Delhi District Court
State vs . Vikas on 11 July, 2023
IN THE COURT OF SH. ANIMESH KUMAR, METROPOLITAN
MAGISTRATE-08, SOUTH WEST DISTRICT, NEW DELHI
STATE VS. VIKAS
FIR NO: 360/2022
P. S UTTAM NAGAR
U/s 25 Arms Act
Crc/8925/2022
JUDGMENT
Sl. No. of the case : 41833/22
Date of its institution : 21.07.2022
Name of the complainant : Ct. Yudhveer, Belt No. 1400/DW,
then posted at PS Uttam Nagar,
New Delhi.
Date of Commission of offence : 18.05.2012
Name of the accused : Vikash,
S/o Sh. Bhagwan Das,
R/o A-6, Defence Enclave, Part 1,
Mohan Garden, Delhi
Offence complained of : 25 Arms Act
Plea of accused : Not Guilty
Case reserved for orders : 04.07.2023
Final Order : Acquittal
Date of orders : 11.07.2023
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BRIEF STATEMENT OF FACTS FOR THE DECISION:-
1. This is the prosecution of the accused namely Vikas upon a charge sheet filed by the police station Uttam Nagar under section 25 Arms Act.
2. Briefly stated, as per the case of prosecution, on 17.05.2022, Ct. Yudhveer was on patrolling duty at beat no. 08. At around 9:30 PM, when he had reached Dada bhai park, Nawada Village, he saw one person coming on scoot who started running away after seeing the police officials. After getting suspicion, Ct. Yudhveer chased the said person and apprehended him. During interrogation, the said person disclosed his name as Vikas. During the personal search of the accused, one buttoner knife was recovered from the right pocket of trouser of the accused. Thereafter, Ct. Yudhveer shared the said information with PS. After some time, HC Krishan reached at the spot and took the custody of the accused and recovered case property.
3. After completing the formalities, investigation was carried out by PS Uttam Nagar and a charge sheet was filed against the accused. The charge was framed against the accused u/s 25 Arms Act, to which he pleaded not guilty and claimed trial.
4. In order to substantiate its case, prosecution has examined three witnesses.
• Ct. Yudhveer, the complainant and recovery witness, examined as PW-1; and Page 2 of 13 • ASI Krishan, the IO, examined as PW-2.
5. PW1 was the complainant, eye-witness and recovery witness of the present case. During his examination-in-chief, he had given a detailed account of the manner in which the accused was apprehended with a buttoner knife on the date of incident. He deposed that on 17.05.2022, he was on patrolling duty in beat no. 8. During patrolling, he reached near Dada bhai park, Nawada Village at about 9:30 PM where he saw the accused coming in a scooty who started running away after seeing him. PW1 chased the accused and apprehended him. During the personal search, one buttoner knife was recovered from the right pocket of his trouser. Thereafter, he asked some public person to join the investigation. Thereafter, he shared the information with the DO. After some time, PW2 reached at the spot and PW1 handed over the custody of accused and case property to him. Thereafter, PW2 recorded his statement Ex. PW1/A on the basis of which tehrir was prepared. IO had handed over the tehrir to PW1 and sent him for the registration of FIR. After getting the FIR registered, PW1 came back at the spot and handed over the copy of FIR and original tehrir to the IO.
6. PW1 further deposed that after the registration of FIR, IO prepared the site plan at his instance which is Ex. PW1/B and also prepared the sketch of recovered knife Ex. PW1/C. IO also seized the knife vide seizure memo Ex. PW1/D. IO put the knife in white cloth and prepared Page 3 of 13 the pullanda and the same was sealed with the seal of 'KC'. Thereafter, the IO arrested the accused vide arrest memo Ex. PW1/E and conducted his personal search vide memo Ex. PW1/F. PW1 correctly identified the accused and the case property produced before the Court. At the time of production of the case property, it was kept in a white pullanda sealed with the seal of 'KC'.
7. PW1 was duly cross-examined by Ld. LAC for the accused. PW1 had stated that he had shared the information about the apprehension of the accused with the DO at around 9:45 PM. He also stated that IO had asked some public persons to join the investigation but they refused to do so. He also admitted that the IO did not serve any notice to any public person to join the investigation. He also denied the suggestions that he was deposing falsely at the instance of IO and that the case property was falsely implanted on the accused by him.
8. PW2 was the Investigating Officer of the present case who had reached at the spot after receiving the information about the apprehension of the accused with the buttoner knife. He had also deposed on the similar lines as deposed by PW1 during his examination-in-chief. He deposed that after recording the statement of PW1, he prepared tehrir Ex. PW2/A and handed over the same to PW1 and sent him to PS for registration of FIR. After getting the FIR registered, PW1 came back at the spot and handed over the copy of FIR and original tehrir to him. Thereafter, PW2 Page 4 of 13 started the investigation in the present case and completed the necessary codal formalities. He seized the case property and sealed the same with the seal of 'KC'. After completed the formalities, he along with PW1 and the accused came back to the PS and the case property was deposed in malkhana. He had correctly identified the accused and case property produced before the Court.
