Delhi District Court
Fir No. 101/2019 State vs . Amaan @ Feteh Ps Chandni Mahal 1/23 on 5 January, 2023
IN THE COURT OF MS. MEENA CHAUHAN
METROPOLITAN MAGISTRATE -08 (CENTRAL)
TIS HAZARI COURTS : DELHI
FIR No. 101/2019
PS: Chandni Mahal
U/s 25 Arms Act
State v. Amaan @ Fateh
CIS No. 12463/2019
Date of Institution of case : 26.09.2019
Date when Judgment reserved : 21.12.2022
Date on which Judgment pronounced : 05.01.2023
JUDGMENT
A Serial No. of the case : FIR No.101/19 PS: Chandni Mahal Date of the commission b : 12.07.2019 of the offence Name of the c : Ct. Rooplal, PIS No. 29101819 Complainant Amaan @ Fateh Name of Accused person S/o Yasin, R/o H. No. C-58/137, d and his parentage and :
Jhuggi Gurudware Wali, Meer Dard residence Road, near Mata Sundri Road, Delhi.
e Offence complained of : U/s 25(1B)/54/59 Arms Act Plea of the Accused and f : Pleaded not guilty. his examination (if any) g Final Order : Acquittal h Date of Order : 05.01.2023 FIR No. 101/2019 State Vs. Amaan @ Feteh PS Chandni Mahal 1/23 BRIEF REASONS FOR DECISION:
1. In brief, the accused has been sent to face trial upon the allegations that on 12.07.2019 at about 07.05 pm, at Haji Manzil Picket, Turkman Gate, Delhi, within the jurisdiction of PS Chandni Mahal, accused Amaan@Fateh was found in possession of one buttondar knife in contravention of notification issued by Delhi Administration and thereby committed an offence punishable under section 25 of The Arms Act, 1959. The buttondar knife was seized and taken into possession by the police.
2. After completion of an investigation, a charge sheet was filed against the accused on 26.09.2019. On 02.03.2020, a copy of charge sheet and annexed documents were supplied to the accused under section 207 The Code of Criminal Procedure, 1973 (hereinafter called as Cr.P.C) and thereafter charge under section 25 Arms Act was framed against him on 08.04.2022 to which he pleaded not guilty and claimed trial.
3. The prosecution examined five (05) witnesses to substantiate allegations against the accused.
FIR No. 101/2019 State Vs. Amaan @ Feteh PS Chandni Mahal 2/23
4. PW-1 HC Arun has deposed in his examination-in-chief that on 12.07.2019, he alongwith Ct. Roop Lal was on picket duty at Haj Manzil, Turkman Gate, Delhi. At about 7:05 pm, one person was coming towards us from the side of Gadha Chowk, Ram Leela Maidan, after seeing them on duty he turned back and started to walk hastily, due to which he got suspicious of him. Thereafter, they apprehended him. They made the inquiry of running, but he could not give any satisfactory answer. Thereafter, Ct. Roop Lal conducted a cursory search of the accused and found one buttondar knife from the right pocket of the pants. Ct. Roop Lal informed about the incident to Duty Officer. In compliance with which Ct.
Naresh along with ASI Anil came to the spot. Thereafter, Ct. Roop Lal informed about the incident and handed over the accused and the buttondar knife to him. Thereafter, IO asked 4 to 5 public persons to join the investigation but they refused to join and left the place on pretext of some urgent work. Thereafter, IO prepared the sketch memo Ex.PW-1/A. The total length of the knife was 23.5 cm and the length of butt was 13 cm and the width of blade was 2.5 cm having a button on the handle of the knife. Thereafter, IO put the knife in the white pullanda and sealed it with the seal BW. The seal was handed over to Ct. Roop Lal after use. IO prepared the seizure memo Ex.PW-1/B. Thereafter, IO prepared FIR No. 101/2019 State Vs. Amaan @ Feteh PS Chandni Mahal 3/23 the tehrir and rukka and handed over the same to Ct. Naresh for the registration of the FIR. After registration of the FIR Ct. Naresh came back to the spot and handed over the copy of FIR and original tehrir and rukka to the IO. Thereafter, IO inserted the particular case on the sketch memo and seizure memo. In the meantime IO prepared the site plan at the instance of Ct. Roop Lal. Thereafter, IO arrested the accused person vide arrest memo Ex. PW1/C and conducted the person search vide memo Ex. PW1/D. Thereafter, IO recorded his statement U/s 161 Cr.P.C and set him free from the proceedings. He has correctly identified the accused. He has also correctly identified the case property which is P-1.
