Delhi District Court
In Re: State vs Chand Dilshad on 4 August, 2012
IN THE COURT GAURAV RAO: METROPOLITAN MAGISTRATE: SOUTH
DISTRICT: SAKET COURTS: NEW DELHI
In Re: STATE VERSUS CHAND DILSHAD
F.I.R. No: 339/06
U/s 25 Arms Act
P.S. Defence Colony
Date of Institution of Case : 31.05.2006
Date of Judgment Reserved for : 04.08.2012
Date of Judgment : 04.08.2012
JUDGMENT:
(a) The serial no. of the case : 249/5/06
(b) The date of commission of offence : 06.05.2006
(c) The name of complainant : ASI Mukhtiyar Singh
(d) The name, parentage of accused : Chand Dilshad s/o Sh.
Naushad, R/o 5/182, Kalyan Puri,
Delhi.
Present Address :As above
(e) The offence complained of : 25 Arms Act
(f) The plea of accused : Pleaded not guilty
(g) The final order : Acquitted
(h) The date of such order : 04.08.2012
FIR No. 339/06 State Vs. Chand Dilshad 1/10
Brief statement of the reasons for the decision:
1. In brief the case of the prosecution is that on 06.05.2006 at about 07.40 p.m. at C Block, Ganda Nalla, Defence Colony New Delhi within the jurisdiction of PS Defence Colony, accused Chand Dilshad was found in possession of one buttondar knife without any permit or license for the same and in contravention of the notification issued by the Delhi Administration and thus thereby the accused committed offence punishable u/s 25 of Arms Act 1959.
2. Charge sheet filed in the court and in compliance of Section 207 accused was supplied the documents. Thereafter vide order dated 30.05.2007 charge u/s 25 of Arms Act 1959 was framed against accused to which he pleaded not guilty and claimed trial.
3. In order to prove the charges against the accused, prosecution examined four witnesses, thereafter the PE in the matter was closed and the statement of accused u/s 313 Cr.P.C was recorded wherein he claimed himself to be innocent and having been falsely implicated in the case. A brief scrutiny of the evidence recorded in the matter is as under.
4. PW1 HC Attar Singh deposed that on 06.05.2006 at about 09.00 p.m. while he was posted as DO at PS Defence Colony he recorded FIR No. 339/06 vide Ex. PW1/A. His endorsement on the rukka is Ex. PW1/B. FIR No. 339/06 State Vs. Chand Dilshad 2/10
5. PW2 Constable Mohd. Talim deposed that on 06.05.2006 he was posted as constable in PS Defence Colony and on that day he along with ASI Mukhtiar Singh was on patrolling duty in the area of Dasti Bawli Road. At about 7.40PM one person was coming from front side but after seeing them in Police Uniform, he turned back and conceal himself in CBlock, Ganda Nalla. He deposed that on suspicion they apprehended the accused. He deposed that after enquiry his name was revealed as Chand Dilshad @ Rahul. IO made cursory search of the accused and found one buttondar knife from his right side pocket of his pant. He deposed that IO opened the knife with the help of button and prepared the sketch memo vide memo Ex.PW2/A. The total length of the knife was 23 c.m. and handle was 12.5 c.m. and blade was 10.5 c.m and the blade was made of steel. He deposed that the leafs were engraved both side of the handle of the knife. He deposed that IO seized the knife vide seizure memo Ex.PW2/B. IO sealed the knife with the seal of MSB and after use of seal, IO handed over the same to him. He deposed that IO prepared the rukka and handed over the same to him for registration of FIR and he went to the PS and got the FIR registered and after sometime he came back at the spot along with original rukka and copy of FIR and the same was handed over to the IO. He deposed that in the meanwhile HC Salim also reached at the spot and further investigation was marked to him. He deposed that first IO handed over the case property along with the accused to HC Salim. He deposed that second IO prepared the site plan at his instance. He deposed that second IO arrested the accused and conducted his personal search vide memo Ex.PW2/C and FIR No. 339/06 State Vs. Chand Dilshad 3/10 Ex.PW2/D. The case property was deposited in the malkhanna and accused was put in the jail.
This witness correctly identified the case property as Ex. P1.
