Delhi District Court
State vs . Vishal on 23 July, 2022
IN THE COURT OF MS MANSI MALIK,
METROPOLITAN MAGISTRATE03, NORTH WEST,
ROHINI COURTS, DELHI
Cr. Case No. 5122/2022
FIR No. : 195/2022
P.S. : North Rohini
State Vs. Vishal
U/s. 25/54/59 Arms Act
State
v.
Vishal
S/o Sh. Jagga Singh,
R/o Dhobi ki Dukan ke pass,
Sai Baba Mandir, Sec7,
NW Rohini, Delhi
Date of institution of case : 09.05.2022
Date of reserving the judgment : 23.07.2022
Date of pronouncement of judgment : 23.07.2022
JUDGMENT
1. S. No. of the Case: 5122/2022 2. Date of Commission of Offence: 30.03.2022 3. Date of institution of the case: 09.05.2022 4. Name of the complainant: HC Sandeep Kumar 5. Name of the accused: Vishal 6. Offence complained or proved: U/s 25 Arms Act 7. Plea of Accused: Not Guilty 8. Final Order: Acquittal State vs. Vishal FIR no. 195/22 PS North Rohini Page No. 1/12 Digitally signed MANSI by MANSI MALIK MALIK Date: 2022.07.23 17:16:36 +0530 9. Date of Final Order: 23.07.2022 BRIEF FACTS AND REASONS FOR DECISION
1. Succintly, the case of prosecution is that the accused Vishal has been sent to face trial with the allegations that on 30.03.2022 at about 05:10 PM near DAV School, Sec7, Rohini, Delhi within the jurisdiction of PS North Rohini, accused Vishal was found in possession of one buttondar knife, without any license or permit. Investigation was carried out. Upon completion of the investigation the instant chargesheet for the offence punishable under Section 25 Arms Act was filed by the investigating officer against the accused. The accused was then summoned by the un dersigned.
2. The copy of charge sheet and relevant documents was supplied to the accused in compliance of Section 207 of Code of Criminal Procedure, 1973 (hereinafter referred to as Cr.PC).
3. Prima facie case was made out and charge for offence punishable under Section 25 Arms Act was framed on 30.05.2022 to which the accused pleaded not guilty and claimed trial. Thereafter, the matter was fixed for recording of prosecution evidence.
4. In order to substantiate the allegations, the prosecution examined three witnesses. At the onset it would be appropriate to have glance at the gist of deposition made by the witnesses:
5. PW1 HC Sandeep Kumar, was member of the raiding team, who has deposed on the same lines as case of the prosecution. PW1 has stated that on 30.03.2022, he State vs. Vishal FIR no. 195/22 PS North Rohini Page No. 2/12 MANSI Digitally signed by MANSI MALIK MALIK Date: 2022.07.23 17:16:45 +0530 was posted at PS North Rohini as HC and on that day he was on patrolling duty along with HC Navneet and Ct. Devi Singh and while on patrolling at about 04:45 PM when they reached near Ramleela Maidan, Sec7, CBlock, one secret informer met with them and informed them that one person who is involved in theft of cycle would come near DAV School, Sec7, to sell the stolen cycle and that that the person might have buttondar knife in his possession. Thereafter PW1 shared the aforesaid infor mation with SHO and they were instructed to take immediate action. PW1 further deposed that he constituted a raiding party including him, HC Navneet and Ct. Devi Singh and reached at DAV School, Sec7 alongwith secret informer. PW1 further deposed that at about 05:10 pm, they saw one person coming on cycle from the side of Shani Bazar Road, Sec7, Rohini and secret informer signaled them that he is the same person regarding whom he gave information to them. PW1 further deposed that he alongwith other police officials apprehended the accused and recovered one Hero cycle and one buttondar knife from his right side pocket. The name of the ac cused was revealed as Vishal. PW1 further deposed that accused disclosed that he had stolen the aforesaid cycle about 2025 days back from