Delhi District Court
State vs Ashish on 6 April, 2024
IN THE COURT OF SH. RAGHAV SHARMA, METROPOLITAN MAGISTRATE06, SOUTH EAST DISTRICT, SAKET COURTS, NEW DELHI STATE VS. Ashish FIR NO: 82/2020 P. S Kalkaji U/s 25 (1B) (b)/54/59 Arms Act Cr CASES 1510/2020 JUDGMENT
Name of the complainant : Ct. Satish Kumar,
Belt No. 3866/SE,
Posted at PS Kalkaji, New Delhi.
Date of Commission of offence : 05.03.2020
Name of the accused : Ashish,
S/o Sh. Sanjeev,
R/o Jhugi. NO. S75, Taimur
Nagar, PS NFC, New Delhi.
Plea of accused : Not Guilty
Case reserved for orders : 28.03.2024
Final Order : Acquitted
Date of orders : 06.04.2024
FIR no. 82/2020 State Vs. Ashish 1/10
BRIEF STATEMENT OF FACTS FOR THE DECISION:
1. This is the prosecution of the accused Ashish pursuant to a charge sheet filed by the PS Kalkaji u/s 25 (1B) (b)/54/59 Arms Act subsequent to the investigation carried out by them in FIR no. 52/2020.
2. As per the case of prosecution, on 05.03.2020 at about 11:30 PM at Bus stop Picket DDA Flats, Kalkaji, New Delhi accused was found in possession of buttondar knife having total length of 22 cm in contravention of notification issued by Delhi Administration and thereby committed an offence punishable u/s 25 (1B) (b)/54/59 Arms Act.
3. On completion of investigation and other formalities, charge sheet was submitted against the accused and the accused was indicted on charge u/s 25 (1B) (b)/54/59 Arms Act on 03.01.2023. He pleaded not guilty and claimed trial.
4. The prosecution, to prove above charges against the accused, tendered oral as well as documentary evidence. In all four witnesses were examined.
5. PW1 deposed that on on 05.03.2020 from 09:00 PM to 12:00 AM and his duty point/picket was at 429 bus stop near Kalka Public School and he was along with Ct. Ram Kishore at that time and they were checking suspicious persons who were on vehicle and also on foot. At around 11;30 PM, they saw a person who was coming from Kalka Public School towards the picket and on suspicion, they stopped and checked the said person, upon cursory search one buttondar knife was found from his right side pocket of his pant and he revealed his name as Ashish. Thereafter, he informed the same to the DO and after some time, HC Sudesh and Ct. Virender reached at the spot and he handed over the case property to the IO HC Sudesh and after that IO prepared the sketch of the said knife vide memo Ex. PW1/A and IO seized the same vide memo Ex. PW1/B. After that IO recorded his statement which is Ex. PW1/C, and upon the said complaint IO prepared the tehrir and gave the same to Ct.
FIR no. 82/2020 State Vs. Ashish 2/10 Virender which he took to PS for registration of FIR. After some time, he came with the copy of FIR and handed over to the IO. After that IO arrested and conducted personal search of accused vide memos Ex. PW1/D and Ex. PW1/E. IO also recorded disclosure statement of the accused vide memo Ex. PW1/F. After that IO along with the Ct. Virender and the accused and the case property left the spot and went to PS.
