Delhi District Court
State vs . on 28 February, 2023
IN THE COURT OF METROPOLITAN MAGISTRATE-06,
SHAHDARA, KARKARDOOMA COURTS,
DELHI
Presided over by- Sh. Ankur Panghal, DJS
Cr. Case No. -: 79723/2016
CNR No. -: DLSH020008542011
FIR No. -: 239/2010
Police Station -: Seemapuri
Section(s) -: 25 Arms Act
In the matter of -
STATE
VS.
MAHESH
S/o Ram Prasad,
R/o Param Hans Vihar,
Gali no.2, Loni, Ghaziabad,
Uttar Pradesh.
.... Accused
1. Name of Complainant :- SI Shishu Pal
2. Name of Accused :- Mahesh
3. Offence complained of or :- 25 Arms Act
proved
4. Plea of accused :- Not Guilty
5. Date of Commission of offence :- 29.08.2010
6. Date of Filing of case :- 10.08.2011
7. Date of Reserving Order :- 28.02.2023
8. Date of Pronouncement :- 28.02.2023
9. Final Order :- Acquitted
Argued by -: Sh. Parmod Kumar, Ld. APP for the State.
Mr. Nadeem Khan, Ld. LAC for the accused.
ANKUR Digitally
by ANKUR
signed
PANGH PANGHAL
Date:
AL 2023.02.28
16:34:14 +05'30'
Cr. Case No. 79723/2019 State vs Mahesh Page 1 of 21
JUDGMENT
BRIEF STATEMENT OF REASONS FOR THE DECISION FACTUAL MATRIX
1. Briefly stated, the case of the prosecution against the accused is that on 29.08.2010 at about 09:10 PM, SI Shishu Pal alongwith HC Satish Kumar and Ct. Lokesh were on area patrolling duty at 70 ft. road, near shochalya, Nishariya Masjid, New Seemapuri. There, one secret informer met SI Shishu Pal and informed him regarding one boy, who was standing near DTC Bus Depot. And having possession of desi katta and if raided, can be apprehended. At about 09:30 pm complainant apprehended one boy at opposite DTC Depot near auto rickshaw stand, on identification of secret informer. Then, complainant took cursory search of the said boy and recovered desi katta from left side dub of pant of boy. Upon enquiry, said boy revealed his name as Mahesh. As such, it is alleged that the accused has committed the offence punishable under Section 25 Arms Act, 1959 (hereinafter, "the Arms Act"), for which FIR No. 239/2010 was registered at the Police Station Seemapuri.
INVESTIGAION AND APPEARANCE OF ACCUSED
2. After registration of FIR, the investigating officer (hereinafter 'IO') conducted investigation and on culmination of the same, chargesheet against the present accused was filed. After taking cognizance of the offence, the accused person was summoned to face trial. The accused appeared in court and he was supplied the copies of documents relied upon in the charge sheet in terms of section 207 of the Code of Criminal Procedure, ANKUR 1973 (hereinafter, "CrPC"). PANGHAL Digitally signed by ANKUR PANGHAL Date: 2023.02.28 Cr. Case No. 79723/2019 State vs Mahesh Page 2 of 21 16:34:28 +05'30'
3. On a finding a prima facie case against the accused, a charge was framed for the offences punishable U/s 25 Arms Act against the accused. The accused pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
4. During the trial, prosecution led the following oral and documentary evidence against the accused to prove its case beyond reasonable doubt: -