6. During his crossexamination he stated that he does not remember whether he had got recorded in his statement to the IO that they had seen one man coming towards the spot. He stated that numerous public persons were present at the spot. He admitted that the spot is thickly populated with numerous residential houses situated on both side of the road / nalla. He admitted that IO had not joined any public witness in the investigation though they were present at the spot. He admitted that the IO had not noted down their names and addresses nor IO had given any notice to them. He stated that he cannot tell the DD entry number which was recorded at the time of his departure. He stated that seal remained with him. He stated that no handing over memo of the seal was prepared. He denied the suggestion that he was deposing falsely or that the recovery was planted upon the accused. He denied the suggestion that the accused has been falsely implicated.
7. PW3 ASI Mukhtiyar Singh deposed on the same lines as deposed by PW2.
8. PW4 HC Salim deposed that on 06.05.2006 he was posted as HC at PS Defence Colony and on that day on receipt of copy of FIR he reached at the FIR No. 339/06 State Vs. Chand Dilshad 4/10 spot i.e. Basti Bawli Road, near Naala, where he met ASI Mukhtiyar Singh who had already apprehended the accused Chand Dilshad along with a sealed pullanda containing buttondar knife. He deposed that ASI Mukhtiyar Singh handed over the accused and knife to him. He deposed that he inquired from the accused and he admitted that he was in possession of a buttondar knife which was got recovered from him by ASI Mukhtiyar Singh. He deposed that he prepared the site plan Ex.PW3/A at the instance of ASI Mukhtiyar Singh. He deposed that accused was arrested vide arrest memo Ex. PW2/C and his personal search was conducted vide memo Ex. PW2/D. This witness correctly identified the case property Ex. P1.
9. During his crossexamination he stated that he had not recorded the disclosure statement of accused. He denied the suggestion that accused never admitted that he was in possession of buttondar knife and same was recovered from his possession. He admitted that personal search memo Ex. PW2/C does not bear the date. He admitted that there is overwriting on the column "date and time of arrest" i.e. Ex. PW2/D. He denied the suggestion that the entire proceedings were conducted at the PS. He denied the suggestion that the accused was lifted from his house and the knife was planted upon him. He stated that he made DD entry but he does not know the number of the same. He denied the suggestion that accused was falsely implicated in this case. He denied the suggestion that the recovery has been planted upon the accused. He admitted that that public persons were coming and going at the place of recovery.
FIR No. 339/06 State Vs. Chand Dilshad 5/10 He admitted that no public person has been cited as a witness. He voluntarily added that nobody agreed to become a witness and they left without disclosing their name and addresses. He admitted that no notice was served upon those who refused to join the investigation. He denied the suggestion that he was deposing falsely.
10. I have heard the arguments advanced at bar by the accused as also learned APP and have carefully gone through the evidence recorded in the matter and the documents placed on record by the prosecution in this case.
11. After going through the rival contentions as well as the evidence led by the prosecution and the material on record, I am of the considered opinion that the prosecution has failed to bring home the guilt against the accused.
12. Despite availability the police officials failed to join the public witness and the explanation given that they were asked but they refused to join the investigation/arrest and seizure of weapon from the accused does not inspire much confidence. I have perused the site plan Ex. PW3/A, the spot/place of arrest/recovery is shown in between C and D Block of Defence Colony which is a densely populated residential area. Admittedly numerous public persons were also present at the time of alleged arrest of the accused. It is beyond my contemplation that the police official could not find any public person at the spot to join in the investigation despite the fact that it was a very busy place and FIR No. 339/06 State Vs. Chand Dilshad 6/10 admittedly public persons were available. If indeed public persons refused to join the proceedings action ought to have been taken against them as per the Code of Criminal Procedure. But no efforts were made to do the same as admitted by the IO and other recovery witnesses. It is yet another typical story of requesting the public persons to join and their refusal. In fact it is crystal clear from the deposition of PW2 Const. Mohd Talim that IO did not make any efforts whatsoever to join the public witnesses in the investigation/the alleged proceedings.
13. In the case titled as Jagdish Raj Jaggi v. State, (Delhi) 1987(2) R.C.R.(Criminal) 1 which was also the case under Arms Act, while acquitting the accused due to absence/ nonjoining of public witness the Court observed as under:
"The question is not whether the testimony of police officers should or should not be approached with a suspicion. The question is of being conscious of an inherent danger that is involved in relying upon the evidence of police officers only unless it is supported by some corroborative evidence or unless circumstances of the case sufficiently lend assurance to the court that all that is being stated by the police officers is correct. Normally speaking when a raid of this kind is arranged one should expect the police officer to involve independent witnesses. In this case the court is told that an effort was made but nobody came forward. It has been my unfortunate experience that this explanation is now FIR No. 339/06 State Vs. Chand Dilshad 7/10 being tendered in almost all cases. Normal rule is the involvement of public witnesses and if that is not followed it must be sufficiently explained as to why it was not so".
