Delhi District Court
Cr. Case/5343/2021 on 28 October, 2021
1 of 14
IN THE COURT OF ANURAG THAKUR,
MM-02: CENTRAL DISTRICT: TIS HAZARI COURTS: DELHI
FIR No. 74/2021
PS Timarpur
U/s 25 Arms Act, 1959
State v. Shahrukh
CNR No. DLCT02-010172-2021
Date of Institution of case: 26.04.2021
Date when Judgment reserved: 27.10.2021
Date on which Judgment pronounced: 28.10.2021
JUDGEMENT
Unique ID no. of the case : 5343/2021
Date of commission of the offence : 27.02.2021
Name of the complainant : HC Pramod Kumar, No.1895/N
PS Timarpur, Delhi
Name and address of accused : Shahrukh s/o Aas Mohammad
R/o Jhuggi N-15/C-41,
Indra Vikas Colony,
Mukherjee Nagar, Delhi.
Offence complained of : 25 Arms Act, 1959
Plea of accused : Pleaded not guilty
Date of order : 28.10.2021
Final order : Acquitted
BRIEF REASONS FOR DECISION
1. The case of the prosecution is that the accused on 27.02.2021 at about 6:30 pm, near Mukherjee Nagar, E Block, Gandhi Vihar, Near Ganda Nala T point, Timarpur, Delhi within the jurisdiction of PS Timarpur, was found in possession of one button actuated knife measuring in length 23 cm and having blade length 10 cm and width of 2.5 cm in contravention of Notification No. F-13/203/78,HOME (G) dated 17.02.1979. On these ANURAG Digitally signed by ANURAG THAKUR THAKUR Date: 2021.10.29 08:50:39 +05'30' FIR no. 74/2021 State v. Shahrukh PS Timarpur 2 of 14 allegations, the present FIR No. 74/2021 was registered at PS Timarpur u/s 25 The Arms Act, 1959. The buttondar knife was seized and taken into possession by the police.
2. After investigation, charge sheet was filed against the accused. Cognisance of offence was taken and accused was summoned. Copy of charge sheet and other documents were supplied to the accused under section 207 The Code of Criminal Procedure, 1973 (hereinafter called as Cr.P.C) and thereafter charge under section 25 Arms Act was framed against him on 02.09.2021 to which he pleaded not guilty and claimed trial.
3. The prosecution examined four witnesses to establish its version:
PW-1 Ct. Ram Mehar Singh deposed that on 27.02.2021, he was posted at PS Timarpur on patrol duty along with HC Pramod, vide DD No. 74A dated 27.02.2021 exhibited as Ex.PW1/A. When they reached E Block, Gandhi Vihar, one secret informer informed them about one boy namely Shahrukh, who was involved in the stabbing incident occurred previous night in Gandhi Vihar, was roaming in F Block, Gandhi Vihar. Thereafter, he along with, HC Pramod and the secret informer reached T point, Ganda Nala (Culvert), Mukherjee Nagar and, at about 6:30 pm, the secret informer told that the same guy is coming from E Block, Gandhi Vihar towards Ganda Nala. When they saw the boy of the same description as given by the secret informer, they apprehended him as he attempted to run away. He further deposed that on cursory search of accused by HC Pramod, one button actuated knife was recovered from the right pocket of the Payjama, that HC opened the knife, prepared its sketch on white paper and seizure memo which is PW1/B bearing his signature at point A and Ex. PW1/C bearing his signature at point A respectively, that the total length of the knife was 23 cm and the length of the blade was 10.3 cm and that the knife was converted into pullanda and sealed with the seal of 'BS'.
