Delhi District Court
State vs Aashu on 21 October, 2023
IN THE COURT OF MS. BHARTI BENIWAL, METROPOLITAN
MAGISTRATE-11, DWARKA COURT, NEW DELHI
FIR No.52/2023
PS Janakpuri
State Vs. Aashu
U/s 25/54/59 Arms Act
CNR No. : DLSW020144102021
Cr Case No. : 2831/2023
Date of institution of the case : 10.03.2023
Date of commission of offence : 07.02.2023
Name of the complainant : HC Mukesh Kumar
Name of accused and address : Aashu
S/o Sh.Ramesh
R/o RZM-47/61, Gali No.-
04, Vijay Enclave, Dabri
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 : 21.10.2023
FIR No.52/2023
State vs. Aashu Page No. 1 of 16
JUDGMENT
1. The brief facts of the case of the prosecution are that on 07.02.2023 at about 10 : 20 P.M. near Jeevan Park, Bus Stop Service Lane Pankha Road, Janakpuri, Delhi, accused Aashu 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 3 witnesses to prove its case.
4. The prosecution examined HC Anil as PW1. He was IO of the case and deposed that on 07.02.2023, he received DD No.116A regarding apprehension of accused person. It was informed that the said person was in possession of a buttondar knife at service Road of Pankha Road near Jeewan Park. DD No.116A is Ex.P/1/D. He reached at the spot at about 10 : 50 PM, where he meet with HC Mukesh and Ct.Ram Karan. They produced one apprehended person namely, Aashu and one button operated knife found in his possession. Accused was present and was correctly identified by witness. He put the knife on white paper and prepared its sketch memo Ex.PW1/A bearing his FIR No.52/2023 State vs. Aashu Page No. 2 of 16 signatures at point A. Total length of the knife was 23.5 cm, length of blade was 10.5 cm and length of handle was 13 cm. He kept knife in white cloth pullanda. Pullanda was sealed with seal of MK. He handed over used seal to Ct.Ram Karan. He seized the pullanda vide seizure memo Ex.PW1/B bearing his signatures at point A. He also seized one scooty DL11SH0163 found in possession of accused, under Section 102 CrPC vide seizure memo Ex.PW1/B1 bearing his signature at point A. Thereafter, he recorded the statement of HC Mukesh. Same is Ex.PW1/C bearing his signatures at point A. He prepared rukka Ex.PW1/D bearing his signatures at point A. He handed over rukka to Ct.Ram Karan for registration of FIR. He went to PS and got registered the FIR. He returned back at the spot and handed over the copy of FIR and original rukka to him. Thereafter, he prepared site plan Ex.PW1/E bearing his signature at point A. He arrested the accused vide memo Ex.PW1/F bearing his signature at point A. Personal search of accused was conducted vide memo Ex.PW1/G bearing his signature at point A. He recorded disclosure statement of accused which is Ex.PW1/H bearing his signatures at point A. He recorded supplementary statement of HC Mukesh and statement of Ct.Ram Karan u/s 161 CrPC. MHC(M) produced one pullanda having seal of MK. Seal was removed and pullanda opened. One button operated knife was taken out from the pullanda. Same is correctly identified by the witness. Case property is Ex.P.
5. Witness was cross examined at length by ld. Defence counsel wherein witness stated that he received DD No.116A at FIR No.52/2023 State vs. Aashu Page No. 3 of 16 about 10 : 37 PM. It was personally informed by the DO. He immediately left the PS and reached at the spot at about 10 : 50 PM on his personal motorcycle. Distance of the PS and the spot is about 1 and half and 2 kms. That there was a road and person and vehicles were passing from the road. He had requested from the public persons available at the spot to join the investigation but none agreed. He admitted that he did not serve any written notice to them. He also did not note down their name and address. He had not collected any memo from Ct.Ram Karan and HC Mukesh regarding making there offer for search to accused prior to taking search of accused. He did not remember the time when he prepared rukka. Prior to sending the rukka, he had prepared sketch memo and seizure memo of case property. Ct.Ram Karan returned at the spot at about 12 AM. He remained present at the spot till 1 to 01 : 15 AM. He gave telephonic information of arrest of accused to his father. Witness denied the suggestion that he did not visit at the spot and conducted all proceedings while sitting in the PS.
