Delhi District Court
State vs . Abhishek on 3 December, 2022
CNR No. DL WT02-0005862022
IN THE COURT OF SH. KAPIL KUMAR
CHIEF METROPOLITAN MAGISTRATE- WEST
TIS HAZARI COURTS, DELHI
CNR No. DL WT-02-0005862022
CIS No. 1656/2022
State Vs. Abhishek
FIR No. 557/2021
PS. Kirti Nagar
U/s. 25(1-B)(b)Arms Act
JUDGMENT
1) The date of commission of offence : 14.12.2021
2) The name of the complainant : HC Jugal Kishore
3) The name & parentage of accused : Abhishek S/o Baid Nath
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 : 03.12.2022 Date of Institution : 14.01.2022 Judgment reserved on : 03.12.2022 Judgment announced on : 03.12.2022 Digitally signed by KAPIL KAPIL KUMAR KUMAR Date:
2022.12.03 15:12:02 +0530 CIS No. 1656/2022, State Vs. Abhishek ; FIR No.557/2021; PS. Kirti Nagar; U/s. 25(1-B)(b)Arms Act 1/8 CNR No. DL WT02-0005862022 THE BRIEF REASONS FOR THE JUDGMENT:
1) The case of the prosecution against the accused is that on 14.12.2021 at about 11:15 PM near toilet Kamla Nehru Camp, 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 three 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 record carefully.
5) The testimonies of prosecution witnesses are hereby discussed, in brief, as follows:-
5.1) PW1 HC Jugal Kishore and PW2 HC Jaganjeet Singh deposed on the same lines that on 14.12.2021, they were on patrolling duty and when they reached near public toilet they saw accused coming from the side of WHS and was apprehended on suspicion and was found in the possession of illegal buttondaar knife. Public persons were asked to join the investigation but none agreed. The sketch memo of knife Ex.PW1/A was prepared CIS No. 1656/2022, State Vs. Abhishek ; FIR No.557/2021; PS. Kirti Nagar; U/s. 25(1-B)(b)Arms Act 2/8 Digitally signed by KAPIL KAPIL KUMAR KUMAR Date:
2022.12.03 15:12:09 +0530 CNR No. DL WT02-0005862022 followed by the preparation of seizure memo Ex.PW1/B. They deposed that the seal handing over memo Ex.PW1/C was prepared. They deposed that rukka Ex.PW3/A was prepared and FIR Ex.A1 was got registered. They deposed that the accused was arrested and personally searched. They deposed that the disclosure statement Ex.PW2/C of accused was recorded. They correctly identified the knife which was proved as Ex.P1 and the accused in the court.
5.2) PW3 ASI Harender Kumar deposed that on 15.12.2021, the further investigation of the present case was marked to him.
He deposed that he reached at the spot where the custody of the accused and case property was handed over to him. He deposed as to the disclosure statement of the accused Ex.PW2/C and documents prepared 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 was picked from his home by the police officials and thereafter the knife was planted upon him. 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. Considering this argument of Ld Counsel it is necessary to go through the legal aspect on this CIS No. 1656/2022, State Vs. Abhishek ; FIR No.557/2021; PS. Kirti Nagar; U/s. 25(1-B)(b)Arms Act 3/8 KAPIL Digitally signed by KAPIL KUMAR KUMAR 15:12:15 +0530 Date: 2022.12.03 CNR No. DL WT02-0005862022 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 the provisions of Code of Criminal Procedure. Merely mentioning that public persons were requested to join the CIS No. 1656/2022, State Vs. Abhishek ; FIR No.557/2021; PS. Kirti Nagar; U/s. 25(1-B)(b)Arms Act 4/8 Digitally signed by KAPIL KAPIL KUMAR Date:
KUMAR 2022.12.03 15:12:21 +0530 CNR No. DL WT02-0005862022 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) Further, 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 (Criminal) 452, that "7. The very purpose of giving seal to an independent person is to avoid tampering of the case property."
CIS No. 1656/2022, State Vs. Abhishek ; FIR No.557/2021; PS. Kirti Nagar; U/s. 25(1-B)(b)Arms Act 5/8 Digitally signed by KAPIL KAPIL KUMAR Date:
KUMAR 2022.12.03
15:12:28
+0530
CNR No. DL WT02-0005862022
The case property was lying in the Maalkhana 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 came on record that PW1 and PW2 did not offer their personal search prior to taking the search of accused. PW1 and PW2 must have offered his personal search to some independent witness. No such precaution was taken by PW1 and PW2. The doubt as to the false plantation of the case property cannot be ruled out.
CIS No. 1656/2022, State Vs. Abhishek ; FIR No.557/2021; PS. Kirti Nagar; U/s. 25(1-B)(b)Arms Act 6/8 Digitally signed by KAPIL KAPIL KUMAR KUMAR Date:
2022.12.03 15:12:35 +0530 CNR No. DL WT02-0005862022
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 accused and the accused has to establish his plea, the standard of proof is not the same as that which rests upon the prosecution..........................."
CIS No. 1656/2022, State Vs. Abhishek ; FIR No.557/2021; PS. Kirti Nagar; U/s. 25(1-B)(b)Arms Act 7/8 Digitally signed by KAPIL KAPIL KUMAR KUMAR Date:
2022.12.03 15:12:41 +0530 CNR No. DL WT02-0005862022
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 Abhishek 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
Date:
KUMAR 2022.12.03
15:12:47
+0530
Announced in the open court (KAPIL KUMAR)
on 03.12.2022 Chief Metropolitan Magistrate
West District, Tis Hazari Courts/Delhi CIS No. 1656/2022, State Vs. Abhishek ; FIR No.557/2021; PS. Kirti Nagar; U/s. 25(1-B)(b)Arms Act 8/8