Delhi District Court
State vs . Harender on 6 March, 2023
IN THE COURT OF SH. GAURAV KATARIYA METROPOLITAN MAGISTRATE07, NORTH, ROHINI COURTS, DELHI State Vs. Harender FIR No. 435/2020 PS. Jahangir Puri U/s. 25/54/59 Arms Act CR No. 8943/2021 JUDGMENT
1) The date of commission : 14.09.2020
Of offence
2) The name of the complainant : Ct. Bal Kishan, No. 2025/NW
3) The name & parentage : Harender
Of accused S/o Sh. Ramesh
R/o Jhuggi No. 362, Lucky ParkJ
Block, Jahangir Puri.
4) Offence complained of : U/s 25/54/59 Arms Act
5) The plea of accused : Pleaded not guilty.
6) Final order : Acquitted
7) Date of Institution of case : 01.10.2021
Judgment reserved on : 06.03.2023
Judgment announced on : 06.03.2023
FIR No.435/20
State Vs. Harender Page 1 of 14
THE BRIEF REASONS FOR THE JUDGMENT:
1. The case of the prosecution is that on 14.09.2020, at about 10:25 pm, near Water Plant, Lukcy Park Huts, Jahangir Puri, Delhi accused was found in possession of one buttondar knife length of the knife was 24 cm without any permit or license. A complaint was made against the accused. FIR was registered. Investigation was carried out and charge sheet was filed u/s 25/54/59 Arms Act. Accused was summoned and documents were supplied to the accused in compliance of Section 207 Cr.P.C.
2. Thereafter, charge was framed U/s 25/54/59 Arms Act on 25.06.2022 to which accused pleaded not guilty and claimed trial.
3. Matter was listed for prosecution evidence. Prosecution examined following witnesses :
4. PW1 is Ct. Bal Kishan, No. 2025/ PIS No. 28122460. He deposed, that on 14.09.2020, he was posted at PS Jahangir Puri as a Constable. On that day, he was doing petrolling duty in the area of Beat No. 2. At about 10:25 PM, he reached in the Lucky park Jhuggi Near Pani Plant Jahangir Puri delhi where he saw the accused Harender tried to escape form the spot after seeing him in uniform. He further deposed that he apprehended the accused and asked about why he was FIR No.435/20 State Vs. Harender Page 2 of 14 running but accused could not give a satisfactory answer. He further deposed that he conducted personal search of accused and he was found in possession of one buttondar Knife in the right pocket of his wearing pant and on inquiry, the accused had revealed his name as Harender. He gave the information regarding the recovery of the button dar Knife in the PS Jahangir Puri.
After some time, IO HC Ravinder reached at the spot. He handed over the custody of accused Harender to the IO and recovered button dar Knife to the IO. He narrated the incident to the IO upon which, IO recorded his statement, which is Ex.PW1/A, bearing his signature at point A. IO prepared the sketch of the Knife which is exhibited as PW1/B bearing his signature at Point A. On measuring, total length of the knife was 24 cm, length of fal was 10 cm, length of the dasta was 14 cm and width of the fal was 2.8 cm. IO prepared pullinda of the Knife and sealed with the seal of RK. After use, IO handed over the seal to him. IO seized the recovered Knife vide seizer memo Ex.PW 1/C bearing his signature at Point A. IO prepared rukka and handed over the same to him for registration of FIR. Accordingly, he went to the police station Jahangir puri and got registered the present FIR. After registration of FIR, he came back to the spot and handed over the copy of FIR and original rukka to the IO HC Ravinder. IO mentioned FIR No. on the seizer memo and sketch of the knife.
IO arrested the accused vide arrest memo, which is Ex.PW1/E, bearing his signature at point A. Accused was personally searched vide personal search memo, FIR No.435/20 State Vs. Harender Page 3 of 14 which is Ex.PW1/F, bearing his signature at point A. IO deposited the case property in Malkhana and put the accused in the lock up. IO recorded his statement.
