Delhi District Court
State vs Waseem on 20 January, 2024
Cr. Case No. 9739/2023
FIR No. 558/2023
State v. Waseem
IN THE COURT OF METROPOLITAN MAGISTRATE-05,
SAKET COURTS, DELHI
Presided over by- Ms. Twinkle Chawla, DJS
Cr. Case No. -: 9739/2023
CNR No.-: DLSE020316052023
FIR No. -: 558/2023
Police Station -: Sarita Vihar
Section(s) -: 25 ARMS ACT
In the matter of -
STATE
VS.
WASEEM
S/o Sh. Kallu Ali,
R/o H. No. A-53, Masale Wali Gali,
Old Jasola Village, New Delhi.
...Accused
1. Name of Complainant :- Ct. Sube Singh
2. Name of Accused Person :- Waseem
3. Offence complained of or :- Section 25 Arms Act
proved
4. Plea of Accused Person :- NOT GUILTY
5. Date of Commission of :- 27.10.2023
offence
6. Date of Filing of case :- 24.11.2023
7. Date of Reserving Order :- 18.01.2024
8. Date of Pronouncement :- 20.01.2024
9. Final Order :- Acquitted
Page 1 of 12
Cr. Case No. 9739/2023
FIR No. 558/2023
State v. Waseem
JUDGMENT
1. The case of prosecution in brief is that 27.10.2023 at about 09.40 PM, at Shaheen Bagh Pulia, Jasola Village, New Delhi, within the jurisdiction of PS Sarita Vihar, Accused was found in conscious possession of a buttondar knife without any license/permit, in violation of DAD Notification of GNCT of Delhi. Hence, the case of the prosecution is that Accused is guilty of the offence u/s 25 Arms Act.
2. After registration of the case, necessary investigation was carried out by the IO concerned. Site plan was prepared. Statement of witnesses were recorded under section 161 of the Code of Criminal Procedure, 1973 (hereinafter, "CrPC"). Relevant record was collected. Final report under section 173 CrPC, was prepared against the abovenamed Accused and challan was presented in the court u/s 25 Arms Act on 24.11.2023. Accused was produced from JC, after taking cognizance of the offence.
3. On his appearance, a copy of chargesheet was supplied to them in terms of section 207 of CrPC. On finding a prima facie case against the Accused, charge under section 25 Arms Act was framed against the Accused on 24.11.2023 for which the Accused pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
4. During the trial for the offence u/s 25 Arms Act, prosecution led the following oral and documentary evidence against the Accused to prove its case beyond reasonable doubt: -
ORAL EVIDENCE PW1 :- HC Amit Kumar (IO in the present case) Page 2 of 12 Cr. Case No. 9739/2023 FIR No. 558/2023 State v. Waseem PW2 :- Ct. Sube Singh (Complainant in the present case) DOCUMENTARY EVIDENCE Ex. PW1/A :- Sketch of buttondar knife.
Ex. PW1/B :- Seizure memo of case property. Ex. PW1/C :- Statement of Ct. Sube Singh.
Ex. PW1/D :- Rukka.
Ex. PW1/E :- Site plan.
Ex. PW1/F :- Arrest memo of the Accused Ex. PW1/G :- Personal search of the Accused. Ex. PW1/H :- Disclosure statement of the Accused.
Ex. P-1 Case property.
Ex. PW2/A :- Seal handing over memo.
DOCUMENTS ADMITTED U/S 294 CRPC BY Accused
Ex. A1 :- FIR No. 558/2023 alongwith Certificate
u/s 65B of IEA and endorsement on rukka.
Ex. A2 :- Recording of GD entry No. 0126A dt.
27.10.2023.
Ex. A3 :- DAD notification.
5. During the course of trial, witness mentioned at Sr. No. 2 & 3 of the list of witnesses were dropped pursuant to statement of the Accused recorded u/s 294 CrPC.
6. PW-1/HC Amit Kumar deposed that on 27.10.2023, PW-1 was posted at PS Sarita Vihar as HC. On that day, after receiving DD No. 126A, he reached the spot, i.e., Shaheen Bagh pulia, Jasola Village, New Delhi. After reaching the spot, PW-1 met Ct. Sube Singh and he handed over to him the Accused and the case property.
