Delhi District Court
State vs Noor Mohamad@Taju on 1 November, 2023
IN THE COURT OF MS. BHARTI BENIWAL, METROPOLITAN
MAGISTRATE-11, DWARKA COURT, NEW DELHI
FIR No.56/2021
PS Janakpuri
State Vs. Noor Mohammad @ Taju
U/s 25/54/59 Arms Act
CNR No. : DLSW-020144832021
Cr Case No. : 3221/2021
Date of institution of the case : 08.03.2021
Date of commission of offence : 20.02.2021
Name of the complainant : ASI Brahmanand
Name of accused and address : Noor Mohammad @ Taju
S/o Sh.Mohammad Sadik
@ Mohammad Sarif
R/o Jhuggi No.30, F-7,
Sultanpuri, New Delhi
Offence complained of : U/s 25/54/59 Arms Act
Plea of the accused : Pleaded not guilty.
Ld. APP for the State : Sh.Amit Sehrawat
Final order : Acquital
Date of judgment : 01.11.2023
FIR No.56/2021
State Vs. Noor Mohammad @ Taju
Page No.1/15
JUDGMENT
1. The brief facts of the case of the prosecution are that on 20.02.2021 at about 04 : 30 P.M. at Pankha Road, Near Tilak Pull Bus Stand, Janakpuri, Delhi, accused Noor Mohammad @ Taju was found in possession of one button operated knife and after completion of the investigation, charge-sheet was filed against the accused u/s 25/54/59 Arms Act.
2. On receipt of chargesheet, cognizance of offence was taken and accused was summoned. After supply of copy of chargesheet, a formal charge was framed u/s 25/54/59 of Arms Act against the accused to which he pleaded not guilty and claimed trial.
3. Prosecution has examined 3 witnesses to prove its case.
4. The prosecution has examined HC Sunil Kumar as PW1, who is the investigating officer of the present case. He testified that on 20.02.2021, investigation of the present case was marked to him. He met with Ct.Raju in PS who handed over copy of FIR and original rukka to him. Witness alongwith Ct.Raju reached at the spot where ASI Brahamanand met them and ASI Brahamanand produced accused Noor Mohd, sealed pullanda of knife and its seizure memo to the witness. Witness prepared site plan at the instance of ASI Brahamanand which is Ex.PW1/A bearing his signature at point A. He arrested the FIR No.56/2021 State Vs. Noor Mohammad @ Taju Page No.2/15 accused vide arrest memo Ex.PW1/B bearing his signature at point A. He conducted personal search of accused vide memo Ex.PW1/C bearing his signature at point A. Accused was present in the court at the time of recording of evidence and he was correctly identified by witness. Witness recorded disclosure statement of the accused which is Ex.PW1/D bearing his signature at point A. Thereafter, he deposited the case property in Malkhana. he recorded statement of witnesses and collected DAD notification Ex.PW1/E. Thereafter, he prepared charge- sheet and submitted in court.
5. Witness was cross examined by ld. Defence counsel, wherein he stated that he received rukka and copy of FIR from Ct.Raju at about 7 PM and reached at the spot at 07 : 15 PM on his car. He remained there at the spot till 8 PM. That the place of incident is a crowded place and many persons were available there. Witness admitted that he had not requested any public person to join the investigation. Witness admitted that ASI Brahmanand did not give any written notice to public person. Witness denied the suggestion that nothing was recovered from the accused or accused has falsely been implicated in the present case. Witness denied the suggestion that all the proceedings have been conducted in PS.