ORAL EVIDENCE PW1 :- HC Satish Kumar (Accompanied Complainant on patrolling duty) PW2 :- SI Shishu Pal (Complainant) PW3 :- B.K. Singh (Gave Sanction U/s 39 Arms Act) PW4 :- HC Man Singh (Collected sample and deposited it to FSL) PW5 :- Ct. Lovkesh (Accompanied Complainant on patrolling duty) PW6 :- HC Vijay (Investigating Officer) DOCUMENTARY EVIDENCE Ex. PW1/A :- Sketch of Katta and cartridge Ex. PW1/B :- Seizure Memo of case property Ex. PW1/C :- Arrest memo of accused Ex. PW1/D :- Personal search memo of accused Ex. P1 :- Desi Katta Ex. P2 :- Cartridge Ex. PW2/A :- Rukka Ex. PW3/A :- Sanction U/s 39 Arms Act Ex. PW5/A :- Disclosure statement of accused Ex. PW6/A :- Site Plan ADMITTED DOCUMENTS (under S. 294 CrPC) Ex. C1 :- FSL report no. FSL 2010/F-5698 dt. ANKUR PANGHAL 28.01.2011 Digitally signed by ANKUR PANGHAL Cr. Case No. 79723/2019 State vs Mahesh Page 3 of 21 Date: 2023.02.28 16:34:37 +05'30' Ex C2 :- FIR No. 239/2010 PS Seemapuri
5. HC Satish Kumar (PW-1) in his examination in chief stated on oath that on 29.08.2010 he was posted as HC at PS Seemapuri. On that day, at about 9:00 PM, he along with SI Shishu Pal and Ct. Lovekesh was present on patrolling duty in the area of PS Seemapuri i.e., 70 ft. road, New Seemapuri, near Sauchalya, Nisari Masjid and when they reached near Sauchalya, one secret informer met SI Shishu Pal and informed him regarding one boy, who was standing at DTC depot and having possession of one desi katta and if raided, can be apprehended. Secret informer further informed that said boy was wearing khakhi colour pant with white shirt with strips. SI Shishu Pal asked some passer-by to join raiding party but none agreed and left spot without telling their names and addresses. Without wasting further time, SI Shishu Pal prepared a reading party consisting of himself, Ct. Lovekesh, PW-1 and secret informer. At about 9:30 PM, they along with secret informer reached at DTC Depot, new Seemapuri, Delhi and so one boy who was standing opposite DTC Depot, near autorickshaw stand. That boy was apprehended at the instance of secret informer and one desi katta was recovered from his left dub of pant. On interrogation, that boy disclosed his name as Mahesh and the accused was correctly identified by witness in court. The katta was opened with the help of catch and one live cartridge was taken out from it. SI Shishu Pal measure the katta and cartridge. The total length of katta was 28 cm, barrel was 19 cm, body was 15.5 cm, butt was 11.5 cm while length of the cartridge was 7.5 cm. The butt ANKUR was of silver colour while the cartridge was engraved with word PANGHAL Digitally signed by "8mm,KF". SI Shishu Pal prepared the sketch of katta and ANKUR PANGHAL Date: 2023.02.28 16:34:45 +05'30' Cr. Case No. 79723/2019 State vs Mahesh Page 4 of 21 cartridge Ex. PW1/A. Thereafter, case property was taken into police possession vide memo Ex. PW1/B. IO also filled FSL form. The seal, after use, was handed over to Ct. Lovekesh. Thereafter, SI Shishu Pal prepared rukka and and handed over the same to him for registration of FIR and he accordingly went to PS and got the present case registered. He returned back at spot along with copy of FIR and original rukka with HC Vijay to whom further investigation was marked. SI Shishu Pal handed over the custody of accused along with sealed pullanda and all prepared documents to IO/HC Vijay. IO/HC Vijay prepared the site plan. Thereafter, IO recorded statement of SI Shishu Pal and relieved him from the spot. Thereafter, IO arrested the accused and conducted his personal search vide memo Ex. PW1/C and PW1/D respectively. Disclosure statement of accused was also recorded. IO recorded his statement. After completing the proceedings, they along with accused came back to PS. Accused was logged in lock-up, while the case property was deposited in the malkhana. The desi Katta Ex. P1 and cartridge Ex. P2 was identified correctly by witness in court.
