Delhi District Court
State vs Surjit on 29 April, 2024
IN THE COURT OF HARSHAL NEGI
METROPOLITAN MAGISTRATE-02, DWARKA COURT, NEW DELHI.
FIR No.: 543/2021
PS: Dabri
U/s: 25 Arms Act
Case no. 10291/2021
State
Vs.
Surjit
S/o Sh. Hari Chander
R/o RZ C-2/269, Gali No. 6, Mahavir Enclave,
Dabri, Dwarka, New Delhi. ..... Accused
S. No. of the case : 10291/2021
The date of offence : 15.07.2021
The name of the complainant : Ct. Parveen
The name of the accused : Surjit
The offence complained : 25 Arms Act
The plea of the accused : Pleaded not guilty
Argument heard on : 29.04.2024
The date of order : 29.04.2024
The final order : Acquitted
Brief Facts
1. It is the case of the prosecution that on 15.07.2021 Ct Parveen, while on patrolling duty reached C-2 Block, Nala Road, Mahavir Enclave, near Power House, where he saw one person coming towards him and upon seeing him in uniform, he turned around and started moving in opposite direction. On seeing him moving, he ran towards him and stopped him, asked him why he turned around and started moving in opposite direction. Upon asking, he did not give any satisfactory answer and thereafter, he personal searched the person whose name he came to know as Surjit (accused). Upon search one buttondar knife was recovered from him. He informed about this to the DO. Thereafter, HC Rajender Prasad came to the spot. An FIR bearing no. 543/2021 u/s 25 Arms Act came to FIR No.: 543/2021 State versus Surjit Page No. 1 of 12 be registered at PS Dabri.
2. Investigation was set into motion and was conducted by HC Rajender Prasad who also filed the Chargesheet under Section 25 Arms Act.
3. After taking cognizance of the offence, the accused was summoned to face trial.
On his appearance, a copy of chargesheet along with documents were supplied to the accused in terms of Section 207 of the Code of Criminal Procedure (hereinafter referred to as 'CrPC'). On finding a prima facie case against him, charge under Section 25 Arms Act was framed against the accused on 14.07.2022 to which the accused pleaded not guilty and claimed trial.
4. In order to establish the case, the prosecution examined the following witnesses:
i. Ct Parveen was examined as PW 1. He stated that on 15.07.2021, he was posted at PS Dabri as Ct. On that day, he was on patrolling duty in beat no. 6 vide GD No. 92A dated 15.07.2021. While patrolling, when he reached C-2 Block, Nala Road, Mahavir Enclave, near Power House, he saw one person coming towards him and upon seeing him in uniform, he turned around and started moving in opposite direction. On seeing him moving, he ran towards him and stopped him, asked him why he turned around and started moving in opposite direction. Upon asking, he did not give any satisfactory answer and thereafter, he personal searched the person whose name he came to know as Surjit (accused). Upon search one buttondar knife was recovered from him, He informed about this to the DO. Thereafter, HC Rajender Prasad came to the spot. IO asked 4-5 public person to join the investigation but they refused to join the same by stating their personal reasons and without stating their names. He handed over abovesaid case property and accused persons to IO/HC Rajender Prasad. IO prepared sketch for buttondar knife Ex. PW-1/A bearing his signature at point A, seized the same vide seizure memo Ex. PW-1/B bearing his signature at point A, recorded his statement which is FIR No.: 543/2021 State versus Surjit Page No. 2 of 12 Ex. PW1/C (bearing his signature at point A) and prepared the rukka in his presence Ex. PW1/D. After that IO gave him rukka for registration of FIR. Thereafter, he went to PS and got the FIR registered, after sometime, he came back at the spot and handed over copy of FIR and original rukka to IO. IO prepared the site plan at his instance Ex. PW1/E bearing his signature at point A, arrested the accused vide arrest memo Ex. PW-1/F bearing his signature at point A, personal search vide personal search memo Ex. PW-1/G bearing his signature at point A, recorded disclosure statement of accused vide memo Ex. PW1/H (bearing his signature at point A). IO recorded his statement u/s 161 Cr.P.C. He can identify the accused. (Accused is present in the court and correct identified by the witness.) He can identify the case property, if shown to him. (At this stage, MHCM has produced one white pullanda sealed with the seal of RP. Same is opened with the permission of court which was found containing one buttondar knife. Witness identified the same and states that the same was recovered from the possession of the accused. Same is now Ex. A1.) ii. In his cross-examination PW 1 stated that they left the spot at about 07.00 PM and thereafter, they went to PS. He do not remember the DD entry of his arrival back to PS as he was in routine patrolling. They all went to PS in the police gypsy and reached the PS at about 07:10 PM.
