Delhi District Court
State vs . Santosh Tiwari @ Aslam on 3 January, 2023
CNR No. DL WT02-003025-2020
IN THE COURT OF SH. KAPIL KUMAR
CHIEF METROPOLITAN MAGISTRATE- WEST
TIS HAZARI COURTS, DELHI
CNR No. DL WT-02-003025-2020
CIS No. 1443/2020
State Vs. Santosh Tiwari @ Aslam
FIR No. 95/2019
PS. Kirti Nagar
U/s. 25(1-B)(b)Arms Act
JUDGMENT
1) The date of commission of offence : 18.03.2019
2) The name of the complainant : ASI Subash Chand
3) The name & parentage of accused : Santosh Tiwari @ Aslam S/o Shiv Parshad
4) Offence complained of : u/s. 25(1-B)
(b)Arms Act
5) The plea of accused : Pleaded not guilty
6) Final order : Acquitted
7) The date of such order : 03.01.2023 Date of Institution : 18.02.2020 Judgment reserved on : 03.01.2023 Judgment announced on : 03.01.2023 Digitally signed by KAPIL KAPIL KUMAR KUMAR Date:
2023.01.03 14:51:35 +0530 CIS No. 1443/2020, State Vs. Santosh Tiwari @ Aslam ; FIR No.95/2019; PS. Kirti Nagar; U/s. 25(1-B)(b)Arms Act 1/8 CNR No. DL WT02-003025-2020 THE BRIEF REASONS FOR THE JUDGMENT:
1) The case of the prosecution against the accused is that on 18.03.2019 at about 6:10 PM near theka desi sharab railway lines bushes, Kirti Nagar 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 (1-B)(b) of the Arms Act, 1959.
2) After investigation, charge-sheet was filed against the accused. The copy of charge-sheet was supplied to the accused in compliance of Section 207 Cr.P.C. Thereafter, charge was framed against the accused under Section 25 of the Arms Act, 1959 to which he pleaded not guilty and claimed trial.
3) In support of its version, prosecution has examined two witnesses. 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.
4) I have heard Ld. APP for State and Ld Counsel for accused. I have also perused the rewherein accused claimed to be innocent and denied the allegations against him. Accused opted not to lead any DE.
4) I have heard Ld. APP for State and Ld Counsel for accused. I have also perused the record carefully.
5) The testimonies of prosecution witnesses are hereby discussed, in brief, as follows:-
5.1) PW1 ASI Subhash deposed that he along with HC Parmal apprehended the accused on 18.03.2019 on the basis of suspicion and the accused was found in the possession of one buttondaar CIS No. 1443/2020, State Vs. Santosh Tiwari @ Aslam ; FIR No.95/2019; PS. Kirti Nagar; U/s. 25(1-B)(b)Arms Act 2/8 Digitally signed by KAPIL KAPIL KUMAR Date:
KUMAR 2023.01.03 14:51:41 +0530 CNR No. DL WT02-003025-2020 knife. The sketch memo of the knife Ex.PW1/A was prepared and the same was seized vide seizure memo Ex.PW1/B. He deposed that the knife was sealed with the seal of SK and the seal handing over memo Ex.PW1/C was prepared. He deposed that tehrir Ex.PW1/D was prepared and the FIR was registered. He deposed that the further investigation was done by ASI Narender who prepared the site plan and to whom the custody of the accused and the case property was handed over. He correctly identified the accused and the case property i.e. the knife which is Ex.P1. 5.2) PW2 ASI Narender deposed that on 18.03.2019, the further investigation of the present case was marked to him. He deposed that the custody of the accused and case property was handed over to him. He deposed as to the preparation of the site plan and the proceedings qua the arrest of the accused. He correctly identified the accused.
6) 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.
7) Ld. Counsel for the accused vehemently argued that accused has been falsely implicated in this case. It is submitted that the knife was not recovered from the possession of the accused, rather the same was planted upon him by the police officials. It is further submitted that this got fortified with the fact that there is no public witness in the present case despite the fact that the accused was apprehended from the public place.
