Delhi District Court
State vs Sanwar Khan@Sanowar Khan@Sonu on 30 January, 2024
IN THE COURT OF MS. BHARTI BENIWAL, METROPOLITAN
MAGISTRATE-11, DWARKA COURT, NEW DELHI
FIR No.402/2023
PS Janakpuri
State Vs. Sanwar Khan @ Sanowar Khan @ Sonu
U/s 25/54/59 Arms Act
CNR No. : DLSW020584162023
Cr Case No. : 12583/2023
Date of institution of the case : 09.11.2023
Date of commission of offence : 12.10.2023
Name of the complainant : HC Hemant
Name of accused and address : Sanwar Khan @ Sanowar
Khan @ Sonu
S/o Sh.Yamin Khan
R/o H.No.WZ-68/50, JJ
Colony, Pankha Road,
Uttam Nagar, New Delhi
Offence complained of : U/s 25/54/59 Arms Act
Plea of the accused : Pleaded not guilty.
Ld. APP for the State : Sh.Amit Sehrawat
State Vs.Sanwar Khan
FIR No.402/2023
Page No.1/14
Final order : Acquittal
Date of reserving the judgment : Not reserved
Date of judgment : 30.01.2024
JUDGMENT
1. The brief facts of the case of the prosecution are that on 12.10.2023 at about 11 : 20 P.M. at Pankha Road, Near Desu Colony, Janakpuri, New Delhi, accused Sanwar Khan was found in possession of one button operated knife and after completion of the investigation, charge-sheet was filed against the accused u/s 25/54/59 Arms Act.
2. On receipt of chargesheet, cognizance of offence was taken and accused was summoned. After supply of copy of chargesheet, a formal charge was framed u/s 25/54/59 of Arms Act against the accused to which he pleaded not guilty and claimed trial.
3. Prosecution has examined 3 witnesses to prove its case.
4. Prosecution examined ASI Palwinder as PW1. He deposed that on intervening night of 12/13.10.2023, he received a rukka from HC Hemant and he registered the FIR on the said Rukka. FIR is Ex. PW1/A. He also produced certificate u/s 65 B State Vs.Sanwar Khan FIR No.402/2023 Page No.2/14 of Indian Evidence Act Ex. PW1/B. He also made DD entry 190A Ex. PW1/C.
5. Prosecution examined HC Hemant as PW2. He deposed that on 12.10.2023, he was patrolling near DESU Colony, Pankha Road, Janakpuri and as he reached near DESU Colony Bus Stand, he saw one person coming on foot alongwith a Scooty from the wrong side of the road i.e. from Kali Mata Mandir side. As soon as accused saw the witness, he turned around and started walking quickly alongwith the scooty. On seeing his conduct, he got suspicious. Thereafter, the witness ran and apprehended him. Witness inquired him about the documents of the scooty to which he did not give any satisfactory answer and tried to evade his questions. Thereafter, he verified the same of Zip net and found the said scooty was a stolen in E-FIR No.030930/2023 dt. 07.10.2023 from P.S. Laxmi Nagar. He conducted his prima facia search and found one button operated knife from right pocket of his trouser thereafter, he informed the DO telephonically regarding the same. The said DD entry is Ex.PW1/C. After sometime, HC Rajesh came to the spot and witness handed over the accused and recovered knife to him. IO recorded his statement at the spot which is Ex.PW2/A. IO prepared Tehrir over the same and handed over the same to him for registration of FIR. He went to P.S and came back with copy of FIR and original Tehrir and handed over the same to HC Rajesh. IO prepared sketch of the recovered knife vide sketch memo Ex. PW2/B. The total length of knife was 23 CM, length of the blade State Vs.Sanwar Khan FIR No.402/2023 Page No.3/14 was 10.5 CM, the length of the but was 12.5 CM. IO seized the said knife vide seizure memo Ex.PW2/C. IO further seized the Scooty vide seizure memo Ex.PW2/C. IO prepared site plan at the instance which is Ex.PW2/D. IO formally arrested the accused vide arrest memo Ex.PW2/E and conducted his personal search vide memo Ex.PW2/F and recorded his disclosure statement which is Ex. PW2/G. Thereafter, he took the accused for medical examination to DDU Hospital in ERV. Subsequently, he was taken to P.S. and case property was deposited in Malkhana in P.S. Janakpuri. Accused was present in the court and he was correctly identified by the witness.
