Delhi District Court
State vs Vishal@Kale on 1 August, 2024
IN THE COURT OF MS. VIDHI GUPTA ANAND,
CHIEF JUDICIAL MAGISTRATE
SHAHDARA, KKD, DELHI
JUDGMENT U/S 355 Cr.PC
CNR No.DLSH020002012024
a Serial No. of the case : FIR No.: 385/23
Police Station: Shahdara
(CIS No.86/24)
b Date of the commission of : 07.12.2023
the offence
c Name of the Complainant : HC Amit Paliwal
d Name of Accused person : Vishal @ Kale
and his parentage and S/o Sh. Raj Kumar
residence R/o H.No.183 Rehman
Building, Shahdara, Delhi.
e Offence complained of : U/s 25/54/59 Arms Act &
53/116 DP Act
f Plea of the Accused and his : Not guilty.
examination (if any)
g Final Order : Acquitted
h Order reserved on : 01.08.2024
i Order pronounced on : 01.08.2024
Brief statement of facts of the case and trial proceedings:
1.The case of the prosecution against the Accused Vishal @ Kale is that on 07.12.2023 at about 11:45 p.m., at Kuda Khatta, Rehman Building, Shahdara, Delhi within the jurisdiction of PS Shahdara, he was found in possession of one buttondar knife in contravention of notification issued by Delhi Administration and State vs. Vishal @ Kale FIR No.385/23 U/s 25/54/59 Arms Act & 53/116 DP Act PS Shahdara Pages 1 of 13 also that he was found to be present at the spot in violation of extermination order number 4271-4291/Extt/Cell/SHD as per which he was directed to remove himself beyond the limits of NCT of Delhi for a period dated 22.10.2022 till 28.10.2024. On the said allegations, Accused was booked with the offence under Section 25/54/59 Arms Act and 53/116 Delhi Police Act (DP Act) and FIR was registered.
2. After investigation, charge-sheet was filed against the Accused on 06.01.2024 whereupon Cognizance was taken in this matter and on the same day, the copy of charge-sheet was supplied to the Accused in compliance of Section 207 Cr.P.C. On 20.02.2024, charge was framed against the Accused under Section 25/54/59 Arms Act & 53/116 DP Act to which he pleaded not guilty and claimed trial.
3. Subsequently, prosecution evidence was led and in order to prove its version, prosecution examined three witnesses i.e., PW1 HC Amit Paliwal, PW2 Ct. Rohan and PW3 ASI Satender Singh. The remaining one witness i.e., DO/SI Naresh Kumar was dropped from list of witnesses on account of statement of the Accused u/s 294 Cr.P.C dated 01.04.2024 wherein he admitted the registration of FIR (Ex. A1) and certificate u/s 65B of Indian Evidence Act (Ex.A2).
4. After the conclusion of the prosecution evidence, statement of Accused was recorded u/s 313 Cr.P.C. on 19.07.2024 separately wherein Accused claimed to be innocent and denied allegations against him. Accused stated that he has been falsely implicated in the present case and he is innocent.
State vs. Vishal @ Kale
FIR No.385/23
U/s 25/54/59 Arms Act & 53/116 DP Act
PS Shahdara Pages 2 of 13
Accused opted to not lead any Defence Evidence. Accordingly, bringing the trial to an end, final arguments were heard from Ld. LAC for the Accused as well Ld. APP for the State.
Appreciation of Evidence
5. The arguments were addressed by Ld. APP for the State as well as Ld. LAC for the Accused in detail.
Ld. APP for the State argued that the case of the prosecution has been proved beyond all reasonable doubts on account of the unfeterred testimonies of the prime prosecution witnesses i.e. the complainant and IO. Ld. APP for the State further argued that this case merits conviction of the Accused as the prosecution case stands firmly on its own footing and merely because of absence of public witnesses, the veracity of public witnesses does not stand negated.
Vehemently, denying the arguments of Ld. APP for the State, Ld. LAC for the Accused argued that the Accused has been falsely implicated in the present case and he has been made only a victim of circumstances. It was further argued by Ld. LAC for the Accused that nothing was recovered from the possession of the Accused and this is the reason why no independent witness has been brought by prosecution in this matter. Hence, Ld. LAC for the Accused strongly argued for acquittal of the Accused in this matter.
Submissions have been duly heard. Record has been carefully perused.
