Delhi District Court
State vs . Imran Saifi @ Pappi on 28 January, 2020
IN THE COURT OF Ms. PRIGYA GUPTA
METROPOLITAN MAGISTRATE08, CENTRAL,
TIS HAZARI COURTS, DELHI
CIS No. 10637/19
State Vs. Imran Saifi @ Pappi
FIR No. 127/19
PS : Kamla Market
U/s. 25 Arms Act
JUDGMENT
1) The date of commission of offence : 28.06.2019
2) The name of the complainant : Ct. Mahender
3) The name & parentage of accused : Imran Saifi @ Pappi
S/o Sh. Yakub
R/o H. No. 237, Arya Nagar,
Ward No.22, Murad Nagar,
District Ghaziabad, UP
4) Offence complained of : u/s 25 Arms Act
5) The plea of accused : Pleaded not guilty
6) Final order : Acquitted
7) Date of Institution : 22.08.2019
8) Judgment announced on : 28.01.2020
BRIEF REASONS FOR THE JUDGMENT:
1. The case of the prosecution against the accused is that on 28.06.2019 at about 08:30 pm near Gate No.4, New Delhi, Metro Station, New Delhi within the jurisdiction of PS Kamla Market, accused was found in possession a buttondar knife without any licence or permit in contravention State vs. Imran Saifi @ Pappi FIR No. 127/19 U/s 25 Arms Act MM08/C/Delhi/28.01.2020 PS Kamla Market Page 1 of 11 of DAD notification of GNCT of Delhi. On the said allegations, accused was charged with the offence under Section 25 Arms Act.
2. After investigation, chargesheet was filed against the accused. The copy of chargesheet was supplied to the accused in compliance of Section 207 Cr.P.C. Thereafter, charge was framed against the accused under Section 25 Arms Act to which he pleaded not guilty and claimed trial. The accused admitted FIR, endorsement on rukka, certificate u/s 65B Indian Evidence Act, DD No. 12 dated 28.06.2019, DAD Notification and relevant entry in register no.19 U/s 294 Cr.P.C. After the conclusion of the prosecution evidence, statement of accused was recorded separately wherein accused claimed to be innocent and denied allegations against him. Accused opted to not lead any Defence Evidence.
Appreciation of evidence
3. Having heard the learned APP for the State and Ld. LAC Sh. N K Saraswat for the accused, I have also perused the entire record meticulously. A detailed scrutiny of the testimonies of the prosecution witnesses has been done and is hereby discussed in detail.
PW1 Ct. Mahender has deposed that on 28.06.2019, he alongwith Ct. Atul were on 'Surag Rasani' and were present near Cooler Market, Kamla Market. At about 08:00 pm, one secret informer met and informed them that one person involved in theft cases, was present near New Delhi Metro Station Gate No. 4 who is having an illicit weapon. He informed regarding same to Inspector, Special Staff who directed him to take immediate action. He had asked 45 public persons to join the raiding party after telling them the situation but non agreed and left the spot without State vs. Imran Saifi @ Pappi FIR No. 127/19 U/s 25 Arms Act MM08/C/Delhi/28.01.2020 PS Kamla Market Page 2 of 11 disclosing their names and address. Thereafter, he alongwith Ct. Atul and secret informer went near Metro Gate No. 4 where at the instance of secret informer, they apprehended one person who disclosed his name as Imran Saifi @ Pappi. He has correctly identified the accused. He conducted his cursory search and found one button actuated knife from front right pocket of his worn pant. He informed regarding the same to at Special Staff Office, Central Office on which, IO / ASI Yogender reached at the spot to whom they had handed over the accused alongwith recovered knife. IO recorded his statement Ex. PW1/A. IO asked 45 public persons to join the investigation but none agreed and left the spot without disclosing their names and addresses. IO took the knife and opened the same and prepared the sketch of the same on a white paper Ex. PW1/B. The total length of the knife was 30 cms, length of blade was 14 cms, width of blade was 3 cms, the length of handle was 16 cms. IO kept the same in white cloth pullanda and sealed the same with the seal of 'YP'. Seal after use was handed over to Ct. Atul. IO seized the knife vide memo Ex. PW1/C. IO prepared the rukka on the basis of his statement and handed over the same to Ct. Atul for registration of FIR. He went to PS and after registration of FIR, he came back at the spot and handed over copy of FIR and original rukka to IO. IO prepared the site plan Ex. PW1/D at his instance. IO arrested accused vide arrest memo Ex. PW1/E. His personal search was also conducted vide memo Ex. PW1/F. IO recorded your disclosure statement Ex. PW1/G. Thereafter, they went to PS where case property was deposited in Malkhana and accused was lodged in lock up after medical examination. IO recorded his statement. He has correctly identified one button actuated knife Ex.P1 as recovered from the possession of accused on the day of incident. The witness was duly cross examined by learned defence counsel.
