Delhi District Court
State vs Naresh@Rohit on 12 March, 2024
IN THE COURT OF MS. TANVI KHURANA,
CHIEF METROPOLITAN MAGISTRATE, DISTRICT SOUTH,
SAKET COURTS COMPLEX, NEW DELHI.
CNR No.DLST020033152024
IN THE MATTER OF:
STATE Vs. NARESH@ROHIT
FIR No.633 /2023
PS Ambedkar Nagar
U/s 25 Arms Act
JUDGMENT
A) Sl. No. of the case : CR Cases 859/2024
B) The date of commission of : 21.03.2024
offence
C) The name of the complainant : Ct. Rakesh, No.1353/SD, PIS
No.29101767, PS Ambedkar
Nagar, New Delhi.
D) The name and address of : Naresh @ Rohit, S/o Sh. Khadak
accused Singh, R/o House No.US 8/117,
Balmiki Camp, Begumpur,
Malviya Nagar, New Delhi.
E) Offence complained of : 25/54/59 Arms Act
F) The plea of accused : Not Guilty
G) Final Order : Acquitted
H) The date of such Order : 12.03.2024
DATE OF INSTITUTION : 05.02.2024
DATE OF FINAL ARGUMENTS : 12.03.2024
DATE OF JUDGMENT : 12.03.2024
FIR No. 633/2023 State Vs. Naresh @ Rohit Page No.1 of 10
PS Ambedkar Nagar
THE BRIEF REASONS FOR THE JUDGMENT:-
1. The present case has originated from the charge-sheet filed by the State, against accused Naresh @ Rohit S/o Sh. Khadak Singh. As per charge-sheet, on 07.12.2023 at about 01:05 pm, near Dhobhi Ghat, Block-5, Dakshinpuri, New Delhi, within the jurisdiction of PS Amebdkar Nagar, accused was found in possession of one button actuated Knife.
2. On the basis of the charge-sheet, court took cognizance of the offence and accused produced from JC before the Court on 19.02.2024, he was supplied with copy of charge-sheet and documents in compliance of Section 207 Cr.P.C. Court framed charge against the accused for offence punishable under Section 25 Arms Act. Charge was read over and explained to him to which he pleaded not guilty and claimed trial.
3. During trial, accused admitted under Section 294 Cr.P.C. the Endorsement by DO, registration of FIR No. 633/2023, PS Ambedkar Nagar, certificate under Section 65B of Indian Evidence Act, GD n.45A, GD no.909A and DAD notification dated 29.10.1980 which are Ex.A1 to A6 respectively. Also, the State examined three witnesses viz. PW-1 Ct. Rakesh, PW-2 HC Niwas Ram and PW-3 Ct. Ramkaran.
4. To prove its case, the prosecution examined the following witnesses:
4.1. PW-1 Ct. Rakesh on 07.12.2023, he was posted as HC at PS Ambedkar Nagar. On that day, he along with Ct. Ramkaran were on patrolling duty and we were reached near Dhobi Ghat, Block No 05. At FIR No. 633/2023 State Vs. Naresh @ Rohit Page No.2 of 10 PS Ambedkar Nagar about 01.05 PM, as soon as one boy looked at them, he turned around and started moving towards Jahanpanah City Jungle. It created suspicion in their mind and they had apprehended the said person. When they asked him about the reason, he did not give any satisfactory answer. Thereafter, they had conducted the informal search of the accused and they found one buttondar knife from the right pocket of his Pent. He made call to the DO and gave the information about it. HC Niwas Ram came at the spot. He had handed over custody of the accused and the buttondar knife to the IO. Thereafter, IO had recorded his statement which is Ex. PW1/A. Thereafter, IO had asked public persons to join the investigation of the present case but nobody joined the same and left the spot by giving some valid reason. No notice was served to anyone due to lack of time. Thereafter, IO had put the knife on one white paper and prepared the sketch of the same and also noted down the measurements of the same which is Ex. PW1/B. Thereafter, IO had made the pulanda and sealed the knife with the seal of 'MK' and seized the same vide memo Ex. PW1/C. IO had prepared the handing over seal memo which is Ex. PW1/D and the seal was handed over to Ct. Ram Karan. Thereafter, IO had prepared the rukka and got the FIR registered through him. During investigation of the present case, IO had interrogated the accused. After interrogation IO had arrested the accused and conducted his personal search vide memos Ex. PW1/E and Ex. PW1/F. IO had recorded the disclosure statement of accused which is Ex. PW1/G. IO had also prepared the site plan at his instance. Thereafter, accused was taken for the medical examination and after medical examination he was kept behind the bars. IO recorded his FIR No. 633/2023 State Vs. Naresh @ Rohit Page No.3 of 10 PS Ambedkar Nagar statement with regard to the same. Witness correctly identified the accused before the Court. The case property was also identified by the witness and the same is Ex.P1. PW-1 was duly cross-examined by Ld. Counsel for the Defence. In his cross-examination, he denied to all the suggestions put to him by Ld. Defence Counsel.
