Delhi District Court
State vs . Mohd. Salim on 27 February, 2008
1
IN THE COURT OF SH. ASHUTOSH KUMAR : MM : DELHI
State Vs. Mohd. Salim
FIR No. 80/02
PS: Chandni Mahal
U/s 25 (I-B)(b) Arms Act.
JUDGEMENT
A)Sl. no. of the case : 212/3
B)The date of commission : 31.5.2002
of offence
C)The name of the complainant : ASI Vinod
Kumar
D)The name & address of accused :Mohd. Salim S/o
Abdul Aziz R/o 1474, Sui
Walan, Chandni Mahal,
Delhi.
E)Offence complained of : U/s 25 (I-B) (b) Arms Act
F)The plea of accused : Pleaded not guilty
G)Final order : Acquitted
H)The date of such order` : 27.2.08
THE BRIEF REASONS FOR THE JUDGEMENT
1. Briefly stated case of the prosecution is that on 31.5.02 ASI Vinod Kumar alongwith Ct. Vijender Singh were on patrolling duty. When they reached near Durga Sweet at about 9.10 pm, one secret informer met them and informed that a person is standing at corner of Gali Kucha Challan, Chandni Mahal, Delhi. He might have a knife and may commit any offence & if raided, he can be apprehended. On that ASI Vinod Kumar asked 4/5 passersby to join the raiding party but none agreed and they all went away after telling their reasonable cause. On the pointing out of the secret Continue..........
2informer at corner of Gali Kucha Challan, Chandni Mahal, Delhi, accused Salim was apprehended with one buttondar knife recovered from the right side pocket of the pant of the accused having total length of 24.6 cm, length of blade 11.4 cms with width of 2.5 cms. Thereafter IO prepared the pullenda of the knife and sealed it with the seal of AS and after using the seal the same was handed over to Ct. Bijender Singh. ASI Vinod Kumar prepared ruqqa and got the case registered through Ct. Vijender. After registration of the case further investigation was assigned to HC Virender Singh(2nd I.O).
2. After completion of investigation charge sheet u/s 25 (1B)(b) of Arms Act was prepared against the accused and filed in the Court.
3. After complying with provisions of Section 207 Cr.P.C. and after hearing arguments on charge, a charge U/s 25 (1B) (b) Arms Act was framed against the accused on 18.10.2003, to which accused voluntarily pleaded not guilty and claimed trial.
4. In support of its case Prosecution has examined 4 witness i.e PW1 HC Bhim Singh was the Duty Officer at the relevant date and time and has proved the registration of FIR vide Ex.PW1/A. PW-2 Ct. Vijender & PW-3(A) Retired ASI Viinod Kumar were the police official who were on patrolling duty on the 31.5.02i.e the day of incident and on secret information apprehended the accused and allegedly recovered knife from the possession of accused. They have deposed on the lines of the prosecution case.
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3The PW ASI Vinod Kumar has been mentioned inadvertantely as PW-3. He shall be deemed as PW-3A.
PW-3 HC Virender Singh is the 2nd I.O of the present case as further investigation was assigned to him after registration of the case. He deposed that he prepared the site plan Ex.PW3/A at the instance of ASI Vinod
5. Thereafter the statement of accused was recorded U/s 313 Cr.P.C. r/w section 281 Cr.P.C. in which the stand of the accused was of general denial and accused has stated that he is innocent and he has been falsely and wrongly implicated in this case due to the reason that he failed to bribe the police officials which was demanded from him.
6. I have heard Ld. APP for State as well as Ld. counsel Sh. A.K. Khan for accused and have carefully perused the record of this case.
7. It has been alleged by the prosecution that buttondar knife was recovered from the right side pocket of paint of accused on 31.05.02. Despite the fact that accused was apprehended at a public place, no public witness was joined in the investigation. Infact PW-2 and PW-3A had made no sincere attempt to associate any public person with the investigation or to witness the recovery, alleged to have been effected from the accused. PW-2 and PW-3A have simply deposed in a stereotyped manner that 4/5 passersby were requested to join the investigation but none agreed. Admittedly no notice was given to the public persons who refused to join the investigation. It appears that IO did not seriously attempt to join public persons in the investigation. It has been held by Hon'ble Continue..........