Sec9, Rohini. PW1 fur ther deposed that he prepared the sketch of the recovered knife prior to the seizure which is Ex. PW1/A and he had sealed the buttondar knife by placing it in plastic container by sealing it with medical tape and put the seal of "SK" on the container and seized the knife with the seizure memo Ex. PW1/B. The seal after use was handed over to Ct. Devi Singh. PW1 further deposed that upon enquiry, the afore said cycle was found to be stolen from the jurisdiction of PS Prashant Vihar and he seized the cycle with vide seizure memo Ex. PW1/C and prepared the Rukka Ex. PW1/D and sent Ct. Devi Lal for registration of FIR. PW1 further deposed that after getting the case registered Ct. Devi Lal alongwith HC Ramesh Chander returned back to the spot and he handed over the custody of accused Vishal, seizure memo along with the case property to HC Ramesh Chandra. PW1 further deposed that IO/HC State vs. Vishal FIR no. 195/22 PS North Rohini Page No. 3/12 Digitally signed by MANSI MANSI MALIK MALIK Date:
2022.07.23 17:16:53 +0530 Ramesh Chander prepared the site plan Ex. PW1/E and arrested the accused vide ar rest and personal search memo which is Ex. PW1/F and Ex. PW1/G. IO recorded the disclosure statement of the accused which is EX. PW1/H. PW1 further deposed that accused got recovered five cycles from DDA Park, Naharpur, Delhi, five cycles from Ramleela Ground, Sec7, Rohini, Delhi and five cycles behind the parking at B.S.A. Hospital and IO seized the aforesaid cycles vide seizure memo Ex. PW1/1A to Ex. PW1/A3. PW2 deposed on similar lines as PW1. Both PW1 and PW2 cor rectly identified the case property which is Ex. P1 as well as the accused.
6. PW3 is HC Ramesh Chandra, deposed that on 30.03.2022, PW3 was posted as HC at PS North Rohini and after registration of FIR, the present case was assigned to him. PW3 further deposed that he alongwith Ct. Devi Lal reached at the spot and met HC Sandeep who handed over the custody of accused Vishal, sketch of recov ered knife alongwith the case property, Hero cycle and seizure memo of cycle to him. PW3 further deposed that he prepared the site plan Ex. PW1/E and arrested the ac cused and conducted his personal search vide memo Ex. PW1/F and PW1/G and also recorded the disclosure statement of accused Ex. PW1/H. PW3 further deposed that five cycles from DDA Park, Naharpur, Delhi, five cycles from Ramleela Ground, Sec7, Rohini, Delhi and five cycles behind the parking at B.S.A. Hospital were re covered from the accused and he seized the aforesaid cycles vide seizure memo Ex. PW1/1A to Ex. PW1/A3. PW3 further deposed that accused also got recovered give cycles from the bush behind D Mall, Sec10, Rohini and he seized the same vide seizure memo Ex. PW3/A and case property was deposited in Malkhana. PW3 fur ther deposed that he recorded the statement u/s 161 Cr.P.C. of witnesses and chargesheet was also filed by PW3 after completion of investigation. PW3 correctly identified the accused as well as the case property. PW1, PW2 and PW3 were duly crossexamined by the Ld. LAC for the accused.
State vs. Vishal FIR no. 195/22 PS North Rohini Page No. 4/12 Digitally signed by MANSIMANSI MALIK Date: MALIK 2022.07.23 17:17:01 +0530
7. The accused also admitted the genuineness of FIR no. 195/2022 PS North Rohini i.e Ex. P1, Certificate u/s 65B Indian Evidence Act regarding the aforesaid FIR i.e. Ex. P2, GD No. 55A which is Ex. P3, Endorsement on Rukka which is Ex. P4, Entries in register no. 19 regarding the present case Ex. P5 and DAD Notification Ex. P6 u/s 294 Cr.PC, without admitting the contents of the same. In view of the above, witnesses mentioned at serial no. 4, 5 and 6 in the list of prosection witnesses were dropped. Prosecution evidence was thereafter closed on 18.07.2022.
