Delhi District Court
State vs . Amit @ Shivam on 5 January, 2023
IN THE COURT OF MS MANSI MALIK,
METROPOLITAN MAGISTRATE-03, NORTH WEST,
ROHINI COURTS, DELHI
Cr. Case No. 5887/2021
FIR No. : 411/2021
P.S. : Raj Park
State Vs. Amit @ Shivam
U/s. 25 Arms Act
State
v.
Amit @ Shivam
S/o Sh. Manoj,
R/o Vega Bond E-Block, Mangol Puri, Delhi
Date of institution of case : 31.07.2021
Date of reserving the judgment : 01.12.2022
Date of pronouncement of judgment : 05.01.2023
JUDGMENT
1. S. No. of the Case: 5887/2021 2. Date of Commission of Offence: 10.06.2021 3. Date of institution of the case: 31.07.2021 4. Name of the complainant: Ct. Rohitashva Kumar 5. Name of the accused: Amit @ Shivam 6. Offence complained or proved: U/s 25 Arms Act 7. Plea of Accused: "Not Guilty" 8. Final Order: Acquittal 9. Date of Final Order: 05.01.2023 Digitally signed by MANSI MANSI MALIK MALIK Date: 2023.01.05 17:11:43 +0530 State vs. Amit @ Shivam FIR no.411/21 PS Raj Park Page No. 1/13 BRIEF FACTS AND REASONS FOR DECISION
1. Succintly, the case of prosecution is that the accused Amit @ Shivam has been sent to face trial with the allegations that on 10.06.2021 at about 08:00 PM at C-Block, near Mother Dairy, Delhi, within the jurisdiction of PS Raj Park, accused was found in possession of one buttondar knife, without any license or permit. Investigation was carried out. Upon completion of the investigation the instant charge- sheet for the offence punishable under Section 25 Arms Act was filed by the investigating officer against the accused. The accused was then summoned by the undersigned.
2. The copy of charge sheet and relevant documents was supplied to the accused in compliance of Section 207 of Code of Criminal Proce- dure, 1973 (hereinafter referred to as Cr.PC).
3. Prima facie case was made out and charge for offence punishable under Section 25 Arms Act was framed on 25.10.2021 to which the accused pleaded not guilty and claimed trial. Thereafter, the matter was fixed for recording of prosecution evidence.
4. In order to substantiate the allegations, the prosecution examined three witnesses. At the onset it would be appropriate to have glance at the gist of deposition made by the witnesses: Digitally signed by MANSI MANSI MALIK MALIK Date:
2023.01.05 17:11:50 +0530
5. PW-1/ Ct. Rohtas deposed that on 10.06.2021, he was posted as Ct.
at police station Raj Park and on that day he was on patrolling duty at beat no. 1, C-Block, Near Mother Dairy. PW-1 further deposed State vs. Amit @ Shivam FIR no.411/21 PS Raj Park Page No. 2/13 that during patrolling duty at about 8:00 PM when he reached at Mangolpuri C-Block, he saw that one boy was coming from the side of Phase-I Industrial Area Mangolpuri and upon seeing him he pan- icked and tried to flee away with high speed. PW-1 further deposed that at some distance his motor cycle became dis-balanced and he fell down and he reached the spot where boy was fallen. PW-1 fur- ther deposed that that boy started to flee away from there, however he caught hold him. PW-1 further deposed that upon suspicion he took his cursory search and found buttondar knife from his right side pocket. PW-1 further deposed that he also checked his black colour bag from which he found 5 mobile phones and thereafter, I made call to police station from there, HC Tukaram Munde reached the spot. PW-1 further deposed that he handed over the accused and buttondar knife to IO/HC Tuka Ram Munde and IO recorded his statement Ex. PW-1/A. PW-1 further deposed that IO prepared rukka on the basis of his statement which he handed over to him for registration of FIR and he went to the police station along with original rukka and came back to the spot along with copy of FIR and original rukka and handed over the same to the IO. PW-1 further deposed that IO ar- rested the accused and conduct his personal search vide memo Ex. PW-1/B and Ex. PW-1/C and IO prepared the sketch of buttondar knife which is Ex. PW-1/D. PW-1 further deposed that IO seized the knife vide seizure memo Ex. PW-1/E and IO had prepared the site plan at his instance Ex. PW-1/F. PW-1 further deposed that IO had also recorded disclosure statement of accused and seized motor cycle of accused vide memo Ex. PW-1/G and Ex. PW-1/H. PW-1 correctly identified the case property. Ex. P-1. PW-1 also correctly identified the accused. PW-1 was duly cross examined by the Ld. LAC for the accused. MANSI byDigitally signed MANSI MALIK Date: 2023.01.05 MALIK 17:11:58 +0530 State vs. Amit @ Shivam FIR no.411/21 PS Raj Park Page No. 3/13
