Delhi District Court
Suspicious. In State Of Punjab vs . Gurmel Singh 1991 (2) on 9 February, 2010
{ 1 }
IN THE COURT OF SH. RAVINDER SINGH : MM
NEW DELHI
FIR no. 121/05
PS Malviya Nagar
U/s 25/54/59 Arms Act
State v. Mohd. Kasim
JUDGMENT :
a. Sl. No. of the case : 9/3 b. Date of Institution : 8.02.06
c. Date of Commission of Offence : 30.06.08 d. Name of the complainant : Ct. Avinash Kumar No. 1527/SD e. Name of the accused and his : Mohd. Kasim parentage and address S/o Sh. Munna R/o Jhuggi no. A81, J J Camp, Tigri, New Delhi f. Offence complained of : U/s 25/54/59 Arms Act g. Plea of the accused : Pleaded not guilty h. Order reserved : 09.02.2010 i. Final Order : Acquitted j. Date of such order : 09.02.2010 Brief reasons for the decision of the case.
1. The case of the prosecution in brief is that on 9.02.05 at about 6.45 pm, Ct. Avinash Kumar while on petrolling duty near Chirag Delhi Tempo Stand parking, New Delhi, where he 1 { 2 } saw the accused standing at the open place near the park in suspicious condition who tried to ran away on seeing him so he apprehended the accused and got recovered one buttondar knife from his possession so case FIR was registered against the accused U/s 25/54/59 Arms Act in PS Malviya Nagar. 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.
2. Accused was summoned to face the trial, so copy of challan as required U/s 207 Cr. PC 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 25/54/59 Arms Act, was made out against the accused Mohd. Kasim. Charge was framed accordingly against the accused on 30.06.08. Thereafter case was fixed for prosecution evidence.
4. Prosecution has produced and examined as many as three witnesses i.e, PW 1 H.C. Suresh Kumar, PW 2 Ct. Avinash Kumar and PW 3 H.C. Suresh Kumar.
5. PW 1 H.C. Suresh Kumar testified that he recorded FIR No. 121/05 on 09.02.05 being duty officer in PS. Copy of FIR is Ex PW 1/A and he put his endorsement on rukka Ex PW 2 { 3 } 1/B. Accused did not prefer to cross examine PW 1.
6. PW 2 Ct. Avinash Kumar testified that on 09.02.05 while on petrolling duty he reached near Chirag Delhi Tempo Stand parking at about 6.45 pm and saw one person standing there who on seeing him tried to ran away so he apprehended that person and on his cursory search one buttondar knife was recovered from his right side pocket of pant. PW 2 further testified that he informed PP Sheikh Sarai so H.C. Suresh Tomar reached on the spot who prepared sketch of knife Ex. PW 2/A after taking its measurement. Thereafter I.O. sealed the knife in pullanda with the seal of DP and seized it vide memo Ex. PW 2/B and recorded his statement Ex. PW 1/C. PW 2 further testified that I.O. prepared rukka and got the F.I.R. registered through him. Thereafter, accused was arrested vide memo Ex. PW 2/D and his personal search was conducted vide memo Ex. PW 2/E by the I.O. and I.O. also prepared site plan at his instance. PW 2 correctly identified the recovered knife as Ex. P1.
During cross examination PW 2 testified that they requested few public persons to join the investigation but none agreed and left the spot. PW 2 further testified that he took rukka at about 8.00 pm. PW2 denied the suggestion to the effect that recovered knife has been falsely implanted upon the accused.
3{ 4 }
7. PW 3 H.C. Suresh Tomar testied that on receipt of DD 24 Mark X he reached at Millenium Park, Chirag Delhi where PW 2 met him who produced the accused along with buttondar knife so he recorded his statement Ex. PW 1/C. PW 3 further testified that he prepared the sketch of knife Ex. PW 2/A after taking its measurement and thereafter he prepared rukka Ex. PW 1/B and got the F.I.R. registered through PW2. PW 3 further testified that he arrested the accused vide memo Ex. PW 2/D and conducted his personal search vide memo Ex. PW 2/E. PW 3 also identified the recovered knife as Ex.P1.