Thereafter, PW-1 interrogated him and he revealed his name as Waseem. Thereafter, PW-1 prepared sketch of the case property which is Ex. PW1/A. Thereafter, PW-1 kept the case property in a plastic box and sealed the same with the seal of AK. Thereafter, PW-1 seized the case property vide seizure memo Ex. PW1/B. PW-1 recorded Page 3 of 12 Cr. Case No. 9739/2023 FIR No. 558/2023 State v. Waseem statement of Ct. Sube Singh which is Ex. PW1/C. Thereafter, PW-1 prepared rukka which is Ex. PW1/D. Thereafter, PW-1 handed over the rukka to Ct. Sube Singh. Thereafter, he went to PS, got the FIR registered and came back and handed over to PW-1 copy of FIR and original rukka. PW-1 prepared the site plan of the spot which is Ex. PW1/E. Thereafter, PW-1 interrogated the Accused and arrested him vide arrest memo Ex. PW1/F and conducted his personal search vide Ex. PW1/G and recorded his disclosure statement which is Ex. PW1/H. Thereafter, the case property was deposited in the malkhana by PW-1. The MLC of the Accused was got conducted and he was put in lockup by PW-1. PW-1 recorded the statement of the witnesses. Thereafter, PW-1 prepared chargesheet and filed the same before Hon'ble Court. PW-1 correctly identified the Accused and the case property, i.e., buttondar knife in court. The case property is Ex. P1.
In his cross examination by Ld. LAC for Accused, PW-1 admitted that he did not prepare any seal handing over memo. PW-1 deposed that he had requested 3/4 public persons to join the investigation. However, nobody agreed. PW-1 deposed that he did not serve any notice to them on their refusal. PW-1 denied the suggestion that the Accused was apprehended from his house and case property was planted upon him and that all the written documents were prepared at the PS and that is the reason why no public persons were made witnesses to the same. PW-1 deposed that he did not conduct any investigation to ascertain the source of the weapon seized from the Accused and he did not remember the colour of the t-sirt worn by the Accused at the time of the incident and he did not remember the DD entry with regard to his departure and arrival at the PS. Page 4 of 12 Cr. Case No. 9739/2023 FIR No. 558/2023 State v. Waseem
7. PW-2/Ct. Sube Singh deposed that on 27.10.2023, PW-2 was posted at PS Sarita Vihar as Ct. On that day, he was on anti snatching picket duty near Shaheen Bagh pulia, Jasola Village, New Delhi. On that day, at around 09.40 PM, a person coming from Shaheen Bagh, after seeing him, tried to fled away. On suspicion, PW- 2 followed him and caught him. Thereafter, PW-2 interrogated him and he revealed his name as Waseem. Thereafter, PW-2 made cursory search of the Accused and found one buttondar knife from his right side pant pocket. Thereafter, PW-2 called the DO and gave the information with respect to the present incident. Thereafter, HC Amit Kumar came at the spot. Thereafter, PW-2 handed over the Accused and the recovery knife to him. Thereafter, he prepared sketch of the case property which is Ex. PW1/A. Thereafter, he kept the case property in a plastic box and sealed the same with the seal of AK and the seal after use was handed over to PW-2, vide handing over seal memo, Ex. PW2/A. Thereafter, he seized the case property vide seizure memo Ex. PW1/B. Thereafter, IO recorded my statement and he prepared the rukka. Thereafter, he handed over the rukka to PW-2. Thereafter, PW-2 went to PS, got the FIR registered and came back and handed over to the IO copy of FIR and original rukka. IO prepared the site plan of the spot which is Ex. PW1/E. Thereafter, IO interrogated the Accused and arrested him vide arrest memo Ex. PW1/F and conducted his personal search vide Ex. PW1/G and recorded his disclosure statement which is Ex. PW1/H both. Thereafter, the case property was deposited in the malkhana by PW-2. The MLC of the Accused was got conducted and he was put in lockup by the IO. Thereafter, PW-2 was discharged from the present case.
Page 5 of 12 Cr. Case No. 9739/2023 FIR No. 558/2023State v. Waseem PW-2 correctly identified the Accused and the case property, i.e., buttondar knife in court. The case property is Ex. P1.
