Delhi District Court
State vs Kasim Mullah @ Kadir @ Kasim S/O on 27 November, 2010
IN THE COURT OF SH. RAMESH KUMAR - II, LD. ADDITIONAL
SESSIONS JUDGE - 0I : North- East / KARKARDOOMA COURTS:
DELHI.
Case ID Number. 02402R0499512006
Sessions Case No. 83/07
Assigned to Sessions. 28.09.06
Arguments heard on 18.09.2010
Date of order. 27.11.2010
FIR No. 278/06
State Vs Kasim Mullah @ Kadir @ Kasim s/o
Noor Hassan r/o Mohalla Manihar,
Thana Kotwali, Distt. Bulandsahar,
U.P.
Police Station Bhajanpura.
Under Section 307/ 353/ 186/ 34 IPC and 25/ 27
Arms Act.
JUDGEMENT
1. Station House Officer of Police Station Bhajanpura had filed a challan vide FIR no. 278/06 dated 05.07.06 307/ 353/ 186/ 34 IPC read with section 25/ 27 / 54/ 59 of Arms Act for the prosecution of accused Kasim Mullah @ Kadir @ Kasim s/o Noor Hassan in the court of ld. Metropolitan Magistrate and after compliance of section 207 Cr. PC committed this case for trial before this court.
2. In brief facts of the case are that on 04.07.06 Sub-Inspector Ajay Kumar, who is the complainant in this case was performing his duty in search of accused Kasim Mullah who was wanted in case FIR no. 407/06 Police Station Gokalpuri u/s 307/ 34 IPC and 27/54/59 Arms Act S.C. No. 83/07 FIR no.278/06 U/s 307/ 353/ 186/ 34 IPC and 25/ 27 Arms Act 1/19 and when he was in search one secret informer informed him that accused Kasim Mullah, who is wanted in the above noted case would come in the area of Noor Ellahi with his associates on a stolen motorcycle. At about 7:40 p.m. complainant had seen a black colour motor cycle make Pulsor, coming from Ghonda Chowk side and secret informer identified that driver of the vehicle is accused Kasim Mullah. On this Sub-Inspector / complainant Ajay Kumar tried to stop him but accused Kasim Mulla started firing and tried to escape from the spot but he was apprehended with the help of Ct. Umesh and Ct. Anil. Police also had made cross-firing which caused injury to the accused Kasim Mullah in his legs and thighs and from his possession this complainant recovered one loaded Dessi Katta and one belt carrying 9 live cartridges of .315" bore. This complainant stated that accused Kasim Mullah was having two dessi Kattas in his both hands in addition to loaded Katta recovered from his possession. He states in complaint that there were three persons on the motorcycle including accused Kasim Mullah. However, two were succeeded in escaping from the spot. One child named Mansoor was also injured by the firing of accused Kasim Mullah.
3. On the basis of material available on record ld. predecessor of this court framed a charge against accused Kasim Mullah for the offences punishable u/s 307/ 353/ 186/ 34 IPC and 25/ 27 Arms Act to which accused did not plead guilty and claimed trial vide court order dated 09.07.07.
4. In order to prove its case prosecution has examined 14 witnesses S.C. No. 83/07 FIR no.278/06 U/s 307/ 353/ 186/ 34 IPC and 25/ 27 Arms Act 2/19 namely PW1 Rambeer Singh - owner of alleged motorcycle - hostile witness, PW2 SI Ajay Kumar - complainant, PW3 Dr. Prabhakar Yadav - he had examined the accused Kasim Mullah, and testified that accused Kasim Mulla was having firearms injuries, PW4 HC Rohtash - he had accompanied the SI Ajay Kumar on 05.07.06, PW5 HC Umesh - another companion of PW2 SI Ajay Kumar, PW6 HC Raj Kumar - another companion of PW2, PW7 SI Dinesh Kumar - I. O. of the case who reached at the spot on receiving wireless message regarding firing had taken place, PW8 HC Anil Kumar - another companion of PW2, PW9 Sh. V. R. Anand, Sr. Scientific Officer, Ballistic, FSL Rohini, Delhi, PW10 HC Sanjeev Baniwal - formal witness being photographer, PW11 Amit Roy - DCP- formal witness who granted sanction u/s 39 Arms Act against accused Kasim Mullah after perusal of record placed before him, PW12 ASI Om Prakash - another formal witness being duty officer who recorded arrival entry of police team in register no.2, PW13 HC B.S. Bana - another formal witness being duty officer who recorded the departure entry of SI Ajay Kumar on 04.07.06 and PW14 HC Ravinder Kumar - another formal witness who recorded case FIR of the present case.
