Delhi District Court
State vs . Rohit Getha @Lekh Raj on 3 December, 2022
IN THE COURT OF SH. AAKASH SHARMA, MM-08, WEST
DISTRICT, ROOM NO. 30, TIS HAZARI COURTS, DELHI.
FIR No. : 388/2018
U/s : 25/54/59 Arms Act
P.S. : Mianwali Nagar
State Vs. Rohit Getha @Lekh Raj
CNR No. DLWT-016917-2018
JUDGMENT:
a) Sl. No. of the case : 8657/2018
b) Name & address of the : Ct. Virender Kumar,
complainant. No. 3099/OD,
PS Mianwali Nagar, Delhi.
c) Name & address of : Rohit Getha @Lekh Raj,
accused S/o Sh. Rajender,
Jhuggi No. A-435, Camp No. 4,
Jwalapuri.
d) Date of Commission of : 26.09.2018
offence
e) Offence complained off : u/S 25(1B)(b) Arms Act
f) Plea of the accused : Pleaded not guilty.
g) Final Order : Acquitted
h) Date of such order : 03.12.2022
i) State Represented by : Sh. Abhishek Pandey, Ld. APP.
j) Accused Represented by : Sh. Praveen Pachori, Ld. Counsel.
State Vs. Rohit Getha @Lekh Raj FIR No. 388/2018 Page No. 1/17
Date of Institution : 16.11.2018
Final arguments heard on : 03.12.2022
Judgment Pronounced on : 03.12.2022
BRIEF STATEMENT OF REASONS FOR DECISION: -
1. Briefly stated, case of the prosecution is that on 26.09.2018 at about 10:50 PM, at Sunder Vihar, Bus Stand, Outer Ring Road, Delhi, within the jurisdiction of PS Mianwali Nagar, accused was found in possession of one buttondar knife from the left side pocket of the wearing pant in contravention of notification issued by the Delhi Administration.
2. After investigation, challan for offence U/s 25/54/59 Arms Act was filed. Compliance of Section 207 Cr.P.C was done.
3. Charge for committing the offence punishable under Section 25/54/59 Arms Act was framed against accused on 25.04.2019. He pleaded not guilty and claimed trial.
4. To substantiate its case, the prosecution examined two witnesses i.e. PW Ct. Virender, PW Ct. Anil Kumar and PW ASI Shambhu Singh.
State Vs. Rohit Getha @Lekh Raj FIR No. 388/2018 Page No. 2/17
5. PW-1 Ct. Virender, No. 3099/OD, PS Mianwali Nagar, is the complainant/witness in the present case, who deposed that on 26.09.2018, he was posted at PS Mianwali Nagar as Ct. On that day he alongwith Ct. Anil were on the patrolling duty near Raddison Hotel, Sunder Vihar. When they were present near above said hotel, one secret informer met to them and informed that 3-4 boys were standing at Sunder Vihar Bus Stand, who used to pick pockets and if raid was conducted, they could be apprehended. Thereafter, Ct. Anil informed in the PS regarding the information. On this, SHO directed them to apprehend those persons. Thereafter, they asked 4-5 public persons to join the proceedings but none joined and went away without disclosing their names and addresses. Due to paucity of time, they immediately reached at the abovesaid place alongwith secret informer. After reaching at the spot, secret informer pointed out those persons and he apprehended accused and after inquiry, accused disclosed his name as Rohit, who was present in the court that day and correctly identified by the witness. Ct. Virender apprehended Mohd. Anwar and Ct. Anil apprehended the third person. Thereafter, he made cursory search of accused Rohit on which one buttondar knife was recovered from State Vs. Rohit Getha @Lekh Raj FIR No. 388/2018 Page No. 3/17 the left side pocket of his wearing pants. Thereafter, he gave the information of the apprehension of the accused to the then duty officer, on which ASI Shambhu reached at the spot to whom he produced to him the above said apprehended accused and the recovered knife. Thereafter, IO interrogated accused and he disclosed his name as Rohit Getha @Lekhraj. Thereafter, IO recorded his statement vide Ex.PW1/A. Thereafter, he prepared rukka and handed over the same to him which he took to PS, got the case registered and came back with the copy of FIR and original rukka and handed over the same to the IO. Thereafter, IO prepared site plan at his instance vide Ex.PW1/B. IO measured the recovered knife which was found 24 CM long total, blade was of 11.3 CM and width of the blade was 3 CM and length of handle was 13.2 CM. IO prepared sketch of the knife vide Ex.PW1/C. IO sealed the knife with the seal of SS and handed over the seal to him. IO arrested the accused and conducted his personal search vide memos Ex.PW1/D and Ex.PW1/E. IO recorded the disclosure statement of accused vide Ex.PW1/F. IO prepared seizure memo of the case property vide Ex.PW1/G. Thereafter, accused got medically examined at SGM Hospital. Accused and case property were brought to PS. State Vs. Rohit Getha @Lekh Raj FIR No. 388/2018 Page No. 4/17 At that stage, MHC(M) had produced one white colour pullanda and the case details of the present case were written on the same and the pullanda was properly sealed with the seal of SS. The seals were broken with the permission of the court and one buttondary knife was taken out and shown to the witness. On seeing the buttondar knife, witness stated that was the same buttondar knife which was recovered from the accused and the same was Ex.PW1.
