Delhi District Court
State vs . Vicky on 9 December, 2022
IN THE COURT OF SH. AASHISH GUPTA, ACMM
NORTH EAST KARKARDOOMA COURTS, DELHI
CR Cases 702/2020
STATE Vs. VICKY
FIR No: 50 /2020
PS: (Sonia Vihar)
1. FIR No. of the case : 50/2020
2. Date of commission of offence : 13.03.2020
3. Date of institution of the case : 12.05.2020
4. Name of the complainant : ASI Krishanpal Dhama
5. Name of accused & address : Vicky
S/o Sh. Netrapal
R/o Gali No. 6, D-3 Block,
3rd Pusta, Sonia Vihar,
Delhi
6. Offence charged with : 25 Arms Act
7. Plea of the accused : Pleaded not guilty
8. Date of final arguments : 09.12.2022
9. Final Order : Acquitted
10. Date of Judgement : 09.12.2022
JUDGEMENT:
1. Prosecution has alleged that on 13.03.2020, ASI Krishanpal Dhama and Ct. Ravinder were on patrolling duty in the area and when they State Vs. Vicky FIR no. 50/2020 Page no. 1/8 reached 3rd Pusta, Yamuna Khadar, Sonia Vihar Delhi, one person coming from opposite side, on seeing the police team started running and tried to flee from there. Prosecution has claimed that both the police officials chased him and apprehended the said person at around 7:00PM, who disclosed his name as Vicky. It is further claimed that upon cursory search of accused, one country made pistol was recovered from the left pocket of accused and one live cartridge was recovered from the right pocket of his wearing pant, without the authority/licence to possess the same in contravention of provisions of Arms Act and notification of the Delhi Govt and thereby, the accused had committed an offence under Section 25 Arms Act. It is claimed that after sometime HC Manoj Kumar reached at the spot and he arrested the accused and did the investigation of the present case.
2. Accused was summoned to appear before this Court and after compliance under Section 207 IPC, charge under section 25 of Arms Act was framed against him to which accused pleaded not guilty and claimed trial.
3. To discharge its onus, prosecution examined two witnesses.
4. A brief summary of prosecution evidence is as follows: -
Sr.No. Witness Witness Remarks
name no.
1 ASI PW-1 Recovery witness, who had effected the
State Vs. Vicky FIR no. 50/2020 Page no. 2/8
Krishanpal recovery of country made pistol and live
cartridge from the possession of accused.
2. HC Manoj PW-2 IO of this case.
5. Prosecution has also relied upon the following documents:-
Sr. No. Items Exhibits
1. Sketch of pistol alongwith one cartridge Ex. PW1/A recovered from the possession of accused
2. Seizure memo of case-property Ex. PW1/B
3. Rukka of present case Ex. PW2/A
4. Site plan of the spot Ex. PW1/C
5. Arrest and personal search memo of accused Ex. PW1/D and Ex.PW1/E
6. Disclosure statement of accused Ex. PW1/F
7. Copy of FIR (admitted by accused) Ex. A1
8. DD No. 37B dated 13.03.2020 (admitted by Ex. A2 accused)
9. GD No. 0036A dated 13.03.2020 (admitted by Ex. A3 accused)
10. FSL result alongwith forwarding letter dated Ex. A4 (colly) 26.08.2020 and 04.09.2020 (admitted by accused)
11. Sanction U/s 39 Arms Act (admitted by accused) Ex. A5
6. Thereafter, prosecution evidence was closed.
7. Accused was examined u/s 313 CrPC and he has denied all the State Vs. Vicky FIR no. 50/2020 Page no. 3/8 allegations and submitted that he has been falsely implicated in the present case by police. He has not led any evidence in his defense.
8. I have heard the final arguments and have perused the record.
9. The accused has been charged with the commission of offence u/s 25 of Arms Act,1959. Therefore let us examine the said provision. Section 3 of the Arms Act inter-alia provides that no person shall acquire, have in his possession or carry any fire arm or ammunition unless he holds in this behalf a licence issued in accordance with the provisions of Arms Act and Rules made thereunder. Section 25 (1B) of the Arms Act inter-alia provides that whoever acquires, has in his possession or carries any fire arms or ammunition in contravention of Section 3 shall be punishable with imprisonment which shall not be less than one year but which may extend to 3 years and shall also be liable to fine.
