Delhi District Court
Fir No. 81/2012, Ps : Sarita Vihar State vs . Aslam @ Pradhan on 22 March, 2023
FIR No. 81/2012, PS : Sarita Vihar State Vs. Aslam @ Pradhan
IN THE COURT OF MS. SHIVANI CHAUHAN
CHIEF METROPOLITAN MAGISTRATE,
SOUTH-EAST DISTRICT, SAKET COURTS,
NEW DELHI.
IN THE MATTER OF :
CNR number. DLSE02-000596-2013
Cr. Cases Registration number. 614080/2016
FIR No. 81/2012
Police Station : Sarita Vihar
State Vs. Aslam @ Pradhan
U/s: 471 IPC, 25 Arms Act & 103 DP Act.
Date of Institution : 23.02.2013
Date of reserving the judgment : Not reserved
Date of pronouncement of judgment : 22.03.2023
JUDGMENT
1. Serial No. of the case : 614080/2016
2. Name of the Complainant : SI Ajay
Kumar Yadav.
3. Date of commission of offence :11.03.2012.
4. Name of accused person :
Aslam @ Pradhan S/o Jamil, R/o
Village Jasora, PS Mundali, District
Meerut, Uttar Pradesh, Aged about 37
years.
5. Offences charged : S. 25 Arms Act.
Section 103 DP
Act.
Section 471 IPC.
Page No. 1 of 33
FIR No. 81/2012, PS : Sarita Vihar State Vs. Aslam @ Pradhan
6. Plea of accused : Not guilty
7. Final Order : Acquitted.
JUDGMENT
In the present case, the accused has been facing the trial for the offence punishable under Section 417 IPC, 25 Arms Act & 103 DP Act.
Brief facts of the case are:
1. That on 11.03.2012, one secret informer gave information to Sub-Inspector Ajay Kumar Yadav that one person named Aslam @ Pradhan who was involved in criminal activities and wanted in Delhi and Uttar Pradesh would be coming from the side of Aali Village in a stolen Indigo car bearing registration number UP 16 AD 1060. The secret informer also informed that the accused might also be carrying illegal weapon with him. The said secret information was shared with Inspector / AATS and secret informer was also produced before him and he directed to constitute a raiding team. Upon said directions, Sub-Inspector Ajay Kumar Yadav shared the secret information with Head Page No. 2 of 33 FIR No. 81/2012, PS : Sarita Vihar State Vs. Aslam @ Pradhan Constable Parveer, Head Constable Yashveer, Constable Vipin and Constable Pravesh Kuldeep Singh and constituted a raiding team including them. Thereafter, Sub-Inspector Ajay Kumar along with Constable Vipin, Constable Pravesh and secret informer headed for the spot in civil uniform along with their licensed police pistol and in a private vehicle. At around 06:15 pm, they reached at the spot i.e. Aali Village, Mathura Road near metro pillar no. 323 and asked some public persons to join the proceedings. However, they did not join the proceedings stating their personal difficulty and left the spot without disclosing their identity. Thereafter, raiding party took its position so that they can stop the car coming from the side of Aali Village. After some time at around 06:45 am, one silver colour Indigo car bearing registration number UP 16 AD 1060 was seen coming from Aali Village, thereafter, secret informer pointed towards the said car and informed that the said car was a stolen car and accused Aslam @ Pradhan is driving the same. The car came near the spot and halted at the red light. Upon the signal of Sub-Inspector Ajay Kumar Yadav, raiding party attempted to apprehend the Page No. 3 of 33 FIR No. 81/2012, PS : Sarita Vihar State Vs. Aslam @ Pradhan accused. Accused was apprehended after surrounding the car.
Thereafter, upon inquiry, accused disclosed his name as Aslam @ Pradhan S/o Jameel, R/o Village Jasora, PS Mundali, Meerut, Uttar Pradesh and aged about 28 years. Sub-Inspector Ajay Kumar Yadav conducted cursory search of the accused and during the said search, one loaded country made pistol was recovered from the left side dubb of his wearing trousers and three live cartridges were recovered from the right side pocket of his wearing trousers. Thereafter, sketch of the said country made pistol and four live cartridges was prepared and they were measured. They were then put in a transparent box and the box was covered with white cloth and pullanda was prepared. Pullanda was then sealed with the seal of 'AKY'. FSL form was then prepared at the spot. Seal was handed over to Constable Pravesh after its use. Upon inquiring regarding the said car, accused could not give any satisfactory answer and informed that he purchased it for a sum of Rs.70,000/- Accused was informed about the commission of offence u/s 25/54/59 Arms Act. Thereafter, Sub-Inspector Ajay Kumar Yadav prepared rukka at Page No. 4 of 33 FIR No. 81/2012, PS : Sarita Vihar State Vs. Aslam @ Pradhan the spot and handed over the said rukka to Constable Pravesh to get the FIR registered at the Police Station Sarita Vihar. Investigation of the case was marked to Sub-Inspector Ahtesham Abbas. After completion of investigation the chargesheet was filed in the Court.