6. PW2 deposed that on he along with Ct. Satish was on picket duty at Bus stop 429 near DDA flats, Kalkaji. His duty hours were from 08:00 pm to 12:00 midnight at about 11:30 pm, accused was coming from the side of Ravidas Marg and going towards Kalka Public School. Upon suspicion, he signalled him to stop but he did not stop and started running fastly. Ct. Satish chased and apprehended him. Ct. Satish interrogated with him but he could not answered satisfactorily. Thereafter, Ct. Satish made cursory search of the accused and found one buttondar knife from his right pocket of the pants. During interrogation, accused revealed his name as Ashish. Ct. Satish informed to PS regarding apprehension of a person along with a knife. After some time, HC Sudesh along with Ct. Virender came at the spot. Ct. Satish handed over knife as well accused to HC Sudesh. HC Sudesh interrogated with accused. HC Sudesh prepared sketch of recovered knife. The total length of knife was 22 cm. The length of blade (fal) was 10 cm. The length of the handle was 12 cm. The handle of knife was made of aluminium and there was a botton affixed on the middle of the knife. The sketch of knife is already Ex. PW1/A. HC Sudesh kept the recovered knife in white colour cloth and sealed with the seal of "SK". Thereafter, HC Sudesh recorded statement of Ct. Satish and prepared rukka thereof. HC Sudesh handed over rukka to Ct. Virender for registration of FIR. IO/HC Sudesh prepared seizure memo of recovered knife already Ex. PW1/B. IO/HC Sudesh also prepared arrest memo and search memo of accused Ashish. IO recorded disclosure statement of accused Ashish. HC Sudesh also prepared site plan. In the meantime, Ct. Virender came back to the spot along with copy of FIR and original rukka and handed over the same to IO/HC Sudesh. Thereafter, we brought accused as well as recovered knife to the PS. IO recorded my statement. Thereafter, I left the investigation.
FIR no. 82/2020 State Vs. Ashish 3/10
7. PW3 had deposed that on 05.03.2020 he was on emergency duty from 8.00 PM to 8.00 AM and on receipt of DD no.61B by the IO regarding recovery of buttondar knife, he alongwith IO HC Sudesh went to the spot i.e. 429, bus stand DDA flats, Kalkaji where Ct. Satish and Ct. Ram Kishor were present alongwith a person whose name was revealed to be Ashish. They presented the accused and the recovered buttondar knife to the IO. IO prepared the sketch of the buttondar knife. The recovered knife was kept in a white colour clothes by the IO and sealed the same with the seal of 'SK'. IO prepared the Tehrir and gave the same to him. He went to the PS for the registration of the FIR. After registration of FIR, he came back at the spot with the copy of the FIR and original tehrir and handed over the same to the IO. Thereafter, he came back at PS Kalkaji. IO recorded my statement at PS.
8. PW4 had deposed that on 05.03.2020 he was on emergency duty from 8.00 PM to 8.00 AM. On receipt of DD no.61B regarding recovery of buttondar knife, he alongwith Ct. Virender went to the spot i.e. 429, bus stand DDA flats, Kalkaji where Ct. Satish and Ct. Ram Kishor were present alongwith a person whose name was revealed to be Ashish. They presented the accused and the recovered buttondar knife to him. He prepared the sketch of the buttondar knife which is already Ex. PW1/A. The recovered knife was kept in a white colour clothes by him and he sealed the same with the seal of 'SK'. The recovered knife was seized by seizure memo already Ex. PW1/B. He prepared the Tehrir on the basis of statement of Ct. Satish which is already Ex. PW1/C and made endorsement on the same. He went to the PS for the registration of the FIR. After registration of FIR, he came back at the spot with the copy of the FIR and original tehrir and handed over the same to him. He also prepared site plan at the instance of complainant which is Ex. PW4/1. Thereafter, the accused was arrested and personally searched vide memos already Ex. PW1/D and Ex. PW1/E. Detailed disclosure statement of accused was also recorded vide memo already Ex. PW1/F. After medical examination, accused was lodged in lockup. He also recorded statement of witnesses. After thorough investigation, he prepared the charge sheet and filed the same before the court.
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9. Accused has also admitted documents i.e. DO with original FIR NO. 82/2020, DAD notification and MHC M along with case property u/s 294 Cr.PC.
10. Statement of the accused was recorded U/s 281 on 11.03.2024 of Code wherein all the incriminating circumstances were put to him which he denied and pleaded his false implication and also false plantation of the case property. He, however, chose not to lead defence evidence. Thereafter, final arguments were heard.
