Delhi District Court
State vs . Mubarak Ali on 7 August, 2018
State Vs. Mubarak Ali
IN THE COURT OF SH. AJAY GARG,
CHIEF METROPOLITAN MAGISTRATE
SHAHADRA, KARKARDOOMA COURTS, DELHI
State v/s Mubarak Ali
FIR No. 176/17
U/s 25 Arms Act
PS Shahdara
JUDGMENT
a. Sl. No. of the case : 2514/17
b. Date of institution : 26.07.2017
c. Date of commission of offence : 12.06.2017
d. Name of complainant : SI Manish Chaudhary
e. Name & address of accused : 1) Mubarak Ali
S/o Mushabbar Hussain
R/o H. No. 269, Gali no. 14,
Jafrabad, Delhi.
f. Offence complained of : U/s 25 Arms Act
g. Plea of accused : Pleaded Not Guilty
h. Date when Judgment was reserved : 07.08.2018 i. Final order : Acquitted j. Date of Judgment : 07.08.2018
BRIEF FACTS FOR DECISION OF THE CASE AS UNDER :
01. Briefly stated the case of the prosecution is that on 12.06.2017 at about 10.00 pm at K. D. Field School within the jurisdiction of PS Shahdara, accused Mubarak Ali was found in possession of one FIR No. 176/17 Page 1 of 8 State Vs. Mubarak Ali buttondar knife in contravention of the notification issued by Delhi Administration and thereby committed an offence punishable U/sec. 25 Arms Act.
02. After filing of the police report, cognizance of offence under section 25 Arms Act was taken and the accused was called upon to face trial after complying with the requirement of section 207 of Cr.P.C.
03. On 05.05.2018, charge was framed against accused under section 25 Arms Act to which he pleaded not guilty and claimed trial.
04. Prosecution adduced evidence in support of its case.
4.1. PW1, Ct. Deepak, is the Recovery witness, stated that on 12.06.2017 he alongwith SI Manish was on area patrolling duty and at 10.00 pm at K. D. Filled School, Naveen Shahdara, they saw one boy was coming from Shahdara Park side and upon inquiry he started moving fastly. The said boy was apprehended and upon cursory search, one buttendar knife was recovered from his right pocket of lower. The length of knife was 24 cm, blade 11 cm and handle 13 cm. Sketch of the knife was prepared by IO and he proved the same as Ex. PW1/A and seizure memo of the same is proved as Ex. PW1/B. IO prepared the rukka and handed over to him for registration of FIR. He got registered the FIR and copy of FIR alongwith original rukka were handed over to the IO ASI Harvinder. IO ASI Harvinder prepared the site plan at the instance of SI Manish.
FIR No. 176/17 Page 2 of 8State Vs. Mubarak Ali Accused was formally arrested and personally searched by IO vide memos Ex. PW1/C & 1/D and disclosure statement of accused was recorded vide memo Ex. PW1/E. He correctly identified the accused. He also identified the case property as Ex. P1.
Thereafter, he was crossexamined by Ld. Defence Counsel.
4.2. PW2 SI Manish is the Accompanying Witness of PW1. He deposed identical facts on the lines of PW1 and proved the rukka as PW2/A and Site Plan as Ex. PW2/B. He also proved the documents i.e. Sketch of knife as Ex. PW1/A and seizure memo of case property as Ex. PW1/B. He identified the accused in the court as well as case property as Ex. P1.
He was crossexamined at length by Ld. Defence Counsel.
4.3. PW3 ASI Harvinder Singh, is the Investigating Officer of this case. He stated that on 13.06.2017 he has received the copy of FIR and original rukka at around 12.50 am and he alongwith Ct. Deepak went to the spot i.e. K. D field Public School, Naveen Shahdara. SI Manish met him at the spot and handed over him the documents, accused and case property to him. He prepared the site plan at the instance of SI Manish vide Ex. PW2/B. Accused was formally arrested and personally searched vide memo Ex. PW2/C & D. He deposited the case property with MHC (M) PS Shahdara and medically examined the accused. Finally, after completion of all the formalities he filed the challan in the court. He correctly identified the accused present in the court.
He was crossexamined by Ld. Defence Counsel.