2. Cognizance was taken by the Ld Predecessor Court. After compliance of the provisions of Section 207 Cr.P.C, charge for the offence punishable under Section 471 IPC, 25/54/59 Arms Act and 103 DP Act was framed. The accused pleaded not guilty and claimed trial. Matter was then listed for Prosecution Evidence.
3. Vide his statement U/s 294 Cr.P.C, accused admitted Copy of FIR, Endorsement on rukka, the genuineness of Ballistic examination report, Sanction u/s 39 Arms Act, Motor vehicle verification report and certificate u/s 65B of Indian Evidence Act vide Ex.A-1, Ex.A-2, Ex.A-3, Ex.A-4, Ex.A-5 and Ex.A-6 respectively. Consequently witnesses at Serial Numbers 11, 12, 14 and Head Constable Juginder Singh were dropped from list of Page No. 5 of 33 FIR No. 81/2012, PS : Sarita Vihar State Vs. Aslam @ Pradhan prosecution witnesses. In addition thereto, the prosecution examined nine witnesses in support of its case.
4. Head Constable Parveer Singh was examined as PW1. He deposed that on 11.03.2012, he was posted as Head Constable at AATS, South East District. On that day, secret information was received regarding a criminal from Uttar Pradesh and further informed that he might also be carrying illegal weapon with him. Secret informer further stated that accused would be using a stolen car. Thereafter, one raiding party was formed by SI Ajay Yadav which included Head Constable Yashvir, Constable Pravesh, Constable Vipin and himself. Thereafter, at about 06:15 pm, they reached Aali red light, Mathura Road. After reaching at the spot, Sub-Inspector Ajay asked four-five public persons to join the raiding party. However, they refused and left without disclosing their names and personal detail. Sub-Inspector Ajay briefed them and they took their positions. Sub-Inspector Ajay took position with the secret informer. At about 06:45 pm, one Indigo car silver in colour bearing registration no. UP 16 AD 1060 was seen coming Page No. 6 of 33 FIR No. 81/2012, PS : Sarita Vihar State Vs. Aslam @ Pradhan from the side of Aali Village and due to traffic jam, it stopped before red light. Sub-Inspector Ajay Kumar Yadav signaled the raiding team and they surrounded the vehicle. Accused Aslam @ Pradhan was taken out of the said car and he was apprehended. Sub-Inspector Ajay then conducted casual search of the accused and recovered one country made pistol from left side dubb of his wearing trousers and three live cartridges from the right pocket of wearing trousers. Sub-Inspector Ajay checked the country made pistol and found it loaded. He then prepared sketch of the said country made pistol and recovered live cartridges vide Ex.PW1/A and Ex.PW1/B. IO / Sub-Inspector Ajay then measured the pistol and cartridges. Thereafter, IO prepared pullanda after putting the country made pistol in a white cloth and sealed the same with the seal of 'AKY'. He then put all the cartridges in a small box and put the box in a white cloth and sealed the same with the seal of 'AKY'. Thereafter, IO prepared FSL form. IO then prepared seizure memo Ex.PW1/C and then prepared the rukka and then handed over the rukka to Constable Parvesh for getting the FIR registered at Police Station Sarita Page No. 7 of 33 FIR No. 81/2012, PS : Sarita Vihar State Vs. Aslam @ Pradhan Vihar. Constable Parvesh then returned back to spot after getting FIR registered along with original rukka and copy of FIR. Sub- Inspector Ahtesham also came to the spot as the investigation of the case was marked to him. Sub-Inspector Ajay handed over the case property, custody of accused and all other documents to Sub-Inspector Ahtesham Abbas. Subsequently, IO / Sub- Inspector Ahtesham Abbas prepared site plan and recorded the statement of Sub-Inspector Ajay Yadav. Sub-Inspector prepared the seizure memo of Indigo car during the time Constable Pravesh got the FIR registered at the Police Station. Same is Ex.PW1/D. Constable Pravesh returned back when seizure memo Ex.PW1/D was prepared. Accused was arrested and his personal search was conducted vide memos Ex.PW1/E and Ex.PW1/G respectively. Disclosure statement of accused was also recorded vide memo Ex.PW1/F. As per the disclosure statement, further investigation was conducted to recover stolen motorcycles. The motorcycles were recovered and all the case properties were brought to PS Sarita Vihar and deposited in Malkhana. Thereafter, accused was brought to AATS, South-East Page No. 8 of 33 FIR No. 81/2012, PS : Sarita Vihar State Vs. Aslam @ Pradhan District. IO then recorded his statement. He identified the accused and the case property before the Court.