11. I have heard the Ld. APP and carefully perused the record in extenso. Ld. APP has canvassed that the prosecution has been successful in proving the guilt of the accused beyond reasonable doubt as testimony of all the witnesses were not impeached by the accused.
12. I have bestowed my thoughtful considerations to the rival submissions made before me.
13. As far as the case of the prosecution with respect to allegations u/s 25/54/59 Arms Act is concerned, the accused was apprehended with the knife exceeding the prescribed dimensions which he could not hold. However, the case of prosecution appears to be on a shaky ground.
14. Firstly, if the police personnels who had apprehended the accused with the knife was on patrolling duty, prosecution should have brought the relevant records showing their arrival and departure and should have proved by documentary evidence that they were on patrolling duty by producing DD entry for the same.
15. At this stage, reference can be taken from the provision enshrined in 22 rule 49 of the Punjab Police Rules, which is reproduced as under;
"Chapter 22 rule 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 FIR no. 82/2020 State Vs. Ashish 5/10 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 latter personally by signature or seal.
Note: The term Police Station will include all places such as Police Lines and Police Posts where Register No. II is maintained.
16. Perusal of the above rule clearly suggests that the police officials are mandated to record their time of arrival and departure on duty at or from the police station. In the instant case, this provision has not been complied by the concerned police witnesses. The relevant entries regarding the arrival and departure of the police officials have not been proved on record. It has been held in Rattan Lal Vs. State 1987 (2) Crimes 29 the Hon'ble Delhi High Court held that;
"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."
17. In the instant case, the prosecution had not brought on record the relevant DD entries showing departure of the police personnels for patrolling duties.
18. Secondly, It is a well settled proposition that nonjoining of public witness shrouds doubt over the fairness of the investigation by police. Section 100(4) of the Cr.PC also casts a statutory duty on an official conducting search to join two respectable persons of the society. Same has not been done in the present case. This casts a doubt on the fairness of the investigation.
19. It should be noted that the public witnesses have not joined in the present investigation. From the cross examination of PW4 HC Sudesh Kumar who also FIR no. 82/2020 State Vs. Ashish 6/10 happens to be the IO of the case it is admitted fact that IO did not join any public person in the investigation and no notice was even served on any public person to join the investigation. All the witnesses examined by the prosecution are the police witnesses. Although, it can be said that it was a chance recovery but the incident had occurred near a busy locality and therefore, it cannot be said that no public person would have been available at the spot and even if the prosecution has not joined the public witnesses it was incumbent upon the prosecution to at least put forward the reasons for not doing so.
20. If the public persons were really present at the spot, then the police officials should have made endeavor to get them join the investigation. They should have issued notice asking them to join the investigation. On their refusal, necessary action as per law could have been taken against them.
21. The failure on the part of the police personnels goes to suggest that they were not interested in joining the public persons in the police proceedings. Failure on the part of the police officials to make sincere effort to join public witnesses for the proceedings when they may be available creates reasonable doubt in the prosecution story. Reference can be taken from the decision of Anoop Joshi Vs. 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 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."
22. While the testimony of the police officials cannot be discarded away merely because of the fact that no public witnesses were not examined, however, their testimonies should FIR no. 82/2020 State Vs. Ashish 7/10 be scrutinised in more detail. If it is found the police officials during the course of investigation did not even make endeavour to ask the public witnesses to join the investigation, did not even ask their names and details etc. then it would cast a very serious doubt on the testimonies of the police officials. At this stage, reference can be taken from the decision of the Hon'ble Supreme Court in the case of Tahir v. State (Delhi) [(1996) 3 SCC 338], dealing with a similar question, the Hon'ble Apex Court held interalia the following:
"In our opinion no infirmity attaches to the testimony of the police officials, merely because they belong to the police force and there is no rule of law or evidence which lays down that conviction cannot be recorded on the evidence of the police officials, if found reliable, unless corroborated by some independent evidence. The Rule of Prudence, however, only requires a more careful scrutiny of their evidence, since they can be said to be interested in the result of the case projected by them. Where the evidence of the police officials, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it can form basis of conviction and the absence of some independent witness of the locality to lend corroboration to their evidence, does not in any way affect the creditworthiness of the prosecution case. The obvious result of the above discussion is that the statement of a police officer can be relied upon and even form the basis of conviction when it is reliable, trustworthy and preferably corroborated by other evidence on record."
