Delhi District Court
State vs . Faheem on 28 June, 2022
IN THE COURT OF SH. BHARAT AGGARWAL, METROPOLITAN
MAGISTRATE-05, SHAHDARA DISTRICT, KARKARDOOMA COURTS,
DELHI.
State Vs. Faheem
FIR No. 489/2021
PS : Jagatpuri
U/s. 25 Arms Act
JUDGMENT
A. SL. NO. OF THE CASE : 6057/2021
B. DATE OF INSTITUTION : 20.11.2021
C. DATE OF OFFENCE : 21.10.2021
D. NAME OF THE COMPLAINANT: Ct. Sunil Kumar,
PS Jagatpuri
E. NAME OF THE ACCUSED : Faheem S/o
Md. Habib
F. OFFENCE COMPLAINED OF : U/s 25 Arms Act
G. PLEA OF ACCUSED : Pleaded not guilty
H. FINAL ORDER : Acquittal
I. DATE OF FINAL ORDER : 28.06.2022
BRIEF STATEMENT OF REASONS FOR DECISION:
1. The present accused has been produced to stand trial for commission of offence punishable under Section 25 of Arms Act, 1959.
2. The case of the prosecution, as set up for trial in brief is that on 21.10.2021, IO HC Lokender was at the PS and he received the DD no. 93A upon which IO HC Lokender alongwith Ct. Monu Kumar reached at the spot i.e. J Block, Krishna Nagar, near Jain Mandir, Delhi, where they met Ct. Sunil Kumar. Ct. Sunil produced one young boy namely Faheem, S/o Mohd. Habib, one buttondar knife and stolen motorcycle Apache bearing registration no. DL 5SBR 4369 and gave his statement wherein inter alia he stated that on FIR no. 489/2021 PS Jagatpuri State vs. Faheem Page 1 of 12 21.10.2021, he was on beat duty no. 8 and while he was patrolling in the area at about 08.45 AM when he reached J- Block, Krishna Nagar, near Jain Mandir. he saw two young boys were coming from the side of J-Block intersection on Apache grey colour motorcycle bearing registration no. DL 5SBR4369 and both were wearing helmets. He further stated that when he stopped the said bike for checking, suddenly the boy sitting on the pillion seat stepped out of the bike and ran away from the spot. Ct. Sunil apprehended the boy who was riding the motorcycle and upon enquiry, the said boy disclosed his name as Faheem S/o Mohd. Habib and upon searching the apprehended boy, a buttondar knife was recovered from his right pocket of his wearing pants and the said information was given by Ct. Sunil to Duty Officer, Jagatpuri. Thereafter, HC Lokender came at the spot and prepared a sketch of the buttondar knife in a white plain sheet Ex. PW-1/A and thereafter prepared the pullanda of the said knife in a transparent plastic box pasted with white doctor tape and sealed it with the seal of "LS" and seized the said buttondar knife vide seizure memo Ex. PW-1/B. It is further alleged that thereafter IO/HC Lokender prepared the tehrir Ex. PW-3/A and handed over the same to Ct. Monu for the registration of FIR, who got registered the FIR u/s 25 Arms Act Ex. P1.
It is further alleged that IO HC Lokender prepared the site plan Ex. PW-2/A at the instance of Ct. Sunil and recorded the disclosure statement of accused. In the meantime, Ct. Monu returned at the spot alongwith original rukka and copy of FIR. Thereafter, IO HC Lokender arrested the accused vide arrest memo Ex. PW-1/D and personally searched him vide personal search memo Ex. PW-1/E and informed his wife Mehnaz regarding his arrest. Thereafter, IO got conducted the MLC of the accused and then locked him up in the PS and deposited the case property in the malkhana.
