Delhi District Court
Fir No. 350/22 Ps: Khyala State vs . Lalit @ Golu 1 on 15 September, 2022
THE COURT OF SMT. SHAGUN
METROPOLITAN MAGISTRATE -04, WEST
ROOM NO. 268, TIS HAZARI COURTS, DELHI
STATE
VERSUS
Lalit @ Golu CASE NO. 5836/21
FIR No. 350/22
P.S- KHYALA
U/S- 25/54/59 of Arms
Act, 1959.
1. Date of commission of offence: 02.04.2022
2. Name of the Complainant : HC Ashok
3. Name of the accused, and
his parentage and residence : Lalit @ Golu S/o Sh.
Partap Singh, R/o: H.
No. B-3/972, 12.5 sq.
yards, Raghubir Nagar,
Khyala, Delhi.
4. Date when judgment : 12.09.2022
was reserved
5. Date when Judgment : 12.09.2022
was pronounced
6. Offence Complained of : Section 25/54/59 of
or proved Arms Act.
7. Plea of accused : Pleaded not guilty
8. Final Judgment : ACQUITTED
****************************************************************************
BRIEF FACTUAL POSITION:-
FIR No. 350/22 PS: Khyala State Vs. Lalit @ Golu 1
1. This is the prosecution of accused Lalit @Golu pursuant to charge sheet filed by PS Khyala U/s 25/54/59 Arms Act subsequent to the investigation carried out by them in FIR No.350/2022.
2. As per the prosecution, on 02.04.2022 HC Ashok and HC Raj Kumar were on emergency duty and were returning to PS after receiving DD entry 93A and at about 10:20pm found one person who turned and started running on seeing them, who was then nabbed whose name was disclosed as Lalit @ Golu. On search was found in possession of one button actuated knife.
3. Complete set of charge sheet and other documents were supplied to the accused. After hearing arguments, charge for offence punishable under section 25/54/59 Arms Act was framed against the accused to which he pleaded not guilty and claimed trial.
4. Vide separate statement of the accused u/s 294 Cr.P.C accused admitted the genuineness of the FIR,DAD Notification dated 29.10.1980, certificate u/s65B Indian evidence act, DD No.93A dated 02.04.2022.
5. Thereafter, the matter was posted for prosecution evidence. The prosecution got examined three witnesses in support of its case.
6. PW1 HC Ashok deposed that on 02.04.2022 he along with HC Raj Kumar received a DD entry number 93A regarding some other incident and when they were coming back and reached at ghodewala Mandir at about 10:20 PM they saw one person coming on foot and on seeing them he moved back and started working in a fast pace. On suspicion, PW1 along with HC Rajkumar apprehended him and on enquiry he disclosed his name as Lalit @ Golu. The witness correctly identified the accused. The witness further stated that on his cursory search the said accused was found in possession of one button actuated knife recovered from right pocket of his lower. Four five persons the requested to join the investigation as well as recovery proceedings however no one joined and left the spot citing their personal difficulties FIR No. 350/22 PS: Khyala State Vs. Lalit @ Golu 2 and without disclosing the names and addresses. No notice was given to them. It is further stated by PW1 that HC Rajkumar measured the knife and the length of the knife was 31 cm, length of the fal was 16.5 cm length of dasta was 14.5 cm and the breath of the fal was 3.1 cm. The knife was a button in between which is used to open and close the knife. PW1 further deposed that he kept the knife on a white blank paper and prepared the sketch of the knife which is Ex.PW1/A. The said knife was seized by seizure memo Ex PW1/B and the same was kept in a transparent plastic box sealed with the seal of AK. Seal after use was handed over to HC Rajkumar. After that it was prepared by PW1 which is Ex.PW1/C and the same was handed over to HC Rajkumar for registration of FIR thereupon he got the present case FIR registered and returned at the spot along with IO/ HC Pradeep. Thereafter he handed over the seizure memo, seized case property along with custody of accused to HC Pradeep. Thereafter the IO prepared the site plan which is Ex. PW 1/D and the IO recorded the disclosure statement of the accused which is Ex. PW1/E. The accused was arrested vide arrest memo Ex PW1/F and his personal search was conducted vide Ex.PW1/G. It is further deposed by PW1 that after the aforesaid proceedings all of them came back to PS and his statement was recorded by the IO. The witness correctly identified the case property. During his cross- examination the witness deposed that he did not remember his duty hours on the date of the incident. The witness further stated that he prepared the site plan and again stated that IO HC Pradeep prepared the site plan at his instance. The witness deposed that there was little crowd at the spot however there were no CCTV cameras installed at the place of the incident.