23. The requirement of the police officials to make endeavour to ask the public witnesses to join the proceedings was discussed by the Hon'ble Supreme Court in the case of Sahib Singh vs. State of Punjab AIR 1997 SC 2417, wherein it interalia held the following:
"In a given case it may so happen that no such person is available or, even if available, is not willing to be a party to such search. It may also be that after joining the search, such persons later on turn hostile. In any of these eventualities the evidence of the police officers who conducted the search cannot be disbelieved solely on the ground that no independent and respectable witness was examined to prove the search but if it is found as in the present case that no attempt was even made by the concerned police officer to join with him some FIR no. 82/2020 State Vs. Ashish 8/10 persons of the locality who were admittedly available to witness the recovery, it would affect the weight of evidence of the Police Officer, though not its admissibility"
24. Further, the Hon'ble Supreme Court in the case of Pradeep Narayan Madgaonkar v. State of Maharashtra (1995) 4 SCC 255 dealt with the issue of the requirement of the examination of an independent witness, and whether the evidence of a police witness requires corroboration. The Hon'ble Apex Court held that though the same must be subject to strict scrutiny, however, the evidence of police officials cannot be discarded merely on the ground that they belong to the police force and are either interested in the investigation or in the prosecution. However, as far as possible the corroboration of their evidence on material particulars should be sought.
25. Therefore, in view of the above mentioned case law, it becomes clear that while the testimony of the police officials cannot be discarded away forthwith in the absence of any public witnesses, however, it would be prudent to examine or scrutinise their testimonies more closely and should preferably be corroborated. Accused may be convicted on the basis of the testimonies of the police officials if their testimonies are found to be reliable and trustworthy.
26. As discussed in the preceding paragraphs of this judgment, IO did not even make any endeavor to join the public witnesses. From the testimonies of prosecution witnesses, it would appear that no efforts whatsoever was made by the IO to join the public witnesses at the time of recovery of case property from the accused. It would also appear that no written notice was served on public persons to join them in the investigation. No explanation could be given by the IO for not joining the public witnesses. Since all the witnesses are police personnels and the necessary safeguards in the investigation has not been followed by the IO, I am of the view that chances of false implication of the accused under the provisions of Arms Act cannot be ruled out at the instance of the police.
27. In the case in hand when the whole case of the prosecution is based on the testimony FIR no. 82/2020 State Vs. Ashish 9/10 of police witnesses and material contradictions have arisen in their depositions, the whole story of the prosecution seems concocted. Prosecution has failed to prove the recovery of buttondar knife from the accused beyond reasonable doubt.
28. It is true that evidence is to be weighed and not counted but in this case whatever evidence has been produced by the prosecution is not sufficient to fortify the edifice of the prosecution case and the prosecution fails to prove all the links. In case where the prosecution has failed to prove all the links, the benefit of doubt has to be given to the accused. As such the accused deserves acquittal for the offence u/s 25/54/59 Arms Act.
29. In the end, it can be concluded that the prosecution has miserably failed to establish the allegations u/s 25/54/59 Arms Act against the accused. Accordingly, accused is Ashish acquitted for the offence U/s 25/54/59 Arms Act. He is set at liberty.
Announced in the open court (RAGHAV SHARMA) on 16.04.2024 MM06, South East, New Delhi
It is certified that this judgment contains 10 pages and each page bears my signatures.
(RAGHAV SHARMA)
MM06, South East, New Delhi/ 16.04.2024
FIR no. 82/2020 State Vs. Ashish 10/10