Delhi District Court
State vs . Aaman on 8 August, 2018
IN THE COURT OF SH. KAPIL KUMAR
METROPOLITAN MAGISTRATE05, CENTRAL,
TIS HAZARI COURTS, DELHI
CNR No. DLCT0200038214
CIS No. 287835/16
State Vs. Aaman
FIR No. 364/14
PS : Kamla Market
JUDGMENT
1) The date of commission of offence : 30.11.2014
2) The name of the complainant : HC Ram Karan
3) The name & parentage of accused : Aaman
S/o Mohd Yasin
R/o. A2 Basti, Choset
Khemba, Meer Dard Road,
Mata Sundari Road, Delhi.
4) Offence complained of : U/s.25(1B)(b)Arms Act
5) The plea of accused : Pleaded not guilty
6) Final order : Acquitted
7) The date of such order : 08.08.2018
Date of Institution : 22.12.2014
Judgment reserved on : 08.08.2018
Judgment announced on : 08.08.2018
THE BRIEF REASONS FOR THE JUDGMENT:
1.The case of the prosecution against the accused is that on 30.11.2014, at about 6.:20 PM, at Thomson Road, near bus stand Shivaji Park, Kamla Market, Delhi within the jurisdiction of PS Kamla Market, he was found in possession of one buttondar knife in contravention of Delhi Administration Notification. On the said allegations, accused was charged with the offence under Section 25 (1B)(b) of the Arms Act, 1959.
2. After investigation, chargesheet was filed against the accused. The copy of chargesheet was supplied to the accused in compliance of Section 207 Cr. P.C. Thereafter, charge was framed against the accused under Section 25 (1B)(b) of the Arms Act, 1959 to which he pleaded not guilty and claimed trial.
3. In support of its version, prosecution has examined four witnesses. PW1 is Ct Ravinder, PW2 is ASI Ram Karan, PW3 is ASI Om Prakash and PW4 is HC Mukesh Chand.
4. After conclusion of prosecution evidence, statement of accused was recorded separately wherein accused claimed to be innocent and denied the allegations against him. Accused opted not to lead any DE.
5. I have heard Ld. APP for State and Ld. Counsel for accused. I have perused the record.
6. The testimonies of prosecution witnesses are hereby discussed, in brief, as follows: 6.1) PW1 Ct Ravinder and PW2 ASI Ram Karan deposed on the same lines that on 30.11.2014 they were on patrolling duty and when they reached near Thomson road, near Shivaji Park bus stand, Kamla Market, Delhi they saw the accused was going from Minto bridge to Ajmeri Gate. They deposed that the accused on seeing them immediately change the route and started running towards Minto Bridge. On suspicion accused was apprehended and searched. From the cursory search of accused knife was recovered. Sketch memo of knife Ex.PW1/A was prepared and thereafter knife was seized and sealed vide seizure memo Ex.PW1/B. Rukka was prepared. FIR got registered. Accused was arrested and personally searched. They correctly identified the accused and case property in the court.
6.2) PW3 ASI Om Parkash proved the present FIR as Ex3/B and endorsement on rukka vide DD no. 34A dated 30.11.2014 as Ex.PW3/A. 6.3) PW4 HC Mukesh Chander deposed that on 30.11.2014 the present case was marked to him for further investigation. He deposed that Ct Ravinder handed over him original rukka and copy of FIR. He deposed that he reached at the spot where the custody of the accused and case property was handed over to him by HC Ram Karan. Site plan was prepared. Accused was arrested and personally searched. Statement of witnesses were recorded and chargesheet was filed.
7. It is the cardinal principle of Criminal Justice delivery system that the prosecution has to prove the guilt of accused person beyond reasonable doubts. No matter how weak the defence of accused is but, the golden rule of the Criminal Jurisprudence is that the case of the prosecution has to stand on its own leg.
