Delhi District Court
State vs . Amit @ Amita on 18 August, 2022
IN THE COURT OF MS. ALKA SINGH
METROPOLITAN MAGISTRATE-08
(SOUTH-WEST), DWARKA COURTS, DELHI
DLSW020513722019
IN THE MATTER OF :
State Vs. Amit @ Amita
FIR No.495/2019
PS : Uttam Nagar
U/s 25 Arms Act
Date of Institution : 01.10.2019
Date of Judgment : 18.08.2022
JUDGMENT
1. Serial No. of the case : 16915/2019
2. Name of the Complainant : Const. Kuldeep Brajlal, No.1001/DW
PS Uttam Nagar
3. Date of commission of offence : 10.08.2019
4. Name of accused person : Amit @ Amita S/o Sh. Munesh R/o H.No.180, T-Camp, Krishna Colony, Hastsal, Uttam Nagar, Delhi.
5. Offence charged : U/s 25 Arms Act
6. Plea of accused persons : Not guilty
7. Final Order : ACQUITTAL FIR No.495/19 State vs Amit @ Amita Digitally U/s 25 Arms Act, PS Uttam Nagar signed by Pages 1 of 7 ALKA ALKA SINGH Date:
SINGH 2022.08.18 15:24:37 +0530 BRIEF REASONS FOR ORDER:
1. The prosecution has presented this police report against accused Amit @ Amita to face trial with the allegations that on 10.08.2019 at about 10:35AM, at DDA Flats, Hastsal, near Shiv Vihar, Ganda Nala, Uttam Nagar, within the jurisdiction of PS Uttam Nagar, accused was found in possession of one button actuated knife having total length of 32.5 cms and length and the width of blade measuring 16.5 cms. and 4 cms respectively without any licence or permit in contravention of notification issued by Delhi Administration and thereby alleged to have committed an offence under Section 25 Arms Act.
2. Upon completion of investigation charge sheet U/s 173 Cr. P.C. was filed on behalf of the IO and the accused was consequently summoned. A formal charge U/s 25 Arms Act was framed against the accused on 03.12.2019 to which he pleaded not guilty and claimed trial.
3. In order to substantiate the allegations, two witnesses have been examined on behalf of the prosecution.
4. PW1 Ct. Kuldeep deposed that on 10.08.2019, while he was on beat patrolling duty in beat no.3 vide DD no.21B Mark A. During patrolling, he reached DDA Flats at about 10:30 to 10:35 AM and saw one person, who was coming from Nala side towards LIG Flats and upon seeing him, he turned away and started walking briskly, therefore, upon suspicion he was apprehended. He stated that he disclosed his name as Amit @ Amita and upon a cursory search of the accused, from the right side of his worn pant, one long button actuated knife was recovered. He further deposed that an information regarding the same was given to the police station and after FIR No.495/19 State vs Amit @ Amita Digitally U/s 25 Arms Act, PS Uttam Nagar signed by Pages 2 of 7 ALKA ALKA SINGH SINGH Date:
2022.08.18 15:24:51 +0530 about 10-15 minutes, IO HC Ashok Kumar arrived at the spot and he handed over the accused to him. The witness also described the particulars of the knife. Thereafter, the witness described the investigation carried out by the IO such as recording of his statement Ex. PW1/A, preparing of the sketch of the knife Ex. PW1/B and preparing the seizure memo of the knife which was kept in the pullanda Ex. PW1/C. It was also deposed by him that IO prepared the tehrir and gave it to him for registration of FIR, whereafter, he got the FIR registered and handed over the tehrir back to the IO. He further deposed that accused was arrested vide arrest memo Ex. PW1/D and his personal search memo was Ex. PW1/E. The site plan Ex. PW1/F was also prepared by the IO. Thereafter, the case property was deposited in the malkhana. Upon production of the case property i.e. one knife, by the MHC(M) which was contained sealed pullanda bearing the seal of AK, was identified by the witness and was Ex. P-1. In his cross examination, he was generally questioned regarding the distance and conveyance used by him for reaching the LIG Flats and the time when he so reached. It was also deposed by him that he asked 2-3 public persons to join the investigation but none agreed and he did not serve any notice to any public person to make them join the investigation. All the adverse suggestions were denied by the witness.
5. As PW2 HC Ashok Kumar was examined, who also deposed the same facts as PW1 and stated that he received the information vide DD no.24B Ex.
PW2/A and reached at the place of incident, where one person with knife was apprehended by Ct. Kuldeep near DDA Flats (accused was correctly identified by the witness). The witness also correctly identified the case property produced by the MHC(M). He was also cross examined on the similar lines as that of PW1 and all the suggestions of the defence counsel having adverse inferences were denied by the witness.
FIR No.495/19 State vs Amit @ Amita Digitally U/s 25 Arms Act, PS Uttam Nagar signed by Pages 3 of 7 ALKA ALKA SINGH SINGH Date: 2022.08.18 15:25:12 +0530
6. Accused admitted the recording/ genuineness of the FIR Ex.A2 and the DAD notification Ex. A1 and therefore their formal proof was dispensed with in terms of section 294 Cr.P.C.