There was one hardware shop and public persons were passing by. Some public persons were asked to join the proceedings but they refused to join the same and left the spot. IO came at the spot at about 05.15 PM on his motorcycle. He went to PS with Tehrir at about 05.45 P.M. on his motorcycle. He came back to the spot after the registration of FIR at about 06.20 P.M. on his motorcycle alone. No notice was served upon public persons for non-joining the proceedings. His statement was FIR No.: 543/2021 State versus Surjit Page No. 3 of 12 recorded at the spot. He do not remember which document was prepared by the IO before tehrir was taken to PS and after the registration of FIR. Seal was not handed over to him after use by the IO. The distance between the spot and PS is about 3 kms. He and IO had left their motorcycle at the spot as they went to the PS in police gypsy. He had offered his search before search of accused was conducted. He denied the suggestion that nothing incriminating has been recovered from the possession of the accused or at the instance of accused or that all the proceedings had been conducted while sitting at PS. iii. ASI Rajender Prasad was examined as PW2. He stated that on 15.07.2021, he was posted at PS Dabri as HC. On that day, upon receiving DD No. 102A regarding apprehension of accused along with illegal weapon. After that, he went to the spot i.e. C-2, Nala Road, Mahavir Enclave, Part II, where he met Ct. Parveen and asked 4-5 public person to join the investigation but they refused to join the same by stating their personal reasons and without stating their names. Ct. Parveen handed over abovesaid case property and accused to him. He prepared sketch for buttondar knife already Ex. PW-1/A bearing his signature at point X, seized the same vide seizure memo already Ex. PW- 1/B bearing his signature at point X, recorded statement of Ct. Parveen which is already Ex. PW1/C (bearing his signature at point X) and prepared the rukka already Ex. PW1/D bearing his signature at point X. After that he handed over seal to Ct. Parveen and gave him rukka for registration of FIR. Thereafter, he went to PS and got the FIR registered, after sometime, he came back at the spot and handed over copy of FIR and original rukka to him. He prepared the site plan already Ex. PW1/E bearing his signature at point X, arrested the accused vide arrest memo already Ex. PW-1/F bearing his signature at point X, personal search FIR No.: 543/2021 State versus Surjit Page No. 4 of 12 vide personal search memo already Ex. PW-1/G bearing his signature at point X, recorded disclosure statement of accused vide memo already Ex. PW1/H (bearing his signature at point X). He recorded statement of witnesses u/s 161 Cr.P.C. He can identify the accused. (Accused is present in the court and correctly identified by the witness.) He can identify the case property, if shown to him. (At this stage, Ld. counsel for accused submits that identity of case property is not disputed as the same is already Ex. A1.) iv. In his cross-examination PW 2 stated that they left the spot at about 07.30 PM. He went to PS on his motorcycle. There were residential houses and public persons were passing by. Some public persons were asked to join the proceedings but they refused to join the same and left the spot. He came at the spot at about 05.15 PM on his motorcycle. No notice was served upon public persons for non joining the proceedings. No seal handing over memo was prepared. The distance between the spot and PS is about 2 kms. He denied the suggestion that nothing incriminating has been recovered from the possession of the accused or at the instance of accused or that all the proceedings had been conducted while sitting at PS.
