Delhi District Court
State vs . Shahid on 22 August, 2014
IN THE COURT OF Ms. SHEETAL CHAUDHARY: METROPOLITAN
MAGISTRATE10 (SOUTHEAST), SAKET COURTS:NEW DELHI
State Vs. Shahid
FIR No. 130/2008
U/s 25/54/59 Arms Act
P.S. Jamia Nagar
J U D G M E N T
Serial No. of the Case :
Unique Identification No. : 02406R0483592009
Date of Institution : 03.08.2009
Date on which case reserved for
judgment : 21.07.2014
Date of judgment : 22.08.2014
Name of the complainant : ASI B. D. Khan
Date of the commission of offence : 31.05.2008
FIR No.130/2008
P.S. Jamia Nagar Page No.1 of 18
Name of accused : Shahid
s/o Shri Meharul Kadar Khan
r/o K145, Abul Fazal
Enclave, Jamia Nagar, New
Delhi
Offence complained of : U/s 25 Arms Act
Offence charged of : U/s 25 Arms Act
Plea of the accused : Pleaded not guilty.
Final order : Acquitted
Date of Institution : 03.08.2009
Date on which case reserved
for judgment : 21.07.2014
Date of judgment : 22.08.2014
BRIEF STATEMENT OF REASONS FOR
THE DECISION OF THE CASE
BRIEF FACTS:
The accused Shahid has been sent up for trial by the Police of P.S. Jamia Nagar for an alleged offence under Section 25 of Arms Act. The FIR No.130/2008 P.S. Jamia Nagar Page No.2 of 18 brief facts of the prosecution case are that on 31.05.2008 at about 12:05PM at K145, Abul Fazal Encalce, Jamia Nagar, New Delhi, within the jurisdiction of Police Station Jamia Nagar, the accused was found in possession of a two country made pistol along with three cartridges in contravention of notification issued by Delhi Administration and thereby committed an offence punishable U/s 25 Arms Act.
2. The report U/s 173 Cr. PC was filed on 03.08.2009. Cognizance of the offence was taken. Compliance of Section 207 Cr. PC was done.
3. Charge for the offence U/s 25 Arms Act against the accused was framed on 09.04.2010.
PROSECUTION EVIDENCE :
4. The prosecution to prove its case examined six (6) PWs in all.
PW1 Ct. Sanjeev Kumar deposed that on on 31.05.2008 he was posted at P.S. Jamia Nagar and on that day upon receiving DD No.19B he along with ASI B. D. Khan reached at K145, Abul Fazal Enclave, Jamia Nagar he met one Mohd. Rayees who told him that his younger brother FIR No.130/2008 P.S. Jamia Nagar Page No.3 of 18 Shahid who was also residing at the said address and alleged that the accused is in possession of one weapon. The accused was present outside his house and on seeing PW1 & PW6 in uniform, he tried to run away at fast steps, thereafter ASI B. D. Khan asked him to stop but he continued to run fast but was chased and apprehended. Meanwhile one public person also reached the spot and two countrymade revolver were recovered from both sides of his pants during his formal search alongwith three live cartridges which were also recovered from the right side pocket of his pant. Thereafter, sketch of the said revolver and three cartridges were prepared vide memo Ex.PW1/B, Ex.PW1/B & Ex.PW1/C. The total length of revolver was 10.1 cm of another revolver was 10.11 cm. Both the revolvers were made of iron and there was a spring located on the same with the help of which the revolvers were closed and opened. There was 8mm AF printed on the bottom of the said cartridges and thereafter the case property was seized in the pullanda with seal of BDK and the case property was Ex.P1 to Ex.P5. The statement of PW1 was Ex.PW1/D and accused was arrested vide Ex.PW1/E and his personal search memo was Ex.PW1/F. During crossexamination, PW1 stated that he has received the DD No.19B at around 09:45AM and he had not recorded any separate entry for departure but the same was recorded in the DD entry. He further FIR No.130/2008 P.S. Jamia Nagar Page No.4 of 18 stated that he left the police station at around 09:48AM and when he reached the spot he met the accused and the complainant and some other persons also. Further the place of incident was residential area and no public person was interrogated at that time because the complainant himself was present at the spot and his statement was recorded. Complainant was found outside his house No.K145, Abul Fazal Enclave, Part1 Okhla and accused was standing on the road and the time he saw the police official, he started moving towards Pushta. Thereafter the accused was stopped by ASI B. D. Khan and was chased and apprehended by ASI B.D. Khan. Thereafter the IO had prepared the site plan, sketch of revolver, cartridges, arrest memo, personal search memo and statement of witness was also recorded by the IO and also that one public witness Muzamil Khan signed on the arrest memo and personal search memo. He has further stated that he does not remember, if all documents signed by PW1. Information regarding the arrest of accused was given to family member of the accused by the name of the person to whom the information was given, he did not remember and also the exact time of arrest and thereafter PW1 was confronted with the arrest memo which did not there the signature of witnesses. He has further stated that they left the spot at about 11:4012:00PM and as per PW1 IO had interrogated other public person apart from Muzamil Khan. FIR No.130/2008 P.S. Jamia Nagar Page No.5 of 18
PW2 Rayees Ahmed deposed that on 31.05.2008 accused Shahid had threatened to kill him and thereafter police came to his residence and on seeing the police the accused tried to run but police apprehended the accused and upon searching the accused, two countrymade pistols and three live cartridges were recovered from pocket of his wearing pants respectively. Thereafter PW2 has stated about the dimension of the pistols and that the same were duly sealed with seal of DDK and the seizure memo Ex.PW1/D was prepared in his presence and the site plan Ex.PW2/A was also prepared. PW2 also singed on the arrest memo as well as personal search memos Ex.PW1/E & Ex.PW1/F. Thereafter PW2 has identified the case property of the present matter.