This witness was duly cross examined by Ld. Defence Counsel.
5. PW2 is HC Ravninder Kumar, No. 207/NW, PIS No.28040226. He deposed that on 14.09.2020, he was posted at PS Jahangir Puri as HC. On that day, on receipt of DD No. 111A already exhibited as Ex. A2 to him, he reached at the spot i.e. Lucky Park Jhuggi near Water Plant, Jahangir Puri where he met with Ct. Bal Kishan who had already apprehended the accused Harender alongwith one buttondar knife. Ct. Bal Kishan handed over the custody of accused Harender and recovered button dar Knife to the him. He recorded statement of Ct. Bal Kishan which is already exhibited as PW 1/A bearing his signature at point B. He prepared the sketch of the Knife which is already exhibited as PW 1/B bearing his signature at Point B. On measuring, total length of the knife was 24 cm, length of fal was 10 cm, length of the dasta was 14 cm and width of the fal was 2.8 cm. He prepared pullinda of the Knife and sealed with the seal of RK. After use, he handed over the seal to Ct. Bal Kishan. He seized the recovered Knife vide seizure memo already Ex. PW 1/C bearing my signature at Point B. I prepared rukka which is exhibited as Ex. PW 2/A bearing my signatures at Point A and handed over the same to Ct. Bal Kishan for registration of FIR. Accordingly, he went to the police station FIR No.435/20 State Vs. Harender Page 4 of 14 Jahangir Puri and got registered the present FIR. After registration of FIR, he came back to the spot and handed over the copy of FIR and original rukka to him. He mentioned FIR No. on the seizer memo and sketch of the knife. He prepared site plan at the instance of Ct. Bal Kishan which is exhibited as Ex. PW 1/D bearing his signatures at Point A. This witness was duly cross examined by Ld. Defence Counsel.
6. PW3 is HC Amarjeet, No. 119/CR, PIS No. 280082312. He deposed, that on 09.04.2021, he was posted at PS Jahangir Puri as HC. On that day, further investigation of the present case was marked to him by concerned SHO. On 11.04.2021, he prepared the chargesheet and filed the same in the court for trial.
This witness was not cross examined by Ld. Defence Counsel.
7. Statement of accused Harender was also recorded u/s 294 Cr.P.C in which, accused has admitted the following documents i.e. FIR No. 435/2020 which is Ex. A1, DD Entry No. 111A dated 14.09.2020 which is Ex. A2, the Notification No. F/13/451/79Home dated 29.10.1980, which is Ex. A3, Registration of FIR No. 435/20 which is Ex. A1, and the contents of register No. 19 regarding the deposition of case property.
FIR No.435/20 State Vs. Harender Page 5 of 1408. Thereafter, PE was closed and statement of accused u/s 313 Cr.P.C r/w 281 Cr.P.C. was recorded, wherein, the accused pleaded innocence but did not lead any evidence in his defence.
09. It is argued by Ld. APP that from ocular and documentary evidence or record, Prosecution has proved the case beyond reasonable doubt that accused Harender was found in possession of knife and submitted that accused was convicted of the offence charged.
10. Per contra, it is argued by Ld. Counsel for accused that neither any person was made witness nor any handing over memo of seal was prepared. Further, no notice was served to the public persons, hence, the prosecution has miserably failed to prove its case beyond reasonable doubt. Therefore, the accused is liable to be acquitted.
11. I have heard the arguments addressed by the Ld. APP and the Ld counsel for the accused and perused the documents on record carefully.
12. Points for determination: FIR No.435/20 State Vs. Harender Page 6 of 14
(i) Whether " on 14.09.2020, at about 10:25 pm, near Water Plant, Lukcy Park Huts, Jahangir Puri, Delhi accused was found in possession of one buttondar knife length of the knife was 24 cm without any permit or license, in contravention to the notification issued by the Delhi Administration".
