Delhi District Court
State vs Rohit@Gullu on 12 March, 2024
IN THE COURT OF MS. BHARTI BENIWAL, METROPOLITAN
MAGISTRATE-11, DWARKA COURT, NEW DELHI
FIR No.354/2022
PS Janakpuri
State Vs. Rohit @ Gullu
U/s 25 Arms Act
CNR No. : DLSW020471822022
Cr Case No. : 9891/2022
Date of institution of the case : 16.08.2022
Date of commission of offence : 07.06.2022
Name of the complainant : Ct.Vikram
PS Janakpuri
Name of accused and address : Rohit @ Gullu
S/o Sh.Vijay Singh
R/o H.No.S-4/123, Gali
No.9, Old Mahavir Nagar,
Delhi.
Offence complained of : U/s 25 Arms Act
Plea of the accused : Pleaded not guilty.
State Vs. Rohit @ Gullu
FIR No.354/2022
Page No.1/15
Ld. APP for the State : Sh.Amit Sehrawat
Final order : Acquittal
Date of reserving of the judgment : Not reserved.
Date of judgment : 12.03.2024
JUDGMENT
1. The brief facts of the case of the prosecution are that on 07.06.2022 at about 10 : 10 PM near District Park, Joginder Singh, Janakpuri, Delhi, accused Rohit @ Gullu 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 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 of Arms Act against the accused to which he pleaded not guilty and claimed trial.
3. Prosecution has examined 2 witnesses to prove its case.
4. Prosecution examined HC Vikram Singh as PW1. He deposed that on 07.06.2022, he was on beat patrolling at beat no.
5. During the patrolling at about 10 : 10 PM when he reached at State Vs. Rohit @ Gullu FIR No.354/2022 Page No.2/15 Joginder Singh Park near District Park Janakpuri, he saw one person coming from C2 Red Light side and after seeing the police, accused changed his direction and tried to ran away. Witness chased him and apprehended when witness asked him why he was running after seeing the Police. When witness personally search the above-said person, he found one buttondar knife from left side pocket of his pant. During the interrogation, accused disclosed his name as Rohit @ Gullu. Thereafter, witness shared the information with DO. That after sometime, HC Satypal and Ct. Rinku reached at the spot. After that, witness handed over the custody of the accused and case property to HC Satypal. HC Satypal recorded statement which is Ex.PW1/A. On the basis of which HC Satypal prepared Tehrir and same was handed over to Ct.Rinku for registration of FIR. After registration of the FIR, Ct. Rinku came back to the spot and handed over the copy of FIR and original Tehrir to HC Satypal. IO prepared the sketch of knife in his presence which is Ex.PW1/B and IO put the above-said knife and prepared the Pullanda and sealed with the seal of SP and after using the same the seal was handed over to Ct. Rinku. IO also prepared the site plan at the instance of witness which is Ex.PW1/C. IO also seized the case property in presence of witness vide seizure memo PW1/D. IO arrested the accused vide arrest memo Ex.PW1/E and conducted his personal search vide memo Ex.PW1/F. IO also recorded the disclosure statement of the accused in presence of witness.
State Vs. Rohit @ Gullu FIR No.354/2022 Page No.3/15 Accused was present in the court and he was correctly identified by the witness. IO also recorded statement u/s 161 CrPC.
MHC(M) produced case property having seal of SP. Seal was removed and pullanda was opened and one button operated knife was taken out from the pullanda. Same was shown to witness and was correctly identified by him. Case property is Ex.P1.
5. Witness was cross examined by accused wherein he stated that he was on patrolling duty from 8 AM to 12 Midnight. On that day, he was doing his patrolling duty on motorcycle. That, witness did not remember the registration number of the said motorcycle. That witness informed the DO about accused at 10 : 15 PM. HC Satyapal reached at the spot alongwith Ct.Rinku at about 10 : 30 PM on govt. motorcycle. However, he did not remember the number. That the IO did not record the statement of any public person except the witness. That IO did not seize any CCTV camera from the spot. Witness voluntarily stated that no CCTV camera installed at the spot. That the same type of buttondar knife was also found in the market. No specific sign was mentioned on the above-said knife which shows the above- said knife was the same knife which was recovered from the accused. That IO did not click the photographs of the spot and the case property in his presence.
State Vs. Rohit @ Gullu FIR No.354/2022 Page No.4/15
6. Prosecution examined HC Satyapal Singh as PW2. He deposed that on 07.06.2022, he received DD No.162A. Thereafter, he alongwith Ct.Rinku reached at the spot where they met with Ct.Vikram who apprehended one person. After reaching the spot, Ct.Vikram handed over to him the custody of one person and the case property i.e. buttondar knife which was recovered from the possession of accused and during the interrogation, accused disclosed his name as Rohit @ Gullu. Thereafter, he recorded the statement of Ct.Vikram Ex.PW1/A. On the basis of which, he prepared Tehrir and same was handed over to Ct.Rinku for registration of FIR. Tehrir is Ex.PW2/A. After registration of the FIR, Ct. Rinku came back to the spot and handed over the copy of FIR and original Tehrir to witness. He prepared the sketch of knife in the presence of Ct.Vikram which is Ex.PW1/B and he put the above-said knife in a white cloth and prepared the Pullanda and sealed with the seal of SP and after using the same, the seal was handed over to Ct.Rinku. He also prepared the site plan at the instance of Ct.Vikram which is Ex.PW1/C. He also seized the case property in presence of Ct.Vikram vide seizure memo Ex.PW1/D. He arrested the accused vide arrest memo Ex.PW1/E and conducted his personal search vide memo Ex.PW1/F. He also recorded the disclosure statement of the accused Ex.PW2/B. Thereafter, after taking instructions from the witness, Ct.Rinku went to the DDU Hospital along-with accused for the medical examination of accused. After medical examination of accused, Ct.Rinku came back at the PS alongwith the accused. Meanwhile, witness also State Vs. Rohit @ Gullu FIR No.354/2022 Page No.5/15 left the spot along-with case property and reached at the PS and after reaching the PS, witness deposited the case property in Malkhana. During the investigation, witness asked some public persons who were present at the spot to join the investigation but all public persons refused the same and left the spot without disclosing their whereabouts. On next day, witness produced the accused before concerned court and accused was sent to JC.
