Delhi District Court
Punjab vs . Gurmel Singh 1991 (2) Recent Criminal on 12 July, 2010
IN THE COURT OF SH. RAVINDER SINGH :
METROPOLITAN MAGISTRATE : NEW DELHI
F.I.R. 579/06
P.S. Hauz Khas
U/s. 25 (1B) (b) Arms Act
State v. AJAY @ LAXMAN
S/o Sh. Jagram
R/o H.No. 391, G Block
Sangam Vihar, New Delhi
JUDGMENT :
a. Srl. No. of Case : 441/03 b. Date of Institution : 13.09.06
c. Date of Commission of Offence : 11.09.06 d. Name of the complainant : H.Ct. Islamuddin, no. 292/SD e. Offence complained of : U/s. 25/54/59 Arms Act f. Plea of the accused : Pleaded not guilty g. Date of reserving Judgment : 12.07.2010 h. Final order : Acquitted h. Date of pronouncement : 12.07.2010 Brief reasons for the decision of the case.
1. The case of the prosecution in brief is that on 11.09.2006 at about 3.30 PM while H.Ct. Islamuddin was on petrolling duty along with Ct. Yashin he received information through secret informer that one person would come from Shahpur Jat Bus Stand Red Light side who was having illegal knife in his possession so they reached at the spot where they F.I.R. no. 579/06 Page no. 1 of 10 apprehended the accused and got recovered one buttondar knife from his possession so H.Ct. Islamuddin got the case FIR registered against the accused U/s 25/54/59 Arms Act in PS Malviya Nagar through Ct. Yashin. After registration of case F.I.R. H.Ct. Bodh Ram came at the spot. Statement of witnesses were recorded, site plan was prepared, accused was arrested and after completion of all necessary investigation challan U/s 173 Cr.P.C was presented in the Court for trial against the accused.
2. Accused was produced from J/C to face the trial, so copy of challan as required U/s. 207 Cr.P.C. was supplied to him, thereafter case was fixed for consideration of charge.
3. After hearing arguments and on perusal of record, prima facie offence under Section 25 Arms Act, was made out against the accused Ajay @ Laxman. Charge was framed accordingly against the accused on 5.10.06. Thereafter case was fixed for prosecution evidence.
4. Prosecution has produced and examined as many as four witnesses i.e, PW 1 H.Ct. Islamuddin, PW 2 H.Ct. Bodu Ram, PW3 H.Ct. Vinay Pal and PW4 Ct. Yashin.
5. PW1 H.Ct. Islamuddin testified that on 11.09.06 he F.I.R. no. 579/06 Page no. 2 of 10 was on petrolling duty along with Ct. Yasin Khan and at about 3.30 pm they reached at Shahpur Jat Bus Stand where secret informer met them and shared information that one person would come at Shahpur Jat Bus Stand having illegal knife in his possession so he requested some public persons to join the raiding team but none agreed and left the spot. PW 1 further testified that at about 3.50 pm accused came at the Bus Stand of Shahpur Jat so they apprehended the accused at the instance of secret informer. PW1 further testified that on casual search of accused one buttondar knife was recovered from his right side pocket of pant. Thereafter he prepared sketch of knife Ex. PW 1/A after taking its measurement and knife was put in a cloth parcel and sealed with the seal of ID and thereafter he seized it vide memo Ex. PW 1/B, seal after use was handed over to Ct. Yashin. PW1 further testified that he prepared the rukka Ex. PW 1/C and got the case F.I.R. registered through Ct. Yashin and thereafter Ct. Yashin came back at the spot along with H.Ct. Bodu Ram whom he handed over the accused along with documents and case property and H.Ct. Bodu Ram arrested the accused and prepared the site plan at his instance. PW1 correctly identified the knife as Ex. P1.
During cross examination PW1 testified that they were on petrolling duty in uniform on the day of incident but he cannot tell the DD No. and accused was apprehended while he F.I.R. no. 579/06 Page no. 3 of 10 was standing near behind the bus stand on the pointing out of secret informer and H.Ct. Bodu prepared the site plan at his instance.
