Delhi District Court
Cr. Case/290020/2016 on 7 December, 2021
1 of 16
IN THE COURT OF ANURAG THAKUR
MM-02: CENTRAL DISTRICT: TIS HAZARI: DELHI
FIR No. 217/2012
PS: Timarpur
U/s 25 The Arms Act, 1959
State v. Harish Kumar
CNR No. DLCT02-000896-2013
Date of Institution of case: 07.01.2013
Date when Judgment reserved: 07.12.2021
Date on which Judgment pronounced: 07.12.2021
JUDGMENT
Unique ID no. of the case : 290020/2016
Date of commission of offence : 30.09.2012
Name of complainant : HC Sunil, PIS No. 28981654
PS Timarpur, Delhi.
Name and address of accused : Harish Kumar s/o Ram Niwas
R/o H.No. A-172, Harijan Basti,
Kundli, PS New Ashok Nagar,
Delhi.
Offence complained of : 25 The Arms Act, 1959
Plea of accused : Not guilty
Date of order : 07.12.2021
Final order : Acquitted
BRIEF REASONS FOR DECISION
1. The accused had been sent to face trial for commission of offence under section 25 of The Arms Act, 1959 (hereinafter referred to as 'the Act') on the allegations that on 30.09.2012 at about 09:05 p.m at Kali Ghat, Wazirabad, Delhi, he was found in possession of one country made pistol (katta) and one live cartridge without any licence or permit to possess the same in Delhi. On the basis of the above allegations, the present FIR was lodged at PS Timarpur.
Digitally signedANURAG by ANURAG THAKUR THAKUR Date: 2021.12.07 23:49:39 +05'30' FIR no. 217/2012 State v. Harish Kumar PS Timarpur 2 of 16
2. Upon conclusion of investigation, final report was filed. Cogizance of offence u/s 25 of the Act was taken and accused was summoned. Upon appearance, copy of charge sheet was supplied to accused in compliance of Section 207 of The Code of Criminal Procedure, 1973 (hereinafter called as 'Cr.P.C'). Charge u/s 25 of the Act was framed against the accused on 15.04.2013 to which he pleaded not guilty and claimed trial.
3. Thereafter, the prosecution was given opportunity to prove the accusation against the accused. The prosecution examined five witnesses:
PW-1 HC Sunil testified that on 30.09.2012 he along with Ct. Shubhkaran were on patrolling duty in the area of PS. Timarpur. At about 9 pm, when they reached near Kalighat, Wazirabad, they saw one young boy coming from Kalighat towards Gali no.3, Wazirabad. When he saw them, then he moved in opposite direction swiftly. They become suspicious and asked him to stop and then he along with Ct. Shubhkaran apprehended him with the help of public persons at distance of 10-15 steps. During escape, accused fell down and he received minor bruises on his body. On inquiry, he revealed his name as Harish. He conducted his cursory search and found one desi katta from his right dub of pant. During his search, they asked public persons to join investigation, however, they left the sport without disclosing their names and addresses and after showing their inability. However, out of the public persons gathered there, one Vikas @ Vicky came forward and he showed his will to join the investigation. Then he checked the said katta and he found one live cartridge loaded in it. Then he unloaded the said live cartridge. Then he placed the said recovered katta and live cartridge on a white plain paper and prepared its sketch and the same was Ex.PW1/A bearing his signature at point A. He also measured the said katta and cartridge. The desi katta was found to be 24 cm long, length of barrel was 14.02 cm, length of body was 17 cm. Diameter ANURAG Digitally signed by ANURAG THAKUR THAKUR Date: 2021.12.07 23:50:05 +05'30' FIR no. 217/2012 State v. Harish Kumar PS Timarpur 3 of 16 of barrel was 1.7 cm, length of butt was 7.5 cm. The desi katta was made of Iron. The butt of katta also contained wooden body and it was opened with the help of safety catch attached to its body and it also carried a hammer and one trigger. It had one brass like ring