Delhi District Court
State vs Ashu on 12 February, 2024
IN THE COURT OF HARSHAL NEGI
METROPOLITAN MAGISTRATE-02, DWARKA COURT,
NEW DELHI.
FIR No.: 478/2019
PS: Dabri
U/s: 25/54/59 Arms Act
Case no. 6660/2021
State
Vs.
Ashu
S/o Sh. Ramesh,
R/o H. No. M-47,
Vijay Enclave, New Delhi. ..... Accused
S. No. of the case : 6660/2021
The date of offence : 02.08.2019
The name of the complainant : HC Desh Raj Yadav
The name of the accused : Ashu
The offence complained : 25/54/59 Arms Act
The plea of the accused : Pleaded not guilty
Argument heard on : 20.01.2024
The date of order : 12.02.2024
The final order : Acquitted
Brief Facts
1. Tersely put, it is the case of the prosecution that on 02.08.2019 HC Deshraj along with Ct Krishan were on patrolling duty when one secret informer told them that a boy is sitting near Chhat Puja Park along with knife and who can do an offence with the help of that knife. A raiding party was formed and went to Chhat Puja Park wherein the secret informer indicated towards the boy i.e. herein the accused. Thereafter, with the help of Ct Krishan, HC deshraj overpowered the said boy and upon search one buttondar knife was found in his possession. An FIR bearing no. 478/2019 u/s 25 Arms Act came to be registered at PS Dabri.
FIR No.: 478/2019 State v. Ashu Page no. 1/15
2. Investigation was set into motion and was conducted by 1st IO HC Deshraj and thereafter by HC Raj Kumar. Chargesheet was filed by IO HC Raj Kumar under Section 25 Arms Act.
3. After taking cognizance of the offence, the accused was summoned to face trial. On his appearance, a copy of chargesheet along with documents were supplied to the accused in terms of Section 207 of the Code of Criminal Procedure (hereinafter referred to as 'CrPC'). On finding a prima facie case against him, charge under Section 25 Arms Act was framed against the accused on 11.05.2022 to which the accused pleaded not guilty and claimed trial.
4. A total of 6 persons were made witnesses as per the list of witness. The accused in his statement under Section 294 CRPC admitted FIR No 478/2019 PS Dabri Ex P1 and DAD Notification of Delhi Govt dated 29.10.1980 Ex P2. During the course of the trial witnesses at serial no 2,3 & 4 were deleted in furtherance of statement of the accused under Section 294 CRPC. HC Deshraj and HC Raj Kumar were examined as PW 1 & PW 2, respectively, by the prosecution to establish the case against the accused.
Prosecution Evidence
5. PW 1 HC Deshraj was examined on 25.05.2022 and 22.08.2022.
He stated that on 02.08.2019, he was posted as HC at PS Dabri and on that day he along with Ct Krishan were on patrolling duty. One secret informer told him that one person one boy is sitting near Chhat Puja Park along with knife and who can do an offence with the help of that knife, if raided, he can be caught. He FIR No.: 478/2019 State v. Ashu Page no. 2/15 informed the SHO about the facts and he asked him to form a raiding party. He formed a raiding party which consisted of himself, Ct Krishan and secret informer. Thereafter, they went to Chhat Puja park and took their positions. The secret informer indicated towards the boy and informed them that the boy was with the knife. Thereafter, he with the help of Ct Krishan overpowered the said boy and upon search one buttondar knife was found from his possession. He informed about the same to the police station. He prepared the rukka Ex PW1/1 (bearing his signature at point A). He prepared the tehrir which is Ex PW1/2 (bearing his signature at point A). Thereafter, he prepared the sketch of the knife which is Ex PW1/3 (bearing his signature at point A) and the same was taken into police possession vide seizure memo Ex PW1/4 (bearing his signature at point A) after turning the same into a pullanda sealed with the seal of DRY and thereafter, the seal was handed over to Ct Krishan and prepared the rukka upon the same and got the FIR registered through him and he returned to the spot and handed over the copy of the FIR and original tehrir to him. HC Raj kumar also came to the spot along with Ct Krishan. HC Raj Kumar prepared the site plan at his instance Ex PW1/5. HC Raj kumar recorded his statement and thereafter, he (PW1) went back to the PS at about 9 pm. (At this stage MHCM(M) PS Dabri produced a white-coloured cloth pullanda sealed with the intact seal of RK and bearing details of the present case. The pullanda is opened with the permission of the court and one buttondar knife is taken out from the pullanda. The same is shown to the witness and the witness correctly FIR No.: 478/2019 State v. Ashu Page no. 3/15 identifies the knife as the knife is seized vide seizure memo already Ex PW1/4. The knife is now Ex P1. The accused is present in the Court today and correctly identified by the witness.)
