Delhi District Court
State vs . Rafiq on 14 September, 2022
IN THE COURT OF Ms.MEENA CHAUHAN,
MM-08: CENTRAL DISTRICT: TIS HAZARI COURTS: DELHI
FIR No. 234/2020
PS Kamla Market
U/s. 25 of Arms Act, 1959
State vs. Rafiq
CIS No. 1515/21
Date of Institution of the case: 30.01.2021
Date of Judgment reserved: 14.09.2022
Date on which Judgment pronounced: 14.09.2022
a Serial No. of the case : FIR No.: 234/20
b Date of the : 25.09.2021
commission of the
offence
c Name of the : Ct. Ratan Lal, Belt No. 2446/C,
Complainant PS Kamla Market, Delhi
d Name of Accused : Rafiq S/o Mohd. Rasul
person and his R/o Kotha No. 52, GB Road, Kamla
parentage and Market, Delhi & Village Kadari, PS-
residence Kadari, Ananatpur, AP.
e Offence complained : U/s 25(1B)/54/59 Arms Act
of
f Plea of the Accused : Pleaded not guilty.
g Final Order : Acquittal
Page 1 of 15
JUDGMENT
BRIEF REASONS FOR DECISION
1. The case of the prosecution is that on 25.09.2020 at about 11:10 pm behind Kotha no.40 G.B. Road at Fassil road, Kamla Market, Delhi within the jurisdiction of PS Kamla Market, the accused Rafiq S/o Mohd. Rasul was found in possession of one buttondar knife measuring length of the knife 24 cm and having blade length 11 cm and width of 2.7 cm in contravention of Notification No. F- 13/451/79-HOME (G) dated 29.10.1980. On these allegations, the present FIR No. 234/2020 was registered at PS Kamla Market u/s 25 of The Arms Act, 1959. The buttondar knife was seized and taken into possession by the police.
2. After investigation, a charge sheet was filed against the accused. Copy of charge sheet and other documents were supplied to the accused under section 207 The Code of Criminal Procedure, 1973 (hereinafter called as Cr.P.C)and thereafter charge under section 25 Arms Act was framed against him on 24.02.2021 to which he pleaded not guilty and claimed trial.
3. The prosecution examined two witnesses to establish its version. PW-1 HC Ratan Lal has deposed in his examination-in-chief that on 25.09.2020 that he was posted as Constable at PS Kamla Market and that he was on patrolling duty at beat GB Road, Kamla Market, Delhi. He further deposed that when he reached at Fassil Page 2 of 15 road, behind the Kota no.40, he saw a person who was coming from the side of Kota no.52, after seeing him on duty he turned back and started to walk hastily due to which he got suspicion on him and he apprehended him after chasing him for 15-20 steps. He deposed that he made the inquiry from the accused about the reason for walking hastily and he could not give any satisfactory answer regarding his walking away. Thereafter, he conducted a cursory search of the accused and found one buttondar knife from the right side of his pants. He deposed that he informed the whole incident to the Duty Officer in compliance to which he sent the IO ASI Gyan Prakash on the spot, on which he handed over the accused and a buttondar knife to him and informed about the incident. He deposed that IO asked 4 to 5 public persons to join the investigation but they refused to join and left the place on pretext of some urgent work and due to paucity of time IO could not serve the notice to the public persons. He deposed that IO prepared the sketch memo which is Ex.PW-1/A bearing his signature at point A and the total length of knife was 24 cm and the length of butt was 13 cm and width of blade was 2.7 cm having a button on the handle of knife. He further deposed that IO put the knife in the white pullanda and sealed it with the seal GP and the seal was handed over to him after use. IO prepared the seizure memo which is Ex.PW-1/B bearing his signature at point A and IO recorded his statement and prepared rukka over it which is Ex. PW-1/C bearing his signature at point A. He deposed that the same was handed over to him for the registration of the FIR and after registration of the FIR he came back to the spot and handed over the copy of the FIR, original tehrir and rukka to IO. Thereafter, IO prepared a site plan at his instance which is now Ex.PW1/D bearing his signature at point A. He further deposed that IO made the arrest of the accused and conducted the personal search vide memo which is Ex. PW- 1/E and Ex. PW-1/F and recorded the disclosure statement of the accused which is Ex. PW-1/G. Thereafter, the medical examination Page 3 of 15 of the accused was conducted. He deposed that after a Medical examination the accused was lodged up in lockup and IO recorded his statement U/s 161 Cr.P.C and set me free from the proceedings. PW-1 correctly identified the accused.
