Delhi District Court
State vs . Asgar Ali on 26 March, 2014
IN THE COURT OF SH. NAVJEET BUDHIRAJA, METROPOLITAN
MAGISTRATE04, SOUTH DISTRICT, NEW DELHI
STATE VS. Asgar Ali
FIR NO: 208/04
P. S. Sangam Vihar
U/s 25/54/59 Arms Act
Unique ID no. 02403R0545102006
JUDGMENT
Sl. No. of the case : 2030/2 (22.3.2011)
Date of its institution : 5.10.2006
Name of the complainant : Ct. Ramesh
Date of Commission of offence : 30.3.2004
Name of the accused : Asgar Ali, S/o Mohd. Amin, R/o K
I/587, Gali no. 18, Sangam Vihar,
New Delhi.
Offence complained of : Section 25/54/59 Arms Act
Plea of accused : Not guilty
Case reserved for orders : 26.3.2014
Final Order : ACQUITTED
Date of Judgment : 26.3.2014
State Vs. Asgar Ali 1/6 FIR no. 208/04
BRIEF STATEMENT OF FACTS FOR THE DECISION:
1. This is the prosecution of the accused Asgar Ali pursuant to a charge sheet filed by the Police Station Sangam Vihar under section Section 25/54/59 Arms Act subsequent to the investigation carried out by them in FIR no. 208/04.
2. The prosecution story is that on 30.3.2004 at about 10 pm at Gali no. 12, G Block, near Shooting Range Road, Sangam Vihar, New Delhi accused was found in possession of country made pistol 315" bore alongwith one live cartridge without any valid license in contravention of Notification of Delhi Administration and he thereby committed an offence punishable under Section 25/54/59 Arms Act.
3. After completing the formalities, the investigation was carried out in pursuance of which the chargesheet u/s 25/54/59 Arms Act was filed. The charge was framed against the accused u/ s 25/54/59 Arms Act to which he pleaded not guilty and claimed trial.
4. Thereafter, in order to prove its case, the prosecution has examined two witnesses.
5. PW 1 Ct. Ashok deposed that on 30.3.2004, he was posted at PP H Block, PS Sangam Vihar and he alongwith Ct. Ramesh were on patrolling duty and at about 9.50 pm, they reached at Gali no. 12, G Block, Sangam Vihar where they found that accused was coming from the side of shooting range road and on seeing them in uniform, he turned back and started walking fast. Thereafter, they apprehended him and frisked him. On frisking, they found one country made pistol and live cartridge and recovered the same from his right side pocket of his wearing pant. He telephonically informed in the PS. After sometime, ASI Prem Prakash reached the spot to whom he handed over accused alongwith case property. Thereafter pistol was measured and sketch of pistol was prepared vide memo Ex.PW1/A. Total length of the pistol was 25 cm, barrel was 13.5 cm, butt was 11.5 cm, length of the cartridge was 7.6 cm, case property was seized with the seal of PPK vide memo Ex.PW1/B, rukka was prepared, accused were arrested vide memo Ex.PW1/C and his personal search was conducted vide memo State Vs. Asgar Ali 2/6 FIR no. 208/04 Ex.PW1/D. He also proved the case property as Ex.P1. He was cross examined by the accused. He was cross examined by Ld. Counsel for accused.
6. PW 2 Ct. Devender Kumar deposed that on 21.5.2004, at the direction of investigating officer, he took the case property of the present case sealed with the seal of PPK to the FSL Rohini for ballistic examination vide RC no. 27/21/04 and after depositing the same in FSL, Rohini, he returned with the receipt copy and handed over the same to MHC (M). He was cross examined by Ld. Counsel for accused.
7. After recording the evidence of this witness, the prosecution evidence stood closed vide order dated 26.3.2014. The accused was examined under the provision of section 313 Criminal Procedure Code, 1973 and all the incriminating evidence were put to him which he disavowed. He chose not to lead any defence evidence. Consequently, the matter was posted for final arguments.
8. I have heard the Ld. APP for State and Ld. counsel for accused and perused the record.
9. It is argued by the Ld. APP for State that the case has been proved against the accused and he should be convicted.
10. As far as the case of the prosecution is concerned, the accused was apprehended with the country made pistol alongwith one live cartridge which he could not hold without valid license.
11. After going through the complete evidence and records of this case I am of the view that the accused deserves acquittal in this case on the following grounds.
