Delhi District Court
State vs Kamalkumar@Raju on 7 December, 2023
IN THE COURT OF MS. BHARTI BENIWAL, METROPOLITAN
MAGISTRATE-11, DWARKA COURT, NEW DELHI
FIR No.49/2023
PS Janakpuri
State Vs. Kamal Kumar @ Raju
U/s 25/54/59 Arms Act
CNR No. : DLSW020154642023
Cr Case No. : 3081/2023
Date of institution of the case : 18.03.2023
Date of commission of offence : 03.02.2023
Name of the complainant : HC Rajesh Kumar
Name of accused and address : Kamal Kumar @ Raju
S/o Sh.Anil Kumar @
Bitoo
R/o H.No.A-6, Peer Baba
Road, Om Vihar, Phase - 5,
Uttam Nagar, New Delhi
Offence complained of : U/s 25/54/59 Arms Act
Plea of the accused : Pleaded not guilty.
Ld. APP for the State : Sh.Amit Sehrawat
Final order : Acquital
Date of judgment : 07.12.2023
FIR No.49/2023
State vs. Kamal Kumar @ Raju Page No. 1 of 11
JUDGMENT
1. The brief facts of the case of the prosecution are that on 03.02.2023 at about 09 : 15 P.M. at Pankha Road near Desu Colony, Janakpuri, Delhi, accused Aashu was found in possession of one button operated knife and after completion of the investigation, charge-sheet was filed against the accused u/s 25/54/59 Arms Act.
2. On receipt of chargesheet, cognizance of offence was taken and accused was summoned. After supply of copy of chargesheet, a formal charge was framed u/s 25/54/59 of Arms Act against the accused to which he pleaded not guilty and claimed trial.
3. Prosecution has examined 3 witnesses to prove its case.
4. Prosecution examined HC Rajesh Kumar as PW1. He deposed that on 03.02.2023, he was on patrolling duty in beat no.10. During his patrolling duty, he reached near Desu Bus Stand Pankha Road, at about 09 :
15 PM, there he saw that one person was coming on foot from the Red Light of Sagarpur with one scooty bearing no.DL 6SAP 9107 on service lane.
After seeing him in police uniform, he suddenly turned back his scooty. He apprehended him there. He asked him for documents of scooty. Accused did not show the documents of scooty. On cursory search of said person, one button operated knife was recovered from right pocket of the pant of accused. He could not give justification of possessing the knife. Thereafter, his name was revealed as Kamal Kumar @ Raju, who was present in the court and correctly identified by witness. He gave telephonic information to Duty Officer of PS Janakpuri. HC Girwar came from the PS. He handed over custody of accused, knife and scooty to IO and also produced recovered knife to him. Accused was present in the court and he was correctly identified by witness. Crowd was gathered at the spot. IO asked the crowd to join the investigation, however, they denied by giving their FIR No.49/2023 State vs. Kamal Kumar @ Raju Page No. 2 of 11 personal reasons. IO recorded his statement which is Ex.PW1/A bearing his signature at point A. IO put knife on white paper and prepared its sketch memo Ex.PW1/B bearing his signatures at point A. Total length of the knife was 23 cm, length of blade was 10 cm and length of handle was 13 cm. IO kept knife in white cloth pullanda. Pullanda was sealed with seal of RS. IO handed over used seal to him. IO seized the pullanda vide seizure memo Ex.PW1/C bearing his signatures at point A. IO also seized scooty DL6SAP9107 found in possession of accused, under Section 102 CrPC vide seizure memo Ex.PW1/D bearing his signatures at point A. He also checked the number of scooty of Zip Net, scooty was found to be a stolen property of PS Inderpuri. IO prepared rukka Ex.PW1/E. IO handed over rukka to him for registration of FIR. He went to PS and got registered the FIR. He returned back at the spot and handed over the copy of FIR and original rukka to HC Girwar/IO alongwith certificate u/s 65B of Indian Evidence Act. IO prepared site plan Ex.PW1/F bearing his signatures at point A. IO arrested the accused vide memo Ex.PW1/G bearing his signatures at point A. Personal search of accused was conducted vide memo Ex.PW1/H by IO bearing his signatures at point A. IO recorded disclosure statement of accused which is Ex.PW1/I bearing his signature at point A. Witness stated that he can identify the case property if shown to him. MHC(M) produced one pullanda sealed with seal of RS. Seal was removed and Pullanda opened. Button operated knife was shown to witness. Same was correctly identified by the witness. Case property is Ex.P.