5.1. PW-1 was cross-examined by the accused person wherein he deposed that he signed Ex. PW1/A and Ex. PW1/B after going through their content from top to bottom and no addition or alteration was done by the IO after his signatures. He further deposed that secret informer met them at about 9 PM and they all were on foot. They left the PS at about 6 PM after evening briefing. He further deposed that IU did not inform public persons, who refused to join the raiding party, that if they do not disclose their names and addresses they could be arrested. PW1 further deposed that he took rukka to PS at about 11:15 PM ANKUR Digitally by ANKUR signed on foot and came back at the spot with FIR at about 11:45 PM. PANG Date:
PANGHAL 2023.02.28 Cr. Case No. 79723/2019 State vs Mahesh Page 5 of 21 HAL 16:34:57 +05'30' He further deposed that no passer-by was coming and going near the spot but some autorickshaws while stationed there. He further deposed that IO tried to and over the seal to one public person, but he refused to receive the same. Before sending the rukka, IO prepared sketch memo of katta, FSL form was filled up, sealed the pullanda and seizure memo of katta was prepared. SI Shishu Pal offered his personal search to accused prior taking casual search of accused in his presence. He further deposed that his statement was recorded in PS. He further deposed that IO recorded statement of Ct. Lovekesh and SI Shishu Pal in his presence. IO/HC Vijay came at the spot on foot at around 11:50 PM. PW1 also deposed that IO/HC Vijay did not ask any public person to join investigation. He thereafter submitted that he along with SI Shishu Pal and Ct. Lovekesh left the spot at about 11:50/11:55 PM. IO/HC Vijay arrested the accused at about 11:45 PM in his presence. He further deposed that information about arrest of accused was given to his wife by IO/HC Vijay but the means through which information was given was not told by PW1. He further deposed that he does not remember whether statement of accused was recorded not but he thereafter stated that disclosure statement of accused was recorded by IO but he does not remember the exact time as to when it was being recorded over when it was completed. He further deposed that he does not know as to and how many pages disclosure statement of accused is running. He thereafter deposed that he does not remember the exact time when he reached police station. He thereafter submitted that he does not remember as to when HC Vijay reached police station after their arrival. The case property was deposited in malkhana ANKU R Digitally signed by ANKUR PANGHAL in his presence and at that time he, HC Vijay and MHCM were PANG Date: 2023.02.28 16:35:07 +05'30' Cr. Case No. 79723/2019 State vs Mahesh Page 6 of 21 HAL present. IO did all the writing work while sitting on a stool belonging to autorickshaw drivers in front of Seemapuri depot. He denied the suggestion that nothing was recovered from possession of accused or that the accused was lifted from road on pretext of enquiry and katta was planted on him. He denied the suggestion that he signed all the documents in police station at the instance of IO. He also denied the suggestion that all writing work was done while sitting in PS and that is why public persons did not join investigation. He denied the suggestion that he is deposing falsely.