at the bottom. The live cartridge was found to be 7.4 cm long, width of cartridge was 1.3 cm and diameter of the cartridge was 1.5 cm. The live cartridge was made of brass like metal and on its base "KF8MM" was mentioned. He wrapped the aforesaid recovered case property in white cloth and prepared pullinda and affixed his seal "SKM" over the pullinda and seized the same vide seizure memo Ex.PW1/B bearing his signature at point A. Seal after its use was handed over to Ct. Shubhkaran. He prepared tehrir and the same was Ex.PW1/C bearing his signature at point A and he handed over the same to Ct. Shubhkaran for registration of FIR. At about 11.20 pm, IO ASI Jagdish along with Ct. Shubhkaran carrying copy of FIR and tehrir returned to the spot. He narrated the whole incident to the IO and handed over to him the accused along with the case property and other documents. IO ASI Jagdish prepared site plan at his instance which was Ex.PW1/D bearing his signature at point A. IO recorded his supplementary statement. On 12.10.2012, he obtained case property along with FSL form from MHC(M) Premchand vide RC no.169/21/12 dt. 12.10.2012 at the instructions of the IO and deposited the same in FSL Rohini and received acknowledgment from FSL Rohini and he had deposited the said receipt of acknowledgment at Malkhana. He did not tamper with the case property during the period when it was in his custody. IO recorded his supplementary statement. Accused was correctly identified by him during trial. At that stage MHC(M) had produced one parcel of yellow colour bearing seal of court bearing particulars of the case. The seal was opened with the permission of court and one pullanda of white cloth was taken out and it was further opened and one country made pistol, one empty cartridge as per the description of ANURAG Digitally signed by ANURAG THAKUR THAKUR Date: 2021.12.07 23:50:23 +05'30' FIR no. 217/2012 State v. Harish Kumar PS Timarpur 4 of 16 seizure memo were taken out and same were shown to witness and asked whether that pistol along with the said cartridge was recovered in his presence from accused by him and witness correctly identified both case properties. The case property was already Ex.P1 (colly).
During cross-examination by ld. counsel for accused, he stated that on that day he was on duty from 09:00 AM to 10:00 PM. He did not give any notice to other public persons, who refused to join investigation. Accused was interrogated by IO ASI Jagdish regarding his address. He sent rukka at about 10:10 PM through Ct. Subhkaran and thereafter, he returned to spot at 11:20 PM with ASI Jagdish. He denied the suggestion that he never apprehended the accused at spot nor did accused commit any crime. He also denied the suggestion that case property was planted upon accused or that accused had been falsely implicated in the case. He further denied that all the paper work was done while sitting only at PS or that accused was called from his house.
4. PW-2 Vikas deposed that on 30.09.2012, he was residing at the above said address. On that day he was going from Kali Ghati, Wazribad to his house and the time was about 09:00 PM. In the meantime, some one from behind put bandook at his head. He shouted. Then the said boy, who touched the gun at his head from behind, fled away from there. In the meantime, public gathered there. Some one from the public called the police. One police official namely Sunil Kumar came there. He narrated about the incident to the said police official. He took his signature on blank paper and told him that when accused would be apprehended then he would be informed and he would help him to go to PS. Thereafter, he never called him. He got the summons and he came to court on that day. He did not see the said boy who put the gun on his head from behind.
