Delhi District Court
State vs . Babu Khan @ Sahil @ Sakeel @ Aman @ Shiraj on 23 December, 2022
IN THE COURT OF MS. NEHA MITTAL
METROPOLITAN MAGISTRATE-04/CENTRAL: DELHI
STATE VS. Babu Khan @ Sahil @ Sakeel @ Aman @ Shiraj
FIR No. 41/2004
Case No. 1864/2022
P.S. : SARAI ROHILLA
U/s 25/54/59 Arms Act & 174A IPC
Date of institution of case : 09.02.2004
Date on which case reserved for judgment : 23.12.2022
Date of judgment : 23.12.2022
JUDGMENT :
a) Date of offence : 18.01.2004
b) Offence complained of : U/s 25/54/59 Arms Act
& 174A IPC
c) Name of complainant : HC Jasbir Singh
d) Name of accused, : Babu Khan @ Sahil @
his parentage Sakeel @ Aman @ Shiraj
local & permanent residence : S/o Abdul Khan
R/o:- D-Block, JJ Colony,
Wazirpur, Delhi
Also at
Village Mohan Badiyam,
PS Sakri, Dist-Madhubani,
Bihar
e) Plea of accused : Pleaded not guilty
f) Final order : Acquitted u/s
25/54/59Arms Act
Convicted u/s 174A IPC
FIR no. 41/2004 State Vs. Babu Khan Page no. 1 of 14
BRIEF FACTS OF CASE:
1. The case of the prosecution is that on 18.01.2004 at about 03:50 pm, at 56 Bigha Park, near side gate of Ganda Nala, Shastri Nagar, accused was found in possession of a buttondar knife without any license or permit in contravention of DAD notification of GNCT of Delhi and subsequently on 12.12.2019, was declared PO vide order dated 04.02.2005 as accused failed to appear in the court in pursuance of process u/s 82 Cr.P.C and later on accused was apprehended by the police in the present case on 05.03.2020 and thereafter supplementary charge-sheet was filed against the accused and thereby he committed the offences punishable U/s 25/54/59 Arms Act & 174A IPC.
2. On the basis of material filed along with the charge-sheet, Charge u/s 25/54/59 Arms Act & 174A IPC was framed against the accused on 01.04.2022 to which he pleaded not guilty and claimed trial.
3. In order to prove its case, prosecution examined 6 witnesses.
4. PW1 ASI Arvind deposed that on 18.01.2004 he was posted as constable at PS Sarai Rohilla. On that day he was on patrolling duty alongwith SHO Rajendra Prashad, HC Bharat, SI Gajendar Singh, HC Jashbir Singh, Const Mohd. Ismail, Const Veer Pal. When they reached at road No 37 near Tapakna pool, at around 03:30 PM, an informant met SHO and told him that at 56 Bigha Park some persons are siting and they have arms in their possession and if raid is made they can be caught alongwith arms. SHO asked about 10 public persons who were present at near park, to join the proceedings, however, they refused to join the same. Due to paucity of time no notice was served on FIR no. 41/2004 State Vs. Babu Khan Page no. 2 of 14 any public person who refused join the proceedings. Thereafter SHO briefed them and further they entered the park through entrance gate. When they entered inside the park, on seeing them the three persons who was sitting on Chabutra inside the park began running briskly. He alongwith HC Jashbir apprehended one of the person who was trying to flee from the park. On search made on the person of the accused, a buttondar knife was found from the right pocket of the pant worn by the accused. On search of the accused a purse and 40 rupees was also found from his possession. The accused who was apprehended by them was presented before SHO, on inquiry, the accused told his name as Babu Khan. The sketch of the buttondar knife which was found from the possession of the accused was prepared in his presence Ex.PW1/A. The buttondar knife was seized vide seizure memo Ex.PW1/B. The buttondar knife was placed in a cloth and pullanda was made and the same was sealed with the seal of JS and the seal was handed over to him. The tehrir was prepared by HC Jasbir and the same was handed over to him for the registration of FIR. After registration of the FIR, he came to the spot alongwith HC Dalal Singh, copy of FIR and original tehrir. HC Jashbir handed over a sketch memo of the buttondar knife, alongwith seizure memo, the case property, custody of the accused i.e. Babu Khan to HC Dalal Singh. Accused was arrested in his presence vide arrest memo Ex.PW1/C. Personal search of the accused was conducted in his presence vide personal search memo Ex.PW1/D. Disclosure statement of accused was recorded in his presence vide Ex.PW1/E. Accused also told that he is involved in other many cases. His statement was recorded by IO U/s 161 of Cr.P.C. He identified the case property i.e. buttondar knife Ex.P1 whose seal was found in deteriorated condition due to lapse of time otherwise pullanda of white cloth was found to be intact. Accused was correctly identified by the witness. The witness was duly cross-examined by Ld. LAC for the accused.