6. In his cross-examination PW 1 stated that they left the spot at about 11.30 pm. He went to the PS on motorcycle and rest of the staff went in QRT vehicle. There were no residential houses and no shops but public persons were passing by. Ct Krishan returned the seal to the IO/HC Raj Kumar at the spot. Some public persons were asked to join the proceedings but they refused to join the same and left the spot. No notice was served upon them for non-joining the proceedings. IO/HC Raj Kumar came to the spot at about 9.15 pm on his motorcycle along with Ct Krishan. Ct Krishan went to the PS along with the tehrir at about 8.30 pm and came back to the spot along with HC Raj kumar. He informed the SHO, PS Dabri at about 7.05 pm telephonically. He offered his search to the accused before taking his search. He informed the same to the IO. The same fact was not recorded by the IO in his statement under Section 161 CRPC. He denied the suggestion that this fact was not mentioned in the statement under Section 161 CRPC because search was not offered to the accused. He also denied the suggestion that nothing incriminating has been recovered from the possession of the accused or at the instance of the accused or that all the proceedings had been conducted while sitting at PS or that he is deposing falsely.
7. PW 2 ASI Raj Kumar was examined on 26.09.2022 and 04.10.2023. In his examination in chief he stated that on FIR No.: 478/2019 State v. Ashu Page no. 4/15 02.08.2019, he was posted as HC at PS Dabri. He along with Ct Krishan and Ct Naresh went to the spot i.e. at Chhat Puja Park, behind MTNL Office, Vijay Park where he met HC Deshraj along with the accused Ashu (Accused present in court correctly identified by the witness) and case property i.e. buttondar knife. HC Deshraj prepared the rukkawhich is alredy Ex PW1/1 (bearing his signature at Point A). HC Deshraj prepared the tehrir which is already PW1/2 (bearing his signature at Point A). Thereafter, HC Deshraj prepared the sketch of the knife and the same is Ex PW1/3 (bearing his signature at Point A) and the same was taken into police possession vide seizure memo Ex PW1/4 (bearing his signature at Point A) after turning the same into the pullanda sealed with the seal of AN (as his seal was not made at that time) and thereafter, seal was handed over to Ct Krishan and prepared the rukka upon the same and got the FIR registered through Ct Krishan and he returned to the spot and handed over the copy of the FIR and original tehrir to HC Deshraj. He also prepared site plan Ex PW1/5 (bearing his signature at Point A). Accused was arrested vide arrest memo Ex PW2/1 (bearing his signature at Point A), his personal search was conducted vide memo Ex PW2/2 (bearing his signature at Point A). He recorded disclosure statement of the accused Ex PW2/3 (bearing his signature at Point A). He recorded statement of all witnesses. (At this stage MHCM(M) PS Dabri produced a white-coloured cloth pullanda sealed with the intact seal of RK and bearing details of the present case. The pullanda is opened with the permission of the court and one buttondar knife is taken FIR No.: 478/2019 State v. Ashu Page no. 5/15 out from the pullanda. The same is shown to the witness and the witness correctly identifies the knife as the knife is seized vide seizure memo already Ex PW1/4. The knife is now Ex P1. The accused is present in the Court today and correctly identified by the witness.)