At that stage Ld. APP requested to cross examine the witness as he was ANURAG Digitally signed by ANURAG THAKUR THAKUR Date: 2021.12.07 23:50:41 +05'30' FIR no. 217/2012 State v. Harish Kumar PS Timarpur 5 of 16 resiling from his earlier statement. During cross-examination by Ld. APP for the state he admitted that he told the police about the facts of the case. He denied the suggestion that he stated to police that he used to take care of their boats owned by his father in Kali Ghat, Wazirabad. He admitted that he stated to police that on 30.09.2012 at about 09:00 PM, he met Ct. Subhkaran and HC Sunil near Kali Ghat. He denied the suggestion that he stated to police in his statement Ex.PW2/A that those two police officials had apprehended one boy whose name after inquiry was revealed as Harish Kumar and he was having in his possession one country made pistol or that those police officials asked public persons to join investigation or that the said public persons left the spot without disclosing their name and address and refused to join investigation or that he was prepared to join the investigation of the case and expressed his willingness to police officials regarding the same or that HC Sunil opened the chamber of the recovered country made pistol and checked the same in his presence or that he took out one round from the chamber of the said katta and unloaded the katta and then he placed the said country made pistol on a white paper and prepared the sketch after taking its measurement. The witness was confronted with statement Ex.PW2/A from portion A to A1 where it is so recorded. The witness was also confronted with sketch of the country made pistol Ex.PW1/A and asked whether it bear his signature and witness stateed that his signature was at point B, however, when IO obtained the signature that document was blank and nothing was depicted or mentioned on the same. He denied the suggestion that he signed document Ex.PW1/A after IO prepared the sketch of the said dessi katta in his presence. He further denied that he stated to police in his statement Ex.PW2/A that the said katta was metalic which was fitted in wood and it had one ring and its butt was of brass metal and on its body there was hammer and there was one trigger in it with a safety catch or that recovered cartridge was made of brass like metal and on its base ANURAG Digitally signed by ANURAG THAKUR THAKUR Date: 2021.12.07 23:50:59 +05'30' FIR no. 217/2012 State v. Harish Kumar PS Timarpur 6 of 16 expression KFMM was printed or that HC Sunil Kumar placed the live cartridge in a white cloth and prepared pullanda and affixed the seal of SKM and sealed the same vide seizure memo already Ex.PW1/B. The witness was confronted with statement Ex.PW2/A from portion B to B1 where it was so recorded. The witness was confronted with the seizure memo of the country made pistol Ex.PW1/B and asked whether it bear his signature and witness stated that his signature was at point B, however, when IO obtained the signature that document was blank and nothing was depicted or mentioned on the same. He denied the suggestion that he stated to police in his statement Ex.PW2/A that HC Sunil Kumar prepared tehrir and handed over the same to Ct. Subhkaran for registration of FIR at PS or that in the meantime IO ASI Jagdish reached at the spot or that HC Sunil Kumar handed over accused Harish to IO alonwgith the recovered case property i.e., country made pistol and live round with seizure memo and aforesaid document or that IO arrested accused Harish Kumar and also conducted his personal search vide memo Ex.PW2/X and Ex. PW2/Y respectively both bearing his signature at point A or that IO obtained signature of Ct. Subhkaran and himself on the aforesaid documents or that IO recorded his statement and read over and explained the same to him after recording the same. The witness was confronted with statement Ex.PW2/A from portion C to C1 where it was so recorded. The witness was confronted with the arrest memo and personal search of the accused Ex.PW2/X and Ex.PW2/Y and asked whether it bear his signature on these documents and witness stated that his signature was at point A, however, when IO obtained the signature these documents were blank and nothing was depicted or mentioned on the same. He denied the suggestion that he signed document Ex.PW2/X and Ex.PW2/Y after that IO prepared them in his presence and after he understood their contents. He denied the suggestion that he was suppressing true facts from the court. He also denied the suggestion that ANURAG Digitally signed by ANURAG THAKUR THAKUR Date: 2021.12.07 23:51:18 +05'30' FIR no. 217/2012 State v. Harish Kumar PS Timarpur 7 of 16 he mentioned name of accused Harish Kumar in his statement Ex.PW2/A before police or that he made the contents of his statement from portion A to C1 of his own wish and police recorded the same as per his statement. At that stage ld. APP for the State specifically pointed out towards accused Harish Kumar and asked the witness whether that person was apprehended by aforesaid police officials alongwith the aforesaid recovered katta in his presence on the day of incident. To which the witness stated that he could not identify the accused present in the court that day as he was never apprehended by police in his presence. He denied that he was intentionally and deliberately not identifying the accused before the court. He could not identify the pistol as police never recovered the same in his presence nor did he know about the incident. At that stage MHC(M) had produced one parcel of yellow colour bearing seal of FSL with impression PP bearing particulars of the case. The seal was opened with the permission of Ld. Court and one pullanda of white cloth bearing the seal of SKM was taken out and it was further opened and one country made pistol one empty cartridge as per the description of seizure memo were taken out and same was shown to witness and asked whether that pistol alongwith the said cartridge was recovered in his presence from accused by police to which witness states that he could not identify the same as the same was never recovered in his presence. Case property was Ex.P1 (Colly).