5. Sub-Inspector Ajay Kumar Yadav was examined as PW2. He was the initial Investigating Officer in the present case. He deposed that 11.03.2012, he was posted as Sub-Inspector at AATS, South-East District and on that day, he was in the AATS Office when secret informer came and informed that at about 06:30 pm, one criminal namely Aslam who was involved in many offences would come at crossing of Ali Village in Indigo car bearing registration No. UP 16 AD 1060 and would also be having illegal weapons in his possession. He shared the said information with Inspector AATS and produced the secret informer before him and he ordered to take immediate action in this regard. At about 05:45 pm, he made a DD entry and formed a raiding party including Head Constable Yashvir, Head Constable Praveen, Constable Vipin, Constable Pravesh and himself and he briefed them about secret information. Thereafter, all of them took their arms and ammunition and they along with secret informer left the place in civil dress in their private Page No. 9 of 33 FIR No. 81/2012, PS : Sarita Vihar State Vs. Aslam @ Pradhan vehicles. Thereafter, at about 06:15 pm, they reached near pillar no. 323, Ali Village crossing and he asked 4-5 public persons to join the proceedings, however, they refused to join the proceedings without disclosing their names and addresses. Without wasting any time, they started stopping vehicles which were coming from the side of Ali village. He took position with the secret informer and hid behind a wall. At about 06:45 pm, one silver colour Indigo car bearing No. UP 16 AD 1060 was seen coming from the side of Ali Village. Upon seeing the said car, secret informer pointed towards the said vehicle and told that Aslam was driving it. Due to red light signal and heavy traffic, the said vehicle stopped 10-20 meters before the red light. He along with staff members surrounded the car, overpowered the driver and brought him out of the car. Upon inquiry, accused disclosed his name as Aslam. He conducted his casual search and found one country made pistol from the left side dubb of his pants and three live cartridges from the right pocket of his pants. Upon checking the said pistol, it was found loaded. He then prepared sketch of the country made pistol and four live Page No. 10 of 33 FIR No. 81/2012, PS : Sarita Vihar State Vs. Aslam @ Pradhan cartridges which are Ex.PW1/A and Ex.PW1/B. Total length of the pistol was 24.5 cms, barrel was of 12.9 cms, butt was of 9 cms and was made of wood. The length of cartridges was 7.5 cms each and word 'KF' were mentioned on the back of the cartridges. The country made pistol was put in different plastic box and a pullanda was prepared using white cloth and sealed with the seal of 'AKY'. Similarly, four live cartridges were put in another plastic box and a pullanda was prepared using white cloth and it was also sealed with the seal of 'AKY'. Seizure memo was prepared Ex.PW1/C. FSL Form was also filled. He inquired about the car make Indigo from the accused. However, he could not give any satisfactory answer and further stated that he purchased the same from a person namely Salman for a sum of Rs.70,000/- and Salman also disclosed the fact that the said car was stolen. Thereafter, he seized the car u/s 102 Cr.P.C. vide memo Ex.PW1/D. He then prepared Tehrir Ex.PW2/A and handed over the same to Constable Parvesh for getting the FIR registered. He also handed over the seal to him after use. Thereafter, the case was marked to SI Ahtesham Abbas for Page No. 11 of 33 FIR No. 81/2012, PS : Sarita Vihar State Vs. Aslam @ Pradhan further investigation. He handed over all the documents, sealed case property and custody of accused to SI Ahtesham Abbas, who prepared the site plan at his instance and recorded his statement. He identified the accused and the case property before the Court.