(At that stage, case property was produced by MHC(M) in a white pullanda having the particulars of the case on it and sealed with seal GP. The seal was intact. The white cloth pullanda was opened and it contains a button-actuated knife. The witness had a look of the knife and he has correctly identified the case property Ex.P-1).
During cross-examination of the witness by Ld. Counsel for the accused, PW-1 stated that he didn't know the accused prior to the incident. He denied the suggestion that the accused was previously known to him. He admitted that the incident spot was a crowded area, however it was night time only few people were passing through the road. He stated that IO did not give any notice to join the investigation to any public person and IO did not record the name and addresses of the public persons. He stated that he cannot tell whether the CCTV cameras were installed on the spot. He denied the suggestion that the IO did not obtain the CCTV footage because was not present at the spot and that no property was recovered from the accused or that the property was falsely implanted upon the accused. He further denied the suggestion that all the documents were prepared while sitting at the PS and that he is deposing falsely.
4. PW--2 ASI Gyan Prakash has deposed in his examination-in- chief that on 25.09.2020, he was posted as ASI at PS Kamla Market and he received the DD NO.88A regarding the recovery of the knife. Thereafter, he reached at the incident spot i.e. Fassil road, behind Kota no.40 and after reaching there, Ct. Ratan Lal handed over the accused and the buttondar knife to him and Page 4 of 15 informed about the incident. He deposed that he asked 4 to 5 public persons to join the investigation but they refused to join and left the place on pretext of some urgent work and due to paucity of time he could not serve the notice to the public persons. He deposed that he prepared a sketch memo which is Ex.PW-1/A bearing his signature at point B and the total length of knife was 24 cm and the length of butt was 13 cm and width of blade was 2.7 cm having a button on the handle of knife. Thereafter, he put the knife in the white pullanda and sealed it with the seal GP and the seal was handed over to Ct. Ratan Lal after use. He deposed that he prepared the seizure memo which is Ex.PW-1/B bearing his signature at point B and recorded the statement of Ct. Ratan Lal and prepared rukka over it which is Ex. PW-1/C bearing his signature at point B. The same was handed over to Ct. Ratan Lal for the registration of the FIR and after registration of the FIR Ct. Ratan Lal came back to the spot and handed over the copy of the FIR, original tehrir and rukka to him. He further deposed that he prepared a site plan at the instance of Ct. Ratan Lal which is Ex.PW1/D bearing his signature at point B. Thereafter, he made the arrest of the accused and conducted the personal search vide memo which is Ex. PW- 1/E and Ex. PW-1/F and recorded the disclosure statement of the accused which is Ex. PW- 1/G. He further deposed that the medical examination of the accused was conducted and after a Medical examination the accused was lodged up in lockup and deposited the case property in the malkhana. He recorded the statements u/s 161 Cr.P.C and After completion of the investigation he prepared the charge sheet and filed the same before the concerned court. PW-2 correctly identified the accused.
(At that stage, case property was produced by MHC(M) in a white pullanda having the particulars of the case on it and sealed with seal GP. The seal was intact. The white cloth pullanda was opened and it contains a button-actuated knife. The witness had a look of Page 5 of 15 the knife and he has correctly identified the case property Ex.P-1).
During cross-examination of the witness by Ld. Counsel for the accused, PW-2 stated that he didn't know the accused prior to the incident. He denied the suggestion that the accused was previously known to him. He admitted that the incident spot is a crowded area however it was night time only few people were passing through the road. He stated that he requested 4 to 5 public persons to join the investigation, however he did not give any notice to and addresses of the public persons. He stated that there are no CCTV cameras installed on the spot. He admitted that the sketch memo and the seizure memo were prepared before the registration of FIR. he denied that suggestion that the sketch memo and the seizure memo were made falsely and the details of the case were inserted later on. He further denied the suggestion that he did not obtain the CCTV footage because was not present at the spot and that no property was recovered from the accused or that the property was falsely implanted upon the accused. He further denied the suggestion that all the documents were prepared while sitting at the PS and he is deposing falsely.