3. Accused appeared before the Court on 24.05.2022 and the copy of charge sheet was supplied to the accused under Section 207 of the Code of Criminal Procedure. Further, vide order dated 24.05.2022, charge was framed FIR no. 489/2021 PS Jagatpuri State vs. Faheem Page 2 of 12 against the accused under Section 25 Arms Act, to which he pleaded not guilty and claimed trial. Further accused admitted certain documents in his statement u/s 294 Cr.P.C i.e. copy of FIR Ex. P1, GD No. 93A dated 21.10.2021 Ex. P2, DD no. 104A dated 21.10.2021 Ex. P3, the copy of DAD notification dated 29.10.1980 Ex. P4 and certificate u/s 65-B Evidence Act Ex. P5, and accordingly witness at serial no. 3 duty officer, ASI Gajender was dropped from the list of witnesses vide order dated 24.05.2022.
PROSECUTION EVIDENCE:
4. Thereafter, prosecution in order to prove its case has examined following witnesses :
4.1 PW-1/ HC Sunil Kumar deposed that on 21.10.2021, he was posted at PS Jagatpuri as constable and at time about 08.45 PM, he came from J-Block and went towards Jain Mandir as he was on patrolling duty. He further deposed that when he reached Jain Mandir Chauraha, he saw two persons who were wearing helmet and they were coming towards Jain Mandir Chauraha on grey colour Apache bearing registration no. DL 5SBR 4369. He deposed that he stopped both the persons and suddenly person sitting on the back ran away. He deposed that the rider was interrogated and in his right pocket one buttondar knife was recovered and thereafter he informed duty officer about the same over the phone at about 09.15PM. He further deposed that thereafter HC Lokender and Ct.
Monu reached at the spot at about 09.30 PM and he handed over Apache motorcycle and buttondar knife to HC Lokender and Ct. Monu. He deposed that thereafter HC Lokender sent Ct. Monu to get the case registered and thereafter Ct. Monu came to the spot at about 10.45 PM and HC Lokender prepared khaka (sketch) of buttondar knife on blank white sheet Ex. PW-1 and prepared the FIR no. 489/2021 PS Jagatpuri State vs. Faheem Page 3 of 12 Site plan in his presence. He further deposed that seizure memo of buttondar knife was prepared in his presence Ex. PW1/B and seizure memo of motorcycle was prepared in his presence Ex. PW- 1/C. He further deposed that accused was arrested in this presence vide arrest memo Ex. PW-1/D and accused was personally searched in his presence vide personal search memo Ex. PW-1/E. He deposed that disclosure statement of accused was recorded in his presence vide disclosure memo Ex. PW-1/F. PW-1 was cross-examined by Ld. Proxy counsel for the accused wherein inter alia he stated that the incident took place at about 08.45 PM and he had made departure entry when he went for patrolling duty and he stated that he was alone when he had stopped the motorcycle. He further stated that he apprehended accused Faheem and pillion ran away and he did not chase him. He further stated that he do not know the exact direction whether it was east, west, north or south but he know that he was at J-Block and was going towards Jain Mandir and accused and one unknown person were coming on the motorcycle towards Jain Mandir. He further stated that site plan was prepared in his presence but there are no signatures placed on the site plan. He further stated that there were no CCTV cameras on the spot and there were CCTV cameras near the spot and he had not collected footage of the arrival and departure of accused and one unknown person on motorcycle. He further stated that no action from the duty officer was taken regarding search of one unknown person who ran from the motorcycle after seeing him.
He further stated that no public persons agreed to join the investigation despite their efforts and when they asked the accused regarding the motive for keeping the knife the accused said that he FIR no. 489/2021 PS Jagatpuri State vs. Faheem Page 4 of 12 had to commit offence of snatching. He stated that no cctv footage was collected as there was no such camera available at the spot and also did not collect any footage from any nearby area.