MHC(M) produced one white pullanda bearing the seal of RK. Seal is broken and one button operated knife was taken out and same was correctly identified by the witness.
6. Witness was cross examined by ld. ld. Legal Aid Counsel wherein he stated that he was on night duty on the day of the incident and it was about 11:15 P.M. He did not seize the trouser of the accused from which the case property was recovered. HC Rajesh came to the spot at about 11:50 P.M. He came back to the spot with the copy of FIR at about 2 A.M. Witness denied the suggestion that accused was arrested before the actual arrest of the accused. IO made the sketch of knife by tracing it.
7. Prosecution examined HC Rajesh Kumar as PW3. He deposed that on 12.10.2023, he received information via DD No. State Vs.Sanwar Khan FIR No.402/2023 Page No.4/14 190A and thereafter, he reached at the spot and Ct. Hemant handed over the accused and recovered knife to him. He recorded his statement at the spot which is Ex.PW2/A. He prepared Tehrir which is Ex.PW3/A and handed over the same to HC Hemant for registration of FIR. He went to P.S and came back with copy of FIR and original Tehrir and handed over the same to witness. Witness asked 3-4 Public persons to join the investigation but none joined citing their personal reasons. Witness prepared sketch of the recovered knife vide sketch memo Ex.PW2/B. The total length of knife was 23 CM, length of the blade was 10.5 CM, the length of the butt was 12.5 CM. IO seized the said knife vide seizure memo Ex.PW2/C. He further seized the scooty vide seizure memo Ex.PW2/C. He prepared site plan at the instance of HC Hemant which is Ex.PW2/D. He formally arrested the accused vide arrest memo Ex.PW2/E and conducted his personal search vide memo Ex.PW2/F and recorded his disclosure statement which is Ex.PW2/G. He further recorded supplementary disclosure of the accused which is Ex.PW3/B. He further seized one sac containing two battaries one AC wire and one iron and seized the same vide memo Ex.PW3/C. The site plan of said recovery is Ex.PW3/D. Pointing out memo of place of recovery is Ex.PW3/E. Thereafter, HC Hemant took the accused for medical examination to DDU Hospital in ERV. Subsequently, he was taken to P.S. and case property was deposited by him in Malkhana in P.S. Janakpuri. Accused was present in the court and he was correctly identified by the witness.
State Vs.Sanwar Khan FIR No.402/2023 Page No.5/14 MHC(M) produced one white pullanda opened in the testimony of PW2 containing one button operated knife and same was correctly identified by the witness.
8. Witness was cross examined by ld. Legal Aid Counsel for accused wherein he stated that he reached at the spot at about 11:50 P.M. He did not seize the trouser of the accused person from which the case property was recovered. HC Hemant came back to the spot with the copy of FIR at about 01 : 35 A.M. He prepared the sketch of the case property by tracing with the pen and measured its length by a Scale. The case property was seal with the seal of RK and same was handed over to HC Hemant.
9. Vide separate statement recorded u/s 294 Cr.P.C, accused had admitted the documents MHC(M) PS Janakpuri with register no.19 Ex.A1 and concerned Clerk Office Home (General) Delhi, Administration Delhi, with original DAD Notification No.F- 13/451/179 Home (General) Dt.29.10.1980 Ex.A2. Hence the above documents were ordered to be read in evidence without its formal proof.
10. No other witness was examined by prosecution and hence, PE was closed vide order dt.22.12.2023.
11. Statement of accused under Section 313 Cr.P.C. was recorded wherein the entire incriminating evidence was put to State Vs.Sanwar Khan FIR No.402/2023 Page No.6/14 him. According to him, he has been falsely implicated in the present case. Accused chose not to lead any evidence in his defence and hence, the matter was put up for final arguments.