PW 3 was cross examined by the Ld. APP for State as he resiled from his earlier statement given to police. PW 3 testified that recovered knife was sealed in a pullanda with the seal of DP and seized the same vide memo Ex. PW 2/B and he also prepared the site plan Ex. PW 3/A at the instance of PW2.
Accused did not prefer to cross examine PW 3.
8. Statement of accused Mohd. Kasim was recorded 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.
9. I have heard the ld. APP for the State and ld counsel for the accused and have also carefully perused the entire record and the relevant provisions of the law.
4{ 5 }
10. 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.
11. It is the case of prosecution that accused was apprehended by the PW2 on suspicion while he was standing at Chirag Delhi Tempo Stand Parking and on seeing PW 3 he tried to ran away so he was apprehended by PW2 and on his search a buttondar knife was recovered from possession of accused. Information was given to P.S. so PW 3 came on the spot and prepared the sketch of knife Ex. PW 2/A and seized the knife vide memo Ex. PW 2/B and after registration of case PW 3 arrested the accused vide memo Ex. PW 2/D.
12. Prosecution has examined one witness of recovery of buttondar knife from the possession of the accused i.e. PW
2. The testimony of PW 2 is not corroborated with the IO/PW3 as PW 2 testified that accused was apprehended at Chirag Delhi Tempo Stand whereas PW 3 testified that after receipt of DD24 Mark X he reached at Millenium Park, Chirag Delhi which is not the spot of recovery of buttondar knife from the possession of accused. Further PW 2 testified that pullanda of knife was sealed with the seal of DP and seized vide memo Ex. PW 2/B but PW 3 has not deposed a single word about sealing 5 { 6 } of pullanda of knife and about seizure of same. Further PW 3 has not deposed about preparation of site plan Ex. PW 3/A whereas this fact was testified by PW 2 in his examinationin chief, thus there is material contradiction in the testimonies of PW 2 and 3. This create doubt in the mind of court regarding recovery of buttondar knife at the above said place from the possession of accused.
13. 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 PW2 during cross examination admitted that public persons were 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.''
14. PW 2/Ct. Avinash Kumar in his examination in chief have deposed that the knife was put into pullanda and it was sealed with the seal of DP by the I.O. but testimony PW 3 I.O./HC Suresh Tomar is totally silent on the point of sealing of pullanda of knife or preparation of seizure memo, even PW 3 6 { 7 } has not deposed whether the seal after use was given to him or not or any seal handing over memo or seal returning memo was prepared by the I.O. or not. Why such memos were not prepared, which constitutes a material link evidence. Such linking evidence is lacking in the prosecution case.
15. The perusal of the sketch of the knife Ex. PW 2/A and seizure memo Ex PW 2/B shows that FIR number is mentioned therein. There is not a single word in the testimony of PW 3 as to when and at what stage FIR number was inserted in Ex PW 2/A and Ex PW 2/B. Moreover, the testimony of PW2 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.
16. In these circumstances, the testimony of the prosecution witnesses do not inspire confidence.
17. Apart from this, the presence of PW 2 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 7 { 8 } not been proved, raising an adverse presumption against the prosecution U/s 114 (g) of the Evidence Act and if the said Roznamcha had been produced it would have not shown their departure at all.
18. 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.
19. 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 Mohd. Kasim is acquitted of the offence punishable U/s 25 of the Arms Act.
Announced in the Open Court
on 09.02.2010 (RAVINDER SINGH)
Metropolitan Magistrate:
New Delhi.
8
{ 9 }
F.I.R. 212/05
P.S. Malviya Nagar
09.02.2010
Present : Ld. APP for State.
Accused on bail with counsel.
Final arguments heard.
Put up for order at 3.30 PM
M.M. / New Delhi
09.02.2010
09.02.2010
Present : As before.
Vide my separate order/judgment dictated and announced in the open court, accused Mohd. Kasim is acquitted for the offence punishable U/s. 25 Arms Act for which he stands charged.
Bail bond of accused is cancelled. Surety stands discharged. Documents, if any of the accused and surety be returned after cancellation of endorsements.
The file be consigned to the Record Room after due compliance.
M.M. / New Delhi 09.02.2010 9