Delhi District Court
State vs . Asraf Ali on 2 January, 2012
FIR No. 348/04
PS Narela
dt. 02.01.12
Page no.1
IN THE COURT OF SHRI DEEPAK WASON
METROPOLITIAN MAGISTRATE: ROHINI COURTS: DELHI.
FIR No. 348/04
U/s. 25/54/59 Arms Act
PS: Narela
State vs. Asraf Ali
Date of Institution of case:- 22.09.04
Date of Judgment reserved:- 02.01.12
Date on which Judgment pronounced:- 02.01.12
JUDGMENT
Unique Id. no. of case :02401R5741852004 Date of commission of offence :27.08.04 Name of complainant :Head constable Rajpal, no.2567/ NW, PS Narela, Delhi.
Name and address of accused :Asraf Ali, S/o. Sh. Abdul Qadir, R/o.
Village Paktola, PS Maniguchi, District Darbanga, Bihar.
At present:- Roshan Chauhan ka makkan, near Saraswati Dal Mill, Village Bhorgarh, Delhi.
Offence complained of :25/54/59 Arms Act Plea of accused :Pleaded not guilty Date of order :02.01.2012 Final order :Acquitted BRIEF REASONS FOR DECISION:
1. The story of the prosecution in brief is as under:-
The accused has been sent to face trial under Section 25/54/59 Arms Act on the allegations that on 27.08.04 at about 6.50 p.m., at Corner, DSIDC Office, J. Block, Narela, Delhi, he was found in possession of buttondar knife in contravention of Contd..../-FIR No. 348/04
PS Narela dt. 02.01.12 Page no.2 Notification and on the basis of the said allegations, the present FIR bearing no.348/04 was registered at Police station Narela and the accused has been charged with the offence under Section 25/54/59 Arms Act.
2. After investigation, charge sheet was filed against the accused. The copies of charge sheet were supplied to the accused in compliance of Section 207 Cr.P.C. and charge U/s. 25/54/59 Arms Act was framed against the accused vide order dated 29.08.08, to which he has pleaded not guilty and claimed trial.
3. In support of its version, the prosecution has examined five witnesses out of six witnesses as mentioned in the list of witnesses.
4. PW 1 is Head Constable Jogender Pal. He has proved the carbon copy of FIR as Ex. PW 1/A. He was not cross examined by the accused.
5. PW 2 is Constable Anup Singh. He has deposed regarding the proceedings conducted by the IO. He was cross examined by the accused.
6. PW 3 is Head constable Rajpal Singh. He is the Investigating Officer (IO) of the case and has deposed that on Contd..../-
FIR No. 348/04PS Narela dt. 02.01.12 Page no.3 27.08.04, he alongwith Ct. Anoop Singh were on area patrolling and were present at Main bus stand, Bhorgarh. He has further deposed that at about 6.35 p.m. one secret informer met him and informed that one person is standing at the corner of J- Block, near DSIDC office wearing blue shirt, who is having one illegal knife. He has further deposed that he requested 4/5 passersby to join the raiding party, but none agreed and left the spot without disclosing their names and addresses. He has further deposed that at the instance of the secret informer at about 6.50 p.m., they apprehended the accused and took his casual search and recovered one buttondar knife from the right side pocket of the wearing pant of accused. He has further deposed regarding preparing sketch of the knife, measuring of knife, preparing of pullanda, sealing the same with the seal of RPM, seizing of knife, preparing rukka and getting FIR registered throught Ct. Anoop. He also deposed that seal after use was handed over to Ct. Anoop. He has further deposed that further investigation was marked to HC Ravi Dutt. He was cross examined by accused.
7. PW 4 is Head constable Vijender. He is the concerned MHC(M) in this case and has proved the copy of register no.19 as Ex. PW 4/A. He was not cross examined by the accused.
8. PW 5 is Head constable Ravi Dutt. He is the Contd..../-
FIR No. 348/04PS Narela dt. 02.01.12 Page no.4 second Investigation officer (IO) of the case. He has deposed that on 27.08.04, Ct. Anoop Singh came to PS, got the case registered and duty officer handed over to him original rukka and copy of FIR, upon which he alongwith Ct. Anoop Singh reached at the spot at DSIDC Office, Narela and met HC Rajpal who handed over the accused Asraf Ali, one sealed pullanda and relevant documents to him. He has further deposed that he prepared site plan at the instance of HC Rajpal He has further deposed that he recorded disclosure statement of accused, arrested him and conducted his personal search. He has further deposed that they took the accused to BJRM Hospital for his medical examination. He has further deposed that he deposited the case property in malkhana, recorded statement of witnesses and after completing the investigation, prepared the challan and filed the same in the court. He was cross examined by accused.
