Delhi District Court
State vs . Devender Gautam @ Sheru on 1 March, 2023
IN THE COURT OF METROPOLITAN MAGISTRATE03, NORTHEAST
KARKARDOOMA COURTS, DELHI
Presided by Nitish Kumar Sharma
Challan filed on: 25.04.2022
Final arguments heard on: 17.02.2023
Judgment announced on: 01.03.2023
F.I.R. No. : 348/2022
Police Station: Shastri Park
State Vs. Devender Gautam @ Sheru
U/S 25 Arms Act
(a) Case ID number/CR No. : 1811/2022
(b) Date of commission of the : 20.03.2022
offence
(c) The name of the complainant : Ct. Satyavir No. 2935/NE,
PS Shastri Park, Delhi
(d) The name of the accused, : Devender Gautam @ Sheru
parentage and residence S/o Kamal Singh, R/o H.No.
G4/63, Gali No.4, 5th Pusta,
Sonia Vihar, Delhi.
(e) The offence complained of : Under Section 25 Arms Act
(f) The plea of the accused : Pleaded not guilty
(g) The final order : Acquitted.
(h) The date of such order : 01.03.2023
(i) State represented by : Ld. APP for State.
(j) Accused represented by : Sh. Ved Prakash, Ld.
counsel for accused.
FIR No.348/2022 State Vs. Devender Gautam @ Sheru PS: Shastri Park Page no. 1 of 9
JUDGMENT
FACTUAL BACKGROUND
1. The present case initiated on the complaint of constable Satyavir who apprehended the accused with buttondar knife while he & Ct. Gulfam was on patrolling duty and accused had started to run after seeing them. Briefly stated, the case of the prosecution is that on 20.03.2022 at about 9:50 PM at Shastri Park Chowk, Delhi within the jurisdiction of PS Shastri Park, the accused was found having in conscious possession of one buttondar knife in contravention of notification issued by Delhi Administration and thereby the accused has committed an offence punishable under section u/s 25 Arms Act. The present FIR bearing No.348/2022 dated 20.03.2022 under Section 25 of Arms Act thus was registered against the accused at P.S. Shastri Park, Delhi.
PROCEEDINGS BEFORE THE COURT
2. After completion of investigation, charge sheet was filed against the accused under Section 25 of the Arms Act on 25.04.2022, cognizance of offence was taken and copy of charge sheet was supplied to the accused in compliance of Section 207 Cr.P.C.
3. Thereafter, vide order dated 06.06.2022, charge for committing offence punishable u/s 25 of the Arms Act was framed FIR No.348/2022 State Vs. Devender Gautam @ Sheru PS: Shastri Park Page no. 2 of 9 against the accused, to which, he pleaded not guilty and claimed trial. Admission/denial of documents u/s 294 Cr.PC was conducted wherein the accused had admitted registration of FIR by DO/ASI Dharamvir. Accordingly, witness mentioned at serial no.3, as per list of witnesses was dropped.
4. To discharge its burden to prove its case, prosecution examined 3 witnesses in total. Following documents were relied upon by prosecution and were exhibited during the trial: S.No. Document Exhibit No.
1. Sketch memo of recovered knife PW1/A
2. Seizure memo of recovered knife PW1/B
3. Complaint of complainant PW1/C
4. Site Plan PW1/D
5. Seizure memo of motorcycle bearing PW1/E No. DL6SBD0466
6. Arrest memo of accused and personal PW1/F & PW1/G search memo
7. Disclosure statement of accused PW1/H
8. Recovery of illegal buttondar knife PW3/A
9. Tehrir/Rukka PW3/B
10. DAD notification dated 29.10.1980 PW3/C FIR No.348/2022 State Vs. Devender Gautam @ Sheru PS: Shastri Park Page no. 3 of 9 DEPOSITION OF PROSECUTION'S WITNESSES:
5. PW1 HC Satyavir and PW2 Ct. Gulfam deposed that on 20.03.2022, while they were on picket duty at Shastri Park Chowk, the accused was coming on bike bearing No. DL6SBD0466 from Zero Pusta and going towards Shastri Park Chowk and when the accused was asked to stop, the accused tried to flee away from the spot. They further deposed that the accused was apprehended by them and upon cursory search one buttondar knife was recovered from the accused's possession.
They deposed that they gave information to DO and after some time IO/HC Surender came and they handed over accused and buttondar knife to IO/HC Surender. IO/HC Surender prepared sketch memo of knife and seized the knife. They deposed that their statements were recorded by IO/HC Surender. IO prepared Tehrir/rukka and got the FIR registered. IO prepared site plan. IO seized the motorcycle and arrested the accused and conducted his personal search and also recorded his disclosure statement. They further deposed that IO recorded their supplementary statement. They correctly identified the accused in the court and the case property.