In his cross-examination, witness/complainant deposed that he reached at the spot at 10:50 PM. The distance between the spot and PS is about 1 KM. He left the PS at about 09:30 PM for patrolling on foot after making DD entry but he did not remember DD No. He informed to the SHO telephonically but the same was not mentioned in his statement. IO reached at the spot at about 11:05 to 11:10 PM. He could not tell the names of public persons to whom he asked to join the proceedings. Public persons were passing through the spot but he could not tell the number of those persons. Distance between Bus stop and the place where he got information was bout 300 meter. He could not tell the name of person who was apprehended by Ct. Anil. He reached at PS at about 01:15 AM. IO recorded his statement at the spot at about State Vs. Rohit Getha @Lekh Raj FIR No. 388/2018 Page No. 5/17 11:25 to 11:30 PM. He did not remember the exact time, when he took the rukka to the PS and when he came back to the spot. IO prepared arrest memo, sketch memo, personal search memo, disclosure statement etc on the spot. He did not remember the exact time of preparing the documents. He did not remember whether IO recorded his statement u/S 161 Cr.P.C. It was wrong to suggest that he never visited the spot or that no recovery was effected from the accused or that accused had been falsely implicated by calling him at PS and case property has been falsely planted upon the accused. It was wrong to suggest that all the documentary work was done while sitting in the PS. It was wrong to suggest that he was deposing falsely.
6. PW-2 Ct. Anil Kumar, No. 2671/OD, PS Paschim Vihar West, Delhi, is the witness in the present case, who deposed that on 26.09.2018, he was posted at PS Mianwali Nagar as Ct. On that day, he along-with Ct. Virender were on the patrolling duty near Raddison Hotel, Sunder Vihar. When they were present near above said hotel, one secret informer met them and informed that 3-4 boys were standing at Sunder Vihar Bus Stand who used to pick pockets and if raid was conducted, they can be apprehended. State Vs. Rohit Getha @Lekh Raj FIR No. 388/2018 Page No. 6/17 Thereafter, he informed in the PS regarding the information. On this, SHO directed them to apprehend those persons. Thereafter they asked 4-5 public persons to join the proceedings but none joined and went away without disclosing their names and addresses. Due to paucity of time, they immediately reached at the above said place alongwith secret informer. After reaching at the spot, secret informer pointed out those persons and left the spot. Thereafter, Ct. Virender apprehended accused and after inquiry, accused disclosed his name as Rohit (who was present in the court that day and correctly was identified by the witness), Ct. Virender apprehended Mohd. Anwar and he apprehended the third accused namely Deepak @ Raghubir. Thereafter, Ct. Virender made cursory search of accused Rohit on which one buttondar knife was recovered from the left side pocket of his wearing pant. Thereafter he gave the information of the apprehension of the accused to the then Duty Officer on which ASI Shambhu reached the spot to whom he produced the above said apprehended accused and the recovered knife. Thereafter IO interrogated accused and he disclosed his name as Rohit Getha @ Lekhraj. Thereafter, IO recorded the statement of Ct. Virender vide already Ex.PW1/A. Thereafter IO prepared rukka and handed over the same to Ct. State Vs. Rohit Getha @Lekh Raj FIR No. 388/2018 Page No. 7/17 Virender which he took to PS, got the case registered and came back with copy of FIR and original rukka and handed over the same to IO. Thereafter, IO prepared site plan at the instance of Ct. Virender vide already Ex.PW1/B. IO measured the recovered knife which was found 24 cm long total, blade was of 11.3 cm and width of the blade was 3 cm and length of handle was 13.2 cm. IO prepared sketch of knife vide already Ex.PW1/C. IO sealed the knife with the seal of 'SS' and handed over the seal to Ct. Virender. IO arrested the accused and conducted his personal search vide memos already Ex.PW1/D and Ex.PW1/E. IO recorded the disclosure statement of accused vide already Ex.PW1/F. IO prepared seizure memo of the case property vide already Ex.PW1/G. Accused and case property were brought to PS. IO recorded his statement.