Seal after use was handed over to him by HC Pramod. PW-1 further deposed that he went to PS with Tehrir prepared by HC Pramod for registration of FIR and after getting the case FIR registered he came back at the spot along with a copy of FIR and original rukka and handed over the same to HC Pramod. HC Pramod arrested the accused vide the arrest ANURAG Digitally signed by ANURAG THAKUR THAKUR Date: 2021.10.29 08:51:05 +05'30' FIR no. 74/2021 State v. Shahrukh PS Timarpur 3 of 14 memo which is Ex. PW1/D bearing his signature at point A and conducted a personal search vide memo Ex.PW1/E bearing his signature at point A, whereby 250 rupees were recovered from his possession. Thereafter, they took the accused to PS Timarpur, where Sl Ashok inquired from him about the present matter and recorded the disclosure statement of the accused which is Ex. PW1/F bearing his signature at point A. Thereafter, medical examination of the accused was conducted in his presence at Aruna Asaf Ali Hospital and later, he brought back him to PS. (PW-2 Ct. Ram Mehar correctly identified the accused present in the Court.) During the cross-examination, he stated that beat no. 9 consists of an area of Gandhi Vihar all blocks from A to E. He does not remember the exact time when the secret informer met them at C Block between 6 am and 12 noon on 27.02.2021. He further stated that he reached the spot after registration of FIR at about 11:15 pm, but he does not remember the time when SI Ashok reached the spot. He further stated that the accused was brought to the PS from the spot in the private car of HC Parmod. The arrest memo of the accused was prepared at about 10 pm or prior thereto at the spot. He stated that the father of the accused i.e. Sh. Aas Mohammad was not present at the spot. He left the PS alone for patrol duty at 8 am on that day on a government motorcycle and was wearing a uniform. He further stated that he signed on the fully prepared seizure memo and sketch and he does not remember the exact time when the same were prepared. The Tehrir was prepared before 10:50 pm at the spot i.e. T point Ganda Nala (culvert), Mukherjee Nagar. People were coming and going from the spot when the police proceedings were being done. HC Pramod asked a passerby to join the investigation but they refused to join and left the place and the name and address of the public person were not noted in any diary. He does not remember when and where he met SI Ashok first time for the investigation of this case. He took the accused of medical examination at 12:43 am. He admitted the suggestion that he was in plain clothes when he took a position at T point at the spot. He denied the suggestion that all the proceedings were done at PS. Digitally signed ANURAG by ANURAG THAKUR THAKUR Date: 2021.10.29 08:51:29 +05'30' FIR no. 74/2021 State v. Shahrukh PS Timarpur 4 of 14
4. PW-2 HC Shish Pal deposed that on 27.02.2021 he was posted at PS Timarpur as DDO writer from 4 pm to 12 midnight. He recorded DD no. 76A which is Ex. PW2/A bearing his signature at point A and DD No. 74A which is Ex. PW1/A bearing his signature at point A. After receiving a rukka from Ct. Ram Mehar, he registered FIR which is Ex. PW2/C bearing his signature at point A vide DD No.109A which is Ex. PW2/B. During the cross-examination, he admitted that DD No. 76A & 74A does not mention the area of patrolling. He denied the suggestion that he expressly omitted to mention the Gandhi Vihar area in the DD entry. He further denied the suggestion that Ct. Ram Mehar did not come to PS Timarpur for registration of FIR and every document was prepared in PS Timarpur only.