6. Head Constable Yashvir Singh was examined by the prosecution as PW3. He deposed that on 11.03.2012, he was posted as Head Constable at AATS, South-East District and on that day, he was in AATS Office when secret informer came and informed one criminal namely Aslam who was involved in many offences would come at crossing of Ali Village in Indigo car bearing registration No. UP 16 AD 1060 and would also be having illegal weapons in his possession. Sub-Inspector Ajay shared the said information with Inspector AATS and produced the secret informer before him and he ordered to take immediate action in this regard. At about 05:45 pm, Sub-Inspector Ajay made a DD entry and formed a raiding party including Head Constable Praveen, Constable Vipin, Constable Pravesh, Sub- Inspector Ajay and himself and Sub-Inspector Ajay briefed them Page No. 12 of 33 FIR No. 81/2012, PS : Sarita Vihar State Vs. Aslam @ Pradhan about secret information. Thereafter, all of them took their arms and ammunition and they along with secret informer left the place in civil dress in their private vehicles. Thereafter, at about 06:15 pm, they reached near pillar no. 323, Ali Village crossing and he asked 4-5 public persons to join the proceedings, however, they refused to join the proceedings without disclosing their names and addresses. Without wasting any time Sub- Inspector Ajay again briefed them and took position behind a wall. At about 06:45 pm, one silver colour Indigo car bearing No. UP 16 AD 1060 was seen coming from the side of Ali Village. Upon seeing the said car, secret informer pointed towards the said vehicle and told that Aslam was driving it. Sub- Inspector Ajay gave them signal to stop the said vehicle. He along with staff members surrounded the car, over powered the driver and brought him out of the car. Upon inquiry, accused revealed his name as Aslam. IO then conducted his casual search and found one country made pistol from the left side dubb of his pants and three live cartridges from the right pocket of his pants. Upon checking the said pistol, it was found loaded. IO then Page No. 13 of 33 FIR No. 81/2012, PS : Sarita Vihar State Vs. Aslam @ Pradhan prepared sketch of the country made pistol and four live cartridges which are Ex.PW1/A and Ex.PW1/B. Total length of the pistol was 24.5 cms, barrel was of 12.9 cms, butt was of 9 cms and was made of wood. The length of cartridges was 7.5 cms each and word 'KF' were mentioned on the back of the cartridges. The country made pistol was put in different plastic box and a pullanda was prepared using white cloth and sealed with the seal of 'AKY'. Similarly, four live cartridges were put in another plastic box and a pullanda was prepared using white cloth and it was also sealed with the seal of 'AKY'. Seizure memo was prepared Ex.PW1/C. FSL Form was also filled. He inquired about the car make Indigo from the accused. However, he could not give any satisfactory answer and further stated that he purchased the same from a person namely Salman for a sum of Rs.70,000/- and Salman also disclosed the fact that the said car was stolen. Thereafter, IO seized the car u/s 102 Cr.P.C. vide memo Ex.PW1/D. IO then prepared tehrir Ex.PW2/A and handed over the same to Constable Parvesh for getting the FIR registered. IO also handed over the seal to him after use. Page No. 14 of 33 FIR No. 81/2012, PS : Sarita Vihar State Vs. Aslam @ Pradhan Thereafter, the case was marked to SI Ahtesham Abbas for further investigation. Constable Parvesh returned to spot at about 09:15 pm after getting the FIR registered. First IO handed over all the documents, sealed case property and custody of accused to SI Ahtesham Abbas. Second IO / Sub-Inspector Ahtesham Abbas prepared the site plan at the instance of first IO and recorded his statement. IO / Sub-Inspector Ahtesham Abbas arrested the accused and conducted his personal search vide memo Ex.PW1/E and Ex.PW1/F respectively. He identified the accused and the case property before the Court.
7. Constable Manjeet was examined as PW4. He took the seized weapon and the live cartridges to the FSL for purpose of examination. PW5 Sub-Inspector Anand Prakash collected the FSL result. PW6 Sub-Inspector Vikram Singh did not conduct any material investigation in the present case and had only filed the charge-sheet.
8. PW7 Assistant Sub-Inspector Vipin Kumar was a part of the raiding party. His deposition is identical to the deposition Page No. 15 of 33 FIR No. 81/2012, PS : Sarita Vihar State Vs. Aslam @ Pradhan of PW1, PW2 and PW3 and is not being repeated here for the sake of brevity. The only material point in his cross-examination is that the witness has deposed that IO did not record his statement at the spot. He had also not joined the investigation or visited the spot on any subsequent date.