4.2 PW- 2/HC Lokender deposed that on 21.10.2021, he was posted at PS Jagatpuri as Head Constable and on that day he received DD no. 93A and he was informed that the accused have been caught with buttondar knife. He deposed that then he alongwith Ct. Monu reached at the spot and met Ct. Sunil, who produced the case property i.e. buttondar knife, accused Faheem and the motorcycle Apache grey colour. He deposed that he took the measurements of the case property i.e. Buttondar knife Ex. PW- 1/A, prepared the sketch of the knife and the seizure memo of buttondar knife Ex. PW-1/B. He further deposed that he sealed the said knife in a transparent plastic box with help of doctor tape and sealed the same with the seal of "LS". Thereafter, as the accused could not give any satisfactory response regarding the motorcycle, he seized the same vide seizure memo Ex. PW-1/C. He further deposed that thereafter he prepared the tehrir and gave to Ct. Monu for registration of FIR and at about 11.30PM, Ct. Monu came back with the registered FIR and thereafter he prepared the arrest memo Ex. PW-1/D and the personal search memo Ex. PW-1/E. He further deposed that he got the MLC of the accused conducted and took the accused to the PS and deposited the case property in Malkhana. PW-2 in his testimony correctly identified the accused present in court and the case property i.e. buttondar knife Ex. PW- 1/G. He further deposed that he prepared the site plan Ex. PW-2/A. PW-2 was cross-examined by the Ld. Counsel for the accused wherein inter alia he stated that he received the information regarding the commission of the offence at about 09.40 PM in the FIR no. 489/2021 PS Jagatpuri State vs. Faheem Page 5 of 12 PS and the spot of incident is about 1.5 Km from the PS, which took him about 10-15 minutes to reach through his personal motorcycle. He stated that he reached there at about 09.50 PM and there was no other police person at the spot apart from Ct. Sunil. He further stated that the accused did not disclose name of the person or address sitting with him on the motorcycle and therefore no investigation was carried out on that aspect. He stated that he did not make any specific departure entry but there is his departure lodged in the same DD entry no. 93A. He further stated that he prepared the documents of investigation including the site plan at the spot and he left the spot at about 11.45 PM. He further stated that the accused persons were coming from the side of Chander Nagar and going towards Jain Mandir and the motorcycle which the accused was riding bears no. 4669 and of grey colour.
4.3 PW-3 Ct. Monu deposed that on 21.10.2021 he alongwith HC Lokender went to the spot where they met Ct. Sunil and Ct Sunil had caught hold of accused Faheem and from accused Faheem, one buttondar knife and one grey colour Apache bearing registration no. DL 5SBR 4369 was found in possession of accused Faheem. He further deposed that IO/ HC Lokender had took out buttondar knife from the pocket of accused Faheem and thereafter prepared sketch of buttondar knife Ex. PW-1/A on plain white sheet of paper. He further deposed that IO/ HC Lokender had handed over tehrir Ex. PW-3/A to him and he went to the PS taking original tehrir to get the case registered. He further deposed that he came back to the spot alongwith original tehrir and copy of FIR and handed over to IO. He further deposed that accused was arrested vide arrest memo Ex. PW-1/D, accused was personally searched vide personal search memo Ex. PW-1/E and seizure memo of buttondar Ex. PW-1/B were prepared in his presence. He further FIR no. 489/2021 PS Jagatpuri State vs. Faheem Page 6 of 12 deposed that seizure memo of motorcycle was prepared in his presence Ex. PW-1/C and thereafter disclosure statement of accused was prepared in his presence Ex. PW-1/F. He further deposed that thereafter, he alongwith IO took accused to Hedgewar hospital for getting his MLC done and after the medical examination of accused they came to PS and accused was locked up. PW-3 in his testimony correctly identified the accused and the case property i.e. buttondar knife Ex. PW-1/G. PW-3 was cross-examined by Ld. Counsel for accused wherein inter alia he stated that he had received the information regarding this case at 09.50 PM and at that time he was present at the police station. He stated that his statement was recorded at 10.45PM, near J Block, near Jain Mandir by HC Lokender and he had gone through the contents of said statement u/s 161 Cr. P.C. and he had put his signature at the said statement. He stated that he had stated in his statement to the IO that HC Lokender had took out buttondar knife from the pocket of accused Faheem and PW-3 was confronted with statement given by the witness to the IO u/s 161 Cr. P.C Ex. PW-3/DA where it was not so recorded.
