Delhi District Court
State vs Md. Mehtab on 9 December, 2024
IN THE COURT OF JUDICIAL MAGISTRATE FIRST
CLASS-08 (CENTRAL), TIS HAZARI COURTS : DELHI
PRESIDED OVER BY : MS. SAYESHA CHADHA, DJS
FIR No. 793/21
PS : Kotwali
U/s 25 Arms Act
State vs. Mohd. Mehtab
and Anr.
Date of Institution of case: 01.10.2021
Date when Judgment reserved: 09.12.2024
Date on which Judgment pronounced: 09.12.2024
JUDGMENT
A. Case No. : 10841/2021
B. Date of Institution of Case : 01.10.2021
C. Date of Commission of Offence : 27.08.2021
D. Name of the complainant : Ct. Anil
E. Name of the Accused : 1. Md. Mehtab s/o
& his parentage and residence Sh. Md. Saleem, R/o
H.No.2575, Gali Devi
Das, Chudiwalan, Chandni
Chowk, Delhi.
2. Jaleel Ahmed s/o Sh.
Istiyaq Ahmed, r/o 1376,
Kalu Ka Vas Haveli, Chitli
Qabar, Jama Masjid,
Delhi.
F. Offences complained of : U/s 25 Arms Act
G. Plea of the Accused : Pleaded not guilty
H. Final order : Acquittal
State Vs. Mohd. Mehtab and Anr.
FIR No. 793/2021
PS Kotwali
1/21
I. Date of such order : 09.12.2024
BRIEF STATEMENT OF REASONS FOR DECISION OF THE CASE:
1. Breifly stated that on 27.08.2021 at about 7:50 PM near Metro Station Gate No.3, Jama Masjid Bus Stand, Delhi falling within the jurisdiction of PS Kotwali, accused persons were found in possession of buttondar knife as per seizure memo marked as Mark A & Mark B without any license and in contravention of DAD Notification and thereby accused persons committed an offence punishable U/s. 25 Arms Act.
INVESTIGATION AND APPEARANCE OF ACCUSED
2. After registration of the FIR, the Investigating Officer (hereinafter, "IO") undertook investigation and on culmination of the same, charge-sheet against the accused persons was filed.
After taking cognizance of the offence, a copy of charge-sheet was supplied to the accused persons in terms of Section 207 of the Code of Criminal Procedure, 1973 (hereinafter, "CrPC"). On finding a prima facie case against the accused persons, charge under sections 25 Arms Act was framed against b o t h the accused persons to which they pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE-
3. Thereafter, the prosecution was given the opportunity to substantiate the allegations against the accused. The prosecution State Vs. Mohd. Mehtab and Anr.
FIR No. 793/2021PS Kotwali 2/21 examined 4 (four) witnesses in support of its case:
4. PW-1 HC Rajesh has deposed that on 27.08.2021, he was on emergency patrolling duty on his government motorcycle bearing registration no. DL-1SAD-2346. On that day, during patrolling, at about 7:45 pm when he reached at bus stop lower Subhash marg near Jama Masjid metro gate no. 3, he met Ct. Anil and stopped there for sometime. After 10 to 15 minutes, two persons who was coming towards them from the side of upper Subhash Marg and after seeing them on duty they turned back and started walking hastily, due to which they got suspicion on them. Thereafter, they apprehended them. Thereafter, they inquired them, they could not give any satisfactory answer. On inquiring them, the name of the accused who Ct. Anil apprehended was revealed as Mohd Mehtab and the name of the other accused who was apprehended by him was revealed as Jalil Ahmed. Thereafter, Ct. Anil conducted cursory search of the accused namely Mohd Mehtab and he conducted cursory search of the accused Jalil Ahmed and Ct. Anil recovered one buttondar knife from the right pocket of the pants of accused Mohd Mehtab and he recovered one buttondar knife from the right pocket of the lowers of accused Jalil Ahmed. Thereafter, Ct. Anil informed about the incident to Duty Officer. In compliance of which IO/HC Pradeep alongwith Ct. Rakesh came to the spot. Thereafter, they informed about the incident to the IO and handed over custody of both the accused persons alongwith both buttondar knives to the IO. Thereafter, IO asked 4 to 5 public persons to join the investigation but they refused to join and left the place on pretext of some urgent work. No notice was served State Vs. Mohd. Mehtab and Anr.
