Delhi District Court
State vs Rahul on 9 December, 2023
THE COURT OF MS CHAKITA SRIVASTAVA, KARKARDOOMA
COURTS/SHAHDARA, DELHI.
CR Cases 1366/2021
State Vs. Rahul
FIR No. 145/2018
PS: GTB Enclave
U/S: 25/54/59 Arms Act
ID number of the case : DLSH02-002626-2021
Date of commission of offence : 20.04.2018
Date of institution of the case : 20.03.2021
Name of the complainant : Ct. Adesh
Name of accused and address : Rahul
S/o Sh. Vinod Singh
R/o H.No. B-4/473, Nand Nagari,
North-East, Delhi.
Offence complained of or proved : 25 Arms Act
Plea of the accused : Pleaded not guilty
Final order : Acquitted
Date of judgment : 09.12.2023
FIR No. 145/2018 (PS GTB Enclave) State Vs. Rahul Page No. 1 of 7
JUDGMENT
FACTS OF THE CASE:
1. The allegations against the accused is that he was found in possession of one buttondar Knife on 20.04.2018 at about 10:45 p.m. in front of Tahirpur Village, having total length of Knife 24 cm, blade length 10.5 cm, handle length 13.5 cm without any license, in contravention of DAD notification No. F/13/451/179-Home(G) dated 29.10.1980. Accordingly, he stands charged for offence u/s 25 Arms Act.
INVESTIGATION AND APPEARANCE OF ACCUSED PERSON
2. After registration of FIR, the investigation officer (herein after IO) undertook the investigation and on culmination of the same, the charge-sheet was filed against the accused Rahul. The cognizance of the said offence was taken on 20.03.2021 and the copy of the charge-sheet was provided to the accused on 20.09.2022 as per section 207 of Criminal procedure Code, 1973 (herein after Cr.P.C) and on finding the prima facie case against the accused person, the charge Under Section 25 Arms Act was framed against accused Rahul on 17.11.2022. The accused pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
3. During the trial, the prosecution had led the following oral and documentary evidence against the accused to prove its case beyond reasonable doubt.
FIR No. 145/2018 (PS GTB Enclave) State Vs. Rahul Page No. 2 of 7 ORAL EVIDENCE PW1 HC Nitin Baisla- Police witness PW2 HC Adesh Kumar - complainant / police witness PW3 SI Girdhari Singh - Police witness / First IO PW4 MHC(M) PW5 ASI Parmendra - Second IO DOCUMENTARY EVIDENCE FIR Ex.P1 DD No. 28A & 79B, both dated 20.04.2018 Ex.P2(colly) Certificate u/s 65B of Indian Evidence Act. Ex.P3 DAD Notification Ex.P4 Rough sketch of Knife Ex.PW1/A Seizure memo of Knife Ex.PW1/B Rukka Ex.PW1/C Site Plan Ex.PW1/D Arrest memo of accused Ex.PW1/E Personal search memo Ex.PW1/F Disclosure statement of accused Ex.PW1/G Depositing of case property at Malkhana Ex.PW4/A
4. The testimony of prosecution witnesses are discussed herein under:
i. PW1 HC Nitin Baisla had stated that he was on emergency duty alongwith ASI Girdhari on 20.04.2018 when he received the DD entry FIR No. 145/2018 (PS GTB Enclave) State Vs. Rahul Page No. 3 of 7 No. 28A regarding apprehension of one person with illegal knife by Ct. Adesh opposite Tahirpur Village near CNG Pump, Delhi. Thereupon, he alongwith ASI Girdhari went to the spot where they met Ct. Adesh, Ct. Nandu and ASI Krishan Pal alongwith the accused. Accused was correctly identified by the witness. ASI Krishan Pal produced the knife to ASI Girdhari. Thereafter, ASI Girdhari prepared the rough sketch of the knife, seized and sealed the same with seal of 'GS'. Seal was handed over to him. Thereafter, rukka was prepared and was handed over to him for registration of FIR. He alongwith Ct. Adesh came to the spot alongwith original rukka and copy of FIR. The site plan was prepared. Accused was arrested and personally searched. His disclosure statement was recorded. The case property was correctly identified by the witness.