PW3 stated that the sketch of buttondar knife Ex. PW-1/A was prepared by IO HC Lokender after about 10-15 minutes of their reaching at the spot. He stated that he remained at the spot till 10.50 PM and then he went to PS for registration of FIR. He further stated that when he had taken the rukka to PS for registration of FIR, HC Lokender was having the recovered buttondar knife in sealed condition and he stated that the seal with which the case property was sealed by the IO was "L" as per the name of the IO.
5. After completion of prosecution evidence, statement of accused FIR no. 489/2021 PS Jagatpuri State vs. Faheem Page 7 of 12 was recorded under Section 313 of the Code of Criminal Procedure on 28.06.2022, upon which accused had stated that he has been falsely implicated in the present case and was picked up by the police officials from his home. Further the accused chose not to lead any defense evidence and final arguments were heard from both the sides.
6. I have heard the learned APP for the State and learned counsel for defence and perused the case file carefully.
ARGUMENTS OF PROSECUTION AND DEFENCE:
7. It has been argued by the learned APP for the State that all the police witnesses have corroborated the case of the prosecution. It has further argued that the recovery of buttondar knife from the pocket of the accused is proved by the prosecution witnesses and the prosecution has been able to prove its case beyond reasonable doubt and accused is liable to be convicted for the offences for which he is charged for.
8. On the other hand, it has been argued by the the accused that no public witness has joined the investigation despite the fact that alleged buttondar knife was recovered from the possession of accused from public place. It was further argued that the site plan is not proper and does not depict the incident at all. He argued that the police has not taken any steps for apprehension of the other rider on the alleged motorcycle at all. He further argued that there are several contradictions in the testimony of the prosecution and that the prosecution has failed to prove its case beyond reasonable doubt and the accused is entitled to be acquitted.
FINDINGS WITH REASONS:
9. It is settled proposition of law that burden lies upon the prosecution FIR no. 489/2021 PS Jagatpuri State vs. Faheem Page 8 of 12 to prove its case beyond reasonable doubts. It is the case of prosecution that on 21.10.2021 at about 08.45 PM, accused was riding a motorcycle bearing no. 4369 and when he was stopped by PW-1 HC Sunil during patrolling, he was found to be in possession of a buttondar knife and accordingly, the present case was registered under section 25 Arms Act which prohibits possession of illegal/unlicensed weapon including buttondar knives especially in view of D.A.D. Notification published in Delhi Gazette on 29.10.1980.
10. In order to prove its case, the prosecution has examined HC Sunil, HC Lokender and Ct. Monu Kumar for supporting the case of the prosecution and to prove the alleged recovery of the illegal weapon from the accused.
11. As per chapter 22 rule 49 of the Punjab Police Rules, which is reproduced herein for ready reference:-
''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 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 has not been complied with by prosecution. The relevant entries regarding the arrival and departure of the police officials including PW-1, PW-2 and PW-3 have not been placed on record. At this juncture, it would be relevant to refer to a case law reported as Rattan Lal V/s State, [1987 (2) Crimes 29] the Hon'ble Delhi High Court it has been held that, "if the investigating agency deliberately ignores to comply with the provisions of the Act the courts will have to FIR no. 489/2021 PS Jagatpuri State vs. Faheem Page 9 of 12 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."
12. It is further pertinent to note here that although it is stated by IO HC Lokender that after he reached the spot, he prepared the site plan, the sketch of the recovered buttondar knife as well as personal search memo however, all the said documents bear the FIR number which again raise grave suspicion upon the case of the prosecution. For the same, I am also gainfully relying upon the observations made by Hon'ble High Court of Delhi Pradeep Saini v. State [2009 SCC OnLine Del 2803] :
70. Another circumstance which needs to be highlighted is that as per the case of the prosecution the sketch Ex.PW-
3/D of the knife purportedly recovered from the possession of accused Kishore Kumar was prepared before the registration of the FIR Ex.PW-2/B. Surprisingly, sketch Ex.PW-3/D of the knife contains the number of the FIR registered in the present case. The prosecution has not offered any explanation whatsoever as to under what circumstances number of the FIR Ex.PW-2/B has appeared on the document, which was allegedly prepared before registration of the FIR. This gives rise to two inferences; either the FIR Ex. PW-2/B was recorded prior to the alleged recovery of the knife or number of the said FIR was inserted in said document after its registration. In both the situations, it seriously reflects upon the veracity of the prosecution version and creates a good deal of doubt about recovery of the knife in the manner alleged by the prosecution.
