Delhi District Court
State vs . Mohd. Salim on 15 October, 2012
In the Court of Sh. Arvind Bansal, MM (Central)-04,
Tis Hazari Courts, Delhi
JUDGMENT
FIR No. 169/04 U/s 25/54/59 Arms Act PS Hauz Qazi State Vs. Mohd. Salim 1 Sr. No. of the case R5611052004 2 Date of institution 16/08/2004 3 Date of commission of 08/07/04 offence 4 Name of the complainant State 5 Name of the accused & his Mohd. Salim S/o Sh. Mohd. Sawalin parentage and address R/o H. No. 2238, Ahata Ajanabi, Rodgran, Hauz Qazi, Delhi-6.
6 Offence complained of U/s 25/54/59 Arms Act 7 Plea of the accused Pleaded not guilty 8 Order Reserved on Not Reserved 9 Final order Acquitted 10 Date of such order 15/10/12 Brief reasons for the decision of the case.
1. Prosecution case against the accused is that on 08.07.2004 at about 09:45 pm at Corner Roadgran, Hauz Qazi accused was apprehended by IO PW3 ASI Rajbir and PW1 Ct. Uttam Chand upon receipt of a secret information while they were on patrolling duty near Rodgran Chowk. In the formal search of accused, a button actuated knife was recovered which was sealed and seized, and present case FIR was got registered at PS Hauz Qazi. During investigation, accused was arrested and sent to judicial custody. Finally, after completion of necessary formalities of investigation, charge sheet was filed in the court against the accused for trial.
FIR No. 169/04, PS Hauz Qazi State vs. Mohd. Salim Page No. 1 of 7
2. The court took cognizance of the offence on the chargesheet filed by the police. After hearing the parties, a charge for the offence punishable u/s 25 Arms Act was framed against the accused to which he pleaded not guilty and claimed trial.
3. In order to establish its case against the accused, prosecution examined five witnesses.
PW1 Ct. Uttam Chand testified that on 08.07.04 at about 09:30 pm, while being on patrolling duty with 1st IO ASI Rajbir Singh near Rodgran Chowk, a secret information about the accused standing at the corner of Maqbara having illegal knife in his possession was received whereupon he with 1st IO ASI Rajbir Singh reached the spot. He deposed that the IO asked 4-5 persons to join the raiding party, but they did not agree to the same. The accused was apprehended at the instance of secret informer at about 09:45 pm. He further testified that upon formal search of accused, a buttondar knife was recovered from the right side pocket of his wearing pant, the sketch of which was prepared after measurement and it was sealed and seized. He proved the sketch as Ex. PW1/A and seizure memo as Ex. PW1/B. It was sealed with the seal of RB and after use, the seal was handed over to him. He further testified that thereafter, IO prepared tehrir and gave it to him for registration of FIR. He further testified that after getting the FIR registered, he came back to the spot with 2nd IO HC Gokul Ram to whom the 1st IO handed over the accused, the sealed pulanda and the documents. He further testified that 2nd IO HC Gokul Ram prepared site plan at the instance of 1st IO, and arrested the accused vide arrest memo Ex.PW1/C and personal search was conducted vide memo Ex.PW1/D respectively. He correctly identified the knife as Ex.P1.
The witness was not cross-examined by the accused despite opportunity.
4. PW1 HC Govind Ram is the DO who on 08.07.04. at about 10:50 pm recorded FIR Ex. PW2/A on the rukka sent by ASI Rajbir FIR No. 169/04, PS Hauz Qazi State vs. Mohd. Salim Page No. 2 of 7 singh through Ct. Uttam Chand.
1st
5. PW3 ASI Rajbir Singh is the IO of the case and he testified that on 08.07.04 while being on patrolling duty with Ct. Uttam Chand near Rodgran Chowk, a secret information about the accused standing at the corner of Maqbara having illegal knife in his possession was received whereupon he with Ct. Uttam Chand reached the spot. He deposed that the he asked 4-5 persons to join the raiding party, but they did not agree to the same. The accused was apprehended at the instance of secret informer at about 09:45 pm. He further testified that upon formal search of accused, a buttondar knife was recovered from the right side pocket of his wearing pant, the sketch of which was prepared after measurement and it was sealed and seized. He proved the sketch as Ex. PW1/A and seizure memo as Ex. PW1/B. It was sealed with the seal of RB and after use, the seal was handed over to Ct. Uttam Chand. He further testified that thereafter, he prepared tehrir Ex. PW2/B and gave it to Ct. Uttam Chand for registration of FIR. He further testified that after getting the FIR registered, Ct. Uttam Chand came back to the spot with 2nd IO HC Gokul Ram to whom the he handed over the accused, the sealed pulanda and the documents. He further testified that 2 nd IO HC Gokul Ram prepared site plan Ex. PW3/A at his instance and set him free. He correctly identified the accused, and the knife Ex.P1.
