Delhi District Court
State vs Karan on 6 March, 2025
IN THE COURT OF MS. SWATI SHARMA,
CHIEF JUDICIAL MAGISTRATE
SHAHDARA, KKD, DELHI
JUDGMENT U/S 355 Cr.PC
CNR No.DLSH020042932024
a Serial No. of the case : FIR No.: 130/24
Police Station: Shahdara
(Cr. Case No.2209/24)
b Date of the commission of : 12.03.2024
the offence
c Name of the Complainant : HC Monu Kumar
d Name of Accused person : Karan
and his parentage and S/o Sh. Chanderpal
R/o H.No.309/7, Rehman
residence
Building, Shahdara, Delhi.
e Offence complained of : U/s 25/54/59 Arms Act
f Plea of the Accused and his : Not guilty.
examination (if any)
g Final Order : Acquitted
h Order reserved on : 04.03.2025
i Order pronounced on : 06.03.2025
Brief statement of facts of the case and trial proceedings:
1.The case of the Prosecution against the accused Karan is that on 12.03.2024 at around 08:50 pm at Rehman Building near Sahuchalaya, Shahdara, Delhi within the jurisdiction of PS Shahdara, he was found in possession of one buttondar knife in contravention of notification issued by Delhi Administration. On the said allegations, accused was booked with the offence under State vs. Karan FIR No.130/24 U/s 25/54/59 Arms Act PS Shahdara Pages 1 of 13 Section 25/54/59 Arms Act and FIR was registered.
2. After investigation, charge-sheet was filed against the accused on 04.04.2024 whereupon Cognizance was taken in this matter and on 10.04.2024, upon appearance of accused, the copy of charge-sheet was supplied to the accused in compliance of Section 207 Cr.P.C. Further, on 06.05.2024, charge was framed against the accused under Section 25/54/59 Arms Act to which he pleaded not guilty and claimed trial.
3. Subsequently, Prosecution evidence was led and in order to prove its version, Prosecution examined three witnesses i.e., PW1 HC Monu Kumar, PW2 Ct. Shivam Dubey and PW3 ASI Raj Kishore.
It is pertinent to note that on 06.5.2024, vide his statement recorded u/s 294 Cr.P.C., accused admitted the registration of FIR No.130/24 PS Shahdara (Ex.A1) and certificate u/s 65B IEA (Ex.A2). Thus, concerned DO/SI Naresh Kumar was dropped from the list of witnesses.
4. After the conclusion of the Prosecution evidence, statement of Accused was recorded u/s 313 Cr.P.C. on 27.01.2025 separately wherein Accused claimed to be innocent and denied allegations against him. Accused stated that he has been falsely implicated in the present case and he is innocent and no knife was recovered from his possession. Accused stated that recovery has been planted upon him.
Despite opportunity Accused opted to not lead any Defence Evidence. Accordingly, bringing the trial to an end, final State vs. Karan FIR No.130/24 U/s 25/54/59 Arms Act PS Shahdara Pages 2 of 13 arguments were heard from Ld. LAC for the accused as well Ld. APP for the State.
Appreciation of Evidence
5. The arguments were addressed by Ld. APP for the State as well as Ld. LAC for the Accused in detail.
Ld. APP for the State argued that the case of the Prosecution has been proved beyond all reasonable doubts on account of the undeterred testimonies of the prime Prosecution witnesses i.e. the complainant and IO. Ld. APP for the State further argued that this case merits conviction of the Accused as the Prosecution case stands firmly on its own footing and merely because of absence of public witnesses, the veracity of public witnesses does not stand negated.
Vehemently, denying the arguments of Ld. APP for the State, Ld. LAC for the Accused argued that the Accused has been falsely implicated in the present case and he has been made only a victim of circumstances. It was further argued by Ld. Counsel for the Accused that nothing was recovered from the possession of the Accused and this is the reason why no independent witness has been brought by Prosecution in this matter. Hence, Ld. LAC for the Accused strongly argued for acquittal of the Accused in this matter.
Submissions have been duly heard. Record has been carefully perused.
6. A detailed scrutiny of the testimonies of the Prosecution State vs. Karan FIR No.130/24 U/s 25/54/59 Arms Act PS Shahdara Pages 3 of 13 witnesses has been done and is hereby discussed in detail.