13. From the over all testimony of the witnesses, it is clear that the IO has not joined any public witness in the investigation. In fact, not even an effort was made to join the public witnesses. There is a possibility that it was a chance recovery, however, at the time and place from where the accused was apprehended and when the formalities were being completed, there must be public persons around as it is a public place, which is expected to be crowded with people. Also, no reason as to why no public witness could be found has been put forth by the prosecution. All the witnesses examined are police witnesses. This casts a doubt about the sincere efforts made by the IO to join independent witnesses.
14. 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 FIR No.435/20 State Vs. Harender Page 7 of 14 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".
15. 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 FIR No.435/20 State Vs. Harender Page 8 of 14 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".
16. Also, in State of Punjab v. Balbir Singh, AIR 1994 SC 1872, the Hon'ble Supreme Court of India held as under : "It therefore emerges that noncompliance 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 that these provisions have not been complied with and further consider whether the weight of evidence is in any manner affected because of the noncompliance. It is wellsettled 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 FIR No.435/20 State Vs. Harender Page 9 of 14 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].
17. 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.
18. None of the recovery witnesses in their examinationinchief have stated that they offered their personal search to accused before inspecting the knife carried by the accused persons. Principles of natural justice demanded that accused should have been offered search by recovery witness who allegedly recovered case property from accused and should have reduced this fact into writing which has not been done in present case and which fact diminishes credibility of prosecution version. Reliance being placed on a judgment of Hon'ble Orissa High Court reported as "Rabindernath Prusty Vs. State of Orissa". In this situation, it can be said that search of the accused by above said FIR No.435/20 State Vs. Harender Page 10 of 14 police officials was in complete violation of the above said case law and the same can be said to be illegal & motivated.
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.
20. The Section 100(4) Cr.P.C. provided that " before making a search of the officer or other person about to make it shall call upon the two or more independent and respectable inhabitants of the locality in which the place to be searched is situated or any other locality if no such inhabitant of the said locality is available or is willing to be a witness of the search, to attend the witness the search and may issued an order in writing to them or any of them so to do".
21. In the present case, the IO has even failed to note down the particulars of the person who refused to join the investigation and this creates doubt regarding the fairness of the investigation. The chances of false implication cannot be ruled out.
FIR No.435/20 State Vs. Harender Page 11 of 1422. PW 1 categorically stated in his crossexaminations that, " IO did not prepare handing over memo of the seal ". PW 2 also categorically stated in his crossexamination that " He did not prepare handing over memo of the seal".
23. In these circumstances, the possibility of tampering of case property cannot be ruled out. Reliance is placed on "Ramji Singh V/s State of Haryana "
2007 (3) R.C.R. (Criminal) 452, the Hon'ble Punjab and Haryana High Court 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".
24. 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 FIR No.435/20 State Vs. Harender Page 12 of 14 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."
25. It is pertinent to mention that PW 1 deposed in his cross examination that "
he did not make any Departure Entry before leaving Police Station for the spot"
Further, Chapter 22 Rule 49 of Punjab Police Rules, 1934, provides that 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 shall be entered vide a separate entry and 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. In the present case, complete departure or the arrival entries have not been proved on the record by the prosecution. In absence of such proof, the presence of the police officials at the spot cannot be believed. Reference can be made to on "Rattan Lal Vs. State 1987 (2) Crimes 29".
26. All the lapses in investigation creates doubt on the very recovery of a buttondar knife from the possession of the accused. The court is of the considered view that prosecution has not been able to prove the guilt of accused beyond reasonable doubt.
FIR No.435/20 State Vs. Harender Page 13 of 1427. In view of the above said discussion, I am of the considered view that the prosecution has failed to prove the guilt of the accused beyond reasonable doubt. Accordingly, the accused Harender is acquitted from the charges leveled against him.
28. File be consigned to Record Room after due compliance.
29. This Judgment consists of 14 pages and all pages bear my signature.
Announced and dictated directly into the computer in open court on 06th Day of March, 2023.
(Gaurav Katariya) MM07/North District Rohini Courts, Delhi.
FIR No.435/20 State Vs. Harender Page 14 of 14