4.2. During examination in chief, PW-2 HC Niwas Ram deposed that on 07.12.2023, he was posted as HC at PS Ambedkar Nagar. On that day he received DD no 45A, after receiving the same, he had gone to the place of incident that is near Dhobi Ghat, Block no 05, Dakshinpuri. After reaching there, he met Ct. Rakesh and Ct. Ramkaran at the spot and they had handed over to him the custody of the accused and recovered case property that is Buttondar Knife. Thereafter, he had recorded the statement of Ct. Rakesh, which is Ex. PW1/A, same was attested by him. Thereafter, he had asked public persons to join the investigation of the present case but nobody joined the same and left the spot by giving some valid reason. No notice was served to anyone due to lack of time. Thereafter, he had put the knife on one white paper and prepared the sketch of the same and also noted down the measurements of the same which is Ex. PW1/B. Thereafter, he had made the Pulanda and sealed the knife with the seal of 'MK' and seized the same vide memo Ex. PW1/C. He had prepared the handing over seal memo which is Ex. PW1/D and the seal was handed over to Ct. Ram Karan. Thereafter, he had prepared the rukka which is EX. PW2/A, and got the FIR registered through Ct Rakesh. During investigation of the present case, he had prepared the site plan which is EX. PW2/B. He had interrogated the accused. After FIR No. 633/2023 State Vs. Naresh @ Rohit Page No.4 of 10 PS Ambedkar Nagar interrogation, he had arrested the accused and conducted his personal search vide memos Ex. PW1/E and Ex. PW1/F. He had recorded the disclosure statement of accused which is Ex. PW1/G. Thereafter, accused was taken for the medical examination and after medical examination he was kept behind the bars. He had recorded the statement of witnesses u/s 161CrPC. He had deposited the case property with MHC(M). During investigation, he had placed DAD notification on record. After completing the investigation of the present case, he had prepared the charge-sheet, and filed it before this Hon'ble court. Witness correctly identified the accused before the Court. The case property was also identified by the witness and the same is Ex.P1. PW-1 was duly cross-examined by Ld. Counsel for the Defence. In his cross-
examination, he denied to all the suggestions put to him by Ld. Defence Counsel.
4.3. PW-3 Ct. Ramkaran was official witness and has deposed on similar lines as that of PW-1. Witness correctly identified the accused before the Court. The case property was also identified by the witness and the same is Ex.P1. PW-3 was duly cross-examined by Ld. Counsel for the Defence. In his cross-examination, he denied to all the suggestions put to him by Ld. Defence Counsel.
5. Upon conclusion of prosecution evidence, statement of accused under Section 313 Cr.P.C. read with Section 281 Cr.P.C. was recorded in which all incriminating material was put to him, to which he pleaded his innocence and claimed to have been falsely implicated. Accused chose not to FIR No. 633/2023 State Vs. Naresh @ Rohit Page No.5 of 10 PS Ambedkar Nagar lead any defence evidence. Final arguments of both the parties were heard at length.
DECISION AND REASONING:
6. It is the case of prosecution that on 07.12.2023 at about 01:05 pm, near Dhobhi Ghat, Block-5, Dakshinpuri, New Delhi, within the jurisdiction of PS Amebdkar Nagar, accused was found in possession of one button actuated Knife in contravention of notification of Delhi administrative no.F.13/451/79.Home(G) dated 29.10.1980 and that the accused should be convicted for the offence punishable under Section 25 of Arms Act, 1959. Per-contra, the Ld. Counsel for the accused had submitted that the present case is false and concocted. It is argued that there is no public witness despite alleged incident occurring at a public area at 01:05 PM. There are material contradictions in the depositions of both the witnesses. Accused was arrested from public area and the knife has been planted on the accused.
7. The Court has carefully examined the entire material available on record including the testimony of the PWs recorded before the Court. There are only three witnesses who have been examined in the present case and all of them are police official witnesses. Not even a single independent witness or the eye witness has been examined in the present case regarding recovery of the knife from the accused. It is settled law that when only police witnesses have been examined, their testimonies have to be scrutinized carefully. It is pertinent here that the case of prosecution is that the accused was found in possession of a button actuated knife near Dhobhi Ghat, Block-
FIR No. 633/2023 State Vs. Naresh @ Rohit Page No.6 of 10 PS Ambedkar Nagar 5, Dakshinpuri, New Delhi, they should have examined at least one public person especially as the accused was arrested from a public place at a time when the place is generally frequented by people. Even the complainant is a police official. No local resident or the inhabitant of the locality had joined the investigation. Though it is no doubt true that not in every case the testimonies of police officials are to be looked upon with suspicion and treated as unworthy of reliance, but the failure of the investigating agency to join witnesses from the public especially when they are available or their presence can reasonably be secured with minimum efforts casts a doubt as to the authenticity of the version being put forth by the investigating agency. (Reference made to Nanak Chand v The State of Delhi , 1991 JCC 1 decided by Hon'ble Delhi High Court). A police officer investigating a crime is entitled to ask anybody to join the investigation and he is also fully empowered to initiate action against public persons refusing under the law. The failure on the part of the investigating officer to initiate such action against any public person is suggestive of the fact that the explanation for non-joining the witnesses from the public is merely after thought and is not worthy of credence. (Reference made to Roop Chand vs. State of Haryana, 1999 (1) C.L.R 69, decided by Hon'ble High Court of Punjab & Haryana).