5. PW1 Rambeer Singh, who has claimed to be the owner of alleged motorcycle used by accused Kasim Mullah, stated that he does not know anything about the present case and he has not made any statement to the police.
6. PW2 Sub-Inspector Ajay Kumar who is the complainant in this case, S.C. No. 83/07 FIR no.278/06 U/s 307/ 353/ 186/ 34 IPC and 25/ 27 Arms Act 3/19 states that on 05.07.06 he was in the investigation in case FIR no. 407/06 Police Station Gokalpuri u/s 307/ 34 IPC and 27/54/59 Arms Act along with HC Rohtash, Ct. Raj Kumar, Ct. Umesh, Ct. Anil and Ct. Sarabjeet in the area of Police Station Gokalpuri. In the evening time when he was present at Mustaffabad, he received information from one informer about accused Kasim wanted in case FIR no.407/06 and on receiving of the said information this witness at about 7.40p.m. saw a black colour motorcycle on which three persons were sitting pointed out by the informer and identified the rider as accused Kasim Mullah, coming from Ghonda Chowk side. This witness asked them to stop but he did not stop the motorcycle and tried to run away and when police party tried to nab the accused he made a fire upon Ct. Anil and Ct. Umesh. Police party also cross fired upon accused and during this course of firing one child namely Mansoor became injured. Accused was apprehended along with three weapons i.e. countrymade pistols, two were used in firing by the accused and one loaded Katta and one magazine was kept by him. His companion were escaped from the spot. Accused was carrying a belt containing 9 live cartridges which were taken into possession by the said complainant. Accused was sent to GTB hospital by Ct. Rohtash and Umesh. Injured child was also taken to hospital through Ambulance. In the meantime Sub- Inspector Dinesh Kumar of Police Station Bhajanpura reached there and all the weapons/cartridges were handed over to him. Sub-Inspector Dinesh Kumar recorded his statement vide Ex.PW2/A and prepared sketch of three countrymade pistols vide Ex.PW2/B, PW2/C, and PW2/D respectively. Revolver of Ct. Anil was also seized vide seizure memo Ex.PW2/E. 2 fired cartridges of .9mm from the spot were also S.C. No. 83/07 FIR no.278/06 U/s 307/ 353/ 186/ 34 IPC and 25/ 27 Arms Act 4/19 taken into possession vide seizure memo Ex.PW2/F handed over by Ct. Raj Kumar. Seizure memo of 3 Kattas recovered from the possession of accused along with 2 fired cartridges, one live cartridge and one belt containing 9 live cartridges were taken into possession vide seizure memo Ex.PW2/H. Motorcycle bearing no. DL-5ST-7952 was also seized vide seizure memo Ex.PW2/J. In his cross- examination PW2 i.e. Sub-Inspector Ajay Kumar he states that he had conducted raid in search of accused at various places for more than 15 - 20 times and he was in search of the accused since 04.07.2006 but he was failed to tell the exact time when he left the Police Station in the morning, evening or noon time on 04.07.2006. He further stated that during the whole period 5/ 6 police officials remained with him and even they did not go to their house. He arranged dinner for the staff of raiding party and they took the dinner in standing position on spot. He further stated that he searched the accused in the area of Police Station Gokulpuri and police party was having residential address of accused of Bulandshahar, Prem Nagar, Loni Ghaziabad, U.P. He further states that he did not conduct any raid at the aforesaid house of the accused. He further states that during the investigation he did not conduct any raid since registration of case FIR no.407/06 under above said sections. He further states that area of incident is not densely populated area but there are residential houses around the spot. He further states that a child was hit by pallets from countrymade pistol of accused but he did not see personally the injured child. He states that 10 to 20 passersby remained standing at some distance from the spot but he did not call any public person to join for investigation due to circumstances at the S.C. No. 83/07 FIR no.278/06 U/s 307/ 353/ 186/ 34 IPC and 25/ 27 Arms Act 5/19 spot. He does not know whether the MLC of injured child was prepared.
