Delhi District Court
State vs . Gulshan Sharma on 3 August, 2022
IN THE COURT OF SHRI NITISH KUMAR SHARMA
METROPOLITAN MAGISTRATE03, NORTHEAST
KARKARDOOMA COURTS, DELHI
Presided by Nitish Kumar Sharma
F.I.R. No. : 252/2022
Police Station: Shastri Park
State Vs. Gulshan Sharma
U/s 25 Arms Act
(a) Case ID number/CR No. : 1219/2022
(b) Date of commission of the : 31.01.2022
offence
(c) The name of the complainant : Ct. Naveen No. 2814/NE, PS
Shastri Park, Delhi
(d) The name of the accused, : Gulshan Sharma S/o Sh.
parentage and residence Mahesh Sharma, R/o H.No.
L27A, Gali No.01, Jai
Parkash Nagar, 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 : 03.08.2022
(i) State represented by : Sh. Jamshed Ansari, Ld. APP
for State.
(j) Accused represented by : Sh. Kamal Pundir, Ld.
counsel for accused.
Challan was filed on: 16.03.2022
Final arguments were heard on: 03.08.2022
Judgment is announced on: 03.08.2022
FIR No.252/2022 State Vs. Gulshan Sharma PS: Shastri Park Page no. 1 of 11
JUDGMENT
1. Briefly stated, the case of the prosecution is that on 31.01.2022 at 8:30 PM at Zero Pusta Khadar area, Shastri Park, Delhi, within jurisdiction of PS Shastri Park, the accused was found in possession of a buttondar knife in contravention of notification issued by Delhi Administration. Therefore, the present FIR bearing No. 252/2022 dated 31.01.2022 under Section 25 of Arms Act was registered against the accused at P.S. Shastri Park, Delhi.
2. After completion of investigation, charge sheet was filed against the accused under Section 25 of the Arms Act on 16.03.2022, 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 28.03.2022, charge for committing offence punishable u/s 25 of the Arms Act was framed against the accused, to which, he pleaded not guilty and claimed trial.
4. After framing of charge, admission /denial of documents was conducted and the accused admitted u/s 294 C.rPC the fact of registration of FIR by DO/ASI Sri Nivasa Rao and DAD notification dated 29.10.1980 by Dealing Clerk Deputy Secretary Home (G) Administration, Delhi. Accordingly, witness mentioned at serial No.3, as per list of witnesses were dropped from the list of witnesses.
FIR No.252/2022 State Vs. Gulshan Sharma PS: Shastri Park Page no. 2 of 11 4.1 In order to prove its case, the prosecution has examined 2 witnesses in total.
DEPOSITION OF PROSECUTION'S WITNESSES:
5. PW1 HC Naveen Kumar deposed that on 31.01.2022, he was posted at PS Shastri Park as constable and was on beat duty at Yamuna Khadar. During gusht duty at about 08.30 p.m. when he reached Zero pusta, Yamuna Khadar where he saw one person hiding himself behind the bushes. When he reached near him, the person started running from there. He chased and apprehended him after 20 30 steps. He made search of him and recovered one buttondar knife from his right pocket of his wearing pant. On enquiry, he revealed his name as Gulshan Sharma. He gave the information to duty officer regarding incident. Thereafter, IO HC Sandeep Kumar arrived at the spot. He produced the accused and recovered buttondar knife to IO. IO prepared tehrir and handed over the same to him and sent him to PS for registration of FIR. He went PS and got FIR registered and returned to the spot and handed over the copy of FIR and original tehrir to IO. Thereafter, IO prepared site plan at his instance Ex.PW1/A and prepared sketch plan of recovered knife Ex.PW1/B. The length of recovered knife was 23 c.m. The width of knife was 2.5 c.m. The length of fal was 10.5 c.m. The handle of knife was 12.5 c.m. Thereafter, IO kept the knife in white colour cloth and prepared pulanda and sealed with the seal of 'S'. The same was seized vide seizure memo Ex.PW1/C. The seal was handed over to him after use. He made enquiry from the accused and made disclosure statement FIR No.252/2022 State Vs. Gulshan Sharma PS: Shastri Park Page no. 3 of 11 Ex.PW1/D. IO arrested the accused vide memo Ex.PW1/E. Personal search of the accused was also conducted vide memo Ex.PW1/F. Thereafter, they returned to PS. Accused was kept in police lockup. Case property was deposited in malkhana. Accused was correctly identified by the witness. He also correctly identified the case property Ex. P1.
This witness was crossexamined by learned defence counsel and during the crossexamination the witness deposed that his duty hours were not fixed. He had made departure entry for his beat duty but he did not remember the date. He stated that he had not offered himself to be searched prior to the search of the accused. He had requested some public persons to join the proceedings but none had joined the same and left the place without disclosing their names and addresses. He denied the suggestions that case property has been planted upon the accused or that nothing was recovered from the accused, therefore, no public person had been joined in the proceedings or that accused was not apprehended from the spot or that he was lifted from his house. he had made efforts to know the source of recovered knife but the accused did not give satisfactory answer.
