Delhi District Court
State vs . Salman @ Hasan on 30 September, 2022
IN THE COURT OF MS NEETI SURI MISHRA
ACMM (NORTH): ROHINI COURTS:NEW DELHI
Cr. Case 5919/2019
STATE Vs. Salman @ Hasan
FIR NO.407/2019
PS Mahendra Park
Date of Institution of case: 19.11.2019
Date of Judgment reserved: 28.09.2022
Date on which Judgment pronounced:30.09.2022
Unique ID no. of the case : DLNT02-011911-2019
Date of commission of offence : 19.11.2019
Name of complainant : Ct. Anil
Name and address of accused : Salman @ Hasan S/o Iqbal
R/o Vagaband, GTK Depot, Bus
stand, Delhi
Offence complained of : Section 25, Arms Act,1959
Plea of accused : Pleaded not guilty
Date of reserving the order: 28.09.2022
Date of order : 30.09.2022
Final order : Acquitted
FIR No. 407/2019 PS Mahendra Park State Vs. Salman @ Hasan page no.1/13
JUDGMENT
1. Brief facts of the case as per prosecution are on 11/10/2019 at about 1:05 AM., near Gate No. 2, New Subzi Mandi, Azadpur Mandi, within jurisdiction of PS Mahendra Park, the accused was found in possession of one button operated knife in contravention of the Delhi Administration Notification dated 29/10/1980 and thereby he committed offence punishable under Section 25 of the Arms Act, 1959.
2. Upon seizure of the knife from accused, FIR was registered against him. Investigation was commenced by police and on completion of investigation, chargesheet was filed in court. The court took cognizance of the offence and chargesheet was supplied to accused in compliance of Section 207 Crpc. Thereafter, charge was framed against the accused to which he did not plead guilty and claimed trial. The trial against the accused thereafter commenced and in order to bring home the guilt of the accused, prosecution examined 04 witnesses. The testimonies of witnesses are as under:
PW-1 HC Anil Kumar deposed that on 11.10.2019, he was posted as Ct. at PS Mahendra Park. On that day he along with HC Devender was on the patrolling in the area and during patrolling at about 01:05 am (midnight) when they reached near Gate no. 2 of Azadpur Mandi, they saw that a boy was taking one motorcycle with him by walking. He was going towards Gate no. 2 of the Azadpur Mandi and upon suspicion, they asked him to stop but after seeing them in police uniform that boy tried to run away from there after leaving the motorcycle there. Witness with the FIR No. 407/2019 PS Mahendra Park State Vs. Salman @ Hasan page no.2/13 help of HC Devender successfully apprehended that boy after chasing him and during the cursory search of that boy, one buttondar knife was recovered from his left side dub. Accused was correctly identified by the witness. The registration number of the said motorcycle was DL 6S AQ 3038 which was also lying at the spot. The registration was checked on the ZIP NET and it was found stolen in case FIR No. 2915/2019 U/s 379 IPC, PS Mahendra Park. Witness immediately informed the Police Post Sabji Mandi Azadpur regarding the apprehension of the accused and recovery of buttondar knife and the stolen motorcycle. After a while, IO/ASI Vinod Kumar came there and witness gave his statement Ex. PW-1/A to IO. They handed over the custody of the accused, the recovered buttondar knife and the aforesaid motorcycle to the IO. IO also requested few passersby to join the investigation but none agreed to join and left the spot without disclosing their identities. IO prepared the sketch of the recovered knife after putting it on a plain white paper vide sketch memo Ex.PW-1/B. The total diagonal length of the buttondar knife after opening came as 22.8cm. The length of the blade came as 10.3cm and width of 3cm. There was a button on the knife and it used to open and close with the help of that button. The knife was taken into possession by IO after putting into it a white colour cloth pullinda and after sealing the pullinda with the seal of VK vide seizure memo Ex.PW- 1/C. Seal after use was handed over to witness by IO vide handing over memo of seal which is Ex.PW-1/D. The aforesaid motorcyle no. DL 6S AQ 3038 was also seized by IO U/s 102 CrPC vide seizure memo Ex. PW-1/E. Thereafter, IO prepared rukka and handed over the same to witness for registration of FIR. Accordingly, witness went to the PS and FIR No. 407/2019 PS Mahendra Park State Vs. Salman @ Hasan page no.3/13 got the FIR registered through DO. After returning to the spot witness handed over the copy of FIR and original rukka to the IO. IO completed the seizure memos by writing down the FIR number over them which were prepared by him prior to registration of FIR. Thereafter, IO prepared site plan of the spot at the instance of HC Devender. Thereafter, accused was interrogated and he gave disclosure statement which is Ex.PW-1/F. Thereafter, accused was arrested and personally searched vide memos Ex.PW-1/G and Ex.PW-1/H respectively. After returning to the PS the case property was deposited in the maalkhana by the IO and the accused was put behind lockup after getting him medically examined. IO recorded the statement of witness. Witness states that he can identify the case property if shown to him. MHC(M) submits that the case property i.e. knife in the present case was sent in some other case as it was involved in some other case also and the knife has been sent to FSL for analysis and till date it has not been received from FSL. Later on the NDOH the button-operated knife was produced in court and was proved as Ex. P-1.
