Delhi District Court
State vs . on 4 August, 2012
1
IN THE COURT OF SH. SANJEEV KUMAR METROPOLITAN
MAGISTRATE1 (EAST) KARKARDOOMA COURTS, DELHI
In the matter of:
State
Vs.
Safiqul
FIR NO. 62/2006
P.S. Gandhi Nagar
JUDGMENT
1. Sr. No. of the case : 27/03
2. Date of institution : 04.03.2006
3. Name of the complainant : Ct. Tehzeeb Haider
4. Date of commission of offence : 20.02.2006 & 10.02.2012
5. Name of accused : Safiqul,
S/o. Sh. Khalid Sheikh,
R/o. P127, Gali no. 4,
Chamar Basti, Gur Mandi,
Roop Nagar, Delhi
6. Offence complained of : Section 25, The Arms Act,
1959 and 174A IPC.
7. Plea of guilt : Accused pleaded not guilty
8. Date of reserving the Judgment : 04.08.2012
9. Final order : Acquitted
10. Date of such Judgment : 04.08.2012
Page no. 1 of 9 St. vs. Safiqul; FIR No. 62/2006
2
1. The case of the prosecution is that on 20.02.2006 accused Safiqul was found in possession of illegal knife at about 10.10 pm at Mother Diary, Thokar No. 21, Kailash Nagar, Delhi. First Information Report (in short 'FIR') No. 62/06 under section 25 Arms Act, 1959 (in short 'the Act') was registered at Police Station Gandhi Nagar, Delhi. After investigation, chargesheet was filed before this Court under section 25 of the Act and thereafter, accused was summoned for the said offence. During trial accused was remained absent and therefore, NBW was issued against him and thereafter, process under section82 Cr.P.C. was issued against him. Despite that accused could not appear in the court in stipulated time and therefore, he was declared as proclaimed offender and challan under section 174A IPC was also filed against the accused.
2. In light of the above stated facts and proceedings, after making compliance of provisions of section 207 Code of Criminal Procedure, 1973 (in short "Cr.P.C") vide order dated 20.02.2006, finding a prima facie case, Dr. Archana Sinha, the then Learned MM Gandhi Nagar, framed charge for the offence punishable under section 25 of the Act, to which the accused pleaded not guilty and claimed trial and vide order dated 09.04.2012, this court has also framed charge against the accused for the offence under section 174A IPC for which he plead not Page no. 2 of 9 St. vs. Safiqul; FIR No. 62/2006 3 guilty and claim trial.
3. For proving its case, the prosecution has produced five witnesses.
3A. PW1, Constable Tezheeb Haider, deposed that on 20.02.2006, he was on patrolling duty and at about 10.10 pm, when he reached Mother Diary, Thokar No. 21, Kailash Nagar, Delhi, he saw that one person by seeing him try to escape from the spot. On suspicion, he apprehended the accused and one buttondhar knife was recovered from the right pocket of his wearing pant. He informed this information to PS by phone and after sometime, ASI Islamudeen (IO) came at the spot. I handed over the accused and recovered knife to (IO). Thereafter, IO recorded my statement Ex. PW1/A and prepared the sketch of the knife as Ex.PW1/B. The length of blade was 23.5and length of its blade was 11 cm, the length of its handle was 12.5 cm and width of knife was 2.2 cm. The said knife was sealed with the seal of IU. Thereafter IO prepared recovery memo of knife Ex. PW1/C. Thereafter IO prepared the rukka and handed over to me for the registration of FIR. Thereafter, accused was arrested and personally searched vide memo Ex.PW1/D & Ex. PW1/E respectively. Further, witness correctly identified the accused and knife Ex. P1 in the Court.
3B. PW2, HC Satya Narayan, proved the present FIR Ex.PW2/A. 3C. PW3, ASI Islamuddin, deposed that on 22.02.2006, after Page no. 3 of 9 St. vs. Safiqul; FIR No. 62/2006 4 receiving DD No. 48A, he went to the spot where, Ct. Tehzeeb Haider met and handed over the accused and recovered knife to me. Further he deposed on the lines of PW1.
4. PW4, SI Manu Dev, mentioned that on 13.03.2012, on the directions of the SHO PS Gandhi Nagar, he prepared the supplementary challan under section 174A IPC against the accused and filed the same before this court.
5. PW5, Ct. Sumit, mentioned that on 09.01.2012, he executed the process under section 82 Cr.P.C. against the accused Safiqul and report of the same is Ex. PW 5/A.
4. Statement of accused was recorded under section 313 Cr. P.C. When accused was briefed on all the incriminating evidence and documents, he denied the allegations and mentioned that he has been falsely implicated in this case and no knife was recovered from his possession and due to demolition of zhuggi's he started residing at Bawana and could not appear before the court in the present case. However, he opted not to lead evidence in his defence.
5. I have heard the State through Sh. M. A. Khan, Learned Assistant Public Prosecutor and Sh. Dinesh Yaduwanshi, Ld. Counsel for accused from DLSA. Record is also gone through. Page no. 4 of 9 St. vs. Safiqul; FIR No. 62/2006 5
6. Ld. APP for the State argued that prosecution witnesses have fully supported the prosecution case and they have identified the accused and case property in their respective evidence and there is no law which provides that examination of public witness is necessary and therefore, accused may be convicted. Learned defence counsel had contended that despite the availability of public persons on the spot, no independent witness was joined during recovery and further there are number of lacunas in the prosecution case, thereby pushing the case in the shadow of doubts. It is further submitted that due to demolition of zhuggi's accused started residing at Bawana and could not appear before the court in the present case and he was in custody in some other case during the relevant period.