During crossexamination on 22.11.2011, PW2 stated that they are five brothers and accused is younger brother of PW2 and that father of PW2 and also the accused expired on 25.12.2008 and again stated 25.05.2008. He further stated that accused came to Delhi after 78 days from the native village where father of PW2 had expired and only thereafter he informed the police regarding threats made by the accused to PW2. However, PW2 was confronted on this aspect as the same was not mentioned in his statement U/s 161 Cr.P.C. He has further deposed that the police reached the spot between 10:0010:30AM and he called the police at FIR No.130/2008 P.S. Jamia Nagar Page No.6 of 18 around 09:0009:30AM and also that the accused was present in front of his room when he called the police and has admitted that the accused could hear while he was making the call and also his wife and children were also present at that time. He further stated that time between his making of call and arrival of police, accused had gone outside the house.
During his crossexamination on 01.09.2012, PW2 had stated that he did not remember the time of calling of the police. However, the police officers reached the spot at about 10:30AM and when the police have arrived at his house, he was standing in front of his house and that is when two police official came on a motorcycle and he pointed out towards the accused who was at some distance and upon doing that the accused started running. He further stated that it was possible that when he told the police official regarding the accused, the accused must have heard the noise and therefore, the accused tried to run away and he was chased by the police official on motorcycle. Thereafter accused was apprehended at some distance but he could not tell the exact distance and place but as per PW2, the accused was running towards Yamuna and also there were many shops near his house. He further stated that accused was apprehended in front of somebody's house but he could not tell the name of its owner and that the police officers did not ask the owner of that house to join the investigation. FIR No.130/2008 P.S. Jamia Nagar Page No.7 of 18 He further stated that he had not signed any document prepared by the police officials at the spot and all the documents were prepared by IO at the police station and only thereafter he had signed on all the papers at the police station and police officials had left the spot at about 10:45AM. PW2 has further stated that there is dispute regarding the property among all the five brother regarding the house in which all brothers are residing. He has further stated that he never went to the police station and police officer did not meet him regarding the present matter after the date of incident and that he had signed only two papers in the police station and no other documents were signed by him. He further stated that he is educated till 8 th class and he had not read the contents of any document which he signed in the police station and which have been signed at the instance of police officials. Further the papers which he signed in the police station were partly blank and only some portion was written and he left the police station at about 03:30PM. He also stated that he did not remember as to how many statement were recorded by the police station.
PW3 Shri Muzamil Khan deposed that he did not remember the date of incident. On that day, he was going to fetch water on thokar no.5 and when he reached near the house of accused Shahid, he saw that some crowd had gathered and he also stopped for inquiry as to why the public FIR No.130/2008 P.S. Jamia Nagar Page No.8 of 18 persons were gathered. Thereafter he along with Rayees and Wasim went to police station Jamia Nagar where SHO inquired his name and address and directed him to sit outside and thereafter he left the police station for his residence and also that he did not know anything about the case.
During crossexamination by Learned APP, PW3 was declared hostile.
During crossexamination by Ld. Counsel for accused, PW3 stated that he had only signed on paper at the police station and he had not read over the documents and the same document was not read over to him by the SHO regarding the contents of the document which he had signed and also that he had not signed any paper at the house of Shahid. He further stated that the police never called him for recording his statement and had not recorded his statement during investigation.
PW4 Ct. Narender deposed that on 31.05.2008 he was posted at P.S. Jamia Nagar as DD writer. On that day, after receiving information from S69, Operator at about 09:40AM that at house NO. K145 of Abul, at Thokar NO.5, Jamia Nagar, brother of Abul had threatened for killing and he recorded the said information vide DD No.19B and the same was Ex.PW4/A. Thereafter he handed over DD No.19B to ASI B. D. Khan along with Ct. Kailash Chand for taking action.