PW-2 HC Deepak deposed that on 11.10.2019 he was posted as HC at PS Mahendra Park. On that day he was working as MHC(M) at PS Mahendra Park and IO/ASI Vinod Kumar handed over to witness a sealed cloth pullanda bearing the seal of VK and a motorcycle bearing No. DL- 6SAQ-3038 for depositing the same in the malkhana. Accordingly, witness deposited the sealed pullanda and motorcycle in the maalkhana vide serial no. 1554/19 in the malkhana register no. 19. Witness brought the original register and the copy of which is Ex.PW2/A (OSR) (running into 2 pages). No tampering etc was done with the case property and seal on the pullanda remained intact.
FIR No. 407/2019 PS Mahendra Park State Vs. Salman @ Hasan page no.4/13 PW-3 ASI Devender deposed that on 11.10.2019, he was posted as HC at PS Mahendra Park. On that day he along with Ct. Anil was on the patrolling in the area and during patrolling at about 01:05 am (midnight) when they reached near Gate no. 2 of Azadpur Mandi, they saw that a boy was taking one motorcycle with him by walking. He was going towards Gate no. 2 of the Azadpur Mandi and upon suspicion, they asked him to stop but after seeing them in police uniform that boy tried to run away from there after leaving the motorcycle there. Witness with the help of Ct. Anil successfully apprehended that boy after chasing him and during the cursory search of that boy, one buttondar knife was recovered from his left side dub. That boy was correctly identified by the witness in the court. The registration no. of the said motorcycle was DL 6S AQ 3038 which was also lying at the spot. The registration was checked on the ZIP NET and it was found stolen in case FIR No. 2915/2019 U/s 379 IPC, PS Mahendra Park. Ct. Anil immediately informed the Police Post Sabji Mandi Azadpur regarding the apprehension of the accused and recovery of buttondar knife and the stolen motorcycle. After a while, IO/ASI Vinod Kumar came there and he recorded statement of Ct. Anil. They handed over the custody of the accused, the recovered buttondar knife and the aforesaid motorcycle to the IO. IO also requested few passersby to join the investigation but none agreed to join and left the spot without disclosing their identities. IO prepared the sketch of the recovered knife after putting it on a plain white paper vide sketch memo Ex.PW-1/B. The total diagonal length of the buttondar knife after opening came as 22.8cm. The length of the blade came as 10.3cm and width of 3cm. There was a button on the knife and it used to open and close with the help of that FIR No. 407/2019 PS Mahendra Park State Vs. Salman @ Hasan page no.5/13 button. The knife was taken into possession by IO after putting into it a white colour cloth pullinda and after sealing the pullinda with the seal of VK vide seizure memo Ex.PW-1/C. Seal after use was handed over to witness by IO vide handing over memo of seal which is ExPW-1/D. The aforesaid motorcyle no. DL 6S AQ 3038 was also seized by IO U/s 102 CrPC vide seizure memo Ex. PW-1/E. Thereafter, IO prepared rukka and handed over the same to Ct. Anil for registration of FIR. Accordingly, Ct. Anil went to the PS and got the FIR registered through DO. After returning to the spot Ct. Anil handed over the copy of FIR and original rukka to the IO. IO completed the seizure memos by writing down the FIR No. over them which were prepared by him prior to registration of FIR. Thereafter, IO prepared site plan of the spot at instance of witness which is Ex.PW3/A. Thereafter, accused was interrogated and he gave disclosure statement whihc is Ex.PW-1/F. Thereafter, accused was arrested and personally searched vide memos Ex.PW-1/G and Ex.PW-1/H respectively. After returning to the PS the case property was deposited in the maalkhana by the IO and the accused was put behind lockup after getting him medically examined. IO recorded the statement of witness. Witness states that he can identify the case property if shown to him.
Thereafter, MHC(M) submitted that the case property i.e. knife in the present case was also wanted and involved in some other case as it was involved in that case also which bears the case FIR No. 398/19, u/s 392/394/397/411 IPC and 25/27 Arms Act PS, Mahendra Park and that said knife has been sent to FSL for analysis in that case and now they have received the case property in a sealed enveloped with the seal of FSL.