7. It is observed that the case of the prosecution in respect of offence under section 25 of the Act is entirely based on the testimony of prosecution witnesses who are police officials. It is evident that no public witness was joined though the knife was allegedly recovered from the accused from a public place. It is a well settled principle of law that despite the availability of public witnesses, if no independent witness has been joined during investigation or at the time of recovery, then the testimony of police officials has to be scrutinized carefully. In Satish Kumar Vs. State CRL. A. 125/2000 decided on 16.07.2012, Hon'ble Delhi High Court has observed that the testimony of a witness Page no. 5 of 9 St. vs. Safiqul; FIR No. 62/2006 6 cannot be completely ignored or brushed aside just for the fact that the witness is a police person but where all the prosecution witnesses are police persons only and no independent witness to the incident is examined by the prosecution, it becomes necessary to exercise a greater caution.
The Hon'ble Allahabad High Court also in the case titled as Swami Dayal vs. State, 1953 D.L.R. All.10, has put the legal position in a nutshell as follows :
"A search is not vitiated by noncompliance with the provisions of Sec. 103 of the Code of Criminal Procedure, a breach of which only put the Court on guard and incline it to scrutinize evidence of witnesses more closely. The effect of such irregularity will, however, depend on the circumstances of each particular case. But a search carried out with the aid of witnesses available at the time, even though they may not be independent, cannot be characterized to be in any way improper and cannot, in any case, have the effect of sweeping away the results of such a search."
As per prosecution witnesses, some public persons were asked to join the investigation but none was agreed and went away without disclosing their names and addresses. No notice for not joining the investigation were given to these public witnesses. Recovery witnesses did not call any local resident/shopkeepers to join the investigation.
Page no. 6 of 9 St. vs. Safiqul; FIR No. 62/2006 7
8. Chapter 22, Rule 49 of Punjab Police Rules, 1934 provides as under : "22.49 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 or the officer concerned and shall be attested by the latter personally by signature or seal".
In the present case, the abovesaid provision appears to have not been complied with by the prosecution. The DD entry vide which recovery witnesses had left the police station has not been produced on record. Even the number of said DD entries made in register no. II, if any, has not been brought on judicial record. In my opinion, at least in the facts and circumstances of the case, said DD entries vide which recovery witnesses had left the police station must have been produced, so as to prove the possibility of said police officials reaching at the spot.
9. As per the version of the prosecution, accused was in possession of a button operated knife without any licence or permit for the same. Very surprisingly, no efforts whatsoever have been made by the prosecution to have clue about the source from where knife was Page no. 7 of 9 St. vs. Safiqul; FIR No. 62/2006 8 arranged for by the accused. Atleast some efforts must have been made by the police to interrogate the accused and conduct requisite investigation to know as to from where accused arranged the button operated knife. Hence, prosecution has failed to prove that accused was found in possession of knife beyond reasonable doubts.
10. Now, I have to consider the charge under section 174A IPC. In respect of this offence prosecution has examined two witnesses namely SI Manu Dev (PW4) and Ct. Sumit (PW5). It is observed that during the trial of the present case accused remained absent and therefore, NBW were issued against him and thereafter, on 16.09.2011 process under section 82 Cr.P.C. was issued against him. Said process was published by PW5 Ct. Sumit but accused did not appear on the next date of hearing, i.e., 10.02.2012 and therefore, after recording statement of process server (PW5), it was declared vide order dated 10.02.2012 that proclamation was duly published and therefore, accused was declared as proclaimed offender. PW4 SI Manu Dev has proved supplementary challan under section 174A IPC. Accused in his statement under section 313 Cr.P.C. has mentioned that due to demolition of the jhuggi, he started residing at Bawana and could not appear before this court and was in custody in some other case at the relevant period. Accused has not examined in his defence to show that he was in custody in some other case during the relevant period when he was absent in the present Page no. 8 of 9 St. vs. Safiqul; FIR No. 62/2006 9 case. Hence, it has been proved on record that accused failed to appear at the specified place and the specified time as required by a proclamation published under sub section (1) of Section 82 of the Code of Criminal Procedure, 1973.
13. In light of discussions made above, I am of the opinion that prosecution has failed to prove the charge under section 25 of the Act beyond reasonable doubts and accordingly, accused is acquitted for the offence under section 25 Arms Act but has proved the charge under section under section 174A IPC and therefore, accused is convicted for the offence under section 174A IPC.
Announced in the open court (Sanjeev Kumar) On 04th Day of August, 2012 Metropolitan MagistrateI (East) (total nine pages) Karkardooma Courts, Delhi Page no. 9 of 9 St. vs. Safiqul; FIR No. 62/2006 10 FIR No. 62/06 PS : Gandhi Nagar U/s. 25 Arms Act 04.08.2012 Present: Ld. APP for the State.
Accused produced from JC with Counsel Sh. Dinesh Yaduwanshi from DLSA.
Statement of accused under section 313 (1) (b) read with section 281(1) of the Cr.P.C. recorded.
Final arguments heard.
Vide separate judgment of the even date, accused is acquitted for the offence under section 25 Arms Act and convicted for the offence under section 174A IPC.
Heard on the point of sentence for the offence under section 174A IPC. It is urged by Ld. APP for State that maximum sentence should be awarded to convict.
On the other hand, it is stated by Ld. counsel for convict that convict is the of the young age and therefore, lenient view may kindly be taken.
The convict remained in judicial custody from 17.02.2012 till today. Keeping in view the facts and circumstances, convict is sentenced to imprisonment for the period already undergone by him.
Copy of judgment and order on sentence supplied to convict free of cost.
File be consigned to Record Room.
Announced in the open court ( Sanjeev Kumar )
th
On 04 Day of August , 2012 Metropolitan Magistrate
Karkardooma Courts,Delhi.
Page no. 10 of 9 St. vs. Safiqul; FIR No. 62/2006