Delhi District Court
State vs . Abdul Majid on 22 August, 2023
IN THE COURT OF METROPOLITAN MAGISTRATE-08,
SOUTH-EAST DISTRICT, SAKET COURTS, NEW DELHI
::: JUDGMENT :::
IN THE MATTER OF:
STATE Vs. ABDUL MAJID CR CASE No. 24074/2019 FIR NUMBER: 193/2019 UNDER SECTION: 25 Arms Act POLICE STATION: JAMIA NAGAR A. CNR No. of the Case : DLSE020441302019 B. Date of Institution : 18.10.2019 C. Date of Commission of : 24.08.2019 Offence D. Name of the Complainant : HC Mamchand, No. 1379/SE E. Name of the Accused, his : Abdul Majid, S/o Sh. Yusuf, R/o Parentage & Addresses H.No. 626, Gali No. 9A, Zakir Nagar, Jamia Nagar, New Delhi F. Offence complained of : 25/54/59 Arms Act G. Plea of the Accused : Pleaded not guilty and claimed trial H. Judgment reserved on : 08.08.2023 I. Date of Judgment : 22.08.2023 J. Final Order : Acquittal ACCUSED DETAILS:Sr. No. of the accused 1
Name of the accused Abdul Majid
Date of Arrest 24.08.2019
Date of release on Bail 13.12.2019
Offence charged with 25 Arms Act
Whether Acquitted/ convicted -
Sentence Imposed --
Period of detention undergone --
during trial (for section 428 CrPC)
FIR No. 193/2019 State Vs. Abdul Majid Page No. 1 of 12
LIST OF PROSECUTION WITNESS:
Sr.No. Name of the Witness
1 ASI Shamsher Khan
2 HC Mamchand
3 ASI Vipin Kumar
LIST OF DOCUMENTS (PROVED BY THE PROSECUTION):
Sr. No. Description of documents Exh. No. 1 Copy of FIR Ex. A-1 2 DAD notification dated 19.10.1980 Ex. A-2 3 Knife Ex. P-1 4 Sketch of Knife Ex. PW1/A 5 Seizure Memo Ex. PW1/B 6 Tehrir Ex. PW1/C 7 Site Plan Ex. PW1/D 8 Arrest Memo Ex. PW1/E 9 Disclosure statement of accused Ex. PW2/A 10 Personal Search Memo Ex. PW2/B DEFENCE WITNESS: None LIST OF DOCUMENTS (PROVED BY DEFENCE): NA Factual Background:
1. Briefly stated, the case of the prosecution against the accused is that on 24.08.2019 ASI Shamsher Khan was on emergency duty from 08:00 AM to 08:00 PM. At about 07.50 PM, ASI Shamsher Khan along with HC Vipin was going towards the PS on private motorcycle from the area of Zakir Nagar Pusta and when they reached near Lal School, Pusta Road, one person started running after seeing them. Thereafter, they apprehended the said person. On cursory search, one button operated knife was recovered from the right pocket of his trousers. On that basis, the present FIR was registered against the accused. Upon completion of investigation, charge sheet under section 25 Arms Act was filed and the accused was sent for trial. Court Proceedings:
2. The ld. Predecessor of this court took cognizance of the offence on 18.10.2019 and issued process against the accused.
FIR No. 193/2019 State Vs. Abdul Majid Page No. 2 of 12 Pursuant to the appearance of the accused, he was supplied with the copy of chargesheet in compliance of Section 207 CrPC.
Charge:
3. Upon hearing the arguments, vide order dated 01.11.2019, charge under Section under section 25 Arms Act was ordered to be framed against the accused. The accused pleaded not guilty and the matter was listed for Prosecution Evidence ('PE').