State vs. Vishal @ Kale
FIR No.385/23
U/s 25/54/59 Arms Act & 53/116 DP Act
PS Shahdara Pages 3 of 13
6. A detailed scrutiny of the testimonies of the prosecution witnesses has been done and is hereby discussed in detail.
6.1. PW-1 HC Amit Paliwal: He is the Complainant in this case. He deposed that on 07.12.2023, he was on patrolling duty alongwith Ct. Rohan and on the intervening night of 06-07- 12.2023 at about 11:45 p.m when they reached at the Kuda Khatta Rehman Building, they noticed that on seeing them in police uniform, Accused started moving with fast paces towards Rehman Building. Thereafter, they chased him and apprehended him at the spot. He further stated that upon interrogation, Accused revealed his name as Vishal @ Kale and when they took cursory search of Accused, one buttodar knife was recovered from the right pocket of pant of Accused. He further stated that thereafter, he shared the said information with the duty officer of PS Shahadra and after some time, ASI Satender came at the spot. He stated that thereafter they handed over custody of Accused as well as alleged recovered knife to IO/ASI Satender Singh. He further stated that IO/ASI Satender Singh put the buttondar knife on a blank page and prepared sketch memo and took the measurement of knife i.e. total length - 23 c.m., blade of knife - 11 c.m., handle of knife - 12 c.m. and width of blade - 3 c.m. He stated that thereafter, IO prepared sketch memo i.e. Ex. PW1/A and seized the said buttondar knife vide seizure memo Ex. PW1/B and put seal of HK on the same. He stated that thereafter, IO prepared site plan at his instance i.e. Ex. PW1/C and recorded his statement i.e. Ex. PW1/D upon which rukka was prepared and same was handed over to Ct. Rohan for the registration of FIR. He added that accordingly, Ct. Rohan went to the PS. He stated State vs. Vishal @ Kale FIR No.385/23 U/s 25/54/59 Arms Act & 53/116 DP Act PS Shahdara Pages 4 of 13 that thereafter Accused was arrested and personally searched vide arrest memo and personal search memo Ex. PW1/E and Ex. PW1/F respectively. He further stated that IO asked some public persons to join investigation but none had agreed and left the spot without disclosing their names and addresses. Lastly, he stated that thereafter, he alongwith Ct. Rohan took the Accused at GTB Hospital for medical examination and after medical examination of Accused, they came back at the PS. He correctly identified the Accused in the Court as well as the case property Ex.P-1 in the court.
During his cross-examination, he admitted that at the time of recovery, no independent public witness was present. He further stated that he had not served any legal notice upon the public persons who refused to join the investigation. He denied the suggestion of Ld. LAC that Accused has been falsely implicated in the present case and Accused was lifted from his house.
6.2. PW2 Ct. Rohan: He was present alongwith HC Amit Paliwal during the patrolling duty at the time of the alleged incident and has deposed exactly on the lines of PW1.
In his cross-examination, he admitted that at the time of recovery as well as arrest proceeding no public witness was joined. Further, he admitted that the spot of the incident is a public place and several public persons were coming and going at the spot. He further stated that no notice was served on the public persons who refused to join investigation. He admitted that no search was made in the raiding team at the time of State vs. Vishal @ Kale FIR No.385/23 U/s 25/54/59 Arms Act & 53/116 DP Act PS Shahdara Pages 5 of 13 recovery of knife. He denied the suggestion that Accused has been falsely implicated in the present case or that case property has been planted upon him.
6.3. PW3 IO/ ASI Satender Singh: He is the IO of this matter and deposed on the lines of PW1 and PW2. He stated that on 07.12.2023, he was on emergency duty and the investigation of GD No. 2A was marked to him regarding possession of illegal knife. He stated that after receiving GD No. 2A from the DO, he reached the incident spot i.e. Kudda Khatta, Rehman Building, Shahdara where he met HC Amit Paliwal and Ct. Rohan who had apprehended one young boy and HC Amit handed over the custody of apprehended Accused namely Vishal @ Kale and the illegal buttondar knife which was recovered from the Accused. Thereafter, he recorded statement of HC Amit Paliwal i.e. already Ex. PW1/D and prepared the sketch of the recovered illegal knife by keeping it on a white paper i.e. already Ex. PW1/A and added that on the handle of the knife "Rampur" was inscribed. He stated that thereafter, he sealed the knife in a white cloth pulanda and sealed the same with the seal of HK and thereafter, the seal after use was handed over to HC Amit Paliwal. He further stated that he took the possession of the seized knife vide seizure memo already Ex. PW1/B. He further stated that since the possession of the recovered knife was in contravention of the DAD notification, he proceeded to prepare a tehrir (Ex. PW3/A) and handed it over to Ct. Rohan for the registration of FIR which he duly complied with and returned to the spot with the copy of FIR and original tehrir. He stated that thereafter, he prepared the site plan already Ex. PW1/C at the instance of HC Amit Paliwal. He State vs. Vishal @ Kale FIR No.385/23 U/s 25/54/59 Arms Act & 53/116 DP Act PS Shahdara Pages 6 of 13 further stated that he interrogated the Accused and found that an Externment order had been passed against Accused Vishal @ Kale for a period of two years and after interrogation, he proceeded to arrest the Accused vide memos already Ex. PW1/E and Ex. PW-1/F. He further stated that the Accused was taken to PS after his medical check-up at GTB Hospital and was lodged in lock-up at PS. Lastly he stated that thereafter the case property was deposited in malkhana.
