Delhi District Court
State vs Firoz Khan on 7 December, 2012
IN THE COURT OF SH. MUNEESH GARG,
METROPOLITAN MAGISTRATE
KARKARDOOMA COURTS, DELHI
State versus Firoz Khan
FIR No. 222/05
U/s 25 Arms Act
PS Geeta Colony
JUDGMENT
a. Unique ID Number of the case : 02402R0389322005 b. Sl. No. of the case : 89/3 c. Date of institution : 02.12.08 d. Date of commission of offence : 29.06.2005 e. Name of complainant : ASI Raj Kumar f. Name & address of accused person : Firoz Khan S/o Sh. Mohd.
Salim, R/o 2815/2, Kailash
Nagar, Gali No.12, Gandhi
Nagar, Delhi.
g. Offence complained of : U/s 25 Arms Act
h. Plea of accused : Pleaded Not Guilty
i. Date on which order was reserved : Not reserved j. Final order : Acquitted k. Date of Judgment : 07.12.2012 BRIEF STATEMENT OF REASONS FOR DECISION
01. Briefly stated the case of the prosecution is that on 29.06.2005 at about 03:40 p.m. at Bus Stand, Shamshan Ghat, in front of Geeta Colony, accused Firoz Khan was found in possession of one button-actuated knife FIR No. 222/05 Page No. 1/11 in contravention of the notification issued by Delhi Administration and thereby committed an offence punishable u/s 25 Arms Act.
02. After filing of the police report, cognizance of offence under section 25 Arms Act was taken by Ld. Predecessor of the Court and the accused was called upon to face trial after complying with the requirement of section 207 of Cr.P.C.
03. On 19.08.09, charge was framed against the accused under section 25 Arms Act to which the accused pleaded not guilty and claimed trial.
04. Prosecution adduced evidence in support of its case and examined three witnesses.
05. PW 1 (HC Bhisham Rana) is a recovery witness who deposed that on 29.06.2005, IO ASI Raj Kumar organised a raiding party consisting of HC Anil, Constable Pawan and including him and the informer and at the instance of secret informer apprehended the accused Firoz Khan and on his formal search, one buttondar knife was recovered. IO prepared the sketch of the knife Ex. PW-1/A. Knife was seized vide memo Ex. PW-1/B and sealed with the seal of RK. Seal after use was handed over to Constable Pawan. IO prepared rukka and handed over the same to Constable Pawan who went to police station alongwith rukka and came back at the spot alongwith second IO Head Constable Kewal Krishan. First IO handed over all the documents, case property and the accused to the second IO. Accused was arrested vide arrest memo Ex. PW-1/C and FIR No. 222/05 Page No. 2/11 personally searched vide memo Ex. PW-1/D. IO recorded the statement of the witnesses and the accused was brought to police station. Case property was deposited in the Malkhana. PW 1 identified the accused in the court and case property Ex. P1. PW 1 was cross-examined by the Legal Aid Counsel for the accused on opportunity being given to him.
06. PW 2 (ASI Raj Kumar) is first Investigation Officer who deposed that on the day of incident, he alongwith HC Bhisham Rana, HC Anil and Constable Pawan, at the instance of secret informer, apprehended the accused and recovered one buttondar knife. He prepared the sketch of the knife Ex. PW-1/A and seized the same vide memo Ex. PW-1/B and sealed with the seal of RK. Seal after use was handed over to Constable Pawan. He prepared rukka Ex. PW-2/A and handed over the same to Constable Pawan who went to police station alongwith rukka and came back at the spot alongwith second IO Head Constable Kewal Krishan as the further investigation was marked to him. He handed over all the documents, case property and the accused to the second IO. Second IO prepared site plan at his instance. PW 2 identified the accused in the court and case property Ex. P1. PW 2 was cross-examined by the Legal Aid Counsel for the accused on opportunity being given to him.
