Delhi District Court
State vs Sachin Sethi on 7 April, 2025
IN THE COURT OF RISHABH KAPOOR, JUDICIAL MAGISTRATE FIRST
CLASS -05 SOUTH WEST DISTRICT, DWARKA COURTS: DELHI
State Vs. : Sachin Sethi Digitally signed
by RISHABH
FIR No : 161/05 RISHABH KAPOOR
Date:
KAPOOR 2025.04.07
U/s : 25 Arms Act and Section 174A IPC 15:19:46
+0100
P.S. : Vikas Puri
JUDGMENT:
1. Criminal Case No. : 12129/19 2. Date of commission of offences : 29.03.2005 and 09.07.2008. 3. Date of institution of the case : 28.04.2005 4. Name of the complainant : State
5. Name and parentage of accused : Sachin Sethi s/o Sh. Jagdish Sethi
6. Offense complained or proved : 25 Arms Act Section 174A IPC
7. Plea of the accused : Pleaded not guilty
8. Date on which order was reserved : 07.03.2025
9. Final order : Acquitted for offence u/s 25 Arms Act and Convicted for offence u/s 174A IPC
10. Date of final order : 07.04.2025
1. The accused is facing trial for offences u/s 25 of Arms Act and Section 174A IPC. The genesis of the prosecution story is that on 29.03.2005 at about 2:30 PM at near Ganda Nala, Water Treatment Plant Vikas Puri, Delhi when the police team comprising Ct. Devender and Ct. Satbir were checking the vehicles, they saw one State Vs. Sachin Sethi FIR No : 161/05 U/s:25 Arms Act and Section 174A IPC P.S. Vikas Puri 1 motorcycle bearing no. HR-26S-5907 whose number was not legible and thereafter, the rider of the motorcycle was stopped whose name was revealed as Sachin Sethi @ Bheema. The afore-named person could not give any satisfactory reply with respect to the motorcycle and on the basis of suspicion, his cursory search was made, upon which he was found in possession of one button actuated knife. The information was accordingly sent to PS Vikas Puri and pursuant thereto, SI Sukhdev Meena was deputed to conduct the investigation. The weapon was seized by the police and the accused was also arrested after compliance of the codal formalities. The accused was sent to custody and was admitted to bail. After completion of investigation, charge-sheet for trial of accused Sachin Sethi for the alleged offence u/s 25 Arms Act was submitted in the Court.
2. Thereafter, the cognizance of the offence was taken by the Court and on the basis of material available on record, the charge for offence u/s 25 Arms Act was framed against accused on 28.04.2005 to which he pleaded not guilty and claimed trial. The accused absconded from the process of law and pursuant to issuance of proceedings u/s 82 Cr. PC, the accused was declared an absconder vide order dated 09.07.2008. The accused was thereafter apprehended on 13.11.2018 and was remanded to JC. Subsequently, the accused was admitted to bail on 30.11.2018 and the matter proceeded further. The additional charge for offence u/s 174A IPC was framed against accused on 24.10.2019 to which he pleaded not guilty and claimed trial.
3. In order to establish guilt of the accused, the prosecution has examined eight State Vs. Sachin Sethi FIR No : 161/05 U/s:25 Arms Act and Section 174A IPC P.S. Vikas Puri 2 witnesses in all. After prosecution evidence, the statement of accused u/s 313 Cr.P.C was recorded wherein all the incriminating circumstances were put to the accused. The accused did not lead any evidence in his defence.
4. Ld. APP for State has contended that the prosecution has established the guilt of the accused beyond all reasonable doubts with the help of coherent testimonies of the prosecution witnesses, therefore, the accused deserves to be convicted for the alleged offence.
5. Per contra, Ld. Counsel for accused has contended that the accused has been falsely implicated in the present case. It is also contended that the alleged recovery of weapon was planted on the accused. It is also contended that the fact the police has failed to join in any public person during investigation of the case is self-explanatory that the accused has been falsely implicated in the present case. With these submissions, prayer has been made for acquittal of accused in the present case.