5. Witness was cross examined by ld. Defence Counsel wherein he stated that he started his patrolling duty at 5 PM on foot. He reached at the spot at around 09 : 15 PM. He saw the accused coming when he reached there. It took 10-15 minutes in recovery of knife. He gave telephonic information to PS Janakpuri at about 09 : 29 PM and IO reached there after 20 minutes. He came at spot on his motorcycle. Distance from spot to PS is about 4 Kms. That the accused could not produce any DL or any other documents of the scooty but no action under MV Act was taken against the FIR No.49/2023 State vs. Kamal Kumar @ Raju Page No. 3 of 11 accused. Witness denied the suggestion that no such action was taken as all things are falsely planted upon the accused. IO sent him for registration of the FIR at about 10 : 35 PM and he returned back at the spot at about 11 : 10 PM. He went PS on motorcycle of IO. He left the spot finally at about 11 :
40 PM. That when he apprehended the accused, crowd gathered at the spot but none agreed to join their investigation. That he did not know the name of the person from the crowd to whom request was made. IO also did not serve any written notice to public person for joining the investigation. That at the time of incident, he and HC Girwar was having camera mobile phone but no video recording of recovery of knife was conducted. Witness denied the suggestion that he was not on partolling duty on the day of incident and did not reach at the spot.
6. Prosecution examined HC Naresh as PW2. He deposed that on 20.02.2023, investigation of the present case was marked to him by MHC®.
During the investigation, he filed an application for Judicial Custody of accused Kamal on 04.03.2023. After completion of the investigation, he filed the charge-sheet of the present case. Accused was present in the court and he was correctly identified by witness.
7. Prosecution examined HC Girwar as PW3. He deposed that on 03.02.2023, he was on emergency duty. On that day, he received DD no.108A at about 09 : 29 PM. Thereafter, he reached at the spot i.e. Desu Colony, Bus Stand Road Lane where he met with HC Rajesh who apprehended one person. After reaching the spot, HC Rajesh Kumar handed over him the custody of accused and case property which was recovered from the possession of the accused. He recorded the statement of HC Rajesh Kumar which is Ex. PW1/A bearing his signatures at point B. On the basis of which, he prepared the Tehrir which is Ex.PW1/E bearing his signatures at point A and the same was handed over to HC Rajesh for the registration of FIR. He went to the PS for registration of FIR and after registration of FIR No.49/2023 State vs. Kamal Kumar @ Raju Page No. 4 of 11 FIR, he returned to the spot and handed over copy of FIR and original Tehrir to him. After that, he prepared the sketch of the case property i.e. buttondar knife which is Ex.PW1/B bearing his signature at point B. He also seized the case property vide seizure memo Ex.PW1/C bearing his signature at point B. During investigation, he also prepared the site plan at the instance of HC Rajesh and the same is Ex.PW1/F bearing his signature at point B. He also arrested the accused vide arrest memo Ex.PW1/G bearing his signature at point B. He also conducted the personal search of accused vide memo Ex.PW1/H bearing his signatures at point B. During the investigation, he also seized the scooty Activa bearing registration no.DL6SAP-9107 u/s 102 Cr.P.C. vide seizure memo Ex.PW1/D bearing his signatures at point B. During the investigation, he also recorded the disclosure statement of the accused memo Ex.PW1/I bearing his signature at point B. He asked some public persons to join the investigation who were present at the spot at the time of investigation but all refused to join the same and all left the spot without disclosing their names and addresses. Thereafter, he alongwith accused and case property left the spot and returned to PS. He also handed over the case property to the Malkhana. On the next day, he produced the accused before the concerned court. Accused was present in court and he was correctly identified by the witness. During the investigation, he recorded statement of witnesses u/s 161 Cr.P.C. Thereafter, he was transferred and deposited the case file to MHCR. MHC(M) produced the case property i.e. small white pullanda having court seal. Same was opened with the permission of the court and found one buttondar knife of silver colour. The same was shown to the witness and witness correctly identified the same. Case property again put in the same white pullanda and sealed with the court seal. The case property is Ex. P.
