Delhi District Court
State vs Subhash on 31 January, 2025
IN THE COURT OF SH SACHIN, METROPOLITAN
MAGISTRATE-03, EAST KARKARDOOMA COURTS : DELHI
FIR No. 175/2022
Police Station Mandawali
Unique Case ID No. 779/2022
Title State Vs. Subhash
Name of complainant Ct Anchal
Name of accused Subhash
Son of Madan Bahadur
R/o House No. 512, Gali No.9, West
Vinod Nagar, Mandawali Fazalpur,
East Delhi.
Date of institution of challan 22.02.2022
Date of Final arguments 22.01.2025
Date of pronouncement 31.01.2025
Offence complained of
U/s. 25/54/59 Arms Act
Offence charged with U/s. 25 (1B) Arms Act
Plea of the accused Pleaded not guilty
Final order Acquitted
FIR No. 175/2022 State Vs. Subhash page 1 of 19
Digitally
signed by
SACHIN
SACHIN Date:
2025.01.31
16:18:15
+0530
JUDGMENT
BRIEF REASONS FOR THE DECISION OF THE CASE:-
01. The present case of the prosecution is that on 22.01.2022 at about 8.45 pm, at Ambedkar Park, Shanti Marg West Vinod Nagar, Delhi within jurisdiction of PS Mandawali, accused was found in the possession of one button actuated knife in contravention of notification of Delhi Government and thereby committed offence punishable u/s. 25 (1B) Arms Act. Accordingly, after the investigation, police filed the present charge sheet against accused for commission of offences punishable U/s 25 (1B) Arms Act.
02. The Court had taken cognizance of offence under Section 25 of the Arms Act and issued process to the accused. The accused was supplied copy of charge sheet and accompanying documents as provided u/s 207 Cr.P.C.
03. Upon appearance of the accused, complete set of charge sheet and other documents were supplied to the accused. After hearing arguments, charge for offences punishable under section 25 Arms Act on 05.07.2022 was framed against the accused to which he pleaded not guilty and claimed trial.
FIR No. 175/2022 State Vs. Subhash page 2 of 19 Digitally signed by SACHIN SACHIN Date:
2025.01.31 16:18:27 +0530
04. The prosecution had cited total 06 witnesses in the present matter, out of which 4 witnesses were examined. One of the witness i.e. PW Ct Anchal was cited at two places in the list of witnesses. The sixth witness was MHC(M) who produced the case property.
EVIDENCE OF THE PROSECUTION IN BRIEF:-
05. PW1 is HC Anchal who deposed that he is a complainant in the present case and on 22.01.2022, he was posted as Ct at PS Mandawali. On that day, he alongwith Ct Ajay i.e. PW3 was on patrolling duty in the area of PS and at around 8.45 pm, when they reached at Ambedkar Park, Shanti Marg, West Vinod Nagar, they saw one boy was standing in the park, on seeing them he started walking hastily. On becoming suspicious, he apprehended the boy by chasing him and in the mean time, HC Ajay also reached there. He further stated that during interrogation the boy revealed his name as Subhash (accused was correctly identified by the witness). He made cursory search of the accused and one buttondar knife was recovered from his right side pocket of his pant. He conveyed this information to concerned DO at the PS. Thereafter, IO ASI Shajudeen/PW4 came at the spot and he handed over the custody of the accused alongwith the recovered knife to the IO. He further stated that IO prepared rough sketch of knife which is ExPW1/A bearing his signature at point B FIR No. 175/2022 State Vs. Subhash page 3 of 19 Digitally signed by SACHIN SACHIN Date:
2025.01.31 16:18:35 +0530 and put the knife in the transparent plastic box with doctored tape and sealed with the seal of 'SDN' and seized the same vide memo Ex.PW1/B bearing his signature at point A. After using the seal it was handed over to him. IO recorded his statement which is EX.PW1/C bearing his signature at point A and prepared the tehrir and handed over the same to him for registration of FIR. He further stated that he went to the PS and got the FIR registered and returned back to the spot alongwith the copy of FIR and original tehrir and handed over the same to the IO. He stated that the IO prepared the site plan at his instance which is Ex.PW1/D bearing his signature at point A. He further stated that IO arrested and personally searched the accused vide memo Ex.PW1/E and PW1/F, both bearing his signature at point A. IO also recorded the disclosure statement of the accused which is Ex.PW1/G, bearing his signature at point A. He further stated that IO recorded his statement. MHC(M) produced the case property i.e. one plastic bag with the seal of SDN containing buttondar actuated knife bearing details of the case, the same was opened with the permission of the court and witness correctly identified the cae property as Ex.P1.
