Delhi District Court
State vs . Bharat Rawat on 25 November, 2022
IN THE COURT OF ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE (SOUTH EAST):SAKET
COURTS:NEW DELHI
Presided by : Ms. SONAM SINGH-I
State vs. Bharat Rawat
FIR No. 125/2022
Police Station : NFC
Under Section: 25 Arms Act
Date of institution : 01.04.2022
Date of reserving : 11.11.2022
Date of pronouncement : 25.11.2022
JUDGMENT
a) Serial number of the : 2961/2022
case
b) Date of commission of : 06.03.2022
offence
c) Name of the : Ct. Ram Kishan
complainant
d) Name, parentage and : Bharat Rawat, S/o Lt. Sh. Shiv
address of the accused Charan, R/o S-265/112, IG Camp,
Pahari No. 2, Taimoor Nagar,
New Friends Colony, New Delhi.
e) Offence complained of : Section 25/54/59 Arms Act
f) Plea of the accused : Accused Bharat Rawat pleaded
not guilty
State vs. Bharat Rawat
FIR No. 125/2022 PS:NFC Page No. 1 of 17
g) Final order : Acquitted
h) Date of final order : 25.11.2022
BRIEF FACTS AND REASONS FOR DECISION
OF THE CASE
1. Vide this judgment, the accused Bharat Rawat stands acquitted of the offence punishable under Section 25 Arms Act, 1959 (in short 'Arms Act') in this case for the reasons mentioned below :
CASE OF THE PROSECUTION
2. The case of the prosecution as unfolded by the police report under Section 173 of the Code of Criminal Procedure, 1973 (in short 'Cr.P.C') is that on 06.03.2022 at about 07:10 PM in front of Meera Bai Polytechnic, C.V. Raman Marg, New Delhi within the jurisdiction of PS NFC, the accused Bharat Rawat was found in possession of a buttondar knife without any license or permit in contravention of DAD notification of GNCT of Delhi and thereby committed an offence punishable U/s 25 Arms Act.
3. The investigation was done by the IO/ASI Bedi Ram, who filed the police report under Section 173 of the Cr.P.C. in respect of the offence punishable under Section 25 Arms Act.
State vs. Bharat Rawat FIR No. 125/2022 PS:NFC Page No. 2 of 17 COURT PROCEEDINGS
4. The learned predecessor of this court took cognizance upon the said police report on 01.04.2022 and issued production warrants against the accused as he was in judicial custody. On 12.05.2022 accused person was supplied with the copies of police report and documents.
CHARGE
5. Vide order dated 26.05.2022, this court framed the charge against the accused person for the offence punishable under Section 25 Arms Act, to which he pleaded not guilty and claimed trial.
ADMISSION AND DENIAL OF DOCUMENTS U/S 294 CrPC
6. On 26.05.2022, the accused admitted the following documents in proceedings conducted u/s 294 CrPC:
Sr. No. Exhibits/Mark Nature of Documents 1 Ex.A-1 Copy of FIR no. 125/2022, P.S. NFC
2. Ex. A-2 GD No. 52A
3. Ex.A-3 DAD Notification State vs. Bharat Rawat FIR No. 125/2022 PS:NFC Page No. 3 of 17
7. Thereafter the matter was listed for prosecution evidence on 08.06.2022 (I) Prosecution Witnesses:
8. In order to prove and substantiate its case, the prosecution in all has examined, three witnesses, namely:
Sr. No. Designation and Name of the Role in the present Witness case 1 PW1 HC Manoj Kumar Recovery witness 2 PW2 ASI Bedi Ram Investigating Officer 3 PW3 HC Ram Kishan Complainant (II) Documents on record :
9. The prosecution witnesses relied on the following documents:
Sr. No. Exhibits/Mark Nature of Documents
1. Ex.PW1/1 Sketch of knife
2. Ex.PW1/2 Site plan
3. Ex.PW1/3 Seizure memo
4. Ex.PW1/4 Disclosure Statement
5. Ex.PW1/5 Arrest Memo State vs. Bharat Rawat FIR No. 125/2022 PS:NFC Page No. 4 of 17
6. Ex.PW1/6 Personal search memo
7. Ex.PW2/1 Statement of the complainant/ Ct. Ram Kishan
8. Ex.PW2/2 Rukka
9. Ex.P-1 Knife(case property)
10. Thereafter, prosecution evidence was closed vide order dated 01.11.2022. The court will discuss the testimonies of the said witnesses later i.e. at the time of appreciation of evidence.
