Delhi District Court
State vs . Shahid And Abdul Mutlib on 23 August, 2016
IN THE COURT OF MS. RASHMI GUPTA, METROPOLITAN MAGISTRATE : 09
(CENTRAL) TIS HAZARI COURTS, NEW DELHI
FIR No. 5/13
PS: Ch. Mahal
State Vs. Shahid and Abdul Mutlib
JUDGMENT
1. Sl No. of the case : 02401R0104732013
2. Date of Commission of the offence : 04.01.2013
3. The name of the complainant : ASI S.K. Srivastava
4. Name & address of accused : 1. Shadhid @ Bodum,
S/o Abdul Hamid, R/o
House No. 1927-28,
Mohalla Qabristan,
Turkman Gate, Delhi
2. Abdul Mutlib, S/o
Nawabuddin, R/o
House No. E-31, DDA
Flat, Turkman Gate,
Delhi
5. Date of institution of FIR : 04.01.2013
6. Date of receipt of this case in : 03.03.2013
this court
7. The plea of the accused : Not plead guilty
8. Date of reserving the case for order : 11.08.2016
9. Date of Decision : 23.08.2016
10. Final : Convicted
State Vs. Shahid @ Bodum and Abdul Mutlib FIR No. 5/13 Page No. 1 of 11
dated 23.08.2016
Brief Reasons for such Decision:-
1. It is the case of the prosecution that on 04.01.2013 at about 8:30 pm at Fasil Road, behind Delight Cinema, Delhi, the accused Abdul Mutlib was found in possession of five live cartridges and accused Shahid was found in possession of one country made pistol loaded with one live cartridge and two other live cartridges without any license or permit in contravention of Delhi Administration Notification and they thus committed an offence u/s 25/54/59 Arms Act.
2. Challan in the case was filed after completion of investigation and thereafter cognizance of the offence u/s 25 Arms Act was taken and thereafter copy of challan was supplied to the accused persons Shahid @ Bodum and Abdul Mutilb. On the basis of prima facie evidence charge was framed against the accused persons for the offence U/s 25 Arms Act 1959 on 08.04.2013 to which they pleaded not guilty and claimed trial.
3. The prosecution in support of its case has examined as many as 10 witnesses.
4. PW-1 is HC Kanwar. He deposed that on the date of incident he was posted at PS Ch. Mahal as HC and was working as Duty Officer from 4.00 pm to 12.00 midnight. On that day, at about 9:40 pm he received a rukka from Ct. Deepak sent by ASI S.K. Srivastava on the basis of which, he instructed the computer operator to register the FIR who as per his instructions and dictation registered FIR No. 05/13, U/s 25/54/59 Arms Act which runs into 2 pages. He proved the computer generated copy of FIR as Ex. PW1/A. He also made endorsement on the rukka from point A to A and proved the same which was exhibited as Ex. PW1/B. The copy of FIR and original rukka were given to Ct. Deepak to further hand over to SI Robin Singh for further investigation.
5. PW-2 is HC Kanhaiya Lal. He deposed that he was posted at PS Ch. Mahal as a HC. On the day of incident he was on checking duty of vehicles along with ASI S.K. Srivastava, Ct. Ravinder and Ct. Deepak. During this period one secret informer came and informed that two persons were present at Chatta State Vs. Shahid @ Bodum and Abdul Mutlib FIR No. 5/13 Page No. 2 of 11 dated 23.08.2016 Lalmiyan and they would have iilegal weapons. That on the information of secret informer they reached at the Chatta Lalmiyan and took their positions. On pointing out of secret informer, they apprehended two persons and conducted their cursory search. That after investigation their names were disclosed as Shahid and Abdul Mutlib. During search one country made pistol and two live cartridges were recovered from the possession of accused Shahid and five live cartridges were recovered from the possession of accused Abdul Mutlib. That IO has prepared sketch memo of country made pistol and two live cartridges exhibited as Ex. PW2/A. That five live cartridges were taken into police possession vide seizure memo exhibited as Ex. PW- 2/B. That the country made pistol and live cartridges were taken into possession vide seizure memo exhibited as Ex. PW-2/C. That accused Shahid was arrested vide arrest memo exhibited as Ex. PW-2/D and personal search of the accused was conducted vide personal search memo exhibited as Ex. PW-2/E. That accused Abdul Mutlib was arrested vide arrest memo exhibited as Ex. PW-2/F and the personal search of the accused Abdul Mutlib was conducted vide memo exhibited as Ex. PW-2/G. That disclosure statement of the accused Shahid is Ex. PW-2/H. That disclosure statement of the accused Abdul Mutlib is Ex. PW-2/I. That IO recorded the statement of the said PW. Witness correctly identified the accused and the case property produced before the court. PW-2 HC Kanhaiya was cross examined by Ms. Priyanka Kasana, Legal Aid Counsel for the accused Shahid and by Sh S.P.S Chuahan, Ld. Counsel for the accused Abdul Mutlib. In his cross examination PW-2 was not able recollect the time when secret informer gave information and also failed to recollect DD number by which they departed for vehicle checking duty. PW-2 admitted that the place where the accused persons were arrested was populated area but no public person was made as a witness though they requested them but they went away without telling their names. The accused persons were on foot and coming together. The pistol and cartridges were recovered from left pocket of accused Shahid and the same were taken into possession by ASI S.K. Srivastava and he had searched the State Vs. Shahid @ Bodum and Abdul Mutlib FIR No. 5/13 Page No. 3 of 11 dated 23.08.2016 accused Shahid. That the accused Abdul Mutlib was searched by the said PW i.e HC Kanhiya Lal and five live cartridges were recovered from his left pocket.