7. PW2 ASI Rajkumar deposed on the similar lines as PW1. The witness additionally stated that they accused in his disclosure statement disclosed that he has also stolen the motorcycle bearing number DL 13SN 0881 which upon checking on zipnet was found to be stolen in FIR No. 8025/22 PS Netaji Subash place. It is further stated by the witness that HC Pradeep then prepared seizure memo which is exhibit PW2/B. The motorcycle did not have any battery, tires, side panel and mirrors and accused disclosed that he has sold these parts to a Kabadi and use the said money personally. Thereafter they kept the motorcycle in a E-Rickshaw and brought FIR No. 350/22 PS: Khyala State Vs. Lalit @ Golu 3 the same to PS and deposited the same to Malkana. During his cross examination the witness deposed that he was on emergency duty with HC Ashok. The witness could not remember the exact timing when the accused was medically examined but deposed that he was examined the same day. The witness could not depose as to who had taken the accused for his medical examination. The witness further deposed that only knife was recovered from accused and nothing else.
8. PW3 HC Pradeep deposed that the duty officer informed him regarding the present case and thereafter deposed on similar lines as PW2. During his cross examination the witness deposed that he was on duty 24 hours at PS and deposed that he reached at the spot on motorcycle alone. He further deposed that the accused was medically examined the next day on 03.04.2022 in afternoon.
9. Thereafter, statement of accused U/s 313 r/w 281 Cr.P.C was recorded in which all incriminating circumstances appearing in evidence against accused was put to him to which he stated that he is innocent and that he has been falsely implicated in this case. Accused did not lead any defence evidence.
10. Arguments addressed by defence counsel and the state have been heard and record has been perused. Since the accused is alleged to have been found in possession of arms other than firearms, in contravention of notification issued by the Delhi Administration, in exercise of powers conferred by the notification no. 212 169, Vol. (ii) dated 21.06.1969 of the Ministry of Home Affairs, Government of India, the specific allegation against him is regarding commission of offence u/s 4 r/w Section 25 (1B)(b) of the Arms Act, 1959.
Section 4 of the Act states that- "if the Central Government is of the opinion that having regard to the circumstances prevailing in any area, it is necessary or expedient in the public interest that the acquisition, possessing or carrying of arms other than firearms should also be regulated, it may, by notification in the Official Gazette, direct that this Section shall apply to the area specified in the notification and thereupon no FIR No. 350/22 PS: Khyala State Vs. Lalit @ Golu 4 person shall acquire, have in his possession or carry in the area arms of such class or description, as may be specified in that notification unless he holds in this behalf, a license issued in accordance with the provision of this Act and the rules made thereunder".