CIS No. 1443/2020, State Vs. Santosh Tiwari @ Aslam ; FIR No.95/2019; PS. Kirti Nagar; U/s. 25(1-B)(b)Arms Act 3/8 Digitally signed by KAPIL KAPIL KUMAR KUMAR Date:
2023.01.03 14:51:47 +0530 CNR No. DL WT02-003025-2020 Considering this argument of Ld Counsel it is necessary to go through the legal aspect on this poser. In State of Punjab v. Balbir Singh, AIR 1994 SC 1872, the Hon'ble Supreme Court held that:
It therefore emerges that non-
compliance 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 non-compliance. It is well-settled 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 Digitally signed by KAPIL KAPIL KUMAR KUMAR Date:
2023.01.03 14:51:54 +0530 CIS No. 1443/2020, State Vs. Santosh Tiwari @ Aslam ; FIR No.95/2019; PS. Kirti Nagar; U/s. 25(1-B)(b)Arms Act 4/8 CNR No. DL WT02-003025-2020 the provisions of Code of Criminal Procedure. Merely mentioning that public persons were requested to join 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 and give teeth to the defence of the accused that he was picked from his home.
8) It was argued by Ld Defence Counsel that the case is false is also coming from the fact that the seal was not handed over to any public persons. Records perused. The seal after use was not handed over to any independent person. Seal after use was handed over to police official. 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 Digitally signed by KAPIL KAPIL KUMAR CIS No. 1443/2020, State Vs. Santosh Tiwari @ Aslam ; FIR No.95/2019; PS. Kirti Nagar; U/s. 25(1-B)(b)Arms Act 5/8 KUMAR Date:
2023.01.03 14:51:59 +0530 CNR No. DL WT02-003025-2020 (Criminal) 452, that "7. The very purpose of giving seal to an independent person is to avoid tampering of the case property."
The case property was lying in the Malkhana of the same police station, where the police official having the possession of seal was posted. There was ample opportunities for tampering with the case property. Hence, considering the legal position, the benefit of doubt should be given to the accused.
9) Besides all this, in the present case, the sketch memo and seizure memo of the knife Ex.PW1/A and Ex.PW1/B respectively, bears the number of FIR. As per the rukka and testimony of witnesses, sketch memo and seizure memo were prepared prior to registration of FIR. If that be so then how seizure memo of the knife bears the FIR number. Now, I consider the observation made by Hon'ble Delhi High Court in Giri Raj v. State, 83 (2000) DLT 2189. 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.
10) Further, it is also important to mention here that PW1 and his associate did not offer their personal search prior to taking the search of accused. PW1 and his associate must have offered his CIS No. 1443/2020, State Vs. Santosh Tiwari @ Aslam ; FIR No.95/2019; PS. Kirti Nagar; U/s. 25(1-B)(b)Arms Act 6/8 Digitally signed by KAPIL KAPIL KUMAR KUMAR Date:
2023.01.03 14:52:05 +0530 CNR No. DL WT02-003025-2020 personal search to some independent witness. No such precaution was taken by PW1 and his associate. The doubt as to the false plantation of the case property cannot be ruled out.
11) No efforts were made by any of the police officials to lift the chance finger prints from the knife in question. Had any such efforts been made there would have been scientific evidence in the present case which could be crucial for the case of prosecution. No efforts were made to collect this scientific evidence by the IO.
12) 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 CIS No. 1443/2020, State Vs. Santosh Tiwari @ Aslam ; FIR No.95/2019; PS. Kirti Nagar; U/s. 25(1-B)(b)Arms Act 7/8 Digitally signed by KAPIL KAPIL KUMAR KUMAR Date:
2023.01.03 14:52:10 +0530 CNR No. DL WT02-003025-2020 accused and the accused has to establish his plea, the standard of proof is not the same as that which rests upon the prosecution..........................."
13) 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).
14) 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 Santosh Tiwari @ Aslam of the charges framed in the present case. Case property be confiscated to the State. Same be destroyed. File be consigned to Record Room after due compliance.
Digitally
signed by
KAPIL
KAPIL KUMAR
KUMAR Date:
2023.01.03
14:52:17
+0530
Announced in the open court (KAPIL KUMAR)
on 03.01.2023 Chief Metropolitan Magistrate
West District, Tis Hazari Courts/Delhi CIS No. 1443/2020, State Vs. Santosh Tiwari @ Aslam ; FIR No.95/2019; PS. Kirti Nagar; U/s. 25(1-B)(b)Arms Act 8/8