6. PW-3 is Ct. Deepak. He deposed that on 04.01.2013 he was posted at PS Chandni Mahal as constable, on that day he along with ASI S.K. Srivastav, HC Kanhiya Lal and Ct. Ravinder were on patrolling duty and at about 6:00 pm they started checking the vehicles at picket behind Delight Cinema and at about 8:00 pm, one secret informer informed to ASI S.K. Srivastava that two persons having illegal arms in their possession were walking at Chatta Lal Miyan. That on receiving of information, ASI S.K Srivastava had formed the raiding team comprising of PW-3, HC Kanhiya Lal and Ct. Ravinder and requested 3-4 passersby to join the raiding team but none agreed. Thereafter, they all surrounded area just ahead of their picket behind Delight Cinema and started waiting for the accused persons. That secret informer pointed out towards the two persons and on the pointing out of the secret informer they apprehended both the accused persons who disclosed their names as Shahid @ Bodam and Abdul Mutlib. That on the directions of the IO, he conducted the personal search of the accused Shahid @ Bodam and recovered one country made pistol and two cartridges from the pocket of wearing pant of accused Shahid @ Bodam. That HC Kahniya and Ct. Ravinder conducted the personal search of the accused Abdul Mutlib and recovered five live cartridges from the inner pocket of wearing jacket. That IO interrogated both the accused persons and checked the abovesaid pistol and found one another live cartridge inside the said pistol. IO prepared the sketch of the abovesaid pistol and three live cartridges on a paper which is already exhibited as Ex. PW2/A. IO also prepared the sketch of five live cartridges recovered from the accused Abdul Mutlib which is already exhibited as Ex. PW-2/B. That IO also measured the said pistol and found total length of the pistol 21.5 cm. The length of handle of pistol as 8cm. The length of cartridges were 7.2 cm. IO prepared pullanda of the abovesaid recovered five cartridges and put serial no. 2 on it. That IO seized both the abovesaid pullanda with State Vs. Shahid @ Bodum and Abdul Mutlib FIR No. 5/13 Page No. 4 of 11 dated 23.08.2016 the seal of SK and filled up CFSL form. IO seized both pullandas vide seizure memo already exhibited as Ex. PW-2/C. IO also prepared rukka and got FIR registered. That IO arrested both the accused persons vide arrest memos and personal search memos already exhibited as Ex. PW-2/D to Ex. PW-2/G. IO also recorded disclosure statement of the accused persons already exhibited as Ex. PW-2/H and Ex. PW-2/I. That IO recorded also recorded his statement. Witness correctly identified the accused and the case property produced before the court. The witness was cross examined by Ld. APP for the State. In his cross examination he admitted that he went to the PS and got the FIR registered and after registration of FIR he returned to the spot along with SI Robin Singh who is the 2nd IO of the case. He also admitted that 2 nd IO arrested both the accused persons and he also prepared site plan and recorded the disclosure statement of the accused persons. PW-3 Ct. Deepak was cross examined by Sh. S.P.S Chuahan, Ld. Counsel for the accused Abdul Mutlib and accused Shahid Badum cross examined the witness by himself. In his cross examination PW admitted that he has not offered his search prior to searching the accused persons. That they had left the PS for patrolling duty vide DD No. 12A. The accused persons were arrested by the second IO.