5. PW-3 HC Pramod deposed that on 27.02.2021 he was on patrol duty in beat no. 9 Gandhi Vihar along with Ct. Ram Mehar. He shared the information received from the secret informer with SHO PS Timarpur and conducted a raid along with Ct. Ram Mehar on the direction of SHO. At about 6:30 pm, on appointing out by the secret informer, Ct. Ram Mehar apprehended the accused. (PW-2 Ct. Ram Mehar correctly identified the accused present in the Court.)He further deposed that on a cursory search of the accused by Ct. Ram Mehar, a knife was recovered from the accused. He requested several passersby to join the investigation but they left. He prepared the sketch of the knife which is Ex.PW1/B bearing his signature at point B, seizure memo which is Ex.PW1/C is bearing his signature at point B and sealed pullanda for the knife with the seal of 'BS'. He also prepared tehrir in his handwriting which is Ex.PW3/A bearing his signature at point A and handed over to Ct. Ram Mehar to get the FIR registered at PS Timarpur. He deposed that Ct. Ram Mehar returned at the spot along with SI Ashok and the original tehrir and a copy of the registered FIR. SI Ashok arrested the accused Shahrukh in his presence vide memo which is Ex.PW1/D bearing his signature at point B. SI Ashok prepared a personal search memo of the accused in his presence, which is Ex.PW1/D bearing his signature at point B and recovered Rs. 250/ vide the seizure memo Ex.PW3/B bearing his signature at point A. SI Ashok also prepared the site plan at his instance Digitally signed ANURAG by ANURAG THAKUR THAKUR Date: 2021.10.29 08:51:49 +05'30' FIR no. 74/2021 State v. Shahrukh PS Timarpur 5 of 14 which is Ex.PW3/C bearing his signature at point A. Thereafter, he along with Ct. Ram Mehar and SI Ashok took the accused to PS Timarpur and the case property i.e. knife was deposited in malkhana. SI Ashok also inquired the accused in his presence at PS Timarpur and recorded his disclosure statement which is Ex.PW1/F bearing his signature at point B. The accused was taken for medical examination. His statement u/s 161 Cr.P.C. was recorded by SI Ashok. (At this stage, case property is produced by MHC(M). There is no seal on the case property. The case property is wrapped in white cloth pullanda bearing particulars FIR No. 74/21, U/s 25/54/59 Arms Act, PS Timarpur. The white cloth pullanda is opened and it contains a button-actuated knife. The witness had a look of the knife and identified the same as the knife recovered from the accused. Another white cloth pullanda produced by MHC(M) in the unsealed condition is opened and the same contains two Rs. 100 notes and Rs. 50/-note.) During the cross-examination, he admitted the suggestion that he narrated in his statement to SI Ashok that vide DD No. 76A on 27.02.2021, he along with Ct. Ram Mehar was on patrolling duty in Gandhi Vihar. (The witness is confronted with his statement u/s 161 Cr.P.C and he answered as follows). He admitted the suggestion that in his statement he does not mention the date of 26.02.2021. PW-3 further stated that the arrest memo of the accused was prepared at PS but he does not remember the exact time when the accused was put in the lock-up. The accused was taken for his medical examination from the PS and MLC was prepared but he does not remember the exact time when the accused was taken for medical examination. (The witness does not wish to look at the case file and find out whether the MLC of the accused is on record or not.) He stated that he does not remember the exact time when the arrest memo, his statement and the disclosure statement of the accused was written by the IO. He admitted the suggestion that the sketch and seizure memo of the knife was prepared before registration of FIR, but the FIR number was put in the sketch after registration of the FIR. The site plan is supposed to show directions. He admitted the suggestion that the DD number 76A dated 27.02.2021 does not make a mention of the area of patrolling and Gandhi Vihar is a vast area. The secret informer disclosed the information at police post Gandhi Vihar at about 6Digitally signed ANURAG by ANURAG THAKUR THAKUR Date: 2021.10.29 08:52:06 +05'30' FIR no. 74/2021 State v. Shahrukh PS Timarpur 6 of 14 PM. He stated that he went for patrolling wearing a uniform in his Santro car bearing no. DL-1860 but did not mention the private car in DD entry. He prepared the Tehrir at 10:50 pm in 10 to 15 minutes at the spot. He admitted that he does not remember the time when sketch and seizure memos were recorded. The knife was measured with a plastic scale. Before personal search of the accused, he informed the accused that he can personally search him if he wants and told the IO qua this fact. He further admitted the suggestion that the same is not mentioned in his 161 Cr.P.C. statement. He denied the suggestion that the entire investigations and proceedings were conducted while sitting in the PS. He denied the suggestion that he had an altercation with the accused on 24.02.2021 and therefore, the accused has been falsely implicated in the present matter. He stated that the accused was taken to PS in the car of SI Ashok. He gave no information to PS Wazirabad or to family members of accused regarding his arrest.
