Delhi District Court
State vs . : Suraj Thakur on 25 July, 2023
1
IN THE COURT OF AISHWARYA SHARMA:
METROPOLITAN MAGISTRATE - 0, SOUTH WEST DISTRICTs
DWARKA COURTS: DELHI
State Vs. : Suraj Thakur
FIR No. : 44/2021
U/S : 25 Arms Act
P.S. : Palam Village
1. Criminal Case No. : 3895/2021
2. Date of commission of offence : 28.01.2021
3. Date of institution of the case : 22.03.2021
4. Name of the complainant : State
5. Name of accused & parentage : Suraj Thakur S/O Mahender Thakur
6. Offense complained or proved : 25 Arms Act
7. Plea of the accused : Pleaded not guilty
8. Date on which order was reserved : 06.07.2023
9. Final order : Acquitted
10. Date of final order : 25.07.2023
JUDGMENT
1. The accused is facing trial for offence U/S 25 of Arms Act. The genesis of the prosecution story is that on 28.01.2021, at about 08:05 PM, while Ct. Bheem and Ct. Ravinder were doing the patrolling duty, they received information from one secret informer that one person who intends to commit theft and is carrying buttondar actuated knife is roaming near Manglapuri Chowk and if raided, can be apprehended. Then, Ct. Bheem and Ct. Ravinder reached near DIU office, near FIR No. : 44/2021 State Vs. : Suraj Thakur 2 Manglapuri Chowk, where several vehicles were parked and there, the accused was apprehended and one buttondar knife was found in right pocket of pants of accused and information of the occurrence was given in the police station, pursuant to which IO, HC Suresh Chand came to the spot and he tried to associate 34 public persons in the investigation, but they refused to join the investigation and no notice was given to those witnesses. Then, IO prepared sketch of knife and seized the same vide seizure memo after putting seal of SCM, which after use was handed over to Ct. Bheem. Then statement of complainant Ct. Bheem was recorded and tehrir was sent through Ct. Ravinder to police station for registration of FIR. Then spot map was prepared by IO. Thereafter, Ct. Ravinder returned to the spot with copy of FIR. Then, disclosure statement of the accused was recorded by IO, wherein, he disclosed his involvement in 56 cases of theft registered in P.S. Palam Village. Then, the accused was arrested and his medical examination was conducted. Then, the case property was deposited in malkhana. IO also recorded statement of witnesses and after completion of investigation, chargesheet for trial of accused Suraj Thakur for the alleged offence was submitted in the Court.
2. Thereafter, the cognizance of the offence was taken by the Court and on the basis of material available on record, the charge for offence U/S 25 Arms Act was framed against accused to which he pleaded not guilty and claimed trial.
3. In order to establish guilt of the accused, the prosecution has examined three witnesses in all. During trail, the accused also got recorded his statement of admission and denial U/S 294 CrPC, whereby he admitted present FIR, DD entries, FIR No. : 44/2021 State Vs. : Suraj Thakur 3 DAD notification, pursuant to which PW HC Lalit Prasad was dropped from the list of witness. After prosecution evidence, the statement of accused U/S 313 Cr.P.C was recorded wherein all the incriminating circumstances were put to the accused. The accused did not lead any evidence in his defence.
4. Ld. APP for State has contended that the prosecution has established the guilt of the accused beyond all reasonable doubts with the help of coherent testimonies of the prosecution witnesses, therefore, the accused deserves to be convicted for the alleged offence.
5. Per contra, Ld. counsel for accused has contended that the accused has been falsely implicated in the present case. It is also contended that the alleged recovery of weapon was planted on the accused. It is also contended that the fact the police has failed to join in any public person during investigation of the case is self explanatory that the accused has been falsely implicated in the present case. With these submissions, prayer has been made for acquittal of accused in the present case.
6. Prior to delving into the merits of contentions advanced on behalf of parties, let us briefly discuss the testimonies of the material witnesses in brief.