5. PW-3 HC Subh Karan deposed that on 30.09.2012 he was posted as Constable at PS Timar Pur. On that day he alongwith HC Sunil were performing patrolling duty in the area of Kali Ghat Wazirabad. At about09:00 PM when they were present in the area of Kali Ghat Wazirabad, one young boy was coming from the side of Kali Ghat and on looking at them, he moved back and started walking swiftly, then he alongwith HC Sunil apprehended him after pursuing. On inquiry by HC Sunil Kumar he told his name as Harish Kumar.
ANURAG Digitally signed by ANURAG THAKUR THAKUR Date: 2021.12.07 23:51:37 +05'30' FIR no. 217/2012 State v. Harish Kumar PS Timarpur 8 of 16 As they became suspicious of him, HC Sunil Kumar made a cursory search of accused and found desi katta from the right dub of his pant. HC Sunil asked public persons gathered there to join investigation, however, they refused to join except one boy namely Vicky. Vicky came forward and joined investigation and in his presence IO unloaded the desi katta recovered from the possession of accused Harish Kumar. Upon unloading the aforesaid desi katta, one live cartridge was taken out of the said desi katta. IO prepared sketch on plain paper of the aforesaid desi katta and live cartridge and the same was already Ex.PW1/A bearing his signature at point C. The desi katta was made of iron and butt was made of wooden cover. The cartridge was made of brass like metal and on its base "KF 8mm" was mentioned. Then IO placed the aforesaid recovered desi katta and live cartridge in a white cloth and converted them in pullanda and sealed them with the seal of SKL and seized the aforesaid case property vide seizure memo already Ex.PW1/B bearing his signature at point C. The seal after its use was handed over to him. Thereafter, IO HC Sunil Kumar prepared rukka and handed over the same to him for registration of FIR at PS. After registration of FIR, DO handed over the copy of FIR and original rukka to second IO ASI Jagdish and thereafter, he alongwith ASI Jagdish reached at the spot. HC Sunil Kumar narrated whole incident to second IO ASI Jagdish and handed him over the accused. Thereafter, IO ASI Jagdish prepared site plan at the instance of HC Sunil Kumar and same was already Ex.PW1/D. Thereafter, IO recorded the statement of HC Sunil and the case property was handed over to HC Sunil for depositing the same at malkhana at PS. After interrogation IO arrested accused and conducted his personal search vide memo Ex.PW2/X and Ex.PW2/Y both bearing his signature at point B. IO recorded the disclosure statement of accused which was Ex.PW3/A bearing his signature at point A. Thereafter, they all alongwith accused went to PS. After medical examination, accused was put behind bar. He stated that he could ANURAG Digitally signed by ANURAG THAKUR THAKUR Date: 2021.12.07 23:51:54 +05'30' FIR no. 217/2012 State v. Harish Kumar PS Timarpur 9 of 16 identify accused. Accused was correctly identified by witness. He stated that he could identify the case property. At that stage MHC(M) had produced one parcel of yellow colour bearing seal of court bearing particulars of the present case. The seal was opened with the permission of Court and one pullanda of white cloth was taken out and it was further opened and one country made pistol one empty cartridge as per the description of seizure memo were taken out and same was shown to witness and asked whether that pistol alongwith the said cartridge was recovered in his presence from accused by IO and witness correctly identified both case property. The case property was Ex.P1 (colly).
