Delhi District Court
State vs Sachin on 22 November, 2022
IN THE COURT OF SH. MAYANK AGGARWAL, MM-09
CENTRAL DISTRICT, TIS HAZARI DISTRICT COURTS, DELHI
State vs Sachin
FIR NO. : 297/19
U/S : 25/54/59 Arms Act
PS : Burari
JUDGMENT
a) Case No : 11345/2019
b) Date of institution of the case : 06/09/2019
c) Date of commission of offence : 07/08/2019
d) Name of the complainant : HC Rahul Tyagi
e) Name & address of the Accused : Sachin
R/o Kh. No 15/22, Gali No 2, D Block,
Harit Vihar, Kamal Pur Majra, Delhi.
f) Charge : 25/54/59 Arms Act
g) Plea of the accused : Pleaded not guilty
f) Charge : 25/54/59 Arms Act
g) Plea of the accused : Pleaded not guilty
h) Arguments heard on : 18.11.2022
I) Date of reservation of order : 18.11.2022
i) Final order : Acquittal
j) Date of Judgment : 22.11.2022
BRIEF STATEMENT OF REASONS FOR DECISION
1. Briefly stated, accused Sachin has been sent to face trial with the allegations that on 07/08/2019 at about 09:40 PM near 100 Foota road, Shalimar Palace, Burari accused was found in possession of a buttoner Knife having blade length of 11.7cm, handle length of 12.9 cm, width of the blade being 3 cm and width of the handle being 3.4 cm and total length of the life being 24.6 cm which is in contravention of DAD notification dated 29.10.1980 and accordingly an FIR No 297/2019 u/s 25/54/59 Arms Act was registered at PS Burari and investigation was taken up.
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2. Upon completion of investigation charge sheet U/s 173 Cr.P.C. was filed on behalf of the IO and the accused person was consequently summoned. Thereafter, charge u/s 25/54/59 Arms Act was framed against the accused to which he pleaded not guilty and claimed trial.
3. In order to substantiate the allegations, prosecution examined 4 (Four) witnesses.
PW1 HC Rahul Tyagi (Complainant), who along with PW2 Ct. Hakikat and PW3 Ct. Jai Bhagwan, allegedly caught the accused with buttondar knife while on picket duty. Further PW1 also prepared the sketch of the knife, seizure memo and the rukka and got the FIR registered by sending the Rukka to the PS through PW3. Further, PW4 ASI Babu Lal(IO) was also examined, who allegedly reached to the spot after the registration of the FIR and carried out further proceedings (i.e. recording of disclosure statement of accused, arresting the accused, preparation of arrest and personal search memo of the accused and preparation of site plan, etc.). Thereafter, the prosecution evidence was closed.
3. Following documents were tendered during the evidence of these witnesses -
(i) PW-1/A - Rough Sketch of the knife
(ii) PW-1/B - Seizure Memo
(iii) PW-1/C - Tehrir
(iv) PW-1/D - Site Plan
(v) PW-1/E - Disclosure statement
(vi) PW-1/F - Arrest Memo
(vii) PW-1/G - Personal Search Memo
(viii) EX.P1 - Case Property
5. Apart from these documents, the accused admitted the genuineness of the following documents u/s 294 Cr.PC, without admitting the content of the same. These documents were exhibited as under -
SC No. 11345/2019 FIR No. 297/2019 PS Burari State VS Sachin 2 of 8 (I) Ex. AD/A1 - FIR
(ii) Ex. AD/A2 - DD entry 35A
(iii) Ex. AD/A3 - Certificate u/s 65B
(iv) Ex. AD/A4 - DD entry 70B
6. Statement of accused was recorded u/s 313 Cr.PC., wherein all the incriminating evidence was put to the accused, to which he stated that he has been falsely implicated in this case and recovery of case property has been falsely implanted upon him. Further, the accused did not wish to lead defence evidence.