6. Prior to delving into the merits of contentions advanced on behalf of parties, let us briefly discuss the testimonies of the material witnesses in brief. PW-1 ASI Ram Kishan is a formal witness who has deposed that on 29.03.2005 pursuant to receiving rukka through Ct. Satbir, he registered FIR Ex PW 1/A vide endorsement on rukka Ex. PW 1/B. PW-2 Ct. Devender deposed that on 29.03.2005, when he alongwith Ct. Satbir was checking the vehicles at the spot then at about 2:30 PM, one motorcycle no. HR -26S-5907 came there and its number was not visible. The rider of the State Vs. Sachin Sethi FIR No : 161/05 U/s:25 Arms Act and Section 174A IPC P.S. Vikas Puri 3 motorcycle was stopped and his name was revealed as Sachin Sethi. He further deposed that on inquiry, the rider of the motorcycle could not give any satisfactory reply upon which his cursory search was made on the basis of suspicion and he was found in possession of one buttondar knife. He further deposed that thereafter, he informed the Police Station about the said incident pursuant to which, SI Sukhdev Meena came to the spot and to whom they handed over the custody of the accused alongwith case property and thereafter, IO recorded his statement Ex. PW 2/A, prepared the draft sketch of knife Ex. PW 2/B. He further deposed that the knife was placed by the IO/SI Sukhdev Meena in a cloth pullanda and same was sealed with seal of "SSN" which was handed over to him after its use. He further deposed that thereafter the knife was seized vide seizure memo Ex. PW 2/C. He further deposed that during investigation, IO arrested accused vide arrest memo vide Ex. PW 2/D and his persons search was conducted vide memo Ex. PW 2/E. This witness correctly identified the accused in the Court PW-3 Ct. Satbir is the other member of police patrolling team which allegedly apprehended the accused with the button actuated knife. His testimony is same as that of PW-2 and hence, same is not being reproduced to avoid repetition. Through him, seizure memo of motorcycle no. HR-26S-5907 was exhibited as Ex. PW 3/A. Additionally, he deposed that accused got recovered one scooty bearing no. DL-4S- 4516 which was seized vide memo Ex. PW 3/B and during the investigation, the disclosure statement of accused Ex. PW 3/C was also recorded by the IO. The witness also correctly identified the accused as well as the case property. During his cross-examination, he could not state whether any notice for joining investigation was served to the public persons by the IO or not.
PW-4 ACP Sukhdev Meena was the IO in present case. He also deposed on same lines as that of PW-1 and explained about the proceedings of investigation conducted by him. He additionally proved site plan Ex. PW 4/A. During his cross- examination, he denied that the recovery of the case property was planted upon the accused.
PW 5 Retired SI Krishan Chander has deposed that he was entrusted with the process u/s 82 Cr. PC which was issued against accused and pursuant thereto, he went to Holi Chowk Hastsal Vihar for execution of the same, where he met one State Vs. Sachin Sethi FIR No : 161/05 U/s:25 Arms Act and Section 174A IPC P.S. Vikas Puri 4 person Vijay Kumar who informed him that the given address was incomplete and no person with the name of accused was residing at Holi Chowk. Thereafter, he recorded the statements of one Ashok and one Vijay Kumar who were the residents of Holi Chowk and prepared his report which is already Ex. CW 1/B. During his cross-examination, he stated that the address of the accused as mentioned on the process was incorrect/ incomplete and such fact was informed by him to the court.
PW 6 HC Ravikant deposed that on 13.11.2018, he received information qua the arrest of accused vide DD no. 29 B and thereafter, he collected kalandara which was filed at the time of arrest of accused and filed the supplementary final report in the court.
PW-7 ASI Sanej Kumar deposed that on 13.11.2018, he along with HC Krishan Rathi went for searching POs in the area of Uttam Nagar and they received a secret information qua accused Sachin, who was PO in the present case FIR. Thereafter, they both went to Nawada in Factory no. 4 along with secret informer and at about 12:30 PM, the accused arrived there. Thereafter, the accused was apprehended vide arrest memo as Ex. PW 7/A. He also deposed that personal search of accused was conducted vide memo Ex. PW 7/B. PW-8 ASI Krishan is the other police official who accompanied PW-7 at the time of his apprehension on 13.11.2018 and he also deposed on same lines as that of PW-7, hence his entire testimony is not being reproduced to avoid repetition. During his cross examination, he denied that the accused was never arrested or that his arrest memo was prepared at PS at the instance of IO. 7 This is the entire evidence on the case record.
8. The allegations against accused are that on 29.03.2005 at about 2:30 PM at Ganda Nala near Water Treatment Plant, Vikas Puri, Delhi, accused was found in possession of one button actuated knife (total length 23.9 cm, length of blade 10.5 cm and length of handle 13.4 cm) in contravention of notification issued by Delhi Administration, thereby constituting offence u/s 25 Arms act. The allegations are State Vs. Sachin Sethi FIR No : 161/05 U/s:25 Arms Act and Section 174A IPC P.S. Vikas Puri 5 also to the extent that during the course of the pendency of present case proceedings, the accused absconded from the process of law, as a result of which he was declared as an absconder vide order dated 09.07.2008 and thereby constituting an offence u/s 174A IPC.