During cross-examination of the witness by Ld. LAC for the accused, PW-1 stated that he admitted that the incident spot was a crowded area. He further admitted that IO did not give written notice to join the investigation to any public person in his presence. IO did not record the name and addresses of the public persons. He further admitted that the CCTV cameras are not installed on the spot. He denied that the IO did not make any efforts to get the CCTV footage. He admitted that he did not offer his personal search before searching the accused person. He further denied that no property was recovered from the accused or that the property was falsely implanted upon the accused. He further admitted that FIR No. 101/2019 State Vs. Amaan @ Feteh PS Chandni Mahal 4/23 all the documents were prepared while sitting at the PS. He further denied the suggestion that he was deposing falsely.
5. PW-2 HC Naresh has deposed in his examination-in-chief that on 12.07.2019, on receiving DD NO. 64A he along with ASI Anil went to the incident spot. Thereafter, Ct. Roop Lal informed about the incident and handed over the accused and buttondar knife to the IO. Thereafter, IO asked 4 to 5 public persons to join the investigation but they refused to join and left the place on pretext of some urgent work. Thereafter, IO prepared the sketch memo Ex.PW-1/A. The total length of the knife was 23.5 cm and the length of butt was 13 cm and the width of blade was 2.5 cm having a button on the handle of the knife. Thereafter, IO put the knife in the white pullanda and sealed it with the seal BW . The seal was handed over to Ct. Roop Lal after use. Thereafter, IO prepared the seizure memo Ex.PW-1/B. Thereafter, IO prepared the tehrir and rukka and handed over the same to him for the registration of the FIR. After registration of the FIR he came back to the spot and handed over the copy of FIR and original tehrir and rukka to the IO. Thereafter, IO inserted the particular case on the sketch memo and seizure memo. Thereafter, IO arrested the accused person vide arrest memo Ex. PW1/C and conducted the person search vide memo Ex. PW1/D. After medical examination, FIR No. 101/2019 State Vs. Amaan @ Feteh PS Chandni Mahal 5/23 the accused was lodged up in lockup and case property was deposited in Malkhana. Thereafter, IO recorded his statement U/s 161 Cr.P.C and set him free from the proceedings. He has correctly identified the accused. He has correctly identified case property Ex. P-1.
During cross-examination of the witness by Ld. LAC for the accused, PW-2 stated that he admitted that IO did not obtain his signature on any of the documents. He denied that he did not join the investigation that is why his signature is not obtained on any documents. He admitted that the incident spot is a crowded area. He admitted that IO did not give written notice to join the investigation to any public person in his presence. IO did not record the name and addresses of the public persons. He admitted that the CCTV cameras were not installed on the spot. He further denied that the IO did not make any efforts to get the CCTV footage. He admitted that he did not offer his personal search before searching the accused person. He further denied that no property was recovered from the accused or that the property was falsely implanted upon the accused. He further denied that all the documents were prepared while sitting at the PS. He further denied that he is deposing falsely.