FIR No.130/2008 P.S. Jamia Nagar Page No.9 of 18
During crossexamination by Ld. Counsel for accused, PW4 stated on the original register there was cutting in the name of Ct. Kailash.
PW5 retired ASI Hasan Mohammad deposed that on 31.05.2008 he was posted at P.S. Jamia Nagar as ASI and on that day day after registration of FIR the present matter was marked to him for investigation. Thereafter he along with Ct. Sanjeev reached at the spot and handed over to him a copy of FIR and original rukka and that he met ASI B. D. Khan at the spot. ASI B. D. Khan had handed over the accused to him and also was given a sealed pullanda and seizure memo of the sealed pullanda. Thereafter PW5 arrested the accused and conducted his personal search vide memo Ex.PW1/E and Ex.PW1/F. Thereafter PW5 had prepared the site plan at the instance of the complainant and the same was Ex.PW2/A. He further deposed that he recorded the statements of witnesses and deposited the sealed pullanda with the MHC(M). He further stated that he sent the accused for medical examination and after medical examination, accused was sent to lockup.
During crossexamination by Ld. Counsel for accused, PW5 stated that the present case was marked for investigation to him at about 01:00PM and that the departure entry regarding the same was mentioned in the FIR. He has stated that when he reached the spot, ASI B. D. Khan, FIR No.130/2008 P.S. Jamia Nagar Page No.10 of 18 complainant Rahees, Muzamil and accused Shahid were present and no other public person was present at the spot and also that he had made the handing over memo of the document and the pullandas which were handed over to him by ASI B. D. Khan. Thereafter PW5 was confronted with the same by Counsel for accused becuase he did not show any such memo on record he again said that he had not prepared any handing over memo. He further stated, he had recorded the statement of witness at about 01:30 PM and had interrogated the accused and thereafter prepared the arrest memo and had sent the accused for medical examination and for dozzier but he did not remember the exact time of preparing the memo. Further he stated that he left the spot about 03:00PM and did not prepare any other document apart from the documents mentioned above. As per him, thereafter accused was sent to JC and he had only made an application to FSL for the report regarding sealed pullanda and had not conducted any other investigation of the present case.
PW6 IO SI B. D. Khan deposed that on 31.05.2008 he was posted at P.S. Jamia Nagar and on that day upon receiving DD NO. 19B, he along with Ct. Sanjeev reached at K145, Abul Fazal Enclave, Jamia Nagar and met complainant Rahees who informed him that his brother namely Shahid i.e. the accused in the present matter, has threatened him to kill by FIR No.130/2008 P.S. Jamia Nagar Page No.11 of 18 showing katta. In the meanwhile, accused Shahid, who also came at the spot and after seeing the IO in the police dress tried to flee from the spot but PW6 with the help of Ct. Sanjeev apprehended him. Menawhle, Muzamil also reached at the spot and PW6 conducted casual search of accused during which two kattas from both sides of wearing pants/pockets were recovered along with three live cartridges, thereafter he prepared sketch memo of both the kattas Ex.PW1/B and Ex.PW1/C and the sketch memo is Ex.PW1/C. Thereafter they were sealed in a white pullanda with seal of BD and after that the seal was handed over by PW6 to Ct. Sanjeev Kumar. Thereafter, the seizure memo was prepared vide memo Ex.PW1/D and thereafter PW6 prepared the rukka and handed over the same to Ct. Sanjeev Kumar for registration of FIR and rukka was Ex.PW6/A. After registration of FIR, the present case was marked to ASI Mohd. Hassan and thereafter PW6 handed over the sealed pullanda along with all the seizure memos to ASI Mohd. Hassan. Thereafter, ASI Mohd. Hassan prepared the site plan which was Ex.PW2/A and also recorded the statement of PW6.
During crossexamination by Ld. Counsel for accused, PW6 stated, he had received DD No.19B at about 09:42AM and reached the spot at about 10:00AM. After reaching the spot, he met the complainant and other public witnesses and at that time complainant was present at his house and FIR No.130/2008 P.S. Jamia Nagar Page No.12 of 18 during his conversation with the complainant the accused came out side the house and upon seeing PW6 he tried to flee towards Gali No.5 from the spot and after the complainant pointed out towards the accused he was apprehended by PW6 with the help of constable. Public persons were also present. PW6 had not offered himself for personal search to any public person before searching the accused and had not obtained any finger print from the katta and all the documents were prepared by PW6 at the spot. He has further stated that ASI Mohd. Hassan reached the spot at around 01:00PM and submitted that firstly PW6 had prepared the seizure memo then the sketch memo of katta & cartridges and then prepared the rukka, hereafter handed over the same to Ct. Sanjeev. Further he stated that he had left the spot at 01:1501:30PM and Ct. Sanjeev remained at the spot and also that the statement of PW6 was recorded by ASI Mohd. Hassan at about 01:25PM.
