Delhi District Court
State vs . Kapil @ Manwa on 11 October, 2022
IN THE COURT OF MS MANSI MALIK,
METROPOLITAN MAGISTRATE03, NORTH WEST,
ROHINI COURTS, DELHI
Cr. Case No. 5340/2019
FIR No. : 498/2019
P.S. : Raj Park
State Vs. Kapil @ Manwa
U/s. 25/54/59 Arms Act
State
v.
Kapil @ Manwa
S/o Sh. Om Prakash,
R/o F7/W19/143, Sultanpuri, Delhi
Date of institution of case : 07.09.2019
Date of reserving the judgment : 13.09.2022
Date of pronouncement of judgment : 11.10.2022
JUDGMENT
1. S. No. of the Case: 5340/2019 2. Date of Commission of Offence: 03.07.2019 3. Date of institution of the case: 07.09.2019 4. Name of the complainant: Ct. Kapil 5. Name of the accused: Kapil @ Manwa 6. Offence complained or proved: U/s 25 Arms Act 7. Plea of Accused: Not Guilty 8. Final Order: Acquitted 9. Date of Final Order: 11.10.2022 State vs. Kapil @ Manwa FIR no. 498/19 PS Raj Park Page No. 1/13 Digitally signed MANSI by MANSI MALIK MALIK Date: 2022.10.11 17:07:13 +0530 BRIEF FACTS AND REASONS FOR DECISION
1. Succintly, the case of prosecution is that the accused Kapil @ Manwa has been sent to face trial with the allegations that on 03.07.2019 at about 10:30 PM at F2 Block Park, Sultanpuri, Delhi, within the jurisdiction of PS Raj Park, accused Kapil @ Manwa was found in possession of one buttondar knife, without any license or permit. Investigation was carried out. Upon completion of the investigation the in stant chargesheet for the offence punishable under Section 25 Arms Act was filed by the investigating officer against the accused. The accused was then summoned by the Ld. PO at the time.
2. The copy of charge sheet and relevant documents was supplied to the accused in compliance of Section 207 of Code of Criminal Procedure, 1973 (hereinafter referred to as Cr.PC).
3. Prima facie case was made out and charge for offence punishable under Section 25 Arms Act was framed on 03.12.2021 to which the accused pleaded not guilty and claimed trial. Thereafter, the matter was fixed for recording of prosecution evidence.
4. In order to substantiate the allegations, the prosecution examined three witnesses. At the onset it would be appropriate to have glance at the gist of deposition made by the witnesses:
5. PW1 Ct. Kapil deposed that on 03.07.2019, he was posted as Ct. at PS Raj Park and he was on patrolling duty with Constable Ombir and his duty hours were 10:00 PM to 6:00 AM and they were on patrolling duty at F Block Sultanpuri, Delhi. PW1 further deposed that at about 10.30 PM one person was sighted inside the F2 Block State vs. Kapil @ Manwa FIR no. 498/19 PS Raj Park Page No. 2/13 Digitally signed MANSI by MANSI MALIK MALIK Date: 2022.10.11 17:07:21 +0530 park Sultanpuri, Delhi and on seeing the police party he tried to escape from there. PW1 further deposed that they chased him and they had apprehended the accused and when they inquired about his name and he revealed his name as Kapil @ Manva. PW1 further deposed that when accused person was searched then buttondar knife was taken out of his right pocket of wearing pant and thereafter, he informed the PS. PW1 further deposed that IO HC Vikas came on the spot and accused along with buttoned knife was handed over to IO and IO recorded his statement which is exhibited as Ex. PW1/A and IO had prepared sketch plan of the knife prior to their seizure which is Ex. PW1/B. PW1 further deposed that IO had prepared pullinda with the help of white cloth and sealed the knife with the seal of "VM" and seized the same vide seizure memo Ex. PW1/C and thereafter IO prepared rukka and sent him to police station along with rukka for lodging of FIR and after getting the case registered he came back to the spot with copy of FIR, original rukka and handed over the same to the IO. PW1 further deposed that IO had prepared site plan at their instance which is Ex. PW1/D and thereafter accused person was arrested vide arrest and personal search memo Ex. PW1/E and Ex.PW1/F. PW1 further deposed that disclosure statement of accused Kapil @ Manva was also recorded by the IO which is Ex. PW1/G and thereafter, the medical examination of the accused was got conducted, they came at PS along with accused and case property and IO had recorded the statement of other witnesses also. The witness correctly identified the accused as well as the case property which is Ex. P1. PW1 was duly cross examined by the Ld. Counsel for the accused.
