Delhi District Court
State vs . Govind @ Mutka on 4 August, 2022
IN THE COURT OF SH. BHARAT AGGARWAL, METROPOLITAN
MAGISTRATE-05, SHAHDARA DISTRICT, KARKARDOOMA COURTS,
DELHI
State Vs. Govind @ Mutka
FIR No. 31/21
PS Jafrabad
U/s. 25 Arms Act
JUDGMENT
A. SL. NO. OF THE CASE : 1693/21
B. DATE OF INSTITUTION : 22.03.2021
C. DATE OF OFFENCE : 22.01.2021
D. NAME OF THE COMPLAINANT: Ct. Rajeev, No. 1233/NE
E. NAME OF THE ACCUSED : Govind @ Mutka s/o
Subhash
F. OFFENCE COMPLAINED OF : U/s 25 Arms Act
G. PLEA OF ACCUSED : Pleaded not guilty
H. FINAL ORDER : Acquittal
I. DATE OF FINAL ORDER : 04.08.2022
BRIEF STATEMENT OF REASONS FOR DECISION:
1. The present accused has been produced to stand trial for commission of offence punishable under Section 25 of Arms Act, 1959.
2. The case of the prosecution, as set up for trial in brief is that on 22.01.2021 upon receiving the DD no. 64A, IO HC Rakesh reached at the spot i.e. Kalyan Cinema, Brahampuri Road, Chauhan Banger where he met with Ct. Rajeev and Ct. Pardeep and they handed over the accused Govind @ Mutka, who was in possession of one buttondar knife. Thereafter, IO asked some public persons to join the investigation, however, they refused to join the investigation without disclosing their names and addresses. Thereafter, IO recorded the statement of Ct. Rajeev wherein he stated that he alongwith Ct.
FIR no. 31/2021 PS Jafrabad State vs. Govind Page 1 of 10Pardeep were on beat patrolling in Brahampuri road and at about 09.30 PM when they reached near Kalyan Cinema, they saw one person was standing there. Upon seeing the police officials, the accused walked fastly and upon suspicion Ct. Rajeev with the help to Ct. Pardeep apprehended the accused. It is alleged that upon searching of accused, one buttondar knife was recovered from his left pocket of his wearing lower and the information regarding this given to the police station.
Thereafter, IO searched the accused and recovered two mobile phones i.e. Vivo and Samsung. Thereafter, IO prepared the sketch of buttondar knife Ex. PW-1/A on a white plain sheet (having measurement, total length of knife 22 cm, length of fal 11 cm, length of handle 11 cm and breadth of fal 3 cm) and fal of buttondar knife was made up of steel and dasta was made up of copper having one button or having lining in the handle or make some design in back side of handle. It is further alleged that IO prepared the pullanda of said knife and sealed the same with the seal of 'RK' and handed over the seal to Ct. Rajeev. Thereafter, IO prepared the tehrir and handed over the same to Ct. Rajeev for registration of FIR.
It is further alleged that IO prepared the site plan on the instance of Ct. Rakesh, recorded the disclosure statement of accused and thereafter, arrested and conducted the personal search of the accused vide memos Ex. PW-1/F and Ex. PW-1/G and information was given to his father Subhash regarding his arrest. After completion of investigation, accused was sent to JC and information regarding the recovered mobile phones was sent to PS Usmanpur. IO then filed the charge-sheet u/s 25 Arms Act & 102 Cr.P.C before the court.
3. Accused appeared before the Court on 08.11.2021 and the copy of charge sheet was supplied to the accused under Section 207 of the Code of Criminal Procedure. Further, vide order dated 03.06.2022, charge was framed against the accused under Section 25 Arms Act, to which he pleaded not guilty and claimed trial. Further accused admitted certain documents in his FIR no. 31/2021 PS Jafrabad State vs. Govind Page 2 of 10 statement u/s 294 Cr.P.C i.e. copy of FIR Ex. P1, DD no. 64A dt. 22.01.2021 Ex. P3 and the copy of DAD notification dated 29.10.1980 Ex. P3 and accordingly witness at serial no. 3 duty officer, ASI Pawan was dropped from the list of witnesses vide order dated 03.06.2022.
