Delhi District Court
State vs . Samiran @ Suddo on 22 February, 2023
IN THE COURT OF SH. RAHUL VERMA,
METROPOLITAN MAGISTRATE07, SOUTH EAST DISTRICT,
SAKET COURTS, NEW DELHI.
FIR No. 454/2022
PS - Sunlight Colony
U/s - 25 Arms Act
State Vs. Samiran @ Suddo
JUDGMENT
Part A - The list at a glance A. Serial No. of the Case : 8962/2022 B. Date of Commission of offence : 30.08.2022 C. Date of Institution of Case : 07.10.2022 D. Name of the Complainant : Ct. Dharam Chand No.2035/SE E. Name of Accused : Samiran @ Suddo S/o Mohd.
Mustafa R/o House No. T108,
Shiv Ka Makkan, Sarai Kale
Khan, New Delhi
F. Offence charged of : 25 Arms Act
G. Plea of the accused : Pleaded not guilty
H. Final Order : Acquitted
I. Judgment reserved on : 14.02.2023
J. Date of judgment : 22.02.2023
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Part B - A brief statement of reasons for the decision (As mandated u/s 355(i) of the Code of Criminal Procedure, 1973.)
1. It is the case of the prosecution that on 30.08.2020 at about 10.30 PM at Normal Road, Sarai Kale Khan, near Community Center, New Delhi, within the jurisdiction of PS Sunlight Colony, accused was found in possession of one buttondar knife in contravention of provisions of Arms Act and DAD Notification No. F/13/451/79 (Home) (G) dated 29.10.1980, without any permit or license and and thereby committed offence punishable u/s. 25 of the Arms Act, 1959 (hereinafter referred to as "the Act").
2. After completion of investigation, charge sheet qua the accused was filed under Section 25 Arms Act, 1959. Documents were furnished to the accused in compliance of Section 207 of Criminal Procedure Code (hereinafter, referred to as 'Cr.P.C.'). On the basis of material on record, charge under Section 25 Arms Act was framed upon the accused, to which he pleaded not guilty and claimed trial.
3. In order to substantiate its case, prosecution examined PW1 Ct. Dharam Chand who deposed that on 30.08.2022 he apprehended the accused on apprehension and upon his search one buttondar knife was found from his right side pocket. He correctly identified the accused as well as the case property i.e. buttondar knife Ex. P1. He identified his signatures on seizure memo Ex. PW1/A, his statement Ex. PW1/B, site plan Ex. PW1/C, arrest memo Ex. PW1/D, personal search memo of accused Ex. PW1/E and disclosure statement Ex. PW1/F. Prosecution further examined PW2 Ct. Sachin who deposed that on 30.08.2022 he was on patrolling duty alongwith Ct. Dharm Chand and at around 10.30 PM they apprehended the accused on State Vs. Samiran @ Suddo , FIR No. 454/22 PS Sunlight Colony Page No. 2 of 7 suspicion. He further deposed that upon his search one buttondar knife was found from his right side pocket. He correctly identified the accused as well as the case property i.e. buttondar knife Ex. P1. He identified his signatures on seizure memo Ex. PW1/A, site plan Ex. PW1/C, arrest memo Ex. PW 1/D, personal search memo of accused Ex. PW1/E and disclosure statement Ex. PW1/F. Prosecution further examined PW3 HC Narender who was the IO in the present case. He deposed about various stages of investigation conducted by him. He correctly identified the accused as well as the case property i.e. buttondar knife Ex. P1.
4. Vide a separate statement dated 24.11.2022 the accused admitted the genuineness of following documents, which were also exhibited as under :
(i) FIR (without contents) with certificate u/s.65B IEA Ex. PA1.
(ii) Notification of Delhi Admin., issued by Delhi Govt Ex. PA2.
(iii) GD no. 86A Ex PA3.
5. Prosecution evidence was closed vide order dated 03.02.2023.
6. Statement of accused u/s 313 r/w 281 of Cr.P.C was recorded on 08.02.2023 wherein the accused denied the incriminating evidences appearing against him. The accused refused to lead defence evidence.