In his cross examination by Ld. LAC for Accused, PW-2 admitted he did not offer his own search prior to the recovery from the Accused. IO had requested 3/4 public persons to join the investigation. However, nobody agreed. IO did not serve any notice to them on their refusal. PW-2 denied the suggestion that the Accused was apprehended from his house and case property was planted upon him and that all the written documents were prepared at the PS and that is the reason why no public persons were made witnesses to the same. PW-2 deposed that IO did not conduct any investigation to ascertain the source of the weapon seized from the Accused and he did not remember the colour of the t-sirt worn by the Accused at the time of the incident and he did not remember the DD entry with regard to his departure and arrival at the PS. STATEMENT OF ACCUSED
8. Thereafter, before the start of defence evidence, in order to allow the Accused to personally explain the incriminating circumstances appearing in evidence against them, the statement of Accused was recorded without oath on 05.01.2024 under Section 313 CrPC in which he stated that he is innocent, and he has been falsely implicated in the present case; and that the recovery was a planted one. He further stated that he does not want to lead any defence evidence and matter was listed for final arguments. ARGUMENTS AND ANALYSIS
9. I have heard the Ld. APP for the state and Ld. counsel for the Accused at length. I have also given my thoughtful consideration Page 6 of 12 Cr. Case No. 9739/2023 FIR No. 558/2023 State v. Waseem to the material appearing on record.
10. It is argued by the Ld. APP for the state that there is sufficient material on record to convict the Accused for the said offences.
11. Per contra, the Ld. LAC for the Accused has argued that the state has failed to establish its case beyond reasonable doubt. Ld. Counsel has argued that no knife was recovered from the Accused and the same is planted. He has argued that there are no public witnesses to the recovery, even though as per the case of the prosecution, the recovery site was a public space. That there is no DD entry of departure of the IO and accompanying witness to the alleged site of recovery. Further, he has also submitted that there are several contradictions in the case of the prosecution. Hence, he has submitted that the Accused is to be acquitted of the offence u/s 25 Arms Act.
12. The Accused has been charged for the offence under section 25 Arms Act. For offence under section 25 Arms Act, the prosecution has to prove beyond reasonable doubt, the following mandatory ingredients, viz., i. That the Accused has in his possession or carries at any place;
ii. an arm of the description specified in the notification u/s 4 of the Arms Act;
iii. such possession is without any license/permit;
and iv. such possession is conscious.
13. Needless to mention, in criminal law, the burden of proof on the prosecution is that of beyond a reasonable doubt. The presumption of innocence of the Accused must be rebutted by the Page 7 of 12 Cr. Case No. 9739/2023 FIR No. 558/2023 State v. Waseem prosecution by reducing cogent evidence that points towards the guilt of the Accused. The evidence in the present case is to be weighed keeping in view the above legal standards.
14. PW-2 is the only witness to recovery of the buttondar knife in the present case. He is a police official. The site of recovery is a public place i.e., near Shaheen Bagh Pulia. The presence of public persons at the said spot has been admitted by both PW-1 and PW-2. However, admittedly, no public person has joined the proceedings. PW-1 and PW-2 have stated that they did not give any notice in writing to the said public persons. Their names have also not been recorded. Despite availability, no public witness has joined the investigation. In Anoop Joshi v. State, 1992 (2) C.C. Cases 314 (HC), the Hon'ble High Court of Delhi had observed as under:-
"18. It is repeatedly laid down by this Court 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 evidence that no such sincere efforts have been made, particularly when we find that shops were open and one or two shop-keepers 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 rigorous 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".Page 8 of 12 Cr. Case No. 9739/2023 FIR No. 558/2023
15. Be that as it may, the Court is well aware that police officials are competent witnesses, and their testimony cannot be thrown away only on account of reason that there is no public person to corroborate their version. However, at the same time, it is equally well settled position of law that where the case is based only on the testimony of police officials and there is no independent public person joined at any stage of the proceedings, the Court must remain extra cautious and careful while appreciating their evidence. In such a situation, the evidence of the police officials must remain free from contradictions, blemishes and missing links so as to give credibility to their version. It is only when the evidence of police officials is trustworthy that they can be believed even in the absence of the public witnesses.
