Delhi District Court
State vs . Sanjay on 3 January, 2019
IN THE COURT OF SH. KAPIL KUMAR
METROPOLITAN MAGISTRATE05, CENTRAL,
TIS HAZARI COURTS, DELHI
CNR No. DLCT0201864318
CIS No. 5988/18
State Vs. Sanjay
FIR No. 05/18
PS : Kamla Market
U/s. 25(1B)(b)Arms Act
JUDGMENT
1) The date of commission of offence : 06.01.18
2) The name of the complainant : Ct. Krishan
3) The name & parentage of accused : Sanjay S/o. Mahender Sharma R/o. AB230, Amarpuri, Pahar Ganj, Delhi.
4) Offence complained of : u/s.25(1B)(b)Arms Act
5) The plea of accused : Pleaded not guilty
6) Final order : Acquitted
7) The date of such order : 03.01.2019 Date of Institution : 02.05.2018 Judgment reserved on : 03.01.2019 Judgment announced on : 03.01.2019 BRIEF REASONS FOR THE JUDGMENT:
1. The case of the prosecution against the accused is that on 06.01.18, at about 10.30 PM, near Shivaji Park, Thomson Road, Kamla Market, Delhi, within the jurisdiction of PS Kamla Market, he was found in possession of one buttondar knife in contravention of Delhi Administration Notification. On the said allegations, accused was charged with the offence under Section 25 (1B)(b) of the Arms Act, 1959.
2. After investigation, chargesheet was filed against the accused. The copy of chargesheet was supplied to the accused in compliance of Section 207 Cr.P.C. Thereafter, charge was framed against the accused under Section 25 of the Arms Act, 1959 to which he pleaded not guilty and claimed trial.
3. In support of its version, prosecution has examined three witnesses. PW1 is Ct. Krishan Kumar, PW2 is Ct. Lalit Kumar and PW3 SI Dinesh Kundu. Accused admitted as per section 294 Cr.PC the recording of DD No. 79B and DD No. 37A, dated 06.01.18 and the registration of the present FIR.
4. After conclusion of prosecution evidence, statement of accused was recorded separately wherein accused claimed to be innocent and denied the allegations against him. Accused opted not to lead any DE.
5. I have heard Ld. APP for State and Ld. Legal Aid Counsel Shri Rajeev Tomar for accused. I have perused the record.
6. The testimonies of prosecution witnesses are hereby discussed, in brief, as follows: 6.1) PW1 Ct. Krishan Kumar deposed that on 06.01.18, he was on patrolling duty and while patrolling, when he reached near Shivaji Park, Thomson Road, he saw a person came from the side of Shivaji Park and one seeing him he started running backward. He chased that person and apprehended him, whose name was revealed as Sanjay i.e. the accused. In the cursory search of the accused one knife was recovered. The information was given in the police station Kamla Market and Ct. Lalit and SI Dinesh came at the spot. The accused and the knife were produced to SI Dinesh. He deposed that his statement Ex. PW1/A was recorded by the IO SI Dinesh Kundu. The sketch of the knife Ex. PW1/B was prepared and the same was seized vide memo Ex. PW1/C. Rukka was prepared, FIR got registered, accused was arrested and personally searched. The said witness correctly identified the accused and the case property i.e. knife Ex. P1. 6.2) PW2 Ct. Lalit Kumar and PW3 SI Dinesh Kundu deposed on the same lines that on 06.01.18 on receipt of DD No. 37A dated 06.01.18, they reached at the spot i.e. Shivaji Park, Thomson Road, Kamla Market, Delhi, where they found Ct. Krishan Kumar having the custody of the accused. The accused and the knife were produced before them. PW3 recorded the statement of Ct. Krishan Kumar Ex. PW1/A. Sketch memo of the knife Ex. PW1/B was prepared and thereafter the same was seized vide memo Ex. PW1/C, rukka was prepared and FIR got registered. Site plan Ex. PW1/D was prepared. Accused was arrested and personally searched. They correctly identified the accused and the knife.
7. It is the cardinal principle of Criminal Justice delivery system that the prosecution has to prove the guilt of accused person beyond reasonable doubts. No matter how weak the defence of accused is but, the golden rule of the Criminal Jurisprudence is that the case of the prosecution has to stand on its own leg.
