Delhi District Court
Cr. Case/10806/2017 on 24 December, 2021
1 of 14
IN THE COURT OF ANURAG THAKUR
MM-02: CENTRAL DISTRICT: TIS HAZARI COURTS: DELHI
FIR No. 317/2017
PS Timarpur
U/s 25 Arms Act, 1959
State v. Manoj
CNR No. DLCT02-022056-2017
Date of institution of case: 13.09.2017
Date when judgment reserved: 24.12.2021
Date when judgment pronounced: 24.12.2021
JUDGMENT
Unique ID no. of the case : 10806/2017
Date of commission of offence : 12.07.2017
Name of complainant : Ct. Vinod Kumar, No. 2240/N,
PS Timarpur.
Name and address of accused : Manoj s/o Ved Prakash
R/o. 276/176, Zero Number Gali,
Wazirabad. Timarpur, Delhi.
Offence complained of : U/s 25 Arms Act, 1959
Plea of accused : Not guilty
Date of order : 24.12.2021
Final order : Acquitted
BRIEF REASONS FOR DECISION OF THE CASE
1. Succinctly, case of the prosecution is that on 12.07.2017 at about 05.00 p.m. at Zero Number Gali, Wazirabad, Delhi, accused Manoj was found in possession of a button actuated knife without any permit or licence for possessing the same in contravention of notification no. F-13/203/78,HOME (G) dated 17.02.1979 and thereby committed an offence punishable u/s 25 of The Arms Act, 1959 and thus, the present FIR was lodged at PS Timarpur.
2. Upon conclusion of investigation, final report was filed against the accused.
ANURAG Digitally signed by
ANURAG THAKUR
THAKUR Date: 2021.12.25
22:01:53 +05'30'
FIR No. 317/17 State v. Manoj PS Timarpur
2 of 14
Cognizance of offence punishable u/s 25 Arms Act, 1959 was taken. Upon summoning, the accused appeared and copy of charge sheet was supplied to him in compliance of Section 207 of The Code of Criminal Procedure, 1973 (hereinafter called as Cr.P.C). Thereafter, charge for offence punishable u/s 25 Arms Act, 1959 was framed against accused on 05.09.2018 to which he pleaded not guilty and claimed trial.
3. Thereafter, prosecution was given opportunity to substantiate the allegations against the accused. The prosecution examined four witnesses in support of its case:-
PW-1 Ct. Sunil Kumar had testified that on 12.07.2017 he was posted at PS Timarpur as Constable. On that day he along with Ct. Vinod were performing patrolling duty in the area of Beat No. 8 and at about 05:00 PM when they reached near Zero number gali, Wazirabad where they saw that one person was coming towards them and on looking at them, he turned back and moved swiftly. They become suspicious about him and after running, they apprehended him. Ct. Vinod searched accused person and upon cursory search, one buttondar knife was recovered from the right pocket of his worn pant. Ct. Vinod relayed the said information to PS. After some time IO ASI Satender Singh reached at spot. Ct. Vinod narrated the whole incident to IO and handed over the accused and case property to him. IO recorded the statement of Ct. Vinod and prepared tehrir and handed over the same to Ct. Vinod for registration of FIR at PS. After registration of FIR, Ct. Vinod came back at the spot and handed over the copy of FIR and original rukka to IO ASI Satender Singh. Thereafter, IO wrapped the aforesaid buttondar knife in a white cloth and sealed the same and seal after its use was handed over to Ct. Vinod. IO arrested accused and prepared the arrest memo Ex.PW1/A in his presence and IO also conducted his personal search and prepared personal search memo ANURAG Digitally signed by ANURAG THAKUR THAKUR Date: 2021.12.25 22:02:23 +05'30' FIR No. 317/17 State v. Manoj PS Timarpur 3 of 14 Ex.PW1/B in his presence. Thereafter, they took the accused to PS. Case property was deposited in malkhana. Accused was put behind bars. IO recorded his statement. PW-1 correctly identified the accused and the case property in white pullanda bearing FIR No. 317/17 u/s 25/54/59 A Act bearing seal of 'SS'. Seal was broken and white pullanda was opened which was found to contain one button actuated knife which was already exhibited as EX.PW.2/A. The witness correctly identified the same as the same knife which was recovered from the accused. Court observation: The blade of the knife was 9.7 cm long and the handle of the knife was 11 cm long as measured from the standard steel scale. The total length of the knife aggregated to 20.7 cm.