Prosecution Evidence:
4. In order to establish its case, prosecution has examined three witnesses namely ASI Shamsher Khan ('PW1'), HC Mamchand ('PW2'), and ASI Vipin Kumar ('PW3')
5. PW1/ ASI Shamsher Khan deposed that on 24.08.2019, he was posted at PS Jamia Nagar, New Delhi. On that day, he was on emergency duty from 08:00 AM to 08:00 PM. He was going towards the PS from the area of Zakir Nagar Pusta and when he reached near Lal School, Pusta Road, on private motorcycle, one person started running after seeing him. He and HC Vipin apprehended the said person. PW1 searched the said person and recovered one button operated knife from the right pocket of his trousers. The said person disclosed his name as Abdul Majid. He further deposed that he measured the said knife recovered from the accused and the knife was measured and was found having blade length of 9.2 cm and length of its handle was 11.5 cms and its width 2.8 cm. He prepared sketch of the knife which is Ex. PW1/A bearing his signature at point A. Knife was seized in cloth pulanda which was sealed with the seal of 'SK' and was seized vide memo Ex. PW1/B bearing his signature at point A. Seal after use handed over to HC Vipin. Thereafter he prepared tehrir Ex. PW1/C bears his signature at point A and FIR No. 193/2019 State Vs. Abdul Majid Page No. 3 of 12 gave it to HC Vipin to get the FIR registered. After getting FIR registered, he returned at the spot. Thereafter, he informed the PS about the incident and HC Mamchand came to the spot. PW1 handed over the custody of the accused as well as seized knife to HC Mamchand. Further investigation was conducted by HC Mamchand, who prepared site plan Ex.PW 1/D bearing signature of PW1 at point A. HC Mamchand arrested the accused vide memo Ex.PW1/E. Thereafter he was discharged from the investigation. Witness has correctly identified the accused in the court. He deposed that he could also identify the knife which was recovered from the accused. At that stage, one sealed white cloth pulanda with the seal of 'SK' is produced by MHC(M). The same was opened with the permission of the court. It contains button operated knife which is shown to the witness who identified it to be the same knife which was recovered from the accused. Knife is Ex. P-1.
6. During cross examination, PW1 deposed that he had taken signature of HC Vipin on the sketch. He had not made any DD entry regarding arrest of accused. He deposed that he or IO had not made any public person as witness during the proceedings.
He remained at the spot for around 2 hours. HC Vipin went to the PS with Rukka at 9:35 PM and came back to the spot at around 10:00 PM. He prepared site plan. He does not remember the time when arrest memo was prepared by the IO. No articles were recovered during personal search of the accused. He was present when the accused was arrested by the IO. He denied that the case against the accused is false. He denied that he and Ct. Vipin has falsely implicated the accused by planting knife upon him. He denied that accused was not apprehended from the spot or that he FIR No. 193/2019 State Vs. Abdul Majid Page No. 4 of 12 was lifted from his house. He denied that all writing work was conducted at P.S and not at the spot.
7. PW2/ HC Mamchand deposed that on 24.08.2019, he was posted as HC at PS Jamia Nagar, New Delhi. On that day, Duty Officer gave copy of present FIR and original Tehrir to him in the PS and investigation was marked to him. Thereafter, he along with HC Vipin reached at the spot i.e. Yamuna Pusta, near Lal School, Gali no. 7, Zakir Nagar. They met ASI Shamsher Khan there, who handed over custody of accused and seized button operated knife to him. ASI Shamsher Khan also handed over sketch of the said knife which is already Ex.PW 1/A. The said knife had also been already sealed by ASI Shamsher Khan with the seal of 'SK'. He also handed over the seizure memo already Ex.PW 1/B to the witness. PW2 recorded statement of ASI Shamsher Khan u/s 161 Cr.P.C. and discharged him from the spot. Thereafter, he interrogated the accused and recorded his disclosure statement Ex.PW2/A bearing his signatures at point A and arrested him vide memo already Ex.PW 1/E bearing his signatures at point A and conducted his personal search vide memo Ex.PW 2/B bearing his signatures at point A. Thereafter, he along with accused, case property and HC Vipin Kumar came back to the PS and he deposited case property / knife in the Malkhana. He also recorded statement of HC Vipin Kumar in the PS. Witness has correctly identified the accused in the court. He deposed that he could not identify the knife which was recovered from the accused as it was already sealed by ASI Shamsher Khan when he reached the spot.
8. During cross examination PW2 deposed that he received tehrir at about 9.48 pm and reached at the spot after about 10-20 FIR No. 193/2019 State Vs. Abdul Majid Page No. 5 of 12 minutes. He remained at the spot for about 1 to 1¼ hours. He had made Departure Entry before leaving the PS. He does not remember the DD number. He deposed that One belt, one black mobile phone, cash of Rs. 128/- and one wrist watch was recovered from the possession of the accused during his personal search. No public persons were present at the spot when he reached there. He admitted that knife in question was not recovered from the accused in his presence. He denied that accused has been falsely implicated. He denied that case property has been falsely planted upon the accused. He denied that he never went to the spot. He denied that all the documents were prepared in the PS. He denied that he was deposing falsely.