7. PW3 is Dr. Prabhakar Yadav who has prepared te MLC of injured accused Kasim Mullah.
8. PW4 HC Rohtash, PW5 HC Umesh, PW6 HC Raj Kumar and PW8 HC Anil Kumar are the witnesses who accompanied with Sub-Inspector Ajay Kumar, complainant in the present case. All these witnesses have almost deposed on same lines of complainant. PW4 HC Rohtash has deposed that Sub-Inspector Dinesh Kumar reached at spot from the hospital where he handed over sealed pullanda of blood stained Jean vide Ex.PW4/A to Sub-Inspector Dinesh Kumar. He is the witness of seizure memo of Ex.PW4/B i.e. pistol of Ct. Umesh, of Ex.PW4/C empty cartridge of Ct. Umesh. He is also the witness of arrest of accused Kasim Mullah vide Ex.PW4/E and personal search memo Ex.PW4/F. PW5 states that Sub-Inspector Ajay Kumar challenged the accused Kasim Mullah from behind and asked him where is he going. PW6 Raj Kumar is the witness of investigation. He is the witness of reaching of photographer of crime team who took photographs of the spot. In cross-examination he states that Sub-Inspector Dinesh reached at the spot within 15 to 20 minutes and PCR reached at the spot within 10 minutes. This witness has also stated that police took dinner near Bhajanpura bus stand in the night of 04.07.06 and thereafter, made search for the accused. This witness also states that area of Noor Ellahi is densely populated area and crowded market.
S.C. No. 83/07 FIR no.278/06U/s 307/ 353/ 186/ 34 IPC and 25/ 27 Arms Act 6/19
This witness has also states that no barricade was put stop the
accused. Accused was spotted by the informer from the distance of 50 meters. This witness further states that accused was made signal to stop from the distance of 4 / 5 feet.
9. PW7 Sub-Inspector Dinesh is the Investigating Officer in this case. He states that on 05.07.06 he was posted as Sub-Inspector at Police Station Bhajanpura and he was on patrolling durty with Ct. Kamal Singh in the area of Yamuna Vihar. He received a wireless message that a firing incident has taken place near near Sant Parmanand School in Noor Ellahi area. He reached there and found Sub-Inspector Ajay Kumar who told him regarding the incident. Sub-Inspector Ajay Kumar produced two countrymade pistols and one another countrymade pistol and one Niwar belt containing nine cartridges recovered from the possession of accused Kasim Mullah during his search. This witness states that he seized one motorcycle bearing No. DL-5ST-7952 of black colour make Bajaj Pulser. This witness has recorded statement of Sub- Inspector Ajay Kumar and prepared rukka vide Ex.PW7/A. He prepared site plan vide Ex.PW7/B at the instance of Sub-Inspector Ajay Kumar. In cross-examination this witness states that he reached at the spot at around 8:00 p.m. from Police Station Bhajanpura. There was large public gathering at the spot. He further states that injured child Mansoor was already shifted to GTB Hospital by PCR Ambulance when he reached at the spot. He further states that he did not see the said injured child at the spot. This witness further states that he collected MLC of injured child on the same day and he was discharged on the same day after first aid. This witness admits that S.C. No. 83/07 FIR no.278/06 U/s 307/ 353/ 186/ 34 IPC and 25/ 27 Arms Act 7/19 MLC of the said child is not on record. He submits that he requested some passerby to join in the investigation but they refused due to terror. He did not ask any person of the locality to join investigation. Vol. The shops were already closed after the incident. He further states that it was a around 50 to 60 feet wide road. He prepared the documents on the pavement of the road. Thereafter, he again came to the spot and it was early morning time around 4:00 a.m. He remain at the spot on his second visit for about one hour. During the said period he collected the motorcycle. He did not mention the time of deposit of case property. He denied the suggestion that he did not mention the time deliberately due to manipulation. He has also denied the suggestion that police party concocted a false story to eliminate the accused after lifting him from Loni from his house.
10.PW9 V. R. Anand, Sr. Scientific Officer, Ballistic, FSL, Rohini, Delhi is the witness who has examined arms recovered from the from the accused and used by the police officials. This witness states that weapon i.e. country made pistols were in working condition.
11.PW10 HC Sanjeev Baniwal was the member of Mobile Crime Team, North East Distt. He deposed that he took 7 snaps of the spot from different angle.
S.C. No. 83/07 FIR no.278/06U/s 307/ 353/ 186/ 34 IPC and 25/ 27 Arms Act 8/19
12.PW11 Amit Roy, Additional DCP, Outer District Delhi is the witness who granted Sanction u/s 39 of Arms Act for the prosecution of accused Kasim Mullah.
