Delhi District Court
State vs . Vicky on 18 October, 2022
IN THE COURT OF MS MANSI MALIK,
METROPOLITAN MAGISTRATE-03, NORTH WEST,
ROHINI COURTS, DELHI
Cr. Case No. 4548/22
FIR No. : 300/2022
P.S. : Raj Park
State Vs. Vicky
U/s. 25 Arms Act
State
v.
Vickey @ Pardeep
S/o Sh. Dharam Pal
R/o B-822, Mangolpuri, Raj Park,
Outer District, Delhi.
Date of institution of case : 13.04.2022
Date of reserving the judgment : 08.09.2022
Date of pronouncement of judgment : 18.10.2022
JUDGMENT
1. S. No. of the Case: 4548/22 2. Date of Commission of Offence: 16.02.2022 3. Date of institution of the case: 13.04.2022 4. Name of the complainant: Ct. Danveer State vs. Vicky @ Pardeep FIR no.300/22 PS Raj Park Page No. 1/15 Digitally signed by MANSI MANSI MALIK MALIK Date: 2022.10.18 16:14:49 +0530 5. Name of the accused: Vicky @ Pardeep 6. Offence complained or proved: U/s 25 Arms Act 7. Plea of Accused: "Not Guilty" 8. Final Order: Acquitted 9. Date of Final Order: 18.10.2022 BRIEF FACTS AND REASONS FOR DECISION
1. Stated succinctly, the facts germane for the case of the prosecution are that on 16.02.2022, at about 11.35 am at C-Block, near swimming pool, Mangolpuri, Delhi within the jurisdiction of PS Raj Park the accused was found in possession one buttondar actuated knife in contravention to the Section 25 Arms Act and was subsequently charged for offences under sec- tion 25 Arms Act.
2. The copy of charge sheet and relevant documents was supplied to the ac- cused in compliance of Section 207 of Code of Criminal Procedure, 1973 (hereinafter referred to as Cr.PC).
3. Prima facie case was made out and charge for offence punishable under Section 25 Arms Act was framed on 06.05.2022 to which the accused pleaded not guilty and claimed trial. Thereafter, the matter was fixed for recording of prosecution evidence.
4. In order to substantiate the allegations, the prosecution examined 03 witnesses. At the onset it would be appropriate to have glance at the gist of deposition made by the witnesses:
State vs. Vicky @ Pardeep FIR no.300/22 PS Raj Park Page No. 2/15Digitally signed by MANSI MANSI MALIK Date:
MALIK 2022.10.18 16:14:56 +0530
5. PW-1 HC Danveer during his deposition deposed that on 16.02.2022, he was posted as Ct. at PS Raj Park and he was on patrolling duty with Con- stable Ghanshyam and his duty hours were 4:00 PM to 12:00 Midnight and they were performing vehicle checking duty at C- Block near Swimming pool Mangolpuri. He further deposed that at about 11.35 PM one person was coming on Bike from the side of Pappu Di Hatti. He further deposed that when they indicated him to stop, he took a U-turn and started running away from them. He further deposed that they chased him and they appre- hended the rider and inquired about his name and he revealed his name as Vicky @ Pardeep. PW-1 further deposed that they asked him to show the documents regarding the scooty but he could not produce any document and when they searched the accused then buttondar knife was taken out of his right pocket of wearing pant. and thereafter, he informed the PS. He fur- ther deposed that IO HC Sandeep Kumar came on the spot and accused along with buttoned knife and bike were handed over to IO. He further de- posed that thereafter, IO recorded his statement which is exhibited as Ex. PW-1/A. He further deposed that IO prepared sketch plan of the knives prior to their seizure which is Ex. PW1/B. He further deposed that IO sealed the knife by placing it in plastic transparent box by sealing it with medical tape and put the seal of "SK" and seized the same vide seizure memo already Mark A and now Ex. PW1/C. He further deposed that after that, the aforesaid Bike was also seized vide memo already Ex. PW-1/D. He further deposed that thereafter, IO prepared rukka and sent him to police station along with rukka for lodging of FIR. He further deposed that after getting the case registered he came back to the spot with copy of FIR, origi- nal rukka and handed over it to the IO. He further deposed that IO prepared site plan at their instance which is Ex. PW-1/E. He further deposed that thereafter, accused person was arrested vide arrest and personal search State vs. Vicky @ Pardeep FIR no.300/22 PS Raj Park Page No. 3/15 Digitally signed by MANSI MANSI MALIK Date:
MALIK 2022.10.18 16:15:02 +0530 memo Ex. PW-I/F and Ex.PW-1/G. He further deposed that disclosure statement of accused Vicky @ Pardeep was also recorded by the IO and the same is Ex. PW-1/H. He further deposed that thereafter, they came at PS along with accused and case property and IO recorded the statement of other witnesses also. This witness correctly identified the accused as well as the case property in Court which is Ex. P-1. PW-1 was duly cross exam- ined by the Ld. LAC for the accused.