5. Vide order dated 01.07.2022, the accused has made a statement u/s 294 Cr.P.C. and admitted the factum of G.D. No.0088A dated 25.09.2020 which is Ex.A-3, G.D. No. 0083A dated 25.09.2020 which is Ex.A-4 and DAD notification which is Ex.A-5 without admitting the content of the same by giving separate statements without oath.
6. The prosecution evidence was closed vide order dated 01.07.2022 and the statement of the accused were recorded under Section 313 read with section 281 of Cr.P.C., wherein he pleaded innocence and stated to be falsely implicated. The accused opted not to lead any evidence in his defence. Final arguments of the case were heard on Page 6 of 15 31.08.2022.
ANALYSIS AND FINDINGS
7. Learned APP for the state submitted that the prosecution has proved the case against the accused beyond a reasonable doubt for the alleged offence, and the accused be convicted for offence u/s 25 of Arms Act.
8. Per Contra, learned counsel for the accused submitted that there are severe discrepancies in the prosecution evidence. It is argued that despite admission by all prosecution witnesses that the place of alleged offence was a crowded place, no public/independent person was made witness. Further, it is submitted that testimonies of all police witnesses have not made it clear at what time of the day the alleged recovery has been made. Also, the seizure memo is doubtful as antedated for bearing the FIR number in it. Lastly, it is submitted that the present case is planted upon the accused and there is no CCTV footage to prove the presence of the accused at the spot.
9. I have heard the arguments addressed by the Ld. APP for state and the Ld. Counsel for the accused and carefully perused the documents on record. Before appreciating the evidence for deciding the present case, the applicable penal provision is reproduced in verbatim as follows:-
"25. Punishment for certain offences- (1B) Whoever- ...(b) acquires, has in his possession or carries in any place specified by notification under section 4 any arms of such class or description as has been specified in that notification in contravention of that section; or...
shall be punishable with imprisonment for a term which shall not Page 7 of 15 be less than 25 [one year] but which may extend to three years and shall also be liable to fine."
10. It is a cardinal principle of criminal jurisprudence that the prosecution is supposed to prove its case beyond reasonable doubts by leading reliable, cogent and convincing evidence to successfully bring home the guilt of the accused. Further, it cannot derive any benefits whatsoever from the weakness, if any, in the defence of the accused. The accused is entitled to the benefit of every reasonable doubt in the prosecution story and any such reasonable doubt in the prosecution case entitles the accused to acquittal.
11. Coming to the matter in hand, to sustain conviction u/s. 25 of Arms Act, the prosecution is required to prove the following ingredients:
I. The accused was found in the possession of the button actuated knife.
II. The accused was carrying the same without any license/permit or in contravention of notification of Delhi Administration.
12. In order to prove the guilt of the accused, the prosecution is required to prove the possession of a buttondar knife with the accused at the very spot, from where the accused was apprehended. As per the case of the prosecution, the accused was apprehended at around 11:10 pm behind Kotha no.40 G.B. Road at Fassil road, Kamla Market, which is a busy public place. Further, all the prosecution witnesses in unisom admitted in their cross-examination that the incident spot was a crowded area. The recovery is alleged to have been affected from a public place at around 11:00 P.M. Therefore, in all probability public persons must have been present around the place of recovery. It turns out that there was no lack of time and opportunity with the IO to associate some independent Page 8 of 15 witnesses with the search and strictly comply with the provisions of code of criminal procedure. Merely mentioning that public persons were requested to join the investigation is of no avail. The names of those persons are not mentioned. It is not mentioned as to what action was taken against those persons who refused to join the investigation.