7. Final Arguments heard. Case file perused.
8. Short point for determination before the court is as under -
"Whether on 07/08/2019 at about 09:40 PM near 100 Foota road, Shalimar Palace, Burari accused was found in possession of a buttoner Knife having blade length of 11.7cm, handle length of 12.9 cm, width of the blade being 3 cm and width of the handle being 3.4 cm and total length of the life being 24.6 cm which is in contravention of DAD notification?"
7. It is argued by Ld. APP for the state that from the ocular and documentary evidence on record, prosecution has proved beyond reasonable doubt that accused was found in possession of the buttoner Knife of the specification which is in contravention of the DAD notification and submitted that accused be convicted of the offence charged.
8. Per contra, it is argued by the Ld. Counsel for the accused that accused is completely innocent and recovery of case property has been falsely implanted upon him. It is further submitted by Ld. Counsel that non joinder of public witness despite availability cast shadow of doubt on prosecution story. It is further argued by the the Ld. Counsel that there are material contradictions in the r=testimonies given by the witnesses and accordingly submitted that the prosecution has miserably failed to prove its case beyond reasonable doubt and therefore, the accused is entitled to be acquitted of the alleged offence.
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9. I have heard the rival submissions and have also carefully gone through the entire material available on record and evidence led on behalf of the prosecution. My findings on the point for determination and brief reasons for the same are now being discussed in following paragraphs.
10. In present case, prosecution was duty bound to prove the possession of the alleged knife with accused. Same is sought to be proved by the recovery memo and testimony of the witnesses. But the manner of conducting inquiry, seizure and search etc. on the spot at the time of arrest of the accused and alleged recovery of weapon, makes the prosecution version highly doubtful. Incident is stated to have happened at about 9:30 PM and it is evident from the testimony of PW-1 & PW-3 that accused was apprehended alongwith the alleged unauthorised weapon at public place ( a public road where PW1, PW2 and PW3 were checking the vehicles going form there), but still no public independent person was cited as a witness in this case. In fact both PW1 and PW3 have stated in their testimony that some passers by were requested to join, but none of them agreed. But the witnesses did not disclose the names of any such witnesses. Admittedly, no notice was served upon these witnesses, when they refused to join the investigation. The witnesses have failed to bring anything on record, if there was any paucity of time due to which no such notice could be served. Therefore, merely making bald claim that some passers by were requested to join but none of them agreed, does not inspire confidence at all, looking at overall facts and circumstances of the case. Therefore it is clear that sincere efforts were not made to join independent witnesses despite their availability which causes a serious dent in the story of the prosecution and all these facts makes the alleged recovery very doubtful.
11. Moreover as regards the presence of the public persons at the spot and the alleged attempt to make them join the investigation, the prosecution witnesses are at considerable variance. Where PW1 and PW3 have stated that public persons were present and attempts were made to join the investigation PW2 and PW4 have SC No. 11345/2019 FIR No. 297/2019 PS Burari State VS Sachin 4 of 8 denied the presence of any public persons at the spot. Similarly, as regards the police persons who took the accused to the hospital for medical examination post arrest of the accused, the prosecution witness are at variance.Thus, the prosecution case as has been set up becomes highly doubtful.
12. Regarding the importance of joining independent witness during investigation in a case like the present one, reliance may be placed on Anoop Joshi Vs. State 1999(2) C.C. Cases 314 (HC), wherein, Hon'ble High Court of Delhi has observed as under:
"...18.It is repeatedly laid down by this court that in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evident that no such sincere efforts have been made, particularly when we find that shops were open and one or two shopkeepers 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".
13. Similarly, in Nanak Chand Vs. State of Delhi reported as DHC 1992 CRI LJ 55 it is observed as under:-
"...that the recovery is proved by three police officials who have differed on who snatched the Kirpan from the petitioner and at what time. The recovery was from a street with houses on both sides and shops nearby. And, yet no witness from the public has been produced. Not that in every case the police officials are to be treated as unworthy of reliance but their failure to join witnesses from the public especially when they are available at their elbow, may, as in the present case, cast doubt. They have again churned out a stereotyped version. Its rejection needs no Napoleon on the Bridge at Arcola".