During cross-examination by ld. counsel for accused he deposed that on the day he was on duty from 09:00 AM to 10:00 PM. The incident was of night. He was involved in the proceeding of the present case upto 11:30 PM. IO could not give notice to public persons, who refused to join investigation as they left the spot without disclosing their name and address. He denied the suggestion that he neither investigated nor accused was arrested or searched in his presence nor any case property was recovered from accused in his presence or that case property was planted upon the accused. He denied the suggestion that accused was never arrested from the spot rather he was lifted by the police from his house. At about 10:00 PM he went alongwith rukka to PS and reached at PS 10:45 PM. Again said he reached at PS at about 10:25 PM. DO and munshi were present. He could not tell the name of police official who typed the FIR. He denied the suggestion that he was unable to tell the name of said official as he never went to PS for registration of FIR or that no investigation was conducted by IO and all the proceeding was done while sitting at PS. He also denied that he was not on duty on that day.
6. PW-4 ASI Prem Chand testified that on 30.09.2012 he was posted as ANURAG Digitally signed by ANURAG THAKUR THAKUR Date: 2021.12.07 23:52:11 +05'30' FIR no. 217/2012 State v. Harish Kumar PS Timarpur 10 of 16 MHC(M) at PS Timar Pur. As per entry No. 3564 of dt. 30.09.2012 of register no. 19 IO HC Sunil deposited the case property i.e. one pullanda sealed with the seal of SKM containing desi katta and live cartridge in connection with case FIR No. 217/12, in malkhana and entry regarding the same was made by him and same was Ex.PW4/A(OSR). On 12.10.2012 he handed over the aforesaid deposited pullanda to IO HC Sunil for purpose of depositing the same in FSL Laboratory Rohini through RC No. 169/21/12. After depositing the aforesaid pullanda in FSL Rohini, HC Sunil returned to PS Malkhana and handed over to him the copy of RC and acknowledgement receipt issued by FSL Rohini. Thereafter, on 09.11.2012 Ct. Yashpal deposited one khakhi parcel alongwith result in connection with aforesaid case property to him and he made entries against aforesaid entries in register No. 19 to that effect which bear his signature at point A and B. He handed over the result in case to IO ASI Jagdish Singh. The aforesaid entry bear the signature of ASI Jagdish Singh at point C after obtaining the result from him. The said RC and acknowledgement was Ex.PW4/B (colly) (OSR).
During cross-examination by the ld. Defnece counsel, he stated that he did not remember the time when the case property was handed over to HC Sunil for depositing the same at FSL. He denied the suggestion that he was unable to tell the time as he never handed over the case property to him. He also denied that HC Sunil never deposited the case property with him or that the result placed on record belonged to some other weapon which was not the part of case property in present case.
7. PW-5 ASI Ishwar Dayal Tyagi testified that on 30.09.2012, he was posted at PS Timarpur as HC and was working as duty officer from 04:00 PM to 12 midnight. On that day, at about 10:30 PM, he received a rukka from Ct. Subhkaran sent by HC Sunil, on the basis of which, he instructed the computer ANURAG Digitally signed by ANURAG THAKUR THAKUR Date: 2021.12.07 23:52:31 +05'30' FIR no. 217/2012 State v. Harish Kumar PS Timarpur 11 of 16 operator to register the FIR who as per his instructions and dictation, registered FIR No. 217/12. The computer installed at the PS for registration of FIR was such that once an information was fed, put or installed in it, it could not be altered / deleted / edited at any later stage. The computer generated copy of FIR was Ex.PW5/A (OSR). He also made endorsement on the rukka which was Ex. PW5/B and which bear his signature at point A. The copy of FIR and original rukka were given to Ct. Subhkaran to further hand over to ASI Jagdish for investigation. SHO Timarpur issued certificate under section 65B of Indian Evidence Act regarding the aforesaid computerised FIR. Same was Ex.PW5/C bearing his signature at point A. During cross-examination by Sh. S. K. Verma, Ld. Defence counsel, he failed to tell the name of person who typed the FIR. He denied the suggestion that no rukka was received nor any FIR was registered.