During cross-examination by Ld. LAC, he disclosed that on 12.07.2017 he was on beat duty and his duty hours were from 9 a.m to 10 p.m. He did not remember the DD number by which he left the PS for patrolling. He was on foot and Ct. Vinod accompanied him. He did not remember the exact time of leaving the PS on that day. After about two hours of leaving the PS, they found the accused. He admitted that he had knowledge about the BCs of the area of his beat. He admitted that the accused resided in the area of his beat on that day. PW-1 voluntarily stated that accused was not a permanent resident of his beat area. He admitted that the accused resided in the street adjacent to the spot. The accused at that time was wearing a pant and a shirt but he did not remember the colour etc. of the clothes of the accused. First of all Ct. Vinod conducted search of accused and besides the buttondar knife, nothing was recovered from the person of the accused. No public persons were asked to be part of investigation at the time of conducting personal search of accused. They did not offer the accused to conduct their personal search prior to conducting his personal search. He did not remember whether CCTV cameras were installed in the street or not. No family member of accused was asked to be part of the investigation. Information was sent first of all to PS at 5:15 p.m ANURAG Digitally signed by ANURAG THAKUR THAKUR Date: 2021.12.25 22:02:44 +05'30' FIR No. 317/17 State v. Manoj PS Timarpur 4 of 14 through telephone. Ct. Vinod had made the telephone call but he did not know at which number the call was made and from which number. At 5:30 p.m the IO ASI Satender came at the spot. First of all, ASI Satender prepared the tehrir. He admitted that at the time of arrival of IO, the knife was in possession of Ct. Vinod and Ct. Vinod handed over the knife to IO. ASI Satender prepared the sketch of knife, site plan but he did not remember the nature of other documents prepared by the IO at the spot. He signed on two or three documents i.e. arrest memo, personal search memo on the spot. His statement was not recorded at the spot but his statement was recorded on that day in the PS. He admitted that he had signed on his statement in the PS. Ct. Vinod left for the PS at 6 p.m for registration of the FIR and after registration of case, he came back at the spot at about 7 p.m. When Ct. Vinod came back at the spot, till that time, the IO was still interrogating the accused and till then, the IO had already prepared the site plan and the sketch of knife. The scale was used for preparation of sketch of knife. He did not know the details of the scale used. Arrest memo was prepared after Ct. Vinod came back to the spot, however, he did not remember what all documents were prepared after Ct. Vinod came back. He remember that the knife was sealed with the seal of 'SS' by placing the same in cloth after Ct. Vinod came at the spot. Seal after use was kept by the IO. They remained at the spot till 8 p.m and reached the PS at about 8:15 p.m. He alonwith Ct. Vinod, IO ASI Satender and accused went to the PS. IO made the DD entry regarding the arrival at PS but he did not remember that DD number. Ct. Vinod accompanied him to the hospital for medical examination of the accused, they departed from the PS at 11 p.m. That DD entry was also made by IO. He did not remember the DD number. They remained at the hospital till 1:30 a.m and arrived at PS at around 1:45 a.m on 13.07.2017. He informed the IO regarding arrival at PS, however, he did not remember whether IO had made any DD entry or not. He was not part of ANURAG Digitally signed by ANURAG THAKUR THAKUR Date: 2021.12.25 22:03:04 +05'30' FIR No. 317/17 State v. Manoj PS Timarpur 5 of 14 investigation after that date and time. He denied the suggestion that nothing had been recovered from the possession of the accused or that accused had been falsely implicated in the present FIR. He further denied that all proceedings were conducted while sitting in the PS.
