Delhi District Court
State vs Mohd Waseem Fir No. 774/99 on 15 October, 2007
-1-
IN THE COURT OF SHRI VIDYA PRAKASH M.M DELHI
State Vs Mohd Waseem FIR No. 774/99
P.S. A/V
U/s 25 Arms Act.
JUDGMENT
a. Sl. No. of the case : 623/2 b. Date of Commission of offence : 17.11.99 c. Name of the Complainant :HC Anand Pal Singh
d. The name of the accused person : Mohd Waseem @ Papu S/o Mohd Nafees e. The offence complained of or proved : 25 Arms Act.
f. The plea of the accused person :pleaded not
guilty
g. Final order : Acquitted.
h. Date of order :15.10.07
DATE OF INSTITUTION OF CASE :13.11.00
JUDGMENT RESERVED ON :15.10.07
JUDGMENT DELIVERED ON :15.10.07
i. Brief Facts of the Case
The accused is facing trial for an offence punishable U/s 25 of Arms Act. The case of prosecution as per challan U/s 173 Cr.PC is that the accused was found in possession of one Desi Katta with three live cartridges on 17.11.99 at about 3.30 P.M at A Block Road Corner, DSIDC near Kumar -2- Tower, WPIA Delhi within the jurisdiction of P.S A/V, without license and in contravention of notification issued by Delhi Administration.
After completion of investigation, the challan was filed before the Court. After compliance of Section 207 Cr. PC, the charge U/s 25 of A. Act was framed against the accused on 27.1.00 to which accused pleaded not guilty and claimed trial.
To prove its case, prosecution has examined as many as ten witnesses i.e. PW1 Ct Deep Chand, PW2 HC Anand Pal, PW3 Satish Golcha, PW4 Ct Basawan, PW5 Ghan Shyam, PW6 Dr. Namita HRH, PW7 K.C Varshney Sr. Scientific Officer Ballastic, PW8 HC Vijay Kr. PW-9 Ct Ravinder and PW 10 SI Yashpal Singh.
In his statement U/s 313/281 Cr.P.C, the accused has denied all the incriminating evidence put to him. However, he opted not to lead any DE.
I have heard Ld APP for State and Cl sh. Mohd Akram Advocate on behalf of accused. I have also carefully considered the respective submissions -3- made on their behalf as well as the material available on record.
It was submitted by Cl for accused that the prosecution is to prove its case beyond reasonable doubt and benefit of doubt is always to be given to the accused. Cl for accused submitted that the prosecution has failed to prove its case warranting acquittal of the accused in the present case. In support of his submissions, he relied upon judgments reported in AIR 1999 SC 49, AIR 1999 SC 234, AIR 1995 SC 2339 and 1987 CC Cases 585.
Per contra, it was argued by Ld APP for State that the prosecution has proved the guilt of accused beyond reasonable doubt and accused is liable to be convicted for the said offence. It was also argued that no motive has been shown by accused as to why he would be falsely implicated in the present case.
PW-1 Ct Deep Chand simply deposed that he had deposited case property vide RC No. 481/21 with FSL Malviya Nagar and pullanda was not -4- tempered with during his custody. In his cross examination, he could not tell if any DD entry was made regarding this fact. PW3 has proved sanction U/s 39 Arms Act as PW3/A. PW5 Ct Ganshyam deposed that he obtained result from FSL Office and deposited with MHC(M) on 6.1.00. PW6 Dr. Namita has proved MLC of accused as PW-6/A. PW7 has proved FSL result as PW7/A and forwarding letter as PW7/B. Said result shows that Katta and cartridges were found to be arm and ammunition on their examination in FSL office. PW8 HC Vijay Kumar is merely DO who has proved copy of FIR No. 774/99 as PW4/A. PW-2 HC Anand Pal, PW4 Ct Basawan and PW-9 Ct Ravinder Singh deposed on the lines of prosecution story and have proved sketch of katta and cartridges as PW2/A, seizure memo as PW2/B, rukka as PW2/C, arrest memo and search memo of accused as PW2/D and PW/E and pointing out memo as PW2/G and H. Before discussing further, it relevant to note that as per prosecution story, all the -5- above said three police officials and HC Mahabir as well as Ct Sudhir were on patrolling duty when two boys i.e accused herein and one Safi Anwar turned back on seeing police officials and started running away and accused herein was apprehended by above said three police officials namely HC Anand Pal, Ct Ravinder and Ct Basawan whereas other boy was apprehended by other two police officials. As per prosecution case, deshi katta was recovered from left dub of the pant of accused and two live cartridges were recovered from left pocket of the pant of accused. However, PW2 HC Anand Pal deposed in his chief examination that katta was recovered from left pocket of the pant of accused and two live cartridges were recovered from right pocket of the pant of accused. PW 9 Ct. Ravinder deposed that Katta was recovered from left pocket of the pant of accused and cartridges were also recovered from right pocket of the accused . Therefore, the statements of both these said PWs are contrary to the prosecution story . Further, PW 4 deposed in his -6- cross examination that entire proceedings was conducted while sitting on chair which was brought from nearby shop but the said shopkeeper was not cited as a witness nor joined in the proceedings. Same shows that public persons were available at the spot but no sincere effort was made by IO to join them in the proceedings. Same is further clarified from the statement of PWs 9 Ct Ravinder who has stated in his cross examination that IO did not take any action against the public person who refused to join the investigation. PW-9 stated that the entire proceedings was conducted while sitting on a wall as contrary to the statement of PW 4 who had deposed that proceedings was conducted while sitting on the chair. Thus, there are material contradictions in the statements of alleged recovery witnesses regarding the pocket from which desi katta and cartridges were recovered. No independent public witness has been join during entire proceedings despite the fact that it has come on record that public persons were available at the spot in large number. Site plan Ex. -7- PW 10/A also shows that there were one DSIDC office , tool room complex, Kumar Tower and commercial establishments around the spot but the entire story is silent that IO requested any such resident or nearby shopkeeper to join the proceedings . The authorities relied upon by Ld. Counsel for accused are applicable with force to the facts and circumstances of this case. Not only this , it has come in the statement of PW 9 that statements of Ct. Ravinder and Ct. Basawan were recorded before sending rukka to PS but PW 10 i.e. Second IO SI Yashpal who had admittedly come to this court after registration of FIR , deposed that he had recorded the statements of the PWs same also shows material contradiction in the statement of said two PWs.
No DD number has been mentioned by which HC Anand Pal, Ct Basawan and Ct Ravinder Singh were on patrolling duty what to say of filing any copy thereof on record or proving it in accordance with law. One more interesting aspect to note is that accused was allegedly apprehended by -8- HC Anand Pal, Ct Ravinder and Ct Basawan Singh but he has been taken for medical examination by Ct Sudhir which is also unexplainable. Moreover, personal search memo Ex PW2/E shows that a sum of Rs. 10/- was found during personal search of accused beside one wrist watch. A person carrying weapon i.e Pistol and live cartridges cannot be supposed to have only Rs. 10/-
After considering the entire facts and circumstances and the discussions made herein above, Court is of the view that the prosecution has failed to bring home guilt of accused in respect of offence U/s 25 Arms Act beyond reasonable doubt. Accused Mohd Waseem is acquitted of the charges levelled against him. His bail bonds cancelled. Surety discharged. Original documents if any be returned against proper receipt and identification. File be consigned to R.R. Announced in open Court. (Vidya Prakash) Dt. 15.10.07 Metropolitan Magistrate Delhi.