9. PW3/ Vipin Kumar deposed that on 24.08.2019 he was posted as HC at PS Jamia Nagar. On that day he was on emergency duty from 08:00 AM to 08:00 PM, along with ASI Shamsher Khan. They were coming back after attending a call and going towards PS from Zakir Nagar. When they reached near Lal School Pusta Road one person started running after seeing them. They were on private motorcycle. They apprehended that person. ASI Shamsher Khan searched the person and recovered one Buttondar knife from right pocket of trouser. Name of that person revealed later as Abdul Mazid. The measurement of knife taken by ASI Shamsher Khan. ASI Shamsher Khan then prepared the rough sketch of the knife. The same is already Ex PW-1/A bearing his signature at point B. ASI Shamsher Khan then seized the knife in white pulanda with the seal of SK and seized the same vide seizure memo already Ex.PW-1/B bearing his signature at point B. The same was handed over to PW3. ASI Shamsher Khan then prepared rukka already Ex. PW-1/C and FIR No. 193/2019 State Vs. Abdul Majid Page No. 6 of 12 handed over to same to witness/ PW3 to get the FIR registered. After getting the FIR registered, PW3 came back at the spot along with HC Mam Chand. The custody to the accused and knife handed over to HC Mam Chand. HC Mamchand prepared site plan already Ex. PW-1/D. Accused was interrogated by IO and his discloser statement was recorded which is already Ex- PW-2/A bearing his signature at point B. Accused was arrested by HC Mam Chand vide arrest memo already Ex-1/E bearing his signature at point B. Accused was personally searched vide personal search memo already Ex. PW-2/C bearing his signature at point B. Thereafter he along with HC Mam chand, accused and the case property came back to the PS and his statement recorded by the IO. He deposed that he could identify the case property if shown to him. The same is already Ex. P-1. Witness has correctly identified the accused in court.
10. During cross examination PW3 deposed that he could not say whether IO has filed any DD entry dated 24.08.2019. He was on emergency duty from 08:00 AM to 08:00 PM. On 24.08.2019. He had arrested the accused about 07:50 PM. He could not say the DD entry No. He was returning after attending the emergency call. He went to the PS along with therir for registration of FIR at about 09:35 PM and returned back to the spot at about 10:15 PM. He admitted that after sealing the case property seal handing over memo was prepared. He admitted that seal handing memo is not on Judicial file. He admitted that the site plan was not prepared in his presence. He deposed that his statement was recorded in PS by HC Mam Chand. He denied that he did not join investigation nor went to the spot along with ASI Shamsher Khan that is why FIR No. 193/2019 State Vs. Abdul Majid Page No. 7 of 12 no document pertaining to his duty hours is on Judicial record. He denied that he was deposing falsely.
11. Accordingly, vide order dated 07.06.2023, Prosecution Evidence was closed.
Admission u/s 294 CrPC
12. In terms of section 294 CrPC, accused has admitted the genuineness of copy of FIR and DAD notification dated 19.10.1980 as Ex. A-1 and Ex. A-2 respectively. Statement of the Accused:
13. Thereafter, statement of accused under Section 313 Cr.P.C.
read with Section 281 Cr.P.C. was recorded in which all incriminating material was put to him, to which he pleaded innocence and claimed to have been falsely implicated. Accused has chosen not to lead any defence evidence.
Final Arguments:
14. Ld. APP has submitted that the case is proved beyond reasonable doubt as the witnesses have identified the case property and the accused during their deposition. He has submitted that due to non-cooperation by public witnesses it gets difficult to ensure their presence at the time of seizure of case property. It is also submitted that such offence is non-
compoundable offence and the accused be convicted of the offence charged u/s 25 of the Arms Act.
15. Per Contra, Ld. Counsel for defence has submitted that that accused is completely innocent and has been falsely implicated in the present case and the alleged recovery of button operated knife has been falsely planted upon him. It is further submitted that not joining the public witnesses despite availability and not serving any notice to them by the police officials cast shadow of doubt on the story of prosecution. At the end, he has submitted that the FIR No. 193/2019 State Vs. Abdul Majid Page No. 8 of 12 prosecution has completely failed to prove its case beyond reasonable doubt and therefore, the accused is liable to be acquitted of the alleged offence.
16. This court has heard the submissions of Ld. APP for State and the Ld. Counsel for accused and carefully perused the judicial record.