Accused was present in the court and he was correctly identified by the witness. He also recorded statement of witnesses u/s 161 CrPC. After completion of investigation, he submitted the charge sheet before concerned Court.
MHC(M) produced case property having seal of SP. Seal was removed and pullanda was opened and one button operated knife was taken out from the pullanda. Same was shown to witness. Witness correctly identified the same. Same is P1.
7. Witness was cross examined by accused wherein he stated that he is not the eye witness of the recovery of the case property from the possession of accused. That no CCTV cameras have been installed at the spot. That he did not click the photographs of the spot and case property. That the same type of the knife is also available in the market. Witness further stated that he did not record the statement of any public person who were present at the spot. Witness voluntarily stated that all public persons refused to join the investigation. That he did not serve State Vs. Rohit @ Gullu FIR No.354/2022 Page No.6/15 any notice to any public person to join the investigation. Witness voluntarily stated that all public persons left the spot without disclosing their whereabouts. That he did not obtain the duty roaster from the PS of the above-said date which shows that the complainant Ct.Vikram was on patrolling duty on that day at that time.
8. Vide separate statement recorded u/s 294 Cr.P.C, accused had admitted FIR No.354/2022 registered by ASI Raj Kumar Ex.A1, Certificate u/s 65B of IEA Ex.A2, DAD notification dt.29.10.1980 Ex.A3, Entry in register no.19 Ex.A4 and DD No.162A dt.07.06.2022. Hence the above documents were ordered to be read in evidence without its formal proof.
9. No other witness was examined by prosecution and hence, PE was closed.
10. 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. He further stated that he had not done anything wrong. That on the day of incident, he was present at his house and he was apprehended from his house by the police officials. Accused chose not to lead any evidence in his defence and hence, the matter was put up for final arguments.
State Vs. Rohit @ Gullu FIR No.354/2022 Page No.7/15
11. Final arguments were thereafter heard on behalf of State as well as the accused.
12. After hearing Sh.Amit Sehrawat, Learned Assistant Public Prosecutor for the state and 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. The court is of the view that to prove the charge against the accused, the prosecution is required to prove the allegation beyond reasonable doubt.
13. 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 State Vs. Rohit @ Gullu FIR No.354/2022 Page No.8/15 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.
14. In the case in hand, it is alleged by the prosecution that on 07.06.2022 at about 10 : 10 PM near District Park, Joginder Singh Marg, Janakpuri, accused was found in possession of one buttondar knife. It is pertinent to note that the incident took place at about 10 : 10 PM near District Park, Joginder Singh Marg, Janakpuri, which is a very crowded place. It is pertinent to note that it has categorically been stated by PW1/HC Vikram Singh and PW2/HC Satyapal Singh in their cross examination that they did not join any independent witness. It is also pertinent to note that in the instant case, neither of the witnesses made any sincere efforts to collect any CCTV footage, to join any independent witness or even to capture or click any photographs of the case property or of the spot.
In the instant case, during the examination of PW2/HC Satypal Singh specifically admitted the fact that the public persons were present there at the spot but all public persons refused the same and left the spot without disclosing their whereabouts. However, they did not join them as they all refused to join the investigation by citing their personal reasons. All the prosecution witnesses stated that no public witness agreed to give statement. Further, there is nothing on record to show that the complainant or the IO had served any notice under Section 160 State Vs. Rohit @ Gullu FIR No.354/2022 Page No.9/15 CrPC upon the persons who refused to join the investigation. Thus, the prosecution has failed to prove that any serious effort was made by either of the witnesses to join public witness in the proceedings. It is a well settled proposition that non-joining of public witness shrowds doubt over the fairness of the investigation by police.
15. 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".
16. 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:
State Vs. Rohit @ Gullu FIR No.354/2022 Page No.10/15 "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".
"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 State Vs. Rohit @ Gullu FIR No.354/2022 Page No.11/15 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".
17. 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 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 State Vs. Rohit @ Gullu FIR No.354/2022 Page No.12/15 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."
18. 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.
19. 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, State Vs. Rohit @ Gullu FIR No.354/2022 Page No.13/15 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 the seal was deposited with MHCM(M) along with case property results in miscarriage of justice and is fatal to the prosecution.
20. 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.
21. 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 Rohit @ Gullu is hereby acquitted of the offence punishable under Section 25 of Arms Act.
Accused be set at liberty.
State Vs. Rohit @ Gullu FIR No.354/2022 Page No.14/15 Pronounced in open Court on this 12th Day of March, 2024. This judgment consists of 15 pages and each pages are signed by the undersigned.
Digitally BHARTI signed by BENIWAL BHARTI BENIWAL (BHARTI BENIWAL) Metropolitan Magistrate-11 South West District, Dwarka Courts New Delhi State Vs. Rohit @ Gullu FIR No.354/2022 Page No.15/15