6. The prosecution examined HC Mukesh as PW2. PW2 is complainant in the present case. He deposed that on 07.02.2023, he alongwith Ct.Ram Karan was on patrolling duty in beat no.2 at Pankha Road, Janakpuri. During their patrolling duty, they reached near Jeewan Park Bus Stand Service Lane, Pankha Road at about 10 : 20 PM, there they saw that one person was riding on scooty without helmet and he was driving his scooty on wrong side. After seeing them in police uniform, he FIR No.52/2023 State vs. Aashu Page No. 4 of 16 suddenly turned back his scooty and started to flee in their opposite direction. On suspicion, they chased him and apprehended after running 50 mtrs. On cursory search of said person, one button operated knife was recovered from right pocket of the pant of accused. He could not give justification of possessing the knife. Thereafter, his name was revealed as Aashu, who was present in the court and he was correctly identified by witness. He gave telephonic information to Duty Officer of PS Janakpuri. PW1/HC Anil came from the PS. They handed over custody of accused to IO and also handed over the recovered knife to him. IO put knife on white paper and prepared its sketch memo Ex.PW1/A bearing his signature at point B. Total length of the knife was 23.5 cm, length of blade was 10.5 cm and length of handle was 13 cm. IO kept knife in white cloth pullanda. Pullanda was sealed with seal of MK. IO handed over used seal to Ct.Ram Karan. IO seized the pullanda vide seizure memo Ex.PW1/B bearing his signature at point B. IO also seized one scooty DL11SH0163 found in possession of accused, under Section 102 CrPC vide seizure memo Ex.PW1/B1 bearing his signature at point B. Thereafter, IO recorded his statement. Same is Ex.PW1/C bearing his signatures at point B. IO prepared rukka Ex.PW1/D. IO handed over rukka to Ct.Ram Karan for registration of FIR. He went to PS and got registered the FIR. He returned back at the spot and handed over the copy of FIR and original rukka to HC Anil/IO. IO prepared site plan Ex.PW1/E. IO arrested the accused vide memo Ex.PW1/F bearing his signature at point B. Personal search of accused was conducted vide memo Ex.PW1/G bearing his signature at point B. IO FIR No.52/2023 State vs. Aashu Page No. 5 of 16 recorded disclosure statement of accused which is Ex.PW1/H. MHC(M) produced opened pullanda and button operated knife was shown to 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 they started their patrolling duty at 8 AM on govt. motorcycle. It was driven by Ct.Ram Karan, which was started from Police Booth Laxmi Narayan Mandir. Prior to apprehension of accused, they also checked 6-7 motorcycles at Pankha Road. They were not having special order for the same but they were doing the same as part of their duty. He did not remember any actions against those 6-7 motorcyclist were taken or not. He did not remember the name of those motorcyclist. They reached at Jeewan Park at about 10 : 20 PM. They saw the accused as soon as they reached there. The witness admitted that he had not issued any kalandara against the accused for not having DL and other relevant documents of scooty. Second IO had not also taken any action in MV Act for the same. Witness denied the suggestion that no such action was taken as all thing are falsely planted upon the accused. IO came at the spot within 15 minutes of the spot. He informed the DO about the apprehension of accused at about 10 : 37 PM. IO sent Ct.Ram Karan for registration of the FIR at about 11 : 30 PM and he returned back at the spot at about 12 AM. He did not remember when they finally left the spot. That when they apprehended the accused, crowd gathered at the spot but none agreed to join their FIR No.52/2023 State vs. Aashu Page No. 6 of 16 investigation. He did not know the name of the person from the crowd to whom request was made. IO also did not serve any written notice to public person for joining the investigation. That at the time of incident, he and Ct.Ram Karan was having camera mobile phone but no video recording of recovery of knife was conducted. Witness denied the suggestion that he was not on partolling duty on the day of incident and did not reach at the spot.