14. Also, in State of Punjab v. Balbir Singh, AIR 1994 SC 1872, the Hon'ble Supreme Court held as under:
"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 light of the fact SC No. 11345/2019 FIR No. 297/2019 PS Burari State VS Sachin 5 of 8 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]
15. Considering the aforesaid observations made by the Higher Courts, the omissions / failure on the part of investigating agency to join independent public witnesses create reasonable doubt in the prosecution story. Further, considering facts and circumstances of the present case in the light of ratio in State of Punjab v. Balbir Singh, AIR 1994 SC, there was no lack of time and opportunity to associate some independent witnesses with the search and strictly comply with the provisions of Code of Criminal Procedure.
16. Furthermore, in present case, Ex. PW1/A and EX. PW1/B I.e the rough sketch of the knife and the seizure memo was prepared prior to the registration of the FIR. PW-1 as clearly stated in his examination in chief that he prepared the Rough sketch and the seizure memo first and thereafter he prepared the tehrir i.e Ex. PW1/C which was subsequently sent to PS through PW3 for getting the FIR registered. However, Ex. PW1/B and Ex. PW1/C contains the FIR No. which suggests that the same was prepared after the registration of FIR.When documents are prepared before registration of FIR and it contains the FIR number, an 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 doubt is to be given to the accused. In such circumstances fairness of investigation is doubted. Reliance can be placed on the judgment of Giri Raj V/s State 83 (2000) DLT 201, wherein it was held that "5. The prosecution has not offered any explanation whatsoever as to under what circumstances number of the FIR Ex. PW2/A had appeared on the top of the said documents, which were allegedly on the spot before its registration. This SC No. 11345/2019 FIR No. 297/2019 PS Burari State VS Sachin 6 of 8 gives rise to two inferences that either the FIR (Ex. PW 2/A) was recorded prior to the alleged recovery of the contraband or number of the said FIR was inserted in these documents after its registration. In both the situations, it seriously reflects upon the veracity of the prosecution version and creates a good deal of doubt about recovery of the contraband in the manner alleged by the prosecution. That being so, the benefit arising out of such a situation must necessarily go to the appellant".
17. Further, no seal handing over memo is on record. Hence, considering the legal position, the benefit of doubt should be given to the accused, as tampering with case property in such a scenario cannot be ruled out. The reliance is placed on the judgment of Ramji Singh Vs. State of Haryana 2007 (3) R.C.C. (Criminal) 452, wherein it is held that-
"...7. The very purpose of giving seal to an independent person is to avoid tampering of the case property. It is well settled that till the case property is not dispatched to the forensic science laboratory, the seal should not be available to the prosecuting agency and in the absence of such a safeguard the possibility of seal, contraband and the samples being tampered with cannot be ruled out."
18. Similarly, Hon'ble Delhi High Court in Safiullah v. State, 1993 (1) RCR (Criminal) 622, held that -
"10. 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."
19. From the aforesaid discussion, it is very clear that the manner in which the inquiry, seizure and search etc. has been conducted on the spot at the time of alleged recovery of weapon, it makes the prosecution version highly doubtful. In a criminal trial, the onus remains on the prosecution to prove the guilt of accused beyond all reasonable doubts and benefit of doubt, if any, must necessarily go in favour of the accused.It is for the prosecution to travel the entire distance from may have to must have. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused.
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20. Therefore, in view of the discussions made herein above and the facts and circumstances of the present case, in considered opinion of the court, the prosecution has failed to prove the guilt of the accused beyond reasonable doubt. Hence, accused Sachin stands acquitted of the offence under section 25/54/59 of Arms Act, he has been charged with. Ordered accordingly.
(Announced in open Court on 22nd of November, 2022 ) (MAYANK AGGARWAL) MM-09/Central/THC The judgment contains 08 pages and all the pages bears my signatures.
(MAYANK AGGARWAL) MM-09/Central/THC SC No. 11345/2019 FIR No. 297/2019 PS Burari State VS Sachin 8 of 8