7. PW-4 Ct. Ravinder. He has deposed on the same lines as deposed by the PW-3 Ct. Deepak. The witness correctly identified both the accused persons and the case property. That on the directions of the IO, HC Kaniyha conducted the personal search of accused Abdul Mutlib and and recovered five cartridges. IO himself conducted the personal search of accused Shahid Bodam recovered one pistol with loaded one live cartridge and two live cartridges from the pocket of wearing pant of accused Shahid Bodam.
8. PW-5 is Ct. Anil. He deposed that on the directions of IO on 16.01.2013 he had obtained the exhibits of the case from Malkhana Moharrar vide receipt no. 5/21/13 and the same were in sealed condition. The exhibits were deposited in FSL Rohini and he handed over the receipt of the same to Malkhana Moharrar. Cross examination was nil despite opportunity being State Vs. Shahid @ Bodum and Abdul Mutlib FIR No. 5/13 Page No. 5 of 11 dated 23.08.2016 given.
9. PW-6 is Puneet Puri Senior Scientific Officer. He deposed that on 16.01.2013, two sealed parcels sealed with the seal of SK of this present case were received in FSL through Ct. Anil and the same were marked to him for examination. The seals on the parcels were intact and as per the specimen seal provided with the FSL form. On opening the first parcel one country made pistol of .315 inch bore and three 8 MM/ .315 inch cartridges were taken out and marked as Ex. F1 and A1 to A3 respectively. On opening the second parcel five 8 MM/.315 inch cartridges were taken out and marked as Ex. A4 to A8 respectively. On examination he found that the country made pistol marked Ex. F1 was in working order. Test fire was conducted successfully by using one of the cartridges marked Ex. A1. The country made pistol marked Ex. F1 was a firearm and the cartridges marked A1 to A8 were ammunition as the defined in Arms Act 1959.The Exhibits were then re-sealed with the seal of PP FSL DELHI. His detailed report in this regard is Ex. PW6/A. Cross examination was nil despite opportunity being given.
10. PW-7 is HC Sanjay. He deposed that on 05.01.2013, he was posted at PS Ch. Mahal as MHC(M) on that day SI Robin Singh deposited two cloth pullindas sealed with the seal SK in the Malkhana along with the seizure memo of the present case. He deposited the same in the Malkhana and made the entry to this effect to register no. 19 at S.No. 1344. He had brought the original register no. 19 of the year 2013 of PS Ch. Mahal which contains the original and entry containing S.No. 1344. The copy of the same is Ex. PW7/A. On 16.01.2013, as per the direction of IO he handed over the above said two pullindas sealed with the seal of SK to Ct. Anil to be deposited the same at FSL Rohini vide RC No. 5/21/13. He made entry to this effect in register no. 19 against S.No. 1344. The copy of the same is Ex.PW7/B. He brought the register no. 21 from dated 23.11.2012 to 28.01.2014 of PS Ch. Mahal which contains the original road certificate no. 5/21/13. The copy of the same is Ex. PW7/C. Ct. Anil handed over the receipt of the FSL to him. On 15.02.2013, Ct. Mahesh handed over him exhibits i.e. two parcels and a State Vs. Shahid @ Bodum and Abdul Mutlib FIR No. 5/13 Page No. 6 of 11 dated 23.08.2016 envelope containing the report sealed with the seal of FSL and he made entry to this effect in register no. 19 against the S. No. 1344. The copy of the same is Ex. PW7/D. And the copy acknowledgment of case acceptance of FSL Rohini is Ex. PW7/E. The above said case property remained untempered and intact during the above said period. He was cross examined by the respective counsels for the accused persons.
11. PW-8 is Sh. Rajesh Deo, A.DCP, South West, District, Delhi. He has deposed that on 01.03.2013, he was posted as Additional DCP at Central District. The file pertaining to case FIR No. 05/13 PS Ch. Mahal u/s 25 Arms Act was put up before him. On perusing the file he was satisfied that an offfence u/s 25 Arms Act is made out in the case. That he had granted the sanction u/s 39 Arms Act. Original placed in the case file has been shown to him which is Ex. PW-8/A. The witness was not cross examined despite opportunity being given.