6. PW-4 SI Ashok Kumar deposed that he was posted at PS Timarpur on 27.02.2021. When Ct. Ram Mehar produced a copy of FIR No. 74/2021 along with the original rukka, he along with Ct.Ram Mehar went to the spot, met HC Pramod who produced the accused along with a knife and informed him that this boy was found in possession of one buttondar knife. Thereafter, the accused was inquired about his whereabouts and PW-4 arrested the accused vide Ex.PW1/D bearing his signature at point C and conducted a personal search of the accused vide memo Ex.PW1/E bearing his signature at point C. He further deposed that he recovered Rs. 250/-from accused and prepared seizure memo which is Ex.PW3/B bearing his signature at point A. He also prepared the site plan on the instance of HC Pramod which is Ex.PW3/C bearing his signature at point A. Thereafter, he along with Ct. Ram Mehar and HC Pramod took the arrested accused and the case property to the PS. (PW-2 Ct. Ram Mehar correctly identified the accused present in the Court.) At PS Timarpur, he interrogated the accused Shahrukh and recorded his disclosure statement which is Ex.PW1/F bearing his signature at point B. He deposed that the case property was deposited with the malkhana and the accused was medically examined at Aruna Asaf Hospital. The statement of Ct. Ram Mehar and HC Pramod were ANURAG Digitally signed by ANURAG THAKUR THAKUR Date: 2021.10.29 08:52:27 +05'30' FIR no. 74/2021 State v. Shahrukh PS Timarpur 7 of 14 recorded u/s 161 Cr.P.C. The accused was produced before the court and was remanded to JC. Thereafter, he completed the investigation and filed the charge sheet. During the cross-examination, he stated that he joined the investigation at about 11:15 pm as ordered by SHO PS Timarpur at about 11:05 pm. He went to the spot on his bike along with Ct. Ram Mehar at about 11:30 pm, where he met the HC Pramod and the accused at Mukherjee Nagar Road, Near Ganda Nala, T Point. He did not make any DD entry while he left the PS. He stated that he duly defined the directions while making the site plan. (At this stage, the witness was confronted with the site plan.) He admitted that the directions are not mentioned on the site plan. He stated that he prepared the site plan in the street lights as it was a night but he does not remember the exact time when the site plan was prepared. He admitted the suggestion that the street lights were not mentioned on the site plan. He denied that he made any addition or alteration to the sketch of the knife. He prepared the arrest memo at about 12:15 am at the spot. The accused was taken to PS after arrest from the spot in the car of HC Pramod Kumar. He admitted that the accused was medically examined and MLC was prepared but he neither collected MLC nor placed the same with the charge sheet. He deposited the case property with the malkhana at about 1:15 am, where HC Indresh was present. The accused was locked up at about 1:30 am vide DD entry. (At this stage, the witness was shown the charge sheet. To which he pointed out at the DD entry no. 4A regarding the lodging of the accused in the lock-up.) He admitted that the signature of the father of the accused was taken on the arrest memo at about 12:15 am. He does not remember the exact time when and how the father of the accused reached the spot. He recorded the disclosure statement of the accused at about 11:15 pm, then again said at about 1:15 am. The investigation in the matter was over at 1:30 am. The statements of witnesses were recorded in the PS but he did not remember the exact time when these statements were recorded. He denied the suggestion that the entire proceedings qua investigation were done while sitting in PS, or that he had falsely implicated the accused in the present case at the instance of HC Pramod, or that no disclosure was made by the accused, or that the blank papers were got Digitally signed ANURAG by ANURAG THAKUR THAKUR Date: 2021.10.29 08:52:46 +05'30' FIR no. 74/2021 State v. Shahrukh PS Timarpur 8 of 14 signed from accused by him, or that the button-actuated knife was not recovered from the accused.
7. The prosecution evidence was closed on 11.10.2021 and the statement of the accused was recorded u/s 313 r/w section 281 Cr.P.C. on 21.10.2021, wherein he pleaded innocence and stated to have been falsely implicated. The accused opted not to lead any evidence in his defence. Final arguments in the matter were concluded on 27.10.2021.