8. Statement of accused person was recorded u/s 313 Cr.PC., wherein all the incriminating evidence was put to the accused, to which he stated that he has been falsely implicated in this case. Further, the accused person did not opt to lead defence evidence and the matter was listed for final arguments.
9. The Court has carefully perused the case record and has heard arguments advanced by Ld. APP for the state as well as by Ld. Defence counsel.
10. Short point for determination before the court is as under "Whether on 30.03.2022 at about 05:10 PM near DAV School, Sec7, Rohini, Delhi within the jurisdiction of PS North Rohini, the accused Vishal was found in possession of one buttondar knife, without any licence or permit?"
11. It is argued by Ld. APP for the state that from the ocular and documentary evidence on record, prosecution has proved beyond reasonable doubt that accused was found in possession of buttondar knife without permit and submitted that accused be convicted of the offence charged.
State vs. Vishal FIR no. 195/22 PS North Rohini Page No. 5/12Digitally signed by MANSI MANSI MALIK Date:
MALIK 2022.07.23 17:17:14 +0530
12. Per contra, it is argued by the Ld. LAC for the accused that accused is completely innocent and recovery of case property has been falsely implanted upon him. It is further submitted by Ld. Counsel that nonjoinder of public witness despite availability cast shadow of doubt on prosecution story. It is further argued by Ld. LAC for the accused that tampering with the contents of the sealed parcel cannot be ruled out as seal was not handed to the independent witness. At the end, it is submitted that the prosecution has miserably failed to prove its case beyond reasonable doubt and therefore, the accused is liable to be acquitted of the alleged offence.
13. I have heard the rival submissions and have also carefully gone through the entire material available on record and evidence led on behalf of the prosecution. My findings on the point for determination and brief reasons for the same are now being discussed in following paragraphs.
14. In present case, the prosecution was duty bound to prove the possession of the buttondar knife with the accused. Same is sought to be proved by the recovery memo and testimony of the witnesses. But the manner of conducting inquiry, seizure and search etc. on the spot at the time of arrest of the accused and alleged recovery of buttondar knife in this case, makes the prosecution version highly doubtful. Incident is stated to have happened at about 5:10 PM and it is evident from the testimony of PW1 that the accused was apprehended alongwith the alleged unauthorised buttondar knife at a public place but still no public independent person was cited as a witness in this case.
15. The aforesaid observations have been deduced from the testimony of PW1, PW 2 and PW3. As per version of PW3/IO, after apprehension of the accused, public State vs. Vishal FIR no. 195/22 PS North Rohini Page No. 6/12 Digitally signed by MANSI MANSI MALIK MALIK Date:
2022.07.23 17:17:20 +0530 persons were available at the spot. PW3 requested public persons to join the investigation but all the public persons refused to join the same. However, a perusal of the record shows that no written notice was served on the public persons. The said explanation given by PW3 cannot be accepted by the court since, the IO was under
obligation to issue notice in writing to the public persons, who refused to join the police investigation particularly in the background when the accused has already been apprehended by the police and there was no apprehension that accused might escape. Moreover, the IO has not even placed on record the names of the passersby who were asked to join the investigation and neither have any reasons been mentioned by the IO for refusal by the people who were approached to join the investigation. In the facts and circumstances of the case, this court finds that police has not made any sincere effort to join independent public witnesses during investigation. In this regard reliance is being placed on the following judgments: In a case law reported as "Anoop V/s State", 1992 (2) C.C. Cases 314 (HC), Hon'ble High Court of Delhi has observed as under:
"18. It is repeatedly laid down by this Court that in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evident that no such sincere efforts have been made, particularly when we find that shops were open and one or two shopkeepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the shopkeepers had declined to join the raiding party, the police could have later on taken legal action against such shopkeepers because they could not have escaped the rigours of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC".