7. Subsequently, final arguments from the counsel for accused and Ld. APP for the State were heard.
8. In the instant case, it has been alleged by the prosecution that on 30.08.2022 the accused was found in possession of one button operated knife. In order to prove this allegation, the prosecution examined three police State Vs. Samiran @ Suddo , FIR No. 454/22 PS Sunlight Colony Page No. 3 of 7 witnesses. However, no independent witness has been examined by the prosecution. Both PW1 and PW2 admitted about the presence of public persons on the spot. However, no public persons were joined in the investigation. No explanation has come forth from the prosecution for non joining of public witnesses except a vague excuse that public witnesses were asked to join the investigation but none joined the same. Neither the names of such witnesses were recorded nor any efforts were made to proceed against them under the relevant provisions of law for declining to perform their legal duty to assist the police in investigation. It appears that no sincere efforts were made by the police to join public witnesses. This leads to an adverse inference against the entire recovery. It must be noted that the recovery, arrest and search before an independent witness imparts authenticity and creditworthiness to the proceedings carried out by the police authorities. In absence of any independent witness having been joined in the investigation, possibility of false implication of the accused by the police in the present case cannot be ruled out. Reliance is placed in this regard on the judgment of Roop Chand v. State of Haryana, 1999 (1)C.L.R 69, wherein it was observed by Hon'ble High Court of Punjab & Haryana that:
"4. ...It is well settled principle of the law that the investigating 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 State Vs. Samiran @ Suddo , FIR No. 454/22 PS Sunlight Colony Page No. 4 of 7 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 the witnesses from the public had refused 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 non−joining 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".
9. Considering the aforesaid observations of the Hon'ble High Court, it is clear that the omissions/ failure on the part of investigating agency to join independent public witnesses raises doubt on the prosecution story.
10. Further doubts arise on the prosecution story considering that the police personnel who apprehended the accused, did not bring on record any documentary evidence or the DD entries to prove their departure and arrival time so as to show that they were indeed on duty in the area in question at the relevant time. In this regard, it is pertinent to take note of Chapter 22 Rule 49 of Punjab Police Rules, 1934, which provides as under:
22.49. Matters to be entered in Register No. II The following matters shall, amongst others, be entered :
(c) The hour of arrival and departure on duty at or from a police station of all enrolled police officers of whatever rank, whether posted at the police station or elsewhere, with a statement of the nature of their duty. This entry shall be made immediately on arrival or prior to the departure of the officer concerned and shall be attested by the latter personally by signature or seal.
Note. The term Police Station will include all places such as Police Lines and Police Posts where Register No. II is maintained.
11. In the present case, the prosecution has not proved the compliance of State Vs. Samiran @ Suddo , FIR No. 454/22 PS Sunlight Colony Page No. 5 of 7 the above said provision as the DD entry vide which all the police personnel had left and arrived at the PS has not been brought on record. In Rattan Lal v. State, (1987) 32 DLT 1, Hon'ble High Court of Delhi 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 it is so done with an oblique motive."
12. Since the public persons in the present case were not joined in the investigation, the departure and the arrival entries of the police officials who apprehended the accused with the case property while on patrolling duty becomes a vital piece of evidence. However, the absence of departure and arrival entries raises suspicion on the very presence of police personnel on the spot.
13. Here, several discrepancies and inconsistencies apparent from the record must also be noted. As per the testimony of witnesses, sketch memo of buttondar knife Ex. PW1/G and seizure memo of knife Ex. PW1/A were prepared before the registration of FIR. Clearly, these documents could not have borne the FIR number if the same were truly prepared before the registration of FIR. However, since both these documents bear the FIR number, it raises suspicion on the prosecution story. These discrepancies raise serious doubts on the prosecution story and the authenticity of the documents relied upon by the prosecution. Hence the possibility of documents having been prepared later on in the Police Station and the possibility of planting of the alleged buttondar knife upon the accused cannot be ruled out.
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14. 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 said buttondar knife, makes the prosecution version highly doubtful. All the above discussed infirmities in the prosecution case reflect adversely on the veracity of prosecution case, the benefit whereof must go to the accused. Here, it would be beneficial to refer to the judgment of Hon'ble Supreme Court in Sarwan Singh v. State of Punjab, AIR 1957 SC 637, wherein it was observed that "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 legal, reliable and unimpeachable evidence before an accused can be convicted." Again, in Jagdish Prasad vs State (Govt Of NCT Of Delhi), (2011) 184 DLT 285, 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 reasonable doubt remains in respect of culpability of the accused, he is entitled to benefit of doubt."
15. In view of the above discussion, this court holds that the prosecution has not been able to prove its case against the accused beyond reasonable doubt. Accordingly, accused Samiran @ Suddo is hereby acquitted of the offence punishable under section 25 Arms Act.
Digitally signed by RAHUL RAHUL VERMA Announced in open VERMA Date: 2023.02.23 court on 22.02.2023 17:28:20 +0530 (RAHUL VERMA) Metropolitan Magistrate07, South East, Saket, New Delhi State Vs. Samiran @ Suddo , FIR No. 454/22 PS Sunlight Colony Page No. 7 of 7