6. PW2 HC Vikas deposed that on 03.07.2019, he was posted as HC at PS Raj Park and on that day, he received DD No. 53B Ex. PW2/A regarding apprehending of the accused at F Block Sultanpuri, Delhi. And thereafter, he reached at the spot and met Ct. Kapil and Ct. Ombir. PW2 further deposed that accused along with buttoned State vs. Kapil @ Manwa FIR no. 498/19 PS Raj Park Page No. 3/13 Digitally signed by MANSI MANSI MALIK MALIK Date:
2022.10.11 17:07:28 +0530 knife was handed over to him by Ct. Kapil and Ct. Ombir and thereafter, he recorded statement of Ct. Kapil which is Ex. PW1/A and he had prepared sketch plan of the knife prior to their seizure which is Ex. PW1/B. PW2 further deposed that he had prepared pullinda with the help of white cloth and sealed the knife with the seal of "VM" and seized the same vide seizure memo Ex. PW1/C and thereafter he prepared rukka which is Ex. PW2/B and sent Ct. Kapil to police station along with rukka for lodging of FIR and after getting the case registered he came back to the spot with copy of FIR, original rukka and handed over the same him. PW2 further deposed that he had prepared site plan at their instance which is Ex. PW1/D and thereafter accused person was arrested vide arrest and personal search memo Ex. PW1/E and Ex.PW1/F and disclosure statement of accused Kapil @ Manva was also recorded by him which is Ex. PW1/G. PW2 further deposed that thereafter the medical examination of the accused was got conducted and they came at PS along with accused and case property and he had deposited the case property in Malkhana and recorded the statement of witnesses and accused was produced before concerned court from where he was sent to JC and after completion of the investigation, he prepared the chargesheet and filed the same before the concerned court. The witness had correctly identified the accused and the case property Ex.P1. PW2 was duly cross examined by the Ld. Counsel for the accused.
7. PW3 HC Ombir deposed that on 03.07.2019, he was posted as constable at PS Raj Park and he was on patrolling duty with Ct. Kapil and his duty hours were 10:00 PM to 6:00 AM and they were on patrolling duty at F Block Sultanpuri, Delhi. PW3 further deposed that at about 10.30 PM one person was sighted inside the F2 Block park Sultanpuri, Delhi and on seeing the police party he tried to escape from there and they chased him and apprehended the accused. PW3 further deposed that they had inquired about his name and he revealed his name as Kapil @ Manva and when State vs. Kapil @ Manwa FIR no. 498/19 PS Raj Park Page No. 4/13 Digitally signed MANSI by MANSI MALIK MALIK Date: 2022.10.11 17:07:35 +0530 accused person was searched then buttondar knife was taken out of his right pocket of wearing pant and thereafter, Ct. Kapil informed the PS. PW3 further deposed that IO HC Vikas came on the spot and accused along with buttoned knife was handed over to IO and thereafter, IO recorded statement of Ct. Kapil which is Ex. PW1/A. PW3 further deposed that IO had prepared sketch plan of the knife prior to their seizure which is Ex. PW1/B and IO had prepared pullinda with the help of white cloth and sealed the knife with the seal of "VM" and seized the same vide seizure memo Ex. PW1/C. PW3 further deposed that IO prepared rukka and sent Ct. Kapil to police station along with rukka for lodging of FIR and after getting the case registered he came back to the spot with copy of FIR, original rukka and handed over the same to the IO and IO had prepared site plan at their instance which is Ex. PW 1/D and thereafter accused person was arrested vide arrest and personal search memo Ex. PW1/E and Ex.PW1/F. PW3 further deposed that disclosure statement of accused Kapil @ Manva was also recorded by the IO and the same is Ex. PW1/G and thereafter, the medical examination of the accused was got conducted and they came at PS along with accused and case property and IO had recorded the statement of other witnesses also. The witness correctly identified the accused as well as the case property Ex. P1. PW3 was duly cross examined by the Ld. Counsel for the accused.