9. PW2 was duly cross-examined by Ld. LAC for the accused. He had deposed that he had received the information about the apprehension of the accused in the present case at about 10 PM on the date of incident and he reached at the spot at about 10:35 PM. He also state that although he tried to join the public witnesses during the investigation, however, they refused to do do.
10. Accused admitted the genuineness of copy of FIR, certificate u/s 65B Indian Evidence Act, DD No. 0201A & 226A date 17.05.2023, DAD notification dated 29.10.1980, Ex. X-1 to X-4, u/s 294 of the Criminal Procedure Code, 1973 (herein after referred as Cr.P.C).
11. Statement of the accused was recorded U/s 313 Cr.P.C wherein all the incriminating circumstances were put to her which he denied and pleaded his false implication and also false plantation of the case properties. He, however, chose not to lead defence evidence. Thereafter, final arguments were heard.
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12. I have heard the Ld. APP and carefully perused the record in extenso. Ld. APP has canvassed that the prosecution has been successful in proving the guilt of the accused beyond reasonable doubt as testimony of all the witnesses were not impeached by the accused. Per contra, Ld. Counsel for the accused submitted that no public witnesses were examined in the present case regarding recovery of buttoner knife. No photographs of recovered case properties were produced on record by the prosecution and no CCTV footage of the recovery was filed. He further submitted that the accused has been falsely implicated in the present case and the case properties have also been planted against the accused.
13. It is cardinal principle of criminal jurisprudence that an accused is presumed to be innocent and, therefore, the burden lies on the prosecution to prove the guilt of the accused beyond reasonable doubt. The prosecution is under a legal obligation to prove each and every ingredient of the offence beyond any doubt, unless otherwise so provided by any statute. This general burden never shifts and it always rests on the prosecution.
14. However, for the reasons mentioned hereinafter the prosecution has failed to establish beyond reasonable doubt that the accused was found in possession of the country made pistol along with live cartridges and Page 6 of 13 car with fake registration plate. Hence, benefit of doubt has to be extended to the accused in the present case.
Non-examination of independent public witnesses
15. During the final arguments, Ld. Counsel for the accused submitted that the prosecution did not examine even a single public witness to prove the recovery of illicit liquor from the possession. Both the recovery witnesses were police officials.
16. It is a well settled proposition that non-joining of public witness shrouds doubt over the fairness of the investigation by police. Section 100(4) of the Cr.PC also casts a statutory duty on an official conducting search to join two respectable persons of the society. Same has not been done in the present case. This casts a doubt on the fairness of the investigation.
17. From the overall testimony of the witnesses, it appears that no sincere efforts, have been made to join the public persons in the investigation. The witnesses examined by the prosecution are police witness. Not even a single public witness was examined by the prosecution nor joined in the investigation and no plausible reason could be put forward by the prosecution witnesses that for what reason they were unable to gather support from public or independent witnesses to establish the guilt of the accused. Reference can be taken from the decision of the Hon'ble Delhi High Court in the case of Pawan Kumar v. The Delhi Administration, 1989 Cri.L.J. 127.
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18. In the instant case, as per the testimonies of PWs and also from the perusal of site place Ex. PW1/B, the alleged recovery was made near a park which is close to the main road at about 9:30 PM. Therefore, it cannot be said that no public person would have been available at the spot.
19. Although prosecution witnesses have asserted that they implored some of the public witnesses to join the investigation but they refused to participate in the investigation. This explanation tendered by the prosecution witnesses does not seem to be tenable as neither the details of those public persons have been brought on record nor any legal action was taken against those persons under relevant sections of law who had declined to assist the police in investigation. If the public persons were really present at the spot, then the police officials should have made endeavor to get them join the investigation. They should have issued notice asking them to join the investigation. On their refusal, necessary action as per law could have been taken against them.
20. The failure on the part of the police personnel could only suggest that they were not interested in joining the public persons in the police proceedings. Failure on the part of the police officials to make sincere effort to join public witnesses for the proceedings when they may be available creates reasonable doubt in the prosecution story. Reference Page 8 of 13 can be taken from the decision of Anoop Joshi Vs. State 1992 (2) C.C. Cases 314 (HC), Hon'ble High Court of Delhi has observed as under;
"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."
21. While the testimony of the police officials cannot be discarded away merely because of the fact that no public witnesses were not examined, however, their testimonies have to be scrutinised in more detail. If it is found the police officials during the course of investigation did not even make endeavour to ask the public witnesses to join the investigation, did not even ask their names and details etc. then it would cast a very serious doubt on the testimonies of the police officials. At this stage, reference can be taken from the decision of the Hon'ble Supreme Court in the case of Tahir v. State (Delhi) [(1996) 3 SCC 338], dealing with a similar question, the Hon'ble Apex Court held interalia the following:
"In our opinion no infirmity attaches to the testimony of the police officials, merely because they belong to the police force and there is no rule of law or evidence Page 9 of 13 which lays down that conviction cannot be recorded on the evidence of the police officials, if found reliable, unless corroborated by some independent evidence. The Rule of Prudence, however, only requires a more careful scrutiny of their evidence, since they can be said to be interested in the result of the case projected by them. Where the evidence of the police officials, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it can form basis of conviction and the absence of some independent witness of the locality to lend corroboration to their e vid e n ce , d o e s n ot i n a n y wa y affect the creditworthiness of the prosecution case. The obvious result of the above discussion is that the statement of a police officer can be relied upon and even form the basis of conviction when it is reliable, trustworthy and preferably corroborated by other evidence on record."