9. PW8 Sub-Inspector Ahtesham Abbas is the Investigating Officer of the case. He had deposed that he received the intimation of the case at 09:10 pm. Subsequently, he went to the spot which is about 2-3 Kms from the police station and remained at the spot till 10:00 pm. Case property had already been seized prior to his arrival. The main point which has come on record during his cross-examination is that the witness has deposed the colour of the seized car to be White.
10. The examination in chief of PW9 Head Constable Pravesh is almost identical to the testimonies of PW1, PW2, PW3 and PW7. The main point which has come during his cross- examination is that the witness has deposed that the IO had recorded his statement along with the statement of Head Page No. 16 of 33 FIR No. 81/2012, PS : Sarita Vihar State Vs. Aslam @ Pradhan Constable Parveen and Constable Vipin at the spot itself.
11. On the submissions of Ld. APP for the State, PE was closed. The statement of the accused under Section 313 Cr.P.C. r/w Section 281 Cr.P.C. was recorded. The accused denied commission of the offence and has stated that he had been falsely implicated in the present case. Accused did not lead any independent evidence in his defence. Hence, the matter was listed for final arguments.
12. Ld. Additional PP for State has argued that the prosecution has proved its case beyond reasonable doubts and, therefore, the accused may be convicted. Whereas Ld Counsel for the accused, on the other hand, has argued that nothing was recovered from the possession of the accused at the time of his arrest and the weapon alongwith live cartridges had been planted upon the accused with intention to send him behind bars and to settle some personal score. He further argued that all prosecution witnesses were fellow police officials and they all are interested witnesses. No independent public person has been made witness Page No. 17 of 33 FIR No. 81/2012, PS : Sarita Vihar State Vs. Aslam @ Pradhan for proving the factum of recovery of weapon in question from accused despite spot in question being a public place. Hence, reasonable doubts have been raised on the case of the prosecution. It is prayed that the accused may be given benefit of reasonable doubts and he may be acquitted.
13. I have heard the submissions from both sides and carfully perused the material available on record. Section 471 in The Indian Penal Code:
Using as genuine a forged 1[document or electronic record].--Whoever fraudulently or dishonestly uses as genuine any 1[document or electronic record] which he knows or has reason to believe to be a forged [document or electronic record], shall be punished in the same manner as if he had forged such document or electronic record.
Section 103 in The Delhi Police Act, 1978:
Possession of property of which no satisfactory account can be given.- Whoever has in his possession or conveys in any manner, or offers for sale or pawn, anything which there is reason to believe is stolen property or property fraudulently obtained, shall, if he fails to account for such possession or act to the satisfaction of Page No. 18 of 33 FIR No. 81/2012, PS : Sarita Vihar State Vs. Aslam @ Pradhan the Metropolitan Magistrate, on conviction, be punished with imprisonment for a term which may extend to three months or with fine which may extend to one hundred rupees, or with both.
Section 25 in Arms Act:
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 immitation firearm into a firearm in contravention of section 6; or
(d) 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 shall not be less than three years but which may extend to seven years and shall also be liable to fine.
[(1A) Whoever acquires, has in his possession or carries any prohibited arms or prohibited ammunition in contravention of section 7 shall be punishable with imprisonment for a term which shall not be less than five years, but which may extend to ten years and shall also be liable to fine (1AA)Whoever manufactures, sells, Page No. 19 of 33 FIR No. 81/2012, PS : Sarita Vihar State Vs. Aslam @ Pradhan 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 prohibited arms or prohibited ammunition in contravention of section 7 shall be punishable with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life and shall also be liable to fine.] [(1AAA)] Whoever has in contravention of a notification issued under section 24A in his possession or in contravention of a notification issued under section 24B carries or otherwise has in his possession, any arms or ammunition shall be punishable with imprisonment for a term which shall not be less than 24 [three years, but which may extend to seven years] shall also be liable to fine.
