Delhi District Court
State vs . Shadab @ Dabdi on 4 August, 2023
IN THE COURT OF METROPOLITAN MAGISTRATE02,
NORTH EAST DISTRICT, KARKARDOOMA COURTS,
DELHI
PRESIDED BY: SH. VIPUL SANDWAR
STATE Vs. SHADAB @ DABDI
FIR NO. : 174/2018, U/s 25 Arms Act
PS : New Usmanpur
1.FIR No. 174/2018
2.Unique Case no. 1322/18
3.Title State Vs. Shadab @ Dabdi
3(A).Name of complainant ASI Sabu
3(B).Name of accused Shadab @ Dabdi S/o Shahzad
Ahmed, R/o H. NO. A256/16,
Buland Masjid, Shastri Park,
Delhi
3 (C). Representation on behalf Ms. Shivani Joshi, Ld. APP
of State
4.Date of institution of challan 02.05.2018
5.Date of Reserving judgment 02.06.2023
6.Date of pronouncement 04.08.2023
7.Date of commission of offence 06.03.2018
8.Offence complained of U/s 25/54/59 Arms Act 1959
9.Offence charged with U/s 25/54/59 Arms Act 1959
10.Plea of the accused Pleaded not guilty.
11.Final order ACQUITTED
State vs. Shadab @ Dabdi FIR No.174/18 PS New Usmanpur Page 1 of 16
JUDGMENT
1. The present prosecution case was put into action with the complaint of the complainant, ASI Sabu alongwith HC Asha Ram, Ct. Rohit and Ct. Aman were on patrolling duty on 06.03.2018 at about 05:25 pm at Shastri Park, zero pushta. At around 05:30 pm a secret informer informed that accused will come below the pipe line, 3rd pushta at about 06:30 pm and if raided he can be apprehended. ASI Sabu telephonically informed the SHO and formed the raiding party. At about 05:45 pm, the raiding party reached Yamuna Khadar, near pipe line 3 rd pushta and took their possession, at about 06:30 pm accused came at the spot and on the identification of secret informer he was apprehended. On enquiry he disclosed his name as Shadab @ Dabdi. On his cursory search one country made pistol was recovered from his left dub and two live cartridge was recovered from his right dub. Accused Shadab @ Dabdi was found in conscious possession of above mentioned arms in contravention of section 3 of the Arms Act and has thereby committed offence punishable u/s 25/54/59 Arms Act, 1959 and within the cognizance of this Court.
2. On the basis of the complaint, FIR no.174/2018, U/s 25/54/59 Arms Act was registered. After completion of investigation, chargesheet was filed U/s 25/54/59 Arms Act.
3. On 02.05.2018, cognizance was taken and thereafter, charge for the offence punishable u/s 25/54/59 Arms Act was State vs. Shadab @ Dabdi FIR No.174/18 PS New Usmanpur Page 2 of 16 framed against the accused Shadab @ Dabdi on 30.11.2018 to which he pleaded not guilty and had claimed trial.
4. Prosecution had named total 07 witnesses in the charge sheet. The testimonies of the PWs in brief are as follows:
(i) PW1 HC Asha Ram stated that on 06.03.2018 he alongwith ASI Sabu, Ct. Aman, Ct. Rohit were in the area of New Usmanpur vide departure entry 72B. At about 05:30 pm when they reached first pushta one secret informer met ASI Sabu and informed that a person involved in robbery cases carrying illegal weapon would come near 3rd pushta at around 06:20 pm to meet his associates. He also told that if immediate raid is conducted he might apprehend the accused with illegal weapon. ASI Sabu informed the senior officer who directed to make raiding party.
ASI Sabu requested 4-5 passersby to join the investigation but none agreed and left the spot without disclosing their names and addresses. ASI Sabu brief the raiding party and headed toward the proposed spot i.e. 3rd pushta near pipe line, Yamuna Khadar. At around 06:30 pm, one person came and stopped at 3 rd pushta adjacent to the pillar. On pointing out of the secret informer ASI Sabu directed the raiding party and the person was apprehended. He disclosed his name as Shadab @ Dabdi. From his cursory search one loaded country made pistol was recovered from his left side dub and one live cartridge was recovered from his right side pocket. The loaded country made pistol was unlocked and one live cartridge was taken from the said pistol. ASI Sabu prepared rough sketch memo, took measurements of the pistol and the cartridge. The country made pistol and the cartridge were sealed in the white pullanda and handed over to HC Asha Ram.