7. PW1 HC Bheem is cited as the complainant in the present case. He deposed that on 28.01.2021, when he was on patrolling duty with Ct. Ravinder at beat no. 09, he received information from secret informer that one person who is habitual offender of theft and deals in stolen properties and carries a knife with him is roaming in DIU Office, Manglapuri Chowk. Then this witness along with Ct.
FIR No. : 44/2021
State Vs. : Suraj Thakur
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Ravinder, reached near DIU Office, Manglapuri Chowk and secret informer pointed out towards the accused, then this witness along with Ct. Ravinder apprehended the accused. The accused disclosed his name as Suraj Thakur and upon search, one buttondar knife was recovered from him. Then the information was shared with DO concerned and then IO came at the spot. Thereafter, he prepared sketch memo of knife Ex. PW1/A and sealed the same in a while cloth with the seal of SCN vide Seizure memo Ex. PW1/B, bearing the signature of witness at point A and handed over the seal after use to this witness. IO then recorded statement of the witness Ex. PW1/C and prepared site plan Ex. PW1/ D in presence of this witness. Thereafter, IO arrested the accused vide arrest memo Ex. PW1/E and conducted his personal search vide memo Ex. PW1/F and recorded disclosure statement of accused vide memo Ex. PW1/G. During inquiry, the accused disclosed his involvement in other cases of theft and upon his indication, equipment's used by accused for committing theft were recovered and were seized vide seizure memo Ex. PW1/H. This witness also identified the accused as well as the case property i.e. Knife Ex. P1 and the equipment's recovered from accused Ex. P2, which were seized by seizure memo Ex. PW1/H.
8. PW2 HC Ravinder, who is also spot witness deposed on same lines as that of PW1, therefore, his testimony is not being reproduced to avoid repetition. This witness additionally deposed that after recording statement of complainant Ct. Bheem Ex. PW1/C, he had taken tehrir to police station for registration of FIR and after registration of FIR, he returned to the spot and handed over copy of FIR to FIR No. : 44/2021 State Vs. : Suraj Thakur 5 IO, who prepared site plan Ex. PW1/D in his presence. This witness also identified the accused as well as the case property i.e. Knife Ex. P1 and the equipment's used by accused Ex. P2, which were seized by seizure memo Ex. PW1/H.
9. PW3 HC Suresh Chand is the IO in present case. He deposed that after receiving information about the occurrence on 28.01.2021 vide DD No. 86A, he reached at the spot near DIU Office, Manglapuri New Delhi where he found Ct. Bheem and Ct. Ravinder, who handed over the accused to him. He further deposed on same lines as that of PW1 & PW2 and explained about the investigation conducted by him. He also identified the buttondar knife Ex. P1, the equipment's used by accused in commission of theft Ex. P2, which were seized by seizure memo Ex. PW1/H and also correctly identified the accused. In his cross examination, he admitted that public persons were available at the spot but he did not record their statement and did not serve any notice to them.
10. Heard rival submissions and carefully perused the record.
11. The allegations against accused are that on 28.01.2021 at about 08:05 Pm at Manglapuri Chowk, near DIU office, Palam Colony, accused was found in possession of one knife (total length 24 cm, length of blade 11 cm and length of handle 13 cm, width of blade 2.5 cm) without having any permit or license to possess the same.
12. 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 FIR No. : 44/2021 State Vs. : Suraj Thakur 6 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.
13. As per the case of the prosecution, the seal after use was given to Ct. Bheem who was part of the police party and not given to any independent public person which creates a doubt on the case property as whether the same was intact and not tampered with. In the judgment of Ramji Singh Vs. State of Haryana 2007 (3) R.C.R. (Criminal) 452, the Hon'ble Punjab and Haryana High Court held in Para 7 as :
"...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..."
14. Further it was held in Rajesh Jagdamba Avasthi Vs. State of Goa (2005) 9 SCC 773, in para 15 of the judgment in this regard the Hon'ble Supreme Court held as under:
"15...In these circumstances there is justification in the argument that since the seal as well as the packets remained in the custody of the same person, there was every possibility of the seized substance being tempered with, and that is the only hypothesis on which the discrepancy in weight can be explained. The least that can be said in the facts of the case is that there is serious doubt about the truthfulness of the prosecution case..."