6.1. PW-1 HC Monu Kumar: He is the complainant in the present case. He deposed that on 12.03.2024, he alongwith Ct. Shivam Dubey were performing patrolling duty in the area beat no. 02, Rehman Building, Near Sauchalya, Delhi and during Patrolling, at about 20:50 hours, when they reached Rehman Building, Near Sauchalya, Delhi, they saw that one person was coming on foot from the side of Sauchalya and on seeing them in police uniform, the said person suddenly took u-turn and started moving the fast paces, on suspicion, they stopped the said person. He further deposed that thereafter, he took the cursory search of apprehended persons and one buttodar knife was recovered from his right pocket of wearing trouser and on interrogation, he revealed his name as Karan. He further deposed that thereafter, he shared the abovesaid information to the duty officer of the PS concerned and after sometime, IO/ASI Raj Kishore reached at the spot and they handed over the custody of accused as well as case property to the IO/ASI Raj Kishore. He further deposed that thereafter, IO/ASI Raj Kishore prepared sketch memo of the recovered buttondar knife, Ex. PW1/A and on measurement of the recovered buttondar knife total length 24 cm, length of handle 13.5 cm, length of blade 10.5 cm, width of blade 3 cm. He further deposed that thereafter, IO/ASI Raj Kishore prepared pullanda and sealed with the seal of RK and thereafter, seizure memo was prepared, Ex. PW1/B. He further deposed that thereafter, IO/ASI Raj Kishore recorded his statement, Ex. PW1/C. He further deposed that thereafter, IO/ASI Raj Kishore prepared rukka and same was handed over to Ct. Shivam Dubey State vs. Karan FIR No.130/24 U/s 25/54/59 Arms Act PS Shahdara Pages 4 of 13 for the registration of FIR and accordingly, he went to the PS got registered the FIR and after registration of FIR Ct. Shivam Dubey came back at the spot alongwith copy of FIR and original rukka and same was handed over to IO/ASI Raj Kishore. He further deposed that thereafter, accused namely Karan was arrested and personally searched vide arrest memos and search memos Ex. PWI/D and Ex. PW1/E. He further deposed that thereafter, IO recorded disclosure statement of accused Ex. PW1/F and thereafter, they all came back at the PS and case property deposited in the malkhana. He correctly identified the accused as well as case property Ex.P1 in the court.
During his cross examination by Ld. LAC for accused, he stated that they reached at the spot at 20:50 hours on a government bike. He admitted that the spot is a public place and no legal notice was served by the IO. He further stated that he had not offered my personal search before search of accused. He failed to remember the colour of cloths of accused wearing at that time. He admitted that he was using smart phone having camera in it, however, no videography or photography was taken by him. He admitted that place of occurrence was a public place and public persons were coming and going there. He further stated that IO has not given any written notice to any public persons and no public persons were joined in the investigation. He denied the suggestions that case property has been planted by the police officials or that all proceedings were done while sitting at the PS. 6.2. PW-2 Ct. Shivam Dubey: He was present alongwith HC Monu Kumar on patrolling duty at the time of the alleged State vs. Karan FIR No.130/24 U/s 25/54/59 Arms Act PS Shahdara Pages 5 of 13 incident and the entire proceedings and deposed exactly on the lines of PW1. He correctly identified the accused as well as case property Ex.P1 in the court.