8. Now, I consider the points contended by the Ld. Counsel for the accused one by one. Ld. Counsel for accused argued that no independent witness was joined in the investigation. First of all, I consider the legal position on this point. In State of Punjab v. Balbir Singh, AIR 1994 SC 1872, the Hon'ble Supreme Court held that:
It therefore emerges that noncompliance 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 wellsettled 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 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] Considering facts and circumstances of the present case, there was no lack of time and opportunity to associate some independent 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. Name 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. Hence, the abovementioned creates doubt on the case of the prosecution.
9. Further, the seal after use was not handed over to any independent person. Seal after use was handed over to PW2 Ct. Lalit only. It appears that no efforts was made to hand over the seal after use to independent person. I am conscious of precedent laid down by Hon'ble Delhi High Court in Safiullah v. State, 1993 (1) RCR (Criminal) 622, that:
"10. 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."
Hon'ble Punjab & Haryana High Court also held in Ramji Singh v. State of Haryana, 2007 (3) RCR (Criminal) 452, that "7. The very purpose of giving seal to an independent person is to avoid tampering of the case property."
Hence, considering the legal position, the benefit of doubt should be given to the accused.
10. Besides all this, in the present case, the sketch memo of the knife Ex. PW1/B and seizure memo of the knife Ex. PW1/C, bears the number of FIR. As per the rukka and testimony of witnesses, the sketch memo of the knife and seizure memo were prepared prior to registration of FIR. If that be so then how Ex. PW1/B and Ex. PW1/C bears the FIR number. Now, I consider the observation made by Hon'ble Delhi High Court in Giri Raj v. State, 83 (2000) DLT 201. This gives rise to two inferences that either the FIR was recorded prior to the alleged recovery of the case property or number of the said FIR was inserted in the document 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 the recovery of the case property in the manner alleged by the prosecution. That being so, the benefit arising out of such a situation must necessarily go to the accused.
11. Further, it is also came on record that PW1 Ct. Krishan Kumar did not offer his personal search prior to taking the search of accused. PW1 must have offered his personal search to some independent witness. No such precaution was taken by PW1. The doubt as to the false plantation of the case property cannot be ruled out.
12. In the judgment titled as "S.L.Goswami v. State of M.P" reported as 1972 CRI.L.J.511(SC) the Hon'ble Supreme Court held: "...... In our view, the onus to proving all the ingredients of an offence is always upon the prosecution and at no stage does it shift to the accused. It is no part of the prosecution duty to somehow hook the crook. Even in cases where the defence of the accused does not appear to be credible or is palpably false that burden does not become any the less. It is only when this burden is discharged that it will be for the accused to explain or controvert the essential elements in the prosecution case, which would negative it. It is not however for the accused even at the initial stage to prove something which has to be eliminated by the prosecution to establish the ingredients of the offence with which he is charged, and even if the onus shifts upon the accused and the accused has to establish his plea, the standard of proof is not the same as that which rests upon the prosecution..........................."
13. The onus and duty to prove the case against the accused was upon the prosecution and the prosecution must establish the charge beyond reasonable doubt. It is also a cardinal principle of criminal jurisprudence that if there is a reasonable doubt with regard to the guilt of the accused the accused is entitled to benefit of doubt resulting in acquittal of the accused. Reference may also be made to the judgment titled as Nallapati Sivaiah v. Sub Divisional Officer, Guntur reported as VIII(2007) SLT 454(SC).
14. In view of above said discussion, the prosecution has failed to prove the guilt of the accused beyond reasonable doubt. Accordingly, I acquit the accused Sanjay of the charges framed in the present case. Case property be confiscated to the State. Same be destroyed. File be consigned to Record Room after due compliance subject to compliance of section 437A Cr.PC.
Digitally signed by KAPIL KAPIL KUMAR
KUMAR Date:
2019.01.03
14:57:17 +0530
Announced in the open court (KAPIL KUMAR)
on 03.01.2019 Metropolitan Magistrate05
Central District, Tis Hazari Courts/Delhi