8. In these circumstances, as despite the presence of public persons at/around the place of alleged recovery the investigating officer failed to join independent public persons as witness to the proceedings of the present matter, warrants an adverse inference to be drawn under Section 114 FIR No. 633/2023 State Vs. Naresh @ Rohit Page No.7 of 10 PS Ambedkar Nagar
(g) of the Evidence Act that the evidence if produced would have been unfavourable to the case of the investigating agency/prosecution and thus, the prosecution has failed to prove the recovery from the accused beyond reasonable doubt.
9. So far as factum of recovery of knife is concerned, PW-2 is just a hearsay witness as he himself stated that when he reached the spot, PW-1 & PW-3 informed him about the recovery of the knife from the pocket of the accused.
10. To prove its case, it was also imperative for the prosecution to prove the presence of the complainant PW-2 at the place of incident at the time of recovery. However, no Departure entry as regards patrolling duty of the said witnesses has been proved by the prosecution in contravention of the provisions of the Punjab Police Rules as per which an entry is required to be made as regards the hour of arrival and departure of police personnel on duty. Chapter 22 Rule 49 of Punjab Police Rules, 1934 provides as under:
''22.49 Matters to be entered in Register No. II. The following matters shall, amongst others, be entered:
...(c) 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. This entry shall be made immediately on arrival or prior to the departure of the officer concerned and shall be attested by the latter personally by signature or seal.
Note: The term Police Station will include all places such as FIR No. 633/2023 State Vs. Naresh @ Rohit Page No.8 of 10 PS Ambedkar Nagar Police Lines and Police Posts where Register No. II is maintained."
11. In the absence of any DD entries having been proved by the prosecution vide which PW-1 and PW-3 had left the Police Station, the factum of availability of the complainant and the witness to the recovery at the place of apprehension of the accused and that of the IO at the place of incident at the time alleged investigation comes under suspicion. Thus, the failure to bring the DD entries on record gives rise to a reasonable suspicion in respect of authenticity of the version being put forth by the prosecution as to the very presence of these witnesses at the place of incident at the time of incident and consequently as to the factum of the recovery of the case property from him.
12. Moreover, the sealing proceedings are doubtful as there was no holding over of the seal. No evidence has been led by the prosecution as to whether the seal after use was deposited in the Malkhana and if so, when and by whom which makes it highly probable that the entire proceedings were conducted at the police station, that the case property was planted one and that nothing was recovered from the accused at the spot.
13. In view of the above and especially in view of the failure of the IO to join any independent public witness during proceedings or investigation, this Court has no hesitation in holding that the prosecution has miserably failed to prove its case against the accused beyond all the reasonable doubts and to bring his acts and conduct within four corners of FIR No. 633/2023 State Vs. Naresh @ Rohit Page No.9 of 10 PS Ambedkar Nagar the said provisions of law constituting any of such offence or within legal ambit which would warrant his conviction and punishment in the present case. In view of the cardinal principle of law that prosecution must prove the guilt of the accused beyond reasonable doubts and every benefit of doubt must be given to the accused, hence, the accused is entitled to every benefit arising due to lacunae in the prosecution case.
14. In view of the above discussions, it is held that the prosecution has failed to prove its case against the accused and has not been able to prove the charge for the offence u/s 25 Arms Act against the accused. Accordingly, the accused Naresh @ Rohit S/o Sh. Khadak Singh, is hereby acquitted for the offence u/s 25 Arms Act. His Bail Bond stands cancelled. Surety Bond stands discharged. Documents, if any, be returned after cancellation of the endorsement, if any, on proper receipt and identification. Accused is directed to furnish necessary bail bonds under Section 437A Cr.P.C.
15. Case property, if any, be confiscated to the State after the expiry of the period of the appeal.
16. File be consigned to Record Room, after due compliances.
(TANVI KHURANA) CHIEF METROPOLITAN MAGISTRATE DISTRICT SOUTH, SAKET COURTS COMPLEX Announced in the open Court On 12th March, 2024 FIR No. 633/2023 State Vs. Naresh @ Rohit Page No.10 of 10 PS Ambedkar Nagar