6. PW-2 HC Ghanshyam, during his deposition, deposed that on 16.02.2022, he was posted as Ct. at PS Raj Park and he was on patrolling duty with Constable Danveer. He further deposed that his duty hours were 4:00 PM to 12:00 Midnight, and that they were performing vehicle check- ing duty at C- Block near Swimming pool Mangolpuri. He further deposed that at about 11.35 PM one person was coming on Bike from the side of Pappu Di Hatti. He further deposed that they indicated him to stop, but he took a U-turn and started running away from them. He further deposed that they chased him and Ct. Danveer apprehended the rider. He further deposed that they inquired the rider of his name and the rider revealed his name as Vicky @ Pardeep. He further deposed that they asked him to show the doc- uments regarding the scooty but he could not produce any document. He further deposed that when accused person was searched then buttondar knife was taken out of his right pocket of wearing pant and thereafter, Ct. Danveer informed the PS. He further deposed that IO HC Sandeep Kumar came on the spot and accused along with buttoned knife and bike were handed over to IO. He further deposed that thereafter, IO recorded statement of Ct. Danveer. He further deposed that IO had prepared sketch plan of the knife prior to their seizure and the same is Ex PW-1/B. He fur- ther deposed that IO sealed the knife by placing it in plastic transparent box by sealing it with medical tape and put his seal of "SK" and seized the same State vs. Vicky @ Pardeep FIR no.300/22 PS Raj Park Page No. 4/15 Digitally signed by MANSI MANSI MALIK Date:
MALIK 2022.10.18 16:15:08 +0530 vide seizure memo already Mark A and already Ex. PW1/C. He further de- posed that after that, the aforesaid Bike was also seized vide memo Ex. PW-1/D and thereafter, IO prepared rukka and sent Ct. Danveer to police station along with rukka for registration of FIR and after getting the case registered he came back to the spot with FIR, original rukka and handed over the same to the IO. He further deposed that IO had prepared site plan at their instance Ex. PW-1/E. He further deposed that thereafter, accused person was arrested vide arrest and personal search memo already Ex. PW- 1/F and Ex.PW-1/G. He further deposed that disclosure statement of accused Vicky @ Pardeep Ex. PW-1/H was also recorded by the IO and thereafter, they came at PS along with accused and case property. He fur- ther deposed that IO had recorded his statement and other witnesses. This witness correctly identified the accused and case property in the Court which is Ex. P-1. PW-2 was duly cross examined by the Ld. LAC for the accused.