8. The accused also admitted the genuineness of FIR no. 498/2019 PS Raj Park i.e Mark X, DD No. 43B i.e. Mark X2, Certificate u/s 65B Indian Evidence Act regarding the aforesaid FIR i.e. Mark X3, Endorsement on Rukka i.e. Mark X1 and DAD Notification i.e. Mark X4 u/s 294 Cr.PC, without admitting the contents of the same. In view of the above, witnesses mentioned at serial no. 3 and 5 in the list of prosection witnesses were dropped. Prosecution evidence was thereafter closed on 04.08.2022.
State vs. Kapil @ Manwa FIR no. 498/19 PS Raj Park Page No. 5/13 Digitally signedMANSI by MANSI MALIK MALIK Date:
2022.10.11 17:07:41 +0530
9. Statement of accused person was recorded u/s 313 Cr.PC., wherein all the incriminating evidence was put to the accused, to which he stated that he has been falsely implicated in this case. Further, the accused person did not opt to lead defence evidence and the matter was listed for final arguments.
10. The Court has carefully perused the case record and has heard arguments advanced by Ld. APP for the state as well as by Ld. Defence counsel.
11. Short point for determination before the court is as under "Whether on 03.07.2019 at about 10:30 PM at F2 Block Park, Sultanpuri, Delhi, within the jurisdiction of PS Raj Park, accused Kapil @ Manwa was found in possession of one buttondar knife, without any license or permit?"
12. It is argued by Ld. APP for the state that from the ocular and documentary evidence on record, prosecution has proved beyond reasonable doubt that accused was found in possession of buttondar knife without permit and submitted that accused be convicted of the offence charged.
13. Per contra, it is argued by the Ld. Counsel for the accused that accused is completely innocent and recovery of case property has been falsely implanted upon him. It is further submitted by Ld. Counsel that nonjoinder of public witness despite availability cast shadow of doubt on prosecution story. It is further argued by Ld. Counsel for the accused that tampering with the contents of the sealed parcel cannot be ruled out as seal was not handed to the independent witness. At the end, it is submitted that the prosecution has miserably failed to prove its case beyond State vs. Kapil @ Manwa FIR no. 498/19 PS Raj Park Page No. 6/13 Digitally signed by MANSI MANSI MALIK MALIK Date:
2022.10.11 17:07:47 +0530 reasonable doubt and therefore, the accused is liable to be acquitted of the alleged offence.
14. I have heard the rival submissions and have also carefully gone through the entire material available on record and evidence led on behalf of the prosecution. My findings on the point for determination and brief reasons for the same are now being discussed in following paragraphs.
15. In present case, the prosecution was duty bound to prove the possession of the buttondar knife with the accused. Same is sought to be proved by the recovery memo and testimony of the witnesses. But the manner of conducting inquiry, seizure and search etc. on the spot at the time of arrest of the accused and alleged recovery of buttondar knife in this case, makes the prosecution version highly doubtful. Incident is stated to have happened at about 10:30 PM and it is evident from the testimony of PW1 and PW3 that the accused was apprehended alongwith the alleged unauthorised buttondar knife at a public place but still no public independent person was cited as a witness in this case.