State vs. Shadab @ Dabdi FIR No.174/18 PS New Usmanpur Page 3 of 16ASI Sabu prepared tehrir and handed over the same to Ct. Rohit for getting the case registered. After getting the case registered Ct. Rohit alongwith ASI Virender came back to the spot. Further investigation of the case was ma rked to ASI Virender. ASI Virender enquired ASI Sabu and added FIR number on the documents accordingly. ASI Virender prepared site plan at the instance of ASI Sabu, he also recorded the statement of ASI Sabu. He arrested the accused, conducted his personal search and recorded his disclosure statement. Accused disclosed that he can get recovered the stolen articles from his house which he brought in previous offences. Thereafter, PW1 alongwith ASI Virender, Ct. Aman and Ct. Rohit reached the house of the accused. At the instance of accused one black colour Sony laptop, one Titan watch were recovered. The police seized both the items. Case property was deposited at maalkhana and accused was locked up. The witness correctly identified the country made pistol and the cartridges in Court. In his cross-examination by Ld. LAC for accused the witness has stated that he did not sign on the DD register prior to departure from PS for patrolling. He has also stated that ASI Sabu was his pillion rider who was carrying the IO kit. He has stated that the distance between the spot and the place where secret informer firstly informed the IO is about 2.5 kms. The distance between the secret informer and the accused is approximately 100-200 mtrs. He finally left the spot at about 10:30 Pm. Rukka was prepared and sent for registration of FIR at about 09:30 pm. Ct. Rohit after registration of FIR came about at 10:00-10:15 pm. At the time of arrest no public persons joined the investigation as no public persons were present at the spot. The accused was taken to the PS on the motorcycle driven by State vs. Shadab @ Dabdi FIR No.174/18 PS New Usmanpur Page 4 of 16 ASI Virender and they reached the PS after 01:00 am.
(ii) PW2 ASI Daya Ram on 06.03.2018 ASI Sabu brought a katta, two live cartridges, one laptop, one wrist watch all sealed with the seal of VK and deposited it with him. On 14.03.2018, he deposited the parcel of katta and two live cartridges at FSL Rohini. In his cross-examination by Ld. LAC he has stated that he cannot tell the DD entry number vide which case property was deposited in the maalkhana.
(iii) PW3 Ct. Aman has corroborated the deposition of PW1. He has deposed that no mobile phone was recovered from the house of the accused. In his cross-examination he has stated that at the time of patrolling he was riding the motorcycle of Ct. Rohit. No information to the DO PS New Usmanpur was given about the secret information. Distance between the place of incident and place of information is about 02 kms. He finally left the spot at about 11:30 pm. No public persons was asked by the IO to join the investigation. Ct. Rohit reached the spot with original rukka at about 10:15 pm.
(iv) PW4 Ct. Rohit Baliyan has corroborated the deposition of PW1 and PW3. The case property was sealed with the seal of VK and handed over to HC Asha Ram. In his cross-examination he has stated that the distance between the spot and the place where secret informer first informed IO is about 2.5 - 3 kms. The raiding party was constituted at about 5:00-05:30 pm. None of the persons joined the raiding party despite request by the IO. Distance between the secret informer and the accused was approximate 100-200 mtrs. ASI Sabu left the spot at about 10:30 pm. Rukka was sent to the PS at about 05:30 pm and Ct. Rohit came back to the spot after registration of FIR at about State vs. Shadab @ Dabdi FIR No.174/18 PS New Usmanpur Page 5 of 16 10:00 - 10:15 pm. He denied the suggestion that nothing was recovered from the possession of accused. He has conceded that he alongwith other police officials did not gave their personal search to accused or any other public persons. They reached the house of the accused at about 11:00 pm. Accused was taken to the PS on a motorcycle. He reached the spot after 01:00 pm.
(v) PW5 ASI Virender Kumar has corroborated the deposition of PW1, PW3 and PW4. He recorded the disclosure statement of accused where he stated that he had robbed one laptop and one wrist watch near Shanti Van. He deposited the case property in the maalkhana. He correctly identified the case property and the accused in the Court. In his cross-examination he has stated that he did not make any DD entry when he left for the spot. He has stated that he did not intimate to the PS regarding the visit to the house of the accused. He did not give any notice to public persons to join the investigation as nobody was available at the spot.
(vi) PW6 ASI Sabu is the complainant in the present case and corroborated the deposition of PW1, PW3 and PW5. In his cross- examination he has stated that he made DD no.72B before going for patrolling. He has stated that accused was apprehended at about 06:45 pm. He had not offered his personal search to the accused before taking his personal search. He conceded that place of incident is a public place and passersbys were present. he did not give any written notice to the public persons. He was not aware that the accused was a wanted criminal before giving the secret information. The accused was at a distance of 50-100 mtrs at the time of pin pointing by the secret informer.