6. PW 2 H.Ct. Bodu Ram testified that on 11.09.06 he received copy of F.I.R. and rukka from DO and reached on the spot where H.Ct. Islamuddin handed over the accused along with case property and relevant documents to him. PW 2 arrested the accused vide memo Ex. PW 2/A and conducted his personal search vide memo Ex. PW 2/B and also prepared prepared the site plan at the instance of H.Ct. Islamuddin Ex. PW 2/C. During cross examination PW2 testified that he reached at the spot along with Ct. Yasin on foot and he along with Ct. Yashin and accused went to the AIIMS Hospital in T.S.R. for medical examination of accused.
7. PW3 H.Ct. Vinay Pal testified that he was Duty Officer on 11.09.06 and on receipt of rukka from Ct. Yashin, he registered F.I.R. no. 579/06 Ex. PW 3/A and thereafter he put his endorsement on rukka Ex. PW 3/B. Accused did not prefer to cross examine PW 3.
8. PW4 Ct. Yashin testified that on 11.09.06 he was on petrolling duty along with HCt. Islamuddin and at about 3.30 F.I.R. no. 579/06 Page no. 4 of 10 pm they reached at Shahpur Jat Bus Stand where secret informer shared information that one person would come at Shahpur Jat Bus Stand having illegal knife in his possession so H.Ct. Islamuddin requested some public persons to join the raiding team but none agreed and left the spot. PW4 further testified that at about 3.50 pm accused came at the Bus Stand of Shahpur Jat so they apprehended the accused at the instance of secret informer. PW4 further testified that on casual search of accused one buttondar knife was recovered from his possession. Thereafter I.O. prepared sketch of knife Ex. PW 1/A after taking its measurement and knife was put in a cloth parcel and sealed with the seal of ID, seal after use was handed over him. PW4 further testified that I.O. prepared the tehrir and got the case F.I.R. registered through him and thereafter he came back at the spot along with H.Ct. Bod Ram. PW4 further testified that H.Ct. Bodh Ram arrested the accused vide memo Ex. PW 2/A and conducted personal search of accused vide memo Ex. PW 2/B. PW4 also correctly identified the knife as Ex. P1.
During cross examination PW4 testified that accused was apprehended while he was coming from the red light and site plan was prepared by H.Ct. Islamuddin and accused was taken to the AIIMS Hospital by H.Ct. Islamuddin.
7. Statement of accused Ajay @ Laxman was recorded F.I.R. no. 579/06 Page no. 5 of 10 U/s 281 Cr.P.C wherein he has denied the allegations of the prosecution and stated that he is innocent and has been falsely implicated in this case. However, accused did not prefer to lead any defence evidence.
8. I have heard the ld. APP for the State and Ld. Counsel for accused and have also carefully perused the entire record and the relevant provisions of the law.
9. On careful perusal and analysis of the entire evidence on record I find that no corroborative, consistent reliable and sufficient evidence to make up the edifice of the prosecution case has been produced by the prosecution. Moreover, the testimonies of the prosecution witnesses do not inspire confidence.
10. It is the case of prosecution that accused was apprehended by the PW1 and PW4 on the pointing out of secret informer when he was coming at Shahpur Jat Bus Stand and on his search a buttondar knife was recovered from possession of accused. PW 1 prepared the sketch of knife Ex. PW 1/A and seized the knife vide memo Ex. PW 1/B and after registration of case PW2 came at the spot and arrested the accused vide memo Ex. PW 2/A. F.I.R. no. 579/06 Page no. 6 of 10
11. Prosecution has examined two witnesses of recovery of buttondar knife from the possession of the accused i.e. PW1 and PW4 and PW2 is second I.O. who came at the spot after registration of the case.
