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. 47/03 U/s 25/54/59 Arms Act PS Hauz Qazi State Vs. Mohd. Salim 1 Sr. No. of the case R0203762003 2 Date of institution 09/04/03 3 Date of commission of 16/03/03 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 Hazzanbi, 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 16.03.03 at about 08:15 pm at Corner Roadgran, Ahata Hazzan Bi, Hauz Qazi accused was apprehended by IO PW5 ASI Ram Niwas and PW2 Ct. Rakesh Kumar upon receipt of a secret information while they were on patrolling duty near PP Rodgran. 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. 47/03, 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 HC Brice Indwar is the DO who on 16.03.03. at about 09:05 pm recorded FIR Ex. PW1/A on the Rukka sent by ASI Ram Niwas through Ct. Rakesh kumar. The endorsement on the Rukka is Ex. PW1/B.
4. PW2 Ct. Rakesh Kumar testified that on 16.03.03 at about 08:00 pm, while being on patrolling duty with 1st IO ASI Rim Niwas near PP Rodgran, a secret information about the accused standing at the corner of Ahata Hazzanbi having illegal knife in his possession was received whereupon he with 1st IO ASI Ram Niwas 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 except one Naseem Ahmed. The accused was apprehended at the instance of secret informer at about 08:15 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 Jagmohan 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 FIR No. 47/03, PS Hauz Qazi State vs. Mohd. Salim Page No. 2 of 7 Ex.PW1/D respectively. He deposed that all these documents were also signed by the Public Witness Naseem Ahmed. He correctly identified the knife as Ex.P1.
During cross-examination by the counsel for accused, he denied the suggestion that he and the IO had falsely implicated the accused in the present matter by planting a knife. He also denied the suggestion that the accused was not apprehended from the spot and was lifted from the way and the entire paper work was conducted at the PS. 1st
5. PW5 ASI Ram Niwas (as he then was) is the IO of the case and he testified that on 16.03.03 while being on patrolling duty with Ct. Rakesh Kumar near PP Rodgran, a secret information about the accused standing at the corner of Ahata Hazzanbi having illegal knife in his possession was received whereupon he with Ct. Rakesh Kumar 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 except one Naseem Ahmed. The accused was apprehended at the instance of secret informer at about 08:15 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. Rakesh Kumar. He further testified that thereafter, he prepared tehrir Ex. PW2/B and gave it to Ct. Rakesh Kumar for registration of FIR. He further testified that after getting the FIR registered, Ct. Rakesh Kumar came back to the spot with 2nd IO HC Jagmohan to whom the he handed over the accused, the sealed pulanda and the documents. He further testified that 2nd 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 FIR No. 47/03, PS Hauz Qazi State vs. Mohd. Salim Page No. 3 of 7 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. PW3 HC Jagmohan is the 2nd IO of the case and he testified that on 16.03.03 he reached the spot with Ct. Rakesh Kumar, where ASI Ram Niwas 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 statement, set him free, and arrested the accused and conducted his personal search vide memo's Ex. PW2/C & D respectively. He also testified that during investigation, he obtained the notification of Arms Act which is Mark X. After completion of the investigation he filed the charge-sheet.
He was not cross-examined by the accused despite opportunity.
7. PW4 Naseem Ahmad is the Public Witness of the alleged offence. He deposed that he did not know anything about the present matter and had come to Court only because he had received Summons from the Court. Ld. APP sought permission of the Court to cross-examine the witness as he was resiling from his statement recorded u/s 161Cr.P.C. It was allowed.
During cross-examination by the Ld. APP, the witness deposed that he was a graduate, running a construction company and signs in English. He was confronted with documents Ex. PW2/A to D. He identified his signatures but deposed that the same were obtained by the police on blank documents. The witness deposed that he never made any statement (one u/s 161 Cr.P.C.) to the police. He denied the suggestion that when he was present at PP Rodgran, one secret informer met the police and shared the information with them. He denied the suggestion that he had joined the investigation with IO ASI Ram Niwas on that day; the accused present in the FIR No. 47/03, PS Hauz Qazi State vs. Mohd. Salim Page No. 4 of 7 Court was arrested by the IO at the instance of the secret informer and one knife was recovered from his pant. He denied the suggestion that IO had conducted all the proceedings at the spot and he had put his signatures on all the memos after going through the same. He failed to identify the accused present in the Court on that day. He deposed that he had seen him for the first time in Court. He was not cross-examined by the accused despite opportunity.
8. 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.
9. Ld. APP for the State and the accused heard. The entire judicial record carefully perused.
Appreciation of Evidence:
10. It is to be seen that the accused has been shown to have been arrested on 16.03.03 at about 08:15 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. PW2, and 1st IO PW ASI Ram Niwas admitted in their examination-in-chief that some public persons were present at the spot at the relevant time and out of them one Naseem Ahmad was joined in the raiding party.
The objective of joining an independent public witness to the arrest and search 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 Public Witness during his testimony denied the prosecution story in its entirety. He testified that no part of raid, arrest or search of the accused took place in his presence unlike the claim of the Ist IO FIR No. 47/03, PS Hauz Qazi State vs. Mohd. Salim Page No. 5 of 7 and Ct. Rakesh Kumar. He also denied that he signed the various memos at the spot of commission of offence after going through the same. He categorically deposed that the police took his signatures on blank papers and never recorded his statement u/s 161 Cr.P.C. He also failed to identify the accused and testified that he had seen him for the first time.
The aforesaid testimony of the witness is fatal to the case of the prosecution. He demolished the entire 'story' scripted by the police officials against the accused. This testimony has not only created doubt about the presence of the accused/public witness at the spot but also about the chain of events narrated by the police witness including the receipt of secret information, preparation of raiding party, arrest and personal search of the accused and ultimately the recovery of the illegal knife.
The absence of the public witness from the spot is further strengthened by the testimony of the 2nd IO who nowhere testified that such a witness was present when he came to spot with Ct. Rakesh Kumar. In such circumstances, the effort of the police officials to just create the presence of a public witness is a possibility.
Further, in the absence of any corroboration to the version of prosecution, false implication of the accused by planting knife by the local police in the present case cannot be ruled out.
11. This contradiction assumes significance on account of another grave contradiction which is to be seen in the documents Ex.PW2/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. Rakesh Kumar 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 1 st IO. It raises doubt that that the entire paper work was done by the police officials at the PS itself. This doubt is corroborated by the fact that the 2nd IO although FIR No. 47/03, PS Hauz Qazi State vs. Mohd. Salim Page No. 6 of 7 is silent about the presence of the public witness in his examination, the memos prepared by him bear the signatures of that witness. 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.
12. 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. 47/03, PS Hauz Qazi State vs. Mohd. Salim Page No. 7 of 7