Delhi District Court
State vs Ranjeet@Hunny on 4 December, 2023
IN THE COURT OF MS. BHARTI BENIWAL, METROPOLITAN
MAGISTRATE-11, DWARKA COURT, NEW DELHI
FIR No.208/2023
PS Janakpuri
State Vs.Ranjeet @ Hunny
U/s 25/54/59 Arms Act
JUDGMENT
Cr Case No. : 10004/2023 Date of institution of the case : 01.09.2023 Date of commission of offence : 27.07.2023 Name of the complainant : Ct.Devi Lal Name of accused and address : Ranjeet @ Hunny S/o Sh.Raghubir R/o C-109-110 JJ Colony, Pankha Road, Uttam Nagar, Delhi Offence complained of : U/s 25/54/59 Arms Act Plea of the accused : Pleaded not guilty.
Final order : Acquital Date on which judgment reserved : 02.12.2023 Date of judgment : 04.12.2023 FIR No.208/2023 State vs. Ranjeet @ Hunny Page No. 1 of 12 JUDGMENT
1. The brief facts of the case of the prosecution are that on 27.07.2023 at about 09 : 50 PM, at A5A Block Park, Janakpuri, Delhi within the jurisdiction of Janakpuri, Delhi, accused Md.Toshif was found in possession of one buttondar knife as per seizure memo Mark 'X' in contravention of the notificiation issued by Delhi Administration and after completion of the investigation, charge-sheet was filed against the accused u/s 25/54/59 Arms Act.
2. On receipt of chargesheet, cognizance of offence was taken and accused was summoned. After supply of copy of chargesheet, a formal charge was framed u/s 25/54/59 of Arms Act against the accused to which he pleaded not guilty and claimed trial.
3. Prosecution has examined 2 witnesses to prove its case.
4. Prosecution examined Ct.Devi Lal as PW1. He deposed that on 27.07.2023, at about 09 : 50 PM while patrolling, when he reached at A5A Block, he started conducting search in the park situated in the same block. While he was conducting the search, he saw one person who saw him and started running. He apprehended him while chasing him. He conducted his prima facie search and found one button operated knife from his right pocket of pant and also found one mobile phone of Redmi Pro FIR No.208/2023 State vs. Ranjeet @ Hunny Page No. 2 of 12 Max from left pocket who disclosed his name as Ranjeet @ Hunny. He informed the DO PS Janakpuri. Thereafter, IO HC Amit came at the spot and he handed over the accused and the recovered knife and mobile phone to the IO. IO recorded his statement Ex.PW1/A. IO prepared tehrir and handed over the same to him for registration of FIR. He went to PS and got the FIR registered and came back to the spot with copy of FIR and original tehrir and handed over the same to IO. IO asked public persons in the park to join the investigation but none joined citing their personal reasons. IO put the knife in a white paper and prepared its sketch memo Ex.PW1/B bearing his signatures at point A. Length of the total knife is 23.5 cm, length of the blade is 10.5 cm and length of butt is 13 cm. IO seized the case property vide seizure memo Ex.PW1/C bearing his signatures at point A. Seizure memo of the mobile phone was prepared Ex.PW1/D bearing his signatures at point A. IO prepared site plan in his presence Ex.PW1/E bearing his signatures at point A. IO formally arrested the accused vide arrest memo Ex.PW1/F bearing his signatures at point A. Personal search of accused was conducted vide personal search memo Ex.PW1/G bearing his signatures at point A. IO recorded disclosure statement of accused Ex.PW1/H bearing his signature at point A. In pursuance to the disclosure statement made by the accused Ex.PW1/H, IO seized one copper wire, two bike batteries and 4 car batteries vide seizure memos Ex.PW1/I, Ex.PW1/J, Ex.PW1/K, Ex.PW1/L, Ex.PW1/M, Ex.PW1/N, Ex.PW1/O all bears his signature at point A. Accused was taken to DDU Hospital Hari FIR No.208/2023 State vs. Ranjeet @ Hunny Page No. 3 of 12 Nagar for medical examination by him alongwith HC Anil. Subsequently, accused were taken to PS Janakpuri. Case property was deposited in Malkhana in PS Janakpuri by IO. Accused was present in the court and he was correctly identified by witness.
MHC(M) produces one white pullanda bearing seal of TR. Seal is broken and one buttondar knife is taken out and is correctly identified by witness. Case property is Ex.P1.
5. Witness was cross examined by ld. Defence Counsel wherein he stated that he had made the DD entry regarding departure for his beat patrolling. That he apprehended the accused at about 09 : 50 PM and few public persons were also present in the park at that time. That he had not called any person during the time of apprehension and search of accused. That he was on foot patrolling duty. Witness denied the suggestion that the case property was falsely planted upon accused.