16. The aforesaid observations have been deduced from the testimony of PW1, PW 2 and PW3. As per version of PW2/IO, after apprehension of the accused, public persons were available at the spot. PW2 requested public persons to join the investigation but all the public persons refused to join the same. However, a perusal of the record shows that no written notice was served on the public persons. The said explanation given by PW2 cannot be accepted by the court since, the IO was under obligation to issue notice in writing to the public persons, who refused to join the police investigation particularly in the background when the accused has already been apprehended by the police and there was no apprehension that accused might escape.State vs. Kapil @ Manwa FIR no. 498/19 PS Raj Park Page No. 7/13 Digitally signed by MANSI
MANSI MALIK MALIK Date:
2022.10.11 17:07:53 +0530 Moreover, the IO has not even placed on record the names of the passersby who were asked to join the investigation and neither have any reasons been mentioned by the IO for refusal by the people who were approached to join the investigation. In the facts and circumstances of the case, this court finds that police has not made any sincere effort to join independent public witnesses during investigation. In this regard reliance is being placed on the following judgments: In a case law reported as "Anoop V/s State", 1992 (2) C.C. Cases 314 (HC), Hon'ble High Court of Delhi has observed as under:
"18. It is repeatedly laid down by this Court that 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 evident that no such sincere efforts have been made, particularly when we find that shops were open and one or two shopkeepers 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".
In an case law reported as "Roop Chand V/s The State of Haryana", 1999 (1) C.L.R 69, the Hon'ble 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 asked to join the investigation but they refused to do do 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 Investigation Agency should join independent witnesses at State vs. Kapil @ Manwa FIR no. 498/19 PS Raj Park Page No. 8/13 Digitally signed by MANSI MANSI MALIK MALIK Date:
2022.10.11 17:08:02 +0530 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 he witnesses from the public had refused to to join the investigation, the Investigating Officer must have proceeded against them under the relevant provisions of law. The failure to do so by the police officer is suggestive of the fact that the explanation for nonjoining 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".
In case law reported as "Sadhu Singh V/s State of Punjab", 1997 (3) Crimes 55 the Hon'ble Punjab & Haryana High Court observed as under:
"5. In a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubts. It is for the prosecution to travel the entire distance from may have to must have. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused" "6. In the present case, the State examined two witnesses namely, Harbans Singh ASI who appeared as PW1 and Kartar Singh. PW2. Both the witnesses supported the prosecution version in terms of the recovery of opium from the person of the petitioner, but there was no public witness who had joined. It is not necessary in such recoveries that public witnesses must be joined, but attempt must be made to join the public witnesses. There can be State vs. Kapil @ Manwa FIR no. 498/19 PS Raj Park Page No. 9/13 Digitally signed by MANSI MANSI MALIK Date:
MALIK 2022.10.11 17:08:29 +0530 cases when public witnesses are reluctant to join or are not available. All the same, the prosecution must show a genuine attempt having been made to join a public witness or that they were not available. A stereotype statement of nonavailability will not be sufficient particularly when at the relevant time, it was not difficult to procure the service of public witness. This reflects adversely on the prosecution version".
17. Considering the aforesaid observations made by the Higher Courts, the omissions/ failure on the part of investigating agency to join independent public witnesses create reasonable doubt in the prosecution story. Making bald averments that public persons were asked to join the investigation but none agreed without giving any written notice to them does not inspire the confidence of the Court.
18. The next inconsistency in the case of the prosecution is the failure to prove the arrival and departure entries of the police officials. It is pertinent to mention that the present case rests entirely on the alleged recovery of case property, i.e. knife from the possession of the accused at the relevant time by the police officials who were on patrolling duty at the relevant time and place, as per the prosecution story. Police officials are under a statutory duty to mark their departure and arrival in the register kept in the police station for above purpose as per the Punjab Police Rules. It is relevant here to reproduce Chapter 22 Rule 49 of the Punjab Police Rules, 1934, which 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 or elsewhere, with a statement of the nature of their duty. This entry shall be made immediately on arrival or prior to the departure of the officer concerned and shall be attested by the State vs. Kapil @ Manwa FIR no. 498/19 PS Raj Park Page No. 10/13 Digitally signed by MANSI MANSI MALIK Date:
MALIK 2022.10.11 17:08:35 +0530 latter personally by signature or seal."