12. Final arguments were thereafter heard on behalf of State as well as the accused.
13. After hearing Sh.Amit Sehrawat, Learned Assistant Public Prosecutor for the state and Ms.Priyanka, ld. CLADC for the accused and having gone through the case file carefully and meticulously, it is observed by the court that it is the case of prosecution that on the fateful day accused was found in possession of one buttondar knife. The court is of the view that to prove the charge against the accused, the prosecution is required to prove the allegation beyond reasonable doubt.
14. The relevant portion of Arms Act is reproduced as under:
Section 25: Punishment for certain offences:
(1) whoever-
(a) Manufactures, sells, transfers, converts, repairs, tests or proves, or exposes or offers for sale or transfer, or has in his possession for sale, transfer, conversion, repair, test or proof, any arms or ammunition in contravention of section 5; or State Vs.Sanwar Khan FIR No.402/2023 Page No.7/14
(b) Shortens the barrel of a firearm or converts an imitation firearm into a firearm in contravention of section 6; or 2[***]
(c) bring into, or takes out of, India, any arms or ammunition of any class or description in contravention of section 11, shall be punishable with imprisonment for a term which not be less than three years but which may extend to seven years and shall also be liable to fine.
15. In the case in hand, the incident took place at Pankha Road, Near Desu Colony, Janakpuri, at about 11 : 20 PM. In examination of PW3 HC Rajesh Kumar, it has specifically been stated by him that 3-4 persons were asked by him to join the investigation but none of them agreed. It is apparent from testimony of the investigating officer that the spot of incident is a crowded place and few public persons were also passing by at the time of alleged incident. Despite that the complainant, being a public servant, did not bother to join any independent witness in the investigation. I have also perused the cross examination of the investigating officer, and he has failed to explain the reason for not joining independent witness in the investigation. Although it has been mentioned by him that he had asked the public persons to join the investigation, but none-joined citing their personal reasons. No notice under section 160, CrPC has been issued by the investigating person to any of the public persons, if at all they were present, and investigating officer not even State Vs.Sanwar Khan FIR No.402/2023 Page No.8/14 bothered to make a genuine effort to join them in the investigation process. Thus, the prosecution has failed to prove that any serious effort was made by any of the witnesses to join public witness in the proceedings. It is a well settled proposition that non-joining of public witness shrowds doubt over the fairness of the investigation by police.
16. In case law reported as "Anoop Joshi Vs. State"
1992 (2) C.C. Cases 314 (HC), High Court of Delhi had observed as under:-
"18. It is repeatedly laid down by this Court in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evidence that no such sincere efforts have been made, particularly when we find that shops were open and one or two shop-keepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the shopkeepers had declined to join the raiding party, the police could have later on taken legal action against such shopkeepers because they could not have escaped the rigours of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC".
17. In a case law reported as "Roop Chand Vs. The State of Haryana" 1999 (1) C.L.R. 69, the Punjab & Haryana High Court held as under:
State Vs.Sanwar Khan FIR No.402/2023 Page No.9/14 "3. I have heard the learned counsel for the parties and gone through the evidence with their help. The recovery of illicit liquor was effected from the possession of the petitioner during noon time and it is in the evidence of the prosecution witnesses that some witnesses from the public were available and they were asked to join the investigation. The explanation furnished by the prosecution is that the independent witnesses were asked to join the investigation but they refused to to so on the ground that their joining will result into enmity between them and the petitioner".
"4. It is well settled principle of the law that the Investigating agency should join independent witnesses at the time of recovery of contraband articles, if they are available and their failure to do so in such a situation casts a shadow of doubt on the prosecution case. In the present case also admittedly the independent witnesses were available at the time of recovery but they refused to associate themselves in the investigation. This explanation does not inspire confidence because the police officials who are the only witnesses examined in the case have not given the names and addresses of the persons contacted to join it is a very common excuse that the witnesses from the public refused to join the investigation. A police officer conducting investigation of a crime is entitled to ask anybody to join the investigation and on refusal by a person from the public the Investigating Officer can take action against State Vs.Sanwar Khan FIR No.402/2023 Page No.10/14 such a person under the law. Had it been a fact that the witnesses from the public had refused to join the investigation, the Investigating Officer must have proceeded against them under the relevant provision of law. The failure to do so by the police officer is suggestive of the fact that the explanation for non-joining the witnesses from the public is an after thought and is not worthy of credence. All these facts taken together make the prosecution case highly doubtful".