5. The accused in his statement under Section 294 CRPC admitted FIR No 543/2021 PS Dabri Ex P1 and DAD Notification of Delhi Govt dated 29.10.1980 Ex P2. During the course of the trial witness at serial no 4 stood deleted in furtherance of statement of the accused under Section 294 CRPC.
6. The prosecution evidence was thereafter closed and the statement of accused u/s 313 CrPC was recorded on 15.04.2024 wherein all the incriminating evidence appearing on record against the accused was put to him but he denied the same and stated that nothing was recovered from his possession and he was falsely implicated in the present case.
FIR No.: 543/2021 State versus Surjit Page No. 5 of 12
7. The accused chose not to lead any defence evidence.
8. I have heard the Ld. APP for the State and Ld. Defence counsel at length, perused the record, gone through the relevant provisions of law and given my thoughtful consideration to the matter.
Discussion/Findings
9. Before embarking on the analysis and appreciation of the statements and evidences on record it is apposite to state that to bring home the guilt of the accused in any criminal matter beyond the shadow of reasonable doubt the burden rests always upon the prosecution. The burden of proof on the prosecution is heavy, constant and does not shift. The case of the prosecution needs to stand on its own footing failing which benefit of doubt ought to be given in favor of the accused. Needless to say, in this case also, with or without defense evidence, the prosecution has to establish its case beyond reasonable doubt. On the touchstone of the above settled legal proposition the facts of the present case are to be analyzed.
I. Non-joining of Public Witnesses
10. One of the arguments of Ld. Counsel for the accused is that since no independent witness has been joined at the time of investigation, it is, therefore, difficult to believe the prosecution version as it creates a doubt on the veracity of the statement of police witnesses.
11. This court has given its thoughts to the above contention of Ld. Counsel for the accused. Perusal of the testimony of PW-1 and PW 2 reveals that they have categorically stated that there were public persons were passing by. They had also asked public persons to join the investigation, but none of them had agreed. Thus, it is not the case of the prosecution that no public person was present at or near the spot of recovery. However, it is equally true that no steps are shown to have been taken to note down the names and addresses of those persons. It is a well settled proposition of law that non-joining of public witness throws doubt FIR No.: 543/2021 State versus Surjit Page No. 6 of 12 over the fairness of the investigation by police. Section 100 (4) of the CrPC also casts a statutory duty on an official conducting search to join two respectable persons of the society. However, no public person has been joined by the IO in the present case.
12. In a case titled as Nanak Chand Vs. State of Delhi, 1990 SCC OnLine Del 469, Hon'ble High Court of Delhi has observed as under:
"The recovery was from a street with houses on both sides and shops nearby. And, yet no witness from the public has been produced. Not that in every case the police officials are to be treated as unworthy of reliance but their failure to join witnesses from the public especially when they are available at their elbow, may, as in the present case, cast doubt. They have again churned out a stereotyped version. Its rejection needs no Napoleon on the Bridge at Arcola (Emphasis supplied).
13. In the present case also, non-joining of any public person as a witness creates doubt on the case of the prosecution. Although, this Court is conscious of the fact that it is a well settled law that the prosecution case cannot be thrown out or doubted on the sole ground of non-joining of public witnesses as they keep themselves away from the Court unless it is inevitable, however, in the present case, it is not only the absence of public witnesses which raises a doubt on the prosecution version but there are other circumstances too, as discussed in the later part of the judgment, which raise suspicion over the prosecution case. II. No departure or the arrival entry of PW 1
14. The present case rests entirely on the alleged recovery of case property, i.e. buttondar knife, from the possession of the accused at the relevant time by a police official namely Ct Parveen PW 1, who was 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 the purpose as per the Punjab Police Rules. Chapter 22 Rule FIR No.: 543/2021 State versus Surjit Page No. 7 of 12 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 placed upon Rattan Lal Vs. State 1987 (2) Crimes 29 Delhi High Court wherein it has been observed:
"if the investigating agency deliberately ignores to comply with the provisions of the Act, the courts will have to approach their action with reservations. The matter has to be viewed with suspicion if the provisions of law are not strictly complied with and the least that can be said is that it is so done with an oblique motive. This failure to bring on record, the DD entries creates a reasonable doubt in the prosecution version and attributes oblique motive on the part of the prosecution."