7. PW-3 HC Sandeep during his deposition, deposed that on 16.02.2022, he was posted at PS Raj Park as HC and on that day, he received DD No. 84A regarding the apprehending of the accused alongwith illegal buttondar knife at C-Block, near Swimming pool, Mangolpuri, Delhi. He further deposed that copy of the aforesaid DD is Ex. PW-3/A. He further deposed that thereafter he reached at the spot and met Ct. Danveer and Ct Ghanshyam who handed over the custody of accused Vickey @ Pardeep alongwith the case property. He further deposed that Bike recovered from the possession of accused was also handed over to him. He further deposed that he recorded the statement of Ct. Danveer which is already Ex. PW-1/A. He further deposed that thereafter he requested 4-5 passersby to join the investigation but none of them agreed and went away without disclosing their names and addresses, however, no notice was State vs. Vicky @ Pardeep FIR no.300/22 PS Raj Park Page No. 5/15 Digitally signed by MANSI MANSI MALIK MALIK Date:
2022.10.18 16:15:14 +0530 served upon the public persons who refused to join the investigation due to paucity of time. He further deposed that thereafter, he prepared the sketch of recovered knife which is Ex. PW-1/B and thereafter, he prepared pulinda of the recovered knife by placing it in transparent plastic box and with the help of doctor tape and duly sealed the same with the seal of SK and seized the same vide seizure memo Ex. PW-1/C. He further deposed that thereafter he seized the motorcyle bearing no. DL8SCT0589 vide seizure memo Ex. PW 1/D. He further deposed that seal after use was handed over to Ct. Danveer and therafter he prepared rukka Ex. PW-3/A and send Ct. Danveer for registration of the case. He further deposed that after registration of the case, Ct. Danveer returned back to the spot and handed over the copy of FIR and original rukka to him. He further deposed that he prepared site plan Ex. PW-1/E. He further deposed that thereafter accused was arrested vide arrest and personal search memo Ex. PW-1/F and Ex. PW-1/G. He further deposed that he had also recorded disclosure statement of accused which is Ex. PW-1/F And then, they alongwith the case property and accused came to PS. He further deposed that case property was deposited in the malkhana and he recorded the statement of witnesses and accused was produced before the concerned court from where he was sent to JC. He further deposed that he prepared chargesheet and placed on record the DAD Notification dated 29.10.1980 Ex. PW-3/B. PW-3 was duly cross examined by the Ld. LAC for the accused.
8. The accused also admitted the genuineness of FIR no. 300/22, PS Raj Park i.e Ex. P-1, Certificate u/s 65-B Indian Evidence Act regarding the aforesaid FIR i.e. Ex. P-2, GD No. 84A dated 16.02.2022 which Ex. PW- 3/A, the Endorsement on Rukka which is Ex. P-3, Entries in Register no. 19 regarding the present case i.e. Ex. P-4 and DAD Notification dated 29.10.1980 i.e. Ex. PW-3/B without admitting the contents of the same. In State vs. Vicky @ Pardeep FIR no.300/22 PS Raj Park Page No. 6/15 Digitally signed by MANSI MANSI MALIK Date: MALIK 2022.10.18 16:15:19 +0530 view of the above, witnesses mentioned at serial no. 3, 4, 5 and 6 in the list of prosection witnesses were dropped. Prosecution evidence was thereafter closed on 05.08.2022 and the accused was examined u/s 313 Cr.P.C. on 08.09.2022 wherein he opted not to lead DE and therefore the matter was fixed for final arguments.
9. The Court has carefully perused the case record and has heard arguments advanced by Ld. APP for the state as well as by Ld. Defence counsel.
10. Short point for determination before the court is as under -
"Whether on 16.02.2022, at about 11.35 am at C-Block, near swimming pool, Mangolpuri, Delhi within the jurisdiction of PS Raj Park the accused was found in possession one buttondar actuated knife without any licence or permit?"
11. 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 buttondar knife without permit and submitted that accused be convicted of the offence charged.
12. Per contra, it is argued by the Ld. LAC 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 Ld. LAC for the accused that tampering with the contents of the sealed parcel cannot be ruled out as seal was not handed to the independent witness. At the end, it is submitted that the prosecution has miserably failed to prove its case beyond reasonable doubt and State vs. Vicky @ Pardeep FIR no.300/22 PS Raj Park Page No. 7/15 Digitally signed by MANSI MANSI MALIK MALIK Date:
2022.10.18 16:15:26 +0530 therefore, the accused is liable to be acquitted of the alleged offence.
13. 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.
14. In present case, the prosecution was duty bound to prove the possession of the buttondar knife with the 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 buttondar knife in this case, makes the prosecution version highly doubtful. Incident is stated to have happened at about 11:35 AM and it is evident from the testimony of PW-1 that the accused was apprehended alongwith the alleged unauthorised buttondar knife at a public place but still no public independent person was cited as a witness in this case.
