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Fir No. 214/2014 State vs . Salim @ Mussa on 31 January, 2019

FIR No. 214/2014                        State Vs. Salim @ Mussa
PS : Hauz Qazi

    IN THE COURT OF MM­08 (CENTRAL DISTRICT)
        TIS HAZARI COURTS COMPLEX, DELHI.

Presiding Officer: Dinesh Kumar, DJS.

IN THE MATTER OF :
State Vs. Mohd Salim @ Mussa
FIR No. 214/2014
PS : Hauz Qazi
U/s 25 Arms Act.
Date of Institution                       : 23.03.2015
Date of reserving of order                : 31.01.2019
Date of Judgment                          : Oral
CNR No.DLCT02­006478­2014

JUDGMENT

1. Serial No. of the case : 300817/2016

2. Name of the Complainant : ASI Deshraj

3. Date of incident : 31.08.2014

4. Name of accused person :

Mohd Salim @ Mussa S/o Mohd Swalin, R/o H. No. 2238, Ahata Hajjanbe, Lal Kuan, Delhi

5. Offence for which chargesheet was filed : 25 Arms Act.

6. Offence for which charge has been framed : 25 Arms Act.

FIR No. 214/2014 State Vs. Salim @ Mussa PS : Hauz Qazi

7. Plea of accused : Not guilty

8. Final Order : Acquitted

9. Date of Judgment : 31.01.2019 BRIEF REASONS FOR ORDER:

1. Mr. Md. Salim @ Mussa , the accused herein, has been charge­sheeted for committing offence punishable under Section 25 Arms Act.

2. The case of the prosecution is that on 31.08.2014 at about 10 :45 p.m., complainant ASI Desh Raj was on patrolling alongwith Ct. Narender. He had apprehended the accused at Nukkar Rod Gran, Bazar Lal Quan, Delhi, Hauz Qazi, Delhi at the instance of a secret informer. During search of the accused, he was found in possession of a knife without any valid license. On the basis of information above­mentioned FIR was registered.

After completion of investigation 'final report' was filed by the Investigation Officer (IO) in the Court and the accused was charge­sheeted for the offence punishable under Section 25 Arms Act.

3. After perusing the record, cognizance was taken by the Ld. Predecessor and summons were issued to the accused. Accused appeared in the Court. Compliance of Section 207, Criminal Procedure Code, 1973 Page 2 of 10 MM­08 (C)/THC/Delhi/31/01/19 FIR No. 214/2014 State Vs. Salim @ Mussa PS : Hauz Qazi (hereinafter referred to as 'Cr.P.C.) was done. After hearing the parties, charge for the offences punishable under Section 25 of Arms Act was framed against the accused. It was read over to him to which he pleaded not guilty and claimed trial.

4. The prosecution has examined as many as 04 witnesses to prove its case against the accused.

5. PW­1 HC Raj Kishor is the Duty Officer. He has proved the FIR, which is Ex.PW1/A. He had made the endorsement on the rukka which is Ex. PW1/B. He had issued the certificate under Section 65 B of Indian Evidence Act which is Ex. PW1/C.

6. PW­2 Ct. Narender Singh the police official who was on patrolling with the complainant and he had joined the investigation with the IO. He has deposed that on 31.08.2014, he was on patrolling alongwith ASI Desh Raj and they reached at Lal Quan Police Booth. At about 10 :30 p.m., a secret informer had informed that one person carrying an illegal weapon was present at Rod Gran Corner. The information was shared with 4­5 persons and they were asked to join the proceedings. However, they refused to join and left. Thereafter, without wasting time Page 3 of 10 MM­08 (C)/THC/Delhi/31/01/19 FIR No. 214/2014 State Vs. Salim @ Mussa PS : Hauz Qazi they reached at the spot and apprehended the accused at the instance of the secret informer. On cursory search of the accused, a buttondar knife was recovered from the right side pocket of his wearing pants. The sketch of the knife was prepared, which is Ex.PW2/A. The knife was 23 Cms long, its blade was 10 Cms and handle was 13 Cms. The width of blade was 2.5 Cms. A pullanda was prepared and it was sealed with the seal of DRY. Pullanda was seized vide memo Ex.PW2/B. Seal was handed over to him. ASI Desh Raj prepared rukka. He was sent to the PS with the rukka to get the FIR registered. The FIR was registered. He returned at the spot with the copy of the FIR and original tehrir and handed over to second IO HC Sohanbir who had come at the spot with him. First IO had handed over the custody of accused, the case property, the seizure memo and sketch of the knife to him. Site plan was prepared by the IO at the first instance of first IO. Statement of first IO was recorded. Thereafter, he left the spot. The accused was arrested vide memo Ex. PW2/C. His personal search was conducted vide memo Ex. PW2/D. The accused was medically examined and he was locked Page 4 of 10 MM­08 (C)/THC/Delhi/31/01/19 FIR No. 214/2014 State Vs. Salim @ Mussa PS : Hauz Qazi up. The witness identified the accused in the Court. He also identified the case property which is Ex.P­1.

7. PW­3 ASI Desh Raj is the complainant. He has deposed similar to PW­2. He has proved the rukka, which is Ex. PW3/A and the site plan which is Ex. PW3/B.