He during his cross examination by Ld. LAC for accused stated that they have reached at the spot at 20:50 hours on a government bike. He admitted that the spot is a public place and no legal notice was served by the IO. He further stated that he had not offered his personal search before search of accused. He failed to remember colour of cloths of accused wearing at that time. He admitted that he was using smart phone having camera in it, however, no videography or photography was taken by him. He admitted that place of occurrence was a public place and public persons were coming and going there. He further stated that IO has not given any written notice to any public persons. He further stated that no public persons were joined in the investigation. He denied the suggestions that case property has been planted by the police officials or that all proceedings were done while sitting at the PS. 6.3. PW-3 ASI Raj Kishore: He is the IO in the present case. He deposed that on 12.03.2024, Duty Officer of PS concerned informed that one person was apprehended at Rehman Building near Sauchalaya Shahdara by HC Monu Kumar and Ct. Shivam Dubey with illegal weapon and also instructed him to reach at the abovesaid spot. He further deposed that thereafter, he went to the abovesaid spot and met with HC Monu Kumar and Ct. Shivam Dubey alongwith apprehended accused. He further deposed that HC Monu handed over him custody of accused as State vs. Karan FIR No.130/24 U/s 25/54/59 Arms Act PS Shahdara Pages 6 of 13 well as case property i.e. buttondar knife and thereafter, he prepared sketch of the buttondar knife Ex.PW1/A. He further deposed that total length of knife was 24 cm, blade 10.5cm, handle 13.5, width 3 cm. He further deposed that thereafter, he prepared seizure memo, Ex.PW1/B and also prepared site plan Ex.PW3/A. He further deposed that thereafter, he recorded statement of HC Monu, Ex.PW1/B. He further deposed that thereafter, he prepared rukka, Ex.PW3/B and same was handed over to Ct. Shivam Dubey for registration of FIR. He further deposed that accordingly, he went to PS and got the FIR registered and came back at the spot alongwith copy of FIR and original rukka and same was handed over to him. He further deposed that thereafter, accused was arrested and personally searched vide memo Ex.PW1/D and Ex.PW1/E. He further deposed that disclosure statement of accused was recorded vide memo Ex.PW1/F and thereafter, they police official took the accused at PS and case property deposited in the Malkhana. He further deposed that thereafter, on next day accused was produced before court and sent to JC from the court and thereafter, he recorded statement of witnesses and prepared chargesheet and filed the same in the court. . He correctly identified the accused as well as case property Ex.P1 in the court.
He during his cross examination by Ld. LAC for accused stated that the spot is a public place and people were present over there and he had not given any notice to any public person to join for the search. He admitted that he had not taken any photographs/videography of the said search. He also admitted that he had not given any notice to any public person regarding State vs. Karan FIR No.130/24 U/s 25/54/59 Arms Act PS Shahdara Pages 7 of 13 the search and arrest. He also admitted that he had not taken any photographs/videography of the said search. He further stated that he could not tell the colour of clothes of the accused. He denied the suggestions that accused has been falsely implicated in the present case or that all the paper work was done while sitting at PS or that the case property has been tampered with.
7. It is a settled proposition of criminal law that Prosecution is required to prove its case beyond reasonable doubts by leading reliable, cogent and convincing evidence. Further it is a settled proposition of criminal law that in order to prove its case on judicial file, Prosecution is supposed to stand on its own legs and it cannot derive any benefit whatsoever from the weaknesses, if any, of the defence of the Accused. Further, it is also a settled proposition of criminal law that burden of proof of the version of the Prosecution in a criminal trial throughout the trial is on the Prosecution and it never shifts on to the Accused. Also, it is a settled proposition of criminal law that Accused is entitled to the benefit of every reasonable doubt in the Prosecution story and such reasonable doubt entitles the Accused to acquittal.
8. 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 the matter titled as State of Punjab vs. Balbir Singh [AIR 1994 SC 1872], held that :
"It therefore emerges that non-compliance 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 State vs. Karan FIR No.130/24 U/s 25/54/59 Arms Act PS Shahdara Pages 8 of 13 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 well-settled 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 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]"
9. At this stage, it is also crucial to observe that witnesses have admitted that no public persons have been made to join the investigation in this matter despite the fact that the spot of the incident is a public place where public persons were present. Further, no notice has been served to any of the public persons who did not join the investigation. It is also pertinent to note that the alleged incident has occurred on a busy public road and therefore, absence of public witnesses from the investigation becomes even more apparent.
Considering the above facts, it comes out that there was no lack of time and opportunity with the IO to associate some independent witnesses with the search and strictly comply with the provisions of code of criminal procedure.
The above stated observation of this court is fortified by the observations of the Hon'ble Supreme Court of India in Hemraj vs. State Of Haryana [AIR 2005 SC 2110] as follows:
"The fact that no independent witness though available, was examined and not even an explanation was sought to be given for not examining such witness is a serious infirmity in the Prosecution case..."
State vs. Karan FIR No.130/24 U/s 25/54/59 Arms Act PS Shahdara Pages 9 of 13 Furthermore, in case titled as Roop Chand vs. State of Haryana STATE OF [1999 (1)C.L.R 69], the Hon'ble High Court of Punjab & Haryana has held that:
"...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 he witnesses from the public had refused to 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 worthy of credence. All these facts taken together make the Prosecution case highly doubtful..."