FIR No. : 44/2021
State Vs. : Suraj Thakur
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15. 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, no arrival entry has been proved on the record by the prosecution. Further, no departure entry of Ct. Bheem and Ct. Ravinder has been filed on record to show when they proceeded for the patrolling duty. In absence of the departure and arrival entry of the police officials their presence at the spot cannot be believed. Reference can be made to on Rattan Lal v State 1987 (2) Crimes 29.
16. In the present case, as per PW1, PW2 and PW3 in their examination in chief, did not state anything about the availability of public witnesses at the spot or about the efforts made by IO to associate them in the investigation. However, during their crossexamination, they admitted that the public witnesses were available at the spot and stated that, no written notice was served upon them by IO to join the proceedings in the present case. From the testimonies of the witnesses, it is clear that sincere efforts were not made to join independent witnesses despite their availability which causes a serious dent in the story of the prosecution. The mere perusal of testimony of prosecution witnesses would reflect that during the time when the alleged button actuated knife was recovered from accused, public persons were present at the spot. The mere perusal of site plan Ex.PW1/D also confirms FIR No. : 44/2021 State Vs. : Suraj Thakur 8 that the spot of occurrence is surrounded by well populated area and hence, the public persons must have been present there. Therefore, it was incumbent on the part of IO to join the public persons in the investigation of the case but surprisingly, no such person was associated in the investigation for the reasons unexplained. The testimony of all PWs reflects that the team of police remained present at the spot for considerable time period but no sincere effort appears to have been made by the IO to join the independent public persons in the investigation proceedings during such time. If the public persons refused to join the investigation as stated in chargesheet, IO was having remedies available in law to proceed against said public persons but such course has not been adopted by the IO for the reasons best known to him.
17. In a case law reported as Anoop Joshi V/s State, 1992 (2) C.C. Cases 314 (HC), Hon'ble High Court of Delhi has observed as under: '' 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 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 FIR No. : 44/2021 State Vs. : Suraj Thakur 9 citizen, which is an offence under the IPC''.
18. The defence has also pointed out that in the sketch memo as well as seizure memo, spot map, the FIR numbers are mentioned although the FIR was registered after these documents were prepared which clearly shows that documents are anti timed and prepared in the police station, rather at the spot and for this reason no public witness had been joined.
19. Further, in the present case there is another inconsistency. As per chargesheet, in the present case, spot map was prepared when PW2 HC Ravinder had gone to police station with tehrir for registration of FIR. However, PW2 HC Ravinder and IO HC Suresh Chand, during their examinationinchief stated that after registration of FIR, when HC Ravinder returned to the spot with copy of FIR, then spot map EX. PW1/D was prepared by IO in his presence. Such material inconsistencies again support the version of the defence, that entire proceedings were done in the PS even without registration of FIR.
ORDER: ACQUITTED
20. In view of the aforesaid discussion, this Court is of the considered opinion that the complainant has failed to prove it's case beyond all reasonable shadow of doubts and the benefit of doubt ought to be granted to accused, who is entitled to be exonerated of the charge against him in the present case. Accordingly, accused Suraj Thakur is hereby acquitted of the offence punishable under Section 25 Arms Act.
21. The bail bonds, if any furnished by accused at the time of commencement of FIR No. : 44/2021 State Vs. : Suraj Thakur 10 trail stands canceled. Surety, if any stands discharged. Documents, if any shall be returned to its rightful owner as per rules. Endorsement, if any stands canceled. Case property if any, shall be disposed of after expiration of period to assail this judgment and in case of appeal, as per the directions of Ld. Appellate Court. Case file be consigned to record room after due compliance.
Announced in the open court On 25th day of July, 2023 (Aishwarya Sharma) MM01, SouthWest, Dwarka Courts, New Delhi It is certified that this judgment contains 10 pages and each page bears my signatures.
(Aishwarya Sharma)
MM01 South West District, Dwarka,
New Delhi
FIR No. : 44/2021
State Vs. : Suraj Thakur