STATEMENT OF ACCUSED UNDER SECTION 313 Cr.P.C/DEFENCE OF THE ACCUSED
11. The statement of the accused U/s 313 CrPC was recorded on 05.11.2022, wherein he denied the entire evidence put to him. He stated that he has been falsely implicated in the present case and that he is innocent. The accused did not lead any evidence in his defence.
FINAL ARGUMENTS
12. The Court heard the final arguments on 11.11.2022.
ANALYSIS AND FINDINGS
13. I have heard the submissions of Ld. APP for the State as well as that of Ms. Kinnori Ghosh, Ld. Legal aid counsel for State vs. Bharat Rawat FIR No. 125/2022 PS:NFC Page No. 5 of 17 the accused. The court has also diligently gone through the charge-sheet, documents and the entire material on record.
14. In short, the case of the prosecution is that on 06.03.2022 at 07.10 PM, in front of Meera Bai Polytechnical, C.V.Raman Marg, New Delhi, the accused Bharat Rawat was found in possession of a buttoned (buttondar) knife in contravention of the notification issued by the Delhi Administration. In order to prove the charge against the accused, the prosecution was required to prove beyond reasonable doubt that there was recovery of the illegal arm (buttoned knife) from the possession of the accused and secondly, that such possession was illegal.
15. In this regard, it would be appropriate to refer to the DAD Notification No. F- 13/451/79- Home (G) dated 29.10.1980 issued by Sh. Nathu Ram, Deputy Secretary, Home (General), Delhi Administration (Delhi) which prohibits the acquisition, possession and carrying of spring actuated knives, Graridar, Buttondar knives or other knives which open or close with the any other mechanical devices with a blade of any size or folding knives with a sharp edged blade of 7.62 cm, or more in length and 1.72 cm, or more in breadth in Union Territory of Delhi.
State vs. Bharat Rawat FIR No. 125/2022 PS:NFC Page No. 6 of 17
16. In the light of the aforesaid, it is alleged that the accused was in conscious possession of a buttondar knife Ex.P1 in contravention of the aforesaid notification.
17. The court is of the opinion that the prosecution has failed in proving its case, which is apparent from the discrepancies put in the case of the prosecution. The discrepancies and defects in the case of the prosecution are discussed below.
NON-JOINDER OF PUBLIC WITNESSES:
18. In the present case, there is no independent public witness to corroborate the alleged recovery of the buttondar knife from the possession of the accused Bharat Rawat. HC (the then Ct.) Ram Kishan (PW-3) who is the complainant deposed that on 06.03.2022, he alongwith Ct. Manoj were on evening patrolling duty at Beat No.4. He deposed that during patrolling, when they reached at C.V.Raman Marg, near Meerabai Polytechnic College, at about 7.10 PM, they saw one person was coming from the side of Ring Road, Ashram Side and going towards Meerabai Polytechnic College. He stated that after seeing them, the person tried to run. He deposed that on suspicion they chased him for 10- 20 steps and apprehended him. He testified that he made cursory search of the accused and found one buttondar knife from the right pocket of his lowers. He stated that he informed regarding the State vs. Bharat Rawat FIR No. 125/2022 PS:NFC Page No. 7 of 17 apprehension of accused and recovery of buttondar knife to Police Station at about 07.19 PM. He deposed that thereafter IO ASI Bedi Ram came to the spot .He stated that the accused with recovered knife were handed over to IO. He deposed that the IO interrogated the accused who revealed his name as Bharat Rawat. He stated that thereafter IO conducted investigation. PW 3 HC Ram Kishan identified the accused in court and proved the case property/knife as Ex.P1.
19. It is pertinent to observe that during cross- examination, PW 3 HC Ram Kishan deposed that he asked some public persons to join the investigation but none agreed to join the same.
20. PW1 HC (Ct.) Manoj is the witness who had accompanied the complainant/PW3 HC (Ct.) Ram Kishan at the time of apprehension of accused and recovery of case property/knife. Regarding the non-joining of the public witnesses to the investigation, PW1 HC (Ct.) Manoj deposed during his cross examination that, public persons were coming and going at the time of recovery of knife. He further deposed that he had asked to public persons to join the search of accused, however, none agreed to join the investigation.
21. Further, PW2 IO ASI Bedi Ram deposed in his cross examination that there were no CCTV installed at the spot.
State vs. Bharat Rawat FIR No. 125/2022 PS:NFC Page No. 8 of 17 Further, deposed that he had asked public persons to join the investigation, but, no one agreed to join the same. He also deposed that he did not give any written notice to public persons to join the investigation. The IO/ASI Bedi Ram could have served the public witnesses with a notice in writing to join the police proceedings but the IO did not make sincere efforts in this regard. Further, PW 2 IO/ASI Bedi Ram could have also noted down the names and addresses of such public persons who were asked to join the investigation or taken any action against them.