FIR No. 101/2019 State Vs. Amaan @ Feteh PS Chandni Mahal 6/23
6. PW-3 ASI Dharmender has deposed in his examination-in-chief that on 12.07.2019 he was DO and duty hours were 04:00 pm to 12:00 night. On the same day at about 09:20 pm Ct. Naresh handed over the rukka to him for the registration of FIR. He made the endorsement on rukka Ex.PW-3/A. On the basis of the rukka the FIR No. 101/199 dated 12.07.2019 u/s 25 Arms Act was registered the same exhibited as Ex.PW-3/B. He made the Certificate u/s 65B Indian Evidence Act Ex.PW-3/C. He prepared the GD No.064 A dated 12.07.2019 Ex.PW-3/D. He handed the original copy of rukka and FIR to Ct. Naresh. He brought the FIR register having Sl. No. 101 to 125 of 2019, the copy of the same exhibited as Ex.PW-3/B. During cross-examination of the witness by Ld. Counsel for the accused, PW-3 stated that Ct. Naresh handed over the rukka to him at about 09:20 pm for the registration of FIR and he left the PS after half an hour with the copy of FIR. He admitted that he never joined the investigation of the present case. He denied that he is deposing falsely on the instance of IO. He further denied that he made an endorsement on the rukka at the instance of IO.
7. PW-4 HC Ruplal has deposed in his examination-in-chief that on 12.07.2019, he alongwith Ct. Arun was on picket duty at Haj FIR No. 101/2019 State Vs. Amaan @ Feteh PS Chandni Mahal 7/23 Manzil, Turkman Gate, Delhi. At about 7:05 pm, one person who was coming towards them from the side of Gadha Chowk, Ram Leela Maidan, after seeing them on duty he turned back and started walking hastily, due to which they got suspicious of him. They apprehended him. They inquired about him, but he could not give any satisfactory answer. He conducted a cursory search of the accused and found one buttondar knife from the right pocket of the pants. Thereafter, he informed the Duty Officer about the incident. In compliance with which Ct. Naresh along with ASI Anil came to the spot. He informed about the incident and handed over the accused and the buttondar knife to ASI Anil. On inquiry the name of the accused was revealed as Amaan@Fateh s/o Yasin. Thereafter, IO asked 4 to 5 public persons to join the investigation but they refused to join and left the place on pretext of some urgent work. No notice was served to them due to paucity of time. IO recorded his statement Ex.PW-4/A. IO prepared the sketch memo Ex.PW-1/A. The total length of the knife was 23.5 cm and the length of butt was 13 cm and width of blade was 2.5 cm having a button on the handle of the knife and the length of the blade was 10.5 cm. Thereafter, IO put the knife in the white pullanda and sealed it with the seal BW. The seal was handed over to him after use. Thereafter, IO prepared the seizure memo Ex.PW-1/B. FIR No. 101/2019 State Vs. Amaan @ Feteh PS Chandni Mahal 8/23 Thereafter, IO prepared the tehrir and rukka and handed over the same to Ct. Naresh for the registration of the FIR. After registration of the FIR Ct. Naresh came back to the spot and handed over the copy of FIR and original tehrir and rukka to the IO. Thereafter, IO inserted the particulars of the case on sketch memo and seizure memo. In the meantime, IO prepared the site plan at his instance Ex. PW-4/B. Thereafter, IO arrested the accused person vide arrest memo Ex. PW1/C and conducted the person search vide memo Ex. PW1/D. IO recorded the disclosure statement of the accused Ex.PW-4/C. Thereafter, IO recorded his supplementary statement U/s 161 Cr.P.C and he was discharged. He has correctly identified the accused. He has also correctly identified the case property i.e. the buttondar knife Ex.P-1.
During cross-examination of the witness by Ld. LAC for the accused, PW-4 stated that he admitted that the incident spot is a crowded area. He admitted that IO did not give written notice to join the investigation to any public person in his presence. IO did not record the name and addresses of the public persons. He further admitted that the CCTV cameras were not installed on the spot. He further denied that the IO did not make any efforts to get the CCTV footage. He admitted that he did not offer his personal search before searching the accused person. He further denied that FIR No. 101/2019 State Vs. Amaan @ Feteh PS Chandni Mahal 9/23 no property was recovered from the accused or that the property was falsely implanted upon the accused. He further denied that all the documents were prepared while sitting at the PS. He further denied that he is deposing falsely.