State vs. Imran Saifi @ Pappi FIR No. 127/19 U/s 25 Arms Act MM08/C/Delhi/28.01.2020 PS Kamla Market Page 3 of 11
PW2 Ct. Atul has deposed that on 28.06.2019, he alongwith Ct. Mahender were on 'Surag Rasani' and were present near Cooler Market, Kamla Market. At about 08:00 pm, one secret informer met and informed them that one person involved in theft cases, was present near New Delhi Metro Station Gate No. 4 who is having an illicit weapon. Ct. Mahender informed regarding same to Inspector, Special Staff who directed him to take immediate action. Ct. Mahender had asked 45 public persons to join the raiding party after telling them the situation but non agreed and left the spot without disclosing their names and address. Thereafter, he alongwith Ct. Mahender and secret informer went near Metro Gate No. 4 where at the instance of secret informer, they apprehended one person who disclosed his name as Imran Saifi @ Pappi. He has correctly identified you. Ct. Mahender conducted his cursory search and found one button actuated knife from front right pocket of his worn pant. He informed regarding the same to at Special Staff Office, Central Office on which, IO / ASI Yogender reached at the spot to whom they had handed over the accused alongwith recovered knife. IO recorded statement of Ct. Mahender. IO asked 45 public persons to join the investigation but none agreed and left the spot without disclosing their names and addresses. IO took the knife and opened the same and prepared the sketch of the same on a white paper Ex. PW1/B. The total length of the knife was 30 cms, length of blade was 14 cms, width of blade was 3 cms, the length of handle was 16 cms. IO kept the same in white cloth pullanda and sealed the same with the seal of 'YP'. Seal after use was handed over to him. IO seized the knife vide memo Ex. PW1/C. Thereafter, IO prepared the rukka on the basis of statement of Ct. Mahender and handed over the same to him for registration of FIR. He State vs. Imran Saifi @ Pappi FIR No. 127/19 U/s 25 Arms Act MM08/C/Delhi/28.01.2020 PS Kamla Market Page 4 of 11 went to PS and after registration of FIR, came back at the spot and handed over copy of FIR and original rukka to IO. IO prepared the site plan at the instance of Ct. Mahender. IO arrested accused vide arrest memo Ex. PW1/E. His personal search was also conducted vide memo Ex. PW1/F. IO recorded your disclosure statement Ex. PW1/G. They went to PS where case property was deposited in Malkhana and accused was lodged in lock up after medical examination. IO recorded his statement. He has correctly identified one button actuated knife Ex.P1 as recovered from the possession of accused on the day of incident. The witness was duly cross examined by learned defence counsel PW3 ASI Yogender has deposed that on 28.06.2019 at about 08:30 pm, on receipt of DD No. 12 Spl. Staff, Central District, he went to the spot i.e. Gate No. 4, New Delhi Metro Station where he met with Ct. Mahender and Ct. Atul who handed over the accused alongwith recovered knife. He recorded statement of Ct. Mahender Ex. PW1/A. He asked 45 public persons to join the investigation but none agreed and left the spot without disclosing their names and addresses. He took the knife and opened the same and prepared the sketch of the same on a white paper Ex. PW1/B. The total length of the knife was 30 cms, length of blade was 14 cms, width of blade was 3 cms, the length of handle was 16 cms. IO kept the same in white cloth pullanda and sealed the same with the seal of 'YP'. Seal after use was handed over to Ct. Atul. He seized the knife vide memo Ex. PW1/C. Thereafter, he prepared the rukka Ex. PW3/A, on the basis of statement of Ct. Mahender and handed over the same to Ct. Atul for registration of FIR. Ct. Atul went to PS and after registration of FIR, he came back at the spot and handed over copy of FIR and original rukka to State vs. Imran Saifi @ Pappi FIR No. 127/19 U/s 25 Arms Act MM08/C/Delhi/28.01.2020 PS Kamla Market Page 5 of 11 me. He prepared the site plan Ex. PW1/D at the instance of Ct. Mahender. He arrested accused vide arrest memo Ex. PW1/E. His personal search was also conducted vide memo Ex. PW1/F. He recorded disclosure statement of the accused Ex. PW1/G. Thereafter, they went to PS Kamla Market where case property was deposited in Malkhana and accused was lodged in lock up after medical examination. He recorded statement of witnesses. After completion of investigation, he prepared the chargesheet and filed the same for judicial verdict. He has correctly identified one button actuated knife Ex.P1 as handed over to him by Ct. Mahender at the spot on the date of incident. The witness was duly cross examined by learned defence counsel.