III. Doubts in preparation of Seizure Memo and Sketch of Knife.
15. There exists yet another discrepancy in the case of the prosecution. PW 1 Ct Parveen in his testimony stated that IO prepared the sketch of the knife, seizure memo, recorded his statement and prepared the rukka. Then the IO gave rukka to him for registration of FIR and he went to the PS for getting the FIR registered. IO has also stated same as above. Thus, it is clear from the testimony of PW 1 and PW 2 IO that the seizure memo of the case property, and sketch of the knife were prepared before the rukka was handed over by PW2 to PW 1 for registration of the FIR. The FIR was thus, admittedly registered after the preparation of the seizure memo, and sketch of the knife, however, surprisingly FIR No.: 543/2021 State versus Surjit Page No. 8 of 12 they bear the FIR number and it is thus worth wondering that if the FIR was never registered at the time when the seizure memo and sketch of the knife were prepared, how the FIR number came to be noted in the seizure memo as well as in the sketch of the knife since the number of the FIR could have come to knowledge of PW 2 only after a copy of the FIR was brought to the spot by PW1. Thus, the number of FIR in no circumstances could have been mentioned by the IO on the seizure memo, and sketch of the knife which came into existence before registration of the FIR.
16. In this context, Hon'ble High Court of Delhi in Pawan Kumar v. The Delhi Administration, 1987 SCC OnLine Del 290, has observed as under in paragraph 6:
"Learned counsel for the State concedes that immediately after the arrest of the accused, his personal search was effected and the memo Ex. PW11/D was prepared. Thereafter, the sketch plan of the knife was prepared in the presence of the witnesses. After that, the ruqa EX. PW11/F was sent to the Police Station for the registration of the case on the basis of which the FIR, PW11/G was recorded. The F.I.R. is numbered as 36, a copy of which was sent to the I.O. after its registration. It comes to that the number of F.I.R. came to the knowledge of the I.O. after a copy of it was delivered to him at the spot by a constable. In the normal circumstances, the F.I.R. No. should not find mention in the recovery memo or the sketch plan which had come into existence before the registration of the case. However, from the perusal of the recovery memo, I find that the FIR is mentioned whereas the sketch plan does not show the number of the FIR. It is not explained as to how and under what circumstances the recovery memo came to bear the F.I.R. No. which had already come into existence before the registration of the case. These are few of the circumstances which create a doubt, in my mind, about the genuineness of the weapon of offence alleged to have been recovered from the accused."
FIR No.: 543/2021 State versus Surjit Page No. 9 of 12
17. In another case titled Mohd. Hashim v. State, 1999 SCC OnLine Del 859, the Hon'ble High Court of Delhi while dealing with an appeal under the Narcotic Drugs and Psychotropic Substances Act, 1985 has also observed about the discrepancy, i.e., appearance of FIR number on seizure memo and other documents before registration of FIR and it runs as under:
"Surprisingly, the secret information (Ex. PW7/A) received by the Sub-Inspector Narender Kumar Tyagi (PW-7), the notice under Section 50 of the Act (Ex. PW5/A) alleged to have been served on the appellant, the seizure memo (Ex. PW1/A) and the report submitted under Section 57 of the Act (Ex. PW7/D) bear the number of the FIR (Ex. PW4/B). The number of the FIR (Ex. PW4/B) given on the top of the aforesaid documents is in the same ink and in the same handwriting, which clearly indicates that these documents were prepared at the same time. The prosecution has not offered any explanation as to under what circumstance number of the FIR (Ex. PW4/B) had appeared on the top of the aforesaid documents, which were allegedly prepared on the spot. This gives rise to two inferences that either the FIR (Ex. PW4/B) was recorded prior to the alleged recovery of the contraband or number of the said FIR was inserted in these documents 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 recovery of the contraband in the manner alleged by the prosecution."