8. In his cross examination PW2 stated that they left the spot at about 10.30 pm. He do not remember the DD entry of his arrival back to the PS as he was in routine patrolling. He went to PS on his motorcycle and the rest of the staff also went to the PS on the respective motorcycle. There were no residential houses but public persons were passing by. Some p8ublic person were asked to join the proceedings but they refused to join the same and left the spot. There are no shops. He came at the spot at about 9.05 pm on his motorcycle along with Ct Krishan. No notice was served upon public persons for non-joining the proceedings. He recorded the statement of the witnesses at the spot in his own handwriting. He handed over the seal to Ct Krishan and he returned the seal to him after 4-5 days. No seal handing over memo was prepared. The distance between the spot and PS is about 0/5 km. He denied the suggestion that nothing incriminating has been recovered from the possession of the accused or at the instance of the accused or that all the proceedings had been conducted while sitting at PS.
9. The prosecution evidence was thereafter closed and the statement of accused u/s 313 CrPC was recorded on 18.12.2023 wherein all the incriminating evidence appearing on record against the accused was put to him but he denied the same and stated that FIR No.: 478/2019 State v. Ashu Page no. 6/15 nothing was recovered from his possession and he was falsely implicated in the present case.
10. The accused chose not to lead any defence evidence.
11. I have heard the Ld. APP for the State and Ld. Defence counsel at length, perused the record, gone through the relevant provisions of law and given my thoughtful consideration to the matter. Discussion/Findings
12. Before embarking on the analysis and appreciation of the statements and evidences on record it is apposite to state that to bring home the guilt of the accused in any criminal matter beyond the shadow of reasonable doubt the burden rests always upon the prosecution. The burden of proof on the prosecution is heavy, constant and does not shift. The case of the prosecution needs to stand on its own footing failing which benefit of doubt ought to be given in favor of the accused. Needless to say, in this case also, with or without defense evidence, the prosecution has to establish its case beyond reasonable doubt. On the touchstone of the above settled legal proposition the facts of the present case are to be analyzed.
I. Non-joining of Public Witnesses
13. One of the arguments of Ld. Counsel for the accused is that since no independent witness has been joined at the time of investigation, it is, therefore, difficult to believe the prosecution version as it creates a doubt on the veracity of the statement of police witnesses.
14. This court has given its thoughts to the above contention of Ld. Counsel for the accused. Perusal of the testimony of PW-1 and FIR No.: 478/2019 State v. Ashu Page no. 7/15 PW 2 reveals that they have categorically stated that there were public persons were passing by. They had also asked public persons to join the investigation, but none of them had agreed. Thus, it is not the case of the prosecution that no public person was present at or near the spot of recovery. However, it is equally true that no steps are shown to have been taken to note down the names and addresses of those persons. It is a well settled proposition of law that non-joining of public witness throws doubt over the fairness of the investigation by police. Section 100 (4) of the CrPC also casts a statutory duty on an official conducting search to join two respectable persons of the society. However, no public person has been joined by the IO in the present case.
15. In a case titled as Nanak Chand Vs. State of Delhi, 1990 SCC OnLine Del 469, Hon'ble High Court of Delhi has observed as under:
"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 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 (Emphasis supplied).
16. In the present case also, non-joining of any public person as a witness creates doubt on the case of the prosecution. Although, this Court is conscious of the fact that it is a well settled law that FIR No.: 478/2019 State v. Ashu Page no. 8/15 the prosecution case cannot be thrown out or doubted on the sole ground of non-joining of public witnesses as they keep themselves away from the Court unless it is inevitable, however, in the present case, it is not only the absence of public witnesses which raises a doubt on the prosecution version but there are other circumstances too, as discussed in the later part of the judgment, which raise suspicion over the prosecution case. II. No departure or the arrival entry of PW 1
17. The present case rests entirely on the alleged recovery of case property, i.e. buttondar knife, from the possession of the accused at the relevant time by a police official namely HC Deshraj PW 1, who was on patrolling duty at the relevant time and place, as per the prosecution story. Police officials are under a statutory duty to mark their departure and arrival in the register kept in the police station for the purpose as per the Punjab Police Rules. 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 departure or the arrival entry has been proved on the record by the prosecution. In absence of the departure and arrival entry of the police officials their presence at the spot cannot be believed. Reference can be placed upon Rattan Lal Vs. State 1987 (2) FIR No.: 478/2019 State v. Ashu Page no. 9/15 Crimes 29 Delhi High Court wherein it has been observed:
"if the investigating agency deliberately ignores to comply with the provisions of the Act, the courts will have to approach their action with reservations. The matter has to be viewed with suspicion if the provisions of law are not strictly complied with and the least that can be said is that it is so done with an oblique motive. This failure to bring on record, the DD entries creates a reasonable doubt in the prosecution version and attributes oblique motive on the part of the prosecution."