FIR no. 41/2004 State Vs. Babu Khan Page no. 3 of 14
5. PW2 SI Jasbir Singh deposed that on 18.01.2004, he was posted as HC at PS Sarai Rohilla. On that day, at about 03:30 pm when he alongwith the then SHO Rajender Prasad, HC Bharat, SI Gajender Singh, Ct. Mohd. Ismail, Ct. Arvind and Ct. Birbal were on area patrolling duty and when they reached at road no.37 near Tapakna Pull, one informant met SHO and informed that 3 persons were sitting at 56 Bhiga Park alongwith arms in their possession. At that time, the then SHO asked public persons to join the investigation but none agreed and went away without disclosing their names and addresses. The then SHO formed the raiding party consisting of above said police officials including him and briefed them. Thereafter they all left and went to the park and entered it from the gate of nala side. On seeing them, those boys started running in different directions. He alongwith Ct. Arvind apprehended one boy who was running in the southern directions. On taking his cursory search, he found one buttondar knife from the right hand pocket of the trouser of the said person. On enquiry, he disclosed his name as Babu Khan. He produced the said person alongwith recovered knife to the then SHO and upon the instruction from the then SHO, he started the proceedings against accused. He prepared the sketch memo of the said knife Ex.PW1/A. He prepared the pullanda of the said knife by keeping it in white cloth and sealed it with the seal of JS. The said knife was seized vide memo Ex.PW1/B. Seal after use was handed over to Ct. Arvind. He prepared the tehrir Ex.PW2/A. He handed over the said tehrir to Ct. Arvind to get the FIR. Ct. Arvind left the spot and after some time came back to the spot alongwith HC Dalal Singh with original tehrir and copy of FIR. He handed over the seized pullanda, documents and accused to second IO HC Dalal Singh. HC Dalal Singh checked the documents and put FIR number on them. HC Dalal Singh prepared the site plan at his instance. He recorded his statement and relived him from the spot. Accused Babu Khan was correctly identified by the FIR no. 41/2004 State Vs. Babu Khan Page no. 4 of 14 witness. Case property was already Ex.P1 in the testimony of PW1 ASI Arvind. The witness was duly cross-examined by Ld. LAC for the accused.
6. PW3 retired SI Jai Pal Singh deposed that on 18.01.2004, he was posted as ASI DO at PS Sarai Rohilla. On that day, at about 5.30 PM, Ct. Arvind came to PS with rukka sent by HC Jasbir Singh. On the said rukka, he registered the present FIR Ex.PW3/A and handed over the original rukka and copy of FIR to Ct. Arvind to hand over the same to HC Dalil Singh for further investigation. The witness was duly cross-examined by Ld. LAC for the accused.
7. PW4 HC Tara Chand deposed that accused was already declared PO on 12.12.2019. The present case was marked to him for further investigation as the accused was apprehended and was undergoing JC. As per the orders, he prepared the supplementary Challan. Accused was correctly identified by the witness. The witness was duly cross-examined by Ld. LAC for the accused.
8. PW5 retired ASI Dalel Singh deposed that on 18.01.2004, he was posted as HC at PS Sarai Rohilla, Delhi. On that day, the further investigation of the case was marked to him and he accordingly, alognwith Ct. Arvind went to the spot i.e. 56 Bhiga Park, Shastri Nagar, where he met with HC Jasbir Singh who had apprehended the accused in possession of one buttondar knife. He narrated him the whole incident of the recovery of the knife. He handed over him the custody of the accused alongwith one pullanda duly sealed with the seal of JS. He at the instance of HC Jasbir Singh prepared the site plan of the spot Ex.PW5/A. Thereafter, he interrogated the accused and in FIR no. 41/2004 State Vs. Babu Khan Page no. 5 of 14 that course he made the confession regarding the commission of the crime. He recorded his detailed disclosure statement Ex.PW1/E. On the basis of the disclosure statement, he decided to arrest the accused vide seizure memo Ex.PW1/C. He also conducted the personal search of the accused and in that course one leather purse containing Rs. 40/- and a small key was found. The said personal memo Ex.PW1/D. Thereafter, he recorded the statement of the cited witnesses, prepared the charge-sheet and filed before the Hon'ble Court after placing the DAD notification Mark O with the charge-sheet. Accused was correctly identified by the witness. The witness was duly cross-examined by Ld. LAC for the accused.