9. So far as the allegations leveled against accused qua offence u/s 25 Arms Act are concerned, the mere perusal of testimony of prosecution witnesses would reflect that during the time when the alleged button actuated knife was recovered from accused, public persons might have been present at the spot. The mere perusal of site plan Ex. PW4/A also confirms that the spot of occurrence is surrounded by well populated area and hence, the public persons might have been present there. Therefore, it was incumbent on the part of IO to join the public persons in the investigation of the case but surprisingly, no such person was associated in the investigation for the reasons unexplained. The testimony of PW-2 and PW 3 reflects that the team of police remained present at the spot for considerable time period but no sincere efforts appear to have been made by the IO to join the independent public persons in the investigation proceedings during such time. Surprisingly, PW-2 and PW-3 did not utter a single word regarding any sort of efforts made by them or IO to associate the public persons to witness the search and seizure proceedings. There is no justification given by the PW-2 and PW-3 as to why they did not join any public persons for witnessing the proceedings during which the knife was allegedly recovered from accused. Assumingly, the public persons who were present at the spot refused to join the investigation of the case but in such scenario also, both the above-named witnesses as well as IO were State Vs. Sachin Sethi FIR No : 161/05 U/s:25 Arms Act and Section 174A IPC P.S. Vikas Puri 6 having remedies available in law to proceed against said public persons but such course has not been adopted by the IO for the reasons best known to him. Even the sample seal which was stated to be used by the IO in sealing the alleged button actuated knife, has not seen the light of the day. No explanation has been offered by the prosecution as to whom the seal of Mark "SSN" belonged. Neither PW-2 and PW-3 nor IO/ACP Sukhdev Meena have deposed anything regarding the handing over of seal to any of the independent witnesses after its use. Thus, the seal was not handed over to any independent witness. There is nothing on record to suggest that IO had made efforts to handover the seal to any independent witness. Further, no handing over memo is on record to show the genuineness of fact of actual handing over of seal by IO to any of the independent witnesses. Assumingly, IO had handed over the seal to some independent person after its use, still there is no taking over memo on record to show as to when the seal was taken back by IO or if it remained with him forever. The contradictions in the versions of the above named PWs hints that the custody of sample seal was breached. In such a factual backdrop, the possibility of tampering with the case property cannot be ruled out. Moreover, it is not even the case of the prosecution that the seal was not within the reach of the IO and thus, there was no scope of tampering of case property. In this regard, judgment in case titled as Ramji Singh Vs. State of Haryana 2007 (3) RCR (CRIMINAL) 452, may be adverted to, wherein it was observed in paragraph 7 that:
"....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 State Vs. Sachin Sethi FIR No : 161/05 U/s:25 Arms Act and Section 174A IPC P.S. Vikas Puri 7 and the samples being tampered with cannot be ruled out. In the present case, the seal of Investigating Officer-Hoshiar Singh bearing impression HS was available with Maha Singh, a junior police official and that of Deputy Superintendent of Police remained with Deputy Superintendent of Police himself. Therefore, the possibility of tampering with seals as well as seized contraband and samples cannot be ruled out."
10. Similarly, Hon'ble High Court of Delhi in Safiullah v. State, (1993) 49 DLT 193, had observed:
"9. ... The seal after use were kept by the police officials themselves therefore the possibility of tempering 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 tempered with. The prosecution could have proved from the CFSL form itself and from the road certificate as to what articles were taken from the Malkahana. Once a doubt is created in the preservation of the sample the benefit of the same should go to the accused..."....
11. It is nowhere the case of the prosecution that the seal after use was handed over to the independent witness, therefore, the conclusion which can be arrived at is that the seal remained with the Investigating Officer or with the other member of the raiding party therefore the possibility of interference or tempering of the seal and the contents of the parcel cannot be ruled out.
12. Thus, in light of the aforesaid discussion, the possibility of misuse of seal and tampering of case property cannot be ruled out. The above discrepancies pointed out in the versions of prosecution witnesses coupled with the omissions on the part of IO, casts doubt on the fairness of the investigation conducted by the police and State Vs. Sachin Sethi FIR No : 161/05 U/s:25 Arms Act and Section 174A IPC P.S. Vikas Puri 8 gives strength to the version of the accused that he has been falsely implicated in the present case by planting recovery on him.