He could identify the case property, if shown to him. The case property was already Ex.P-1.
Cross-examination was treated as Nil despite opportunity was given.
Accused was further cross-examined after summoning u/S 311 Cr.P.C. and deposed that he reached the spot at about 10.30- 11PM. The distance between the spot and PS was about 1-1.5 State Vs. Rohit Getha @Lekh Raj FIR No. 388/2018 Page No. 8/17 kilometer. He along with Ct. Virender and Ct. Virender (name of both Ct. Were same) left the PS for patroling duty on my foot. He did not remember the departure DD entry of the PS. he left the spot at about 3 AM on the next day. He did not remember the DD entry when they left the spot. he did inform the SHO through my mobile about the incident and stated this in his statement. He stayed at the spot for 3-4 hours. Since it was wee hours of the midnight so there were only 1-2 persons. He did not record statement of public persons nor record there name and address. IO reached at the spot at 11PM. IO recorded his statement when they were at spot and at about 1 to 1.30 AM and during recording his statement by the IO, accused and other 2 constables were also present. He did not remember the exact time when the IO prepared the arrest memo, personal search memo, sketch memo, and disclosure statement. These documents were not prepared simultaneously. He did not remember which document was prepared at first. He did not remember whether the IO prepared these documents while sitting or while standing. Ct. Virender left for PS with Rukka at about 1AM and returned at the spot at about 2 AM. In this period He did not remember which document was prepared by the IO. In the meanwhile IO was interrogating the State Vs. Rohit Getha @Lekh Raj FIR No. 388/2018 Page No. 9/17 accused about the incident and was also doing some writing work. Site plan (EX.PW1/B) was not prepared in his presence. The sketch of Knife (EX.PW1/C) was not prepared in his presence. It was wrong to suggest that he did not went to spot nor did he joined the investigation. It was wrong to suggest that IO prepared all the documents while sitting in the PS nor did the IO do any inquiry in the case. It was wrong to suggest that accused was picked from his house as suggested. It was wrong to suggest that accused has been falsely implicated in this case. It was wrong to suggest that he deposing falsely.
7. PW-3 ASI Shambhu Singh, PIS No. 28901070, PS Bharat Nagar, North West District, Delhi, is the IO/witness in the present case, who deposed that on 26.09.2018 he was posted as ASI at PS MW Nagar. On that day one call was marked to him vide Dd no. 62A Dt.26/9/18 for the investigation. he reached at the spot i.e. Sunder Vihar bus stand, Ringroad, Near Radisson Hotel. There he met Ct. Virender who had already apprehended one person whose name revealed as Rohit. Ct. Virender told him that accused Rohit(who was present in the court that day correctly identified by the witness) was found in possession of buttondar State Vs. Rohit Getha @Lekh Raj FIR No. 388/2018 Page No. 10/17 knife. he recorded the complaint of Ct. Virender and prepared the Rukka which was exhibit as Ex.PW3/A. Thereafter on 27/9/18(as it was midnight and the date has been changed during the investigation) he prepared the sketch of the knife which was already exhibit as Ex.PW1/C. He handed over the Rukka to Ct. Virender for getting the case register. Ct. Virender left the spot. After the registration of the FIR Ct. Virender came back to the spot and handed over the original rukka and copy of the FIR to him. Thereafter, he prepared the site plan which was already exhibit as PW1/B. He seized the knife vide seizure memo already exhibit as Ex.PW1/G. Thereafter, he arrested the accused, conducted personal search and recorded his disclosure statement vide memos already exhibit as Ex. PW1/D, PW1/E & PW1/F respectively. Thereafter Ct. Virender went to SGM hospital along with accused for getting done the medical examination of the accused. Thereafter accused was sent to PS Paschim Vihar lockup and on the next day he was produced before the concerned court. He could identify the case property if shown to him.
The case property was already exhibit as Ex. P1 during the testimony of Ct. Virender before the court on 7/12/19.