Section 25 (1B)(b) states that- "whoever acquires, has in his possession, or carries in any place specified by the notification under Section 4, any arms of such class or description as has been specified in that notification, in contravention of that Section, shall be punishable with imprisonment for a term which shall not be less than one year, but which may extend to three years, and shall also be liable to fine; provided that Court may, for any adequate and special reasons to be recorded in the judgment, impose a sentence of imprisonment for a term of less than one year"
Prosecution has alleged that the accused was found in possession of a buttondar acuatuated knife. However, a perusal of the aforesaid notification reveals that it is in respect of regulation of manufacture, sale or possession for sale or test of the spring-actuated knives, garrider knives, buttondar knives, and other knives which open or close with any mechanical device, with a sharp edge of 7.62 Cm or more in length, and 1.72 cm or more in breadth, in the Union Territory of Delhi. Further, vide the aforesaid notification, the Administration of Delhi directed that no person in the Union Territory of Delhi shall manufacture, sell or possess for sale or test, spring actuated knives, Garridar knives, buttondar knives or other knives which open or close with any other mechanical device with a sharp edged blade of 7.62 cms or more in length, and 1.72 cms or more in breadth, in the Union Territory of Delhi, unless he holds a license issued in accordance with the provisions of the Arms Act, 1959 and Arms Rules, 1962 framed thereunder, with effect from the date of publication of the notification in the official gazette. A perusal of the evidence reveals that the prosecution has based the present case on the basis of recovery only, and FIR No. 350/22 PS: Khyala State Vs. Lalit @ Golu 5 has nowhere alleged that the accused possessed the said knife for the purpose of 'sale or test', which is an essential ingredient of the aforesaid notification, and an essential requirement for conviction under Section 4 r/w Section 25(1B)(b) of the Arms Act, 1959. However, in the opinion of this Court, when the prosecution has alleged the recovery of button actuated knife from the accused, of the description which has been prohibited by the notification, without holding any valid license, it can be presumed u/s 114 of the Evidence Act, 1872 that the accused was possessing it for the prohibited purpose of 'sale or test' and the burden falls upon the accused, u/s 106 of the Indian Evidence Act to rebut this presumption, and to show that he did not possess the same for prohibited purposes. No question regarding ascertainment of purpose has been put to the prosecution witnesses in their cross- examination, and no statement in this regard has been given by the accused during his examination u/s 313 Cr.P.C. This is because the defence is contesting the very factum of such possession and recovery/ seizure.
11. It is a settled proposition of criminal law that prosecution is supposed to prove its case on judicial file beyond reasonable doubt by leading reliable, cogent and convincing evidence. In order to prove its case on judicial file, prosecution is supposed to stand on its own legs and it cannot derive any benefit whatsoever from the weaknesses, if any, of the defence of the accused. The burden of proof of the version of the prosecution in a criminal trial throughout the trial is on the prosecution and it never shifts on to the accused. Also it is a settled proposition of criminal law that accused is entitled to the benefit of reasonable doubt in the prosecution story and such reasonable doubt entitles the accused to be acquitted.
12. After considering respective arguments and evidence led by prosecution, the undersigned is of the considered opinion that prosecution has not been able to prove guilt of accused beyond reasonable doubt. The accused deserves acquittal on following grounds:-
12.1 Firstly, no public witness has been joined in the investigation.
FIR No. 350/22 PS: Khyala State Vs. Lalit @ Golu 6 Section 100(4) Cr.P.C states that, "before making a search under this Chapers, the officer or other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate or of any other locality if no such inhabitant of the said locality is available is available or is willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do"....
Section 37 Cr.P.C. states that, "every person is bound to assist a Magistrate or police officer reasonably demanding his aid-
(a) in the taking or preventing the escape of any other person whom such Magistrate or police Officer is authorized to arrest ; or
(b) in the prevention of suppression of a breach of the peace; or
(c) in the prevention of any injury attempted to be committed to any railway, canal, telegraph or public property.
12.2 Section 42 Cr.P.C. states that, " when any person who, in the presence of the police officer, has committed or has been accused of committing a non-cognizable offene refuses, on demand of such officer, to give his name and residence or gives a name or residence which such officer has reason to believe to be false, he may be arrested by such officer in order that his name of residence may be ascertained.
(2) When the true name and residence of such persons have been ascertained, he shall be released on his executing a bond, with or without sureties, to appear before a Magistrate, if so required;
Provided that, if such person is not resident in India, the bond shall be secured by a surety of sureties resident in India.
(3) Should the true name and residence of such person not be ascertained within twenty-four hours from the time of arrest or should he fail to edxecute the bond, or, if so required, to furnish sufficient sureties, he shall forthwith be forwarded to the nearest Magistrate FIR No. 350/22 PS: Khyala State Vs. Lalit @ Golu 7 having jurisdiction.