8. Now, I consider the points contended by the Ld. Counsel for the accused one by one. Ld. Counsel for accused argued that no independent witness was joined in the investigation. First of all, I consider the legal position on this point. In State of Punjab v. Balbir Singh, AIR 1994 SC 1872, the Hon'ble Supreme Court held that:
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 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] Considering facts and circumstances of the present case, there was no lack of time and opportunity to associate some independent witnesses with the search and strictly comply with the provisions of Code of Criminal Procedure. Merely mentioning that public persons were requested to joined the investigation is of no avail. Name of those persons are not mentioned. It is not mentioned as to what action was taken against those persons who refused to join the investigation. Hence, the above mentioned creates doubt on the case of the prosecution.
9. Further, the seal after use was not handed over to any independent person. Seal after use was handed over to PW1 Ct Ravinder. It appears that no efforts was made to hand over the seal after use to independent person. I am conscious of precedent laid down by Hon'ble Delhi High Court in Safiullah v. State, 1993 (1) RCR (Criminal) 622, 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."
Hon'ble Punjab & Haryana High Court also held in Ramji Singh v. State of Haryana, 2007 (3) RCR (Criminal) 452, that "7. The very purpose of giving seal to an independent person is to avoid tampering of the case property." Hence, considering the legal position, the benefit of doubt should be given to the accused.
10. Besides all this, in the present case, the sketch memo of the knife Ex. PW1/A and seizure memo of the knife Ex. PW1/B, bears the number of FIR. As per the rukka and testimony of witnesses, the sketch memo of the knife and seizure memo were prepared prior to registration of FIR. If that be so then how Ex. PW1/A and Ex. PW1/B bears the FIR number. Now, I consider the observation made by Hon'ble Delhi High Court in Giri Raj v. State, 83 (2000) DLT 201. This gives rise to two inferences that either the FIR was recorded prior to the alleged recovery of the case property or number of the said FIR was inserted in the document after its registration. In both the situations, it seriously reflects upon the veracity of the prosecution version and creates a good deal of doubt about the recovery of the case property in the manner alleged by the prosecution. That being so, the benefit arising out of such a situation must necessarily go to the accused.
11. Besides this it also came on record that PW1 and PW2 did not give their personal search to anyone before checking the accused. When PW1 and PW2 took the personal search of the accused then they must have offered his personal search to someone so that the possibility of false plantation of the property could be ruled out. In the present case no such precaution was taken by PW1 and PW2 and as such the possibility of false planting the case property upon the accused could not be ruled out. In the judgment titled as "S.L.Goswami v. State of M.P" reported as 1972 CRI.L.J.511(SC) the Hon'ble Supreme Court held: "...... In our view, the onus to proving all the ingredients of an offence is always upon the prosecution and at no stage does it shift to the accused. It is no part of the prosecution duty to somehow hook the crook. Even in cases where the defence of the accused does not appear to be credible or is palpably false that burden does not become any the less. It is only when this burden is discharged that it will be for the accused to explain or controvert the essential elements in the prosecution case, which would negative it. It is not however for the accused even at the initial stage to prove something which has to be eliminated by the prosecution to establish the ingredients of the offence with which he is charged, and even if the onus shifts upon the accused and the accused has to establish his plea, the standard of proof is not the same as that which rests upon the prosecution..........................."
12. The onus and duty to prove the case against the accused was upon the prosecution and the prosecution must establish the charge beyond reasonable doubt. It is also a cardinal principle of criminal jurisprudence that if there is a reasonable doubt with regard to the guilt of the accused the accused is entitled to benefit of doubt resulting in acquittal of the accused. Reference may also be made to the judgment titled as Nallapati Sivaiah v. Sub Divisional Officer, Guntur reported as VIII(2007) SLT 454(SC).
13. In view of above said discussion, the prosecution has failed to prove the guilt of the accused beyond reasonable doubt. Accordingly, I acquit the accused Aaman of the charges framed in the present case. Case property be confiscated to the State. Same be destroyed. Bail bonds U/s 437 A Cr.PC taken from the accused. File be consigned to Record Room after due compliance.
Digitally signed KAPIL by KAPIL KUMAR
KUMAR Date: 2018.08.08
15:02:51 +0530
Announced in the open court (KAPIL KUMAR)
on 08.08.2018 Metropolitan Magistrate05
Central District, Tis Hazari Courts/Delhi