13.PW12 ASI Om Prakash is the duty officer of Police Station Gokalpuri. He states that on 06.07.2006 he was doing job of Duty Officer from 4:00 p.m. to 12:00 midnight and at around 5:30 p.m. he recorded the arrival entry in register No.2 at number page No.81 with regard to investigation team with the particulars mentioning FIR No.407/06 u/s 307/34 IPC & 27/54/59 Arms Act, Police Station Gokalpuri. The attested copy having signature of SI Dinesh Kumar is Ex.PW12/A.
14.PW13 HC B.S. Bana, states that on 04.07.2006 he was doing job of Duty Officer from 4:00 p.m. to 12:00 midnight and at around 6:55 p.m., SI Ajay Kumar recorded the departure entry in register No.2. The entry was made at serial No.30A on dated 04.07.2006. The copy of which is Ex.PW13/A bearing signature of SI Dinesh Kumar at point A.
15.PW14 HC Ravinder Kumar, is also duty officer. He states that on 05.07.2006 he was posted as HC at Police Station Bhajanpura and on that day, he was doing job of Duty Officer from 4:00 p.m. to 12:00 midnight. He further states that at around 11:40 p.m., he received a rukka through Ct. Kamal Chand. On the basis of rukka received from Ct. Kamal Chand, he recorded FIR No.278/06 vide Ex.PW14/A u/s 307/353/186/34 IPC and 25/27/54/59 Arms Act, Police Station S.C. No. 83/07 FIR no.278/06 U/s 307/ 353/ 186/ 34 IPC and 25/ 27 Arms Act 9/19 Bhajanpura, Delhi.
16.After prosecution witness statement of accused u/s 313 Cr.PC was recorded where accused denied all the allegations put against him and about other he shows his ignorance and on the question of leading defence evidence he refused to lead D.E. ARGUMENTS
17.Ld. APP for the state argued and submitted that Sub-Inspector Ajay Kumar who was in search of accused Kasim Mullah in case FIR no. 407/06 Police Station Gokalpuri u/s 307/ 34 IPC and 27/54/59 Arms Act while he was in search of accused he received secret information and according to that information he managed barricades to stop and check the accused persons. He further argued and submitted that on 05.07.2006 at about 7.40 p.m. when Sub-Inspector Ajay Kumar was in search of accused, informer pointed out him one motorcycle of black colour on which three persons were sitting and informer pointed out towards the rider of the bike as Kasim Mulla and when Sub-Inspector Ajay Kumar tried to stop him, accused started firing upon police party and when accused tried to run away by leaving motorcycle at the spot, accused was apprehended and three desi kattas were recovered from his possession, two were in his hand by which he was making fire and one other was in his possession which was recovered from his search. One belt was also recovered, which was having 9 live cartridges. In this firing incident one child was also injured whose name is Mansoor. Motorcycle used in this case was identified by the owner of motorcycle.
S.C. No. 83/07 FIR no.278/06U/s 307/ 353/ 186/ 34 IPC and 25/ 27 Arms Act 10/19 Thereafter, this case was registered and investigation was handed over to Sub-Inspector PW7 Dinesh. Ld. APP further states that case is intact and police has done its act in right way as accused Kasim Mullah was wanted in case FIR no. 407/06 Police Station Gokalpuri u/s 307/ 34 IPC and 27/54/59 Arms Act. ld. APP further submitted that accused is hard-core criminal and many cases under various Police Stations are pending against him. Ld. APP further submits that accused Kasim Mullah has caused fire upon the police party while they were performing their duties and hence he has obstructed them from performing their duties, thus, a case for the offence u/s 307/ 353/ 186/ 34 IPC and 25/ 27 Arms Act was made. He further argued and submitted that sanction u/s 39 Arms Act was also obtained from Addl. DCP for prosecuting the accused.