PROSECUTION EVIDENCE:
4. Prosecution in order to prove its case has examined following witnesses :
4.1 PW-1 Ct. Rajeev deposed that on 22.01.2021, he alongwith Ct. Pradeep were on patrolling duty and standing at Kalyan Cinema. He further deposed that accused raised the suspicion when he starting walking after seeing them. He further deposed that they apprehended the accused and upon searching, one buttondar knife was recovered from his left pocket. Thereafter, he took the knife and informed the same to duty officer and thereafter IO HC Rakesh came at the spot. He further deposed that he handed over the case property i.e. buttondar knife to IO and IO had prepared the sketch Ex. PW1/A and recorded the tehrir Ex. PW1/B. He further deposed that IO had also searched the accused and from the pocket of the accused two mobiles phones were recovered. He further deposed that IO handed over the original tehrir to him and he went to PS for registration of FIR and after registration the same, he came back to the spot with original tehrir and copy of FIR. He further deposed that accused was arrested in his presence alongwith HC Rakesh and Ct. Pradeep and pullanda was prepared with the seal of 'RK'. He further deposed that seizure memo of buttondar knife Ex. PW1/C and mobile phone Ex.
PW1/D and disclosure statement of accused was recorded in his FIR no. 31/2021 PS Jafrabad State vs. Govind Page 3 of 10 presence Ex. PW1/E. He further deposed that arrest memo Ex. PW1/F, personally searched in his presence vide personal search memo Ex. PW1/G. He further deposed that he alongwith IO HC Rakesh and Ct. Pradeep took the accused for medical examination. PW-1 during his testimony correctly identified the accused present in the court and case property i.e. buttondar Ex. P4.
PW-1 was cross-examined by Ld. Proxy counsel for accused wherein inter alia he stated that there were no CCTV cameras when the accused was arrested. He further admitted that two mobile phone were recovered form the accused when IO has again checked the accused. He further stated that site plan was prepared by IO when he had reached at the spot after taking original rukka and copy of FIR. He further denied the suggestion that he had prepared entire documents in the PS and not at the spot.
4.2 PW- 2 HC Rakesh deposed on 22.01.2021, he was posted in PS Jafrabad as HC and he was on night duty. At about 09.49 pm, he received DD entry no. 64A regarding one boy caught with illegal knife. He further deposed that he left for the spot i.e. near Kalyan Cinema, Chauhan Banger on his personal bike and met with Ct. Rajeev and Ct. Pradeep. He further deposed that they produced the accused Govind @ Mutka and recovered illegal knife and two stolen mobile phones. He further deposed that he asked public persons to join investigation, however they refused to join the investigation citing their reasons. He further deposed that he prepared the sketch / khaka of the illegal knife after measurement of the same. Thereafter, he FIR no. 31/2021 PS Jafrabad State vs. Govind Page 4 of 10 prepared a pullanda and sealed the knife with the seal of 'RK'. He further deposed that he seized the illegal knife, seized both the mobile phones and prepared the tehrir and handed over the same to Ct. Rajeev at about 11.15 pm. He further deposed that he returned back at the spot with the tehrir and FIR. Thereafter on 23.01.2021 at about 12.50 am he arrested the accused, personally search the accused and got medically examined and lodged the accused in lockup and deposited in malkhana. He also correctly identified the accused and case property during his evidence.
PW-2 was cross-examined by Ld. counsel for accused wherein inter alia he stated that he prepared the rukka at about 11.15 pm and Ct. Rajeev took the same to PS and returned back at about 12.00 midnight. He had prepared all the written work at the spot and left the spot at about 12.50 am. He had written the statement of Ct. Pradeep and Ct. Rajeev in the PS and accused was wearing lower at the time of arrest and mobile phones were recovered from his pocket. Accused was taken to Jag Parvesh Hospital on the bike.