III. Doubts in preparation of Seizure Memo and Sketch of Knife.
18. There exists yet another discrepancy in the case of the prosecution. PW 1 HC Deshraj in his testimony stated that He further stated that he prepared the rukka and then the tehrir. He then stated that thereafter he prepared the seizure memo of the case property which is Ex PW1/4. He also prepared the sketch of the knife Ex PW 1/3. After that he handed over the rukka to Ct. Krishan to get the FIR registered. Thus, it is clear from the testimony of PW 1 that the seizure memo of the case property Ex PW1/4, and sketch of the knife Ex PW1/3 were prepared before the rukka was handed over by PW1 to Ct Krishan for registration of the FIR. The FIR was thus, admittedly registered after the preparation of the seizure memo, and sketch of the knife, however, surprisingly they bear the FIR number and it is thus worth wondering that if the FIR was never registered at the time when the seizure memo and sketch of the knife were prepared, how the FIR number came to be noted in the seizure memo as well as in the sketch of the knife since the number of the FIR FIR No.: 478/2019 State v. Ashu Page no. 10/15 could have come to knowledge of PW 1 HC Deshraj only after a copy of the FIR was brought to the spot. Thus, the number of FIR in no circumstances could have been mentioned by the IO on the seizure memo, and sketch of the knife which came into existence before registration of the FIR.
19. In this context, Hon'ble High Court of Delhi in Pawan Kumar v. The Delhi Administration, 1987 SCC OnLine Del 290, has observed as under in paragraph 6:
"Learned counsel for the State concedes that immediately after the arrest of the accused, his personal search was effected and the memo Ex. PW11/D was prepared. Thereafter, the sketch plan of the knife was prepared in the presence of the witnesses. After that, the ruqa EX. PW11/F was sent to the Police Station for the registration of the case on the basis of which the FIR, PW11/G was recorded. The F.I.R. is numbered as 36, a copy of which was sent to the I.O. after its registration. It comes to that the number of F.I.R. came to the knowledge of the I.O. after a copy of it was delivered to him at the spot by a constable. In the normal circumstances, the F.I.R. No. should not find mention in the recovery memo or the sketch plan which had come into existence before the registration of the case. However, from the perusal of the recovery memo, I find that the FIR is mentioned whereas the sketch plan does not show the number of the FIR. It is not explained as to how and under what circumstances the recovery memo came to bear the F.I.R. No. which had already come into existence before the registration of the case. These are few of the circumstances which create a doubt, in my mind, FIR No.: 478/2019 State v. Ashu Page no. 11/15 about the genuineness of the weapon of offence alleged to have been recovered from the accused."
20. In another case titled Mohd. Hashim v. State, 1999 SCC OnLine Del 859, the Hon'ble High Court of Delhi while dealing with an appeal under the Narcotic Drugs and Psychotropic Substances Act, 1985 has also observed about the discrepancy, i.e., appearance of FIR number on seizure memo and other documents before registration of FIR and it runs as under:
"Surprisingly, the secret information (Ex. PW7/A) received by the Sub-Inspector Narender Kumar Tyagi (PW-7), the notice under Section 50 of the Act (Ex. PW5/A) alleged to have been served on the appellant, the seizure memo (Ex. PW1/A) and the report submitted under Section 57 of the Act (Ex. PW7/D) bear the number of the FIR (Ex. PW4/B). The number of the FIR (Ex. PW4/B) given on the top of the aforesaid documents is in the same ink and in the same handwriting, which clearly indicates that these documents were prepared at the same time. The prosecution has not offered any explanation as to under what circumstance number of the FIR (Ex. PW4/B) had appeared on the top of the aforesaid documents, which were allegedly prepared on the spot. This gives rise to two inferences that either the FIR (Ex. PW4/B) was recorded prior to the alleged recovery of the contraband or number of the said FIR was inserted in these documents 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 recovery of the contraband in the manner alleged by the prosecution."