4. PW-2 Ct. Vinod Rana had testified that on 12.07.2017 he was posted at PS Timarpur as Constable. On that day, he along with Ct. Sunil were performing patrolling duty in the area of Beat No. 8 and at about 05:00 PM when they reached near Zero number gali, Wazirabad, they saw that one person was coming towards them and on looking at them he turned back and moved swiftly. They become suspicious about him and after running, they apprehended him. He and Ct. Sunil searched accused and upon cursory search, one buttondar knife was recovered from the right pocket of his worn pant. He passed the said information to PS. After some time IO ASI Satender Singh reached at spot. He narrated the whole incident to IO and handed over the accused and case property to him. IO recorded his statement. IO placed the recovered knife on a white paper and prepared its sketch and same was exhibited as Ex.PW2/A bearing his signature at point A. IO seized the said knife and prepared seizure memo Ex.PW2/B bearing his signature at point A. Thereafter, IO wrapped the aforesaid buttondar knife in a white cloth and sealed the same and seal after its use was handed over to him. Thereafter, IO prepared tehrir and handed over the same to him for registration of FIR at PS. After registration of FIR, he came back at the spot and handed over the copy of FIR and original rukka to IO ASI Satender Singh. IO ASI Satender Singh prepared site plan at his instance and same was exhibited as Ex. PW2/C bearing his signature at point A. IO arrested accused, who after inquiry revealed his name as Manoj vide arrest memo already exhibited as Ex. PW1/A in his presence bearing his signature at point A and IO also conducted his ANURAG Digitally signed by ANURAG THAKUR THAKUR Date: 2021.12.25 22:03:25 +05'30' FIR No. 317/17 State v. Manoj PS Timarpur 6 of 14 personal search vide memo already exhibited as Ex. PW1/B in his presence bearing his signature at point A. Thereafter, they took the accused to PS. Case property was deposited in malkhana. Accused was put behind bar. IO recorded his statement. PW-2 correctly identified the accused. Further examination of this witness was deferred for want of case property on that day. Afterwards, the witness could not be examined as he suffered a paralytic attack and was reportedly unable to speak or walk and was confined to bed. Accordingly, the testimony of this witness could not be read against the accused.
5. PW-3 HC Kiranpal Singh had testified that on 12.07.2017 he was posted at PS Timarpur and was on duty as DO from 4.00 p.m. to 12 midnight. Ct. Vinod informed telephonically on the landline of PS Timarpur that a person had been caught alongwith a buttondar knife at Zero number gali, Wazirabad. He entered the information in Roznamcha at DD No.47A and the copy of the same available on case file was exhibited as Ex.PW3/A (OSR).
During cross-examination by Ld. LAC for accused, he did not remember the telephone number of the landline of PS Timarpur on which he received the information. He did not know from which mobile or telephone number the information was given to him. He received the information at 5.11 p.m. and he informed ASI Satender and marked the DD 47A to him telephonically. He denied the suggestion that the DD entry was ante dated and ante time. He denied the suggestion that the DD entry had been falsely made in order to lodge a false case.