During cross-examination by the accused, he denied the suggestion that he and the PW1 had falsely implicated the accused in the present matter. He also denied the suggestion that the accused was not apprehended from the spot and was lifted from his house and the entire paper work was conducted at the PS.
6. PW4 HC Babu Ram is the 2nd IO of the case and he testified that on 08.07.04 he reached the spot with Ct. Uttam Chand, where ASI Rajbir Singh was already present who handed over to him the accused, the sealed pulanda and the other documents. He further testified that he prepared site plan Ex. PW3/A at the instance of 1st IO, recorded his FIR No. 169/04, PS Hauz Qazi State vs. Mohd. Salim Page No. 3 of 7 statement, set him free, and arrested the accused and conducted his personal search vide memo's Ex. PW1/C & D respectively. He also testified that during investigation, he obtained the notification of Arms Act. The further investigation was handed over to SI Balbir Singh.
During cross-examination by the accused the witness denied the suggestion that he had falsely implicated the accused in the present matter. He also denied the suggestion that the accused was not apprehended from the spot and was lifted from his house and the entire paper work was conducted at the PS. PW5 SI Balbir Singh is the last IO of the matter. He testified that on 09.07.04, the furhter investigation of the case was handed over to him and pursuant thereto, he recorded the statement of the 2nd IO HC Gokul Ram and after completion of the investigation, filed the charge-sheet.
During cross-examination by the counsel for accused, the witness denied the suggestion that he was deposing falsely.
7. The statement of the accused was recorded u/s 313 r/w 281 Cr.P.C. whereby all the incriminating evidence available on record were put to him. He denied the prosecution case in its entirety and stated that he is innocent and has been falsely and wrongly implicated in this case.
8. Ld. APP for the State and the accused heard. The entire judicial record carefully perused.
Appreciation of Evidence:
9. It is to be seen that the accused has been shown to have been arrested on 08.07.04 at about 079:45 pm at Nukkad Rodgran, Hazzan Bi, Hauz Qazi. The place and timing of arrest of the accused is such where the presence of independent public witnesses cannot be ruled out. Rather, PW1, and 1st IO PW ASI Rajbir singh admitted in their examination-in- chief that some public persons were present at the spot at the relevant time. In these circumstances, burden lies on the prosecution to establish that the FIR No. 169/04, PS Hauz Qazi State vs. Mohd. Salim Page No. 4 of 7 association of such persons as Public witnesses was not possible in the facts and circumstances of this case. 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 seen with suspicion.
There is nothing in the testimony of any of the witnesses whether any sincere efforts were made by them to join the independent witness. The only explanation accorded by the IO is that they refused to join the proceedings. Such an ordinary reply/explanation of the IO does not support the case of prosecution and reflects the laxity with which such cases are handled. The IO has failed to depose to the effect whether even the names and addresses of such public persons were asked for or recorded. In the absence of any independent witness having been joined in the investigation, false implication of the accused by the local police in the present case cannot be ruled out.
This observation of the court is fortified by the following observations of the Hon'ble Supreme Court in Hemraj vs State of Haryana (AIR 2005 SC 2110):
"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..."
Furthermore, in case titled Roop Chand V/s State of Haryana, 1999 (1)C.L.R 69, the Hon'ble High Court of Punjab & Haryana held as following:
"...It is well settled principle of the law that the Investigating Agency should join independent witnesses at the time of recovery of contraband articles, if they are available and their failure to do so in such a situation casts a shadow of doubt on the prosecution case.
FIR No. 169/04, PS Hauz Qazi State vs. Mohd. Salim Page No. 5 of 7 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. 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 he witnesses from the public had refused to to join the investigation, the Investigating Officer must 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 public is an after thought and is not worthy of credence. All these facts taken together make the prosecution case highly doubtful..."
10. This contradiction assumes significance on account of another grave contradiction which is to be seen in the documents Ex.PW1/A and B respectively. Both the said documents bear the FIR number. It is an admitted case of the prosecution that the said documents were prepared by the 1st IO before sending Ct. Uttam Chand with tehrir for registration of FIR. If the 1st IO did not insert the FIR No. in these documents, then the presumption is that the 2nd IO might have inserted the FIR number in the said documents. However, perusal of his examination-in-chief shows that he did nothing with the sketch and seizure memo of the knife prepared by the 1st IO. It raises doubt that that the entire paper work was done by the police officials at the PS itself. It further strengthens the doubt of false implication of the accused.
These factors and infirmities, in the considered opinion of the court, 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 the accused Mohd. Salim.
FIR No. 169/04, PS Hauz Qazi State vs. Mohd. Salim Page No. 6 of 7
11. In view of the foregoing discussion, accused Mohd. Salim is given benefit of doubt and is accordingly acquitted of the charged offence punishable u/s 25 Arms Act.
File be consigned to Record Room.
Dictated and Announced in the open Court on 15.10.2012 (Arvind Bansal) Metropolitan Magistrate(Central)-04 Tis Hazari Courts, Delhi FIR No. 169/04, PS Hauz Qazi State vs. Mohd. Salim Page No. 7 of 7