7. PE was closed vide date order dated 10.02.2020. Statement of accused u/s 313 Cr.P.C was recorded wherein he refuted the allegations and stated that some beat officials came to him and informed him that his parole period has expired and took him into the custody. It was also claimed by him that he was thereafter sent to jail and false recovery was implanted upon him. The accused pleaded innocence and chose to lead defence evidence but did not examine any witness and therefore, opportunity for leading defence evidence was closed on 21.07.2022.
8. Matter was then fixed for final arguments.
9. Final arguments were thereafter heard on behalf of state as well as the accused on 29.07.2022.
10. Submissions so advanced have been considered and case file has been perused meticulously.
11. In a criminal trial, the onus remains on the prosecution to prove the guilt of accused beyond all reasonable doubts and benefit of doubt, if any, must necessarily go in favour of the accused. 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.
12. As per the prosecution case, sketch memo of the knife Ex.PW1/B and seizure memo Ex. PW1/C were prepared before the recording of tehrir.
FIR No.495/19State vs Amit @ Amita U/s 25 Arms Act, PS Uttam Nagar Digitally signed by Pages 4 of 7 ALKA ALKA SINGH SINGH Date:
2022.08.18 15:25:28 +0530 However, the said documents would show that they contained the number of the FIR. It shows the serious infirmity in the case of prosecution as either the number of the FIR was inserted later on or that it was prepared before the time it has been shown to has been prepared. Be that as it may the same creates a reasonable doubt in the story of prosecution. The reliance is placed on the judgment of Giri Raj Vs. State 83 (2000) DLT 201, Mohd. Hashim, Appellant Vs. State, 2000 CRI.L.J. 1510, Pawan Kumar Vs. Delhi Administration, 1987 CCC 585 and Mewa Ram Vs. State 2000 CRI.L.J. 114.
13. As per the case of the prosecution, the seal after use was given to Const. Kuldeep who himself was the complainant as well as a police official and was not given to any independent public person which creates a doubt on the case property as whether the same were intact and not tampered with. In the judgment of Ramji Singh Vs. State of Haryana 2007 (3) R.C.R. (Criminal) 452, the Hon'ble Punjab and Haryana High Court held in Para 7 as :
"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".
14. Further it was held in Rajesh Jagdamba Avasthi Vs. State of Goa (2005) 9 SCC 773, in para 15 of the judgment in this regard the Hon'ble Supreme Court held as under:
"15 .......................... In these circumstances there is justification in the argument that since the seal as well as the packets remained in the custody of the same person, there was every possibility of the seized substance being tempered with, and that is the only hypothesis on which FIR No.495/19 State vs Amit @ Amita Digitally U/s 25 Arms Act, PS Uttam Nagar signed by Pages 5 of 7 ALKA ALKA SINGH SINGH Date:
2022.08.18 15:25:41 +0530 the discrepancy in weight can be explained. The least that can be said in the facts of the case is that there is serious doubt about the truthfulness of the prosecution case".
15. Chapter 22 Rule 49 of Punjab Police Rules, 1934, provides that 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 shall be entered vide a separate entry and this entry shall be made immediately on arrival or prior to the departure of the officer concerned and shall be attested by the latter personality by signature or seal. In the present case, no departure or the arrival entry has been proved on the record by the prosecution. In absence of the departure and arrival entry of the police officials their presence at the spot cannot be believed. Reference can be made to on Rattan Lal Vs. State 1987 (2) Crimes 29.
16. In the present case, as per PW1 & PW2, public persons were requested to join but none of them agreed. However, no written notice was served upon them to join the proceedings in the present case or to face action U/sec. 187 IPC. Therefore it is clear that sincere efforts were not made to join independent witnesses despite their availability which causes a serious dent in the story of the prosecution.
17. In a case law reported as Anoop Joshi V/s State, 1992 (2) C.C. Cases 314 (HC), Hon'ble High Court of Delhi has observed as under:-
'' 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 FIR No.495/19 State vs Amit @ Amita Digitally U/s 25 Arms Act, PS Uttam Nagar signed by Pages 6 of 7 ALKA ALKA SINGH SINGH Date:
2022.08.18 15:25:58 +0530 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''.
18. In view of the aforesaid discussion, this Court is of the considered opinion that the complainant has failed to prove its case beyond all reasonable shadow of doubts and the benefit of doubt ought to be granted to accused, who is entitled to be exonerated of the charge against him in the present case. Accordingly, accused Amit @ Amita S/o Sh. Munesh is hereby acquitted for the offence punishable under Section 25 Arms Act.
19. Ordered Accordingly.
Pronounced on this Day of 18th of August, 2022.
This judgment consists of 07 signed pages. Digitally signed
ALKA by ALKA SINGH
Date:
SINGH 2022.08.18
15:26:12 +0530
(ALKA SINGH)
Metropolitan Magistrate-08/South-West Dwarka Courts: New Delhi FIR No.495/19 State vs Amit @ Amita U/s 25 Arms Act, PS Uttam Nagar Pages 7 of 7