5a PW1 was cross examined by Ld defence counsel to which he stated that he did not remember his departure entry and further stated that spot was a densely populated area and he requested FIR No. 175/2022 State Vs. Subhash page 4 of 19 Digitally signed by SACHIN SACHIN Date:
2025.01.31 16:18:44 +0530 to the public persons to join the investigation but none joined the investigation and left the spot without disclosing their names and addresses and he could not serve any notice to them due to paucity of time. He further denied the suggestion that nothing was recovered from the accused and accused has been falsely implicated in the present case.
06. PW2 is Retired ASI Kunwarpal Singh, who deposed that on 22.01.2022, he was posted as HC at PS Mandwali and on that day, he was working as Duty officer from 4.00 pm to 12.00 am midnight and at about 11.03 pm, he received a rukka from Ct Aanchal sent by ASI Shajudeen, and on the basis of rukka, he got the FIR registered of the present case and handed over the copy of FIR and rukka to Ct Anchal to hand over the same to ASI Shahudeen. He proved the FIR as Ex.PW2/A and also made the endorsement on rukka, which is Ex.PW2/B bearing his signature at point A and he issued certificate U/s 65B of Indian Evidence Act and the same is Ex.PW2/C bearing his signature at point A. This witness was not cross examined by Ld counsel for the accused despite being given an opportunity.
07. PW3 ASI Ajay Kumar, who stated that on 22.01.2022, he was posted at PS Mandawali as HC and on that day, he was on patrolling duty alongwith Ct Anchal in the area of Shanti Marg, West FIR No. 175/2022 State Vs. Subhash page 5 of 19 Digitally signed by SACHIN SACHIN Date:
2025.01.31 16:18:51 +0530 Vinod Nagar, Mandawali, Delhi. During patrolling duty, when they reached at Ambedkar Park, Shanti Marg, they had seen one boy standing behind the tree and on seeing them, boy started to go away from there. On suspicious, Ct Anchal apprehended the boy after running. He further stated that he also reached there. Ct Anchal interrogated the boy, who revealed his name as Subhash. He stated that Ct Anchal had conducted the cursory search of the accused and a button actuated knife was recovered from the right pocket of his wearing pant and Ct Anchal gave the intimation of the said fact to DO PS Mandawali. He further stated that after some time, IO ASI Shajudeen came at the spot and Ct Anchal handed over the custody of accused and knife to the IO. IO tried to search the public persons nearby the park but no public person was found due to bad weather. IO further prepared the sketch memo of the recovered knife, which is Ex.PW1/A bearing his signature at point B and IO also measured the length of the knife and its blade and handle were found to be 23.7 cm, 10.9 cm and 12.8 cm respectively. He further stated that IO also measured the breath of the knife which was 2.5 cm and handle of knife was made of aluminum like metal and there was design of cross on the handle and fish images were also engraved on the handle. He further stated that there was a brass like button in the middle of the knife and the knife was opened and closed with the said button. IO FIR No. 175/2022 State Vs. Subhash page 6 of 19 Digitally signed by SACHIN SACHIN Date:
2025.01.31 16:18:59 +0530 kept the knife in transparent plastic box and closed the same with the doctored tape and sealed the box with the seal of 'SDN'. IO further seized the said sealed box vide seizure memo which is Ex.PW1/B bearing his signature at point B. After use seal was handed over to Ct Anchal. He further stated that IO prepared the rukka and same was handed over to Ct Anchal for registration of the FIR. Accordingly, Ct Anchal went to PS to get the FIR registered and came back at the spot alongwith the copy of FIR and original rukka and the same were handed over to IO by Ct Anchal. IO prepared the site plan at the instance of Ct Anchal vide memo Ex.PW1/D. Thereafter, the accused was arrested and was personally searched by the IO vide memo Ex.PW1/E and Ex.PW1/F both bearing his signature at point B. IO recorded the disclosure statement of the accused which is Ex.PW1/G bearing his signature at point B. He further stated that medical examination of the accused was got conducted in LBS hospital and thereafter accused was lodged in police lock up. IO recorded his statement U/s 161 Cr.PC in PS. Accused was correctly identified by the witness in the court. He further stated that he can identify the case property if shown to him and the case property is already Ex.P1 in the testimony of PW1.