In an case law reported as "Roop Chand V/s The State of Haryana", 1999 (1) C.L.R 69, the Hon'ble Punjab & Haryana High Court held as under: State vs. Vishal FIR no. 195/22 PS North Rohini Page No. 7/12 Digitally signed by MANSI MANSI MALIK MALIK Date:
2022.07.23 17:17:28 +0530
"3. I have heard the learned counsel for the parties and gone through the evidence with their help. The recovery of illicit liquor was effected from the possession of the petitioner during noon time and it is in the evidence of the prosecution witnesses that some witnesses from the public were available and they were asked to join the investigation but they refused to do do so on the ground that their joining will result into enmity between them and the petitioner". "4. It is well settled principle of the law that the Investigation Agency should join independent witnesses at the time of recovery of contraband articles, if they are available and their failure to do so in such a situation casts a shadow of doubt on the prosecution case. In the present case also admittedly the independent witnesses were available at the time of recovery but they refused to associate themselves in the investigation. This explanation does not inspire confidence because the police officials who are the only witnesses examined in the case have not given the names and addresses of the persons contacted to join. It is a very common excuse that the witnesses from the public refused to join the investigation. A police officer conducting investigation of a crime is entitled to ask anybody to join the investigation and on refusal by a person from the public the Investigating Officer can take action against such a person under the law. Had it been a fact that he witnesses from the public had refused to to join the investigation, the Investigating Officer must have proceeded against them under the relevant provisions of law. The failure to do so by the police officer is suggestive of the fact that the explanation for nonjoining the witnesses from the public is an after thought and is not worthy of credence. All these facts taken together make the prosecution case highly doubtful".
In case law reported as "Sadhu Singh V/s State of Punjab", 1997 (3) Crimes 55 the Hon'ble Punjab & Haryana High Court observed as under: "5. In a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubts. It is for the prosecution to travel the entire distance from may have to State vs. Vishal FIR no. 195/22 PS North Rohini Page No. 8/12 Digitally signed by MANSI MANSI MALIK Date:
MALIK 2022.07.23
17:17:36
+0530
must have. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused" "6. In the present case, the State examined two witnesses namely, Harbans Singh ASI who appeared as PW1 and Kartar Singh. PW2. Both the witnesses supported the prosecution version in terms of the recovery of opium from the person of the petitioner, but there was no public witness who had joined. It is not necessary in such recoveries that public witnesses must be joined, but attempt must be made to join the public witnesses. There can be cases when public witnesses are reluctant to join or are not available. All the same, the prosecution must show a genuine attempt having been made to join a public witness or that they were not available. A stereotype statement of nonavailability will not be sufficient particularly when at the relevant time, it was not difficult to procure the service of public witness. This reflects adversely on the prosecution version".
16. Considering the aforesaid observations made by the Higher Courts, the omissions/ failure on the part of investigating agency to join independent public witnesses create reasonable doubt in the prosecution story. Making bald averments that public persons were asked to join the investigation but none agreed without giving any written notice to them does not inspire the confidence of the Court.
17. The next inconsistency in the case of the prosecution is the failure to prove the arrival and departure entries of the police officials. It is pertinent to mention that the present case rests entirely on the alleged recovery of case property, i.e. knife from the possession of the accused at the relevant time by the police officials who were on patrolling duty at the relevant time and place, as per the prosecution story. Police officials are under a statutory duty to mark their departure and arrival in the register kept in the police station for above purpose as per the Punjab Police Rules. It is relevant here to reproduce Chapter 22 Rule 49 of the Punjab Police Rules, 1934, State vs. Vishal FIR no. 195/22 PS North Rohini Page No. 9/12 Digitally signed by MANSI MANSI MALIK Date:
MALIK 2022.07.23 17:17:51 +0530 which reads 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."
18. Since public persons were not joined in the investigation, the departure entry of the aforesaid police officials who were allegedly on patrolling duty at the relevant time and had apprehended the accused with case property becomes a vital piece of evidence. In the case in hand neither the departure entry nor arrival entry was proved by prosecution, however, proof of the said entry is indispensable as the present case rests solely on the alleged recovery made by the aforesaid police official. Therefore, the failure to prove the aforementioned entries casts a doubt on the story of the prosecution.