15. The aforesaid observations have been deduced from the testimony of PW-1, PW-2 and PW-3. As per version of PW-3/IO, after apprehension of the accused, public persons were available at the spot. PW-3 requested public persons to join the investigation but all the public persons refused to join the same. However, a perusal of the record shows that no written notice was served on the public persons. The said explanation given by PW-3 cannot be accepted by the court since, the IO was under obligation to issue notice in writing to the public persons, who refused to join the police investigation particularly in the background when the accused has already been apprehended by the police and there was no apprehension that accused might escape. Moreover, the IO has not even placed on record the State vs. Vicky @ Pardeep FIR no.300/22 PS Raj Park Page No. 8/15 Digitally signed by MANSI MANSI MALIK MALIK Date:
2022.10.18 16:15:32 +0530 names of the passersby who were asked to join the investigation and neither have any reasons been mentioned by the IO for refusal by the people who were approached to join the investigation. In the facts and circumstances of the case, this court finds that police has not made any sincere effort to join independent public witnesses during investigation. In this regard reliance is being placed on the following judgments:-
In a case law reported as "Anoop V/s State", 1992 (2) C.C. Cases 314 (HC), 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 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 an case law reported as "Roop Chand V/s The State of Haryana", 1999 (1) C.L.R 69, the Hon'ble Punjab & Haryana High Court held as under:-
"3. I have heard the learned counsel for the parties and gone through the evidence with their help. The recovery of illicit liquor was effected from the possession of the petitioner during noon time and it is in the evidence of the prosecution witnesses that some witnesses from the public were available and they were asked to join the State vs. Vicky @ Pardeep FIR no.300/22 PS Raj Park Page No. 9/15 MANSI Digitally signed by MANSI MALIK Date: 2022.10.18 MALIK 16:15:39 +0530 investigation but they refused to do do so on the ground that their joining will result into enmity between them and the petitioner". "4. It is well settled principle of the law that the Investigation 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".
In case law reported as "Sadhu Singh V/s State of Punjab", 1997 (3) Crimes 55 the Hon'ble Punjab & Haryana High Court observed as under:-
"5. In a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubts. 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 State vs. Vicky @ Pardeep FIR no.300/22 PS Raj Park Page No. 10/15 Digitally signed by MANSI MANSI MALIK MALIK Date:
2022.10.18 16:15:46 +0530 benefit of doubt necessarily has to go to the accused" "6. In the present case, the State examined two witnesses namely, Harbans Singh ASI who appeared as PW1 and Kartar Singh.
PW2. Both the witnesses supported the prosecution version in terms of the recovery of opium from the person of the petitioner, but there was no public witness who had joined. It is not necessary in such recoveries that public witnesses must be joined, but attempt must be made to join the public witnesses. There can be cases when public witnesses are reluctant to join or are not available. All the same, the prosecution must show a genuine attempt having been made to join a public witness or that they were not available. A stereo-type statement of non-availability will not be sufficient particularly when at the relevant time, it was not difficult to procure the service of public witness. This reflects adversely on the prosecution version".
16. 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. Making bald averments that public persons were asked to join the investigation but none agreed without giving any written notice to them does not inspire the confidence of the Court.
17. The next inconsistency in the case of the prosecution is the failure to prove the arrival and departure entries of the police officials. It is pertinent to mention that the present case rests entirely on the alleged recovery of case property, i.e. knife from the possession of the accused at the relevant time by the police officials who were on patrolling duty at the relevant time and place, as per the prosecution story. Police officials are under a statutory duty to mark their departure and arrival in the register kept in the police State vs. Vicky @ Pardeep FIR no.300/22 PS Raj Park Page No. 11/15 Digitally signed by MANSI MANSI MALIK MALIK Date:
2022.10.18 16:15:54 +0530 station for above purpose as per the Punjab Police Rules. It is relevant here to reproduce Chapter 22 Rule 49 of the Punjab Police Rules, 1934, which reads as under:
"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 personally by signature or seal."