4. It is a settled proposition of criminal law that prosecution is supposed to prove its case on judicial file beyond reasonable doubt by leading reliable, cogent and convincing evidence. Further, it is a settled proposition of criminal law that in order to prove its case on judicial file, prosecution is supposed to stand on its own legs and it cannot derive any benefit whatsoever from the weaknesses, if any, of the defence of the accused. Further, it is a settled proposition of criminal law that burden of proof of the version of the prosecution in a criminal trial throughout the trial is on the prosecution and it never shifts on to the accused. Also, it is a settled proposition of criminal law that accused is entitled to the benefit of every reasonable doubt in the prosecution story and such reasonable doubt entitles the accused to acquittal.
5. Evaluating the facts and evidence, in light of the above said edicts, I proceed further to deliberate on various facets, dealing with one at a time.
State vs. Imran Saifi @ Pappi FIR No. 127/19 U/s 25 Arms Act MM08/C/Delhi/28.01.2020 PS Kamla Market Page 6 of 11
First of all, it comes out that no independent witness was joined the investigation. The hon'ble supreme court in STATE OF PUNJAB V. BALBIR SINGH AIR 1994 SC 1872, held that :
"It therefore emerges that noncompliance 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 noncompliance. It is wellsettled 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. [Emphasis supplied]"
6. Considering facts and circumstances of 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. Merely mentioning that public persons were requested to join the investigation is of no avail. Name of those persons are not mentioned. It is not mentioned as to what action was taken against those persons who refused to join the investigation.
7. As per the testimonies of PW1 Ct. Mahender, PW2 Ct. Atul and PW State vs. Imran Saifi @ Pappi FIR No. 127/19 U/s 25 Arms Act MM08/C/Delhi/28.01.2020 PS Kamla Market Page 7 of 11 3 ASI Yogender, it was sought to be shown by the prosecution that during the investigation, PW1 and PW3 had asked numerous passersby to join the police party, but none of them agreed to join the investigation.
Now as per material on record, it is clear that no serious attempt was made by the concerned police officials to get independent public persons to join the police proceedings of investigation despite availability of such witnesses.
Believing the depositions of PW1 Ct. Mahender, PW2 Ct. Atul and PW3 ASI Yogender if members of the public had in reality refused to assist the members of the raiding party, they could have served the said passerby/public witnesses with a notice in writing to join the police proceedings since after the apprehension of the accused, there was no possibility of accused escaping his arrest or crime going undetected, but admittedly no action was taken against such members of the public by PW
3. At least in these facts and circumstances of the case, in my opinion, the police officials concerned must have asked the passersby/public persons available at the spot of the apprehension & search of the accused by serving them a notice in writing and further in case of their refusal, the concerned police people must have taken action against them under Section 187 IPC.
Secondly, another essential circumstance is that the seal, after use, was not handed over to any independent person. As comes out from the testimony of PW1, PW2 and PW3 the seal i.e. "YP" after use on the pullanda containing the case property, allegedly recovered from the accused, was given to none else but to PW2 Ct. Atul by PW3 ASI Yogender Kumar. Apparent it is, that no efforts were made to hand over the seal to an independent person. The said fact raises a cloud of suspicion on the alleged recovery, more particularly so, when the PW1, PW2 and PW3 have State vs. Imran Saifi @ Pappi FIR No. 127/19 U/s 25 Arms Act MM08/C/Delhi/28.01.2020 PS Kamla Market Page 8 of 11 admitted that passersby were available at the spot, however, no notice was served upon the public persons for refusal to join the investigation.
I am conscious of precedent laid down by Hon'ble Delhi High Court in "Safiullah v. State", 1993 (1) RCR (Criminal) 622, that:
"10. 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."