12. PW-9 is SI Robin Singh. He deposed that on On 04.01.2013, he was posted at PS Chandni Mahal as SI. On that day Ct. Deepak had handed over to him original rukka and copy of FIR for further investigation relating to the present case. Thereafter, he alongwith Ct. Deepak reached behind Delight Cinema, Rakab Ganj, Near Police Chowki where they met ASI S.K. Srivastava, HC Kanhiya Lal, Ct. Ravinder and two other persons namely Shahid and Abdul Mutlib who were apprehended by the abovesaid police officials. Thereafter, ASI S.K. Srivastava handed over to him two sealed pullinda and one FSL form. He inspected the place of occurrence at the instance of ASI S.K. Srivastava and prepared site plan which is Ex.PW-9/A. Thereafter, he recorded the statement of ASI S.K. Srivastava u/s 161 Cr.P.C. Thereafter, he interrogated the accused persons Shahid and Abdul Mutilb and thereafter arrested both the accused persons vide memo which is already Ex. PW-2/D and PW-2/F. Thereafter, he conducted personal search of the accused persons and prepared memo which is already exhibited as Ex. PW-2/E and PW-2/G. He recorded the disclosure statement of both the accused persons which is already exhibited as Ex. PW-2/H and PW-2/I . Thereafter, he State Vs. Shahid @ Bodum and Abdul Mutlib FIR No. 5/13 Page No. 7 of 11 dated 23.08.2016 recorded the statement of police officials u/s 161 Cr.P.C. Thereafter, they took the accused persons and went to LNJP hospital and got conduct medical examination. After medical examination both the accused persons were sent to Police lockup and exhibits were deposited in Malkhana. Thereafter, information of arrest of both the accused persons was given to their relatives. During the reading of FIR he found typographical error in the FIR where 7 rounds are mentioned instead of 8 rounds. Thereafter, he mentioned said typographic mistake in CD. On 05.01.2013, both accused persons were produced before the court and court sent them to JC. On 16.01.2013, the above said deposited exhibits were sent to FSL Rohini by him through Ct. Anil. Thereafter, he recorded the statement of Ct. Anil and Malkhana incharge HC Sanjay. On 17.02.2013, he obtained the FSL result from FSL Rohini and prepared draft challan and sent to concerned authority for permission u/s 39 Arms Act. After receiving the the permission from concerned authorities he prepared the challan and filed the same in the court. He was cross examined by Ms. Priyanka Kasna, Legal Aid Counsel for the accused Shahid and by Sh S.P.S Chuahan, Ld. Counsel for the accused Abdul Mutlib. In his cross examination he admitted that he reached at the spot at about 10 am and remained at the spot till about 01:00 am. Public persons were gathered but at a distance of about 10-12 metres from the spot. That he requested the public persons to join the investigation but none agreed.
13. PW-10 is ASI S.K. Srivastava. He has deposed that, on 04.01.2013 he was posted at PS Chandni Mahal as a ASI. On that day, he alongwith HC Kanhaiya, Ct. Deepak and Ct. Ravinder was checking the vehicles at Delite Cinema Hall. At about 8.00 pm one secret informer came to him and told that regarding illegal weapons which can be recovered from two boys, coming from Chatta Lal Mia. He briefed his staff about this and also asked the public persons to join raiding party but none agreed and left the spot. At about 8.30 pm above mentioned two boys came from Chatta Lal Mia. At once, said secret informer pointed out towards both the boys. Thereafter, he alongwith Ct. Deepak apprehended Shahid and HC Kanhaiya alongwith Ct. Ravinder State Vs. Shahid @ Bodum and Abdul Mutlib FIR No. 5/13 Page No. 8 of 11 dated 23.08.2016 apprehended other associate namely Abdul Mutlib. Thereafter, they searched accused Shahid and found one loaded desi katta (total measurement about 21.5 cm, wood handle length 8 cm, body length 8.9 cm, barrel length 10 cm) recovered from the left pocket (inside) of his pant and also recovered two live cartridge from right pocket of his pant (total length of live cartridge 7.2 cm and penda length 1.3 cm with the mark of 8 mm KF). Thereafter, they unloaded one live cartridge which was loaded earlier in the said desi katta. HC Kanhaiya searched other accused namely Mutlib and found five live cartridge from his pocket of jacket from left side (total length of live cartridge 7.2 cm and penda length 1.3 cm with the mark of 8 mm KF). Thereafter, he prepared sketch memo of above said recovered case property which is already Ex PW2/A and Ex PW2/B. Thereafter, he seized said case property in white pulinda with the seal of SK and prepared memo which is already Ex PW2/C. They gave number to desi katta and three live cartridge as 1 and five live cartridges as 2. Thereafter, he filled FSL form. Thereafter, he prepared rukka which is already Ex PW1/B and handed over to Ct. Deepak for registration of FIR. Ct. Deepak went to PS and got FIR registered. After registration of FIR Ct. Deepak came at the spot alongwith SI Robin Singh. Thereafter, he handed over both the accused persons, said sealed pullinda, sketch memo and seizure memo to SI Robin Singh, thereafter, SI Robin Singh prepared site plan which is already Ex PW9/A. Thereafter, IO recorded his statement u/s 161 Cr.PC. He was cross examined by Ms. Priyanka Kasna, Legal Aid Counsel for the accused Shahid and by Sh S.P.S Chuahan, Ld. Counsel for the accused Abdul Mutlib. In his cross examination he stated that secret information was given to him by the informer. That they had departed from the PS vide DD Entry No. 4 dated 04.01.2013 at about 04:00 pm. That they had also offered their search to the accused persons. The spot was a residential area and some public persons were requested to join the investigation but none agreed and went away from the spot.