6. PW-4 ASI Satyendra Singh had testified that on 12.07.2017 he was present at PS Timarpur. Duty Officer marked DD No. 47A to him. He went to the spot i.e. Zero number gali, Wazirabad, alone. When he reached there Ct. Vinod and Ct. Sunil were at the spot. Ct. Vinod handed over the accused and the knife which ANURAG Digitally signed by ANURAG THAKUR THAKUR Date: 2021.12.25 22:03:43 +05'30' FIR No. 317/17 State v. Manoj PS Timarpur 7 of 14 was recovered from the possession of the accused. He prepared the sketch memo of the said knife which was already exhibited as Ex.PW.2/A bearing his signature at point B. He recorded the statement of Ct. Vinod and rukka was prepared bearing his signature at point A which was exhibited as Ex.PW.4/A bearing his signature at point A. For the registration of the FIR, he sent Ct. Vinod alongwith the rukka to the PS Timarpur. After the registration of the FIR, Ct. Vinod came back to the spot and handed over the original FIR and rukka. Thereafter, with 'SS' seal, he seized the said knife already exhibited Ex.PW.2/B bearing his signature at point B which was recovered from the possession of accused and the seal was handed over to him by Ct. Vinod. He prepared site plan at the instance of Ct. Vinod which was already exhibited as Ex.PW.2/C. Thereafter, he made the arrest memo of the accused which was already exhibited as Ex.PW.1/A bearing his signature at point B. He also made personal search of the accused and the same was already exhibited as Ex.PW.1/B bearing his signature at point A. He also recorded the disclosure statement of the accused Ex.PW.4/B bearing his signature at point A. Thereafter, Ct. Vinod and Ct. Sunil took the accused for medical examination at AAA hospital. Thereafter, the accused was locked in the PS and on the next day, he was produced before the court. He had recorded the statements of Ct. Vinod and Ct. Sunil on 12.07.2017. PW-4 correctly identified the accused.
During cross-examination by Ld. LAC for accused, he stated that he left the PS after receiving the DD no. 47A at around 05:15 PM. He reached at the spot on his private motorcycle alone. However, he did not mention his motorcycle registration number on DD. Ct. Vinod produced accused and recovered knife before him. He requested 4-5 passer-by to join the investigation but none of them joined. He prepared the unscaled sketch memo of recovered knife by putting the same on a paper. He reached at the spot within 5-10 minutes after receiving the DD. He denied the suggestion that the ANURAG Digitally signed by ANURAG THAKUR THAKUR Date: 2021.12.25 22:04:07 +05'30' FIR No. 317/17 State v. Manoj PS Timarpur 8 of 14 recovered knife was planted on accused. He recorded the statement of Ct. Vinod and thereafter, he handed over the rukka to Ct. Vinod for the registration of the case. Ct. Vinod left the spot at around 06:30 pm for the PS for the registration of FIR. Ct. Vinod came back at the spot at about 07:30 pm. Thereafter, he prepared the arrest memo, personal search memo and also recorded the disclosure statement of the accused. He did not remember the clothes which were worn by the accused at the time of arrest. He admitted that cursory search of the accused had already been conducted before he arrived. There was no CCTV camera installed at the place of incident. He denied the suggestion that there were many CCTV cameras available but he deliberately did not take the footage as it would have proved the innocence of the accused. He did not take any chance print from the recovered knife. He sealed the case property with his seal and handed over the same to Ct. Vinod, however he did not prepare any handing over memo of the seal. He admitted that after they left the spot, they went to the AAA Hospital for the medical examination of the accused before reaching to the PS. He did not remember the time when they left the spot. They went to the hospital in a private car which belonged to the constable Vinod. However, he did not remember the registration number of that car. He left his private motorcycle at the spot. Ct. Vinod was driving the car and he alognwith accused and Ct. Sunil were sitting at back side of the car. He did not remember when they reached at the PS, however it was too late. He made the arrival entry but he did not remember whether the same was placed on record or not. He recorded the statement of Ct. Vinod at the spot and the statement of 161 Cr.P.C of Ct. Vinod and Ct. Sunil and recorded at the PS on 12.07.2017. He admitted that statement of Ct. Vinod and Ct. Sunil were recorded after coming back from the hospital. He admitted that the spot was crowded place. He denied the suggestion that the father of accused was having a stall near the spot and there was some altercation regarding the place where ANURAG Digitally signed by ANURAG THAKUR THAKUR Date: 2021.12.25 22:04:28 +05'30' FIR No. 317/17 State v. Manoj PS Timarpur 9 of 14 he used to put up his stall and due to this, accused was falsely implicated. He denied the suggestion that nothing was recovered from the possession of the accused or that all the proceedings and documents were prepared while sitting in the PS or that he had deposed falsely.