9. PW6 Retd. ACP Rajender Prasad deposed that on 18.01.2004, he was posted as SHO at PS Sarai Rohilla. On this date at about 03.00-03.30 PM, he was on patrolling duty alongwith SI Bijender Singh, HC Jasbeer Singh, HC Bharat Singh, Ct. Veerpal, Ct. Ismail and Ct. Arvind at Tapakna Pool near Road No. 37. The secret informer gave him an information that three young boys sitting waiting for their friends or to commit crime, at elevated platform (chabutara) in 56 Bigha Park are having illicit arms in their possession. He briefed his above said staff about the information. He asked 8-10 passers-by to join the investigation. Due to lack of time, no written notice could be served upon them. Thereafter, having formed the raiding party with above said staff alongwith him, he proceeded to the spot through the way of ganda nala. When they reached the spot at about 03:50 PM, they found that there at sitting accused person started running in different directions on seeing us. One of the accused person whose name was later on disclosed as Babu Khan was running in South Direction, HC Jasbir and Ct. Arvind after running for 20-25 steps managed to control him. Accused Babu Khan was FIR no. 41/2004 State Vs. Babu Khan Page no. 6 of 14 correctly identified by the witness. On cursory search of the accused Babu Khan by Ct. Arvind and HC Jasbir, they found a knife from the right pocket of the pants of the accused. They produced the accused and knife before him. Thereafter, he asked HC Jasbeer to take appropriate legal action against the said accused i.e. Babu Khan and thereafter, he proceeded for his another patrolling duty. He can identify the case property i.e. the knife after looking it. The case property already exhibited as Ex. P1. The witness was duly cross- examined by Ld. LAC for the accused.
10. After conclusion of prosecution evidence, statement of accused Babu Khan @ Sakeel @ Aman S/o Abdul Karim Khan u/s 313 Cr.P.C /w 281 Cr.P.C was recorded by the court on 16.12.2022. Accused claimed his innocence and took the plea that he was forcibly taken by the police from his house and falsely implicated in the present case.
11. Accused did not lead any defence evidence. Thereafter, arguments of both parties were heard. It is argued by LAC for accused that the accused has been falsely implicated in the present matter and he is entitled to be acquitted as no independent witness has been examined by the prosecution. Hence, it is prayed that the accused be acquitted. On the other hand, Ld. APP for the State has argued that the testimonies of the all the prosecution witnesses are corroborative of each other and guilt of the accused stands proved beyond reasonable doubt. Hence, it is prayed that the accused be convicted for the offences charged.
12. I have considered the material facts and circumstances of the case. Record has been perused.
FIR no. 41/2004 State Vs. Babu Khan Page no. 7 of 14
13. First of all, it is necessary to deal with the question of non-joining of independent witness during investigation. In this regard, the position of law is clear, laid down by superior courts from time to time. In State of Punjab v. Balbir Singh, AIR 1994 SC 1872, the Hon'ble Supreme Court 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)
14. Given the facts and circumstances of the present case, it is observed that there was no lack of time and opportunity to get associated independent witnesses at the time of the search to strictly comply with the provisions of Code of Criminal Procedure. Merely mentioning that public FIR no. 41/2004 State Vs. Babu Khan Page no. 8 of 14 persons were requested to join the investigation does not serve any purpose so as to lend any sort of credence to the case of the prosecution. Name of any such persons asked have no-where been mentioned either. It is also not mentioned as to what action was taken, if any, against those persons who refused to join the investigation. In view of the same, the above-mentioned circumstances as to the arrest of the accused from the place of the incident in question, as alleged, becomes doubtful.
15. As per the version of prosecution, there are four witnesses i.e. PW- 1, PW-2, PW-5 and PW-6 to the fact of recovery. They have deposed in their testimonies that on 18.01.2004, they were on patrolling duty in the area of Police station, however no document / DD entry have been shown by which it can be proved that they were on patrolling duty in the concerned area.
16. For knowing the importance of the DD entry of arrival and departure of the police officials from the police station, I have perused Chapter 22 Rule 49 of Punjab Police Rules, 1934 which reads as under:
"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 all 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.
FIR no. 41/2004 State Vs. Babu Khan Page no. 9 of 14
17. In the present case, the above said provision appears to have not been complied with by the police officials. As per the prosecution version, at the time of the apprehension of the accused with the buttondar knife, recovery witnesses were on patrolling duty at the relevant time, but the DD entry vide which they had left the PS for patrolling duty has not been brought on record. The number of the said DD entry made in Register No. II has not even been brought on judicial record. In my opinion prosecution was under an obligation to prove on record, the above said DD entry vide which above said police official had left the PS for patrolling duty, so as to prove the possibility of availability of prosecution witnesses at the place of apprehension of the accused. The production of such DD entry would have fortified the case of the prosecution. In the facts and circumstances of the case, the prosecution ought to have proved the DD entry by which the above said police officials had left the PS so as to inspire the confidence regarding their availability / presence at the place of apprehension of the accused.