07. PW 3 (Head Constable Kewal Krishan) is second IO of the case who deposed that on the day of incident, investigation of the case was marked to him. Duty Officer Head Constable Raj Pal handed over copy of FIR Ex. PW-3/B to him. He deposed that first IO handed over sealed pullanda, all the documents prepared by him and the accused to him. He FIR No. 222/05 Page No. 3/11 identified the accused in the court. He prepared site plan Ex. PW-3/A at the instance of first IO. He also deposed regarding the arrest and personal search of accused. PW 3 was cross-examined by the Legal Aid Counsel for the accused on opportunity being given to him.
08. After closure of prosecution evidence, the statement of the accused was recorded u/s 313 of Code of Criminal Procedure, 1973. Incriminating evidence was put to the accused and he was questioned generally on the case. He denied all the allegations and stated that he is innocent and has been falsely implicated in this case. The accused opted not to lead any defence evidence.
09. I have gone through the rival submissions of both the parties as well as material on record carefully.
10. As per the prosecution version, knife was recovered in the presence of ASI Raj Kumar, HC Bhisham Rana, HC Anil and Constable Pawan. PW 1 deposed in his testimony that on 29.06.05, he alongwith ASI Raj Kumar, HC Anil and Constable Pawan was on patrolling duty in the area of Police Station, however no document / DD entry have been shown by which it can be proved that he was on patrolling duty in the concerned area.
For knowing the importance of the DD entry of arrival and departure of the police officials from the police station, I have perused Chapter 22 Rule 49 of Punjab Police Rules, 1934 which reads as under:
FIR No. 222/05 Page No. 4/11"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 all 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.
In the present case, the above said provision appears to have not been complied with by prosecution. As per the prosecution version, at the time of the apprehension of the accused with one buttondar knife in his possession, recovery witnesses were on patrolling duty at the relevant time but the DD entry vide which they had left the Police Station for patrolling duty has not been brought on record. The number of the said DD entry made in Register No. II has not even been brought on judicial record. In my opinion prosecution was under an obligation to prove on record, the DD entry vide which above said police officials had left the Police Station for patrolling duty, so as to prove the possibility of availability of prosecution witnesses at the place of apprehension of the accused. In the facts and circumstances of the case, the prosecution ought to have proved the DD entry by which the above said police FIR No. 222/05 Page No. 5/11 officials had left the PS so as to inspire the confidence regarding their availability / presence at the place of apprehension of the accused.
At this juncture, it would be relevant to refer to a case law reported as Rattan Lal versus State 1987 (2) Crimes 29 the Hon'ble Delhi High Court wherein it has been observed that:
"If the investigating agency deliberately ignores to comply with the provisions of the Act the courts will have to approach their action with reservation. 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 entry creates a reasonable doubt in the prosecution version and attributes oblique motive on the part of the prosecution.
11. IO has not made any public witnesses of the recovery of the alleged knife despite the fact that alleged spot was a public area. PW 1 stated in his cross-examination that spot is a public place where public persons were coming and going. IO asked 4-5 to join the investigation but none agreed and left the spot without disclosing their names and addresses. No legal notice was served to them. Thus, it is clear that IO has not made genuine efforts to join the public witnesses in the investigation. In this regard, the explanation of the Prosecution witnesses is that none of the public persons agreed to join the investigation. The explanation given by the prosecution witnesses does not seem plausible FIR No. 222/05 Page No. 6/11 because in the police report as well as the testimony of the prosecution witnesses, the names of the public persons, who were requested to join the investigations, have not been mentioned. IO has also not taken any action against such public persons who did not tender help to the public servant despite they were being under an obligation to render help on the legitimate request of the public servant.
I have also relied upon citation Sadhu Singh versus State of Punjab, (1997) 3 Crimes 55 (PH) wherein it is held that:
"there can be cases when public witnesses are reluctant to join or are not available. All the same, the prosecution must show a genius attempt having been made to join public witnesses. It is further held that a stereotype statement of non availability of any public witness will not be sufficient particularly when at the relevant time, it was not difficult to procure the services of public witness."
Keeping in view of the citation, I am of the considered view that prosecution has failed to show a genuine effort to make a public witness in regard of alleged recovery of case property from the possession of the accused.