Hon'ble Punjab & Haryana High Court also held in "Ramji Singh v. State of Haryana", 2007 (3) RCR (Criminal) 452, that
7. The very purpose of giving seal to an independent person is to avoid tampering of the case property."
The case property was lying in the Maalkhana of the same police station where the police officials having the possession of seal were posted. Furthermore, it can be observed that handing over memo was not made.
There were ample opportunities for tampering with the case property. Hence, considering the legal position, the benefit of doubt should be given to the accused.
The IO and the raiding party must have offered their personal search to some independent witness. However, no such precaution was taken by PW1 and PW2 the doubt as to the false plantation of the case property cannot be ruled out. In "S. L. Goswami vs. State of M. P", 1972, Cri.L.J 511 (SC), the Hon'ble Supreme Court held:
"... in our view, the onus to proving all the ingredient of an offence is always upon the prosecution and at no stage does it shift to the accused. It is no part of the prosecution duty to somehow hook the crook. Even in case where the defence of the accused does not State vs. Imran Saifi @ Pappi FIR No. 127/19 U/s 25 Arms Act MM08/C/Delhi/28.01.2020 PS Kamla Market Page 9 of 11 appear to be credible or is palpably false that burden does not become any the less. It is only when this burden is discharged that it will be for the accused to explain or controvert the essential elements in the prosecution case, which would negative it. It is not however for the accused even at the initial stage to prove something which has to be eliminated by the prosecution to establish the ingredient of the offence with which he is charged, and even if the onus shifts upon the accused and the accused has to establish his plea, the standard of proof is not the same as that which vests upon the prosecution..."
Besides all this, in the present case, the aforesaid lapse on the part of police officials assumes significance on account of another grave contradiction apparent in the document Ex.PW1/B. The sketch memo of the knife Ex.PW1/B bears the number of FIR. As per the rukka and testimony of witnesses, the sketch memo of the knife was prepared prior to registration of FIR. If that be so then how Ex.PW1/B bears the FIR number. Now, I consider the observation made by Hon'ble Delhi High Court in Giri Raj v. State, 83 (2000) DLT 201. This gives rise to two inferences that either the FIR was recorded prior to the alleged recovery of the case property or number of the said FIR was inserted in the document after its registration. In both the situations, it seriously reflects upon the veracity of the prosecution version and creates a good deal of doubt about the recovery of the case property in the manner alleged by the prosecution. That being so, the benefit arising out of such a situation must necessarily go to the accused.
In this regard, reference can is also made to the judgment of Hon'ble High Court of Delhi in case titled as "Mohd Hasim V/s State" 1999 VI AD (Delhi) 569 wherein it was observed:
State vs. Imran Saifi @ Pappi FIR No. 127/19 U/s 25 Arms Act MM08/C/Delhi/28.01.2020 PS Kamla Market Page 10 of 11 "...documents prepared before registering the FIR bears FIR numbers, meaning thereby either FIR was recorded posterior in time or that documents were prepared after the recording of FIR, and in both cases, prosecution case would collapse."
It raises doubt that the entire paper work was done by the police officials at Police Station itself. It further strengthens the doubt of false implication of the accused.
This also raises doubt about the recovery of the said case property from the present accused and strengthens the possibility of planting of the case property upon the accused.
The onus and duty to prove the case against the accused was upon the prosecution and the prosecution must establish the charge beyond reasonable doubt. It is also a cardinal principle of criminal jurisprudence that if there is a reasonable doubt with regard to the guilt of the accused is entitled to benefit of doubt resulting in acquittal of the accused. Reference may also be made to the judgment titled as Nallapati Sivaiah v. Sub Divisional Officer, Guntur reported as VIII(2007) SLT 454(SC).
In view of above said discussion, the prosecution has failed to prove the guilt of the accused beyond reasonable doubt. Accordingly, I acquit the accused Imran Saifi @ Pappi of the charges framed in the present case. Case property be confiscated to the State. Same be destroyed. File be consigned to Record Room subject to compliance of section 437A Cr.PC.
Announced in the open court (PRIGYA GUPTA)
on 28.01.2020 Metropolitan Magistrate08
Central District, Tis Hazari Courts/Delhi
State vs. Imran Saifi @ Pappi
FIR No. 127/19
U/s 25 Arms Act MM08/C/Delhi/28.01.2020
PS Kamla Market Page 11 of 11