18.On the other hand, ld. counsel for the accused argued at length and submitted that police has falsely implicated the accused Kasim Mullah in the name of wanted in case FIR no. 407/06 of Police Station Gokalpuri. Ld. counsel further submitted that police picked up the accused from Loni Ghaziabad and they have shown his arrest in the area of Police Station Bhajanpura. It is also the contention of ld. counsel for the defence that accused Kasim Mullah never visited the area of Police Station Bhajanpura. Neither he had made any fire upon any person nor he drove any motorcycle on the alleged date of incident. It is also submitted by the ld. counsel for accused that story of the prosecution is far away from the actual fact. The fact is that accused Kasim Mulla has nothing to do with the present case on the ground that police claims three persons were coming on one motorcycle and S.C. No. 83/07 FIR no.278/06 U/s 307/ 353/ 186/ 34 IPC and 25/ 27 Arms Act 11/19 accused Kasim Mullah was having two dessi Kattas in his hand and one other katta was also in his possession and one belt having 9 live cartridges. He pointed out towards the statement of PW1 who has denied the facts of the present case and PW2 who is the complainant Sub-Inspector Ajay Kumar who has stated in his examination in chief that one child namely Mansoor was injured in firing incident caused by accused Kasim Mullah when he made fire upon Ct. Umesh and Ct. Anil when both were trying to apprehend him. Ld. counsel further raised a point that since the area of firing is highly densely populated area and is a crowded market therefore, it is not possible that accused was coming having two katta in his hand on motorcycle. He also denied that it is not possible that a person having two katta in his hand while driving motorcycle. Ld. counsel further pointed out towards the statement in which he has stated that from pubic someone made a call to the police and PCR reached there along with local police. Ld. counsel for defence further pointed towards the statement of PW7 who is the Investigating Officer in the present case, has stated that he received wireless message that a firing incident has taken place near Noor Ellahi area. Both are the contradictory statements. Ld. counsel further states that since it is an alleged story of the prosecution that accused Kasim Mullah made fire upon Ct. Umesh and Ct. Anil and only one child became injured, while the area is densely populated. Other people might have been injured in that firing incident. Ld. counsel further argued and submitted that as per prosecution story the area is densely populated and crowded market and it is not possible that no one other except accused were present there. Ld. counsel for accused persons further submitted that on the question of recovery, police did not make S.C. No. 83/07 FIR no.278/06 U/s 307/ 353/ 186/ 34 IPC and 25/ 27 Arms Act 12/19 any person witness to the incident since it was a densely populated area and only police personnel are witnesses to this incident. Ld. counsel further argued and submitted that police has not obtained the MLC of injured child namely Mansoor. He further pointed out towards the statement of PW6 who states in his examination in chief that he made a Nakabandi near Sant Parmanand School and at around 7:40 p.m. but in his cross-examination he denied and states that no barricade was put on the road for the search of accused persons. Ld. counsel again argued and submitted that Sub-Inspector Ajay Kumar in his cross-examination has stated that he had arranged the dinner for the police party and police party took the dinner while standing at the spot. On the other hand PW8 in his cross-examination states that police team took dinner near Bhajanpura bus stand on the night of 04.07.06 and thereafter made search for the accused. PW5 has stated that he did not recollect whether any barricade was put on the road. Ld. counsel again pointed out that neither the MLC in respect of injured child namely Mansoor has been placed on record by Investigating Officer nor he has been made witness to the incident, nor any relevant or pertaining record to inured was called as as witness. Ld. counsel for defence further submitted that PW8 in his cross- examination stated that secret informer spotted the accused from the distance of 50 meters while PW6 stated in his examination that informer pointed out towards accused from the distance of 25/ 30 meters.
Ld. counsel for accused further argued and submitted that Sub- Inspector Ajay Kumar has stated in his statement he signaled to stop S.C. No. 83/07 FIR no.278/06 U/s 307/ 353/ 186/ 34 IPC and 25/ 27 Arms Act 13/19 the accused whereas PW Umesh stated in his examination in chief as well as in cross-examination states that Sub-Inspector Ajay Kumar challenged him from behind to stop. Ld. counsel again pointed that no witness stated that he had sent the injured child and Investigating Officer stated that he did not know who brought the injured to the hospital. Even Sub-Inspector Ajay Kumar did not know whether any child was injured in this incident. Ld. counsel further pointed out toward the statement of PW4 who has stated that his statement was recorded in Police Station on 06.07.06 and not at hospital. Neither the police has recovered the bullet which caused injury to the child Mansoor.