6. PW-2/ HC Munde Tukaram deposed that on 10.06.2021 he was posted as H/Ct. at police station Raj Park and on that day on receipt of DD no. 98A regarding apprehension of one person who was carrying buttondar knife at C-Block, Near Mother Dairy, Mangolpuri, Delhi. PW-2 further deposed that he reached at the spot where Ct. Rohtas met him who handed over the accused and buttondar knife to him and he also handed over one bag containing 5 mobile phones and also one motor cycle. PW-2 further deposed that he recorded statement of Ct. Rohtas Ex. PW-1/A and prepared rough sketch of buttondar knife PW-1/D. PW-2 further deposed he seized the knife vide seizure memo Ex. PW-1/E and had also seized motor cycle and mobile phones Ex. PW-1/H and PW-2/A. PW-2 further deposed that he recorded statement of Ct. Rohtas Ex. PW-1/A and on the basis of his statement he prepared rukka Ex. PW-2/B and handed over to Ct. Rohtas for registration of FIR. PW-2 further deposed that Ct. Rohtas went to police station for registration of FIR came back to the spot along with copy of FIR and original rukka and handed over the same to him. PW-2 further deposed that after interrogation he arrested the accused and conducted his personal search vide memo Ex. PW-1/B and Ex. PW-1/C and also recorded disclosure statement of accused vide memo Ex. PW-1/G. PW-2 further deposed that he had prepared site plan at instance of complainant Rohtas Ex. PW-1/F and took the accused to police station and got locked up. PW-2 further deposed that he deposited the case property in Malkhana and got the medical examination of the accused conducted. PW-2 further deposed that he prepared the charge sheet and filed the same before the court. PW-2 correctly identified the case property as well as the accused. PW-2 was duly cross examined by the Ld. LAC for the State vs. Amit @ Shivam FIR no.411/21 PS Raj Park Page No. 4/13 Digitally signed by MANSI MANSI MALIK MALIK Date:
2023.01.05 17:12:06 +0530 accused.
7. PW-3/ASI Vinod Kumar deposed that on 10.06.2021, he was posted at PS Raj Park as ASI and on that day he was working as duty officer from 4:00 pm to 12 mid night. PW-3 further deposed that at about 8:34 pm, he received information regarding apprehending of one boy alongwith motorcycle, mobile phone and buttondar knife near Mother dairy, C-block, Mangol Puri Delhi. PW-3 further deposed that he lodged the aforesaid information in general diary vide GD No.98 A, copy of which is Ex. PW-3/X. PW-3 further deposed that on that day he received rukka through Ct. Rohtash and sent HC Munde Tukaram, on the basis of same he got registered the present FIR, the copy of which is Ex. PW-3/A(OSR). PW-3 further deposed that he had also made endorsements on the aforesaid rukka which is Ex. PW-3/B and certificate u/s 65 B, Evidence Act regarding the aforesaid FIR is Ex .PW-3/C. PW-3 was not cross examined by the accused despite opportunity given.
8. Ld. APP for the State submits that there is no requirement for examining witness mentioned at serial no. 4 in the list of witnesses. In view of the above, witness mentioned at serial no. 4 in the list of prosection witnesses was dropped. Prosecution evidence was thereafter closed on 28.10.2022.
9. Statement of accused person was recorded u/s 313 Cr.PC., wherein all the incriminating evidence was put to the accused, to which he stated that he has been falsely implicated in this case. Further, the accused person did not opt to lead defence evidence and the matter Digitally signed by MANSI MANSI MALIK was listed for final arguments. Date:
MALIK 2023.01.05 17:12:13 +0530 State vs. Amit @ Shivam FIR no.411/21 PS Raj Park Page No. 5/13
10. The Court has carefully perused the case record and has heard arguments advanced by Ld. APP for the state as well as by Ld. Defence counsel.
11.Short point for determination before the court is as under -
"Whether on 10.06.2021 at about 08:00 PM near Mother Dairy, Delhi, within the jurisdiction of PS Raj Park, accused was found in possession of one buttondar knife, without any license or permit?"
12.It is argued by Ld. APP for the state that from the ocular and documentary evidence on record, prosecution has proved beyond reasonable doubt that accused was found in possession of buttondar knife without permit and submitted that accused be convicted of the offence charged.