6. SI Shishu Pal (PW-2) was examined on 26.11.2014, who deposed that on 29.08.2010 he was posted in PS Seemapuri and on that day he along with Ct. Lovekesh and HC Satish Kumar was performing patrolling duty at 70 ft. road, near sochalya, Nishariya Masjid. During patrolling duty when they reached near sochalya, one secret informer met them and informed regarding one by who was standing at the DC Depot and having possession of one desi katta and if raided can be apprehended. Then, he asked passer-by to join in raiding party but none agreed and the left the spot without disclosing their names and addresses. Without wasting time, he formed raiding party including himself, HC Satish, Ct. Lovekesh and secret informer. Thereafter, raiding party reached at DTC Depot you Seemapuri at about 9:30 PM and so one boy who was standing opposite side of DTC depot near autorickshaw stand. The said boy was apprehended on identification of secret informer. Then, he took cursory search of said boy and recovered one desi katta from left side dub of pant of said boy. Upon enquiry, said boy revealed his name as Mahesh Prasad S/o Ram Prasad. The ANKUR Digitally signed accused was correctly identified by witness in court. PW2 by ANKUR PANG PANGHAL Date: 2023.02.28 Cr. Case No. 79723/2019 State vs Mahesh Page 7 of 21 HAL 16:35:19 +05'30' opened said desi katta with the help of safety catch and took out one live cartridge from barrel of said katta. Then, he prepared sketch memo of said katta and live cartridge which is Ex. PW1/A during his signature at point B. The total length of recovered katta was 28 cm, out of which length of barrel was 19 cm, butt was 11.5 cm and length of body was 15.5 cm. The total length of live cartridge was 7.5 cm and wording 8MM K F was engraved on the cap of cartridge. Then, he prepared pullanda of recovered case property and sealed the pullanda with the seal of SP. He and it over the seal to Ct. Lovekesh after use. Then, he took sealed pullanda in police possession vide seizure memo Ex. PW1/B having his signature at point B. 6.1. PW2 was further examined-in-chief on 13th of February 2017 wherein he deposed that after sealing and seizing the case property, he prepared a rukka which is Ex. PW2/A and handed over the same to HC Satish for registration of FIR. HC Satish accordingly went to PS and after registration of FIR again came back at the spot along with IO/HC Vijay. He handed over accused, documents prepared by him and sealed pullanda of case property to IO/HC Vijay. IO prepared site plan at his instance and recorded his statement. Thereafter, he left the spot. PW2 has correctly identified the desi katta Ex. P1 and cartridge Ex. P2 in court.
6.2. Prosecution evidence was closed vide order dated 30.03.2021 and on the same date and application under section 311 CrPC was moved on behalf of accused for closer examination of PW-2 which was allowed vide order dt. 30.03.2021. Thereafter, sermons were issued to PW-2 through DCP concerned which received back with the report that PW2 is ANKU R Digitally signed by ANKUR PANGHAL PANG Date: 2023.02.28 16:35:28 +05'30' Cr. Case No. 79723/2019 State vs Mahesh Page 8 of 21 HAL suffering from paralysis. Thereafter, arguments were heard regarding recording of testimony of PW-2 through commission, wherein accused submitted that he does not want PW-2 to be cross-examined. Separate statement of Ld. LAC was recorded in this regard.
7. HC Man Singh (PW-4) stated in his examination in chief that on 24.12.2010 he was posted at PS Seemapuri as Ct. On that day, on instructions of IO, he collected one sealed packet of case property from MHC(M) concerned and took the same to office of FSL vide RC No. 59/21. He deposited the same there and collected the receipt of same and brought it back to MHC(M). He handed over the same to MHC(M) concerned. He further deposed that seal of said packet remained entirely intact till the same was in his safe custody. He further deposed that are you recorded his statement in this regard.
7.1. PW-4 was not cross-examined by accused despite opportunity being given in that regard.
8. Ct. Lovkesh (PW-5) deposed that on 29.08.2010 he was posted at PS Seemapuri. On that day he along with SI Shishu Pal and HC Satish on patrolling duty in Beat No. 8. When they reached near Nisaria Masjid at 70 ft. road, one secret informer informed the complainant regarding a young man having arms in his possession, who was standing near Bus Despot. SI Shishu Pal narrated the information to us. SI Shishu Pal prepared a raiding party and asked 4-5 passer-by to join the raiding party but none agreed after telling their reasonable excuses. At about 9:30 PM, they reached near bus depot and the apprehended the accused person. SI Shishu Pal personally ANKUR Digitally by ANKUR signed PANG Date:
PANGHAL searched the accused and found desi katta from left dub of his 2023.02.28 HAL 16:35:38 +05'30' Cr. Case No. 79723/2019 State vs Mahesh Page 9 of 21 pant. When SI Shishu Pal opened the katta the found a live cartridge in the same. IO prepared the sketch of katta Ex. PW1/A bearing his signature at point C and sealed the same with seal of SP and seized the same vide seizure memo Ex. PW1/B. Thereafter, IO SI Shishu Pal handed over the seal to him. IO prepared rukka and handed over the same to HC Satish for registration of FIR, who after registration of the case, returned back to spot along with HC Vijay Singh. HC Vijay Singh prepared site plan. IO HC Vijay Singh arrested the accused vide arrest memo Ex. PW1/C and personally searched the accused vide memo Ex. PW1/D. Both memos be his signature at point B. IO also recorded disclosure statement of accused Ex. PW5/A. The accused was correctly identified by witness in court.