14. After closure of prosecution evidence, statement of accused persons Shahid @ Bodum and Abdul Mutlib U/s 313 Code of Criminal Procedure, 1973 was State Vs. Shahid @ Bodum and Abdul Mutlib FIR No. 5/13 Page No. 9 of 11 dated 23.08.2016 recorded. Incriminating evidence was put to the accused persons and they were questioned generally on the case. They denied all the allegations and stated that they were innocent and had been implicated falsely in the present case. The accused persons opted not to lead any Defence Evidence.
15. I have gone through the rival submissions of both the parties as well as material on record carefully.
16. All the witnesses examined on behalf of the prosecution have been consistent and coherent in their deposition. The accused persons have been charged for offence u/s 25 Arms Act. Clause (a) of sub Section (1B) of Section 25 of Arms Act criminalizes the acquisition, possession of fire arms or ammunition in contravention of Section 3 of the Arms Act and punishes the same. In my view apart from some minor contradictions the prosecution has been broadly able to prove its case beyond reasonable doubt.
The Pws which formed part of the raiding party namely ASI S.K. Srivastava, Ct. Deepak, HC Kanhiya and Ct. Ravinder have been successful in proving the recovery of one alleged loaded country made pistol and two live cartridges from the wearing pant of accused Shahid @ Bodum and recovery of five live cartridges from the inner jacket of the accused Abdul Mutlib. Seizure/recovery memo which is exhibited as Ex. PW-2/C has been witnessed by HC Kanhiya and Ct. Deepak and has been duly proved.
All the precautions were taken in sealing the case property into two separate pullandas and in depositing the same in Malkhana and thereafter, all the precautions were taken for sending two pullandas one containing the country made pistol and 3 cartridges and other containing 5 live cartridges to FSL. Ballistic Expert Puneet Puri appeared before the court as a prosecution witness and he deposed that country made pistol was a fire arm which was in working condition and the cartridges were ammunition within the meaning of Arms Act and he proved his report as Ex. PW-6/A. A. DCP Rajesh Deo also appeared as a prosecution witness and proved the sanction accorded by him for the prosecution of the accused persons U/s 39 Arms Act. It was only after obtaining the sanction the challan was filed in the State Vs. Shahid @ Bodum and Abdul Mutlib FIR No. 5/13 Page No. 10 of 11 dated 23.08.2016 present case.
No reasonable explanation has been tendered on behalf of the accused persons to account for the possession of illegal weapon in contravention of the law and the rules which criminalize the possession of arms and ammunition without license. There was minor defect in charge. The recoveries effected from the accused persons Shahid @ Bodam and Abdul Mutlib were not accurately stated.
However, in my opinion this is not the fatal for the prosecution case as the accused persons were throughout the case represented by their respective counsels and Section 215 Cr.P.C provides that any error or omission in the charge cannot be regarded as material unless accused was mislead by such error or omission or it caused a grave failure of justice.
In my opinion the accused persons were not mislead by this defect in charge and there is no failure of justice in the case at hand.
It has been vehemently argued by Ld. Counsel for the accused persons that no public person were joined during the investigation. Though the prosecution could have proved its case even better if they had joined public persons present at the spot but non joining of the public witnesses does not give a fatal blow to the case of the prosecution which has been otherwise proved beyond reasonable doubt.
17. Thus, the accused persons Shahid @ Badam and Abdul Mutlib stand convicted in FIR No. 5/13 PS Chandni Mahal for offence U/s 25/54/59 Arms Act.
18. Copy of judgment supplied dasti to the convicts forthwith free of cost.
19. Put up for hearing on the point of sentence for 29.08.2016 at 2:00 pm. (Announced in open Court on 23.08.2016 ) (Rashmi Gupta) MM-09/Central/THC 23.08.2016 The judgment contains 11 pages and all the pages bears my signatures.
(Rashmi Gupta) MM-09/Central/THC/23.08.2016 State Vs. Shahid @ Bodum and Abdul Mutlib FIR No. 5/13 Page No. 11 of 11 dated 23.08.2016