FIR No.: 478/2019 State v. Ashu Page no. 12/15
21. In the light of the abovesaid judgments, the mentioning of the number of FIR in the seizure memo and sketch of the knife creates serious doubt on the prosecution version and alleged recovery of buttondar knife and it leads to only one conclusion that either the said documents were prepared later on or that the FIR was registered earlier in point of time. In both the aforesaid eventualities, a reasonable doubt has been raised on the version of the prosecution the benefit of which has to be given to the accused.
IV. Discrepancy in procedure followed by PW 1.
22. In the present matter, the first IO was HC Deshraj, who was also the complainant. In his testimony he stated that when he apprehended the accused and recovered the buttondar knife from his possession he prepared the seizure memo and the sketch of the knife. He also stated that he prepared the rukka as well as the tehrir. Perusal of the seizure memo and sketch of the knife reflects only one witness i.e. Ct Krishan. Thus, what has transpired is that the entire process of seizure and recovery took in the presence of two police officials i.e. HC Deshraj PW1 and Ct Krishan. Thus, the seizure memo and the sketch of the knife was not prepared in the presence of two witnesses thereby Section 100 CRPC was not complied with. This in turn creates a doubt in the case of the prosecution with respect to the recovery, the benefit of which has to be given to the accused. V. No search of PW 1 before search of accused.
23. Further, in the case in hand, the police officials allegedly searched the accused and one buttondar Knife was allegedly FIR No.: 478/2019 State v. Ashu Page no. 13/15 recovered from his possession. However, admittedly the police officials did not offer their search to the accused prior to taking his search for alleged recovery. In the present matter it is clear from the record that after the apprehension of the accused but before taking the formal/casual search of the accused, police official(s) had not offered their own search to the accused. PW 1 HC Deshraj in his testimony remained silent on this aspect. Only in cross examination he stated that he offered his search to the accused before taking the search of the accused. However, he categorically stated that this was not recorded by the IO in his statement under Section 161 CRPC. At this juncture, it would be appropriate to refer to the judgment of Hon'ble Orissa High Court reported as Rabindernath Prusty V/s State of Orissa, 1984 CRLJ 1392 wherein it was held as under:
"The next part of the prosecution case is relating to the search and recovery of Rs.500/ from the accused. One of the formalities that has to be observed in searching a person in that the searching Officer and others assisting him should give their personal search to the accused before searching the person of the accused. (See AIR 1969 SC 53 : (1969 Cri. L.J 279), State of Bihar V/s Kapil Singh). This rule is meant to avoid the possibility of implanting the object which was brought out by the search. There is no evidence on record whatsoever that the raiding party gave their personal search to the accused before the latter's person was searched. Besides the above, it is in the evidence of PWs 2 and 5 that the accused wanted to know the reason for which his person was to be searched and the reason for such search FIR No.: 478/2019 State v. Ashu Page no. 14/15 was not intimated to the accused. No independent witness had witnessed the search. In the above premises, my conclusion is that the search was illegal and consequently the conviction based thereon is also vitiated''.
24. Thus, being guided by above said case law, it can be said that search of the accused by above said police official(s) was in complete violation of the above said case law and the same can be said to be illegal.
25. Thus, in light of the above discussion which throws doubt on the authenticity of the prosecution version, this court is of the opinion that prosecution has failed to prove its case beyond reasonable doubt that buttondar knife was recovered from the possession of the accused. The accused Ashu s/o Ramesh is, therefore, acquitted of the offence u/s 25 Arms Act.
Announced in the open court on 12.02.2024
Digitally signed by
HARSHAL HARSHAL NEGI
NEGI Date: 2024.02.12
17:04:12 +0530
(Harshal Negi)
MM-02/Dwarka Court,
New Delhi, 12.02.2024
It is certified that the present judgment runs into 15 pages and each page bears my signature. Digitally signed by HARSHAL HARSHAL NEGI NEGI Date: 2024.02.12 17:04:17 +0530 (Harshal Negi) MM-02/Dwarka Court, New Delhi, 12.02.2024 FIR No.: 478/2019 State v. Ashu Page no. 15/15