22. The recovery of prohibited articles, arrest and search before an independent witness imparts authenticity and creditworthiness to the proceedings carried out by the police authorities. It also strengthens the case of the prosecution. Moreover, it acts as a safeguard against the arbitrary conduct or high handedness, if any, of the police officials. The absence of such a safeguard in the form of a public witness is to be seen with suspicion. Hence, in the absence of any joinder of any independent witness in the investigation, false implication of the accused by the local police in the present case cannot be ruled out.
23. The aforesaid observation of the Court is fortified by following observations by the Hon'ble apex court in the case of Hem Raj v. State of Haryana AIR 2005 SC 2110, it has been observed that:
State vs. Bharat Rawat FIR No. 125/2022 PS:NFC Page No. 9 of 17 "8. 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. Amongst the independent witnesses(Kapur) one who was very much in the know of things from the beginning was not examined by the prosecution.
9. Non-examination of independent witness by itself may not give rise to adverse inference against the prosecution. However, when the evidence of the alleged eyewitnesses raise serious doubts on the point of their presence at the time of actual occurrence, the unexplained omission to examine the independent witness would assume significance."
24. The aforesaid depositions of PW1 HC Manoj Kumar, PW2 IO ASI Bedi Ram and PW3 HC Ram Kishan, shows that they have failed to give any plausible explanation for non-joining of the public witnesses in the investigation despite their availability. This casts a serious doubt about the veracity of the entire prosecution case of the accused being in possession of the buttondar knife.
25. This Court is, however, conscious that the case of the prosecution cannot be thrown out merely on the sole ground of non-joining of public witnesses. The reason is that public witnesses generally avoid court related proceedings 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 State vs. Bharat Rawat FIR No. 125/2022 PS:NFC Page No. 10 of 17 prosecution version but there are other circumstances as well, as described below, which raise suspicion over the prosecution version.
OMISSION TO PREPARE HANDING OVER MEMO OF THE SEAL
26. The PW3 IO/ASI Bedi Ram remained silent during his deposition with regard to the preparation of any handing over memo of the seal used to seal the case property. In these circumstances, the possibility of tampering with case property cannot be ruled out. Even otherwise, the failure to prepare any such document for this purpose also leads to a missing link in the entire series of investigation raising doubt over the manner of investigation conducted.
FORMALITY IN PERSONAL SEARCH OF ACCUSED NOT COMPLIED WITH
27. The testimony of the complainant/PW-3 HC (Ct.) Ram Kishan, who had conducted the cursory search of the accused, is silent as to whether he had offered his search to the accused before searching him. In the absence of any affirmative testimony, it cannot be assumed that the police official, who had conducted the personal/cursory search of the accused, had offered his search to the accused before searching him.
State vs. Bharat Rawat FIR No. 125/2022 PS:NFC Page No. 11 of 17
28. The Hon'ble High Court of Orissa in the judgment of Rabindranath Prusty v. State of Orissa, 1984 Cri L. J. 1392, observed the importance of search officer to give their search before searching an accused in order to avoid implanting of evidence. The relevant paragraph in this regard is reproduced below:
"10. The next part of the prosecution case is relating to the search and recovery of Rs. 500/- from the accused. One of the formalities that has to be observed in searching a person in that the searching Officer and others assisting him should give their personal search to the accused before searching the person of the accused. ... This rule is meant to avoid the possibility of implanting the object which was brought out by the search. There is no evidence on record whatsoever that the raiding party gave their personal search to the accused before the latter's person was searched. Besides the above, it is in the evidence of P. Ws. 2 and 5 that the accused wanted to know the reason for which his person was to be searched and the reason for such search was not intimated to the accused. No independent witness had witnessed the search. In the above premises, my conclusion is that the search was illegal and consequently the conviction based thereon is also vitiated."
29. In the present case, the prosecution has not been able to establish that the police official, who searched and allegedly State vs. Bharat Rawat FIR No. 125/2022 PS:NFC Page No. 12 of 17 recovered the alleged knife from the possession of the accused, did offer his personal search before conducting the search of the accused. As noted by the Hon'ble High Court of Orissa above, the possibility of the said knife, which was brought out by the search, having been planted on the accused cannot be ruled out. Thus, this Court is reluctant in relying upon the story of the prosecution.