7. Thereafter, the prosecution evidence was closed on 16.12.2021. Statement of the accused u/s 313 r/w section 281 Cr.P.C was recorded on 20.12.2021 in which he stated that he was innocent and had been falsely implicated in the case. He also submitted that he did not want to lead defence evidence. Final arguments in the matter were heard on 24.12.2021.
8. Learned APP for the state submitted that the prosecution has adduced cogent evidence and even the witnesses have largely supported the case. He claimed that the allegations have been substantiated beyond a shadow of doubt and thus, the accused be convicted for offence u/s 25 of the Arms Act.
9. Per Contra, learned defence counsel (LAC) submitted that relevant DD entry record of patrolling by police personnel has not been produced. He claimed that the seizure memo and sketch of buttondar knife are doubtful as being antedated for bearing the FIR number. He stated that the handing over memo of seal after use was not prepared and the button actuated knife was planted upon the accused. He prayed that the accused be acquitted.
10.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 adverting to the appreciation of evidence for deciding the present case, the applicable penal provision is reproduced in verbatim as follows:-
25. Punishment for certain offences-Digitally signed
ANURAG by ANURAG THAKUR THAKUR Date: 2021.12.25 22:04:47 +05'30' FIR No. 317/17 State v. Manoj PS Timarpur 10 of 14 (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 be less than one year but which may extend to three years and shall also be liable to fine."
It is cardinal principle of criminal jurisprudence that the prosecution is supposed to prove its case beyond reasonable doubt by leading cogent and convincing evidence to successfully bring home the guilt of the accused. Coming to the matter in hand, to sustain conviction u/s 25 of the Arms Act, the prosecution is required to prove the following ingredients:-
(I) The accused was found in the possession of button actuated knife. (II) The accused was carrying the same without any licence or permit or in contravention of notification of Delhi Administration.
My observations on the evidence lead at the trial are delineated hereinafter.
11.Firstly, the independent public persons though available at the spot were not joined as witnesses to the proceedings. Both PW-1 and PW-4 testified that independent public persons were present at the spot. PW-4 also testified that he asked the public persons to be part of investigation but they refused to join the same. Why names of those persons who refused to join the investigation were not noted is beyond the understanding of this court. The fact of not noting down the name or address of any public person in the case diary, or not giving notice to public persons who refused to be part of the investigation, casts doubt on the story of the prosecution that serious efforts were made to join any independent person in the proceedings. All the prosecution witnesses examined in the present matter are police witnesses. The testimony of official witnesses does not find any corroboration from any independent source. In the opinion of this court, non-joining of independent/public witness is fatal to the prosecution case and create serious doubts regarding the genuineness of investigation done ANURAG Digitally signed by ANURAG THAKUR THAKUR Date: 2021.12.25 22:05:06 +05'30' FIR No. 317/17 State v. Manoj PS Timarpur 11 of 14 at the spot. 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, it was held 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. Delhi Administration 1989 Cri. L.J. 127, it was observed that in case of failure to join independent witness benefit of doubt must be given to the accused.
12.Secondly, as per the prosecution version, a button actuated knife had been recovered from the possession of the accused. To substantiate this allegation, the prosecution produced rukka which mentioned preparation of sketch of knife and seizure memo of knife at the time of recovery. Further, as per the depositions of PW-1 and PW-4, the case property was first measured, sketched and seized and only thereafter, the 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 figured on the seizure memo or the sketch. The existence of the FIR number on the seizure memo and sketch of knife suggests that the seizure memo was prepared after the registration of the FIR. This erodes the credibility of the witnesses who have stated that the seizure memo and sketch were prepared on the spot and before the registration of FIR. The possibility of tampering cannot be ruled out. Here, it is relevant to refer to case law reported as Mohd. Hashim v. State 1999(6) A.D. (Delhi) 569, wherein it was observed that when documents are prepared before the registration of FIR and it contains the FIR number, then inference has to be drawn that either FIR was recorded prior in time or the documents were prepared later on and in such cases benefit of the doubt is to be given to the accused.