He stated that he recorded the statement of the witnesses u/s 161 Cr.P.C. and after completion of investigation filed the chargesheet in the concerned court. He correctly identified the Accused in the Court as well as the case property already Ex.P-1 in the court.
During his cross-examination, he admitted that no public witness was present at the spot when Accused was arrested and at the time of recovery of the case property. He also admitted that the spot is a public place and public persons were coming and going there. He further stated that he had not served any legal notice upon the public persons who refused to join the investigation. He denied the suggestion of Ld. LAC that Accused has been falsely implicated in the present case or that Accused was lifted from his house and the case property i.e. knife was planted upon the Accused.
7. It is a settled proposition of criminal law that prosecution is required 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 prove its case on State vs. Vishal @ Kale FIR No.385/23 U/s 25/54/59 Arms Act & 53/116 DP Act PS Shahdara Pages 7 of 13 judicial file, prosecution is supposed to stand on its own legs and it cannot derive any benefit whatsoever from the weaknesses, if any, of the defence of the Accused. Further, it is also a settled proposition of criminal law that burden of proof of the version of the prosecution in a criminal trial throughout the trial is on the prosecution and it never shifts on to the Accused. Also, it is a settled proposition of criminal law that Accused is entitled to the benefit of every reasonable doubt in the prosecution story and such reasonable doubt entitles the Accused to acquittal.
8. Evaluating the facts and evidence discussed above, at the outset, it comes out that no independent witness was joined in the investigation. The Hon'ble Supreme Court in the matter titled as State of Punjab vs. Balbir Singh [AIR 1994 SC 1872], held that :
"It therefore emerges that non-compliance of these provisions i.e. Sections 100 and 165 Cr.P.C. would amount to an irregularity and the effect of the same on the main case depends upon the facts and circumstances of each case. Of course, in such a situation, the court has to consider whether any prejudice has been caused to the Accused and also examine the evidence in respect of search in the light of the fact that these provisions have not been complied with and further consider whether the weight of evidence is in any manner affected because of the non-compliance. It is well-settled that the testimony of a witness is not to be doubted or discarded merely on the ground that he happens to be an official but as a rule of caution and depending upon the circumstances of the case, the courts look for independent corroboration. This again depends on question whether the official has deliberately failed to comply with these provisions or failure was due to lack of time and opportunity to associate some independent witnesses with the search and strictly comply with these provisions. [Emphasis supplied]"
State vs. Vishal @ Kale FIR No.385/23 U/s 25/54/59 Arms Act & 53/116 DP Act PS Shahdara Pages 8 of 13
9. At this stage, it is also crucial to observe that witnesses have admitted that no public persons have been made to join the investigation in this matter despite the fact that the spot of the incident is a public place where public persons were present. Further, no notice has been served to any of the public persons who did not join the investigation. It is also pertinent to note that the alleged incident has occurred on a busy public road and therefore, absence of public witnesses from the investigation becomes even more apparent.
Considering the above facts, it comes out that there was no lack of time and opportunity with the IO to associate some independent witnesses with the search and strictly comply with the provisions of code of criminal procedure.
The above stated observation of this court is fortified by the observations of the Hon'ble Supreme Court of India in Hemraj vs. State Of Haryana [AIR 2005 SC 2110] as follows:
"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..."
Furthermore, in case titled as Roop Chand vs. State of Haryana [1999 (1)C.L.R 69], the Hon'ble High Court of Punjab & Haryana has held that:
"...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 State vs. Vishal @ Kale FIR No.385/23 U/s 25/54/59 Arms Act & 53/116 DP Act PS Shahdara Pages 9 of 13 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 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..."
10. Moving further, this Court is conscious of precedent laid down by Hon'ble Delhi High Court in case titled as Safiullah vs. State, [1993 (1) Rcr (CRIMINAL) 622], that :
"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."
The case property in the present matter was lying in the Malkhana of the same police station where the police officials having the possession of seal were posted. There was ample opportunity for tampering with the case property. Hence, considering the legal position, the benefit of doubt should be given to the Accused.