(1B) Whoever--
(a) acquires, has in his possession or carries any firearm or ammunition in contravention of section 3; or
(b) acquires, has in his possession or carries in any place specified by notification under section 4 any arms of such class or description as has been specified in that notification in contravention of that section; or
(c) sells or transfers any firearm which does not bear the name of the maker, manufacturer's number or other identification mark stamped or otherwise shown thereon as required by sub-section Page No. 20 of 33 FIR No. 81/2012, PS : Sarita Vihar State Vs. Aslam @ Pradhan (2) of section 8 or does any act in contravention of sub-section (1) of that section; or
(d) being a person to whom sub-clause (ii) or sub-clause (iii) of clause (a) of sub-
section (1) of section 9 applies, acquires, has in his possession or carries any firearm or ammunition in contravention of that section; or
(e) sells or transfers, or converts, repairs, tests or proves any firearm or ammunition in contravention of clause (b) of sub-
section (1) of section 9; or
(f) brings into, or takes out of, India, any arms or ammunition in contravention of section 10; or
(g) transports any arms or ammunition in contravention of section 12; or
(h) fails to deposit arms or ammunition as required by sub-section (2) of section 3, or sub-section (1) of section 21; or
(i) being a manufacturer of, or dealer in, arms or ammunition, fails, on being required to do so by rules made under section 44, to maintain a record or account or to make therein all such entries as are required by such rules or intentionally makes a false entry therein or prevents or obstructs the inspection of such record or account or the making of copies of entries therefrom or prevents or obstructs the entry into any premises or other place where arms or ammunition are or is manufactured or kept or intentionally fails to exhibit or conceals such arms or Page No. 21 of 33 FIR No. 81/2012, PS : Sarita Vihar State Vs. Aslam @ Pradhan ammunition or refuses to point out where the same are or is manufactured or kept, shall be punishable with imprisonment for a term which shall not be less than 25 [one year] but which may extend to three years and shall also be liable to fine: Provided that the Court may for any adequate and special reasons to be recorded in the judgment impose a sentence of imprisonment for a term of less than 6[one year].
[(1C) Notwithstanding anything contained in sub-section (1B), whoever commits an offence punishable under that sub-section in any disturbed area shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine. Explanation.--For the purposes of this sub-section, "disturbed area" means any area declared to be a disturbed area under any enactment, for the time being in force, making provision for the suppression of disorder and restoration and maintenance of public order, and includes any areas specified by notification under section 24A or section 24B.] (2) Whoever being a person to whom sub-
clause (i) of clause (a) of sub-section (1) of section 9 applies, acquires, has in his possession or carries any firearm or ammunition in contravention of that section shall be punishable with imprisonment for a term which may extend to one year, or with fine or with both.
Page No. 22 of 33 FIR No. 81/2012, PS : Sarita Vihar State Vs. Aslam @ Pradhan [(3) Whoever sells or transfers any firearm, ammunition or other arms--
(i) without informing the district magistrate having jurisdiction or the officer in charge of the nearest police station, of the intended sale or transfer of that firearm, ammunition or other arms; or
(ii) before the expiration of the period of forty-five days from the date of giving such information to such district magistrate or the officer in charge of the police station, in contravention of the provisions of clause
(a) or clause (b) of the proviso to sub-
section (2) of section 5, shall be punishable with imprisonment for a term which may extend to six months, or with fine of an amount which may extend to five hundred rupees, or with both.] (4) Whoever fails to deliver-up a licence when so required by the licensing authority under sub-section (1) of section 17 for the purpose of varying the conditions specified in the licence or fails to surrender a licence to the appropriate authority under sub-
section (10) of that section on its suspension or revocation shall be punishable with imprisonment for a term which may extend to six months, or with fine of an amount which may extend to five hundred rupees, or with both.
(5) Whoever, when required under section 19 to give his name and address, refuses to give such name and address or gives a name or address which subsequently transpires to be false shall be punishable with imprisonment for a term which may Page No. 23 of 33 FIR No. 81/2012, PS : Sarita Vihar State Vs. Aslam @ Pradhan extend to six months, or with fine of an amount which may extend to two hundred rupees, or with both.
14. It is trite that in criminal jurisprudence, 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 doubts on the basis of cogent, convincing and reliable evidence. It is also well settled that in case of doubt, the benefit must necessarily be given to the accused. It is also settled position of law that whenever there are two views possible, the view which favours the innocence of the accused is to be accepted by the Court.