FIR No. 793/2021PS Kotwali 3/21 to them due to paucity of time. IO recorded the statement of Ct. Anil. Thereafter, IO prepared the sketch memo of the buttondar knife recovered from the possession of the accused Mohd Mehtab by putting the same on white paper Ex.PW-1/A bearing his signature at point A. The total length of knife was 23 cm and the length of butt was 12.5 cm and width of blade was 2.5 cm having a button on the handle of knife and the length of the blade was 10.5 cm. Thereafter, IO put the knife in the white cloth and prepared pullanda and sealed it with the seal MK. Thereafter, IO prepared the seizure memo Ex.PW-1/B bearing his signature at point A. Thereafter, IO prepared the sketch memo of the buttondar knife recovered from the possession of the accused Jalil Ahmed by putting the same on white paper Ex.PW-1/C bearing his signature at point A. The total length of knife was 22.4 cm and the length of butt was 12.2 cm and width of blade was 2.5 cm having a button on the handle of knife and the length of the blade was 10.2 cm. Thereafter, IO put the knife in the white cloth and prepared pullanda and sealed it with the seal MK. Thereafter, IO prepared the seizure memo Ex.PW-1/D bearing his signature at point A. Thereafter, IO prepared the tehrir / rukka and handed over the same to Ct. Rakesh for the registration of the FIR. After registration of the FIR, Ct. Rakesh came back to the spot and handed over the copy of FIR and original tehrir / rukka to the IO. Thereafter, IO inserted the particulars of the case on sketch memo and seizure memo. IO prepared the site plan at his instance and of Ct. Anil. Thereafter, IO arrested both the accused persons vide arrest memos Ex. PW-1/E and PW-1/F both bearing his signatures at point A and carried out their personal search State Vs. Mohd. Mehtab and Anr.
FIR No. 793/2021PS Kotwali 4/21 vide memos Ex. PW-1/G and PW-1/H both bearing his signatures at point A. IO recorded the disclosure statements of both the accused persons Ex.PW-1/I and PW-1/J both bearing his signatures at point A. Thereafter, they alongwith both the accused persons searched for the co-accused persons from whom both the accused have purchased the buttondar knife but they could not be traced. Thereafter, both the accused persons were taken to Aruna Asaf Ali Government Hospital and were medically exmained and were later on put behind bars in the lockup of the PS and IO deposited the case property i.e. both the buttondar knives in the Malkhana. IO recorded his statement U/s 161 CrPC and he was discharged. He has correctly identified both the accused. He has correctly identified the case property i.e., the buttondar knife Ex.P1 and Ex.P2 as the one which were seized from the possession of both the accused persons on the date of incident.
5. During cross-examination, PW-1 admitted that the incident spot was a crowded area. He admitted that he did not give written notice to join the investigation to any public person. He did not record the name and addresses of the public persons. He admitted that the CCTV cameras were not installed on the spot. He denied that he did not make any efforts to get the CCTV footage. He remained at the spot from 07:45 pm to 11.30 pm. He admitted that the sketch memo and the seizure memo were prepared in his presence. He admitted that case properties were measured and measurements were mentioned in abovesaid memos in his presence. He admitted that the dimensions of the buttondar knife mentioned in the seizure memo i.e. Ex.PW1/B was different from the dimension mentioned in the sketch memo i.e., Ex. PW1/A. He admitted that he did not offer his personal search before searching the accused person. He denied that no case property was State Vs. Mohd. Mehtab and Anr.
FIR No. 793/2021PS Kotwali 5/21 recovered from the accused or that the case property was falsely implanted upon the accused. He denied that all the documents prepared while sitting at the PS. He denied that he was deposing falsely.