8. Witness was cross examined by ld.Defence counsel wherein he stated that he was not the eye witness of the recovery of the case property from the possession of the accused. No CCTV camera was installed at the spot. That the spot was a public place and when he reached at the spot, some FIR No.49/2023 State vs. Kamal Kumar @ Raju Page No. 5 of 11 public persons were also present at the spot. That he did not record the statement of any public person. That he did not serve notice upon public person who refused to join the investigation. That no DD entry of departure of HC Rajesh has been filed by him. Witness denied the suggestion that he never visited the spot and prepared all the documents while sitting in the PS.
9. Vide separate statement recorded u/s 294 Cr.P.C, accused had admitted the documents FIR No.49/2023 registered by ASI Raj Kumar Ex.A1, Certificate u/s 65B of Indian Evidence Act Ex.A2, Endorsement on rukka by ASI Raj Kumar Ex.A3, DD entry no.108A and DD Entry No.4A dt.03.02.2023 and dt.04.02.2023 Ex.A4 and A5 respectively, DAD Notification Ex.A6 and MLC No.01466/2023 Ex.A7. Hence the above documents were ordered to be read in evidence without its formal proof.
10. No other witness was examined by prosecution and hence, PE was closed and matter was listed for statement of accused.
11. Statement of accused under Section 313 Cr.P.C. was recorded wherein the entire incriminating evidence was put to him. According to him, he has been falsely implicated in the present case. Accused chose not to lead any evidence in his defence and hence, the matter was put up for final arguments.
12. Final arguments were thereafter heard on behalf of State as well as the accused.
13. After hearing Sh.Amit Sehrawat, Learned Assistant Public Prosecutor for the state and Sh.Manpreet Singh, Learned Legal Aid Counsel for the accused and having gone through the case file carefully and meticulously, it is observed by the court that it is the case of prosecution that on the fateful day accused was found in possession of one buttondar knife.
FIR No.49/2023 State vs. Kamal Kumar @ Raju Page No. 6 of 11The court is of the view that to prove the charge against the accused, the prosecution is required to prove the allegation beyond reasonable doubt.
14. The relevant portion of Arms Act is reproduced as under:
Section 25: Punishment for certain offences:
(1) whoever-
(a) Manufactures, sells, transfers, converts, repairs, tests or proves, or exposes or offers for sale or transfer, or has in his possession for sale, transfer, conversion, repair, test or proof, any arms or ammunition in contravention of section 5; or
(b) Shortens the barrel of a firearm or converts an imitation firearm into a firearm in contravention of section 6; or 2[***]
(c) bring into, or takes out of, India, any arms or ammunition of any class or description in contravention of section 11, shall be punishable with imprisonment for a term which not be less than three years but which may extend to seven years and shall also be liable to fine.
15. In the present case, the incident took place at a crowded place. Despite that, investigating officer has not bothered to join any independent witness in the investigation. In the present matter, no mentioning of attempts of joining any independent witness has been mentioned in rukka Ex.PW1/E. I have also perused testimony of Complainant HC Rajesh and PW3/ HC Girwar. In the cross examination, it has been admitted by PW1 and PW3 that there were public persons present at the spot and IO had asked them to join the investigation but none agreed citing their personal reasons. It is pertinent to note that neither PW1/complainant stated the aforesaid fact in his complaint Ex.PW1/A and nor the PW3/IO has mentioned the same in the rukka. No sincere efforts can be seen on the part of police officials to join FIR No.49/2023 State vs. Kamal Kumar @ Raju Page No. 7 of 11 any independent witness. No description of the aforesaid independent persons, if any, mentioned by the police officials.