7a This witness was cross examined by Ld counsel, wherein he deposed that he did not remember his departure entry for his FIR No. 175/2022 State Vs. Subhash page 7 of 19 Digitally signed by SACHIN SACHIN Date:
2025.01.31 16:19:09 +0530 patrolling duty on 22.01.2022 and he left the PS at about 7.00 pm for patrolling duty on Pvt bike of Ct Anchal, but he did not remember the registration number of the bike. He further stated that they were in police uniform. Only accused was present in Ambedkar Park, Shanti Marg. He further stated that there was residential area on the one side of the park. Ct Anchal did not offer his search to the accused before the cursory search of the accused. He further stated that Ct Anchal had not made efforts to call the person from the residential area before taking search of the accused. IO reached the spot at 9.00 Pm and IO prepared the sealed handling over memo. IO had asked some persons from the residential area to join the investigation but none agreed. He further stated that no written notice was served upon the said persons by the IO. Ct Anchal came back at the spot after registration of the FIR at about 11.20 to 11.25 pm. He further stated that electric poles are not shown in the site plan and he cannot tell to whom the information of arrest of accused was given. His statement was recorded at the PS. He denied the suggestion that nothing was recovered from the possession of the accused or all the writing work was done by the IO while sitting in the PS.
08. PW4 SI Shajudeen who stated that on 22.01.22, he was posted at PS Mandawali as ASI and on that day he received DD no.
FIR No. 175/2022 State Vs. Subhash page 8 of 19 Digitally signed by SACHIN SACHIN Date:
2025.01.31 16:19:17 +0530 104A, regarding apprehension of one person at Ambedkar Park, Shanti Marg, West Vinod Nagar, Delhi. Thereafter he came at the spot and found HC Ajay and Ct Anchal. Ct Anchal handed over the custody of the accused and recovered knife to him. He further stated that after some time, he tried to search the public persons nearby the park but no public person was found due to bad weather. He further stated that he prepared the sketch memo of the recovered knife, which is Ex.PW1/A bearing his signature at point C. He prepared the rukka, which is Ex.PW4/A and signed by him at point A and same was handed over to Ct Anchal for registration of FIR. Accordingly Ct Anchal went to PS to get the FIR registered and came back at the spot alongwith copy of FIR and original rukka and same was handed over to him. He prepared the site plan at the instance of Ct Anchal which is Ex.PW1/D singed by him at point C. Thereafter accused was arrested and personally search by him vide memo Ex.PW1/ E and Ex/W1/F both bearing his signature at point C. He recorded the disclosure statement of the accused Ex.PW1/G bearing his signature at point C. Medical examination of the accused was got conducted in LBS hospital and thereafter accused was lodged in police locked up. He recorded the statement of witnesses 161 Cr.PC in the PS. Accused was correctly identified by the witness in the court. He further stated that he can identify the case property if shown to him and the case FIR No. 175/2022 State Vs. Subhash page 9 of 19 Digitally signed by SACHIN SACHIN Date:
2025.01.31 16:19:24 +0530 property is already Ex.P1 in the testimony of PW1.
8a This witness was cross examined by Ld defence counsel wherein he stated that he reached the spot in his private car no. DL2C8E-4564 and no notice was given to the public person, who refused to join the proceedings. He further stated that seal handing memo was not prepared. He prepared the seizure memo and site plan at the spot and arrest memo in the PS. Ct Anchal came at the spot after registration of FIR at 10.40 pm. He further stated that accused was brought to the PS in his car and he had not shown the electric lamp in the site plan under which he had prepared the documents at the spot.