8. PW-5 ASI Anil Kumar has deposed in his examination-in-chief that on 12.07.2019, on receiving DD NO. 64A he along with Ct. Naresh went to the spot of the incident i.e. Haj Manzil picket, Turkman Gate, Delhi. He met Ct. Ruplal alongwith Ct. Arun and the accused. Thereafter, Ct. Ruplal informed him about the incident and handed over the custody of the accused and the buttondar knife to him. He asked 4 to 5 public persons to join the investigation but they refused to join and left the place on the pretext of some urgent work. He recorded the statement of Ct. Ruplal Ex.PW-4/A. He prepared the sketch memo Ex.PW-1/A. The total length of knife was 23.5 cm and the length of butt was 13 cm and the width of the blade was 2.5 cm having a button on the handle of the knife. He put the knife in the white pullanda and sealed it with the seal BW. The seal after use was handed over to Ct. Rooplal. He prepared the seizure memo Ex.PW-1/B. Thereafter, he prepared the tehrir/rukka from point X to X1 on the same page of the complaint Ex.PW-4/A and made an endorsement at point C and handed over the same to HC Naresh for the FIR No. 101/2019 State Vs. Amaan @ Feteh PS Chandni Mahal 10/23 registration of the FIR. After registration of the FIR, HC Naresh came back to the spot and handed over the copy of FIR and original tehrir and rukka to him. He prepared the site plan at the instance of Ct. Ruplal Ex.PW-4/B. He inserted the particular case on a sketch memo and a seizure memo. He arrested the accused person namely Amaan@Fateh vide arrest memo Ex. PW1/C and conducted the personal search vide memo Ex. PW1/D. After medical examination, the accused was lodged up in lockup and he deposited case property in the Malkhana. He recorded the statement U/s 161 Cr.P.C of the witnesses and they were discharged. He has correctly identified the accused. He has correctly identified the case property Ex. P-1.
During cross-examination of the witness by Ld. LAC for the accused, PW-5 stated that he admitted that the incident spot is a crowded area. He admitted that he did not give written notice to join the investigation to any public person in his presence. He did not record the name and addresses of the public persons. He admitted that the CCTV cameras were not installed at the spot. He further denied that he did not make any efforts to get the CCTV footage. He further denied that no property was recovered from the accused or that the property was falsely implanted upon the accused. He admitted that the incident had not taken place in his FIR No. 101/2019 State Vs. Amaan @ Feteh PS Chandni Mahal 11/23 presence. He further denied that all the documents were prepared while sitting at the PS. He further denied that he is deposing falsely.
9. The prosecution evidence was closed on 06.12.2022. Statement of the accused u/s 313 read with section 281 Cr.P.C was recorded in which he stated that he was innocent and had been falsely implicated in the case. He further stated that no knife was recovered from his possession and recovery has been planted. He stated that he has not committed any offence. He also submitted that he did not want to lead defence evidence. Final arguments in the matter were heard on 21.12.2022.
APPRECIATION OF EVIDENCE:
10. Learned APP for the state submitted that the prosecution has proved the case against the accused beyond a reasonable doubt for the alleged offence, and the accused be convicted for offence u/s 25 of Arms Act.
11. Per Contra, learned counsel for the accused submitted that there are severe discrepancies in the prosecution evidence. It is argued that despite admission by all prosecution witnesses that the place of alleged offence was a crowded place, no public/independent person was made witness. Also, the seizure FIR No. 101/2019 State Vs. Amaan @ Feteh PS Chandni Mahal 12/23 memo is doubtful as antedated for bearing the FIR number in it. Lastly, it is submitted that the present case is planted upon the accused and the accused be acquitted.
12. Before moving on for appreciation of evidence for deciding the present case, the applicable penal provision is reproduced in verbatim as follows:-
"25. Punishment for certain offences:-
(1B) Whoever-...