FIR No. 407/2019 PS Mahendra Park State Vs. Salman @ Hasan page no.6/13 MHC(M) has produced one sealed envelope bearing the seal of FSL. Seal was opened with the permission of the court and one button operated (buttondar) knife was taken out and shown to the witness, who correctly identifies the same. The buttondar knife proved as Ex.P-1.
PW-4 ASI Vinod Kumar deposed that on 11.10.2019, he was posted as ASI at PS Mahendra park. On that day, upon receipt of DD no. 4 PP, he went to gate no. 2, New Sabzi Mandi, Azadpur where Ct. Anil and HC Devender met him and they produced the custody of accused Salman @ Hasan, recovered butondar knife and a motorcycle bearing no. DL6SAQ3038 to witness. Witness recorded statement of Ct. Anil which is Ex. PW-1/A. Witness requested few passersby to join the investigation but none agreed to join and left the spot without disclosing their identities. Thereafter, witness prepared the sketch of the recovered knife after putting it on plain white paper vide sketch memo Ex. PW-1/B. The total diagonal length of the buttondar knife after opening came as 22.8 cm. The length of the blade came as 10.3 cm and width of 3 cm. There was a button on the knife and it used to open and close with the help of that button. The knife was taken into possession by witness after putting into it a white colour cloth pullinda and after sealing the pullinda with the seal of VK vide seizure memo Ex. PW-1/C. Seal after use was handed over to Ct. Anil by witness vide handing over memo of seal which is Ex. PW-1/D. The aforesaid motorcycle no. DL6SAQ3038 was also seized by witness u/s 102 Cr.P.C vide seizure memo Ex. PW-1/E. Thereafter, witness had prepared rukka Ex. PW-4/A and handed over the same to Ct. Anil for registration of FIR. Accordingly, Ct. Anil went to the PS and got the FIR registered through DO. After returning to the spot Ct. Anil handed over the copy of FIR and original rukka to FIR No. 407/2019 PS Mahendra Park State Vs. Salman @ Hasan page no.7/13 witness. Witness completed the seizure memos by writing down the FIR number over them which were prepared by witness prior to registration of FIR. Thereafter, witness prepared site plan of the spot at the instance of HC Devender which is Ex. PW-3/A. Thereafter, accused was interrogated and he gave disclosure statement which is Ex. PW-1/F. Thereafter, accused was arrested and personally searched vide memos Ex. PW-1/G and Ex. PW-1/H respectively. Accused was correctly identified by the witness. After returning to the PS the case property was deposited in the malkhana by witness and the accused was put behind lockup after getting him medically examined. Witness recorded the statement of Ct. Anil and HC Devender.
Statement of accused recorded u/s 294 Cr.P.C wherein he submit that he shall not dispute the genuineness and preparation of the following documents without admitting the contents thereof :-
➢ Copy of FIR is Ex A1;
➢ Endorsement of DO, Ex. A-2; ➢ Certificate of DO, same is Ex A-3; ➢ Order/notification dated 29.10.1980 is Ex. A-4;
3. When prosecution concluded its evidence, the accused was afforded an opportunity by the court to explain all the incriminating circumstances appearing in evidence against him in terms of Section 313 of the Crpc. The accused denied the allegations and claimed innocence. He alleged that he was falsely implicated in the case. The accused was given opportunity to lead defence evidence, but he refused to lead evidence. On statement of accused, his opportunity to lead defence evidence was closed.
FIR No. 407/2019 PS Mahendra Park State Vs. Salman @ Hasan page no.8/13
4. The matter was thereafter fixed for final arguments. Final arguments were heard from Ld. APP for the State and Ld. Counsel for accused.
5. Ld. APP for the State argued that prosecution has proved its case against the accused beyond all reasonable doubt, hence the accused should be convicted. Ld. Counsel for accused argued that that prosecution has failed to prove its case against the accused as there are numerous loopholes in the prosecution's story. He argued that in view of the shortcomings in prosecution's case, the accused ought to be acquitted.
6. I have heard the learned APP for the State and the learned counsel for the accused and have also carefully perused the record of the case.
7. Reminiscing the cardinal principles of criminal jurisprudence which form the foundation of every criminal trial, it would be apposite to mention here those golden rules/ principles, which are:
(a) that in every criminal trial, accused is presumed to be innocent until proven guilty;.
(b) that in every criminal trial, prosecution is duty bound to prove the case against the accused beyond all reasonable doubts;
(c) that prosecution has to stand on its own legs and cannot derive any benefit/ advantage whatsoever, from the weaknesses in the defence of the accused.
8. In the present case, the accused Salman @ Hasan has been indicted for the offence of being found in possession of a button operated knife from near Onion shed at Azadpur Mandi, in contravention of the Notification issued by the Delhi Administration dated 29/10/1980.