(vii) PW 7 SI Sunil Kumar was the Duty Officer and State vs. Shadab @ Dabdi FIR No.174/18 PS New Usmanpur Page 6 of 16 registered the present FIR on the basis of rukka and made an endorsement on the same. The witness was not cross examined by the accused despite being given an opportunity.
5. PE was closed on 19.03.2023 and on the same date statement of the accused u/s 313 Cr.P.C read with Section 281 Cr.P.C was recorded wherein he denied the allegations in toto. He stated that he does not wish to lead DE and has been falsely implicated in the present case.
6. Final arguments were addressed by Ld APP for the state and by Ld. LAC for accused.
7. I have heard the submissions of both the parties and perused the material on record. However, before proceeding to the merits of the case, I wish to reiterate that in a criminal trial, it is for the prosecution to prove its case beyond all reasonable doubts. An accused is presumed to be innocent, until proven guilty. It is for the prosecution to travel the entire distance from the accused "may have" to accused "must have" committed the offence. With respect to offences pertaining to recovery of contraband items from the possession of accused, I find it pertinent to refer to the importance of joining a public witness to the investigation. If a public witness is not available, then the prosecution must show that sincere effort was made to ensure the presence of public witness to join the raiding party. Here I would like to refer to the observations of the Hon'ble High Court of Delhi in Anoop Joshi Vs. State, 1992 (2) C.C. Cases 314 (HC), State vs. Shadab @ Dabdi FIR No.174/18 PS New Usmanpur Page 7 of 16 "It is repeatedly laid down by this court that in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evident that no such sincere efforts have been made, particularly when we find that shops were open and one or two shopkeepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the shopkeepers had declined to join the raiding party, the police could have later on taken legal action against such shopkeepers because they could not have escaped the rigours of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC."
8. Additionally, Hon'ble High Court of Delhi in Pawan Kumar vs. Delhi Administration 1987 SCC OnLine Del 290 observed "....Here is a case where no effort 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 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 I.O.
should have made an earnest effort to join the independent witnesses. 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 the knife from the person of the accused...."
9. The said position also find support from the observations of the Hon'ble Apex Court in Sahib Singh Vs State of Punjab wherein it was held that:
"Before conducting a search the police officer concerned is required to call upon some State vs. Shadab @ Dabdi FIR No.174/18 PS New Usmanpur Page 8 of 16 independent and respectable people of the locality to witness the search. In a given case it may so happen that no such person is available or, even if available, is not willing to be a party to such search. It may also be that after joining the search, such persons later on turn hostile. In any of these eventualities the evidence of the police officers who conducted the search cannot be disbelieved solely on the ground that no independent and respectable witness was examined to prove the search but if it is found -- as in the present case -- that no attempt was made even by the police officer concerned to join with him some persons of the locality who were admittedly available to witness the recovery, it would affect the weight of evidence of the police officer, though not its admissibility."
10. Now proceeding upon the basis of aforesaid principles of law, I shall render my finding against the accused qua the offence. Onus is on the prosecution to prove:
i. Recovery of button actuated knife from the accused.
ii. Accused was in conscious possession said button actuated knife.
11. The present case was registered on the basis of complaint by ASI Sabu that on 06.03.2018, while he was on patrolling duty near zero pushta he met a secret informer and was informed that accused would come to meet his associates near pipe line 3rd pushta at about 06:30 pm and if raided he can be apprehended. ASI Sabu consisting the raiding party including himself, HC Asha Ram, Ct. Aman and Ct. Rohit. On apprehension accused was found in conscious possession of one country made pistol and two live cartridges. Hence, PW1, PW3, PW4 and PW6 are the star witnesses of the prosecution and their testimonies require State vs. Shadab @ Dabdi FIR No.174/18 PS New Usmanpur Page 9 of 16 careful scrutiny. In their testimony, they have supported the prosecution version. However, in their crossexamination material inconsistencies have been brought out by Ld. LAC for accused which have been left unexplained by the prosecution. As per the testimony of PW1 ASI Sabu requested 45 public persons to join the investigation but none agreed and left the spot without disclosing their names and addresses. No legal notice was served due to paucity of time. PW3 and PW4 have deposed the same. No efforts were made by the IO or any of the police officials to join the public persons at the time of apprehension of the accused or his personal search.