18. Non joining of public witnesses despite availability casts a doubt on the fairness of the investigation. Reliance is placed on paragraph 6 of the judgment in Pawan Kumar v. The Delhi Administration, 1989 Cri.L.J. 127, wherein the Hon'ble High Court of Delhi had observed as under:
" ... According to Jagbir Singh, he did not join any public witness in the case while according to Kalam Singh, no public person was present there. It hardly stands to reason that at a place like a bus stop near Subhas Bazar, there would be no person present at a crucial time like 07.30 p.m. when there is a lot of rush of commuters for boarding the buses to their respective destinations. Admittedly, there is no impediment in believing the version of the Police officials but for that the prosecution has to lay a good foundation. At least one of them should deposed that they tried to contact the public witnesses or that they refused to join the investigation. Here is a case where no effort State Vs.Sanwar Khan FIR No.402/2023 Page No.11/14 was made to join any public witness even though number of them were present. No plausible explanation from the side of the prosecution is forthcoming for not joining the independent witnesses in a case of serious nature like the present one. It may be that there is an apathy on the part of the general public to associate themselves with the Police raids or the recoveries but that apart, at least the I.O. should have made an earnest effort to join the independent witnesses. No attempt in this direction appears to have been made and this, by itself, is a circumstance throwing doubt on the arrest or the recovery of the knife from the person of the accused."
19. This Court is, however, conscious that the prosecution case cannot be thrown out or doubted on the sole ground of non- joining of public witnesses as public witnesses keep themselves away from the Court unless it is inevitable, as has been held in Appabhai and another v. State of Gujarat, AIR 1988 SC 696. However, in the present case, it is not only the absence of public witnesses which raises a doubt on the prosecution but there are other circumstances too, as discussed hereinafter, which raise suscpicion over the prosecution version.
20. Further, the seal remained with a police official only and it has not been proved that the seal was handed over to any other independent public person and therefore, the possibility of sample being tempered with cannot be ruled out. Reference may State Vs.Sanwar Khan FIR No.402/2023 Page No.12/14 be made to the judgment of Subeg Singh v. State of Haryana, reported as 1992(3) RCR (Criminal) 596. In the judgment titled as Karambir v. State of Delhi reported as 1997 JCC 520 it has been held that absence of proof that the specimen impression of the seal was deposited with MHCM(M) along with case property results in miscarriage of justice and is fatal to the prosecution.
21. It is trite in criminal jurisprudence that the prosecution is under an obligation to prove its case against the accused beyond reasonable doubt. The standard of proof to be adopted in criminal cases is not merely of preponderance of probabilities but proof beyond reasonable doubt on the basis of cogent, convincing and reliable evidence. It is also well settled that in case of doubt, the benefit must necessarily be allowed to the accused.
22. Thus, in view of the foregoing analysis, this Court is of the considered opinion that the benefit of doubt ought to be granted to the accused, who is entitled to be exonerated of the charges against him in the present case. The accused Sanwar Khan is hereby acquitted of the offence punishable under Section 25 of Arms Act. Accused be set at liberty.
Pronounced in open Court on this 30th day of January, 2024.
State Vs.Sanwar Khan FIR No.402/2023 Page No.13/14 This judgment consists of 14 pages and each pages are signed by the undersigned.
Digitally BHARTI signed by BENIWAL BHARTI BENIWAL (BHARTI BENIWAL) Metropolitan Magistrate-11 South West Dwarka Courts/New Delhi State Vs.Sanwar Khan FIR No.402/2023 Page No.14/14