8. Statement of the accused was recorded u/s 294 Cr.P.C wherein he submitted that he did not dispute the genuineness and preparation of sanction u/s 39 of the Act given by the Addl. DCP (North) dated 21.11.2012. The sanction was exhibited as Ex.X1. He also admitted the genuineness and preparation of report of Sr. Scientific Officer (Ballistics) dated 31.10.2012 which was exhibited as Ex.X2. Thereafter, the prosecution evidence was closed on 16.11.2021. Statement of the accused u/s 313 r/w section 281 Cr.P.C was recorded on 02.12.2021 in which he stated that he was innocent and had been falsely implicated in the case. He also submitted that he did not want to lead defence evidence. Final arguments in the matter were heard today.
9. Learned APP for the state submitted that the prosecution has adduced cogent evidence and even the witnesses have largely supported the case. He claimed that the allegations have been substantiated beyond a shadow of doubt and ANURAG Digitally signed by ANURAG THAKUR THAKUR Date: 2021.12.07 23:52:49 +05'30' FIR no. 217/2012 State v. Harish Kumar PS Timarpur 12 of 16 thus, the accused be convicted for offence u/s 25 of the Act.
10.Per Contra, learned defence counsel submitted that the only independent public witness has not supported the case of the prosecution. He argued that relevant DD entry record of patrolling by police personnel has not been produced. He claimed that the seizure memo and sketch of katta are doubtful as being antedated for bearing the FIR number. He stated that the handing over memo of seal after use was not prepared and the loaded katta was planted upon the accused. He prayed that the accused be acquitted.
11.I have heard the arguments addressed by the Ld. APP for state and the Ld. counsel for the accused and carefully perused the documents on record. Before adverting to the appreciation of evidence for deciding the present case, the applicable penal provision is reproduced in verbatim as follows:-
25. Punishment for certain offences- (1B) Whoever-
...(a) acquires, has in his possession or carries any firearm or ammunition in contravention of section 3;
shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to three years and shall also be liable to fine. It is cardinal principle of criminal jurisprudence that the prosecution is supposed to prove its case beyond reasonable doubt by leading cogent and convincing evidence to successfully bring home the guilt of the accused. Coming to the matter in hand, to sustain conviction u/s 25 of the Act, the prosecution is required to prove the following ingredients:-
(I) The accused was found in the possession of the katta and one live cartridge. (II) The accused was carrying the same without any valid licence or permit.
My observations on the evidence lead at the trial are delineated hereinafter.
12.Firstly, the only public person who joined the investigation did not support the case of the prosecution at all. PW-2 Vikas categorically stated that the katta Digitally signed ANURAG by ANURAG THAKUR THAKUR Date: 2021.12.07 23:53:05 +05'30' FIR no. 217/2012 State v. Harish Kumar PS Timarpur 13 of 16 was not recovered from the accused in his presence. He also did not identify the accused as the person from whom the katta and one live cartridge were recovered. He further stated that one police official Sunil Kumar had taken his signatures on blank papers and told him to go home and he would be informed when the accused would be apprehended. He narrated a completely different tale from the case set up by the prosecution. He stated that some one had put a gun behind his head while he was returning home. He shouted and culprit fled away from the spot as the public started gathering there. He could not see the face of the miscreant. Additionally, he stated that all documents containing his signature were blank at the time of his signing the same. The testimony of PW- 2 obfuscates the case of the prosecution as it puts into doubt each and every document signed by Vikas purportedly prepared in his presence.