8.1. PW-5 was cross-examined by Ld. LAC wherein he deposed that there was light at spot and public persons were coming and going. IO asked some public persons to join but none agreed. He denied the suggestion that nothing was recovered from possession of accused that is why no public person was made witness in present case. The denied the suggestion that desi katta was falsely planted upon accused all that he is deposing falsely at the instance of IO.
9. HC Vijay (PW-6) is IO of the present case who deposed that on 30.08.2010 he was posted at PS Seemapuri and on that day duty officer handed over him original rukka Ex.
PW2/A and FIR Ex. C2. He along with HC Satish reached the spot, where SI Shishu Pal along with the accused was present and SI Shishu Pal handed him over case property, accused and FSL form. The accused was correctly identified by witness in court. He arrested accused vide arrest memo Ex. PW1/C during his Digitally ANKUR signed ANKUR by PANG Date:
PANGHAL HAL 16:35:49 2023.02.28 Cr. Case No. 79723/2019 State vs Mahesh Page 10 of 21 +05'30' signature at point C. Thereafter, he personally searched the accused vide search memo Ex. PW1/D during his signature at point C. He recorded disclosure statement of accused Ex. PW5/A during his signature at point B. A prepared site plan Ex. PW6/A at the instance of SI Shishu Pal. He recorded supplementary statement of SI Shishu Pal on spot and recorded statement of witnesses. He prepared final investigation report and submitted before the Hon'ble court.
9.1. PW-5 was cross-examined by Ld. LAC wherein he deposed that accused was apprehended on 29.08.2010 at about a 9:30 PM and he reached on spot at about 12:15 AM. He further deposed that he prepared departure entry in DD register. He further stated that he completed documentary work under DTC Depot high lights. He accepted the suggestion that he did not mention source of light in site plan Ex. PW6/A. He denied the suggestion that he did not reach the spot and he prepared site plan in police station due to which he did not mention source of light in site plan. He further stated that no public person was present on spot and no recovery was affected in his presence. He denied the suggestion that he prepared on documents at instance of SI Shishu Pal. He also denied the suggestion that he had not recorded statement of witnesses or that he is deposing falsely.
STATEMENT OF ACCUSED
10. Thereafter, before the start of defence evidence, in order to allow the accused to personally explain the incriminating circumstances appearing in evidence against him, the statement of accused was recorded without oath on 27.02.2023 under ANKU Digitally signed by R ANKUR PANGHAL section 313 CrPC in which he stated that he is innocent and he PANG Date:
2023.02.28 16:36:01 HAL +05'30' Cr. Case No. 79723/2019 State vs Mahesh Page 11 of 21 has been falsely implicated in the present case. He stated that he was arrested from Uttar Pradesh and was falsely implicated in present case. He further stated that he does not want to lead any defence evidence and matter was listed for final arguments. ARGUMENTS
11. I have heard the Ld. APP for the state and Ld. counsel for the accused at length. I have also given my thoughtful consideration to the material appearing on record.
12. It is argued by the Ld. APP for the state that all the ingredients of the offence are fulfilled in the present case. He has argued that the prosecution witnesses have categorically deposed about recovery from the accused and there is no ground to disbelieve their testimony may be because they're police officials. He contends that the accused is liable for the offence. He has argued that oral as well as documentary evidence has proved the offence beyond reasonable doubt. As such, it is prayed that accused be punished for the said offence.