13.Per contra, it is argued by the Ld. LAC for the accused that accused is completely innocent and recovery of case property has been falsely implanted upon him. It is further submitted by Ld. LAC that non-joinder of public witness despite availability cast shadow of doubt on prosecution story. It is further argued by Ld. LAC for the accused that tampering with the contents of the sealed parcel cannot be ruled out as seal was not handed to the independent witness. At the end, it is submitted that the prosecution has miserably failed to prove its case beyond reasonable doubt and therefore, the accused is liable to be acquitted of the alleged offence.
Digitally signed by MANSI MANSI Date:
MALIK MALIK 2023.01.05 17:12:20 +0530
14.I have heard the rival submissions and have also carefully gone State vs. Amit @ Shivam FIR no.411/21 PS Raj Park Page No. 6/13 through the entire material available on record and evidence led on behalf of the prosecution. My findings on the point for determination and brief reasons for the same are now being discussed in following paragraphs.
15. In present case, the prosecution was duty bound to prove the possession of the buttondar knife with the accused. Same is sought to be proved by the recovery memo and testimony of the witnesses. But the manner of conducting inquiry, seizure and search etc. on the spot at the time of arrest of the accused and alleged recovery of buttondar knife in this case, makes the prosecution version highly doubtful. Incident is stated to have happened at about 8:00 PM and it is evident from the testimony of PW-1 that the accused was apprehended alongwith the alleged unauthorised buttondar knife at a public place but still no public independent person was cited as a witness in this case.
16. The aforesaid observations have been deduced from the testimony of PW-1 and PW-2. As per version of PW-2/IO, after apprehension of the accused, public persons were available at the spot. PW-2 requested public persons to join the investigation but all the public persons refused to join the same. However, a perusal of the record shows that no written notice was served on the public persons. The said explanation given by PW-2 cannot be accepted by the court since, the IO was under obligation to issue notice in writing to the public persons, who refused to join the police investigation particularly in the background when the accused has already been apprehended by the police and there was no apprehension that accused might escape. Moreover, the IO has not even placed on State vs. Amit @ Shivam FIR no.411/21 PS Raj Park Page No. 7/13 Digitally signed by MANSI MANSI Date:
MALIK MALIK 2023.01.05 17:12:27 +0530 record the names of the passersby who were asked to join the investigation and neither have any reasons been mentioned by the IO for refusal by the people who were approached to join the investigation. In the facts and circumstances of the case, this court finds that police has not made any sincere effort to join independent public witnesses during investigation. In this regard reliance is being placed on the following judgments:-
In a case law reported as "Anoop V/s 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 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".
In an case law reported as "Roop Chand V/s The State of Haryana", 1999 (1) C.L.R 69, the Hon'ble 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 MANSI Digitally signed by MANSI time and it is in the evidence of the prosecution MALIK MALIK Date:
2023.01.05 17:12:33 +0530 State vs. Amit @ Shivam FIR no.411/21 PS Raj Park Page No. 8/13 witnesses that some witnesses from the public were available and they were asked to join the investigation but they refused to do 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 Investigation 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 he witnesses from the public had refused to to join the investigation, the Investigating Officer must have proceeded against them under the relevant provisions 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".
In case law reported as "Sadhu Singh V/s State of Punjab", 1997 (3) Crimes 55 the Hon'ble Punjab & Haryana High Court observed as under:-
"5. In a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubts. It is for the prosecution to travel the entire distance Digitally signed by MANSI MANSI Date:
MALIK MALIK 2023.01.05 17:12:43 +0530 State vs. Amit @ Shivam FIR no.411/21 PS Raj Park Page No. 9/13 from may have to must have. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused" "6. In the present case, the State examined two witnesses namely, Harbans Singh ASI who appeared as PW1 and Kartar Singh. PW2. Both the witnesses supported the prosecution version in terms of the recovery of opium from the person of the petitioner, but there was no public witness who had joined. It is not necessary in such recoveries that public witnesses must be joined, but attempt must be made to join the public witnesses. There can be cases when public witnesses are reluctant to join or are not available. All the same, the prosecution must show a genuine attempt having been made to join a public witness or that they were not available. A stereo-type statement of non-availability will not be sufficient particularly when at the relevant time, it was not difficult to procure the service of public witness. This reflects adversely on the prosecution version".
Considering the aforesaid observations made by the Higher Courts, the omissions/ failure on the part of investigating agency to join independent public witnesses create reasonable doubt in the prosecution story. Making bald averments that public persons were asked to join the investigation but none agreed without giving any written notice to them does not inspire the confidence of the Court.