9. As far as notification is concerned, I take the judicial notice of the same.
10. After examining all material witnesses, prosecution evidence was closed vide order dated 16.11.11.
11. Subsequent to the recording of statement of witnesses, memorandum of statement of accused was recorded and all the incriminating evidence coming on record was put to Contd..../-
FIR No. 348/04PS Narela dt. 02.01.12 Page no.5 the accused in which he has submitted that he has been falsely implicated in the present case. He has further submitted that he does not wish to lead any defence evidence and final arguments were heard.
12. I have heard the arguments of Ld. Counsel for accused, Ld. APP for the state as well as perused the record.
13. In the present matter, the accused has been charged U/s. 25/54/59 Arms Act and to convict the accused, the prosecution has to prove that the accused was found in possession of one buttondar knife, as alleged.
14. In the present matter, it has come in the evidence of PW 2 & 3 that 4/5 passersby were asked to join investigation but none had agreed to join the same and left the spot without disclosing their names and addresses. Further as per the testimony of PW 3, this witness in his cross examination has admitted as correct that the place of recovery was a crowded place. In these circumstances like the present one, the police officials should have made an effort to join public witnesses during the recovery proceedings and if public persons would have refused to assist the members of the police party, they could have served the said public witnesses with a notice in writing to join the police proceedings. This thing has not been happened in the present case.
Contd..../-
FIR No. 348/04PS Narela dt. 02.01.12 Page no.6
15. In a case law reported as "Roop Chand Vs. The State of Haryana" 1999 (1) C.L.R. 69, the Punjab & Haryana High Court held as under:-
"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. 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 worth of credence. All these facts taken together make the prosecution case highly doubtful".
Hence, in view of the law discussed above, it casts a shadow of doubt in the prosecution case.
16. Further, as per the deposition of PW 2 & PW 3 on 27.08.04, they were on patrolling duty meaning thereby that at the time they were not in the police station. Be that as it may, now if the said police officials were not present within the P.S. at the time of the alleged recovery and rather admittedly were Contd..../-
FIR No. 348/04PS Narela dt. 02.01.12 Page no.7 outside the police station, then as per Punjab Police Rules, they being on duty were required to enter their departure & arrival to & from the P.S. Narela in the D.D. Register of the said P.S. As per Chapter 22 Rule 49 of Punjab Police Rules, 1934:-
"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 personality by signature or seal.
Note:- The term police Station will include all places such as Police Lines & Police Posts where Register No. II is maintained.
17. Now, in the present case clearly the above said provision appears to have not been complied with in respect of the departure and arrival of PW 2 & PW 3 from and to the police station of Narela. The prosecution has produced no evidence whatsoever on record in the nature of documentary evidence of the required D.D. entries, so as to establish the presence of PW 2 & PW 3 at or near the place of the recovery on 27.08.04.
18. In the facts and circumstances of the case, the prosecution ought to have brought on record & prove the aforementioned DD entries by which the PW 2 & PW 3 had left Contd..../-
FIR No. 348/04PS Narela dt. 02.01.12 Page no.8 the PS before the recovery and by which they had arrived at the P.S. after the recovery, so as to inspire the confidence of the Court regarding their joint availability/presence at the place of apprehension of the accused, since the said police officials were under bounden duty to enter their departure & arrival from/at the police station by making a D.D. Entry in that respect as per the aforesaid mentioned P.P. Rule. Hence, it also creates doubt in the prosecution story.
19. In the present case, no efforts were made to hand over the seal after use in the presence of independent public persons. In such circumstances, the possibility of tampering the case property cannot be ruled out.
20. In view of the above said discussion, I am of the considered view that the prosecution has failed to prove the guilt of the accused, beyond reasonable doubts. Accordingly, the accused stands acquitted from the charges U/s. 25/54/59 Arms Act.
21 Previous bail bond of accused is extended U/s. 437 A Cr.P.C. File be consigned to Record room after necessary compliance.
Deepak Wason Metropolitan Magistrate Rohini Court, Delhi Announced in open court on TODAY i.e 02nd January, 2012.
Contd..../-