During trial the accused had admitted the genuineness of FSL report, DD entry No.19A and the Sanction U/s 39 Arms Act by ACP and FIR No.130/2008 and the same were Ex.A1 to Ex.A4 and accordingly the witness No.4, 6, 7, 8 & 12 were dropped from the array of witnesses.
Vide order dated 25.09.2013, PE was closed.
FIR No.130/2008 P.S. Jamia Nagar Page No.13 of 18 STATEMENT OF ACCUSED :
5. On 07.10.2013 statement of accused U/s 313 Cr. PC was recorded.
DEFENCE EVIDENCE :
6. No defence evidence has been led by the accused.
ARGUMENTS :
7. Arguments were advanced by the Ld. APP for the State and the accused.
Ld. APP for the State has argued that two kattas and three live cartridges were recovered from the possession of the accused vide Ex.PW1/D, in contravention of the notification issued by Delhi Administration and therefore he is liable to be punished for offence under section 25 of the Arms Act.
FIR No.130/2008 P.S. Jamia Nagar Page No.14 of 18
It was submitted by Ld. Counsel for the accused that the accused has been falsely implicated. Ld. Counsel for accused has argued that the accused had a family dispute regarding property with the complainant who is the real brother of the accused and since they were living in the same premises after demise of the father of the accused and the complainant had some quarrels with accused and just to take revenge from the accused, he has been falsely implicated in the present matter. He further stated that nothing was recovered from the possession of the accused, it is evident from the fact that the eye witness i.e. also the complainant in his crossexamination has clearly admitted that there was some dispute regarding the property in which the accused and the complainant were residing. Further, there are various contradictions in the statements of prosecution witnesses. Ld. Counsel further argued that another public witness PW3 Muzamil Khan has been declared hostile by the prosecution and has not supported the version of the prosecution. He further argued that PW4 who had written the DD No. 19B has admitted that there has been a cutting in the name of Ct. Kailash and that was for the reason that Ct. Kailash did not join the investigation along with IO SI B. D. Khan.
FIR No.130/2008 P.S. Jamia Nagar Page No.15 of 18 REASONING :
8. After hearing both the sides at length and after perusal of record and the evidence on record, it is evident to mention that in the present matter the complainant is the real younger brother of the accused and was residing in the same address as that of the complainant. In the present matter, prosecution has examined PW2 and PW3 as public witnesses among which PW3 has not supported the case of the prosecution and has deposed in his examinationinchief that he did not remember anything about the present matter and that he reached the spot only because the public had gathered and had signed the documents only at the instance of police officials and did not read the same before signing. PW2 Rahees Ahmed has deposed that he had informed the police regarding the threatening made by the accused however, the same fact was not mentioned in his statement and same was confronted. Also in his crossexamination of PW2, he has stated that no document was prepared by police official at the spot and in fact, he has signed all the documents in the police station and further he had signed only two papers and also that the same was signed by him at the instance of police officials and he did not read the contents before signing them. He has also stated that he left the police station at about 03:00PM that is when PW5 FIR No.130/2008 P.S. Jamia Nagar Page No.16 of 18 & PW6 the IO of the present matter has stated that they remained at the spot till 03:00PM which is contradictory in itself.
9. In the above mentioned facts and circumstances, there are material contradictions in the statements of the prosecution witnesses, a doubt is created regarding the recovery of case property from the possession of the accused and also on the prosecution story and therefore, considering the facts that there were various public witnesses at the spot, IO did not examine or asked any public witness to join investigation in the present matter.
10. 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 guilt of the accused the accused is entitled to benefit of doubt resulting in acquittal of the accused. Reference may also be made to the judgment titled as Nallapati Sivaiah v. Sub Divisional Officer, Guntur reported as VIII (2007) SLT 454 (SC).
11. For the forgoing reasons, I hold that the prosecution has failed FIR No.130/2008 P.S. Jamia Nagar Page No.17 of 18 to prove its case against the accused beyond reasonable doubt. Benefit of doubt is given to the accused. The accused is accordingly acquitted of the offence punishable U/s 25 Arms Act.
12. Case property be confiscated to the State.
13. File be consigned to Record Room after due compliance.
Pronounced in open court (SHEETAL CHAUDHARY)
on 22.08.2014 MM10 (SouthEast): Saket Courts:
New Delhi:22.08.2014
FIR No.130/2008
P.S. Jamia Nagar Page No.18 of 18