15. In the present case, the allegations against the accused are that he was found in possession of a illegal weapon without having any valid license which is an offence under Section 25 Arms Act, 1959. It has been alleged that the accused was apprehended at the instance of secret informer and a pistol with three live cartridges were recovered from his possession and Page No. 24 of 33 FIR No. 81/2012, PS : Sarita Vihar State Vs. Aslam @ Pradhan fourth live cartridge was found in the seized weapon. In the present case, as the record would reveal, all the prosecution witnesses are police officials. No independent public witness had joined the investigation at any point of time. The witnesses have stated in their examination that the information was shared with public persons and they were asked to join the proceedings, however, none agreed. From a perusal of the record, no serious effort for joining public witnesses appears to have been made. No steps are shown to be taken to note down the names and addresses of those persons who had refused to participate in the proceedings. No notice is shown to be given to those persons. It is a well settled proposition that non-joining of public witness shrouds doubt over the fairness of the investigation by police. Section 100 (4) of the Cr.P.C. also casts a statutory duty on an official conducting search to join two respectable persons of the society. Same has not been done in the present case. This casts a doubt on the fairness of the investigation. In the case titled as Nank Chand Vs. State of Delhi, Crl. Revision No. 169/81, decided on 07.11.1990, Hon'ble High Court of Delhi has Page No. 25 of 33 FIR No. 81/2012, PS : Sarita Vihar State Vs. Aslam @ Pradhan observed as under:-
"The recovery was from a street with houses on both sides and shops nearby. And, yet no witness from the public has been produced. Not that in every case the police officials are to be treated as unworthy of reliance but their failure to join witnesses from the public especially when they are available at their elbow, may, as in the present case, cast doubt. They have again churned out a stereotyped version. Its rejection needs no Napoleon on the Bridge at Arcola.''
16. In the present case, non-joining of any public person as a witness creates doubt on the case of the prosecution. However, the fact of non-joining public witnesses is not the only ground to disbelieve the case of the prosecution. This Court is 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. I get strength from the judgment of the Hon'ble supreme Court of India 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 Page No. 26 of 33 FIR No. 81/2012, PS : Sarita Vihar State Vs. Aslam @ Pradhan the prosecution but there are other circumstances too, as discussed hereinafter, which raise suspicion over the prosecution version.
17. The testimonies of the prosecution witnesses would show that first Investigating Officer had prepared the rough sketch of the alleged weapon, then sealed the articles in a transparent box with the seal. He also seized the pistol alongwith four live cartridges. Thereafter, he prepared the rukka and sent the police official for registration of FIR. It is, therefore, clear that the seizure memo of the case property, the pistol and the live cartridges, and the rough sketch were prepared before the rukka was handed over to the police official for registration of the FIR. The FIR was, therefore, admittedly registered after the preparation of the rough sketch. Accordingly, it follows that the number of the FIR would have come to the knowledge of the investigating officer only after a copy of the FIR was brought to the spot. Thus, ordinarily, the FIR number should not find mention in the seizure memo and the rough sketch which came into existence before registration of the FIR. However, Page No. 27 of 33 FIR No. 81/2012, PS : Sarita Vihar State Vs. Aslam @ Pradhan interestingly, the FIR numbers are duly mentioned in the seizure memos. The same indicates that FIR number was mentioned on the said documents while preparing the same. Hon'ble High Court of Delhi in Pawan Kumar v. The Delhi Administration, 1989 Cri. L.J. 127, has observed in paragraph 5 as under:
"... Learned counsel for the State concedes that immediately after the arrest of the accused, his personal search was effected and the memo Ex. PW11/D was prepared. Thereafter, the sketch plan of the knife was prepared in the presence of the witnesses. After that, the ruqa EX. PW11/F was sent to the Police Station for the registration of the case on the basis of which the FIR, PW11/G was recorded. The F.I.R. is numbered as 36, a copy of which was sent to the I.O. after its registration. It comes to that the number of F.I.R. 36 came to the knowledge of the I.O. after a copy of it was delivered to him at the spot by a constable. In the normal circumstances, the F.I.R. No. should not find mention in the recovery memo or the sketch plan which had come into existence before the registration of the case. However, from the perusal of the recovery memo, I find that the FIR is mentioned whereas the sketch plan does not show the number of the FIR. It is not explained as to how and under what circumstances the recovery memo came to bear the F.I.R. No. which had already come into existence before the registration of the Page No. 28 of 33 FIR No. 81/2012, PS : Sarita Vihar State Vs. Aslam @ Pradhan case. These are few of the circumstances which create a doubt, in my mind, about the genuineness of the weapon of offence alleged to have been recovered from the accused."