13. Per contra, Ld. counsel for the accused has argued that the state has failed to establish its case beyond reasonable doubt. Ld. counsel submits that the accused has been falsely implicated by the police and nothing was recovered from the possession of the accused. It is further submitted that no public witness is there in present case. It is further submitted that no personal search was given by police officials to accused. It is further submitted that accused is an auto driver and had been falsely implicated to satisfy ego of police officials. Furthermore, it has been argued that there are no criminal antecedents of accused. It is further submitted that there are contradictions in ANKUR Digitally signed examination in chief of witnesses and their statements recorded by ANKUR PANGHA PANGHAL Date: 2023.02.28 L 16:36:10 +05'30' Cr. Case No. 79723/2019 State vs Mahesh Page 12 of 21 U/s 161 CrPC. It is further submitted that testimony of witness shall be considered as incomplete because cross examination was not done of witnesses. Ld. Counsel has further submitted that there are material deficiencies in the case of the prosecution and no independent witness has been joined in the present case. It is further submitted that accused has been falsely implicated in the present case. As such, it is prayed that accused be acquitted of the said offence.
INGREDIENTS OF THE OFFENCE
14. The accused has been charged for the offence under Section 25 of the Arms Act. Under sub-clause (1-B)(a) of the provision, acquisition, possession or carrying of arms in contravention of Section 3 of the Arms Act is an offence. Section 3 stipulates that no person shall acquire, have in his possession, or carry any firearm or ammunition unless he holds in this behalf a license. Further, it is settled that possession under the provision ought to be conscious possession. Reliance is placed on Gunwantlal vs. State of Madhya Pradesh (1972) 2 SCC 194 in this regard.
APPRECIATION OF EVIDENCE
15. I have carefully gone through all the records at hand and testimony of the witnesses. After perusal, this court is of the opinion that the point for determination in the present case are:
I. Whether on 29.08.2010 at about 09:30 PM at in front of Seemapuri Depot, Delhi accused Mahesh was found in possession of a one desi katta/pistol along with one live cartridge defined as fire Digitally signed ANKUR byPANGHAL ANKUR arm and ammunition in the Arms Act, 1959, without PANG Date:
2023.02.28 HAL 16:36:22 +05'30' Cr. Case No. 79723/2019 State vs Mahesh Page 13 of 21 license/permit and committed an offence punishable U/s 25 of Arms Act.
16. In criminal law, the burden of proof on the prosecution is that of beyond reasonable doubt. On a bare perusal of the above offence, it can be culled out that the prosecution has to prove that the accused was found in possession of a button actuated knife, and the said possession of the accused was without any permit or licence. Thus, it is essential to prove the recovery from the accused.
17. In the present case, the prosecution story rests entirely on the alleged recovery of case property i.e., one desi pistol/katta along with one live cartridge, from the possession of accused by police official i.e., PW2 who was on patrolling duty at the relevant time and place of incident. As such, their testimony is of prime importance in the present matter. At the outset, it is observed that no evidence of any arrival/departure entries of PW1, PW2 and PW5 has been led by the state. PW1, PW2 and PW5, nowhere, in their examination in chief has stated that they had made any DD entry while going for patrolling duty. No explanation has been offered as to why such entry was not made. The departure/arrival entry in the Daily Diary would have been a substantial piece of evidence to corroborate the version of police officials. Police officials are under a statutory duty to mark their departure and arrival in the register kept in the police station for the purpose as per the Punjab Police Rules. It is relevant here to reproduce Chapter 22 Rule 49 of the Punjab Police Rules, 1934, which reads as under:
ANKUR Digitally by ANKUR signed PANGH PANGHAL Date: 2023.02.28 AL 16:36:32 +05'30' Cr. Case No. 79723/2019 State vs Mahesh Page 14 of 21 "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 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."
PW1, PW2 and PW5 have not tendered any such entry into evidence to corroborate their stand. Therefore, non-production of DD entries to prove that the witnesses were on patrolling duty on the date of incident, throws a doubt on the presence of the police officials at the place of incident.