13. It is further pertinent to state here that as per the case of prosecution, the pullanda was sealed by IO with the seal of 'LS', however, PW-3 has deposed that the seal was 'L". No handing over memo qua the buttondar knife has been prepared and placed on the record by the FIR no. 489/2021 PS Jagatpuri State vs. Faheem Page 10 of 12 prosecution for the reasons best known to itself. In such a case, the alleged recovery by the police officials is completely doubtful and raises grave suspicion on the alleged prosecutions' version.
14. Furthermore, as per the case of the prosecution admittedly the spot from where the accused has been arrested and recovery made is a busy public place. However, the prosecution witnesses have not deposed regarding any concrete efforts to join public witnesses made by them at the time of affecting the alleged recovery of buttondar knife/flick knife despite their availability on the spot. It has been held time and again that evidence of alleged seizure of flick knife from possession of the accused in the absence of public witnesses cannot be trusted. There being no concrete evidence of the documents being prepared on the spot as required and not at the police station, the accused is clearly entitled to the benefit of the doubt and suspicion which is raised over the manner and mode of recovery.
15. Public witnesses were admittedly not joined in the investigation though available. The testimony of official witnesses does not find any corroboration from any independent source. In the opinion of this Court, the non-joining of public witness is fatal to the prosecution case, particularly when no reasonable explanation has been given by prosecution for not joining public witnesses. In case titled as "Roop Chand Vs. State of Haryana"
reported as [1999 (1) CLR 69], it was held that, " Where the police has failed to join independent witnesses in the investigation despite their availability and further failed to take action against those who refused to take part in investigation nor their names were noted down by the police, the explanation of the police for not joining independent witnesses is an afterthought and liable to be rejected."
In the case of "Hem Raj v. State of Haryana" [AIR 2005 SC 2110], it has been observed that :-
"The fact that no independent witness though available, FIR no. 489/2021 PS Jagatpuri State vs. Faheem Page 11 of 12 was examined and not even an explanation was sought to be given for not examining such witness is a serious infirmity in the prosecution case. Amongst the independent witnesses one who was very much in the know of things from the beginning was not examined by the prosecution. Non-examination of independent witness by itself may not give rise to adverse inference against the prosecution. However, when the evidence of the alleged eye-witnesses raise serious doubts on the point of their presence at the time of actual occurrence, the unexplained omission to examine the independent witness would assume significance."
16. In view of the aforementioned facts and circumstances that no handing over memo of seal was prepared, documents are anti timed and no public witnesses were joined in investigation, it has to be concluded that prosecution has failed to prove its case against the accused beyond reasonable doubt. Accused is entitled to be given benefit of doubt. Accordingly, accused is acquitted for offence punishable under Section 25 of The Arms Act, 1959. Case property be confiscated to the State and be destroyed after expiry of period of appeal.
Copy of the judgment be provided free of the cost to the accused.
Digitally signed by BHARAT BHARAT AGGARWAL
AGGARWAL Date: 2022.06.28
15:48:03 -0300
ANNOUNCED IN OPEN COURT (Bharat Aggarwal)
Today i.e. 28.06.2022 MM-05/ SHD, Karkardooma
Courts/Delhi
Present judgment consisted of 12 pages and each page bears my initials.
Digitally signed by BHARAT BHARAT AGGARWAL
AGGARWAL Date: 2022.06.28
15:48:11 -0300
(Bharat Aggarwal)
MM-05/SHD,Karkardooma
Courts/Delhi/28.06.2022
FIR no. 489/2021 PS Jagatpuri State vs. Faheem Page 12 of 12