(b) acquires, has in his possession or carries in any place specified by notification under section 4 any arms of such class or description as has been specified in that notification in contravention of that section; or...shall be punishable with imprisonment for a term which shall not be less than 25 [one year] but which may extend to three years and shall also be liable to fine."
13. It is a cardinal principle of criminal jurisprudence that the prosecution is supposed to prove its case beyond reasonable doubts by leading reliable, cogent and convincing evidence to successfully bring home the guilt of the accused. Further, it cannot derive any benefits whatsoever from the weakness, if any, in the defence of the accused. The accused is entitled to the benefit of every reasonable doubt in the prosecution story and any such reasonable doubt in the prosecution case entitles the accused to acquittal.
FIR No. 101/2019 State Vs. Amaan @ Feteh PS Chandni Mahal 13/23
14. Coming to the matter in hand, to sustain conviction u/s. 25 of Arms Act, the prosecution is required to prove the following ingredients:
I. The accused was found in the possession of the button actuated knife.
II. The accused was carrying the same without any license/permit or in contravention of notification of Delhi Administration.
15. In order to prove the guilt of the accused, the prosecution is required to prove the possession of a buttondar knife with the accused at the very spot, from where the accused was apprehended. As per the case of the prosecution, the accused was apprehended at around 07.05 pm at Haji Manzil Picket, Turkman Gate, Delhi. A careful perusal of testimonies of PW-1, PW-2, PW-4 and PW-5 reflected that they deposed that 4-5 persons were requested to join the investigation; however, all public persons refused to take part in the same. During their cross-examination, the above said witnesses admitted in unisom admitted in their cross-examination that the incident spot was a crowded area. The recovery is alleged to have been affected from a public place at around 07:05 P.M. Therefore, in all probability public persons must have been present FIR No. 101/2019 State Vs. Amaan @ Feteh PS Chandni Mahal 14/23 around the place of recovery. It turns out that there was no lack of time and opportunity with the IO 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. The names of those persons are not mentioned. It is not mentioned as to what action was taken against those persons who refused to join the investigation. .
16. Here, it is pertinent to refer to the judgment of the Hon'ble Supreme Court in State Of Punjab V. Balbir Singh AIR 1994 SC 1872, held that :
"It therefore emerges that non-compliance of these provisions i.e. Sections 100 and 165 Cr.P.C. would amount to an irregularity and the effect of the same on the main case depends upon the facts and circumstances of each case. Of course, in such a situation, the court has to consider whether any prejudice has been caused to the accused and also examine the evidence in respect of search in the light of the fact that these provisions have not been complied with and further consider whether the weight of evidence is in any manner affected because of the non-compliance. It is well-settled that the testimony of a witness is not to be doubted or discarded merely on the ground that he happens to be an official but as a rule of caution and depending upon the circumstances of the case, the courts look for independent corroboration. This again depends on the question whether the official has deliberately failed to comply with these provisions or failure was due to lack of time and opportunity to associate some independent FIR No. 101/2019 State Vs. Amaan @ Feteh PS Chandni Mahal 15/23 witnesses with the search and strictly comply with these provisions. [Emphasis supplied]"
17. At this stage, it is crucial here to refer to section 100 of Cr.P.C. which is reproduced here:
100. Persons in charge of closed place to allow search.
(4) Before making a search under this Chapter, the officer or other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do.
(5) The search shall be made in their presence, and a list of all things seized in the course of such search and of the places in which they are respectively found shall be prepared by such officer or other person and signed by such witnesses; but no person witnessing a search under this section shall be required to attend the Court as a witness of the search unless specially summoned by it.
(8) Any person who, without reasonable cause, refuses or neglects to attend and witness a search under this section, when called upon to do so by an order in writing delivered or tendered to him, shall be deemed to have committed an offence under section 187 of the Indian Penal Code (45 of 1860 ).
Section 100 (4) of the CrPC casts a statutory duty on an official conducting search to join two respectable persons of the society. Further, it is clearly stated that if any such person refuses or neglects to be part of the search without citing any reasonable cause, it is the duty of an official to give him a notice in this regard.