12.03 Section 187 IPC states that, " whoever, being bound by law to render or furnish assistance to any public servant in the execution of his public duty, intentionally omits to give such assistance, shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to two hundred rupees, or with both;
and if such assistance be demanded of him by a public servant legally competent to make such demand for the purpose of executing any process lawfully issued by a Court of Justice, or of preventing the commission of an offene, or of suppressing a riot, or affray, or of apprehending a person charged with or guilty of an offence, or of having escaped from lawful custody, shall be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to five hundred rupees, or with both.
13. PW-1, 2 and 3 in their examination-in-chief as well as cross- examination have stated that public persons were asked to join the proceedings but none agreed, however, no written notice was given to any such public person and even their names or other particulars were not recorded, which shows that sincere efforts were not made by the police officials to join the public persons. Non-joining of public witnesses also causes a dent in credibility of prosecution version. Had public witnesses witnessed search of accused, prosecution version would have been more authentic. This is not to say that testimony of police officials is not reliable but addition of public witnesses before search of accused would have made prosecution version more reliable. Failure on the part of the police officials to make sincere effort to join public witnesses for the proceedings when they may be available creates reasonable doubt in the prosecution story in view of the following case law. In the case of Anoop Joshi Vs. State 1992 (2) C.C. Cases 314 (HC), Hon'ble High Court of Delhi has observed as under:
FIR No. 350/22 PS: Khyala State Vs. Lalit @ Golu 8 "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 shop keepers 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."
14. It is also evident that at no point PW-1 and 2 offer their own personal search to any independent witness prior to conducting the personal search of accused. In the case of Rabindernath Prusty v. State of Orissa, Hon'ble Orissa High Court , it was held that "one of the formalities that have to be observed in searching a person is that the searching officer and other assisting him should give their search to the accused before searching the person of the accused."
15. Further, no efforts were made by any of the police officials to lift the chance fingerprints 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.
16. Since all the witnesses are police personnels and the necessary safeguards in the investigation have not been followed by the investigating officer, I am of the view that chances of false implication cannot be ruled out at the instance of the police. Further, PW-2 has stated that he returned to the spot after registration of FIR alongwith PW-3 however, PW-3 has categorically deposed that he reached the spot alone on his motorcycle. PW-2 could not depose as to when was the accused FIR No. 350/22 PS: Khyala State Vs. Lalit @ Golu 9 medically examined and deposed that he was examined the same day however the PW-3 deposed that the accused was examined the next day in the afternoon. It raises serious doubt on the presence of PW-2 at the spot.
17. Further as per the testimony of PW-1 and 2, the seal after use on the pulinda containing the knife allegedly recovered from the accused was given to none else but to PW-2, who himself was recovery witness, who apprehended the accused. Such material witness of a case is always interested in the success of the case of the prosecution and keeping in view this fact, the chances of fabrication & planting of the case property cannot be ruled out beyond reasonable doubt. Further no DD entry of handing over or returning of seal has been proved on record. 17.1 Hon'ble Supreme Court in "S.L Goswami v State of M.P (1972 Cri.L.J.511SC)" opined that :-
"...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 could 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..."
18. In view of the foregoing discussion, it is held that the prosecution has not been able to successfully build the case against the accused. As there are material deficiencies in the prosecution case, it is a fit case in which benefit of doubt must be given to the accused. Accused is thus entitled to benefit of doubt and is accordingly acquitted for offence for the offence u/s 25/54/59 Arms Act. Digitally signed by SHAGUN SHAGUN Date:
2022.09.16 10:40:27 +0530 ANNOUNCED IN THE OPEN (SHAGUN) COURT ON 15.09.2021 MM-04 (WEST)/DELHI Digitally signed by SHAGUN SHAGUN Date:
Containing 10 pages all signed by the presiding officer. 2022.09.16 10:40:33 +0530 (SHAGUN) MM-04 (WEST)/DELHI FIR No. 350/22 PS: Khyala State Vs. Lalit @ Golu 10