6. PW3 ASI Surender Singh deposed that on 20.03.2022, he received DD No.92A regarding recovery of buttondar knife. He deposed that he went to spot i.e. Shastri Park Chowk where he met Ct. Satyavir and Ct. Gulfam and they handed over accused, motorcycle bearing No. DL6SBD0466 and buttondar knife to him. He recorded statement of Ct. Satyavir and prepared sketch memo of said buttondar knife. He seized the said knife and prepared Tehrir and handed over the same to FIR No.348/2022 State Vs. Devender Gautam @ Sheru PS: Shastri Park Page no. 4 of 9 Ct. Gulfam for registration of FIR. Accordingly, Ct. Gulfam got the FIR registered and handed over original Tehrir and copy of FIR to him. He deposed that he prepared site plan at the instance of Ct. Satyavir. He deposed that he seized the motorcycle and arrested the accused and got his personal search conducted. He deposed that he also recorded his disclosure statement. He correctly identified the accused and case property as well.
7. Upon completion of prosecution evidence, statement of accused under Section 313 Cr.PC read with Section 281 Cr.PC was recorded on 18.01.2023. The accused denied the allegations and pleaded innocence and opted not to lead defence evidence. The court proceeded to hear the respective arguments of Ld. APP for State and Ld. defence counsel for accused.
ARGUMENTS:
8. I have considered arguments advanced by Ld. APP for State and Ld. Counsel for accused and have perused the entire material available on record carefully.
9. It is contended by Ld. Counsel for accused that nothing has been recovered from possession of the accused and he is innocent and has been falsely implicated in this case after planting case property, which is easily available for police. It is further contended that all prosecution witnesses are police witnesses and no independent public FIR No.348/2022 State Vs. Devender Gautam @ Sheru PS: Shastri Park Page no. 5 of 9 witness has joined and all writing work was done in the police station. It is further contended that the prosecution has failed to prove its case beyond reasonable doubts and hence, the accused is entitled to be acquitted. On other hand, Ld. APP for State contended that accused has been found with illegal arm by the police official and in course of investigation, the testimony of police officials also supports the case of prosecution.
ANALYSIS OF EVIDENCE:
10. As per case of prosecution, police officials had recovered buttondar knife and no independent public person were joined as witness in the present matter despite the place of recovery being a public place and public persons were present there as also admitted by PW1, PW2 & PW3 during cross examination. It is noticeable that no written notice was served to persons who refused to join the investigation and their names and addresses were also not even noted down. From the testimony of PW1, PW2 and IO, it is clear that there were availability of public persons at the spot, but despite that no public witness has joined in the present matter. No sincere efforts were made to join the public witnesses as no written notice was served to those public persons who had allegedly refused to join the investigation. Non joining of public witness raises a doubt in the story of the prosecution which is based on the oral testimony of police officials who are naturally entrusted in conviction of accused.
FIR No.348/2022 State Vs. Devender Gautam @ Sheru PS: Shastri Park Page no. 6 of 9
11. 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 : "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 do 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 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 FIR No.348/2022 State Vs. Devender Gautam @ Sheru PS: Shastri Park Page no. 7 of 9 relevant provisions of law. The failure to do so by the police officer is suggestive of the fact that the explanation for nonjoining the witnesses from the public is an after thought and is not worth of credence. All these facts taken together make the prosecution case highly doubtful".
12. In the present case as per chargesheet, the sketch memo of the knife Ex.PW1/A and the seizure memo of the knife Ex.PW1/B were prepared before the preparation of the rukka/tehrir. However, the said documents would show that they bear on them the number of the FIR. It shows a serious infirmity in the case of the prosecution as either the number of the FIR was inserted later on or the documents were prepared before the time they have been shown to have been prepared. Be that as it may, the same creates a reasonable doubt in the story of prosecution. The reliance in this regard is placed on the judgments delivered in the cases Giri Raj Vs. State 83 (2000) DLT Mohd. Hashim, Appellant Vs. State, 2000 CRI.L.J. 1510, Pawan Kumar Vs. Delhi Administration, 1987 CCC 585 and Mewa Ram Vs. State 2000 CRI.L.J.
114.
13. It is not the case of prosecution that police official had offered their search to the accused prior to taking the search of accused himself. Further, no finger print of accused on alleged recovered arm was taken by the police. These facts also raise doubt in the story of prosecution. For this, I rely on 'Pawan Kumar vs Delhi Administration, 1989 Cr.L.J. 1271'. In a case titled in AIR 1956 Cr. L.J. 1234, it was held that, "In the event of any doubt as to the guilt of accused, FIR No.348/2022 State Vs. Devender Gautam @ Sheru PS: Shastri Park Page no. 8 of 9 the benefit will go to the accused".
CONCLUSION:
14. Taking into consideration all the facts and circumstances and material available on record, I hold that the prosecution has failed to prove its case against the accused beyond reasonable doubts. Benefit of doubt is given to the accused. Hence, accused Devender Gautam @ Sheru is acquitted of the charge framed for the offence punishable U/s 25 of Arms Act. The case properties i.e. buttondar knife is confiscated to the State.
Now, file be consigned to Record Room.
Digitally signed by NITISHAnnounced in the open court NITISH Date:
2023.03.01
on 01.03.2023 15:59:17
+0530
(Nitish Kumar Sharma)
Metropolitan Magistrate03,
NorthEast, Karkardooma Courts, Delhi
FIR No.348/2022 State Vs. Devender Gautam @ Sheru PS: Shastri Park Page no. 9 of 9