8. Ld. APP for the state submitted that the prosecution has proved the case against the accused beyond reasonable doubt as all the prosecution witnesses have supported the case and cogent documentary evidence is also placed on record. He demanded that the accused be convicted for commission of offence punishable u/s 25 Arms Act.
9. Per Contra, learned counsel for the accused submitted that there are severe discrepancies in the prosecution evidence. It is argued that the case property was produced in the court in unsealed condition which leaves the room for tampering with case property. It was further submitted that DD entries produced by the prosecution witnesses are antithetical to each other with respect to the departure time of patrolling and are also incomplete for non-mentioning of the area of patrolling. Ld. defence counsel pointed out that PW-1 and PW-3 mentioned different times and places where the information was given by secret informer. He alleged that the seizure memo is doubtful being antedated as it bears the FIR number. Lastly, it is submitted that there are also contradictions with regard to the time and place of arrest of accused as per the version of prosecution witnesses.
10. I have heard the arguments addressed by the Ld. APP for state and the Ld. Counsel for the accused and carefully perused the documents on record. Before adverting to the appreciation of evidence for deciding the present case, the applicable penal provision is reproduced in verbatim as follows:-
25. Punishment for certain offences-
ANURAG Digitally signed by ANURAG THAKUR THAKUR Date: 2021.10.29 08:53:03 +05'30' FIR no. 74/2021 State v. Shahrukh PS Timarpur 9 of 14 (1B) Whoever-
...(b) acquires, has in his possession or carries in any place specified by notification under section 4 any arms of such class or description as has been specified in that notification in contravention of that section; or...
shall be punishable with imprisonment for a term which shall not be less than 25 [one year] but which may extend to three years and shall also be liable to fine."
11. It is a cardinal principle of criminal jurisprudence that the prosecution is supposed to prove its case beyond reasonable doubts by leading reliable, cogent and convincing evidence to successfully bring home the guilt of the accused. Further, it cannot derive any benefits whatsoever from the weakness, if any, in the defence of the accused. The accused is entitled to the benefit of every reasonable doubt in the prosecution story and any such reasonable doubt in the prosecution case entitles the accused to acquittal.
12. Coming to the matter in hand, to prove the case u/s 25 Arms Act, the prosecution is required to prove the following ingredients:
(I) The accused was found in possession of the button actuated knife. (II) The accused was carrying the same without any licence or permit or in contravention of notification of Delhi Administration.
It is not disputed that vide notification No. F-13/203/78,HOME (G) dated 17.02.1979. the possession of button actuated knife in the territory of NCT of Delhi is prohibited and the contravention of notification may invite prosecution for commission of offence punishable u/s 25 Arms Act. Let us carry out a scrutiny of the evidence led at trial.
13. Firstly, there is a serious issue regarding the DD entries made by the police officers, who are the only prosecution witnesses in the present case. As per chapter 22 rule 49 of the Punjab Police Rules, 1934 which is reproduced herein for ready reference:
"22.49. Matters to be entered in Register No. II The following matters shall, amongst others, be entered:Digitally signed
ANURAG by ANURAG THAKUR THAKUR Date: 2021.10.29 08:53:25 +05'30' FIR no. 74/2021 State v. Shahrukh PS Timarpur 10 of 14
(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 before 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 Police Lines and Police Posts where Register No. II is maintained."
In the present matter, only DD entries, which are Ex.PW1/A, Ex.PW2/A, Ex.PW2/B, are on record which is not a complete record concerning the investigation done on 27.02.2021. Further, the above said DD records do not mention the details of the place where PW-1 and PW-3 were patrolling on 27.02.2021. This fact is admitted by PW-2 in his cross-examination, who was working as DD writer on that day. Further, PW-1 deposed that he was on patrol duty on 27.02.2021 from 8 am to 8 pm with HC Pramod, while the DD entry no.74A dated 27.02.2021 mentioned 16:38 as the time when departue entry was made and there was no mention of HC Pramod accompanying him. On the other hand, PW-3 stated in his cross-examination that he left the PS for patrol duty with PW-1 at the same time. Perusal of DD no.76A exhibited by PW-3 shows the time of his departure is 17:05. During cross-examination, PW-4 admitted that no departure entry was made when he left the PS for investigation on that day. This clearly shows that the above said provision has not been complied with by the police The relevant entries regarding the arrival and departure of the police officials have not been proved on record. Therefore, their presence at the alleged date, time and place of recovery of the knife from the possession of the accused is doubtful. At this point, it is relevant to refer to a case law reported as Rattan Lal v. State, 1987(2) Crimes 29, where the Hon'ble Delhi High Court held that "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 the 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."