4.3 PW-3 HC Pardeep deposed the similar lines as PW-1 Ct. Rajeev and his testimony is not being reproduced for the sake of brevity. However, in his testimony he correctly identified the accused and case property i.e. buttondar knife Ex. P4. Nothing material could be elicited from the cross examination of the witness.
5. After completion of prosecution evidence, statement of accused was recorded under Section 313 of the Code of Criminal Procedure on 02.08.2022 upon which accused had stated that he has been falsely FIR no. 31/2021 PS Jafrabad State vs. Govind Page 5 of 10 implicated in the present case and he was lifted by the police from his home. Further the accused chose not to lead any defense evidence and final arguments were heard from both the sides.
6. I have heard the learned APP for the State and learned counsel for defence and perused the case file carefully.
ARGUMENTS OF PROSECUTION AND DEFENCE:
7. It has been argued by the learned APP for the State that all the police witnesses have corroborated the case of the prosecution. It has further argued that the recovery of buttondar knife from the pocket of the accused is proved by the prosecution witnesses and the prosecution has been able to prove its case beyond reasonable doubt and accused is liable to be convicted for the offences for which he is charged for.
8. On the other hand, it has been argued by the the accused that no public witness has joined in the investigation despite the fact that alleged buttondar knife was recovered from the possession of accused from public place. He further argued that there are several contradictions in the testimony of the prosecution witnesses and that the prosecution has failed to prove its case beyond reasonable doubt and the accused is entitled to be acquitted. Ld. Counsel for the accused further argued the accused was lifted from his home and has been falsely implicated.
FINDINGS WITH REASONS:
9. It is settled proposition of law that burden lies upon the prosecution to prove its case beyond reasonable doubts. It is the case of prosecution that on 22.01.2021 at time about 09.30 PM, accused was standing near Kalyan Cinema and when Ct. Rajeev and Ct. Pardeep reached there during patrolling FIR no. 31/2021 PS Jafrabad State vs. Govind Page 6 of 10 duty, apprehended accused Govind @ Mutka upon suspicion and found to be in possession of a buttondar knife and accordingly, the present case was registered under section 25 Arms Act which prohibits possession of illegal/unlicensed weapon including buttondar knives especially in view of D.A.D. Notification published in Delhi Gazette.
10. In order to prove its case, the prosecution has examined Ct. Rajeev, IO HC Rakesh and HC Pardeep for supporting the case of the prosecution and to prove the alleged recovery of the illegal weapon from the accused.
11. As per chapter 22 rule 49 of the Punjab Police Rules, 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 :-
(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 Police Lines and Police Posts where Register No. II is maintained.
In the present case, the above said provision has not been complied with by prosecution. The relevant entries regarding the arrival and departure of the police officials including PW-1, PW-2 and PW-3 have not been placed on record. At this juncture, it would be relevant to refer to a case law reported as Rattan Lal V/s State, [1987 (2) Crimes 29] the Hon'ble Delhi High Court it has been 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 law are not strictly complied with and the least that can be said is that FIR no. 31/2021 PS Jafrabad State vs. Govind Page 7 of 10 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."
12. It is further pertinent to note here that although it is stated by IO HC Rakesh that after he reached the spot, he prepared the site plan, the sketch of the recovered buttondar knife as well as personal search memo however, all the said documents bear the FIR number which again raise grave suspicion upon the case of the prosecution. For the same, I am also gainfully relying upon the observations made by Hon'ble High Court of Delhi Pradeep Saini v. State [2009 SCC OnLine Del 2803] :
70. Another circumstance which needs to be highlighted is that as per the case of the prosecution the sketch Ex.PW-
3/D of the knife purportedly recovered from the possession of accused Kishore Kumar was prepared before the registration of the FIR Ex.PW-2/B. Surprisingly, sketch Ex.PW-3/D of the knife contains the number of the FIR registered in the present case. The prosecution has not offered any explanation whatsoever as to under what circumstances number of the FIR Ex.PW-2/B has appeared on the document, which was allegedly prepared before registration of the FIR. This gives rise to two inferences; either the FIR Ex. PW-2/B was recorded prior to the alleged recovery of the knife or number of the said FIR was inserted in said 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 recovery of the knife in the manner alleged by the prosecution.