FIR No. 176/17 Page 3 of 8State Vs. Mubarak Ali
5. Vide separate statement of accused recorded u/s 294 Cr.PC on 05.05.2018, accused Mubarak Ali has admitted the genuineness of documents i.e., FIR of the instant case and DD No. 18A Dt. 12.06.2017 as Ex. C1 & C2.
6. After closure of prosecution evidence, separate statement of accused was recorded u/s 281 Cr.PC r/w Section 313 of Code of Criminal Procedure, 1973. Accused denied the evidence and claimed innocence. No defence evidence was led despite opportunity.
7. Final arguments heard. Record perused. Considered.
It has been held in case of Sadhu Singh V/s State of Punjab 1997(3) Crime 55 the Hon'ble Punjab & Haryana High Court : "In a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubts. It is for the prosecution to travel the entire distance from may have to must have. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused."
8. Further, as per chapter 22 rule 49 of the Punjab Police Rules, which is reproduced herein for ready reference provides as under: 4:
''22.49 Matters to be entered in Register No. II The following FIR No. 176/17 Page 4 of 8 State Vs. Mubarak Ali 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.
9. In the present case, the above said provision appears to have not been complied with by prosecution. The relevant entries regarding the return of the police official has not been proved on record. At this juncture, it would be relevant to refer to a case law reported as Rattan Lal V/s State, 1987 (2) Crimes 29 the Hon'ble Delhi High Court
4. "wherein it has been observed 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 FIR No. 176/17 Page 5 of 8 State Vs. Mubarak Ali strictly complied with and the least that can be said is that it is so done with an oblique motive. This failure to bring on record, the DD entries creates a reasonable doubt in the prosecution version and attributes oblique motive on the part of the prosecution."
10. In the instant case no sincere efforts appears to have been made by the IO to join public persons in investigation. Though prosecution witnesses admitted in their crossexamination that public persons were available at the spot. It is note worthy that I.O had not made any serious endeavour to join the passers by or residents in investigation of this case. This failure on his part goes to suggest that he did not make sincere efforts to join the passersby in the police proceedings. At least in the facts and circumstances of the present case, IO could have very well served the passersby with notice in writing requiring them to join the police proceedings or to face action u/s 187 IPC in as much as in the present case there was no possibility of accused escaping his apprehension / arrest or crime going undetected in as much as by the said time, accused stood already apprehended by the police. Failure on the part of prosecution to make sincere efforts for joining independent public witnesses in the proceedings when they are available creates reasonable doubt in the prosecution in view of the following case laws.
In a case law reported as Anoop Joshi V/s State, 1992 (2) C.C. Cases 314 (HC), Hon'ble High Court of Delhi has FIR No. 176/17 Page 6 of 8 State Vs. Mubarak Ali observed as under:
''18. It is repeatedly laid down by this Court that 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 evident that no such sincere efforts have been made, particularly when we find that shops were open and one or two shopkeepers 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''.
Roop Chand V/s The State of Haryana,1999 (1) C.L.R 69, the Hon'ble Punjab & Haryana High Court held as under: '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 he witnesses from the public had refused to join the investigation, the Investigating FIR No. 176/17 Page 7 of 8 State Vs. Mubarak Ali 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 nonjoining 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''.
11. Furthermore, in the case at hand, seal after use on the case property was given to Ct. Deepak who also happens to be a part of the team with the IO of the present case. Moreover no handing over memo of seal was prepared by the IO. To my mind, in such circumstances, chances of fabrication with the case property cannot be ruled out, in as much as, complainant / IO is invariably interested in the conviction of the accused. Further the IO has not offered his personal search before taking the search of the accused and thus chances of implanting the case property cannot be ruled out.
12. In view of the aforesaid discussion, I am of the opinion that prosecution has failed to prove its case against accused Mubarak Ali beyond all reasonable doubts. Accused accordingly stands acquitted for the offence U/s 25 Arms Act.
Digitally signed by AJAY GARG AJAY Location: Court
NO.59, Shahdara
District,
GARG Karkardooma
Courts, Delhi
Date: 2018.08.07
15:41:50 +0530
ANNOUNCED IN THE OPEN (AJAY GARG)
th
COURT ON 07 Aug., 2018 Chief Metropolitan Magistrate
Shahdara District,
Karkardooma Courts, Delhi.
(Typed under direct dictation)
FIR No. 176/17 Page 8 of 8