State vs. Vishal @ Kale
FIR No.385/23
U/s 25/54/59 Arms Act & 53/116 DP Act
PS Shahdara Pages 10 of 13
11. Besides all this, in the present case, the aforesaid lapse on the part of police officials assumes significance on account of another grave contradiction apparent in the document Ex. PW1/A and Ex.PW1/B. The sketch memo of the knife Ex. PW1/A and seizure memo of the knife Ex. PW1/B bear the number of FIR. As per the rukka and testimony of witnesses, the sketch memo of the knife and seizure memo were prepared prior to registration of FIR. If that be so then it is questionable as to how Ex. PW-1/A and Ex. PW1/B bear the FIR number. This gives rise to two inferences that either the FIR was recorded prior to the alleged recovery of the case property or number of the said FIR was inserted in the document after its registration. In both the situations, it seriously questions the veracity of the prosecution version and creates a good deal of doubt about the recovery of the case property in the manner alleged by the prosecution. That being so, the benefit arising out of such a situation must necessarily go to the Accused.
In this regard, reference is made to the judgment of Hon'ble High Court of Delhi in case titled as Mohd Hasim V/S State [1999 VI AD (DELHI) 569] wherein it was observed:
"...documents prepared before registering the FIR bears FIR numbers, meaning thereby either FIR was recorded posterior in time or that documents were prepared after the recording of FIR, and in both cases, prosecution case would collapse."
12. Further, in order to ensure fair investigation, the prosecution witnesses must have offered their personal search to some independent witness. However, as no such precaution was taken by prosecution witnesses the doubt as to the false State vs. Vishal @ Kale FIR No.385/23 U/s 25/54/59 Arms Act & 53/116 DP Act PS Shahdara Pages 11 of 13 plantation of the case property upon the Accused cannot be ruled out. In S. L. Goswami Vs. State Of M.P., [1972 CRI.L.J 511 (SC)], the Hon'ble Supreme Court held as under:
"... in our view, the onus to proving all the ingredient of an offence is always upon the prosecution and at no stage does it shift to the Accused. It is no part of the prosecution duty to somehow hook the crook. Even in case where the defence of the Accused does not appear to be credible or is palpably false that burden does not become any the less. It is only when this burden is discharged that it will be for the Accused to explain or controvert the essential elements in the prosecution case, which would negative it. It is not however for the Accused even at the initial stage to prove something which has to be eliminated by the prosecution to establish the ingredient of the offence with which he is charged, and even if the onus shifts upon the Accused and the Accused has to establish his plea, the standard of proof is not the same as that which vests upon the prosecution..."
This also raises doubt about the recovery of the said case property from the present Accused and strengthens the possibility of planting of the case property upon the Accused.
13. As regards the charge u/s 53/116 DP Act, yet again doubts are created in the testimonies of Prosecution witnesses on account of absence of public witnesses. Moreover, no videography or photography of the spot of the incident has been done to show the presence of the Accused at the alleged spot. Most importantly, the externment order, relying on which, Prosecution has brought up a case against the Accused u/s 53/116 DP Act has not been placed on record or exhibited during the testimonies of Prosecution witnesses. Thus, no merits are found in the Prosecution case even in regard to the charge u/s 53/116 State vs. Vishal @ Kale FIR No.385/23 U/s 25/54/59 Arms Act & 53/116 DP Act PS Shahdara Pages 12 of 13 DP Act and the same remains unproved.
Conclusion
14. The onus and duty to prove the case against the Accused was upon the prosecution and the prosecution must establish the charge beyond reasonable doubt. It is also a cardinal principle of criminal jurisprudence that if there is a reasonable doubt with regard to the guilt of the Accused is entitled to benefit of doubt resulting in acquittal of the Accused.
15. In view of above said discussion, the prosecution has failed to prove the guilt of the Accused beyond reasonable doubt. Accordingly, Accused Vishal @ Kale is acquitted of the charges u/s 25/54/59 Arms Act and 53/116 DP Act framed in the present case. Case property be confiscated to the State. Same be destroyed.
File be consigned to Record Room subject to compliance of section 437-A Cr.PC. Digitally signed by VIDHI VIDHI GUPTA GUPTA ANAND Announced in the open court ANAND Date:
2024.08.01 17:27:47 on 01.08.2024 +0530 (Vidhi Gupta Anand) Chief Judicial Magistrate(Shahdara) Karkardooma Courts, Delhi [This judgment contains 13 signed pages] [This judgment has been directly typed to dictation.] State vs. Vishal @ Kale FIR No.385/23 U/s 25/54/59 Arms Act & 53/116 DP Act PS Shahdara Pages 13 of 13