6. Prosecution has examined ASI Brahamanand as PW2, who is the complainant in the present case. He deposed that on 20.02.2021, he alongwith Ct.Raju was on patrolling duty at FIR No.56/2021 State Vs. Noor Mohammad @ Taju Page No.3/15 Pankha Road. During their patrolling duty, they reached near Tilak Pull Bus Stand at about 04 : 30 PM, where they saw that one person was coming on foot and after seeing them in police uniform, accused suddenly turned back and started walking in opposite direction of witness. On suspicion, they chased him and apprehended him. On cursory search of said person, one button operated knife was recovered from right pocket of the pant of accused. Accused could not give justification of possessing the knife. Thereafter, his name was revealed as Noor Mohamad @ Taju, who was present in the court and he was correctly identified by witness. Ct.Raju went with rukka for registration of FIR. Ct.Raju got the FIR registered and came back at spot with HC Sunil. Witness handed over the custody of accused and case property to IO HC Sunil. Witness put knife on white paper and prepared its sketch memo Ex.PW2/A bearing his signatures at point A. Total length of the knife was 23.3 cm, length of blade was 10.6 cm and length of handle was 12.7 cm. Witness kept knife in white cloth pullanda and pullanda was sealed with seal of BN. Witness handed over used seal to Ct.Raju. He seized the pullanda vide seizure memo Ex.PW2/B bearing his signatures at point A. IO prepared site plan Ex.PW1/A bearing his signatures at point B. IO arrested the accused vide memo Ex.PW1/B bearing his signatures at point B. Personal search of accused was conducted vide memo Ex.PW1/C. IO recorded disclosure statement of accused which is Ex.PW1/D. His complaint is Ex.PW2/C bearing his signatures at point A. FIR No.56/2021 State Vs. Noor Mohammad @ Taju Page No.4/15
7. MHC(M) produced one pullanda sealed with seal of BN. Button operated knife was shown to witness. Same was correctly identified by the witness. Case property was Ex.P.
8. Witness was cross examined by ld. Defence counsel, wherein he stated that the patrolling duty was started at 02 : 40 PM on foot. That they also made rawangi entry vide DD No.51A regarding the same. They reached the spot at about 04 : 30 PM. Witness stated that the spot was not that crowded on the said day. There was no CCTV cameras installed at the spot. Witness stated that he was using a mobile phone which was having camera and he did not click any photographs of the spot. Ct.Raju left the spot with rukka at about 06 : 30 PM and came back at the spot at around 7 PM. Witness stated that he did not know as to how Ct.Raju went to PS for registration of FIR. That when they apprehended the accused, crowd gathered at the spot but none agreed to join their investigation. He stated that he did not know the name of the person from the crowd to whom request was made. That he finally left the spot at about 07 : 15 PM. Witness denied the suggestion that he was not on partolling duty on the day of incident and did not reach at the spot. Witness denied the suggestion that accused is falsely implicated in the present case by planting knife upon him and he signed all the documents while sitting in the PS. FIR No.56/2021 State Vs. Noor Mohammad @ Taju Page No.5/15
9. Prosecution has examined HC Raju as PW3. He deposed that on 20.02.2021, he alongwith ASI Brahamanand was on patrolling duty at Pankha Road. During their patrolling duty, they reached near Tilak Pull Bus Stand at about 04 : 30 PM, where they saw that one person was coming on foot and after seeing them in police uniform, accused suddenly turned back and started walking in their opposite direction. On suspicion, witness with ASI Brahamanand chased him and apprehended him. On cursory search of accused, one button operated knife was recovered from right pocket of the pant. That accused could not give justification of possessing the knife. The name of accused was revealed as Noor Mohamad @ Taju. Accused was present in the court and he was correctly identified by witness. Witness went with rukka for registration of FIR and got the FIR registered. Witness came back at spot with HC Sunil. The custody of accused and case property was handed over to IO HC Sunil. ASI Brahamanand put knife on white paper and prepared its sketch memo Ex.PW2/A bearing his signature at point B. Total length of the knife was 23.3 cm, length of blade was 10.6 cm and length of handle was 12.7 cm. ASI Brahamanand kept knife in white cloth pullanda. Pullanda was sealed with seal of BN and ASI Brahamanand handed over used seal to him. ASI Brahamanand seized the pullanda vide seizure memo Ex.PW2/B bearing his signature at point B. IO prepared site plan Ex.PW1/A bearing his signatures at point C. IO arrested the accused vide memo Ex.PW1/B bearing his signature at point B. Personal search of accused was conducted vide memo Ex.PW1/C bearing FIR No.56/2021 State Vs. Noor Mohammad @ Taju Page No.6/15 his signature at point B. IO recorded disclosure statement of accused which is Ex.PW1/D bearing his signature at point B. IO recorded his statement is Ex.PW3/A bearing his signature at point A.
10. MHC(M) produced opened pullanda in testimony of PW2. Button operated knife was shown to witness. Same was correctly identified by the witness. Case property is Ex.P.