6. Prosecution examined HC Amit as PW2. He deposed that on 27.07.2023, he was posted as HC at PS Janakpuri. On that day, he was posted at PS Janakpuri. At around 10 PM, he received a DD No.164A and thereafter, he went to the spot i.e. A5A Block Park. Ct.Devi Lal handed over the accused and the recovered knife and mobile phone to him. He recorded his statement Ex.PW1/A and prepared tehrir which is Ex.PW2/A bearing his signatures at point A. He handed over the same to Ct.Devi Lal for registration of FIR. He went to PS and got the FIR No.208/2023 State vs. Ranjeet @ Hunny Page No. 4 of 12 FIR registered and came back to the spot with copy of FIR and original tehrir and handed over the same to him at about 11 : 40 PM. He asked public persons in the park to join the investigation but none joined citing their personal reasons. He put the knife in a white paper and prepared its sketch memo Ex.PW1/B bearing his signatures at point B. Length of the total knife is 23.5 cm, length of the blade is 10.5 cm and length of butt is 13 cm. He seized the case property vide seizure memo Ex.PW1/C bearing his signatures at point B. Seizure memo of the mobile phone was prepared Ex.PW1/D bearing his signatures at point B. He prepared site plan in presence of Ct.Devi Lal Ex.PW1/E bearing his signatures at point B. He formally arrested the accused vide arrest memo Ex.PW1/F bearing his signatures at point B. Personal search of accused was conducted vide personal search memo Ex.PW1/G bearing his signatures at point B. He recorded disclosure statement of accused Ex.PW1/H bearing his signature at point B. In pursuance to the disclosure statement made by the accused Ex.PW1/H, he seized one copper wire, two bike batteries and 4 car batteries vide seizure memos Ex.PW1/I, Ex.PW1/J, Ex.PW1/K, Ex.PW1/L, Ex.PW1/M, Ex.PW1/N, Ex.PW1/O all bears his signatures at point B. Accused was taken to DDU Hospital Hari Nagar for medical examination by Ct.Devi Lal alongwith HC Anil. Subsequently, accused was taken to PS Janakpuri. Case property was deposited in Malkhana in PS Janakpuri by him. Accused was present in the court and he was correctly identified by witness.
FIR No.208/2023State vs. Ranjeet @ Hunny Page No. 5 of 12 MHC(M) produces opened white pullanda in the testimony of PW1. One buttondar knife was shown to the witness which was correctly identified by witness. Case property is Ex.P1.
7. Witness was cross examined by ld. Defence counsel wherein he stated that he reached at the spot by his own motorcycle. That he did not note down the kms in the log book. He received telephonic information at about 10 PM. Distance from spot to PS is about half or one kms. Ct.Devi Lal went for registration of the FIR at about 11 : 30 PM and he returned back at the spot within 10-15 minutes. That when they apprehended the accused, crowd gathered at the spot but none agreed to join our investigation. That he did not know the name of the person from the crowd to whom request was made. That he also did not serve any written notice to public person for joining the investigation. That at the time of incident, he was having camera mobile phone but no video recording of recovery of knife was conducted. Witness was confronted with Ex.PW1/B where breadth of the case property i.e. knife is not mentioned. Witness denied the suggestion that accused is falsely implicated in the present case by planting knife upon him.
8. Vide separate statement recorded u/s 294 Cr.P.C on 01.12.2023, accused had admitted the documents FIR No.208/2023 vide Ex. P1 and MHC(M) with register no.19 Ex.
FIR No.208/2023State vs. Ranjeet @ Hunny Page No. 6 of 12 P2.. Hence the above documents were ordered to be read in evidence without its formal proof.
9. PE was closed by order of this court and thereafter, statement of accused was recorded u/s 313 Cr.P.C wherein he has refused the allegations leveled against him in toto. Accused opted to lead defence evidence.
10. After hearing ld. APP for the state and ld. counsel for the accused and having gone through the case file carefully and meticulously, it is observed by the court that it is the case of prosecution that on the fateful day accused was found in possession of illegal firearm without any permit or license. The court is of the view that to prove the charge against the accused, the prosecution is required to prove the allegation beyond reasonable doubt.