12. PW1 testified that accused was apprehended while he was standing behind the bus stand on pointing out of secret informer. Contrary to PW1, PW4 testified that accused was apprehended while he was coming from the red light side. PW4 has not mentioned about standing of the accused behind the bus stand. Further PW1 testified that site plan was prepared by the PW2 on his instance but PW4 testified that site plan was prepared by PW1. It is also pertinent that PW4 in his examinationinchief testified that he do not remember whether knife was put into cloth or pullinda was prepared and sealed with the seal of ID. In view of material contradiction in the testimonies of recovery witness i.e. PW1 and PW4 it is doubtful that accused was apprehended by PW1 and PW4 on the spot.
13. It is also pertinent that neither PW 1 nor PW 4 has deposed anything about the breadth of blade of knife. It is also pertinent that Ex. PW 1/A does not show the breadth of blade of knife which was recovered from the possession of accused. As per notification of Delhi Administration: Delhi dated 17.02.1979 the breadth of blade of knife must be 1.72 c.m. or F.I.R. no. 579/06 Page no. 7 of 10 more. In view of this, it cannot be said that accused has violated the terms of notification issued by Delhi Administration regarding breadth of blade of a buttondar knife.
14. During the investigation of the case neither public witnesses were joined nor seems to be any sincere efforts made in this regard, when it was possible to do as PW1 and PW3 both deposed that they requested public persons to be witness of the proceedings present at the spot. So this makes the case of the prosecution weak and suspicious. In State of Punjab vs. Gurmel Singh 1991 (2) Recent Criminal Reporters 361 Hon'ble Court held that : "Where there were 20 shops nearby and the investigating officer had ample opportunity to join independent witness statement of official witnesses would not be sufficient to convict the accused. Contention of the prosecution that the police officials had no ill will to involve the accused in false case was repelled.''
15. PW 1/HCt. Islamuddin in his examination in chief have deposed that the knife was put into pullanda and it was sealed with the seal of ID by him and seal after use was given to PW 4. Testimony of PW 1 is totally silent as to whether any seal handing over memo or seal returning memo was prepared. Why such memos were not prepared, which constitutes a material link evidence. Such linking evidence is F.I.R. no. 579/06 Page no. 8 of 10 lacking in the prosecution case.
16. The perusal of the sketch of the knife Ex. PW 1/A and seizure memo Ex PW 1/B shows that FIR number is mentioned therein. There is not a single word in the testimony of PW 2 as to when and at what stage FIR number was inserted in Ex PW 1/A and Ex PW 1/B. Moreover, the testimony of PW1 and PW4 is also totally silent on this aspect. In these circumstances, either FIR was recorded posterior in time or that documents were prepared after the recording of FIR. In case Mohd Hasim Vs. State 1999 VI AD (Delhi) 569 (Hon'ble Mr. Justice M. S. A Siddiqui) it was observed that 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 was hold that in both case, prosecution case would collapse.
17. In these circumstances, the testimony of the prosecution witnesses do not inspire confidence.
18. Apart from this, the presence of PW1 and PW4 at the spot is not proved. If he had departed from PS for patrolling duty the entry to this effect must exist in the Roznamcha but that has not been proved, raising an adverse presumption against the prosecution U/s 114 (g) of the Evidence Act and if F.I.R. no. 579/06 Page no. 9 of 10 the said Roznamcha had been produced it would have not shown their departure at all.
19. It is true evidence it to be weighted 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 th prosecution has failed to prove all the links, the benefit of doubt has been given to the accused. In view of this I am fortified with the observations made in the case State of Rajasthan Vs. Daulat Ram 1980 CAR 169 (SC) where it was held that prosecution failed to proved all the links. Accused was acquitted.
20. In view of the above, I hold that prosecution has failed to prove its case beyond reasonable doubt against accused and he is given the benefit of doubt and therefore accused Ajay @ Laxman is acquitted of the offence punishable U/s. 25 (1B) (b) of the Arms Act for which he stands charged.
Announced in the Open Court
on 12/07/2010 (RAVINDER SINGH)
Metropolitan Magistrate:
New Delhi.
F.I.R. no. 579/06 Page no. 10 of 10