19. Since public persons were not joined in the investigation, the departure entry of the aforesaid police officials who were allegedly on patrolling duty at the relevant time and had apprehended the accused with case property becomes a vital piece of evidence. In the case in hand neither the departure entry nor arrival entry was proved by prosecution, however, proof of the said entry is indispensable as the present case rests solely on the alleged recovery made by the aforesaid police official. Therefore, the failure to prove the aforementioned entries casts a doubt on the story of the prosecution.
20. Further, as per evidence on record, it is not clear to whom the seal was handed over after seizure of the case property, keeping view this factum, chances of fabrication of case property cannot be ruled out. Moreover, no seal handing over memo is also on record. Hence, considering the legal position, the benefit of doubt should be given to the accused, as tampering with case property in such a scenario cannot be ruled out. Reliance is placed on the judgment of Ramji Singh Vs. State of Haryana 2007 (3) R.C.C. (Criminal) 452, wherein it is held that "7. The very purpose of giving seal to an independent person is to avoid tampering of the case property. It is well settled that till the case property is not dispatched to the forensic science laboratory, the seal should not be available to the prosecuting agency and in the absence of such a safeguard the possibility of seal, contraband and the samples being tampered with cannot be ruled out."
Similarly, Hon'ble Delhi High Court in Safiullah v. State, 1993 (1) RCR (Criminal) 622, held that "10. The seals after use were kept by the police officials themselves. Therefore State vs. Kapil @ Manwa FIR no. 498/19 PS Raj Park Page No. 11/13 MANSI Digitally signed by MANSI MALIK Date: 2022.10.11 MALIK 17:08:41 +0530 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."
21. From the aforesaid discussion, it is very clear that the manner in which the inquiry, seizure and search etc. has been conducted on the spot at the time of alleged recovery of weapon, makes the prosecution version highly doubtful. At this stage, it would also be worthwhile to refer to the judgment of Hon'ble Supreme Court in Sar wan Singh vs State of Punjab (AIR 1957 SC 637) regarding the nature of burden of proof on the prosecution to prove its case. The ratio of this judgment is applied with the same vigour even after passing of more than 50 years. It was held in this case that: "There may also be an element of truth in the prosecution story against the ac cused. Considered as a whole, the prosecution story may be true; but between 'may be true' and 'must be true' there is inevitably a long distance to travel and the whole of this distance must be covered by the prosecution by legal, reliable and unimpeach able evidence before an accused can be convicted." Again in Jagdish Prasad vs State (Govt Of NCT Of Delhi) 2011 (9) LRC 206 (Del), the Hon'ble High of Delhi had observed that "It is well settled that in a criminal case, in order to bring home the guilt of the accused, the prosecution is required to establish the guilt beyond a shadow of reasonable doubt. If, on consideration of the prosecution evidence, a rea sonable doubt remains in respect of culpability of the accused, he is entitled to bene fit of doubt.
22. In view of the above discussion, this Court is of considered view that in the present case the prosecution has failed to prove its case against the accused Kapil @ State vs. Kapil @ Manwa FIR no. 498/19 PS Raj Park Page No. 12/13 Digitally signed by MANSI MANSI MALIK MALIK Date:
2022.10.11 17:08:48 +0530 Manwa beyond reasonable doubt. Accordingly, the accused Kapil @ Manwa is acquitted for the offence punishable u/s 25 Arms Act.
23. Bail bonds u/s 437A of CrPC are to be furnished which would remain valid for a period of six months.
Digitally
signed by
MANSI
MANSI MALIK
Announced in open Court (MANSI
MALIKMALIK)Date:
2022.10.11
on 11rd Day of October, 2022 Metropolitan Magistrate03,
17:08:53
+0530
NorthWest, Rohini, Delhi
State vs. Kapil @ Manwa FIR no. 498/19 PS Raj Park Page No. 13/13