8. PW­4 ASI Sohanvir Singh is the IO. He has deposed that on 31.08.2014 after receiving DD NO. 2PP RG, he reached at the sot i.e., Gali Rod Gran Nukkaar, Lan Quan, Rod, Delhi. ASI Desh Raj handed over him the original tehrir and copy of and sealed pulland sealed with the seal of DRY and accused. He had prepared the site plan which is Ex. PW3/B. He had recorded the disclosure statement of the accused which is Ex. PW4/A. Thereafter, accused was arrested vide arrest memo Ex. PW4/B. His personal was conducted vide memo Ex. PW2/D. Accused was medically examined. He was sent to lock up. He had prepared the challan and filed in the Court.

9. The accused had admitted the registration of DD No. 18 PP dated 31.08.2014 which is Ex. A­1. The registration of DD No. 2PP dated 01.09.2014 which is Ex. A­2 and the DAD notification dated 29.10.1980 which is Ex.A­3.

FIR No. 214/2014 State Vs. Salim @ Mussa PS : Hauz Qazi

10. The witnesses were cross­examined. The prosecution evidence was closed. Accused was examined under Section 313 Cr.P.C r/w Section 281 Cr.P.C. Substance of incriminating evidence was put to him. He denied all the incriminating evidence. He would state that he was innocent and falsely implicated in this case by the police officials.

11. The accused did not lead any defence evidence. Therefore, matter was fixed for final arguments.

12. I have heard the rival submissions and perused the material on record. Ld. APP would argue that the prosecution had proved its case beyond reasonable doubts and therefore, accused may be convicted.

13. Ld. counsel for accused would argue that nothing was recovered from accused at the time of his arrest and he has been falsely implicated in the present case. Ld. Counsel for accused further contented that police had planted the said buttondar knife upon accused with intention to send him behind bars and settle some personal scores. Ld. Counsel for accused further claimed that all prosecution witnesses were fellow police officials and they all are interested witnesses. No independent Page 6 of 10 MM­08 (C)/THC/Delhi/31/01/19 FIR No. 214/2014 State Vs. Salim @ Mussa PS : Hauz Qazi public person has been made witness for proving the factum of recovery of arm in question from accused despite spot in question being a thickly populated commercial and residential area.

14. In a criminal case the initial burden is on the prosecution to prove the guilt of the accused beyond reasonable doubts before the accused is asked to prove his defence. It is also settled proposition of law that whenever there are two views possible, the view which favours innocence of the accused is to be accepted by the Court.

15. In the present case, the allegations against the accused are that he was found in possession of a illegal knife without having any valid license which is an offence under Section 25 Arms Act, 1959.

16. In the present case, as the record would reveal, all the prosecution witnesses are police officials. No independent public witness had joined the investigation at any point of time. The complainant did ask any public person to join the proceedings with him. The place of recovery and apprehension of the accused is clearly shown to be located in an area where public persons would be readily available. Thus, at the place and time of the Page 7 of 10 MM­08 (C)/THC/Delhi/31/01/19 FIR No. 214/2014 State Vs. Salim @ Mussa PS : Hauz Qazi alleged recovery of the weapon and apprehension of the accused, public persons would in all likelihood have been present and available. It is not the case of the prosecution that no public person was present at or near the spot of arrest and recovery.

17. From a perusal of the record, no serious effort for joining public witnesses appears to have been made. PW­2 Ct Narender and PW­3 SI Desh Raj have stated that they had shared the information with 4/5 persons. However, no steps are shown to be taken to note down the names and addresses of those persons. It is a well settled proposition that non­joining of public witness shrouds doubt over the fairness of the investigation by police. Section 100 (4) of the Cr.P.C. also casts a statutory duty on an official conducting search to join two respectable persons of the society. Same has not been done in the present case. This casts a doubt on the fairness of the investigation. In the case titled as Nank Chand Vs. State of Delhi, Crl. Revision No. 169/81, decided on 07.11.1990, Hon'ble High Court of Delhi has observed as under:­ "The recovery was from a street with houses on both sides and shops nearby. And, yet no witness from the Page 8 of 10 MM­08 (C)/THC/Delhi/31/01/19 FIR No. 214/2014 State Vs. Salim @ Mussa PS : Hauz Qazi 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 when 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 Napoleon on the Bridge at Arcola.''

18. In the present case, non­joining of any public person as a witness creates doubt on the case of the prosecution.

19. Further, as per the testimonies of the prosecution witnesses, the knife was sealed after preparation of sketch by the PW­3 with the seal of DRY. The witness however did not hand over the seal to any other police official after use. No handing over memo of the seal has been brought on the Court record. Thus, in the absence of any evidence, it is shown by the defence, on the balance of probabilities, that the seal in the present case was not handed over to any independent witness nor was it deposited in the malkhana to assail the possibility of its misuse. Thus, the possibility that the case property might have been tampered with cannot be ruled out.

20. In the light of the discussion hereinabove, I am of the opinion that the facts that no independent witness Page 9 of 10 MM­08 (C)/THC/Delhi/31/01/19 FIR No. 214/2014 State Vs. Salim @ Mussa PS : Hauz Qazi was cited or examined and possibility of misuse of seal has not been explained are able to raise clouds of reasonable suspicion over the prosecution story. In view of the aforesaid, the possibility of false implication of the accused in the present case cannot be ruled out.

21. Thus, in view of the foregoing analysis, I hold that the benefit of doubt ought to be given to the accused. The accused is hereby acquitted of the offence punishable under Section 25 Arms Act. The case property be confiscated to the State as per rules.

22. The accused has already furnished bond under Section 437A.

Pronounced in the open Court on (Dinesh Kumar) st this 31 day of January 2019 MM­08 (Central) Tis Hazari Courts Delhi.