10. Moving further, this Court is conscious of precedent laid down by Hon'ble Delhi High Court in case titled as Safiullah vs. State, [1993 (1) RCR (Criminal) 622], that :
"The seals after use were kept by the police officials themselves. Therefore the possibility of tampering with the contents of the sealed parcel cannot be ruled out. It was very essential for the Prosecution to have established from stage to stage the fact that the sample was not tampered with. ..... Once a doubt is created in the preservation of the sample the benefit of the same should go to the Accused."
State vs. Karan FIR No.130/24 U/s 25/54/59 Arms Act PS Shahdara Pages 10 of 13 The case property in the present matter was lying in the Malkhana of the same police station where the police officials having the possession of seal were posted. There was ample opportunity for tampering with the case property. Hence, considering the legal position, the benefit of doubt should be given to the Accused.
11. Besides all this, in the present case, the aforesaid lapse on the part of police officials assumes significance on account of another grave contradiction apparent in the document Ex. PW1/A and Ex.PW1/B. The sketch memo of the knife Ex. PW1/A and seizure memo of the knife Ex. PW1/B bear the number of FIR. As per the rukka and testimony of witnesses, the sketch memo of the knife and seizure memos were prepared prior to registration of FIR. If that be so then it is questionable as to how the said documents bear the FIR number. This gives rise to two inferences that either the FIR was recorded prior to the alleged recovery of the case property or number of the said FIR was inserted in the document after its registration. In both the situations, it seriously questions the veracity of the Prosecution version and creates a good deal of doubt about the recovery of the case property in the manner alleged by the Prosecution. That being so, the benefit arising out of such a situation must necessarily go to the Accused.
In this regard, reference is made to the judgment of Hon'ble High Court of Delhi in case titled as Mohd Hasim V/S State [1999 VI AD (DELHI) 569] wherein it was observed:
"...documents prepared before registering the FIR bears FIR numbers, meaning thereby either FIR was recorded posterior in time or that documents were State vs. Karan FIR No.130/24 U/s 25/54/59 Arms Act PS Shahdara Pages 11 of 13 prepared after the recording of FIR, and in both cases, Prosecution case would collapse."
12. Further, in order to ensure fair investigation, the Prosecution witnesses must have offered their personal search to some independent witness. However, as no such precaution was taken by Prosecution witnesses the doubt as to the false plantation of the case property upon the Accused cannot be ruled out. In S. L. Goswami Vs. State Of M.P., [1972 CRI.L.J 511 (SC)], the Hon'ble Supreme Court held as under:
"... in our view, the onus to proving all the ingredient of an offence is always upon the Prosecution and at no stage does it shift to the Accused. It is no part of the Prosecution duty to somehow hook the crook. Even in case where the defence of the Accused does not appear to be credible or is palpably false that burden does not become any the less. It is only when this burden is discharged that it will be for the Accused to explain or controvert the essential elements in the Prosecution case, which would negative it. It is not however for the Accused even at the initial stage to prove something which has to be eliminated by the Prosecution to establish the ingredient of the offence with which he is charged, and even if the onus shifts upon the Accused and the Accused has to establish his plea, the standard of proof is not the same as that which vests upon the Prosecution..."
This also raises doubt about the recovery of the said case property from the present Accused and strengthens the possibility of planting of the case property upon the Accused.
Conclusion
13. The onus and duty 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 State vs. Karan FIR No.130/24 U/s 25/54/59 Arms Act PS Shahdara Pages 12 of 13 regard to the guilt of the Accused is entitled to benefit of doubt resulting in acquittal of the Accused.
14. In view of above said discussion, the Prosecution has failed to prove the guilt of the Accused beyond reasonable doubt. Accordingly, Accused Karan is acquitted of the charges u/s 25/54/59 Arms Act framed in the present case. Case property be confiscated to the State. Same be destroyed.
File be consigned to Record Room subject to compliance Digitally of section 437-A Cr.PC. signed by Swati Swati Sharma Sharma Date:
Announced in the open court 2025.03.06
16:44:54
on 06.03.2025 +0530
(Swati Sharma)
Chief Judicial Magistrate(Shahdara)
Karkardooma Courts, Delhi
[This judgment contains 13 signed pages] [This judgment has been directly typed to dictation.] State vs. Karan FIR No.130/24 U/s 25/54/59 Arms Act PS Shahdara Pages 13 of 13