18. In the present case, the prosecution has not led evidence of any public person. All the witnesses are police officials. It is not the case of the prosecution that no public person was present at or near the spot of arrest and recovery. In fact, in the testimonies of PW1, PW2 and PW5 as well as in rukka it has been stated that police officials did ask certain public persons to join the proceedings however they refused citing just reasons. Further, the place of recovery is a public place and as evident from site plan. Further, there is nothing on record to show that IO had served any notice under Section 160 Cr.PC. upon the persons who refused to join the investigation. Thus, the prosecution has failed to prove that any serious effort was made by PW1, PW2, PW5 and PW6 to join public witnesses in the proceedings. It is a well settled proposition that non joining of Digitally ANKUR signed by public witness shrouds doubt over the fairness of the ANKUR PANG Date:
PANGHAL HAL 16:36:44 2023.02.28 +05'30' Cr. Case No. 79723/2019 State vs Mahesh Page 15 of 21 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. Reliance is placed on paragraph 6 of the judgment in Pawan Kumar vs. 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 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."
In a case law reported as Anoop Joshi vs. State, 1992 (2) C.C. Cases 314 (HC), Hon'ble High Court of Delhi has observed as under:
"18. 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 shopkeepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In Digitally case any of the shopkeepers had declined to join the raiding ANKUR signed ANKUR by party, the police could have later on taken legal action against PANG Date:
PANGHAL HAL 16:36:54 2023.02.28 +05'30' Cr. Case No. 79723/2019 State vs Mahesh Page 16 of 21 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".
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 vs. 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 hereinabove and hereinafter, which raise suspicion over the prosecution version.
20. Further, as per the testimonies of the prosecution witnesses, the case property was sealed by PW2 with the seal of SP. However, no handing over memo regarding the same was prepared. Further, the seal in the present case was not handed over to any independent witness nor was it deposited in the malkhana to assail the possibility of its misuse. No evidence has been led to show as to when the case property was deposited in malkhana. Thus, the possibility that the case property may have been tampered with cannot be ruled out. As such, the prosecution has not been able to prove that there was no scope of tampering. Therefore, the evidence of the witnesses on this point does not inspire confidence.
21. Moving ahead, PW1 had deposed that seizure memo Ex. PW1/B was prepared before rukka was sent to the police station for registration of the FIR. The FIR was, therefore, admittedly registered after the preparation of seizure memo Ex. ANKU Digitally signed by PW1/B. Accordingly, it follows that the number of the FIR would R ANKUR PANGHAL PANG Date:
2023.02.28 Cr. Case No. 79723/2019 State vs Mahesh Page 17 of 21 16:37:06 HAL +05'30' have come to the knowledge of the PW2 only after a copy of the FIR was brought to the spot by PW1. Thus, ordinarily, the FIR number should not find mention in the seizure memo, which came into existence before registration of the FIR. However, interestingly, the seizure memo Ex. PW1/B bears the FIR number and case details. The same indicates that FIR number was mentioned on the said document while preparing the same. Reliance here is placed on the decision of the Hon'ble High Court of in Pawan Kumar vs. The Delhi Administration, 1989 Cri.L.J. 127 wherein it was observed in as under:
"... Learned counsel for the State concedes that immediately after the arrest of the accused, his personal search was affected and the memo Ex. PW11/D was prepared. Thereafter, the sketch plan of the knife was prepared in the presence of the witnesses. After that, the ruqa EX. PW11/F was sent to the Police Station for the registration of the case on the basis of which the FIR, PW11/G was recorded. The F.I.R. is numbered as 36, a copy of which was sent to the I.O. after its registration. It comes to that the number of F.I.R. 36 came to the knowledge of the I.O. after a copy of it was delivered to him at the spot by a constable. In the normal circumstances, the F.I.R. No. should not find mention in the recovery memo or the sketch plan which had come into existence before the registration of the case. However, from the perusal of the recovery memo, I find that the FIR is mentioned whereas the sketch plan does not show the number of the FIR. It is not explained as to how and under what circumstances the recovery memo came to bear the F.I.R. No. which had already come into existence before the registration of the case. These are few of the circumstances which create a doubt, in my mind, about the genuineness of the weapon of offence alleged to have been recovered from the accused."