STATEMENT OF ACCUSED:-
09. Statements of accused was recorded U/s 313 Cr.P.C wherein all the incriminating circumstances appearing in evidence were put to him to which he pleaded innocence and stated he is innocent and have been falsely implicated in the present matter.
Accused chose not to lead any defence evidence.
ARGUMENTS:
10. I have heard Ld. APP for State and Sh Arun Kr Sharma for the accused and perused evidence on record FINDINGS AND REASONS THEREOF:
FIR No. 175/2022 State Vs. Subhash page 10 of 19 Digitally signed by SACHIN SACHIN Date:
2025.01.31 16:19:37 +0530
11. I have gone through the materials on record and heard the arguments. At this juncture, I discuss the relevant law to properly analyse the evidence recorded.
12. 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"....
13. 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."
14. Section 42 Cr.P.C. states that, " (1) When any person FIR No. 175/2022 State Vs. Subhash page 11 of 19 Digitally signed by SACHIN SACHIN Date:
2025.01.31 16:19:44 +0530 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) When the true name and residence of such person cannot be ascertained within twenty-four hours from the time of arrest or should he fail to execute the bond, or, if so required, to furnish sufficient sureties, he shall forthwith be forwarded to the nearest Magistrate having jurisdiction."
15. 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 FIR No. 175/2022 State Vs. Subhash page 12 of 19 Digitally signed by SACHIN SACHIN Date:
2025.01.31 16:19:52 +0530 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.
16. It is a cardinal principle of criminal jurisprudence that prosecution has to prove its case beyond reasonable doubts by leading reliable, cogent and convincing evidence. Further, it is a settled proposition of criminal law that in order to successfully bring home the guilt of the accused, prosecution is supposed to stand on its own legs and it cannot derive any benefits whatsoever from the weakness, if any, in the defence of the accused. Accused is entitled to benefit of every reasonable doubt in the prosecution story and any such doubt in the prosecution case entitles the accused to acquittal.
17. As per the case of the prosecution, accused was apprehended on 22.01.2022, at about 8.45 pm at Ambedkar Park, FIR No. 175/2022 State Vs. Subhash page 13 of 19 Digitally signed by SACHIN SACHIN Date:
2025.01.31 16:19:57 +0530 Shanti Marg, West Vinod Nagar and one button actuated knife was recovered from his possession, which is admittedly a public area. Despite this, no public witness was joined in the prosecution. The police officials of the checking team i.e. PW HC Anchal and ASI Ajay, who have been examined as PW1 and PW3 respectively, have admitted the place from where accused was apprehended was a densely populated area. Even the IO of the present case i.e. SI Shajudeen also admitted the presence of public persons at the spot. Still no public witness has been examined by the prosecution to prove the search and seizure of alleged seizure of button actuated knife from the possession of the accused. The accused cannot be safely convicted on the sole testimony of a police official in the absence of a public and independent witness to the search and recovery from the accused persons. Neither PW1, PW3 nor the IO i.e. PW4 served any notice upon any other public persons to join them as a witness.
18. The availability of independent witnesses is not denied by the police witnesses. PW1 and IO/PW-4 infact stated that they asked public persons to join the investigation but they denied and left the place without disclosing their name and PW1 and PW-4 further stated that they had not given the notice to the public persons as no one agreed to become a witness. When a statutory provision mandates that FIR No. 175/2022 State Vs. Subhash page 14 of 19 Digitally signed by SACHIN SACHIN Date:
2025.01.31 16:20:05 +0530 independent witness has to be joined in the investigation, the IO is duty bound to comply the same. At least he should make sincere efforts in this regard. If someone refuses to join the investigation without any justifiable reason, proper notice u/s 187 IPC should be given to him. Merely stating that the public person refused to join the investigation is not sufficient to serve the purpose of the prosecuting agency, more so, when the IO failed to even record the names and details of such person, and failed to take any required steps in terms of Section 37 and 42 of Cr.P.C. Therefore, mere explanation given by first PW-4/IO that the public persons refused to join the investigation, cannot be considered sufficient.