ANURAG Digitally signed by
ANURAG THAKUR
THAKUR Date: 2021.10.29
08:53:51 +05'30'
FIR no. 74/2021 State v. Shahrukh PS Timarpur
11 of 14
14. Secondly, to prove the guilt of the accused, the prosecution is required to prove the possession of button actuated knife with the accused at the very spot from where the accused was apprehended. As per the case of the prosecution, the accused was apprehended at around 6.30 pm near Mukherjee Nagar, E Block, Gandhi Vihar, Timarpur, which is a busy public place. Further, PW-1 in his cross-examination stated that people were coming and going from the spot when the police proceedings were being conducted. In the present case, on perusal of the documentary records relied on by the prosecution, it is clear that neither the Tehrir which is Ex.PW3/A, nor FIR which is Ex.PW2/C mentioned any public witness or independent witness. The fact of not noting down the name or address of any witness in the case diary, or giving notice to public persons who refused to be part of the investigation, casts doubt on the story of the prosecution that serious efforts were made to join any public witness in the proceedings. All the four prosecution witnesses examined in the present matter are police witnesses. The testimony of official witnesses does not find any corroboration from any independent source. In the opinion of this court, non-joining of independent/public witness is fatal to the prosecution case and create serious doubts regarding the genuineness of investigation proceedings done at the spot. In Roop Chand v. State of Haryana 1990(1) CLR 69, it was observed that such explanations that the public persons refused to join the proceedings are unreliable. Further, in Passi @ Prakash v. State of Haryana 2001(1) RCR 435, that whenever any recovery in connection with the place of the commission of the offence is made, public persons must be made witnesses. Also, in Pawan Kumar v. Delhi Administration 1989 Cri. L.J. 127, it was observed that in case of failure to join independent witness benefit of doubt must be given to the accused.
15. Thirdly, as per the prosecution version, the button actuated knife has been recovered from the possession of the accused. To substantiate this allegation, the prosecution produced Tehrir which mentioned Sketch (Ex.PW1/B) and Seizure memo (Ex.PW1/C) of the buttondar knife being made at the time of recovery. Further, as per the depositions of ANURAG Digitally signed by ANURAG THAKUR THAKUR Date: 2021.10.29 08:54:25 +05'30' FIR no. 74/2021 State v. Shahrukh PS Timarpur 12 of 14 PW-1 and PW-3, the case property was first seized, a sketch of one button actuated knife was prepared and then rukka was sent for registration of FIR. However, the seizure memo and sketch bear the FIR number. At the time of the seizure, the FIR number was not available and therefore, the FIR number could not have been figured on the seizure memo or the sketch. The existence of the FIR number on the seizure memo suggests that the seizure memo was prepared after the registration of the FIR. PW-3 in his cross- examination disclosed that the sketch and seizure memo were prepared before the registration of FIR but the FIR number was put in the sketch after the registration of FIR which means that the memos were tampered with. Another major lacuna is that the seizure memo of the knife is undated. This erodes the credibility of the witnesses who have stated that the seizure memo was prepared on the spot and before the registration of FIR and the possibility of tampering cannot be ruled out. Here, it is relevant to refer to a case law reported as Mohd. Hashim v. State 1999(6) A.D. (Delhi) 569, where it was observed that when documents are prepared before the registration of FIR and it contains the FIR number, then inference has to be drawn that either FIR was recorded prior in time or the documents were prepared later on and in such cases benefit of the doubt is to be given to the accused.