18. In the light of the abovesaid judgments, the mentioning of the number of FIR in the seizure memo and sketch of the knife creates serious doubt on the prosecution version and alleged recovery of buttondar knife and it leads to only one conclusion that either the said documents were prepared later on or that the FIR was registered earlier in point of time. In both the aforesaid eventualities, a reasonable doubt has been raised on the version of the prosecution the benefit of which has to be given to the accused.
FIR No.: 543/2021 State versus Surjit Page No. 10 of 12 IV. No search of PW 1 before search of accused.
19. Further, in the case in hand, the police official PW 1 allegedly searched the accused and one buttondar Knife was allegedly recovered from his possession. PW 1 in his cross examination stated that he offered his search before the search of the accused was conducted. However, no such fact came either in his examination in chief or from the records of the case. No document also has not been filed by the prosecution which could even remotely suggest that PW 1 offered his search before carrying out search of the accused. In fact, nowhere from the reading of the entire case record it can be deciphered that PW1 offered his search before searching the accused. The entire case of the prosecution is silent on this aspect apart from a statement made by PW 1 in his cross examination. In the present matter it is clear from the record that after the apprehension of the accused but before taking the formal/casual search of the accused, police official(s) had not offered their own search to the accused. At this juncture, it would be appropriate to refer to the judgment of Hon'ble Orissa High Court reported as Rabindernath Prusty V/s State of Orissa, 1984 CRLJ 1392 wherein it was held as under:
"The next part of the prosecution case is relating to the search and recovery of Rs.500/ from the accused. One of the formalities that has to be observed in searching a person in that the searching Officer and others assisting him should give their personal search to the accused before searching the person of the accused. (See AIR 1969 SC 53 : (1969 Cri. L.J 279), State of Bihar V/s Kapil Singh). This rule is meant to avoid the possibility of implanting the object which was brought out by the search. There is no evidence on record whatsoever that the raiding party gave their personal search to the accused before the latter's person was searched. Besides the above, it is in the evidence of PWs 2 and 5 that the accused wanted to know the reason for which his person was to be searched and the reason for such search was not intimated to the accused. No FIR No.: 543/2021 State versus Surjit Page No. 11 of 12 independent witness had witnessed the search. In the above premises, my conclusion is that the search was illegal and consequently the conviction based thereon is also vitiated''.
20. Thus, being guided by above said case law, it can be said that search of the accused by above said police official(s) was in complete violation of the above said case law and the same can be said to be illegal.
21. Thus, in light of the above discussion which throws doubt on the authenticity of the prosecution version, this court is of the opinion that prosecution has failed to prove its case beyond reasonable doubt that buttondar knife was recovered from the possession of the accused. The accused Surjit is, therefore, acquitted of the offence u/s 25 Arms Act.
Digitally signed byAnnounced in the open court on 29.04.2024.
HARSHAL HARSHAL NEGI
NEGI Date: 2024.04.30
15:58:18 +0530
(Harshal Negi)
MM-02/Dwarka Court,
New Delhi, 29.04.2024
It is certified that the present judgment runs into 12 pages and each page bears my signature. Digitally signed by HARSHAL HARSHAL NEGI NEGI Date: 2024.04.30 15:58:22 +0530 (Harshal Negi) MM-02/DwarkaCourt, New Delhi, 29.04.2024 FIR No.: 543/2021 State versus Surjit Page No. 12 of 12