6. PW-2 HC Rakesh Kumar has deposed that on 27.08.2021, he alongwith IO/HC Pradeep Kumar after receiving DD No. 77A went to the spot i.e. metro station gate no.3, Jama Masjid bus stand. There he met Ct. Anil and Ct. Rajesh. Ct. Anil handed over the custody of the accused Md. Mehtab and one buttondar knife recovered from the accused Mehtab to the IO. Thereafter, IO kept the knife on the white paper and prepared the sketch memo Ex.PW-1/A and seized the same vide seizure memo Ex. PW-1/B after preparing pullanda and duly sealed with the seal of MK. The total length of the knife was 23 cm, the length of the butt was 12.5 cm, width of the blade was 2.5 cm and the length of the blade was 10.5 cm. Thereafter, Ct. Rajesh handed over the custody of the accused Jaleel Ahmed and one buttondar knife recovered from the accused Jaleel to the IO. Thereafter, IO kept the knife on the white paper and prepared the sketch memo Ex. PW-1/C and seized the same vide seizure memo Ex. PW-1/D after preparing pullanda and duly sealed with the seal of MK. The total length of the knife was 22.4 cm, the length of the butt was 12.2 cm, width of the blade was 2.5 cm and the length of the blade was 10.2 cm. Thereafter, IO prepared tehrir/rukka and handed over the same to me for registration of FIR. Accordingly, he went to PS and got FIR registered. After registration of FIR, he came back at the spot and handed over the original rukka and copy of FIR to the IO at about 11:15 pm. Thereafter, IO inserted State Vs. Mohd. Mehtab and Anr.
FIR No. 793/2021PS Kotwali 6/21 the particulars of the case on the sketch memos and seizure memos. Thereafter, IO prepared the site plan at the instance of Ct. Anil and Ct. Rajesh. IO arrested both the accused persons and carried out their personal search and recorded their disclosure statements vide memos Ex. PW-1/E, PW-1/F, PW-1/G, PW-1/H, PW-1/I and PW-1/J. The disclosure statements bearing his signatures at point B. Thereafter, they went in search of other co- accused persons from whom the accused persons have purchased the buttondar knifes but they could not be traced. Thereafter, both the accused persons were taken to Aruna Asaf Ali Hospital for medical examination and were later on put behind the bars in the police station and IO deposited the case property in Malkhana. Thereafter, IO recorded his statement u/s 161 CrPC and he was discharged. He has correct identified both the accused persons. He can identify the case property i.e. the buttondar knifes recovered from the possession of accused persons if shown to him. The case property exhibited as Ex. P-1 and P-2.
7. During cross-examination, PW-2 admitted that no weapon was recovered from the accused persons in his presence. He admitted that no photos were taken of the accused alongwith weapon was taken in his presence. In his presence, no CCTV footage was taken by the IO. No written notice was served to the public persons by the IO in his presence. He remained at the spot from 8:00 pm to 9:30 pm and after coming from the PS alongwith rukka and FIR, he finally left the spot at 11:30 pm. He denied that no recovery was made from the accused persons. He denied that the accused persons were falsely implicated in this case on the instance of IO. He denied that all the documents were State Vs. Mohd. Mehtab and Anr.
FIR No. 793/2021PS Kotwali 7/21 prepared by the IO in the PS. He denied that he was deposing falsely.
8. PW-3 HC Anil Kumar has deposed that on 27.08.2021, he was posted as Ct. at PS Kotwali. On that day, he was on picket duty at bus stop lower Subhash marg near Jama Masjid metro Gate no. 3. On that day, at about 7:45 pm Ct. Rajesh came at the bus stop reached at bus stop on his personal motorcycle and met him and stopped there for sometime. After 10 to 15 minutes, two persons were coming towards us from the side of upper Subhash Marg and after seeing them on duty they turned back and started walking hastily, due to which, they got suspicion on them. Thereafter, they apprehended them. Thereafter, they inquired them, they could not give any satisfactory answer. On inquiring them, the name of the accused who was apprehended by him revealed as Mohd Mehtab and the name of the other accused who was apprehended by Ct. Rajesh was revealed as Jalil Ahmed. Thereafter, he conducted cursory search of the accused namely Mohd Mehtab and Ct. Rajesh conducted cursory search of the accused Jalil Ahmed. He got recovered one buttondar knife from the right pocket of the pants of accused Mohd Mehtab on his search and Ct. Rajesh recovered one buttondar knife from the right pocket of the lowers of accused Jalil Ahmed. Thereafter, he informed about the incident to Duty Officer. In compliance of which IO/HC Pradeep alongwith Ct. Rakesh came at the spot. Thereafter, they informed about the incident to the IO and handed over custody of both the accused persons alongwith both buttondar knives to the IO. Thereafter, IO asked 4 to 5 public persons to join the investigation but they refused to join and left State Vs. Mohd. Mehtab and Anr.