18. In Mohd. Hashim v. State, 1999 VI AD (Delhi) 569, the Hon'ble High Court of Delhi has observed:
"... Surprisingly, the secret information (Ex. PW7/A) received by the Sub-Inspector Narender Kumar Tyagi (PW-7), the notice under Section 50 of the Act (Ex. PW5/A) alleged to have been served on the appellant, the seizure memo (Ex. PW1/A) and the report submitted under State v. Om Prakash Section 57 of the Act (Ex. PW7/D) bear the number of the FIR (Ex. PW4/B). The number of the FIR (Ex. PW4/B) given on the top of the aforesaid documents is in the same ink and in the same handwriting, which clearly indicates that these documents were prepared at the same time. The prosecution has not offered any explanation as to under what circumstance number of the FIR (Ex. PW4/B) had appeared on the top of the aforesaid documents, which were allegedly prepared on the spot. This gives rise to two inferences that either the FIR (Ex. PW4/B) was recorded prior to the alleged recovery of the contraband or number of the said FIR was inserted in these documents after its registration. In both the situations, it seriously reflects upon the veracity of the Page No. 29 of 33 FIR No. 81/2012, PS : Sarita Vihar State Vs. Aslam @ Pradhan prosecution version and creates a good deal of doubt about recovery of the contraband in the manner alleged by the prosecution."
19. In the present case also, the no explanation has been given by the police officials for the FIR Number and case details on the rough sketch of the weapon, seizure memo of the case property, the pistol and the live cartridges. The same leads to only one conclusion that either the said documents were prepared later on or that the FIR had been registered earlier in point of time. In both the aforesaid cases a reasonable doubt has been raised on the case of the prosecution. Weapon was seized from the accused with bare hands. No chance print of accused were taken to match with fingerprints found on the weapon. The Crime Branch team was also not called for taking chanceprint of the accused. The same was a vital piece of evidence which would have connected the accused to the weapon allegedly seized from him. This is another major lacuna in the case of the prosecution which goes to the very root of the case. Thus, the possibility that the case property might have been tampered with Page No. 30 of 33 FIR No. 81/2012, PS : Sarita Vihar State Vs. Aslam @ Pradhan cannot be ruled out. Further, the possibility that the case property was planted upon the accused can also not be ruled out.
20. While PW1, PW2 and PW3 were not cross-examined by the accused or his counsel despite opportunity, the remaining witnesses were duly cross-examined. While majority of the prosecution witnesses have deposed the colour of the seized car to be Silver, PW8 IO/ Sub-Inspector Ahtesham had deposed that the colour of the seized car was White. While PW9 Head Constable Pravesh had admitted during his cross-examination that IO had recorded the statement of Head Constable Vipin Kumar at the spot, PW 7 ASI Vipin Kumar (the then Head Constable) had deposed that IO had not recorded his statement at the spot and he had not joined investigation or visited the spot on any subsequent date. All these lacunae strike at the root of the prosecution case and discredit the story put forth by it. They have remained unexplained.
21. Charge u/s 471 IPC was also framed against the accused for possession fake registration certificate of vehicle Page No. 31 of 33 FIR No. 81/2012, PS : Sarita Vihar State Vs. Aslam @ Pradhan bearing No. UP 16 AD 1060 and charge u/s 103 DP Act was framed for not possessing original ownership document of the said vehicle. No evidence was led with respect to offence u/s 471 IPC and 103 DP Act. The original owner of the alleged vehicle was neither named as a witness nor summoned by the prosecution. The original RC of the alleged car was neither seized nor verified. Thus, it is held that prosecution has been unable to prove commission of offence u/s 471 IPC and 103 DP Act.
22. As discussed in preceding paragraphs, there are several other loopholes in the testimony of the prosecution's witnesses which hit the very roots of the prosecutions case. When the main pillars of the case of prosecution have fallen, it would be futile to look to the pillars which stand and try and ascertain whether the structure can be salvaged. In these circumstances, doubt has arisen on the case of the prosecution, benefit of which must necessarily be extended to the accused. In the light of discussion in the preceding paragraphs, it is held that the prosecution has failed to prove its case beyond the pales of reasonable doubt. Page No. 32 of 33 FIR No. 81/2012, PS : Sarita Vihar State Vs. Aslam @ Pradhan Accordingly, benefit of doubt is extended to the accused Aslam @ Pradhan and he is acquitted for commission of offence u/s 471 IPC, 25 Arms Act and 103 DP Act. Ordered accordingly. Pronounced in the open Court on 22.03.2023.
(SHIVANI CHAUHAN) CHIEF METROPOLITAN MAGISTRATE SOUTH EAST, SAKET COURTS:
NEW DELHI.Page No. 33 of 33