22. Furthermore, in paragraph 4 of Mohd. Hashim vs. 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 (PW7), 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 ANKUR Digitally signed (Ex. PW4/B) given on the top of the aforesaid documents is in by ANKUR PANG Date:
PANGHAL the same ink and in the same handwriting, which clearly 2023.02.28 HAL 16:37:16 +05'30' Cr. Case No. 79723/2019 State vs Mahesh Page 18 of 21 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."
23. In the instant case as well, no explanation has been furnished on record as to how the FIR number and case details have appeared on the seizure memo Ex. PW1/B. The same leads to inference that either the said documents were prepared later or that the FIR had been registered earlier in point of time. In both the aforesaid cases a dent is created and unexplained holes are left in the prosecution story, the benefit of which must accrue to the accused.
24. Furthermore, it is also not on record that PW1 and PW2 offered their personal search prior to taking search of accused. PW1 and PW2 must have offered their personal search to some independent witness. However, PW1 in his cross- examination had deposed that PW2 offered his personal search to accused but not to an independent witness. No such precaution was taken by PW1 and PW2. The doubt of false plantation of case property cannot be ruled out.
25. The facts that no independent witness was cited or examined, daily diary entry regarding departure of PW1, PW2 and PW5 have not been proved, possibility of misuse of seal cannot been ruled out, the appearance of FIR number and case particulars on the seizure memo has not been explained and contradictions in the testimony of prosecution witnesses, when ANKU Digitally signed by kept in juxtaposition to each other, cast a cloud of suspicion over R ANKUR PANGHAL PANG Date:
2023.02.28 the prosecution version. In view of the aforesaid, the possibility 16:37:30 HAL +05'30' Cr. Case No. 79723/2019 State vs Mahesh Page 19 of 21 of false implication of the accused in the present case cannot be ruled out. Considering the discussion on the above issues, the inevitable conclusion is that the prosecution has failed to prove that a button actuated knife was recovered from the possession of the accused.
CONCLUSION
26. To recapitulate the above discussion, to bring home the guilt of the accused, the prosecution was required to prove the offence of Section 25 of the Arms Act beyond reasonable doubt. The accused has been successful in pointing out the deficiencies in the case of the prosecution. The recovery of desi katta/pistol and one live cartridge from the possession of the accused, which was the essential ingredient of the offence, is highly doubtful. The fact that independent witnesses were not joined, despite abundant availability, casts serious doubt on the version of the prosecution. Further, the accused has been able to raise doubts with respect to the possibility of tampering with the case property. The other material on record does not inspire confidence and a conviction cannot be based on the said material.
27. Resultantly, the prosecution has failed to prove the offences beyond reasonable doubt and the accused is entitled to the benefit of doubt. As such, the accused MAHESH is hereby found not guilty. He is ACQUITTED of the offences under Section 25 of Arms Act.
28. Case property confiscated to the State and disposed off as per law if not already done. ANKUR Digitally signed by ANKUR PANGH PANGHAL Date: 2023.02.28 AL 16:37:42 +05'30' Cr. Case No. 79723/2019 State vs Mahesh Page 20 of 21
29. File be consigned to record room, after due compliance.
Announced in open court on 28.02.2023 in the presence of the accused. The judgment contains 21 pages and each page have been signed by the undersigned.
ANKUR Digitally
by ANKUR
signed (ANKUR PANGHAL)
MM-06, Shahdara District,
PANGHA PANGHAL
Date: 2023.02.28 Karkardooma Courts, Delhi L 16:37:54 +05'30' 28/02/2023 Cr. Case No. 79723/2019 State vs Mahesh Page 21 of 21