11. The relevant portion of Arms Act is reproduced as under: Section 25: Punishment for certain offences:-
(1) whoever-
(a) Manufactures, sells, transfers, converts, repairs, tests or proves, or exposes or offers for sale or transfer, or has in his possession for sale, transfer, conversion, repair, test or proof, any arms or ammunition in contravention of section 5; or
(b) Shortens the barrel of a firearm or converts an imitation firearm into a firearm in contravention of section 6; or 2[***]
(c) bring into, or takes out of, India, any arms or ammunition of any class or description in contravention of section 11, shall be punishable FIR No.208/2023 State vs. Ranjeet @ Hunny Page No. 7 of 12 with imprisonment for a term which not be less than three years but which may extend to seven years and shall also be liable to fine.
12. In examination in chief as well as in cross examination of PW1 and PW2, it has been stated that police officials did ask public persons in the park to join the proceedings, however, they refused citing just reasons. Further, PW1 and PW2 stated that no public witness agreed to give statement. However, they have not stated the description of the persons who had allegedly refused to join the investigation. Further, there is nothing on record to show that PW-1 and PW-2 had served any notice under Section 160 Cr.PC. upon the persons who refused to join the investigation. Thus, the prosecution has failed to prove that any serious effort was made by PW-1 and PW-2 to join public witnesses in the proceedings. It is a well settled proposition that non-joining of public witness shrouds doubt over the fairness of the investigation by police.
13. 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 evidence 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.FIR No.208/2023
State vs. Ranjeet @ Hunny Page No. 8 of 12 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".
14. In a case law reported as "Roop Chand Vs. The State of Haryana" 1999 (1) C.L.R. 69, the 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 investigation. The explanation furnished by the prosecution is that the independent witnesses were asked to join the investigation but they refused to to 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 Investigating 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 FIR No.208/2023 State vs. Ranjeet @ Hunny Page No. 9 of 12 person from the public the Investigating Officer can take action 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 after thought and is not worthy of credence. All these facts taken together make the prosecution case highly doubtful".
15. Non joining of public witnesses despite availability casts a doubt on the fairness of the investigation. Reliance is placed on paragraph 6 of the judgment in Pawan Kumar v. The Delhi Administration, 1989 Cri.L.J. 127, wherein the Hon'ble High Court of Delhi had observed as under:
" ... According to Jagbir Singh, he did not join any public witness in the case while according to Kalam Singh, no public person was present there. It hardly stands to reason that at a place like a bus stop near Subhas Bazar, there would be no person present at a crucial time like 07.30 p.m. when there is a lot of rush of commuters for boarding the buses to their respective destinations. Admittedly, there is no impediment in believing the version of the Police officials but for that the prosecution has to lay a good foundation. At least one of them should deposed that they tried to contact the public witnesses or that they refused to join the investigation. Here is a case where no effort was made to join any public witness even though number of them were present. No plausible explanation from the side of the prosecution is forthcoming for not joining the independent witnesses in a case of serious nature like the present one. It may be that there is an apathy on the part of the general public to associate themselves with the Police raids or the recoveries but that apart, FIR No.208/2023 State vs. Ranjeet @ Hunny Page No. 10 of 12 at least the I.O. should have made an earnest effort to join the independent witnesses. No attempt in this direction appears to have been made and this, by itself, is a circumstance throwing doubt on the arrest or the recovery of the knife from the person of the accused."
16. This Court is, however, conscious that the prosecution case cannot be thrown out or doubted on the sole ground of non-joining of public witnesses as public witnesses keep themselves away from the Court 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 prosecution but there are other circumstances too, as discussed hereinafter, which raise suspicion over the prosecution version. The prosecution has not placed on record the departure entries of officials who were on patrolling duty.
17. It is trite in criminal jurisprudence that the prosecution is under an obligation to prove its case against the accused beyond reasonable doubt. The standard of proof to be adopted in criminal cases is not merely of preponderance of probabilities but proof beyond reasonable doubt on the basis of cogent, convincing and reliable evidence. It is also well settled that in case of doubt, the benefit must necessarily be allowed to the accused.
FIR No.208/2023State vs. Ranjeet @ Hunny Page No. 11 of 12
18. Thus, in view of the foregoing analysis, this Court is of the considered opinion that the benefit of doubt ought to be granted to the accused, who is entitled to be exonerated of the charges against him in the present case. The accused Ranjeet @ Hunny is hereby acquitted of the offence punishable under Section 25 of Arms Act.
Pronounced in the open court on this day i.e.04.12.2023.
Digitally BHARTI signed by BENIWAL BHARTI BENIWAL (BHARTI BENIWAL) Chief Metropolitan Magistrate South West District, Dwarka Courts New Delhi/04.12.2023 FIR No.208/2023 State vs. Ranjeet @ Hunny Page No. 12 of 12