18. In the present case, on perusal of the documentary records FIR No. 101/2019 State Vs. Amaan @ Feteh PS Chandni Mahal 16/23 relied on by the prosecution, it is clear that neither the tehrir which is Ex.PW4/A or rukka which is Ex.PW3/A, nor FIR which is Ex. PW3/B mentioned any public witness or independent witness. The fact of not noting down the name or address of any witness in the diary, or giving notice to public persons who refused to be part of the investigation, casts doubt on the story of the prosecution that whether any serious efforts were made to join any public witness in the proceedings. All the prosecution witnesses examined in the present matter are police witnesses. The testimony of official witnesses doesn't find any corroboration from any independent source. In the opinion of this court, non-joining of independent/public witnesses is fatal to the prosecution case and creates serious doubts regarding the genuineness of investigation proceedings done at the spot.
19. In Roop Chand v. State of Haryana 1990(1) CLR 69, it was observed that such explanations that the public persons refused to join the proceedings are unreliable. Further, in Passi @ Prakash V. State of Haryana 2001(1) RCR 435, that whenever any recovery in connection with the place of the commission of the offence is made, public persons must be made witnesses. Also, in Pawan Kumar v/s Delhi Administration 1989 Cri. L.J. 127, it was observed that in case failure to join independent witness benefit of FIR No. 101/2019 State Vs. Amaan @ Feteh PS Chandni Mahal 17/23 doubt must be given to the accused.
20. This Court is, however, conscious that the prosecution case cannot be thrown out or doubted on the sole ground of non-joining of public witnesses as public witnesses keep themselves away from the Court unless it is inevitable. However, in the present case, it is not only the absence of public witnesses which raises a doubt on the prosecution but there are other circumstances too, as discussed hereinafter, which raise suspicion over the prosecution version.
21. The other major infirmity found in the present case is that as per the prosecution version, the buttondar knife has been recovered from the possession of the accused. To substantiate this allegation, the prosecution produced tehrir and rukka which mentioned sketch memo(Ex.PW1/A) and seizure memo (Ex.PW1/B) of the buttondar knife being made at the time of recovery. Further, as per the depositions of PW-1, PW-2, PW-4 and PW-5/IO, the case property was first seized, a sketch of one button operated knife was prepared and then rukka was sent for registration of FIR. However, the seizure memo and sketch bear the FIR number. At the time of the seizure, the FIR number was not available and therefore, the FIR number could not have been figured on the seizure memo or the sketch. The existence of the FIR number on the seizure memo FIR No. 101/2019 State Vs. Amaan @ Feteh PS Chandni Mahal 18/23 suggests that the seizure memo was prepared after the registration of the FIR. This erodes the credibility of the seizure memo and sketch memo as the possibility of tampering can't be ruled out.
22. In paragraph 4 of Mohd. Hashim v. State, 1999 VI AD (Delhi) 569, the Hon'ble High Court of Delhi observed:
"... Surprisingly, the secret information (Ex. PW7/A) received by the Sub-Inspector Narender Kumar Tyagi (PW-7), the notice under Section 50 of the Act (Ex. PW5/A) alleged to have been served on the appellant, the seizure memo (Ex. PW1/A) and the report submitted under Section 57 of the Act (Ex. PW7/D) bear the number of the FIR (Ex. PW4/B). The number of the FIR (Ex.PW4/B) given on the top of the aforesaid documents is in the same ink and in the same handwriting, which clearly indicates that these documents were prepared at the same time. The prosecution has not offered any explanation as to under what circumstance number of the FIR (Ex. PW4/B) had appeared on the top of the aforesaid documents, which were allegedly prepared on the spot. This gives rise to two inferences that either the FIR (Ex. PW4/B) was recorded prior to the alleged recovery of the contraband or number of the said FIR was inserted in these documents after its registration. In both the situations, it seriously reflects upon the veracity of the prosecution version and creates a good deal of doubt about recovery of the contraband in the manner alleged by the prosecution."