16. Another dent in the prosecution case is related to the seal. Both PW-1 and PW-3 have deposed in their examination-in-chief that PW-3 has seized and sealed the case property at the spot in cloth pullanda with the seal of BS after that seal was handed over to PW-1. No handing over memo was prepared. No explanation has come on record as to why handing over memo was not made. During the examination of PW-3, a white cloth pullanda (in which buttondar knife was wrapped) was produced but same was not having any seal. The fact that case property was not kept intact before it was proved in the court, speaks of nothing but the possibility of tampering with case property and it leads to erosion of credibility of case of prosecution.
Digitally signed
ANURAG by ANURAG
THAKUR
THAKUR Date: 2021.10.29
08:54:51 +05'30'
FIR no. 74/2021 State v. Shahrukh PS Timarpur
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17. Also, about the arrest of the accused, there are different versions as deposed by the prosecution witnesses. PW-1 in his examination-in-chief deposed that after handing over the copy of FIR and original Tehrir to HC Pramod, the accused was arrested by HC Pramod, and in his cross-examination stated that the accused was arrested at the spot at around 10 pm or before that. Contrarily, during the cross-examination of PW-3, it was stated that an arrest memo was prepared at PS. While PW-4 who himself prepared the arrest memo which is Ex.PW1/D deposed that memo was prepared at the spot at 12:15 am on 28.02.2021. These contradictory versions of the place and time of arrest and which officer arrested the accused further weaken the prosecution story.
18. There are other material contradictions in the case of the prosecution. On the site plan, there is no mention of directions and the street lights which enabled the prosecution witnesses to complete the documentary formalities at the spot. This fact was admitted by PW-4 in his cross-examination. All the prosecution witnesses admitted in their evidence that medical examination of the accused was done after the arrest and before the accused was locked up in the Police station but there is no plausible explanation that why it is not tagged with the final charge sheet and brought on record.
19. Concerning the personal search of the accused before the alleged recovery, it was stated by the PW-1 that HC Pramod made a cursory search of the accused. On the other hand, PW-3 deposed in examination-in-chief that Ct. Ram Mehar conducted cursory search. These are the only two witnesses present at the spot at the time of recovery and giving contrary version as to who made the cursory search of the accused. Further, PW-3 stated during his cross-examination that he asked the accused to search him before and then conducted search of the accused. This fact was not mentioned in either tehrir or the statement of PW-3 recorded under section 161 Cr.P.C. In the case decided by Orissa High Court reported as Rabindernath Prusty v. State of Orissa, 1984 CriLJ 1392 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 ANURAG Digitally signed by ANURAG THAKUR THAKUR Date: 2021.10.29 08:55:25 +05'30' FIR no. 74/2021 State v. Shahrukh PS Timarpur 14 of 14 before searching the person of the accused." In the present case, no independent witness deposed about the search being done by the accused before his personal search whereby the buttondar knife was recovered from him. All these circumstances raise serious doubt regarding the fairness and credibility of investigation proceedings conducted by the police at the alleged date, time and place.
20. On careful perusal and analysis of the entire evidence, I find that there is no corroborative, consistent and sufficient evidence to make up the edifice of the prosecution case. Given the aforementioned facts and circumstances, it has to be concluded that the prosecution has failed to prove its case against the accused beyond reasonable doubt. Therefore, the Accused is given the benefit of doubt. Accordingly, the accused Shahrukh is hereby acquitted of offence punishable u/s 25 The Arms Act, 1959.
Announced in the open court on 28.10.2021 and digitally signed on 29.10.2021 ANURAG Digitally signed by ANURAG THAKUR THAKUR Date: 2021.10.29 08:55:49 +05'30' (ANURAG THAKUR) METROPOLITAN MAGISTRATE-02 CENTRAL DISTRICT, DELHI This judgment consists of 14 pages and each and every page of this judgment is signed by me.
FIR no. 74/2021 State v. Shahrukh PS Timarpur