19. Further, in Roop Chand v. State of Haryana reported in 1990(1) CLR 69, it was observed that such explanations that the public persons refused to join the proceedings are unreliable. In case of Pradeep Narayana V. State of Maharashtra AIR 1995 Hon'ble Supreme Court held that failure of police to join witness from locality during search creates doubt about fairness of the investigation, benefit of which has to go to the accused. Similarly it was held in the case of Kuldeep Singh V. State of Haryana 2004(4) RCR 103 and Passi @ Prakash V. State of Haryana 2001(1) RCR 435, that whenever any recovery in connection with the place of the commission of offence is FIR No. 175/2022 State Vs. Subhash page 15 of 19 Digitally signed by SACHIN SACHIN Date:
2025.01.31 16:20:11 +0530 made, public persons must be made witness.
20. Now, it is true that non-joining of independent witnesses cannot be a sole ground to discard the entire prosecution story, in view of the law laid down by the Hon'ble Supreme Court of India in Appabhai vs State of Gujarat AIR 1988 SC 696, evidence in each case has to be weighed in light of the peculiar factual matrix of the same. Non-joining of public witnesses, despite their easy availability, reflects lack of genuine efforts on the part of the prosecution, denting its case. Both the IOs could have easily served notice in writing to the witnesses, to make them join the investigation, but they did not do so. Where both the IOs had failed to make genuine efforts to join public witnesses, veracity of the case of prosecution becomes doubtful.
21. From the overall testimony of the witnesses, it is clear that the IO has not joined any public witness at the time of arrest, search, seizure or while completing the formalities. It is hard to believe that no person stopped, despite being asked by PW1 and PW4, who presumably were dressed in uniform. All the witnesses examined are police witnesses. This casts a doubt about the sincere efforts made by the IO to join independent witnesses.
FIR No. 175/2022 State Vs. Subhash page 16 of 19 Digitally signed by SACHIN SACHIN Date:
2025.01.31 16:20:21 +0530
22. PW1, PW3 and PW4 police officials of the checking team did not offer their search to the accused before searching him. This is a serious lapse on the part of the police officers which affects the root of the matter and makes the entire recovery doubtful.
23. Another lacuna in the prosecution case relates to seal. Prosecution case is that the button actuated knife was sealed by the IO i.e. PW4, with the seal of SDN and the seal was handed over to PW1 HC Anchal, who himself was a recovery witness and had apprehended the accused. Such material witness of a case is always interested in the success of the case of the prosecution. There is nothing on record to suggest that IO i.e. PW4 had made efforts to handover the seal to any independent witness. No explanation has come on record as to why seal was not handed over to an independent witness or deposited in malkhana. In these circumstances, the possibility of tampering of case property cannot be ruled out.
24. Further, the present case rests entirely on the alleged recovery of case property from the possession of the accused at the relevant time by a police official namely HC Anchal and ASI Ajay Kumar, who were on checking duty at the relevant time and place as per the prosecution story. Police officials are under a statutory duty to FIR No. 175/2022 State Vs. Subhash page 17 of 19 Digitally signed by SACHIN SACHIN Date:
2025.01.31 16:20:28 +0530 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) 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."
FIR No. 175/2022 State Vs. Subhash page 18 of 19 Digitally signed by SACHIN SACHIN Date:
2025.01.31 16:20:36 +0530
25. These contradictions on material aspects creates doubt over the story of the prosecution about the entire facts and circumstances of the recovery from the accused persons. These are material missing links in version of prosecution and tampering of case property in these circumstances cannot be ruled out.
26. In the case at hand, all the lapses in investigation discussed as above, casts serious doubts on the very recovery from the possession of the accused. The cardinal principal of law cannot be forgotten that the prosecution has to prove its case beyond all reasonable doubts. Thus, the court is of the considered view that prosecution has not been able to prove the guilt of the accused persons and has failed to prove its case beyond reasonable doubt. Accordingly, accused Subhash is acquitted under Section 25 Arms Act on the basis of benefit of doubt. Accused persons have to furnish bail bond and surety bond to the tune of Rs. 10,000/- in compliance of Section 437-A Cr.PC. Digitally signed by SACHIN SACHIN Date:
Announced in the open (Sachin) 2025.01.31 16:20:49 Court on 31.01.2025. JMFC-03 (East), +0530 Karkardooma Courts, Delhi FIR No. 175/2022 State Vs. Subhash page 19 of 19