11. Witness was cross examined by ld. Defence counsel, wherein he stated that he started patrolling duty at 02 : 30 PM on foot. That he also made rawangi entry vide DD No.51A regarding the same. That they reached the spot at about 04 : 30 PM. That the spot was not that crowded on the said day, however, people were passing by. Witness stated that he does not know whether there was any CCTV cameras installed at the spot or not. That he was using a mobile phone which was having camera and he did not click any photographs of the spot. He reached at the PS with rukka at about 06 : 30 PM and came back at the spot at around 7 PM. He went to PS in battery Rickshaw for registration of FIR. That he did not know the registration number of said battery rickshaw. That when they apprehended the accused, crowd gathered at the spot but none agreed to join their investigation. That he did not know the name of the person from the crowd to whom request was made. He finally left the spot at about 07 : 30 PM. Witness denied the suggestion that he was not on partolling duty on the day of incident and did not reach at the spot. Witness FIR No.56/2021 State Vs. Noor Mohammad @ Taju Page No.7/15 denied the suggestion that accused was falsely implicated in the present case by planting knife upon him. Witness denied the suggestion that he signed all the documents while sitting in the PS.
12. Vide separate statement recorded u/s 294 Cr.P.C, accused had admitted the documents FIR No.56/2021 registered by HC Nafe Singh Ex.P1, Certificate u/s 65B of Indian Evidence Act issued by HC Nafe Singh Ex.P2, Endorsement on rukka by HC Nafe Singh Ex.P3 and DAD notification of Delhi Administration Ex.P4. Hence the above documents were ordered to be read in evidence without its formal proof.
13. No other witness was examined by prosecution and hence, PE was closed vide order dated 25.09.2023.
14. Statement of accused under Section 313 Cr.P.C. was recorded wherein the entire incriminating evidence was put to him. According to him, he has been falsely implicated in the present case. He stated that he was not present at the spot and he was lifted by the police officials from Mangolpur area and he has falsely been implicated in the present matter. Accused chose not to lead any evidence in his defence and hence, the matter was put up for final arguments.
15. Final arguments were thereafter heard on behalf of State as well as the accused.
FIR No.56/2021State Vs. Noor Mohammad @ Taju Page No.8/15
16. After hearing Sh.Amit Sehrawat, Learned Assistant Public Prosecutor for the state and Ms.Deepti, Learned Legal Aid Counsel for the accused and having gone through the case file carefully and meticulously, it is observed by the court that it is the case of prosecution that on the fateful day accused was found in possession of one buttondar knife. The court is of the view that to prove the charge against the accused, the prosecution is required to prove the allegation beyond reasonable doubt.
17. The relevant portion of Arms Act is reproduced as under:
Section 25: Punishment for certain offences:
(1) whoever-
(a) Manufactures, sells, transfers, converts, repairs, tests or proves, or exposes or offers for sale or transfer, or has in his possession for sale, transfer, conversion, repair, test or proof, any arms or ammunition in contravention of section 5; or
(b) Shortens the barrel of a firearm or converts an imitation firearm into a firearm in contravention of section 6; or 2[***]
(c) bring into, or takes out of, India, any arms or ammunition of any class or description in contravention of section 11, shall be punishable with imprisonment for a term which not be less FIR No.56/2021 State Vs. Noor Mohammad @ Taju Page No.9/15 than three years but which may extend to seven years and shall also be liable to fine.
18. In the case in hand, the incident took place at Pankha Road, Near Tilak Pull Bus Stand, at about 04 : 30 PM. In cross examination of PW1 HC Sunil, it has specifically been stated by him that the place is crowded place but despite that, he did not request any public person to join the investigation. However, in cross examination of PW2 ASI Brahamanand, PW2 ASI Brahamanand also admitted the fact that the place was a crowded place. He further stated that he asked public persons to join the investigation, however, none agreed to join the investigation. All the prosecution witnesses stated that no public witness agreed to give statement. However, none of the police officials stated the description of the persons who had allegedly refused to join the investigation. Further, there is nothing on record to show that the complainant or the IO had served any notice under Section 160 CrPC upon the persons who refused to join the investigation. Thus, the prosecution has failed to prove that any serious effort was made by PW2 to join public witness in the proceedings. It is a well settled proposition that non-joining of public witness shrowds doubt over the fairness of the investigation by police.