FIR No. 407/2019 PS Mahendra Park State Vs. Salman @ Hasan page no.9/13
9. As per the admitted position in the present case, the place from where the accused was apprehended was a public place, but despite the presence of public persons all over that place, the investigating officer failed to join any public witnesses in the investigation, raising doubts about the genuineness of the recovery of weapon from the possession of accused. Reliance is placed on the decision titled State of Punjab v. Balbir Singh, AIR 1994 SC 1872, wherein the Hon'ble Supreme Court held:
"7. It therefore emerges that non-compliance of these provisions i.e. Sections 100 and 165 CrPC 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 compiled 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."
10. Further, in the case of Hem Raj v. State of Haryana AIR 2005 SC 2110, it has been observed that:
"The fact that no independent witness though available, was examined and not even an explanation was sought to be given for not examining such witness is a serious infirmity in the prosecution case. Amongst the independent witness's one who was very much in the know of things from the beginning was not examined by the prosecution. Non-examination of independent witness by itself may not give rise to adverse inference against the prosecution. However, when the evidence of the alleged eyewitnesses raises serious doubts on the point of their presence at the FIR No. 407/2019 PS Mahendra Park State Vs. Salman @ Hasan page no.10/13 time of actual occurrence, the unexplained omission to examine the independent witness would assume significance."
11.According to the facts of the present case, the accused was arrested from Azadpur Mandi, which is a vegetable and fruit market full of hustle and bustle. It is highly unlikely and improbable that the investigating officer could not come across any independent public witness who could have been made a witness to the search and seizure proceedings conducted against the accused. The court is of the opinion that the Investigating officer had ample time and opportunity to join public witnesses and could have also initiated action under Section 187 IPC, against those refusing to obey his genuine orders. Also failure to note down their names casts doubts about the prosecution's case and merely stating that efforts were made to join public witnesses, neither suffices nor clothes the prosecution's case with the garb of genuineness. Thus, prosecution's case appears to be doubtful against the accused.
12. Next, pertinently all the witnesses in the prosecution's case are police witnesses and the seal after use was not handed over to any independent witness as no independent witness was joined despite availability of the same. It was handed over to the IO and no efforts were made to hand over the seal to any independent witness. Hon'ble Delhi High Court in Safiullah v. State, 1993 (1) RCR (Criminal) 622, observed 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."
FIR No. 407/2019 PS Mahendra Park State Vs. Salman @ Hasan page no.11/13 Further, in Ramji Singh v. State of Haryana, 2007 (3) RCR (Criminal) 452, the Hon'ble High Court of Punjab and Haryana held that, "7. The very purpose of giving seal to an independent person is to avoid tampering of the case property."
13.What is pertinent to note here is that the police witnesses being in possession of the seal at all times, had ample opportunity to tamper with it. Thus, it casts a shadow of doubt on the prosecution's case, giving benefit of doubt to the accused.
14.Further, it has also came on record that PW-1 did not offer his personal search prior to taking the search of accused. PW-1 should have offered his personal search to some independent witness, but no such precaution was taken by him, which additionally torpedoes the prosecution's case against the accused.
15. The Hon'ble Supreme Court in S. L. Goswami v. State of M.P, reported as 1972 CRI.L.J.511(SC) observed:
"...... In our view, the onus to proving all the ingredients of an offence is always upon the prosecution and at no stage does it shift to the accused. It is no part of the prosecution duty to somehow hook the crook. Even in cases where the defence of the accused does not appear to be credible or is palpably false that burden does not become any the less. It is only when this burden is discharged that it will be for the accused to explain or controvert the essential elements in the prosecution case, which would negative it. It is not however for the accused even at the initial stage to prove something which has to be eliminated by the prosecution to establish the ingredients of the offence with which he is charged, and even if the onus shifts upon the accused and the accused has to establish his plea, the standard of proof is not the same as that which rests upon the prosecution."
16.It is settled proposition of law that the onus to prove the guilt of the accused was entirely on the prosecution. But from the foregoing FIR No. 407/2019 PS Mahendra Park State Vs. Salman @ Hasan page no.12/13 discussion on the relevant, material and crucial aspects, it has surfaced that prosecution's case suffers from many a shortcomings, for which the benefit of doubt ought to be given to the accused and he cannot be convicted for the offence of Section 25, Arms Act, 1959.
17.Therefore, in light of the facts, circumstances and evidence, the accused Salman @ Hasan is acquitted for the offence of Section 25, Arms Act, 1959. Case property be confiscated to the State and be destroyed.
18.File be consigned to record room.
(This judgment contains 13 pages and (Neeti Suri Mishra) all have been signed by undersigned) A.C.M.M. (North)/Rohini Courts Delhi/30.09.2022 FIR No. 407/2019 PS Mahendra Park State Vs. Salman @ Hasan page no.13/13