In his cross-examination, witness deposed that he reached State Vs. Rohit Getha @Lekh Raj FIR No. 388/2018 Page No. 11/17 at the spot at around 11:15 PM and remained there till 4:30 AM on the next day. He did not make the DD entry of going back to the PS however he made the entry of the arrest of the accused. The distance between the spot and the PS was around 1.5 KM. He went to the spot on his motorcycle. He did not mention the registration no. of his motorcycle in the DD entry while leaving the PS. He did not take the reimbursement of the petrol used by him during the investigation in his motorcycle. It was correct that the spot was a crowded place. It was correct that many persons were roaming around the spot. He did not give any written notice to the public persons who left the spot without joining the investigation. He did not record their name and address as they did not tell the same. He informed the SHO concerned regarding the arrest of the accused after going back to the PS. He mentioned the said fact in his case diary. It was wrong to suggest that he did not mention the same in his case diary. He did not remember the time when he prepared the site plan but he prepared the same in the presence of Ct. Virender and the accused. He prepared the documents while sitting on the bench of the bus stop. He did not mention the fact in his site plan. Ct. Virender left the spot at about 1:15 AM and came back at around 2:15 AM. He prepared the site plan and sketch State Vs. Rohit Getha @Lekh Raj FIR No. 388/2018 Page No. 12/17 during that time. He took the signature of the accused and Ct. Virender on the above mentioned document after there coming back to the spot. It was correct that he did not know the FIR no. prior to coming back of Ct. Virender from the PS after the registration of the FIR Vol. They used to leave the space of the FIR no. Empty on the documents prepared prior to the registration of the FIR. It was wrong to suggest that all the documents are prepared prior to the registration of the FIR while sitting in the PS. It was wrong to suggest that the accused had been lifted from his house. It was wrong to suggest that he has never committed any offence. It was wrong to suggest that he never visited the spot of incidence. It was wrong to suggest that the accused has been falsely implicated in the present case and the recovery of the knife is planted upon him. It was wrong to suggest that he was deposing falsely.
8. It was submitted by Ld. APP no other witness was required to be examined. PE was closed. Accused vide statement u/S 294 Cr.P.C. admitted FIR No. 388/2018 dated 27.09.2018, Statement of Ct. Virender, F-13/203/78 Home (g) dated 17.02.1979 and Certificate u/S 65-B IE Act vide Ex.A1 to Ex.A4 respectively. State Vs. Rohit Getha @Lekh Raj FIR No. 388/2018 Page No. 13/17
9. Statement Under Section 313 Cr.P.C. was recorded of the accused and all the incriminating evidence was put to him and the accused stated that the witnesses have deposed falsely against him and that they are interested witnesses. That he has been falsely implicated and the case property has been planted upon him. Accused did not wish to lead defence evidence.
10. I have heard Ld. APP for the State, Ld. Counsel for the accused and have carefully gone through the record.
11. 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 the benefit of every reasonable doubt in the prosecution story and any such doubt in the prosecution case entitles the accused to acquittal.
State Vs. Rohit Getha @Lekh Raj FIR No. 388/2018 Page No. 14/17
12. 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 Supreme Court 1930, it was 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 made, public persons must be made witness.
13. From the overall testimony of the witnesses, it is clear that the IO has not joined any public witness at the time of arrest or while completing the formalities despite availability of public persons and PW-1 and PW-2 had prior secret information that accused can be apprehended despite which they failed to join an independent witness. PW1/PW2 could have easily joined an independent witness at the time and place from where the accused State Vs. Rohit Getha @Lekh Raj FIR No. 388/2018 Page No. 15/17 was apprehended and also PW3 had ample opportunity to join an independent witness as accused had already been apprehended when the seizure formalities were being completed, since public persons were admittedly present and as per testimony of PW1/PW2, they had prior secret information that accused can be apprehended. Even then, police officials failed to join any public witness. PW3 also did not join any public witness despite their availability at the spot. All the witnesses examined are police witnesses. This casts a doubt about the sincere efforts made by the investigation agency to join independent witnesses.
14. Perusal of the testimony of witnesses reflects that the sketch memo of knife Ex.PW1/C, seizure memo of knife vide Ex.PW1/G, were prepared before the registration of FIR. At the time only DD entry No. 62-A was in the knowledge of the IO, then how could IO have written the FIR no. upon the memos. In fact there is no DD entry on the sketch memo of knife Ex.PW1/C despite it being the first document prepared by the IO/PW3. When documents are prepared before registration of FIR and they contain the FIR number, an inference has to be drawn that either FIR was recorded prior in time or the documents were prepared later on and in such State Vs. Rohit Getha @Lekh Raj FIR No. 388/2018 Page No. 16/17 cases, benefit of doubt is to be given to the accused.
15. In the case at hand, all the lapses in investigation cast a doubt on the very recovery of the knife from the possession of the accused. This court is of the considered view that prosecution has not been able to prove the guilt of the accused and has failed to prove its case beyond reasonable doubt. Accordingly, accused Rohit Getha @Lekh Raj is acquitted of the offence under Section 25(1B)(b) Arms Act.
Dictated & Announced in Open Court (Aakash Sharma) On the 03rd day of December, 2022 MM-08(West)/Delhi 03.12.2022 State Vs. Rohit Getha @Lekh Raj FIR No. 388/2018 Page No. 17/17