12. There are other inconsistencies on the record which have not been explained. According to the deposition of Prosecution Witnesses, the case property was first seized and then rukka was prepared for registration of FIR. Thus according to the prosecution witnesses, FIR was registered after seizure of buttondar knife. However, the seizure FIR No. 222/05 Page No. 7/11 memo bears the FIR number. At the time of the seizure, FIR number was not available and therefore, FIR number could not have figured on the seizure memo. The existence of FIR number on seizure memo suggests that the seizure memo was prepared after the registration of FIR and is therefore, ante timed. This erodes the credibility of the witnesses who has stated that the seizure memo was prepared on the spot and before the registration of FIR.
In Lalji Shukla Vs. State (2000) 1 AD (Cr.) DHC, M.S.A. Siddiqui, J. of Delhi High Court observed as follows:
"4.....the prosecution has not offered an explanation whatsoever as to under what circumstances number of the FIR (Ex. PW6/B) has appeared on the top of the aforesaid documents, which were allegedly prepared on the spot before registration of the FIR. This give rise to two inferences that either the FIR (Ex PW6/B) was recorded prior to the alleged recovery of the contraband or number of the FIR was inserted in these documents after its registration. In both the situations, it seriously reflects upon the veracity of the prosecution version given by the aforesaid witnesses and creates a good deal of doubt about recovery of the contraband in the manner alleged by the prosecution. That being so, the benefit arising out of such a situation must necessarily go to the appellant."FIR No. 222/05 Page No. 8/11
13. There are other contradictions in the version of the prosecution which creates serious doubt on the alleged recovery of buttondar knife from the possession of accused. PW 1 stated in his cross-examination that the kit bag was of black colour made of leather. Whereas PW 2 stated in his cross-examination that the kit bag was made of rexine. Further, PW1 stated in his cross-examination that all the writing work was done while sitting at a bus stand at the spot and PW 3 stated in his cross-examination that all the writing work was done at the spot while sitting on a stool. Whereas PW 2 stated in his cross-examination that that all the writing work was done while sitting on a footpath at the spot. Further, perusal of the arrest memo Ex. PW 1/C reveals that time of arrest is not mentioned on the arrest memo. No explanation come from the side of prosecution for this omission and raises a serious doubt on the apprehension of the accused with alleged recovered buttondar knife from the spot.
14. Also, no efforts whatsoever have been made by the prosecution to have clue about the source from where buttondar knife was arranged for by the accused. Atleast, some efforts must have been made by the police to interrogate the accused and conduct the requisite investigation to know as to from where the accused arranged the buttandar knife. It could be a result of either a hasty investigation or a shoddy investigation but in either case, the benefit should go to the accused.
15. In view of the aforesaid discussion, I am of the considered view that prosecution has failed to prove the guilt of the accused beyond reasonable doubt. I hold that the accused is not found guilty of the charge FIR No. 222/05 Page No. 9/11 framed against him and he is acquitted of the charge under section 25 Arms Act framed against him. Bail bond of accused and surety be discharged after six months in view of the section 437 A CrPC. After compliance file be sent to record room. Case property be confiscated to State as per rules and same be destroyed.
ANNOUNCED IN THE OPEN (MUNEESH GARG)
COURT ON 07.12.12 METROPOLITAN MAGISTRATE
KARKARDOOMA COURTS, DELHI
FIR No. 222/05 Page No. 10/11
State versus Firoz Khan
FIR No. 222/05
U/s 25 Arms Act
PS Geeta Colony
07.12.2012
Present: Ld. APP for the State.
Accused produced from JC however on bail in the present case with LAC Sh. Roop Kishore.
Statement of accused under section 313 r/w section 281 Cr.P.C. was recorded separately. He opted not to lead DE. Therefore, DE closed.
Final arguments heard.
Vide my separate judgment of even date, accused is acquitted of the charge under section 25 Arms Act. In compliance of u/s 437 A Cr.P.C., bail bond of accused, if any, is extended for the prescribed period.
Documents, if any, be released after cancellation of endorsement to the person entitles. File be consigned to record room after compliance.
(Muneesh Garg) MM/KKD/07.12.2012 FIR No. 222/05 Page No. 11/11