FIR No. 793/2021PS Kotwali 8/21 the place on pretext of some urgent work. No notice was served to them due to paucity of time. IO recorded his statement Ex. PW-3/A bearing his signature at point A. Thereafter, IO prepared the sketch memo of the buttondar knife recovered from the possession of the accused Mohd Mehtab by putting the same on white paper Ex.PW-1/A bearing his signature at point B. The total length of knife was 23 cm and the length of butt was 12.5 cm and width of blade was 2.5 cm having a button on the handle of knife and the length of the blade was 10.5 cm. Thereafter, IO put the knife in the white cloth and prepared pullanda and sealed it with the seal MK. Thereafter, IO prepared the seizure memo Ex.PW-1/B bearing his signature at point B. Thereafter, IO prepared the sketch memo of the buttondar knife recovered from the possession of the accused Jalil Ahmed by putting the same on white paper Ex.PW-1/C bearing his signature at point B. The total length of knife was 22.4 cm and the length of butt was 12.2 cm and width of blade was 2.5 cm having a button on the handle of knife and the length of the blade was 10.2 cm. Thereafter, IO put the knife in the white cloth and prepared pullanda and sealed it with the seal MK. Thereafter, IO prepared the seizure memo Ex.PW-1/D bearing his signature at point B. Thereafter, IO prepared the tehrir / rukka and handed over the same to Ct. Rakesh for the registration of the FIR at about 11:00 pm. After registration of the FIR, Ct. Rakesh came back to the spot and handed over the copy of FIR and original tehrir / rukka to the IO. Thereafter, IO inserted the particulars of the FIR on sketch memos and seizure memos. IO prepared the site plan at his instance and of Ct. Rajesh . Thereafter, IO arrested both the State Vs. Mohd. Mehtab and Anr.
FIR No. 793/2021PS Kotwali 9/21 accused persons vide arrest memos Ex.PW-1/E and PW-1/F both bearing his signatures at point B and carried out their personal search vide memos Ex. PW-1/G and PW-1/H both bearing his signatures at point B. IO recorded the disclosure statements of both the accused persons Ex.PW-1/I and PW-1/J both bearing his signatures at point C. Thereafter, they alongwith both the accused persons searched for the co-accused persons/source from whom both the accused have purchased the buttondar knife but they could not be traced. Thereafter, both the accused persons were taken to Aruna Asaf Ali Government Hospital and were got medically examined and were later on put behind bars in the lockup of the PS and IO deposited the case property i.e. both the buttondar knives in the Malkhana. IO recorded his supplementary statement U/s 161 CrPC and he was discharged. he has correctly identified both the accused persons. He can identify the case property if shown to him. Ld. Counsel/LAC for both the accused submits that he is not disputing the identity of case property. The case property exhibited as Ex.P-1 and Ex. P-2.
9. During cross-examination, PW-3 admitted that no chance print was taken from the weapons nor any photographs of the accused persons were taken alongwith the case property in his presence. He admitted that the incident spot is a crowded area. He admitted that he did not give written notice to join the investigation to any public person. He did not record the name and addresses of the public persons. He admitted that the CCTV cameras were not installed on the spot. He denied that he did not make any efforts to get the CCTV footage. He remained at the spot from 11:00 am to 11.40 pm. He admitted that the sketch State Vs. Mohd. Mehtab and Anr.
FIR No. 793/2021PS Kotwali 10/21 memo and the seizure memo were prepared in his presence. He admitted that case properties were measured and measurements were mentioned in abovesaid memos in his presence. He admitted that he did not offer his personal search before searching the accused person. He denied that no case property was recovered from both the accused persons or that the case property was falsely planted upon them. He denied that all the documents were prepared while sitting at the PS by the IO. He denied that he was deposing falsely.
10. PW-4 HC Pardeep has deposed that on 27.08.2021, he alongwith Ct. Rakesh after receiving DD No. 77A went to the spot i.e. metro station gate no.3, Jama Masjid bus stand. There they met Ct. Anil and Ct. Rajesh. Ct. Anil handed over the custody of the accused Md. Mehtab and one buttondar knife recovered from the accused Mehtab to him. Thereafter, he kept the knife on the white paper and prepared the sketch memo Ex. PW-1/A bearing his signature at point X and seized the same vide seizure memo Ex. PW-1/B bearing his signature at point X. After preparing pullanda and duly sealed with the seal of MK. The total length of the knife was 23 cm, the length of the butt was 12.5 cm, width of the blade was 2.5 cm and the length of the blade was 10.5 cm. Thereafter, Ct. Rajesh handed over the custody of the accused Jaleel Ahmed and one buttondar knife recovered from the accused Jaleel to him. Thereafter, he kept the knife on the white paper and prepared the sketch memo Ex. PW-1/C bearing his signature at point X and seized the same vide seizure memo Ex. PW-1/D bearing my signature at point X. After preparing pullanda and duly sealed with the seal of MK. The total length of State Vs. Mohd. Mehtab and Anr.