17. The next inconsistency in the case of the prosecution is the failure to prove the arrival and departure entries of the police officials. It is pertinent to mention that the present case rests entirely on the alleged recovery of case property i.e. knife from the possession of the accused at the relevant time by the police officials who were on patrolling duty at the relevant time and place, as per the prosecution story. Police officials are under a statutory Digitally signed by MANSI MANSI MALIK MALIK Date:
2023.01.05 17:12:51 +0530 State vs. Amit @ Shivam FIR no.411/21 PS Raj Park Page No. 10/13 duty to mark their departure and arrival in the register kept in the police station for above 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:
"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."
18. Since public persons were not joined in the investigation, the departure entry of the aforesaid police officials who were allegedly on patrolling duty at the relevant time and had apprehended the accused with case property becomes a vital piece of evidence. PW-1/Ct. Rohtash has stated in his cross-examination that he had departed from the police station vide DD No. 98 on 10.06.2021 at 8:34 pm. However, no such entry has been placed on record. Therefore, in the case in hand neither the departure entry nor arrival entry was proved by prosecution, however, proof of the said entry is indispensable as the present case rests solely on the alleged recovery made by the aforesaid police official. Therefore, the failure to prove the aforementioned entries casts a doubt on the story of the prosecution.
19. Further, as per evidence on record, it is not clear to whom the seal after use was was handed over and therefore the chances of fabrication of case property cannot be ruled out. Moreover, no seal handing over memo is State vs. Amit @ Shivam FIR no.411/21 PS Raj Park Page No. 11/13 Digitally signed by MANSI MANSI MALIK MALIK Date:
2023.01.05 17:12:58 +0530 also on record. Hence, considering the legal position, the benefit of doubt should be given to the accused, as tampering with case property in such a scenario cannot be ruled out. Reliance is placed on the judgment of Ramji Singh Vs. State of Haryana 2007 (3) R.C.C. (Criminal) 452, wherein it is held that-
"7. The very purpose of giving seal to an independent person is to avoid tampering of the case property. It is well settled that till the case property is not dispatched to the forensic science laboratory, the seal should not be available to the prosecuting agency and in the absence of such a safeguard the possibility of seal, contraband and the samples being tampered with cannot be ruled out."
Similarly, Hon'ble Delhi High Court in Safiullah v. State, 1993 (1) RCR (Criminal) 622, held 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."
20. From the aforesaid discussion, it is very clear that the manner in which the inquiry, seizure and search etc. has been conducted on the spot at the time of alleged recovery of weapon, makes the prosecution version highly doubtful. At this stage, it would also be worthwhile to refer to the judgment of Hon'ble Supreme Court in Sarwan Singh vs State of Punjab (AIR 1957 SC 637) regarding the nature of burden of proof on the prosecution to prove its case. The ratio of this judgment is applied with the same vigour even after passing of more than 50 years. It was held in this case that:- "There may also be an element of truth in the prosecution story State vs. Amit @ Shivam FIR no.411/21 PS Raj Park Page No. 12/13 Digitally signed by MANSI MANSI Date:
MALIK MALIK 2023.01.05 17:13:07 +0530 against the accused. Considered as a whole, the prosecution story may be true; but between 'may be true' and 'must be true' there is inevitably a long distance to travel and the whole of this distance must be covered by the prosecution by legal, reliable and unimpeachable evidence before an accused can be convicted." Again in Jagdish Prasad vs State (Govt Of NCT Of Delhi) 2011 (9) LRC 206 (Del), the Hon'ble High of Delhi had observed that "It is well settled that in a criminal case, in order to bring home the guilt of the accused, the prosecution is required to establish the guilt beyond a shadow of reasonable doubt. If, on consideration of the prosecution evidence, a reasonable doubt remains in respect of culpability of the accused, he is entitled to benefit of doubt.
21. In view of the above discussion, this Court is of considered view that in the present case the prosecution has failed to prove its case against the accused Amit @ Shivam beyond reasonable doubt. Accordingly, the accused Amit @ Shivam is acquitted for the offence punishable u/s 25 Arms Act.
22. Bail bonds u/s 437A of CrPC are to be furnished which would remain valid for a period of six months.
Digitally signed MANSI by MANSI MALIK MALIK Date: 2023.01.05 17:13:13 +0530 Announced in open Court (MANSI MALIK) on 05th Day of January, 2023 Metropolitan Magistrate North-West, Rohini, Delhi State vs. Amit @ Shivam FIR no.411/21 PS Raj Park Page No. 13/13