PW-2 during his cross examination had admitted that the statements of the witnesses were recorded by the IO at the police station which clearly casts a shadow of doubt over the veracity of prosecution's claim.
13. It is further pertinent to state here that as per the case of prosecution, the pullanda was sealed by IO with the seal of 'RK', however, no FIR no. 31/2021 PS Jafrabad State vs. Govind Page 8 of 10 handing over memo qua the buttondar knife has been prepared and placed on the record by the prosecution for the reasons best known to itself. In such a case, the alleged recovery by the police officials is completely doubtful and raises grave suspicion on the alleged prosecutions' version.
14. Furthermore, as per the case of the prosecution admittedly the spot from where the accused has been arrested and recovery made is a busy public place. However, the prosecution witnesses have not deposed regarding any concrete efforts to join public witnesses made by them at the time of affecting the alleged recovery of buttondar knife/flick knife despite their availability on the spot. It has been held time and again that evidence of alleged seizure of flick knife from possession of the accused in the absence of public witnesses cannot be trusted. There being no concrete evidence of the documents being prepared on the spot as required and not at the police station, the accused is clearly entitled to the benefit of the doubt and suspicion which is raised over the manner and mode of recovery.
15. Public witnesses were admittedly not joined in the investigation though they were clearly available. The testimony of official witnesses does not find any corroboration from any independent source. In the opinion of this Court, the non-joining of public witness is fatal to the prosecution case, particularly when no reasonable explanation has been given by prosecution for not joining public witnesses. In case titled as "Roop Chand Vs. State of Haryana" reported as [1999 (1) CLR 69], it was held that, " Where the police has failed to join independent witnesses in the investigation despite their availability and further failed to take action against those who refused to take part in investigation nor their names were noted down by the police, the explanation of the police for not joining independent witnesses is an afterthought and liable to be rejected."
In the case of "Hem Raj v. State of Haryana" [AIR 2005 SC 2110], it has been observed that :-
FIR no. 31/2021 PS Jafrabad State vs. Govind Page 9 of 10"The fact that no independent witness though available, was examined and not even an explanation was sought to be given for not examining such witness is a serious infirmity in the prosecution case. Amongst the independent witnesses one who was very much in the know of things from the beginning was not examined by the prosecution. Non-examination of independent witness by itself may not give rise to adverse inference against the prosecution. However, when the evidence of the alleged eye-witnesses raise serious doubts on the point of their presence at the time of actual occurrence, the unexplained omission to examine the independent witness would assume significance."
16. In view of the aforementioned facts and circumstances, it has to be concluded that prosecution has failed to prove its case against the accused beyond reasonable doubt. Accused is entitled to be given benefit of doubt. Accordingly, accused is acquitted for offence punishable under Section 25 of The Arms Act, 1959. Case property be confiscated to the State and be destroyed after expiry of period of appeal.
Copy of the judgment be provided free of the cost to the accused.
Digitally signed by BHARAT BHARAT AGGARWAL
AGGARWAL Date: 2022.08.04
16:52:58 -0300
ANNOUNCED IN OPEN COURT (Bharat Aggarwal)
Today i.e. 04.08.2022 MM-05/ SHD, Karkardooma
Courts/Delhi
Present judgment consisted of 10 pages and each page bears my initials.
Digitally signed by BHARAT BHARAT AGGARWAL
AGGARWAL Date: 2022.08.04
16:53:06 -0300
(Bharat Aggarwal)
MM-05/SHD,Karkardooma
Courts/Delhi/ 04.08.2022
FIR no. 31/2021 PS Jafrabad State vs. Govind Page 10 of 10