FIR No. 793/2021PS Kotwali 11/21 the knife was 22.4 cm, the length of the butt was 12.2 cm, width of the blade was 2.5 cm and the length of the blade was 10.2 cm. Thereafter, he prepared tehrir/rukka and handed over the same to Ct. Rakesh for registration of FIR. Accordingly, he went to PS and got FIR registered. After registration of FIR, he came back at the spot and handed over the original rukka and copy of FIR to him at about 11:15 pm. Thereafter, he inserted the particulars of the case on the sketch memos and seizure memos. Thereafter, he prepared the site plan at the instance of Ct. Anil and Ct. Rajesh Ex.PW-4/A bearing his signature at point X. He arrested both the accused persons and carried out their personal search and recorded their disclosure statements vide memos Ex.PW-1/E, PW-1/F, PW-1/G, PW-1/H, PW-1/I and PW-1/J all bearing his signature at point X. The disclosure statements bearing his signatures at point X. Thereafter, they went in search of other co- accused persons from whom the accused persons have purchased the buttondar knifes but they could not be traced. Thereafter, both the accused persons were taken to Aruna Asaf Ali Hospital for medical examination and were later on put behind the bars in the police station and he deposited the case property in Malkhana. Thereafter, he recorded the statements of witnesses. On completion of investigation, he prepared the charge-sheet and submitted the same before the concerned court. He has correctly identified both the accused persons. He can identify the case property i.e. the buttondar knifes recovered from the possession of accused persons if shown to him. The case property exhibited as Ex. P-1 and P-2. Hence, production of same was dispensed with.
State Vs. Mohd. Mehtab and Anr.
FIR No. 793/2021PS Kotwali 12/21
11. During cross-examination, PW-4 stated that he did not produced the case property before court after seizing the same before depositing it to malkhana. He admitted that no weapon was recovered from the accused persons in his presence. He admitted that no photos were taken of the accused alongwith weapon was taken in my presence. No CCTV footage was taken by him. No written notice was served to the public persons by him. He remained at the spot from 9:00pm and he finally left the spot at 12:30 am. He denied that no recovery was made from the accused persons. He denied that the accused persons were falsely implicated in this case. He denied that all the documents were prepared by him in the PS. He denied that he was deposing falsely.
12. Vide separate statements of the accused recorded u/s 294 CrPC, the accused persons admitted the factum of registration of FIR Ex.A-1, certificate u/s 65 B Ex.A-2, GD No. 77A dated 27.08.2021 Ex.A-3 and DAD notification Ex.A-4 without admitting the contents of the same. Vide order dated 09.09.2024, PE was closed at the request of Ld. APP for the State.
STATEMENT OF ACCUSED AND DEFENCE EVIDENCE
13. On 19.10.2024, statement of the accused u/s 313 Cr.PC was also recorded wherein accused denied the case of the prosecution and stated that he has been falsely implicated in the case and false case has been registered against him.
State Vs. Mohd. Mehtab and Anr.
FIR No. 793/2021PS Kotwali 13/21 ARGUMENTS
14. During final arguments, it was argued by Ld. APP for the State that the case against the accused stood proved in view of the evidence led by the prosecution. Accordingly, he argued that accused deserved to be convicted for the offence u/s 25 Arms Act.
15. On the other hand, the Ld. defence counsel argued that the prosecution has failed to bring out a case against the accused, especially in view of the fact that no independent public witnesses were made a part of the search despite the fact that the accused was arrested from a public place. He further argued that no CCTV footage indicating presence of the accused and the police official at the alleged place of incident has been placed on record. No chance prints were also taken from the alleged weapon of recovery. Hence, he prayed for the accused to be acquitted for the offences u/s 25 Arms Act.