13. Here, it is pertinent to refer to the judgment of the Hon'ble Supreme Court in State Of Punjab V. Balbir Singh AIR 1994 SC 1872, held that :
"It therefore emerges that non-compliance of these provisions i.e. Sections 100 and 165 Cr.P.C. would amount to an irregularity and the effect of the same on the main case depends upon the facts and circumstances of each case. Of course, in such a situation, the court has to consider whether any prejudice has been caused to the accused and also examine the evidence in respect of search in the light of the fact that these provisions have not been complied with and further consider whether the weight of evidence is in any manner affected because of the non-compliance. It is well-settled that the testimony of a witness is not to be doubted or discarded merely on the ground that he happens to be an official but as a rule of caution and depending upon the circumstances of the case, the courts look for independent corroboration. This again depends on the question whether the official has deliberately failed to comply with these provisions or failure was due to lack of time and opportunity to associate some independent witnesses with the search and strictly comply with these provisions. [Emphasis supplied]"
14. At this stage, it is crucial here to refer to section 100 of Cr.P.C. which is reproduced here:
100. Persons in charge of closed place to allow search.
(4) Before making a search under this Chapter, the officer or other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate or of Page 9 of 15 any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do.
(5) The search shall be made in their presence, and a list of all things seized in the course of such search and of the places in which they are respectively found shall be prepared by such officer or other person and signed by such witnesses; but no person witnessing a search under this section shall be required to attend the Court as a witness of the search unless specially summoned by it.
(8) Any person who, without reasonable cause, refuses or neglects to attend and witness a search under this section, when called upon to do so by an order in writing delivered or tendered to him, shall be deemed to have committed an offence under section 187 of the Indian Penal Code (45 of 1860 ).
Section 100 (4) of the CrPC casts a statutory duty on an official conducting search to join two respectable persons of the society. Further, it is clearly stated that if any such person refuses or neglects to be part of the search without citing any reasonable cause, it is the duty of an official to give him a notice in this regard.
15. In the present case, on perusal of the documentary records relied on by the prosecution, it is clear that neither the tehrir which is Ex.PW1/C or rukka, nor FIR which is Mark-A.1 mentioned any public witness or independent witness. The fact of not noting down the name or address of any witness in the diary, or giving notice to public persons who refused to be part of the investigation, casts doubt on the story of the prosecution that whether any serious efforts were made to join any public witness in the proceedings. All the prosecution witnesses examined in the present matter are police witnesses. The testimony of official witnesses doesn't find any corroboration from any independent source. In the opinion of this court, non-joining of independent/public witnesses is fatal to the prosecution case and creates serious doubts regarding the genuineness of investigation proceedings done at the spot.
Page 10 of 1516. In Roop Chand v. State of Haryana 1990(1) CLR 69, it was observed that such explanations that the public persons refused to join the proceedings are unreliable. Further, in Passi @ Prakash V. State of Haryana 2001(1) RCR 435, that whenever any recovery in connection with the place of the commission of the offence is made, public persons must be made witnesses. Also, in Pawan Kumar v/s Delhi Administration 1989 Cri. L.J. 127, it was observed that in case failure to join independent witness benefit of doubt must be given to the accused.
17. 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. 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 suspicion over the prosecution version.
18. The other major infirminty found in the present case is that as per the prosecution version, the buttondar knife has been recovered from the possession of the accused. To substantiate this allegation, the prosecution produced tehrir which mentioned sketch memo(Ex.PW1/A) and seizure memo (Ex.PW1/B) of the buttondar knife being made at the time of recovery. Further, as per the depositions of PW-1 and PW-2, the case property was first seized, a sketch of one button operated knife was prepared and then rukka was sent for registration of FIR. However, the seizure memo and sketch bear the FIR number. At the time of the seizure, the FIR number was not available and therefore, the FIR number could not have been figured on the seizure memo or the sketch. The existence of the FIR number on the seizure memo suggests that the seizure memo was prepared after the registration of the FIR. This erodes the credibility of the seizure memo and sketch memo as the possibility of tampering Page 11 of 15 can't be ruled out.
19. In paragraph 4 of Mohd. Hashim v. State, 1999 VI AD (Delhi) 569, the Hon'ble High Court of Delhi observed:
"... 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."
20. Another dent in the prosecution case is related to the seal. It is crucial to note here that there are three major discrepancies in this regard:
I. No seal-handling memo was prepared.
II. Seal not handed over to independent witness after use. III. Deposition of seal in Malkhana or any other place has not been proved.