6. PW2 HC Sandeep deposed that on receipt of DD No. 86A on 31.01.2022, he reached at the spot i.e. Zero Pusta, Shastri Park where Ct. Naveen met them who had apprehended one boy namely Gulshan Sharma. He produced the said boy with recovered buttondar knife to him. He had prepared sketch plan of recovered knife and prepared seizure memo of recovered knife and same was FIR No.252/2022 State Vs. Gulshan Sharma PS: Shastri Park Page no. 4 of 11 sealed with the seal of 'S'. Thereafter, he recorded statement of Ct. Naveen which is Ex.PW2/A. He prepared tehrir Ex.PW2/B. He handed over the tehrir to Ct. Naveen and sent him to PS for registration of FIR. He went to PS and got FIR registered and handed over the copy of FIR and original tehrir to him. Thereafter, he prepared site plan at the instance of Ct. Naveen. He arrested the accused and recorded his disclosure statement. Personal search of the accused was also carried out. Accused was correctly identified by the witness. The witness also correctly identified the case property Ex.P1.
This witness was crossexamined by learned defence counsel and during the crossexamination the witness deposed that after receiving DD No. 86A, he had reached at the spot at about 09.00 p.m. He stated that accused was already apprehended and case property was already recovered from the accused by Ct. Naveen. He stated that he cannot say whether Ct. Naveen had offered himself to be searched prior to the search of the accused. He had requested 12 public persons to join the proceedings but none had joined the same and left the place without disclosing their names and addresses. He had prepared sketch plan, arrest memo etc. at the spot. The spot was jungle area. He had taken 1015 minutes to reach the spot. He denied the suggestions that case property has been planted upon the accused or that nothing was recovered from the accused, therefore, no public person had been joined in the proceedings. He further denied the suggestions that accused was not apprehended from the spot or that he was lifted from his house. He had made efforts to know the source of recovered knife but the accused did not give satisfactory answer. He stated that he could not tell whether the similar knife could be FIR No.252/2022 State Vs. Gulshan Sharma PS: Shastri Park Page no. 5 of 11 available in the market.
7. Upon completion of prosecution evidence, statement of accused under Section 313 Cr.PC read with Section 281 Cr.PC was recorded. 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 Learned Counsel for accused.
8. I have heard the final arguments and meticulously perused the record.
ARGUMENTS:
9. I have considered arguments advanced by Ld. APP for State and Learned Counsel for accused and have perused the entire material available on record carefully.
10. It is contended by Learned 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 witness has joined and all writing work was done in the police station. It is further contended that the prosecution has FIR No.252/2022 State Vs. Gulshan Sharma PS: Shastri Park Page no. 6 of 11 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:
11. As per case of prosecution, police officials had recovered buttondar knife and no independent public person has joined as witness in the present matter despite public persons being present there as admitted by PW1 & PW2 during cross examination. As per deposition of PW1 & PW2, some public persons were asked to join the investigation but none agreed and went away without telling their names and addresses. However, it is noticeable that no written notice was served to those persons who refused to join the investigation and their names and addresses were also not even noted down. From the testimonies of PW1 & PW2, 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 have been done 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 total based on the oral testimony of police officials who are naturally entrusted in conviction of accused. FIR No.252/2022 State Vs. Gulshan Sharma PS: Shastri Park Page no. 7 of 11
12. 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 FIR No.252/2022 State Vs. Gulshan Sharma PS: Shastri Park Page no. 8 of 11 witnesses from the public had refused 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 worth of credence. All these facts taken together make the prosecution case highly doubtful".
13. Evaluating the facts and evidence discussed above, at the outset, it comes out that no independent witness was joined in the investigation. The Hon'ble Supreme court in "State of Punjab v. Balbir singh AIR 1994 SC 1872, held that :
"It therefore emerges that noncompliance of these provisions i.e Sections 100 and 165 Cr.P.C. would amount to an irregularity and the effect of the same on the main case depends upon the facts and circumstances of each case. Of course, in such a situation, the court has to consider whether any prejudice has been caused to the accused and also examine the evidence in respect of search in the light of the fact that these provisions have not been complied with and further consider whether the weight of evidence is in any manner affected because of the non compliance. It is wellsettled that the testimony of a witness is not to be doubted or discarded merely on the ground that he happens to be an official but as a rule of caution and depending upon the circumstances of the case, the courts look for independent corroboration. This again depends on question whether the official has deliberately failed to comply with these FIR No.252/2022 State Vs. Gulshan Sharma PS: Shastri Park Page no. 9 of 11 provisions or failure was due to lack of time and opportunity to associate some independent witnesses with the search and strictly comply with these provisions. [Emphasis supplied]"
14. In the present case as per chargesheet, the sketch memo of the knife Ex.PW1/B and the seizure memo of the knife Ex.PW1/C were prepared before the preparation of the tehrir. However, the said documents would show that they bear on them the number of the FIR. Also, the site plan Ex.PW1/A has certain overwriting at the place where details of case are mentioned. 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.
15. Moreover, 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 chance prints/no fingerprint 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, FIR No.252/2022 State Vs. Gulshan Sharma PS: Shastri Park Page no. 10 of 11 "In the event of any doubt as to the guilt of accused, the benefit will go to the accused".
CONCLUSION:
16. The onus to prove the case against the accused was upon the prosecution and the prosecution must establish the charge beyond reasonable doubt. It is also a cardinal principle of criminal jurisprudence that if there is a reasonable doubt with regard to the guilt of the accused, he is entitled to benefit of doubt resulting in acquittal of the accused.
17. 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 Gulshan Sharma 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:
2022.08.03
16:05:55
on 03.08.2022 +0530
(Nitish Kumar Sharma)
Metropolitan Magistrate03,
NorthEast, Karkardooma Courts, Delhi
FIR No.252/2022 State Vs. Gulshan Sharma PS: Shastri Park Page no. 11 of 11