19. In case law reported as "Anoop Joshi Vs. State"
1992 (2) C.C. Cases 314 (HC), High Court of Delhi had observed as under:-FIR No.56/2021
State Vs. Noor Mohammad @ Taju Page No.10/15 "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 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".
20. 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:
"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. The explanation furnished by the prosecution is that the independent witnesses were asked to join the investigation but they refused to to so on the FIR No.56/2021 State Vs. Noor Mohammad @ Taju Page No.11/15 ground that their joining will result into enmity between them and the petitioner".
"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 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 provision 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".FIR No.56/2021
State Vs. Noor Mohammad @ Taju Page No.12/15
21. Non joining of public witnesses despite availability casts a doubt on the fairness of the investigation. Reliance is placed on paragraph 6 of the judgment in Pawan Kumar v. The Delhi Administration, 1989 Cri.L.J. 127, wherein the Hon'ble High Court of Delhi had observed as under:
" ... According to Jagbir Singh, he did not join any public witness in the case while according to Kalam Singh, no public person was present there. It hardly stands to reason that at a place like a bus stop near Subhas Bazar, there would be no person present at a crucial time like 07.30 p.m. when there is a lot of rush of commuters for boarding the buses to their respective destinations. Admittedly, there is no impediment in believing the version of the Police officials but for that the prosecution has to lay a good foundation. At least one of them should deposed that they tried to contact the public witnesses or that they refused to join the investigation. Here is a case where no effort was made to join any public witness even though number of them were present. No plausible explanation from the side of the prosecution is forthcoming for not joining the independent witnesses in a case of serious nature like the present one. It may be that there is an apathy on the part of the general public to associate themselves with the Police raids or the recoveries but that apart, at least the I.O. should have made an earnest effort to join the FIR No.56/2021 State Vs. Noor Mohammad @ Taju Page No.13/15 independent witnesses. No attempt in this direction appears to have been made and this, by itself, is a circumstance throwing doubt on the arrest or the recovery of the knife from the person of the accused."
22. This Court is, however, conscious that the prosecution case cannot be thrown out or doubted on the sole ground of non- joining of public witnesses as public witnesses keep themselves away from the Court unless it is inevitable, as has been held in Appabhai and another v. State of Gujarat, AIR 1988 SC 696. However, in the present case, it is not only the absence of public witnesses which raises a doubt on the prosecution but there are other circumstances too, as discussed hereinafter, which raise suscpicion over the prosecution version.
23. Further, the seal remained with a police official only and it has not been proved that the seal was handed over to any other independent public person and therefore, the possibility of sample being tempered with cannot be ruled out. Reference may be made to the judgment of Subeg Singh v. State of Haryana, reported as 1992(3) RCR (Criminal) 596. In the judgment titled as Karambir v. State of Delhi reported as 1997 JCC 520 it has been held that absence of proof that the specimen impression of the seal was deposited with MHCM(M) along with case property results in miscarriage of justice and is fatal to the prosecution.
FIR No.56/2021State Vs. Noor Mohammad @ Taju Page No.14/15
24. It is trite in criminal jurisprudence that the prosecution is under an obligation to prove its case against the accused beyond reasonable doubt. The standard of proof to be adopted in criminal cases is not merely of preponderance of probabilities but proof beyond reasonable doubt on the basis of cogent, convincing and reliable evidence. It is also well settled that in case of doubt, the benefit must necessarily be allowed to the accused.
25. Thus, in view of the foregoing analysis, this Court is of the considered opinion that the benefit of doubt ought to be granted to the accused, who is entitled to be exonerated of the charges against him in the present case. The accused is hereby acquitted of the offence punishable under Section 25 of Arms Act.
Accused be set at liberty.
Pronounced in open Court on this 1st Day of November, 2023. This judgment consists of 15 pages and each pages are signed by the undersigned.
(BHARTI BENIWAL) Metropolitan Magistrate-11 South West District, Dwarka Courts New Delhi FIR No.56/2021 State Vs. Noor Mohammad @ Taju Page No.15/15