18. At this juncture, it would be relevant to refer to a case law reported as Rattan Lal versus State 1987 (2) Crimes 29 the Hon'ble Delhi High Court 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 reservation. The matter has to be viewed with suspicion if the provisions of law are not 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 entry creates a reasonable doubt in the prosecution version and attributes oblique motive on the part of the prosecution.'' FIR no. 41/2004 State Vs. Babu Khan Page no. 10 of 14
19. Further, it is also seen that the seal, used for seizure of the weapon in question also was not handed over to any independent person, seal after use was handed over to ASI Arvind by the IO. It is ostensibly clear therefore that no efforts were made to hand over the same, after use, to any independent person. The importance of the seal not being handed over to some independent person in such cases has been laid down by Hon'ble Delhi High Court in Safiullah v. State 1993 (1) RCR (Criminal) 622. It has been held therein that:-
"10. 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."
20. Having noted the legal position as aforesaid with regards the crucial nature of the task of the seal being handed over to any independent person, in the present case it is seen that the case property was lying in the Maalkhana of the same police station, where police officials having the possession of seal were posted. As such therefore, there were ample opportunities for tampering with the case property. If that be so, the inherent veracity of the claims as put forth by the state gets clouded, with the benefit of doubt enuring to the advantage of the accused.
21. Besides, one more puzzling fact is noted in the present case that puts into doubt the version of the prosecution even more. It is observed that FIR no. 41/2004 State Vs. Babu Khan Page no. 11 of 14 the sketch memo and seizure memo of the knife Ex. PW1/A and Ex. PW1/B respectively, both, bear the number of the FIR in question. Whereas, as per the rukka and testimony of witnesses, the sketch memo of the knife and its seizure memo, both, were prepared prior to the registration of FIR. If that be so, then it has not been explained by any of the witnesses as to how Ex. PW- 1/A and Ex. PW1/B, both, bear the FIR number. This can give rise to two inferences only, that either the FIR was recorded prior to the alleged recovery of the case property, or, number of the said FIR was inserted upon the documents subsequent to their execution/registration. Either which way, it raises grave doubt about the veracity of claims made by the prosecution. There lies basic set of contradictions about the recovery of the case property in the manner alleged by them. In such circumstances, the benefit of doubt must necessarily go to the accused.
22. Finally, another important circumstance of the case which shakes the case of prosecution is that qua the recovery of the weapon in question from the accused is that none of the recovery witnesses offered their own personal search prior to taking the search of accused as the recovery is claimed to be a planted one. The police officials should have offered their personal search first to some independent witness. However, no such precaution is seen to have been taken at the time by them. That again, creates doubt as to false planting of the case property upon the person of the accused and it indeed cannot be ruled out.
23. All in all therefore, as has been discussed above, it is seen that the prosecution has failed to prove the guilt of the accused beyond reasonable FIR no. 41/2004 State Vs. Babu Khan Page no. 12 of 14 doubt. It has failed to dispel the liveried nature of doubts that have arisen during the cross examination of the witnesses as to the manner and circumstances under which the recovery, as alleged, has been shown from the accused.
24. Therefore, this court does not find accused Babu Khan @ Sakeel @ Aman S/o Abdul Karim Khan guilty of offence U/s 25/54/59 Arms Act and he is accordingly acquitted U/s 25/54/59 Arms Act.
25. Furthermore, accused was also charged with the offence u/s 174A IPC, as he was declared proclaimed offender vide order dated 12.12.2019 during investigation.
26. The accused lead no evidence whatsoever on record to disprove the case of the Prosecution that he failed to appear before the court on the specified time. It is found that statement of process server of process u/s 82 Cr.P.C against the accused Babu Khan S/o Abdul Khan was recorded vide order dt. 12.12.2019 and consequently the present accused was declared proclaimed offender vide order on same day. It is clear that the accused failed to appear before the court after issuance of process under Section 82 Cr.PC against him and thereby committed offence punishable under Section 174A IPC and is accordingly convicted for the said offence.
27. To summarize, Accused Babu Khan S/o Abdul Khan stands acquitted of charges U/s 25/54/59 Arms Act; however he is found guilty of offence U/s 174-A IPC and accordingly stands convicted.
FIR no. 41/2004 State Vs. Babu Khan Page no. 13 of 14
28. Let the accused Babu Khan S/o Abdul Khan be heard on the point of sentence with respect to offence U/s 174 A IPC.
File be consigned to record room.
NEHA Digitally signed
by NEHA MITTAL
MITTAL Date: 2022.12.23
11:56:38 +0530
PRONOUNCED IN THE OPEN COURT (NEHA MITTAL)
TODAY ON 23th DECEMBER 2022 MM-04 (CENTRAL),
DELHI
FIR no. 41/2004 State Vs. Babu Khan Page no. 14 of 14