22. The requirement of the police officials to make endeavour to ask the public witnesses to join the proceedings was discussed by the Hon'ble Supreme Court in the case of Sahib Singh vs. State of Punjab AIR 1997 SC 2417, wherein it interalia held the following:
"In a given case it may so happen that no such person is available or, even if available, is not willing to be a party to such search. It may also be that after joining the search, such persons later on turn hostile. In any of these eventualities the evidence of the police officers who conducted the search cannot be disbelieved solely on the ground that no independent and respectable witness was examined to prove the search but if it is found -as in the present case -that no attempt was even made by the concerned police officer to join with him some persons of the locality who were admittedly available to witness the recovery, it would affect the weight of evidence of the Police Officer, though not its admissibility"
23. Therefore, in view of the above mentioned case law, it becomes clear that while the testimony of the police officials cannot be discarded away Page 10 of 13 forthwith in the absence of any public witnesses, however, it would be prudent to examine or scrutinise their testimonies more closely and should preferably be corroborated. Accused may be convicted on the basis of the testimonies of the police officials if their testimonies are found to be reliable and trustworthy.
24. As discussed in the preceding paragraphs of this judgment, IO did not even make any endeavor to join the public witnesses. No notice was given to any of the public persons who were present at the spot at the time of apprehension of the accused.
25. Further, the prosecution did not even bring on record necessary DD entries to prove arrival of the police officials from the spot. At this stage, reference can be taken from the provision enshrined in 22 rule 49 of the Punjab Police Rules, which is reproduced as under;
"Chapter 22 rule 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. Note:- The term Police Station will include all places such as Police Lines and Police Posts where Register No. II is maintained.
26. Perusal of the above rule clearly suggests that the police officials are mandated to record their time of arrival and departure on duty at or from the police station. In the instant case, this provision has not been Page 11 of 13 complied by the concerned police witnesses. The relevant entries regarding the arrival and departure of the police officials have not been proved on record. It has been held in Rattan Lal Vs. State 1987 (2) Crimes 29 the Hon'ble Delhi High Court held that;
"if the investigating agency deliberately ignores to comply with the provisions of the Act the Courts will have to approach their action with reservations. The matter has to be viewed with suspicion if the provisions of law are not strictly complied with and the least that can be said is that it is so done with an oblique motive. This failure to bring on record, the DD entries creates a reasonable doubt in the prosecution version and attributes oblique motive on the part of the prosecution."
27. In the instant case, the prosecution has indeed filed on record the relevant departure entries of PW1 and PW2, however, necessary arrival entries of the police officials along with the accused and case properties in the PS were not filed by the prosecution.
28. Since all the witnesses are police personnel and the necessary safeguards in the investigation have not been followed by the IO, I am of the view that chances of false implication of accused cannot be ruled out at the instance of the police officials.
29. Also as per the DD entry no. 201A dated 17.05.2022, on the date of incident, PW1 departed from PS Uttam Nagar for patrolling duty at 9:12 PM. As per the DD entry no. 226A dated 17.05.2022, IO departed from the PS Uttam Nagar after receiving the information about the present case at 10 PM. This would mean that within a time period of around 45 minutes, the complainant PW1 went to patrolling duty, quickly reached at the spot, saw the accused on scooty and chased him. After apprehending the accused, PW1 interrogated him and conducted personal search wherein buttoner knife was recovered, shared the information with DO who in turn marked the case to PW2 for Page 12 of 13 investigation and PW2 departed for the spot. This entire chain of events happened within the period of 45 minutes. It also raises the suspicion on the case of prosecution especially in light of the fact that this is a chance recovery and not a pre-planned raid or recovery. It is highly improbable that this entire chain of event in a chance recovery can take place within a time period of around 45 minutes.
30. It is true that evidence is to be weighed and not counted but in this case whatever evidence has been produced by the prosecution is not sufficient to fortify the edifice of the prosecution's case and the prosecution fails to prove all the links. In case where the prosecution has failed to prove all the links, the benefit of doubt has to be given to the accused. As such the accused deserves acquittal in the present case.
31. Therefore, in view of the above discussions and findings, the accused Vikas is acquitted for the offence u/s 25 Arms Act.
Announced in the open court. (ANIMESH KUMAR)
MM-08, South West
New Delhi/11.07.2023
on 11.07.2023
It is certified that this judgment contains 13
pages and each page bears my signatures.
(ANIMESH KUMAR)
MM-08, South West
New Delhi/11.07.2023
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