13.Secondly, as per the prosecution version, a loaded katta had been recovered from the possession of the accused. To substantiate this allegation, the prosecution produced tehrir (Ex.PW1/C) which mentioned preparation of sketch of katta and live cartridge (Ex.PW1/A) and seizure memo of katta and cartridge (Ex.PW1/B) being made at the time of recovery. Further, as per the depositions of PW-1 and PW-3, the case properties were first measured, sketched and seized and only thereafter, the rukka was sent for registration of FIR. However, the seizure memo and sketch bear the FIR number. At the time of the seizure, the FIR number was not available and therefore, the FIR number could not have been figured on the seizure memo or the sketch. The existence of the FIR number on the seizure memo suggests that the seizure memo was prepared after the registration of the FIR. This erodes the credibility of the witnesses who have stated that the seizure memo was prepared on the spot and before the registration of FIR and the possibility of tampering cannot be ruled out. Here, it is relevant to refer to case law reported as Mohd. Hashim v. State ANURAG Digitally signed by ANURAG THAKUR THAKUR Date: 2021.12.07 23:53:24 +05'30' FIR no. 217/2012 State v. Harish Kumar PS Timarpur 14 of 16 1999(6) A.D. (Delhi) 569, wherein it was observed that when documents are prepared before the registration of FIR and it contains the FIR number, then inference has to be drawn that either FIR was recorded prior in time or the documents were prepared later on and in such cases benefit of the doubt is to be given to the accused.
14.Thirdly, the DD entry by which PW-1 and PW-3 left the PS for patrolling duty has not been placed on record and tendered in evidence. Rule 49 of Chapter 22 of the Punjab Police Rules, 1934 is reproduced herein for ready reference:-
22.49 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 before 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.
The relevant entries regarding the arrival and departure of the police officials have not been proved on record. Therefore, their presence at the alleged date, time and place of recovery of the loaded katta from the possession of the accused is doubtful. At this point, it is relevant to refer to case law reported as Rattan Lal v. State, 1987(2) Crimes 29, wherein the 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 the 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.
15. Another dent in the prosecution case is related to the seal. Both PW-1 and PW-
3 have deposed in their examination-in-chief that PW-1 had seized and sealed ANURAG Digitally signed by ANURAG THAKUR THAKUR Date: 2021.12.07 23:53:45 +05'30' FIR no. 217/2012 State v. Harish Kumar PS Timarpur 15 of 16 the case property at the spot in cloth pullanda with the seal of SKM. After that seal was handed over to PW-3. No handing over memo was prepared. The seal was handed over to the material prosecution witness, who is already interested in the case of the prosecution and neither handed over to an independent witness nor deposited in Malkhana. No explanation has come on record as to why handing over memo was not made or seal was not handed over to an independent witness or deposited in malkhana.
16. PW-1 HC Sunil stated in his testimony that the accused was apprehended with the help of the public persons but surprisingly, Vikas joined the investigation only after the recovery had been made of the loaded katta. PW-1 and PW-3 did not afford the accused the chance to search their person before proceeding to conduct his cursory search so as to eliminate the chance of planting of illegal arms. In the case of Orissa High Court reported as Rabindernath Prusty v. State of Orissa, 1984 CriLJ 1392 it was held that one of the formalities that have to be observed in searching a person is that the searching officer and other assisting him should give their search to the accused before searching the person of the accused. In the present case, no witness deposed about the search being done by the accused before his personal search whereby the loaded katta was recovered from him. All these circumstances raise serious doubt regarding the fairness and credibility of proceedings conducted by the police at the alleged date, time and place.
17. On careful perusal and analysis of the entire evidence, I find that there are no corroborative, consistent and sufficient evidence to make up the edifice of the prosecution case. Given the aforementioned facts and circumstances, it has to be concluded that the prosecution has failed to prove its case against the accused beyond reasonable doubt. Accordingly, the accused is given the benefit ANURAG Digitally signed by ANURAG THAKUR THAKUR Date: 2021.12.07 23:54:05 +05'30' FIR no. 217/2012 State v. Harish Kumar PS Timarpur 16 of 16 of doubt. Consequently, the accused Harish Kumar is acquitted of the offence punishable u/s 25 of the Act.
Announced in the open court today i.e. on 7th December, 2021 ANURAG Digitally signed by ANURAG THAKUR THAKUR Date: 2021.12.07 23:54:23 +05'30' (ANURAG THAKUR) METROPOLITAN MAGISTRATE -02 TIS HAZARI COURTS, DELHI This judgment consists of 16 pages and each and every page of this judgment is signed by me.
FIR no. 217/2012 State v. Harish Kumar PS Timarpur