ANALYSIS
16. The accused persons have been charged for the offence under Section 25 of the Arms Act, as one buttondar knife was recovered from the accused persons each during the patrolling by the complainant. Under sub-clause (1-B)(b) of the provision, acquisition, possession or carrying of arms in contravention of notification issued under Section 4 of the Arms Act is an offence. Section 4 stipulates that the Central Government can regulate possession, acquisition or carrying of certain arms not firearms in any area whenever it is necessary or expedient in public interest. After the notification, possession of such arms in that specified State Vs. Mohd. Mehtab and Anr.
FIR No. 793/2021PS Kotwali 14/21 area without any licence would be a breach liable to be punished under Section 25(1B)(b) of the Arms Act. In the present case, the prosecution has relied upon the notification dated 29.10.1980 issued by the Delhi Administration (Ex. A7) whereby possession for sale of certain knives with specified sharp edged blade of more than 7.62 cms or more in length and 1.72 cms or more in breadth is barred.
17. Needless to mention, in criminal law, the burden of proof on the prosecution is that of beyond reasonable doubt. The presumption of innocence of the accused has to be rebutted by the prosecution by adducing cogent evidence that points towards the guilt of the accused.
18. In order to sustain conviction u/s 25 of Arms Act, the prosecution is required to prove the following ingredients:
(1) The accused was found in the possession of the button actuated knife.
(2) The accused was carrying the same without any licence/permit or in contravention of notification of Delhi Administration.
19. In the case such as the present one, the fact of recovery is of utmost importance to bring home the guilt of an accused. It is stated that while on patrolling duty, PW-1 HC Rajesh and PW-3 HC Anil Kumar intercepted the accused and recovered a button- dar knife from their right side pant pocket. It is not disputed by the prosecution witnesses on whose testimony the prosecution State Vs. Mohd. Mehtab and Anr.
FIR No. 793/2021PS Kotwali 15/21 seeks to rely upon that at the time of apprehension of the accused, there were members of general public available at the spot from where recovery was made, however it is both apparent and surprising that no independent witness was made to join the investigation by the police.
20. The importance of joining public persons in the recovery proceedings has time and again been emphasised by Judicial pronouncements. At this juncture, reference is made to the judgment of Roop Chand v. State of Haryana 1989 SCC OnLine P&H 539 : (1989) 2 RCR (Cri) 504, wherein it has been observed:
"4. It is well settled principle of law that the Investigating Agency should join independent witnesses at the time of recovery of contraband articles, if they are available and 5/2023 their failure to do so in such a situation casts a shadow of doubt on the prosecution case. In the present case also admittedly the independent witnesses were available at the time of recovery but they refused to associate themselves in the investigation. This explanation does not inspire confidence because the police officials who are the only witnesses examined in the case have not given the names and addresses of the persons contacted to join.
21. It is a very common excuse that the witnesses from the public refused to join the investigation. A police officer conducting investigation of a crime is entitled to ask anybody to join the investigation and on refusal by a person from the public the Investigating Officer can take action against such a person under the law. Had it been a fact that the witnesses from the public had refused to join the investigation, the Investigating Officer must have noted down their names and addresses etc. and State Vs. Mohd. Mehtab and Anr.
FIR No. 793/2021PS Kotwali 16/21 would have proceeded against them under the relevant provisions of law. The failure to do so by the police officer is suggestive of the fact that the explanation for non-joining the witnesses from the pubic is an after thought and is not worthy of credence. All these facts taken together makes the prosecution case highly doubtful."
22. Reliance is placed upon the judgement of State of Punjab v. Balbir Singh, AIR 1994 SC 1872, wherein the Hon'ble Supreme Court has observed that:
"It therefore emerges that non-compliance of these provisions i.e. Sections 100 and 165 Cr.P.C. 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 complied 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."
23. Burden therefore, lies on the prosecution to establish that the association of public witnesses was not possible in the facts and circumstances of the case. However, in the present case, nothing in the testimony of prosecution witnesses suggests that sincere efforts were made by them to involve independent witnesses in the process of recovery and arrest.
State Vs. Mohd. Mehtab and Anr.