In his cross-examination, he had stated that the public persons were asked to join the investigation, however, they had left without disclosing their names and addresses. He further stated that he does not remember the exact time at which case property was seized or the exact time on which accused was arrested. He further stated that it is wrong to suggest that accused was apprehended after he was stopped at around 9:45 p.m. when they were playing loud music in the car and he was not able to give the bribe.
ii. PW2 HC Adesh has deposed on similar terms as PW1. In his cross-
examination, he further stated that no videography or photography was done at the spot of incident despite the fact that they were having the smart phones.
iii. PW3 SI Girdhari had stated on similar terms as PW1. In his cross-
examination, he further stated that there was a residential area at around FIR No. 145/2018 (PS GTB Enclave) State Vs. Rahul Page No. 4 of 7 100 meters from the spot of incident, however, no persons from such residential area were asked to join the investigation.
iv. PW4 MHC(M) proved the depositing of case property in Malkhana.
v. PW5 ASI Parminder had stated that on 01.03.2021 he was handed over the case of the present case and completion of investigation, the charge- sheet was filed.
5. Thereafter, PE was closed. Statement of accused u/s 313 Cr.P.C. was recorded on 02.11.2023 wherein, the accused stated that he was innocent and has committed no offence. He has been falsely implicated by the police in the present case as he has failed to give the bribe to the police official after he was apprehended for playing the loud music in the car and nothing was recovered from him. Accused stated that he does not want to lead DE.
6. I have perused the record and heard the arguments. Ld. APP for the State has argued that material on record clearly points towards guilt of the accused. Ld. Counsel for the accused has argued that no public witness has been examined by the prosecution and this alone creates doubt over the prosecution's version. He has further argued that the evidence on record is unreliable and hence accused should be acquitted.
7. The prosecution has also not been able to explain the absence of public witnesses. It is not the case of the prosecution that the place at which the accused was apprehended was a secluded place or that the accused was apprehended at odd hours, infact as per the version of prosecution 4-5 public witnesses were asked to join the investigation who left giving reasonable FIR No. 145/2018 (PS GTB Enclave) State Vs. Rahul Page No. 5 of 7 excuses and the notice was not served upon them. 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 police officer can act 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 afterthought and is not worthy of credence. All these facts taken together make the prosecution case highly doubtful.
In Ritesh Chakravarty Vs. State 2006 (4) RCR (criminal) 480 (SC), it has been held that where no efforts have been made to join independent witnesses despite availability, the case of the prosecution is doubtful. 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 evident 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".
In the present case also, admittedly the independent witnesses were available at the time of recovery, but they refused to join in the investigation. However, the IO has not taken any action against them which casts a doubt on the case of prosecution.
FIR No. 145/2018 (PS GTB Enclave) State Vs. Rahul Page No. 6 of 7 In the present case, the seal has not been handed over to the independent person from which the possibilities of tampering the case property can also not be ruled out.
Further, in the present case, it is admitted that the police officials were having the smart phones at the spot of incident with them, however, no videography or photography of the incident was done by them. Which also creates the doubt in the case of the prosecution as the police officials had failed to use the smart technologies available with them in today's world.
8. It is cardinal principle of criminal jurisprudence that an accused is presumed to be innocent. The burden lies on the prosecution to prove the guilt of accused beyond reasonable doubt. The prosecution is under a legal obligation to prove each and every ingredient of offence beyond any doubt, unless otherwise so provided by any statute. This general burden never shifts, it always rests on the prosecution.
9. In the light of aforesaid discussion, it cannot be said the prosecution has been able to prove its case beyond reasonable doubt. This being the scenario, benefit of doubt has to accrue in favour of accused. Resultantly accused Rahul is acquitted of offence u/s 25 Arms Act.
File be consigned to Record Room after due compliance.
Announced in the open court
on dated : 09.12.2023 (Chakita Srivastava)
Metropolitan Magistrate-01 (SHD)
Karkardooma Court/Delhi
FIR No. 145/2018 (PS GTB Enclave) State Vs. Rahul Page No. 7 of 7