Digitally signed by KAPIL KAPIL KUMAR Date: DLCT-02-0103872022 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.
11) Besides all this, in the present case, the sketch memo and seizure memo of the knife Ex.PW1/A and Ex.PW1/B respectively, bears the number of FIR. As per the rukka and testimony of witnesses, sketch memo and seizure memo were prepared prior to registration of FIR. If that be so then how the sketch memo and seizure memo of the knife bears the FIR number. Now, I consider the observation made by Hon'ble Delhi High Court in Giri Raj v. State, 83 (2000) DLT 2189. This gives rise to two inferences that either the FIR was recorded prior to the alleged recovery of the case property or number of the said FIR was inserted in the document after its registration. In both the situations, it seriously reflects upon the veracity of the prosecution version and creates a good deal of doubt about the recovery of the case property in the manner alleged by the prosecution. That being so, the benefit arising out of such a situation must necessarily go to the accused.
12) Further, it is also came on record that PW1 and PW2 did not offer their personal search prior to taking the search of accused. PW1 and PW2 must have offered his personal search to some independent witness. No such precaution was taken by PW1 and PW2. The doubt as to the false plantation of the case property cannot be ruled out.
13) 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 CIS No. 5910/2022; State Vs Aman Kumar Sharma @ Maman; FIR No.320/2022; PS : Wazirabad; U/s. 25(1-B)(b)Arms Act 6/8 Digitally signed KAPIL by KAPIL KUMAR KUMAR Date: 2022.04.20 15:05:27 +0530 DLCT-02-0103872022 evidence by the IO.
14) Now a days everyone is carrying mobile phone with camera facility. If the public persons refused to join the proceedings than the video recording could have been made by the police officials to substantiate their avernments but nothing of this sort was done. Considering the fact that the accused was apprehended from a public place and there is no public witness, the video recording could have been crucial for the present case. Completely callous attitude was adopted during the proceedings and the benefit of this fact should go to the accused.
15) 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 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, CIS No. 5910/2022; State Vs Aman Kumar Sharma @ Maman; FIR No.320/2022; PS : Wazirabad; U/s. 25(1-B)(b)Arms Act 7/8 Digitally signed KAPIL by KAPIL KUMAR KUMAR Date: 2022.04.20 15:05:35 +0530 DLCT-02-0103872022 the standard of proof is not the same as that which rests upon the prosecution..........................."
16) 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).
17) 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 Aman Kumar Sharma @ Maman 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 signed by KAPIL KAPIL KUMAR
KUMAR Date:
2022.04.20
15:05:44 +0530
Announced in the open court (KAPIL KUMAR)
on 20.04.2022 Metropolitan Magistrate-07
Central District, Tis Hazari Courts/Delhi CIS No. 5910/2022; State Vs Aman Kumar Sharma @ Maman; FIR No.320/2022; PS : Wazirabad; U/s. 25(1-B)(b)Arms Act 8/8