FIR No. 793/2021PS Kotwali 17/21
24. In the present case, there was no lack of time and opportunity to associate some independent witnesses with the search and strictly comply with the provisions of Code of Criminal Procedure. As per documentary evidence, the accused was apprehended at 7:50 pm. The rukka Ex.PW3/A was prepared at 11:00 pm. The FIR Ex.A-1 was registered at 11.18 pm. As per arrest memos Ex. PW1/E and Ex.PW1/F, the accused persons were arrested at 11.35 PM. Therefore, it is clear that the police officials were not hard pressed for time as they remained at the spot from atleast 7.50 pm till atleast 11.35 pm. However, despite being at the spot for about three hours, they did not join any public person in the investigation. IO has even admitted the presence of public witnesses at the spot and yet no independent public witnesses, in stark violation of Section 100 (4) CrPC, were joined in the investigation at the time of alleged recovery. IO did not even mention the names or addresses of those persons who refused to join the recovery proceedings. No explanation has come on record to show whether any notice was served upon the public witnesses requiring them to join the proceedings or to face action under Section 187, Indian Penal code.
25. In the absence of any independent witness having been joined in the investigation, false implication of the accused by the police in the present case cannot be ruled out. Reliance is placed upon the Judgment of the Hon'ble Supreme Court in case of Hemraj vs State of Haryana (AIR 2005 SC 2110) wherein it was observed that, "the fact that no independent witness though available, was examined and not even an explanation was sought State Vs. Mohd. Mehtab and Anr.
FIR No. 793/2021PS Kotwali 18/21 to be given for not examining such witness is a serious infirmity in the prosecution case.
26. Another dent in the prosecution case is related to the seal. It is crucial to note here that there is a major discrepancy in this regard that the seal was not handed over to an independent witness after use.
27. This Court is conscious of precedent laid down by Hon'ble Delhi High Court in Safiullah v. State 1993 (1) RCR (CRIMINAL) 622, that:
"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."
28. Coming to the factual matrix of the present case, the recovery witnesses namely PW-1, PW-2, PW-3 and PW-4 have deposed in their examination-in-chief that PW-4 had seized and sealed the case property at the spot in a white pullanda with the seal of MK. No explanation has come on record as to whom the seal was handed over. In fact, no seal handing memo has been placed on record. Therefore, the possibility of tampering with the case property cannot be ruled out.
29. In this regard, judgment in a case titled as Ramji Singh Vs. State of Haryana 2007 (3) RCR (CRIMINAL) 452, may be adverted to, wherein it was observed in paragraph 7 that:
State Vs. Mohd. Mehtab and Anr.FIR No. 793/2021
PS Kotwali 19/21 "...The very purpose of giving a seal to an independent person is to avoid tampering of the case property. It is well settled that till the case property is not dispatched to the forensic science laboratory, the seal should not be available to the prosecuting agency and in the absence of such a safeguard the possibility of seal, contraband and the samples being tampered with cannot be ruled out."
30. It is also pertinent to mention that no chance print was taken from the seized knife to attribute it with the possession of the accused. No CCTV footage or CDR is also on record to fortify the claims of the prosecution. No photographs of the accused has been taken at the time of recovery.
31. All the lapses in investigation create doubt on the recovery of the buttondar knife from the possession of the accused persons, which is the essential ingredient of the offence under Sec. 25 Arms Act.
CONCLUSION -
32. To recapitulate the above discussion, to bring home the guilt of the accused persons, the prosecution was required to prove the offence under Section 25 Arms Act beyond reasonable doubt. The accused persons have been successful in pointing out the deficiencies in the case of the prosecution. The recovery of the illicit arm from the possession of the accused persons is highly doubtful, owing to various circumstances discussed above. The evidence of police witnesses is not reliable and no independent witnesses were joined, despite abundant availability. Inconsistencies and deficiencies in the version of the prosecution State Vs. Mohd. Mehtab and Anr.
FIR No. 793/2021PS Kotwali 20/21 have crumbled the whole case of the prosecution.
33. Resultantly, accused Mohd. Mehtab S/O Mohd. Saleem and Jalil Ahmad s/o Istiyaq Ahmad are entitled for benefit of reasonable doubt and is hereby found not guilty. The accused is hereby acquitted of the offence under Section 25 Arms Act. Announced in open court Digitally signed by SAYESHA SAYESHA CHADHA in the presence of accused. CHADHA Date:
2024.12.09 18:07:33 +0530 (SAYESHA CHADHA) JUDICIAL MAGISTRATE FIRST CLASS-08, Central District, Tis Hazari Courts/Delhi [This judgment contains 21 pages and each page bears the initials of undersigned and the last page bears the complete sign of undersigned.] State Vs. Mohd. Mehtab and Anr.FIR No. 793/2021
PS Kotwali 21/21