DUTY RECORD/ DEPARTURE ENTRY OF RECOVERY WITNESS NOT PROVED
30. The present case rests entirely on the alleged recovery of alleged knife from the possession of the accused at the relevant time by a police official, the complainant, namely HC ( the then Ct.) Ram Kishan and recovery witness HC (the then Ct.) Manoj Kumar. As public persons were not joined in the investigation, it becomes important for the prosecution to show the presence of police officials in the concerned area at the relevant time. Thus, in this regard, the duty record and departure entry of the said recovery witnesses assume significant importance.
31. As per, Chapter 22 Rule 49 of Punjab Police Rules, 1934, the police officials are under a mandate to make entries as regards the hour of whenever they arrive or leave the police station for their duty. The said rule is reproduced below:
State vs. Bharat Rawat FIR No. 125/2022 PS:NFC Page No. 13 of 17 "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 prior to the departure of the officer concerned and shall be attested by the latter personality by signature or seal. Note: The term Police Station will include all places such as Police Lines & Police Posts where Register No. II is maintained."
32. Further, in the judgment in a case titled as Rattan Lal versus State 1987 (2) Crimes 29, the Hon'ble Delhi High Court held that in case the investigating agency is violative of a law provision, then the court should view the matter with suspicion. The relevant paragraph of the said judgment is reproduced below:
"If the investigating agency deliberately ignores to comply with the provisions of the Act the courts will have to approach their action with reservation. The matter has to be viewed with suspicion if the provisions of 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 entry creates a reasonable doubt in the prosecution version and attributes oblique motive on the part of the prosecution."
State vs. Bharat Rawat FIR No. 125/2022 PS:NFC Page No. 14 of 17
33. In view of the aforesaid legal provision and judgment, it is seen that the record of DD entries of the PW3 complainant/ HC (Constable) Ram Kishan and recovery witness PW1 HC (Ct.) Manoj Kumar are not placed on record. There is only one GD no. 0052A dated 06.03.2022 on record which is Ex.A3. However, this is only in reference to the accused being apprehended at the spot with a buttondar knife. Further , the prosecution did not file any documentary evidence to substantiate the fact that the two constables who apprehended the accused were on patrolling duty. Proof of the said record is indispensable as the present case rests solely on the alleged recovery made by the aforesaid police officials. In view of the fact that no DD entry has even been placed on record to show the presence of recovery witnesses/ police officials at the spot at the relevant time, creates a reasonable doubt in the prosecution version.
EFFORTS REGARDING SOURCE OF KNIFE
34. There is no iota of evidence regarding the efforts made by the police officials to find out about the source from where buttondar knife was arranged for by the accused.
State vs. Bharat Rawat FIR No. 125/2022 PS:NFC Page No. 15 of 17 CONTRADICTIONS IN THE TESTIMONY OF PROSECUTION WITNESSES
35. There are serious contradictions in the testimony of prosecution witnesses on various aspects. PW1 HC ( the then Ct.) Manoj Kumar in his examination in chief failed to disclose some material facts and with permission of court ld. APP for state, he was cross examined. During his cross examination by ld. APP for state, he admitted the preparation of certain documents by the IO. He deposed the total length of knife as 23.8 cm, blade of 11 cm and length of handle of knife about 10.8 cm, whereas PW2 ASI/IO Bedi Ram in his examination in chief deposed the total length of knife as 23.8 cm, length of blade as 11 cm and that of handle 12.8 cm.
36. From the aforesaid testimonies, it is apparent that there is a material contradiction between the versions of the said prosecution witnesses pertaining to the measurement/identification of knife allegedly recovered from the possession of accused. Hence, the prosecution's version regarding recovery of the alleged knife from the right pocket of the lower worn by the accused on the spot has not been proved.
CONCLUSION
37. The burden of proof on the prosecution is to prove the case by leading convincing evidence to prove the guilt of accused State vs. Bharat Rawat FIR No. 125/2022 PS:NFC Page No. 16 of 17 beyond reasonable doubt. The accused cannot be convicted on the basis of mere probabilities or presumptions. Suspicion howsoever grave may be, cannot take place of proof. Every benefit of doubt goes in favour of accused.
38. In view of the above discussion, since the prosecution has miserably failed to prove its case beyond all shadow of reasonable doubts,the accused Bharat Rawat stands acquitted for the offence U/sec 25 Arms Act.
39. Case property be forfeited to the state, to be destroyed after the expiry of the period of appeal or revision, if any.
40. File be consigned to records after due compliance.
Dictated and announced in the open Court on 25.11.2022 (SONAM SINGH-I) ACMM (SOUTH EAST):
SAKET COURTS :NEW DELHI State vs. Bharat Rawat FIR No. 125/2022 PS:NFC Page No. 17 of 17