19.Arguments heard. Record perused. During the course of arguments, this court on dated 16.10.2010 has conducted local inspection of the spot. In this regard, notice to Ld. defence counsel and Investigating Officer and APP for the state was given. On local inspection, this court has found that alleged spot is densely populated area and shops are near and around the place of incident. The road from which accused was coming is busy and large number of rickshaws and thelas are running and standing on the road and it appears that identification of accused on motorcycle at the busy hours is not possible from the distance of 25-30 meters. The identification of accused by HC Raj Kumar seems to be not possible from the distance of 25 to 30 meters. This court on inspection found that road was busy and there was no question that no one would have come for rescue of injured child Mansoor. This court also inspected the point 'A' of site plan from where accused Kasim Mullah was apprehended in injured condition. On S.C. No. 83/07 FIR no.278/06 U/s 307/ 353/ 186/ 34 IPC and 25/ 27 Arms Act 14/19 inspection of the spot it is apparent that it is not possible for any accused who may have having two revolvers in his hand while driving motorcycle. Further, Investigating Officer present could not explain the manner and kind in which barricade was used to stop accused Kasim Mulla which was coming from Ghonda Chowk.
20.Hon'ble Supreme Court in case titled as 'Sans Pal Singh Vs. State of Delhi 1999 Cri. L.J.19' has held that :
" Recovery of country made pistol and live cartridge from the pocket of the accused based only on evidence of police - No public witnesses, even though available, associated to witness recovery- Conviction- Cannot be maintained. Inter alia, it has been urged by learned counsel for the appellant that it would not be safe to maintain the conviction because the recovery of the illicit arms did not inspire confidence, supported as it is, by the evidence of two police officials alone, unassociated by the testimony of any independent witness. It has also been urged that witnesses of the public were available and neither were they associated nor was any explanation given at the trial as to why they were not associated. From the evidence of PW5 HC Sat Pal singh, it is clear that the police party did not ask any public witness to be witness at the time of search of the accused. Likewise, PW6 SI Mahipal Singh has also stated that no public witness was joined at the time of the search of the accused even though a number of persons were passing through at the time when the recovery was being effected. It is thus evident that public witnesses were available and could have been associated to witness the recovery. It would have been a different matter altogether had there been no public witness available or none was willing to associate. Here, as said before, public witnesses were available but no explanation on these lines is forthcoming. Thus, we got to the view that it would be unsafe to maintain the conviction of the appellant for the offence charged. We, therefore, S.C. No. 83/07 FIR no.278/06 U/s 307/ 353/ 186/ 34 IPC and 25/ 27 Arms Act 15/19 order his acquittal. He is in jail. He be set at liberty forthwith."
21.Again Hon'ble Suprme Court in 'Megha Singh Vs. State of Haryana, 1995 Cri. L.J.' in which accused was arrested by HC of Police who recovered pistol and cartridges from accused- It was on his complaint that formal FIR registered - HC being complainant should not have proceeded with investigation - Such practice should not be resorted to so that there may not be any occasion to suspect fair and impartial trial.
" It is the prosecution case that on 29th September, 1985 HC Siri Chand (PW3) and Ct. Bhup Singh (PW2) and other police personnel were present on the Kacha route connecting village Faggu with village Rohan. At about 12.00 noon the accused was spotted while coming from the side of village Rohan. As the accused after seeing the police party tried to cross through the field, the police party became suspicious and he was intercepted and the HC Siri Chand PW3 thereafter searched the person of the accused and on search a countrymade pistol Ex.P1 was recovered from the right dub of his chadar and three live cartridges Exts. P2 to P4 wee also recovered from the right side pocket of his shirt. The said pistol and the cartridges were possessed by the accused without any valid licence. After recovery of the said pistol and the cartridges the same were seized vide recovery memo Ex.PC and a rukka Ex.PD with regard to the recovery was prepared and sent to the police station on the basis of which FIR Ex.PD/1 was recorded by SI of Police Charanjit Singh. The prosecution case sought to be proved by the said HC Siri Chand PW3 and Bhup Singh PW2. No independent witness was examined to support the prosecution case."
22.Further in case titled as 'Pawan Kumar Vs. Delhi Administration, 1989 Cri.L.J.127', Hon'ble Delhi High Court has held that large S.C. No. 83/07 FIR no.278/06 U/s 307/ 353/ 186/ 34 IPC and 25/ 27 Arms Act 16/19 number of people were present at the time of recovery- No independent witness produced and no attempt made to join independent witness
-Statement of official witnesses could not be relied.