18. Since public persons were not joined in the investigation, the departure entry of the aforesaid police officials who were allegedly on patrolling duty at the relevant time and had apprehended the accused with case property becomes a vital piece of evidence. In the case in hand neither the departure entry nor arrival entry was proved by prosecution, however, proof of the said entry is indispensable as the present case rests solely on the alleged recovery made by the aforesaid police official. Therefore, the failure to prove the aforementioned entries casts a doubt on the story of the prosecution.
19. Further, as per evidence on record, the seal after use was not given to any independent public person but was infact given to PW-1, who was also a material prosecution witness being a witness to the alleged recovery of the illicit knife from the possession of the accused, such material witness of a case is always interested in the success of the case of the prosecution and keeping view this factum chances of fabrication of case property cannot be ruled out. Moreover, no seal handing over memo is also on record. Hence, State vs. Vicky @ Pardeep FIR no.300/22 PS Raj Park Page No. 12/15 Digitally signed by MANSI MANSI MALIK Date:
MALIK 2022.10.18 16:16:01 +0530 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. 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."
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."
20. Apart from the aforesaid observations, there are other contradictions also in the testimonies of the prosecution witnesses. PW-1 has stated in his cross examination that he called the PS at about 11:35 PM, however, the DD entry no. 84A Ex. PW-3/A which has been placed on record bears the time as 11:54 pm. It is also peculiar that if the DD entry in question was lodged at 11:54 PM, then how did the IO reach at the spot at 11:50 PM as per the testimony of PW-1 i.e. prior to lodging of the DD entry. Further, State vs. Vicky @ Pardeep FIR no.300/22 PS Raj Park Page No. 13/15 Digitally signed by MANSI MANSI MALIK Date:
MALIK 2022.10.18 16:16:07 +0530 PW-3/IO has stated in his cross examination that he received the DD entry at about 12 mid-night but the same is in contradiction with the testimony of both PW-1 as well as PW-2 who have stated that the IO reached at the spot by 11:50 PM. Therefore, the above discussed contradictions; weaken the case of the prosecution and raises doubt on the same.
21. 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, makes the prosecution version highly doubtful. At this stage, it would also be worthwhile to refer to the judgment of Hon'ble Supreme Court in Sarwan Singh vs State of Punjab (AIR 1957 SC 637) regarding the nature of burden of proof on the prosecution to prove its case. The ratio of this judgment is applied with the same vigour even after passing of more than 50 years. It was held in this case that:-
"There may also be an element of truth in the prosecution story against the accused. Considered as a whole, the prosecution story may be true; but be- tween 'may be true' and 'must be true' there is inevitably a long distance to travel and the whole of this distance must be covered by the prosecution by legal, reliable and unimpeachable evidence before an accused can be con- victed." Again in Jagdish Prasad vs State (Govt Of NCT Of Delhi) 2011 (9) LRC 206 (Del), the Hon'ble High of Delhi had observed that "It is well settled that in a criminal case, in order to bring home the guilt of the ac-
cused, the prosecution is required to establish the guilt beyond a shadow of reasonable doubt. If, on consideration of the prosecution evidence, a rea- sonable doubt remains in respect of culpability of the accused, he is enti- tled to benefit of doubt.
22. In view of the above discussion, this Court is of considered view that in the present case the prosecution has failed to prove its case against the State vs. Vicky @ Pardeep FIR no.300/22 PS Raj Park Page No. 14/15 Digitally signed by MANSI MANSI MALIK MALIK Date:
2022.10.18 16:16:14 +0530 accused Vicky beyond reasonable doubt. Accordingly, the accused Vicky is acquitted for the offence punishable u/s 25 Arms Act.
23. Bail bonds u/s 437A of CrPC are to be furnished which would remain valid for a period of six months.
Digitally signed by MANSI MANSI MALIK MALIK Date:
Announced in open Court (MANSI2022.10.18 MALIK) 16:16:18 on 18th Day of October, 2022 Metropolitan Magistrate +0530 North-West, Rohini, Delhi State vs. Vicky @ Pardeep FIR no.300/22 PS Raj Park Page No. 15/15