21. All prosecution witnesses have deposed in their examination-in- chief that IO has seized and sealed the case property at the spot in white clothed pullanda with the seal of GP after that seal was handed over to PW-1. No handing over memo was prepared. The seal was handed over to the material prosecution witness, who is already interested in the case of the prosecution and not handed over Page 12 of 15 to an independent witness nor deposited in malkhana. No explanation has come on record as to why the memo was not made or seal was not handed over to an independent witness or deposited in malkhana. Further, the testimony of PW-1 nowhere mentioned about the factum of deposition of seal after its use at any point of time during investigation. The above said discrepancies speak of nothing but the possibility of tampering of case property.
22. This Court is conscious of precedent laid down by Hon'ble Delhi High Court in Safiullah v. State 1993 (1) RCR (Criminal) 622, that:
"The seals after use were kept by the police officials themselves. Therefore the possibility of tampering 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 tampered with. ..... Once a doubt is created in the preservation of the sample the benefit of the same should go to the accused."
23. This contradiction raises doubt regarding the time when site plan was prepared and mentioning of FIR number on the site plan if it had been prepared before registration of FIR also raises question regarding credibility of this document.
24. Another major loophole found in the present case is that as per the prosecution version, the buttondar knife has been recovered from the possession of the accused. To substantiate this allegation, the prosecution has relied on a site plan prepared by the IO to show the place of occurrence. After a careful perusal of testimonies of the witnesses, it is deposed with certainty that at the instance of PW-1, this site plan has been prepared by IO. PW-2 deposed that the site plan has been prepared at the instance of PW-1. PW-1 testified that the site had been prepared in his presence. If it is to be believed then Page 13 of 15 why he was not mentioned as witness in this site plan, when he is made witness in every other document prepared during investigation. This vagueness and irregularity during the investigation conducted by the police puts the story of the prosecution in question.
25. Concerning the personal search of the accused before the alleged recovery, it was stated by the PW-1 that he made a cursory search of the accused. Further, PW-1 has nowhere stated during his testimony that he asked the accused to search him before and then did the personal search of the accused. This fact was not mentioned in either tehrir or the statement of PW-1 recorded under section 161 Cr.P.C, which erodes the testimony of the PW-1. In the case of Orissa High Court reported as Rabindernath Prusty v/s State of Orissa, it was held that "One of the formalities that have to be observed in searching a person is that the searching Officer and other assisting him should give their search to the accused before searching the person of the accused." In the present case, no independent witness deposed about the search being done by the accused before his personal search whereby the buttondar knife was recovered from him. All these circumstances raise serious doubt regarding the fairness and credibility of investigation proceedings conducted by the police at the alleged date, time and place.
CONCLUSION
26. The facts that no independent witness was cited or examined and the appearance of FIR number and case particulars on the seizure memo, no seal handing memo, has not been explained, all aforesaid inconsistencies when kept in juxtaposition to each other, cast a cloud of suspicion over the prosecution version. In view of the aforesaid, the possibility of false implication of the accused in the present case Page 14 of 15 cannot be ruled out.
27. On careful perusal and analysis of the entire evidence, I find that there is no corroborative, consistent and sufficient evidence to make up the edifice of the prosecution case which has been produced by the prosecution. Given the aforementioned facts and circumstances, it has to be concluded that the prosecution has failed to prove its case against the accused beyond reasonable doubt. Therefore, the Accused is given the benefit of doubt. Accordingly, the accused Rafiq S/o Mohd. Rasul is hereby acquitted for an offence punishable under Section 25 of The Arms Act, 1959.
File be consigned to Record Room subject to compliance of section 437-A Cr.PC.
Digitally signed Announced in the open court MEENA by MEENA
CHAUHAN
CHAUHAN Date: 2022.09.14
today i.e. 14th day of September 2022 17:09:03 +0530
(MEENA CHAUHAN)
Metropolitan Magistrate-08
Central District, Tis Hazari Courts/Delhi
[This judgment contains15 signed pages]
[This judgment has been directly typed to dictation.] Page 15 of 15