23. Another dent in the prosecution case is related to the seal. It is crucial to note here that there are three major discrepancies in this regard:
I. No seal-handling memo was prepared.
II. Seal not handed over to independent witness after use.
FIR No. 101/2019 State Vs. Amaan @ Feteh PS Chandni Mahal 19/23
III. Deposition of seal in Malkhana or any other place has not been proved.
24. Prosecution witnesses namely PW-1, PW-2 have deposed in their examination-in-chief that IO has seized and sealed the case property at the spot in white pullanda with the seal of BW after that seal was handed over to PW-4/Ct. Rooplal. Neither PW-4 nor IO mentioned the preparation of seal handing over memo nor any such memo is on record. The seal was handed over to the material prosecution witness, who is already interested in the case of the prosecution being the complainant himself and not handed over to an independent witness nor deposited in malkhana. No explanation has come on record as to why the memo was not made or seal was not handed over to an independent witness or deposited in malkhana. Further, the testimony of PW-5 nowhere mentioned about the factum of deposition of seal after its use at any point of time during investigation. The above said discrepancies speak of nothing but the possibility of tampering of case property.
25. This Court is conscious of precedent laid down by Hon'ble Delhi High Court in Safiullah v. State 1993 (1) RCR (Criminal) 622, that:
FIR No. 101/2019 State Vs. Amaan @ Feteh PS Chandni Mahal 20/23 "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."
26. Lastly, qua the personal search of the accused before the alleged recovery, it was stated by the PW-4 that he made a cursory search of the accused. Further, PW-4 has nowhere stated during his testimony that he asked the accused to search him before and then did the personal search of the accused. This fact was not mentioned in either tehrir or the statement of PW-4 recorded under section 161 Cr.P.C, which erodes the testimony of the PW-4. In the case of Orissa High Court reported as Rabindernath Prusty v/s State of Orissa, it was held that "One of the formalities that have to be observed in searching a person is that the searching Officer and other assisting him should give their search to the accused before searching the person of the accused."
27. In the present case, no independent witness deposed about the search being done by the accused before his personal search whereby the buttondar knife was recovered from him. All these circumstances raise serious doubt regarding the fairness and credibility of investigation proceedings conducted by the police at FIR No. 101/2019 State Vs. Amaan @ Feteh PS Chandni Mahal 21/23 the alleged date, time and place.
CONCLUSION:
28. The facts that no independent witness was cited or examined and the appearance of FIR number and case particulars on the seizure memo, no seal handing memo, has not been explained, all aforesaid inconsistencies when kept in juxtaposition to each other, cast a cloud of suspicion over the prosecution version. In view of the aforesaid, the possibility of false implication of the accused in the present case cannot be ruled out.
29. On careful perusal and analysis of the entire evidence, I find that there is no corroborative, consistent and sufficient evidence to make up the edifice of the prosecution case which has been produced by the prosecution. Given the aforementioned facts and circumstances, it has to be concluded that the prosecution has failed to prove its case against the accused beyond reasonable doubt. Therefore, the Accused is given the benefit of doubt. Accordingly, the accused Amaan@Fateh s/o Yasin is hereby acquitted for an offence punishable under Section 25 of The Arms Act, 1959. Case property be confiscated to the State. Same FIR No. 101/2019 State Vs. Amaan @ Feteh PS Chandni Mahal 22/23 be destroyed.
30. File be consigned to Record Room subject to compliance of section 437-A Cr.PC.
Digitally signed by MEENAAnnounced in the open court MEENA
CHAUHAN
CHAUHAN
Date:
today i.e. 05.01.2023
2023.01.05
16:50:50 +0530
(MEENA CHAUHAN)
Metropolitan Magistrate-08
Central District, Tis Hazari Courts/Delhi
[This judgment contains 23 pages and each page bears the initials of undersigned and the last page bears the complete sign of undersigned.] FIR No. 101/2019 State Vs. Amaan @ Feteh PS Chandni Mahal 23/23