13. It was incumbent on the part of prosecution to establish the recovery of the alleged button actuated knife from the possession of accused Sachin with some cogent and reliable evidence so as to fix the liability of accused for the alleged offence. It is worthwhile to mention that no independent public persons were cited as witnesses to the alleged recovery of the button actuated knife from the possession of accused Sachin. Section 100(4) Cr.P.C. casts a duty upon the police to call upon two or more independent public persons of the locality in which the place of search is situated. It is also incumbent on the part of police to make such independent public persons a witness to the search which has to be conducted by the police. The police however, failed to join upon the independent public persons at the time when the search of accused was made, despite availability of said public persons on the spot. These facts further casts serious doubts on the version of prosecution and also create doubts on the credence of the search proceedings of accused during which the recovery of alleged button actuated knife has been stated to be affected.
14. In view of the forgoing discussion made above, this Court is of the considered view that the prosecution has failed to establish beyond all reasonable doubts that on the given date, time and place accused Sachin was found in possession of one button actuated knife in contravention of notification issued by Delhi Administration, therefore, the accused deserves to be acquitted for the State Vs. Sachin Sethi FIR No : 161/05 U/s:25 Arms Act and Section 174A IPC P.S. Vikas Puri 9 alleged offence in question. The accused Sachin Sethi is accordingly acquitted for offence u/s 25 Arms Act.
15. So far as the liability of accused for offence u/s 174A IPC is concerned, it is pertinent to mention herein that the accused Sachin Sethi was declared an absconder vide order dated 09.07.2008. Further, the prosecution has examined PW-5, PW-6, PW-7 and PW-8 to bring home the guilt of accused for offence u/s 174A IPC. It has inter-alia been argued by Ld. Counsel for accused that as per the testimony of PW -5 Retired SI Krishan Chander, who was the process server entrusted with the task of execution of process u/s 82 Cr. PC against accused, that when he went to the vicinity where the address of accused was stated to be located, he transpired that such address was incomplete and the accused was not living there, hence, the further publication of such process u/s 82 Cr. PC. at the given vicinity was not proper, therefore, no knowledge can be imputed upon the accused qua such proclamation and hence, he cannot be held liable for offence u/s 174A IPC. It is an undisputed fact that during his deposition as PW-5, Process Server Retired SI Krishan Chander has stated that when he went to the vicinity of the residence of accused i.e. Holi Chowk Hastsal, he transpired the fact that the given address was incomplete. Pertinently, the record would reflect that at the time of the arrest of accused on 29.03.2005, the accused disclosed his address as Holi Chowk Hastsal Vihar, Uttam Nagar and same was duly incorporated in the arrest memo as well as personal search memo of accused which are Ex. PW 2/D and Ex. PW 2/E respectively. It is also evident from the record that on being admitted to bail vide order dated 04.06.2005, the accused furnished the personal bonds wherein State Vs. Sachin Sethi FIR No : 161/05 U/s:25 Arms Act and Section 174A IPC P.S. Vikas Puri 10 the address mentioned as Holi Chowk, Hastsal Vihar Uttam Nagar, Delhi. The accused has never raised any dispute qua his aforesaid address during the course of the proceedings of the case which were conducted before he was declared as an absconder. It can well be inferred from the record that the aforesaid address of Holi Chowk, Hastsal Vihar, Uttam Nagar was disclosed by the accused at the time of his arrest and that such disclosure of the accused qua his address was either wrong or that he failed to intimate the court qua the change of his address subsequently. Be the case as it may, the accused is estopped from raising the plea that the process u/s 82 Cr. PC issued against him was not executed in a proper manner due to the aforesaid discrepancy in his address and rather, as per section 82 (3) Cr. PC, once an order declaring accused as an absconder is passed, it is a conclusive piece of evidence with respect to the due publication of the proceedings u/s 82 Cr. PC. Therefore, argument raised by Ld. Counsel for accused is not sustainable. In the considered view of this court, the prosecution has successfully proved its case for offence u/s 174A IPC through the testimonies of PW-5, PW-6, PW-7 and PW-8, hence, the accused deserves to be convicted for the offence u/s 174 A IPC.
16. Ergo, the accused Sachin Sethi is hereby acquitted for offence u/s 25 Arms Act. However, the accused is convicted for offence u/ 174A IPC.
17. Let the accused be heard separately on the point of sentencing. Announced in the open court on of 07.04.2025 (Rishabh Kapoor) State Vs. Sachin Sethi FIR No : 161/05 U/s:25 Arms Act and Section 174A IPC P.S. Vikas Puri 11 Judicial Magistrate First Class-05 (South-West)/Dwarka 07.04.2025 State Vs. Sachin Sethi FIR No : 161/05 U/s:25 Arms Act and Section 174A IPC P.S. Vikas Puri 12