" 6.On the second aspect also, Miss Khanna has something to say, PW11, ASI Jagbir Singh is the person who in the company of PW 15, Kalam Singh and PW21 Kanchan Dev, HC apprehended accused Pawan Kumar and from his possession the knife (Ex.P1) was recovered. On the recovery memo, Jagbir Singh obtained the signatures of Kalam Singh and Jai Bhagwan constables. Jai Bhagwan has not been produced. Kalam Singh had to admit that at the time of the arrest and recovery of the knife, there was a lot of rush of public at bus-stop near Subhash Bazar. According to Jagbir Singh, he did not join any public witness in the case while according to Kalam Singh no public person was present there. It hardly stands to reason that at a place like a bus-stop near Subhash Bazar; there would be no person present at. A crucial time like 7.30 p.m. when there is a lot of rush of commuters for boarding the buses to their respective destinations. Admittedly, there is no impediment in believing the version of the Police officials but for that the prosecution has to lay a good foundation. At least one of them should have deposed that they tried to contact the public witnesses or that they refused to join the investigation. Her is a case where it re no efforts was made to join any public witness even though number of them were present. No plausible explanation from the side of the prosecution is forthcoming for not joining the independent witnesses in a case of a serious nature like the present one. It play be that there 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 I should have an earnest effort to join the independent witnesses. No attempt in this direction appears to have been made and this, by itself, is a circumstances throwing doubt on the arrest or the recovery of the knife from the person of the accused."
23.Again Hon'ble Supreme Court in 'Harish Kumar and another Vs. State of U.P., AIR 1996 SC 3433' in which conviction was challenged S.C. No. 83/07 FIR no.278/06 U/s 307/ 353/ 186/ 34 IPC and 25/ 27 Arms Act 17/19 in appeal 20 in which one fire was committed and not repeated again. Hon'ble Supreme Court has also held that there was no incriminating firing act of appellant termed as one in exercise of private defence of persons entitled him to acquittal.
24.I have perused the whole case file very carefully. In view of the arguments and perusal of record as stated by Ld. APP for state accused has used weapon by attempting to cause death of one injured child Mansoor. Further, that contention of Ld. APP that the accused has obstructed in the functioning of police officials while they were on duty is also not proved. As far as offence u/s 25/54/59 Arms Act is concerned, since there are only police officials witnesses to these recoveries that cannot be considered for the purpose of conviction. As according to story of prosecution, it is clear on record that public persons who were present at spot but Investigating Officer has failed to make them witnesses in this case and submissions of Ld. APP for state that prosecution has proved its case beyond reasonable doubt cannot be considered. The conviction of accused cannot be solely based on the testimonies of police officials and recovery of any weapon from accused by police officials in absence of any public witness also cannot be considered as concrete evidence. To prove the recovery of any weapon, the seizure memo should have been signed by public witness. In this it clearly on record that public persons were present at the spot but Investigating Officer has failed to make them witness in this case. Furthermore, it has not been proved whether any fire was caused.
S.C. No. 83/07 FIR no.278/06U/s 307/ 353/ 186/ 34 IPC and 25/ 27 Arms Act 18/19
25. In light of these observations and judgments i.e. 1)'1995 Cri. L J 3988
- Megha Singh Vs State of Haryana' 2)'1989 Cri.L J127 - Pawan Kumar Vs The Delhi Admn.' 3)'AIR 1996 SC 3433 - Harish Kumar and another Vs. State of M.P.' and 4)'1999 Cri. LJ 19 - Sans Pal Singh Vs Sate of Delhi' (supra) and in view of the submissions and arguments, I am of the considered view that under the facts and circumstances as discussed above and hearing the counsel for parties, I do not find that prosecution has proved its case beyond reasonable doubt and further I do not find any merit in the arguments of Ld. APP for state to convict the accused Kasim Mulla u/s 307/353/186/34 IPC and 25/27 Arms Act. Accordingly, I acquit the accused Kasim Mulla by giving him benefit of doubt. In terms of directions of Hon'ble High Court of Delhi accused Kasim Mulla is directed to execute bail bond in sum of Rs.20,000/- with one surety in the like amount for the period of six months. File be consigned to record room.
ANNOUNCED IN THE OPEN COURT ON THIS 27.11.2010 (RAMESH KUMAR-II) ASJ-01/ North - East Karkardooma Courts Delhi S.C. No. 83/07 FIR no.278/06 U/s 307/ 353/ 186/ 34 IPC and 25/ 27 Arms Act 19/19