ANURAG Digitally signed by
ANURAG THAKUR
THAKUR Date: 2021.12.25
22:05:26 +05'30'
FIR No. 317/17 State v. Manoj PS Timarpur
12 of 14
13.Thirdly, the DD entry by which PW-1 and PW-2 left the PS for patrolling duty has not been placed on record and tendered in evidence. Rule 49 of Chapter 22 of the Punjab Police Rules, 1934 is reproduced herein for ready reference:-
22.49 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 nature of their duty. This entry shall be made immediately on arrival or before 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.
Moreover, the relevant entries regarding the arrival and departure of the police officials have not been proved on record. Therefore, their presence at the alleged date, time and place of recovery of the button actuated knife from the possession of the accused is doubtful. At this point, it is relevant to refer to case law reported as Rattan Lal v. State, 1987 (2) Crimes 29, wherein the 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 the 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.
14. Another dent in the prosecution case is related to the seal. Both PW-1 and PW-
4 have deposed in their examination-in-chief that PW-1 had seized and sealed the case property at the spot in cloth pullanda with the seal of SS. After that seal was handed over to PW-2. 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 neither handed over to an independent witness nor deposited in Malkhana. Moreover, in his cross-examination, PW-1 ANURAG Digitally signed by ANURAG THAKUR THAKUR Date: 2021.12.25 22:05:47 +05'30' FIR No. 317/17 State v. Manoj PS Timarpur 13 of 14 stated that seal after use was kept by the IO! No explanation has come on record as to why handing over memo was not made or seal was not handed over to an independent witness or deposited in malkhana.
15. PW-1 stated in his testimony that he and PW-2 did not afford the accused the chance to search their person before proceeding to conduct his cursory search so as to eliminate the chance of planting of illegal arms. In the case of Orissa High Court reported as Rabindernath Prusty v. State of Orissa, 1984 CriLJ 1392 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 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 proceedings conducted by the police at the alleged date, time and place.
16. There are other contradictions in the case of prosecution like PW-1 and PW-4 making contradictory statements about first taking accused to hospital or PS and who all went to hospital. Then there is also the issue of use of car for taking the accused to hospital. IO stated that the accused was taken to hospital in car of Ct. Vinod but no other witness (including Ct. Vinod) deposed about the use of any car for taking the accused to hospital. IO also deposed that he prepared the unmeasured sketch of the recovered knife but this statement is contrary to statement of PW-1 who stated that scale was used for making the sketch. Though measurements of knife are mentioned in the sketch but they did not match with the knife produced during trial. On careful perusal and analysis of the entire evidence, I find that there are no corroborative, consistent and ANURAG Digitally signed by ANURAG THAKUR THAKUR Date: 2021.12.25 22:06:06 +05'30' FIR No. 317/17 State v. Manoj PS Timarpur 14 of 14 sufficient evidence to make up the edifice of the prosecution case. 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. Accordingly, the accused is given the benefit of doubt. Consequently, the accused Manoj is acquitted of the offence punishable u/s 25 of the Act.
Announced in the open court on 24th December, 2021. ANURAG Digitally signed by ANURAG THAKUR THAKUR Date: 2021.12.25 22:06:28 +05'30' (ANURAG THAKUR) METROPOLITAN MAGISTRATE -02 TIS HAZARI COURTS, DELHI This judgment consists of 14 pages and each and every page of this judgment is signed by me.
FIR No. 317/17 State v. Manoj PS Timarpur