12. Firstly, if the police personnel who has apprehended the accused with the country made pistol alongwith one live cartridge was on patrolling duty, prosecution should have brought the relevant records showing their arrival and departure and should have proved by documentary evidence that he was on patrolling duty by producing DD entry for the same.
State Vs. Asgar Ali 3/6 FIR no. 208/04
13. As per chapter 22 rule 49 of the Punjab Police Rules, which is reproduced as under;
"Chapter 22 rule 49 Matters to be entered in Register no. II. The following matters shall amongst others, be entered:
(c) The hour of arrival and departure on duty at or from a police station of all enrolled police officers of whatever rank, whether posted at the police station or elsewhere, with a statement of the nature of their duty. This entry shall be made immediately on arrival or prior to the departure of the officer concerned and shall be attested by the latter personally by signature or seal.
Note: The term Police Station will include all places such as Police Lines and Police Posts where Register No. II is maintained.
14. In view of this rule, while deposing none of the prosecution witnesses has told that by what entry in the register no. II, they were patrolling in the particular area. In the present case also this provision has not been complied with by the prosecution witnesses. The relevant entries regarding the arrival and departure of the police officials has not been proved on record. It has been held in Rattan Lal Vs. State 1987 (2) Crimes 29 the Hon'ble Delhi High Court held that;
"wherein it has been observed that if the investigating agency deliberately ignores to comply with the provisions of the Act the Courts will have to approach their action with reservations. The matter has to be viewed with suspicion if the provisions of law are not strictly complied with and the least that can be said is that it is so done with an oblique motive. This failure to bring on record, the DD entries creates a reasonable doubt in the prosecution version and attributes oblique motive on the part of the prosecution."
15. Apart from this, their presence at the spot is not proved. If they had departed from PS for patrolling duty the entry to this effect must exist in the Roznamancha but that has not been proved, raising an adverse presumption against the prosecution U/s 114 (g) of the Evidence Act that if the said Roznamancha had been produced it would have not State Vs. Asgar Ali 4/6 FIR no. 208/04 shown their departure as all.
16. The second reason is that the public witnesses are not joined in the investigation. From the overall testimony of the witness, it appears that no effort, what to talk of a sincere/vague effort has been made to join the public persons in the investigation. The only witness examined by the prosecution is the police witness. It is the testimony of PW 1 that he requested some public persons to join the investigation but they refused. In such a case, to show its bonafide, it was obligator upon PW 1 to have given notice to such passersby so that appropriate action could be taken against them for not cooperating with the investigation. In the absence of any such notice, the statement of PW 1 does not seem to be credible. The failure on the part of the police personnels goes to suggest that they were not interested in joining the public persons in the police proceedings. Failure on the part of the police officials to make sincere effort to join public witnesses for the proceedings when they may be available creates reasonable doubt in the prosecution story in view of the following case law. In the case of Anoop Joshi Vs. State 1992 (2) C.C. Cases 314 (HC), Hon'ble High Court of Delhi has observed as under;
" It is repeatedly laid down by this Court that in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evident that no such sincere efforts have been made, particularly when we find that shops were open and one or two shop keepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the shopkeepers had declined to join the raiding party, the police could have later on taken legal action against such shopkeepers because they could not have escaped the rigours of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC."
17. During the investigation of the case no public witnesses were joined nor there seems State Vs. Asgar Ali 5/6 FIR no. 208/04 to be any sincere efforts made in this regard, when it was possible to do so, which makes the case of the prosecution weak and suspicion. Since all the witnesses are police personnels and the necessary safeguards in the investigation have not been followed by the investigating officer, I am of the view that chances of false implication cannot be ruled out at the instance of the police.
18. It is true evidence is to be weighed and not counted but in this case whatever evidence has been produced by the prosecution is not sufficient to fortify the edifice of the prosecution case and the prosecution has failed to prove all the links. In case where the prosecution has failed to prove all the links, the benefit of doubt has been given to the accused.
19. On the basis of aforesaid discussions, the accused is acquitted of the offence u/s 25/54/59 of Arms Act. Personal bond filed by him and surety bond filed by the surety shall remain operative for a further period of six months.
Announced in the open court (Navjeet Budhiraja)
on 26.3.2014 Metropolitan Magistrate04,
South, New Delhi
State Vs. Asgar Ali 6/6 FIR no. 208/04