12. It is well settled principle of the law that the investigating agency should join independent witnesses at the time of recovery of contraband articles, if they are available and their failure to do so in such a situation casts a shadow of doubt on the prosecution case. There is no independent public witness of the recovery and the explanation offered by the prosecution for the absence of public witness does not seem plausible. It is a very common excuse that the witnesses from the public refused to join the investigation. A police officer conducting investigation of a crime is entitled to ask anybody to join the investigation and on refusal by a person from the public the investigating officer can take action against such a person. No notice in writing was given to them to join the investigation. No action was taken qua the persons who refused to disclose their names or addresses. It is also not in dispute that the place of incident is a public place and there are lot of public offices/shops nearby. If the first few people State vs. Shadab @ Dabdi FIR No.174/18 PS New Usmanpur Page 10 of 16 did not join the investigation, other people could have been requested. It is not in dispute that that the spot was a public place where public persons were present. But no sincere efforts were made to make a public person to join the investigation. A public witness would have been an important link in the chain of circumstances to support the prosecution version. The failure to do so by the police officer is suggestive of the fact that the explanation for nonjoining the witnesses from the public is an afterthought and is not worthy of credence.
13. Hence, uncorroborated testimony of PW1, PW3, PW4 and PW6 is insufficient to prove the recovery of button actuated knife from the accused. No effort was made by IO/any police officials to join any public witness. Further, PW5 reached the spot only after the alleged recovery had already been affected from the accused by PW1, PW3, PW4 and PW6. Hence testimony of PW5 in this respect is hearsay evidence based upon what was informed to him by PW1, PW3, PW4 and PW6 and cannot be used to corroborate their testimonies. It is also pertinent to note that no handing over memo of the seal was prepared. Thereafter, the possibility of tampering with the case property cannot be ruled out. Further, none of the prosecution witnesses have deposed in their examination in chief that they offered their personal search to the accused before inspecting the accused. Principles of natural justice demand that accused should have been offered their personal search by the recovery witness and this fact should have been reduced into writing. This fact is another missing link in the prosecution's case.
State vs. Shadab @ Dabdi FIR No.174/18 PS New Usmanpur Page 11 of 1614. Lastly, no DD entry has been proved on record by prosecution in order to show that PW1, PW3, PW4 and PW6 were on patrolling duty. DD No. 72B has not been placed on record. No DD writer has been examined or made a witness. It is an important missing link in the version of prosecution. As per chapter 22 rule 49 of the Punjab Police Rules, which is reproduced as under;
"Chapter 22 rule 49 Matters to be entered in Register no. II. The following matters shall amongst others, be entered:
(c) The hour of arrival and departure on duty at or from a police station of all enrolled police officers of whatever rank, whether posted at the police station or elsewhere, with a statement of the nature of their duty. This entry shall be made immediately on arrival or prior to the departure of the officer concerned and shall be attested by the latter personally by signature or seal.
Note: The term Police Station will include all places such as Police Lines and Police Posts where Register No.II is maintained."
15. In Rattan Lal Vs. State 1987 (2) Crimes 29 the Hon'ble Delhi High Court held that:
"if the investigating agency deliberately ignores to comply with the provisions of the Act the Courts will have to approach their action with reservations. The matter has to be viewed with suspicion if the provisions of law are not strictly complied with and the least that can be said is that it is so done with an oblique motive. This failure to bring on record, the DD entries creates a reasonable doubt in the prosecution version and attributes oblique motive on the part of the prosecution."State vs. Shadab @ Dabdi FIR No.174/18 PS New Usmanpur Page 12 of 16
16. Thus, presence of PW1, PW3, PW4 and PW6 at the spot is not proved. If they have departed from PS for patrolling duty the entry to this effect must exist in the Roznamancha but that has not been proved, raising an adverse presumption against the prosecution U/s 114 (g) of the Evidence Act that if the said Roznamancha had been produced it would have not shown their departure at all.
17. In a criminal trial, the burden on the prosecution is beyond reasonable doubt. The reasonable doubt is a rule of caution laid down by the Courts of Law in respect of assessing the evidence in criminal cases. In Awadhi Yadav v. State of Bihar, (1971) 3 SCC 116 at page 117, Hon'ble Supreme Court has observed that:
"Before a person can be convicted on the strength of circumstantial evidence, the circumstances in question must be satisfactorily established and the proved circumstances must bring home the offence to the accused beyond reasonable doubt. If those circumstances or some of them can be explained by any other reasonable hypothesis then the accused must have the benefit of that hypothesis. But in assessing the evidence imaginary possibilities have no place. What is to be considered are ordinary human probabilities."