16. However, in the present case, there are several deficiencies in the case of the prosecution. PW-2 had admitted in his cross examination that he did not offer his own search prior to the recovery of the alleged knife from the Accused. Further, while PW-1 has stated that he did not prepare any seal handing over memo, PW-2 has stated that the seal handing over memo was prepared. Since, Ex. PW2/A has been denied by the alleged maker of the document, PW-1, the veracity of the document and the fact of the knife being sealed at the time and place where it is stated to have been sealed, becomes questionable. Further, while PW-2 has stated that he was on anti snatching duty, when the said Accused was found with the knife, no DD entry has been brought on record to this effect. Further, while both PW-1 & PW-2 had stated that the buttondar knife was seized vide Seizure memo Ex. PW1/B, and thereafter rukka was prepared Ex.
Page 9 of 12 Cr. Case No. 9739/2023 FIR No. 558/2023State v. Waseem PW1/D which was then sent for registration of FIR to the PS through PW-2, a perusal of the sketch memo & the seizure memo shows that the same bears the FIR number & the other details of the FIR & not of the DD Entry which was lodged for intimation to the PS as to apprehension of the Accused, pursuant to which PW-1 had come to the spot, i.e., DD No. 126A dt. 27.10.2023, Ex. A-4. However, as per the timeline set out in the testimony of PW-1 & PW-2, the seizure memo, sketch memo as well as the handing over seal memo were prepared prior to sending the rukka to PS for registration of FIR. It has not come in the testimony of any of the witnesses that the said details were put on the aforesaid documents later. Further, a perusal of the said documents, reflects that the entire contents of these documents are in the same ink and same handwriting. Hence, the sanctity of the documents is also brought into question. Accordingly, since the fact that the simultaneous entry of DD Number was not done on the said documents which includes the seizure memo which is the Principal document in the present case & the FIR Number has been mentioned on the same, which was infact registered much later (at around 23:42 PM opposed to time of incident 09:40 PM & time of Ravangi of Tehrir, 11:20 PM), raises a doubt on the recovery proceedings conducted by the Police Officials. It is also the admitted case that there are no independent witnesses to the recovery, as is mandated by Section 100 of CrPC.
17. The onus and duty to prove the case against the Accused is 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 Page 10 of 12 Cr. Case No. 9739/2023 FIR No. 558/2023 State v. Waseem guilt of the Accused, he is entitled to be given benefit of doubt resulting in his acquittal. Reference may also be made to the judgment titled as Nallapati Sivaiah v. Sub Divisional Officer, Guntur, VIII (2007) SLT 454 (SC).
18. In the judgment titled as Raj Kumar Singh @ Raju @ Batya v. State of Rajasthan, (2013) 5 SCC 722 the Hon'ble Supreme Court held:
".......Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that `may be' proved and `will be proved'. In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason that the mental distance between 'may be' and 'must be' is quite large and divides vague conjectures from sure conclusions In a criminal case, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between `may be' true and `must be' true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an Accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between `may be' true and `must be' true, the court must maintain the vital distance between conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The court must ensure, that miscarriage of justice is avoided and if the facts and circumstances of a case so demand, then the benefit of doubt must be Page 11 of 12 Cr. Case No. 9739/2023 FIR No. 558/2023 State v. Waseem given to the Accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense."
19. Hence, the essential ingredient that the buttondar knife was found in the possession of the Accused or that it was recovered from him, has not been proved, as PW-1 and PW-2 have failed to prove their presence at the said spot, particularly, in the absence of public witnesses, photography/videography of the proceedings. To recapitulate the above discussion, to bring home the guilt of Accused person, the prosecution was required to prove the offence under section 25 Arms Act beyond reasonable doubt, i.e., to say that all ingredients have to be cumulatively proved. However, since in the present case, the essential ingredient of recovery in itself has not been proved, there is no sufficient evidence to link the Accused with the offence. Thus, the Accused person is entitled to benefit of doubt.
20. Resultantly, the Accused person namely, WASEEM S/O SH. KALLU ALI is hereby found not guilty. He is hereby ACQUITTED of the offence under Section 25 Arms Act.
21. File be consigned to record room after due compliance.
Announced in open court on 20.01.2024 in the presence of the Accused.
The judgment contains 12 pages and each page have been signed by the undersigned.
(TWINKLE CHAWLA) Metropolitan Magistrate-05/SE District, Saket Court, New Delhi/20.01.2024 Page 12 of 12