19. Further, as per evidence on record, the seal after use was not given to any independent public person but was infact given to Ct. Devi Singh, who was also a material prosecution witness being a witness to the alleged recovery of the illicit knife from the possession of the accused, such material witness of a case is always interested in the success of the case of the prosecution and keeping view this factum chances of fabrication of case property cannot be ruled out. Moreover, no seal handing over memo is also on record. Hence, considering the legal position, the benefit of doubt should be given to the accused, as tampering with case property in such a scenario cannot be ruled out. Reliance is placed on the judgment of Ramji State vs. Vishal FIR no. 195/22 PS North Rohini Page No. 10/12 Digitally signed by MANSI MANSI MALIK Date:
MALIK 2022.07.23 17:17:58 +0530 Singh Vs. State of Haryana 2007 (3) R.C.C. (Criminal) 452, wherein it is held that "7. The very purpose of giving seal to an independent person is to avoid tampering of the case property. It is well settled that till the case property is not dispatched to the forensic science laboratory, the seal should not be available to the prosecuting agency and in the absence of such a safeguard the possibility of seal, contraband and the samples being tampered with cannot be ruled out."
Similarly, Hon'ble Delhi High Court in Safiullah v. State, 1993 (1) RCR (Criminal) 622, held that "10. The seals after use were kept by the police officials themselves. Therefore the possibility of tampering with the contents of the sealed parcel cannot be ruled out. It was very essential for the prosecution to have established from stage to stage the fact that the sample was not tampered with. Once a doubt is created in the preservation of the sample the benefit of the same should go to the accused."
20. From the aforesaid discussion, it is very clear that the manner in which the inquiry, seizure and search etc. has been conducted on the spot at the time of alleged recovery of weapon, makes the prosecution version highly doubtful. At this stage, it would also be worthwhile to refer to the judgment of Hon'ble Supreme Court in Sar wan Singh vs State of Punjab (AIR 1957 SC 637) regarding the nature of burden of proof on the prosecution to prove its case. The ratio of this judgment is applied with the same vigour even after passing of more than 50 years. It was held in this case that: "There may also be an element of truth in the prosecution story against the ac cused. Considered as a whole, the prosecution story may be true; but between 'may be true' and 'must be true' there is inevitably a long distance to travel and the whole of this distance must be covered by the prosecution by legal, reliable and unimpeach State vs. Vishal FIR no. 195/22 PS North Rohini Page No. 11/12 Digitally signed by MANSI MANSI MALIK Date:
MALIK 2022.07.23 17:18:06 +0530 able evidence before an accused can be convicted." Again in Jagdish Prasad vs State (Govt Of NCT Of Delhi) 2011 (9) LRC 206 (Del), the Hon'ble High of Delhi had observed that "It is well settled that in a criminal case, in order to bring home the guilt of the accused, the prosecution is required to establish the guilt beyond a shadow of reasonable doubt. If, on consideration of the prosecution evidence, a rea sonable doubt remains in respect of culpability of the accused, he is entitled to bene fit of doubt.
21. In view of the above discussion, this Court is of considered view that in the present case the prosecution has failed to prove its case against the accused Vishal beyond reasonable doubt. Accordingly, the accused Vishal is acquitted for the offence punishable u/s 25 Arms Act.
22. Bail bonds u/s 437A of CrPC are to be furnished which would remain valid for a period of six months.
Digitally
signed by
MANSI
MANSI MALIK
Announced in open Court (MANSI MALIK)
MALIK Date:
2022.07.23
on 23rd Day of July, 2022 Metropolitan17:18:12
Magistrate03,
+0530
NorthWest, Rohini, Delhi
State vs. Vishal FIR no. 195/22 PS North Rohini Page No. 12/12