8. The prosecution has examined Ct.Ram Karan as PW3. He deposed on similar lines as that of PW2 HC Mukesh.
9. Witness was cross examined by ld. Defence Counsel, wherein he stated that they started their patrolling duty at 8 AM on govt. motorcycle. It was driven by him, which was started from Police Booth Laxmi Narayan Mandir. Prior to apprehension of accused, they checked 5-7 motorcycles at Pankha Road. They were not having special order for the same but they were doing the same as part of their duty. No action against any motorcyclist was taken. He did not remember the name of those motorcyclist. They reached at Jeewan Park at about 10 : 20 PM. They saw the accused as soon as they reached there. It took 10-15 minutes in recovery of knife. HC Mukesh gave telephonic information to PS Janakpuri at about 10 : 37 PM and IO reached there after 15 minutes. He came at spot on his motorcycle. Distance from spot to PS is about 1 and half to 2 kms. That the accused could not FIR No.52/2023 State vs. Aashu Page No. 7 of 16 produce any DL or any other documents of the scooty but no action under MV Act was taken against the accused. Witness denied the suggestion that no such action was taken as all thing are falsely planted upon the accused. IO sent him for registration of the FIR at about 11 : 30 PM and he returned back at the spot at about 12 AM. He went PS on Govt. Vehicle. They left the spot finally at about 01 : 15 AM-01 : 30 AM. That when they apprehended the accused, crowd gathered at the spot but none agreed to join their investigation. He did not know the name of the person from the crowd to whom request was made. IO also did not serve any written notice to public person for joining the investigation. That at the time of incident, he and HC Mukesh was having camera mobile phone but no video recording of recovery of knife was conducted. Witness denied the suggestion that he was not on partolling duty on the day of incident and did not reach at the spot.
10. Vide separate statement recorded u/s 294 Cr.P.C, accused had admitted the documents FIR No.52/2023 registered by HC Chhaju Ram Ex.P/1/A, Endorsement made on rukka Ex.P/1/B, Certificate u/s 65B of Indian Evidence Act Ex.P/1/C and DD No.111A dt.07.02.2023 recorded by HC Chhaju Ram Ex.P/1/D. Hence the above documents were ordered to be read in evidence without its formal proof.
FIR No.52/2023 State vs. Aashu Page No. 8 of 1611. No other witness was examined by prosecution and hence, PE was closed vide order dated 08.06.2023.
12. 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.
13. Final arguments were thereafter heard on behalf of State as well as the accused.
14. After hearing Sh.Amit Sehrawat, Learned Assistant Public Prosecutor for the state and Sh.Sameer Goel, Learned 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.
15. The relevant portion of Arms Act is reproduced as under:
Section 25: Punishment for certain offences:FIR No.52/2023 State vs. Aashu Page No. 9 of 16
(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.
16. In the rukka Ex. PW1/D, it has been stated that police officials did ask 4-5 public persons to join the proceedings, however, they refused citing just reasons. All the prosecution witnesses stated that no public witness agreed to give statement. However, none of the police officials stated the 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 PW1 to join public witness in the proceedings. It is a well FIR No.52/2023 State vs. Aashu Page No. 10 of 16 settled proposition that non-joining of public witness shrowds doubt over the fairness of the investigation by police.
17. 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".
18. 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 FIR No.52/2023 State vs. Aashu Page No. 11 of 16 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. 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 FIR No.52/2023 State vs. Aashu Page No. 12 of 16 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".
19. 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:
" ... 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 FIR No.52/2023 State vs. Aashu Page No. 13 of 16 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."
20. 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.
21. 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 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 FIR No.52/2023 State vs. Aashu Page No. 14 of 16 impression of the seal was deposited with MHCM(M) along with case property results in miscarriage of justice and is fatal to the prosecution.
22. Perusal of the complaint Ex.PW1/C by complainant HC Mukesh Kumar shows that the Honda Activa scooty bearing no.DL-11SH-0163 which was used by the accused person was found to be stolen. However, none of the witness could state the said fact in their evidence. They were specifically cross examined on this point and admitted that they had not registered any Kalandara against the accused person for not having a valid driving licence and other documents of the scooty. The witness stated that they were on patrolling duty on govt. motorcycle. The prosecution failed to establish presence of the complainant at the spot. No duty roaster was filed to show that PW2 HC Mukesh and PW3 Ct.Ram Karan were on official duty. No roaster was placed on record to show the details of the govt. vehicle which was issued to the abovestated police officials.
23. 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 FIR No.52/2023 State vs. Aashu Page No. 15 of 16 the accused.
24. 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 is hereby acquitted of the offence punishable under Section 25 of Arms Act.
Accused be set at liberty.
Pronounced in open Court on this 21th Day of October, 2023. This judgment consists of 16 pages and each pages are signed by the undersigned.
(BHARTI BENIWAL) Metropolitan Magistrate-11 South West District, Dwarka Courts New Delhi FIR No.52/2023 State vs. Aashu Page No. 16 of 16