18. In State of Haryana v. Bhagirath, (1999) 5 SCC 96 :
1999 SCC (Cri) 658 : 1999 SCC OnLine SC 577 at page 99 Hon'ble Supreme Court has observed that:
"But the principle of benefit of doubt belongs exclusively to criminal jurisprudence. The pristine doctrine of benefit of doubt can be invoked when there is reasonable doubt State vs. Shadab @ Dabdi FIR No.174/18 PS New Usmanpur Page 13 of 16 regarding the guilt of the accused. It is the reasonable doubt which a conscientious judicial mind entertains on a conspectus of the entire evidence that the accused might not have committed the offence, which affords the benefit to the accused at the end of the criminal trial. Benefit of doubt is not a legal dosage to be administered at every segment of the evidence, but an advantage to be afforded to the accused at the final end after consideration of the entire evidence, if the Judge conscientiously and reasonably entertains doubt regarding the guilt of the accused. It is nearly impossible in any criminal trial to prove all the elements with a scientific precision. A criminal court could be convinced of the guilt only beyond the range of a reasonable doubt. Of course, the expression "reasonable doubt" is incapable of definition. Modern thinking is in favour of the view that proof beyond a reasonable doubt is the same as proof which affords moral certainty to the Judge."
19. Francis Wharton, a celebrated writer on criminal law in the United States has quoted from judicial pronouncements in his book Wharton's Criminal Evidence (at p. 31, Vol. 1 of the 12th Edn.) as follows:
"It is difficult to define the phrase 'reasonable doubt'. However, in all criminal cases a careful explanation of the term ought to be given. A definition often quoted or followed is that given by Chief Justice Shaw in the Webster case. He says: 'It is not mere possible doubt, because everything relating to human affairs and depending upon moral evidence is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that consideration that they cannot say they feel an abiding conviction to a moral certainty of the truth of the charge."State vs. Shadab @ Dabdi FIR No.174/18 PS New Usmanpur Page 14 of 16
20. In the treatise The Law of Criminal Evidence authored by H.C. Underhill it is stated (at p. 34, Vol. 1 of the 5th Edn.) thus:
"The doubt to be reasonable must be such a one as an honest, sensible and fairminded man might, with reason, entertain consistent with a conscientious desire to ascertain the truth. An honestly entertained doubt of guilt is a reasonable doubt. A vague conjecture or an inference of the possibility of the innocence of the accused is not a reasonable doubt. A reasonable doubt is one which arises from a consideration of all the evidence in a fair and reasonable way. There must be a candid consideration of all the evidence and if, after this candid consideration is had by the jurors, there remains in the minds a conviction of the guilt of the accused, then there is no room for a reasonable doubt."
21. In Shivaji Sahabrao Bobade v.State of Maharashtra (1973) 2 SCC 793 : 1973 SCC (Cri) 1033 : (1974) 1 SCR 489 Hon'ble Supreme Court cautioned that:
"the dangers of exaggerated devotion to the rule of benefit of doubt at the expense of social defence demand special emphasis in the contemporary context of escalating crime and escape. The judicial instrument has a public accountability. The cherished principles or golden thread of proof beyond reasonable doubt which runs through the web of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt."
22. Considering the aforesaid infirmities and inconsistencies in the prosecution version, I find that the prosecution has failed to prove the recovery of county made pistol and two live cartridges from the accused on 06.03.2018 at about 06:30 pm from 3 rd pushta, Yamuna Khadar, New Usmanpur. Hence, question whether the accused was in conscious possession of said country State vs. Shadab @ Dabdi FIR No.174/18 PS New Usmanpur Page 15 of 16 made pistol and two live cartridges in contravention of Delhi Administration Notification issued in this respect does not arise. Benefit of doubt must go in favour of accused. It is cardinal principle of criminal law that accused is presumed to be innocent until proven guilty. In view of material inconsistencies in the prosecution version as discussed above, I find that the prosecution has failed to prove its case beyond reasonable doubt. Accordingly, accused Shadab @ Dabdi is acquitted for the offence under section 25 Arms Act. His bail bond stands cancelled and surety stands discharged.
Digitally signed by VIPUL VIPUL SANDWAR
SANDWAR Date:
2023.08.04
16:06:40 +0530
Announced in the open (VIPUL SANDWAR)
Court on 04th August, 2023 MM02/NE/KKD COURTS
State vs. Shadab @ Dabdi FIR No.174/18 PS New Usmanpur Page 16 of 16