Discussion and Analysis:
17. The recovery alleged to have been effected on 24.08.2019 at about 07.50 PM near Lal School Pusta Road, Zakir Nagar. The place of recovery and timing of arrest is such that the presence of independent witnesses cannot be ruled out as the place of recovery is clearly located in an area where public persons would be readily available. Pertinent is that it is not the case of the prosecution that no public witnesses were available at that time, rather witness from prosecution in their deposition have specifically stated that the spot is a public place and public persons were passing through the spot. Whether association of such persons as public witnesses was possible in the facts and circumstances of this case is a fact and the burden to prove the same lies on prosecution. The arrest and search before an independent witness imparts authenticity and creditworthiness to the proceedings carried out by the police authorities. It also strengthens the prosecution case against the accused. Moreover, it acts as a safeguard against the arbitrary conduct or high handedness, if any, of the police officials. The absence of such a safeguard in the form of a public witness is to be seen with suspicion.
18. The aforesaid flaw in the investigation makes the story of the prosecution unworthy of credit, specifically in the light of judgment in the case titled Anoop Joshi vs. State reported as FIR No. 193/2019 State Vs. Abdul Majid Page No. 9 of 12 1992 (2) C. C. Cases 314 (HC) wherein Hon'ble High Court of Delhi observed:
"18. It is repeatedly laid down by this court that in such case, it should be shown by the police that sincere efforts had been made to join independent witnesses. In the present case, it is evident to note 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 laws while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC."
19. There is nothing in the testimony of prosecution witnesses that any sincere efforts were made by the IO to join independent witnesses in the proceedings/ investigation. The only explanation accorded that they have refused to join the proceedings. Such an ordinary reply/ explanation of the witnesses does not support the case of prosecution. Pertinent is the Section 100 (4) CrPC also mandates the police official conducting search to join two respectable persons of the society. In the absence of any independent witness having been joined in the investigation, false FIR No. 193/2019 State Vs. Abdul Majid Page No. 10 of 12 implication of the accused by the local police in the present case cannot be ruled out. The aforesaid view of this court is further fortified by the observations made by Hon'ble Delhi High Court in Pawan Singh v. The Delhi Administration reported as 1989 Cri.L.J 127, wherein a similar view has been taken.
20. In a criminal trial, the burden of proving everything essential to the establishment of the charge against an accused always rests on the prosecution and there is a presumption of innocence in favour of the accused until the contrary is proved. Criminality is not to be presumed, subject of course to some statutory exceptions. It was observed in Partap v. State of U.P. reported as A.I.R. 1976 SC 966 that while prosecution is required to prove its case beyond a reasonable doubt, accused can discharge his onus by establishing a mere preponderance of probability. In Vijayee Singh v. State of U.P. reported as 1990(3)SCC 190, it was again held that in criminal cases burden is always is on prosecution and never shifts. In Nasir Sikander Shaikh v. State of Maharashtra reported as (SC) 2005 Cri.L.J. 2621 and Jarnail Singh v. State of Punjab reported as (SC) 1996(1) R.C.R.(Criminal) 465 it was held that it is cardinal principle of criminal jurisprudence that an accused is presumed to be innocent and burden lies on prosecution to prove the guilt of accused beyond reasonable doubt. Prosecution is under legal obligation to prove each and every ingredient of the offence beyond any doubt, unless otherwise so provided by the Statute. Accused is not expected to prove his innocence to the hilt. If prosecution story is doubtful, benefit of doubt must go to the accused.
21. The fact that no independent witnesses were cited or FIR No. 193/2019 State Vs. Abdul Majid Page No. 11 of 12 examined, in circumstances when presence of public and independent person could have been easily secured, cast a serious doubt over the case of the prosecution. Further, it was explained by the PWs that from where seal of "SK" procured and why seal handing over memo is not on record. It is also not explained from where pulanda was procured. In view of what has been taken note by this court, the possibility of false implication of the accused cannot be ruled out. Thus, in view of the foregoing analysis, this court is of the considered opinion that the aforesaid deficiencies in the case of the prosecution are sufficient enough to raise a doubt on the veracity of the entire prosecution case against the accused and extend the benefit of doubt to him.
Decision:
22. Accordingly, accused Abdul Majid S/o Sh. Yusuf Ali is held not guilty and stands acquitted of the offence punishable under Section 25 of the Arms Act.
Announced in open (Abhitesh Kumar)
Court today i.e on 22.08.2023 MM-08, (SE) Saket Courts
New Delhi
This Judgment contains twelve pages (12) and all pages bears my signature.
(Abhitesh Kumar) MM-08 (SE): Saket Courts New Delhi: 22.08.2023 FIR No. 193/2019 State Vs. Abdul Majid Page No. 12 of 12