10. As per the prosecution's story, accused was apprehended by the police officials in a public place. All the PWs are police officials. Although, it is not a legal requirement that the testimony of police officials is not reliable, yet the testimony of police officials is to be considered with caution, in view of the facts of the present case. In the present case, accused was apprehended at public place and public witnesses/ passerbyes were available as per record. Now the said public persons were not made witness to the recovery; arrest of accused or his personal search. No notice was served upon the public persons who allegedly refused to participate in the proceedings. These discrepancies throw a State Vs. Vicky FIR no. 50/2020 Page no. 4/8 valid doubt on the very presence of these witnesses at the spot. Facts and circumstances of the case suggests that no sincere efforts have been made by police official to join independent public witnesses in the proceedings.
Even section 100 (4) CrPC casts statutory duty upon the official conducting search to join two respectable persons of the society, which has not been done in the present case. The police officers are also entrusted with ample power under the provisions of Cr.P.C. to initiate proceedings u/s 187 IPC if any person does not cooperate with them despite giving notice. The non joining of independent witness casts a serious doubt over the fairness of the investigation by police. In this regard, reliance is placed upon the judgment in the case titled Pawan Kumar Vs. The Delhi Administration, 1989 Crl LJ 127 Delhi, wherein it has been held as under:"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 have 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 case of a 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 IO 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 State Vs. Vicky FIR no. 50/2020 Page no. 5/8 circumstance throwing doubt on the arrest or the recovery of the knife from the person of the accused."
In the case reported as "Anoop Joshi vs. State, 1992 (2) C. C. Cases 314 (HC)", Hon'ble High Court of Delhi has deprecated the practice of the police officials of not making any sincere efforts to join the public witness when they are available. Similarly, in the case reported as "Sadhu Singh vs. State of Punjab, 1997 (3) Crimes 55" the Hon'ble Punjab & Haryana High Court has also not viewed with favour the practice of the police of not joining any public witness and not making any sincere efforts in that regard when they are readily available. Non joining of the public witnesses and not making any sincere efforts in this regard creates a doubt about the case of the prosecution.
11. It is further seen that sketch memo Ex. PW1/A and seizure memo Ex. PW1/C were prepared prior to registration of FIR, but it is strange that these documents mentioned the details of FIR over the same and this discrepancy is not explained. IO has nowhere deposed that the FIR details were mentioned on these documents later and if so, why.
12. As per the version of the prosecution witnesses, after sealing the case-property with the seal of 'MK' the seal was handed over to Ct. Ravinder. However, Ct. Ravinder was a recovery witness alongwith ASI Krishanpal Dhama and had apprehended the accused and was subsequently, a part of the investigation in the present case. The seal was State Vs. Vicky FIR no. 50/2020 Page no. 6/8 not handed over to any independent witness and rather remained with the police official of the same police station and therefore, the possibility of tampering with the case-property cannot be ruled out. More importantly, it is imperative to note that IO has himself stated during his cross- examination that he did not prepare any handing over memo regarding movement of seal, which creates doubt that whether the seal was handed over to any person or it remained with the IO. Thus, the genuineness of the investigation is under doubt and the veracity of the case of the prosecution has been weakened.
13. Further, it is not the case of the prosecution that after the apprehension of the accused but before taking the formal / casual search of the accused, police official(s) had offered their own search to the accused before taking his search. At this juncture, it would be appropriate to refer to the judgment of Hon'ble Orissa High Court reported as Rabindernath Prusty vs. State of Orissa. In this case relying upon the judgment of the Supreme Court in State of Bihar Vs. Kapil Singh AIR 1969 SC 53 : (1969 Cri. L.J 279) it has been held that one of the formalities that has to be observed in searching a person is that the searching Officer and others assisting him should give their personal search to the accused before searching the person of the accused.
14. In the light of the discussion above said, false implication of the accused cannot be ruled out. In fact, prosecution has failed to prove the allegations against the accused beyond reasonable doubt. I hereby State Vs. Vicky FIR no. 50/2020 Page no. 7/8 give benefit of doubt to the accused. Accordingly, accused is acquitted of the offence u/s 25 Arms Act. Digitally signed by AASHISH GUPTA AASHISH Date:
GUPTA 2022.12.09
11:23:47
+0530
ANNOUNCED IN OPEN COURT AASHISH GUPTA
On 09.12.2022 ACMM (NORTH EAST)
KARKARDOOMA COURTS,
DELHI
State Vs. Vicky FIR no. 50/2020 Page no. 8/8