16. In case law reported as "Anoop Joshi Vs. State" 1992 (2) C.C. Cases 314 (HC), High Court of Delhi had observed as under:-
"18. It is repeatedly laid down by this Court 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 evidence 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".
17. 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 to so on the ground that their joining will result into enmity between them and the petitioner".FIR No.49/2023 State vs. Kamal Kumar @ Raju Page No. 8 of 11
"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 relevant provision 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".
18. Non joining of public witnesses despite availability casts a doubt on the fairness of the investigation. Reliance is placed on paragraph 6 of the judgment in Pawan Kumar v. The Delhi Administration, 1989 Cri.L.J. 127, wherein the Hon'ble High Court of Delhi had observed as under:
" ... According to Jagbir Singh, he did not join any public witness in the case while according to Kalam Singh, no public person was present there. It hardly stands to reason that at a place like a bus stop near Subhas Bazar, there would be no person present at a crucial time like 07.30 p.m. when there is a lot of rush of commuters for boarding the buses to their respective FIR No.49/2023 State vs. Kamal Kumar @ Raju Page No. 9 of 11 destinations. 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 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 a case of 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 I.O. 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 circumstance throwing doubt on the arrest or the recovery of the knife from the person of the accused."
19. This Court is, however, conscious that the prosecution case cannot be thrown out or doubted on the sole ground of non-joining of public witnesses as public witnesses keep themselves away from the Court unless it is inevitable, as has been held in Appabhai and another v. State of Gujarat, AIR 1988 SC 696. However, in the present case, it is not only the absence of public witnesses which raises a doubt on the prosecution but there are other circumstances too, as discussed hereinafter, which raise suscpicion over the prosecution version.
20. Further, the seal remained with a police official only and it has not been proved that the seal was handed over to any other independent public person and therefore, the possibility of sample being tempered with cannot be ruled out. Reference may be made to the judgment of Subeg Singh v. State of Haryana, reported as 1992(3) RCR (Criminal) 596. In the judgment titled as Karambir v. State of Delhi reported as 1997 JCC 520 it has been held that absence of proof that the specimen impression of FIR No.49/2023 State vs. Kamal Kumar @ Raju Page No. 10 of 11 the seal was deposited with MHCM(M) along with case property results in miscarriage of justice and is fatal to the prosecution.
21. The prosecution failed to establish presence of the complainant at the spot. No duty roaster was filed to show that PW1 HC Rajesh was on official duty. No roaster was placed on record to show the details of the govt. vehicle which was issued to the abovestated police officials.
22. It is trite in criminal jurisprudence that the prosecution is under an obligation to prove its case against the accused beyond reasonable doubt. The standard of proof to be adopted in criminal cases is not merely of preponderance of probabilities but proof beyond reasonable doubt on the basis of cogent, convincing and reliable evidence. It is also well settled that in case of doubt, the benefit must necessarily be allowed to the accused.
23. Thus, in view of the foregoing analysis, this Court is of the considered opinion that the benefit of doubt ought to be granted to the accused, who is entitled to be exonerated of the charges against him in the present case. The accused Kamal Kumar @ Raju is hereby acquitted of the offence punishable under Section 25 of Arms Act.
Accused be set at liberty.
Pronounced in open Court on this 7th of December, 2023. This judgment consists of 11 pages and each pages are signed by the undersigned.
(BHARTI BENIWAL) Metropolitan Magistrate-11 South West District, Dwarka Courts New Delhi FIR No.49/2023 State vs. Kamal Kumar @ Raju Page No. 11 of 11