4Supreme Court in Catina of cases that when public witnesses are not joined in the investigation despite their availability, benefit of doubt is to be given to accused. In view of the fact that no sincere attempt at all was made by IO to associate the public persons to witness the recovery alleged to have been effected from the accused, the recovery of the alleged knife from the accused becomes highly doubtful. In taking this view I am fortified by the Judgments in the case of Prem Singh Vs. State, 1996, CRL L.J. 3604 (Delhi), Pawan Kumar VS. Delhi Administration, 1989 CRL LJ 127, Jeet Singh Vs. State of Punjab, 1999 (1) C.C. Cases HC 403, Roop Chand Vs. State of Haryana 1990 (1) C.L.R. 69, Jit Singh Vs. State of Punjab, RCC 1987 (1) 286, Sadhu Singh Vs. State of Haryana 2000 (2) C.C. Cases HC 73.
8. As per the case of the prosecution PW-3(A) ASI Vinod and PW-2 Ct. Vijender were on patrolling duty on relevant date and time. However, the concerned DD entry neither has been mentioned nor been proved on record. No explanation has been given by the prosecution as to why the said DD entry has not been mentioned or produced, if the same was actually registered.
9. As per the case of the prosecution, secret information was received regarding the accused having been in possession of illegal knife. However, admittedly secret information was not reduced into writing. The prosecution has failed to explain as to why the same was not reduced into writing.
10. PW-3(A) Retd. ASI Vinod Kumar has deposed that 4/5 persons were requested to join the raiding party but none agreed. No explanation has been given by the prosecution as to why the Continue..........
5name or address of of any of the said witnesses was not noted down by the IO. Admittedly no notice for non joining of the raid was given to these 4/5 persons by the IO. No explanation has been given by the prosecution for this lapse.
11. The police official who searched and allegedly recovered the knife from the accused did not offer his search to be conducted prior to search of the accused and hence planting of knife cannot be ruled out.
12. As per the case of the prosecution, the seal after use was handed over to Ct. Vijender. However, there is no handing over memo or returning of seal memo was prepared. Till the time case property was deposited in the malkhana, tampering of the case property cannot be ruled out as the seal remained all alongwith PW Ct. Vijender and he handed over the same to IO Retd. ASI Vinod Kumar on next day.
13. The relevant copy of Register No. 19 regarding the deposit of the said knife in the malkhana has not been produced or proved on record. the prosecution has failed to explain as to why it was not done. Thus the factum of said case property having been deposited in the malkhana has not been proved, which was an important link in the chain of evidence.
14. Moreover, Ld. counsel for accused has argued through his written arguments that the place of apprehension of the accused is a very thickly populated area and there are so many shops and residential houses but police could not cited any public witness in the said case. I find force in the said contention of the Ld. counsel. Ld. counsel in his written argument has further argued that accused is a very poor person and he was not in a position to engage any counsel in his defence so all the witnesses except IO was gone Continue..........
6without cross examination.
15. The chain of evidence against accused is not complete and hence the accused is entitled for benefit of doubt. I am fortified by the judgment of Hon'ble Supreme Court in case State of Rajasthan Vs. Daulat Ram 1980 CAR 169 (SC) wherein it was held that if prosecution failed to proved all the links, the accused is entitled to be acquitted.
16. As a result of above discussion I am of the considered opinion that prosecution has failed to prove its case beyond reasonable doubt. The benefit of doubt is given to accused Md. Salim and the accused is acquitted for the charge u/s 25 (1-B) (b) of Arms Act. His bail bond and surety bond are cancelled. Surety discharged. Documents of the surety, if any,be returned after cancellation of the endorsement and after proper verification and identification.
File be consigned to Record Room.
Announced in open Court (ASHUTOSH KUMAR)
Dated: 27.02.2008 METROPOLITAN MAGISTRATE:
DELHI.
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