14. Similar observation was made by the Hon'ble Apex court in Sans Pal Singh v. State of Delhi, (SC) 1999 A.I.R. (SC) 49.
15. I have also gone through the observations made in ''1990 CCC 3'', titled as ''Roop Chand V/s State of Haryana'' wherein it was held as under:
''When some witness from the public was available then the explanation furnished by the prosecution that they refused to join the investigation is wholly unsatisfactory, particularly when the IO did not note down the names and addresses and did not take any action against them''.
16. In the landmark judgment of Nanak Chand v. State of Delhi, (Delhi) 1992(1) R.C.R.(Criminal) 412 while acquitting the accused the Hon'ble High Court Of Delhi observed:
The recovery was from a street with houses on both sides and shops nearby. And, yet no witness from the public has been produced. Not that in every case the police officials are to be treated as unworthy of reliance but their failure to join witnesses from the public especially then they are available at their elbow, may, as in the present case, cast doubt. They have again, churned out a stereotyped version. Its rejection needs no FIR No. 339/06 State Vs. Chand Dilshad 8/10 Napoleon on the Bridge at Arcola.
17. Similar observations were made in case titled as Chitwant Singh v. State of Punjab (SC) 1999 A.I.R (SC) 1606, Nachhattar Singh v. State of Punjab (P&H) (DB) 2003 (1) R.C.R. (Criminal) 68 as well as State of Punjab V. Gurdeep Singh (P&H) (DB) 1993 (3) R.C.R. (Criminal) 121.
18. It has been observed by Hon'ble High Court in ''Pawan Kumar V/s Delhi Administration 1987 C.C cases 585 (HC)'' that:
"It may be that there is an apathy on the part of the general public to associate themselves with the police raids or the recoveries but that apart, at least the IO should have made an earnest effort to join the independent witness. No attempt in this direction appears to have been made and this, by itself, is a circumstance throwing doubt on the arrest or the recovery of knife from the person of accused."
19. The deposition of the prosecution witnesses did not inspire confidence also on account of fact that (1) they failed to prove the departure and the arrival entry at the PS ( 2) the seal remained with the police officials hence, the case property being tempered cannot be ruled out. Reliance may be placed in this regard upon the law laid down in Ramji Singh Vs. State of Haryana 2007 (3) R.C.R. (Criminal) 452 and Rajesh Jagdamba Avasthi Vs. State of Goa (2005) 9 SCC 773 (3) there is an overwriting/cutting on the arrest memo i.e. Ex.
FIR No. 339/06 State Vs. Chand Dilshad 9/10 PW2/D regarding the date and time of arrest and date seems to have been altered from 05.05.2006 to 06.05.2006. Similarly the date on the site plan i.e. Ex. PW3/A appears to be 04.05.2006 instead of 06.05.2006. These alterations/cutting further casts serious doubts upon the prosecution case.
20. All these contradiction casts serious doubts on the prosecution story.
21. In view of the above discussion, I am of the considered opinion that the prosecution has not been able to prove the charges against the accused beyond the shadow of doubt. Accused is accordingly entitled for acquittal.
22. I order accordingly.
Announced in the open (Gaurav Rao)
Court on 04.08.2012 MM (South)/Delhi.
FIR No. 339/06 State Vs. Chand Dilshad 10/10
F.I.R. No:339/06
U/s 25 Arms Act
P.S. Defence Colony
04.08.2012
Pr: Ld. APP for state.
Accused is present on bail.
PW HC Salim is present. He has been examined and cross
examined and discharged as PW4.
No other PW is present.
Record reveals that all material prosecution witnesses have been examined.
PE accordingly stands closed.
SA of accused u/s 313 Cr.P.C. recorded separately.
Final arguments heard.
Vide my separate judgment announced today in the open court, accused has been acquitted of the charges in the present case.
Bail bond cancelled, surety discharged, endorsement if any be cancelled, original documents be returned as per rules and procedure.
File be consigned to Record Room.
(Gaurav Rao)
MM01 (SD)/N. Delhi
04.08.2012
FIR No. 339/06 State Vs. Chand Dilshad 11/10