Delhi District Court
State vs . Mohd Shakir on 23 March, 2011
IN THE COURT OF SH. NAVEEN ARORA : ADDITIONAL
CHIEF METROPOLITAN MAGISTRATE : (SE) DELHI
STATE VS. Mohd Shakir
FIR NO: 389/01
P. S. New Friends Colony
Date of institution of case : 09072003
Date on which case reserved : 23032011
for judgment
Date of judgment : 23032011
JUDGEMENT U/S 355 Cr.P.C
.:
a) Date of offence : 11072001
b) Offence complained of : U/s 25/54/59 Arms Act
c) Name of complainant : HC Chander Pal Singh
d) Name of accused, his : Mohd Sakir S/O Mohd Sariff
parentage & residence R/O D15, Haji Colony, Jamia Nagar,
New Delhi
e) Plea of accused : He is falsely implicated.
g) Final order : Accused stands acquitted.
FIR NO.389/01 St Vs Mohd Sakir 1 of 9
BRIEF FACTS AND REASONS FOR DECISION:
In the present case, the charge sheet was filed U/s 25/54/59 Arms Act alleging that on 11072001 HC Chander Pal along with Ct. Girish Chand and Ct. Robin Singh were patrolling duty in the area of Hazi Colony and at about 4 am a secret informer informed to HC Chander Pal that one person would come from the side of Hazi Colony who robbed persons with the help of Katta and knife and if raided he can be apprehended. On this information HC Chander Prakash prepared a raiding party consisting of Ct. Girish and Ct. Robin and in the meantime Choki Incharge A.K. Gunja also reached there. IO/HC Chander Pal asked 34 persons to join the investigation but they refused and went away without disclosing their names and addresses. All the raiding party took their position at service road between DDA Flats and Qabristan. Secret informer was also with them at that time. At about 5.30 am a person came from Hazi Colony, Qabristan side and on the pointing out of secret informer, he was apprehended with the help of Ct. Girish Chander. His cursory search was carried out and from his right side dub one country made pistol was recovered. Sketch of the same was prepared and packed in parcel and sealed with the seal of "CP" and seal was handed over to Ct. Girish Chander. Seizure memo was prepared and FSL form was filled up. Rukka was prepared and handed over to Ct. Robin Singh for registration of FIR who after registration came back at the spot with ASI Prakash Chand to whom further investigation was handed over. He thereafter arrested the accused and carried out his personal search and after completion of all other formalities, challan was filed before the FIR NO.389/01 St Vs Mohd Sakir 2 of 9 court.
Cognizance of the offence was taken vide order dt. 09072003 and accused was summoned and supplied the copy of the charge sheet and charge was framed against the accused U/s 25/54/59 Arms Act on 28082003 wherein accused pleaded not guilty and claimed trail.
In Prosecution Evidence, prosecution examined the following witnesses:
1. HC Chander Pal as PW1
2. Ct. Girish Chand as PW2
3. Sh. K.C. Varshney, Sr. Scientific Officer, FSL who proved on record his report as EX.PW3/A and stated that said country made pistol was in working condition.
4. HC Indu Bala as PW4 being Duty Officer who proved on record the copy of FIR as EX.PW4/A and endorsement on rukka as EX.PW4/B. 5 HC Robin as PW5 6 ASI( Retd) Prakash Chand as PW6.
Malkhana Mohrar was not examined as a witness. All the prosecution witnesses deposed on the prosecution lines and proved on record all the documents forming part of challan such as sketch memo as EX.PW1/A, seizure memo as EX.PW1/C, rukka as EX.PW1/C, arrest memo of accused as EX.PW1/D, personal search as EX.PW1/E, case property was proved as EX.P1. All the witnesses denied the defence of the accused that he was lifted from his house.
FIR NO.389/01 St Vs Mohd Sakir 3 of 9 After prosecution evidence, Statement of Accused was recorded wherein he denied all the allegations and stated that he has been falsely implicated. No defence evidence was led on behalf of accused.
After closure of defence evidence, arguments were heard on behalf of State as well as defence and it is argued on behalf of Ld. APP for State that there are no major contradiction in the testimonies of PWS and their testimonies are truthful hence the prosecution has proved its case beyond reasonable doubt, hence accused should be convicted.
In reply to the submission of Ld. APP for State, it is argued on behalf of accused by defence counsel that the prosecution has utterly failed to prove its case beyond reasonable doubt against the accused and stated that all the witnesses are police witnesses and all of them have deposed in routine manner as they deposed in any other case of 25 Arms Act and raised the following grounds against the case of prosecution.
1. No independent witness has been joined at the time of recovery or during investigation despite their availability as the place where the alleged recovery has been affected was a public place. It is argued that mere a general allegation that IO asked 45 persons to join the investigation but they refused to participate and left the place by telling their genuine problem is not sufficient to evade the mandatory requirement of law of joining public witnesses. It is submitted that no notice was given to those persons who refused to join the investigation nor their particulars were recorded and the bald allegations of witnesses and IO in this regard is of no legal consequence.
FIR NO.389/01 St Vs Mohd Sakir 4 of 9
2 The mention of FIR Number on seizure memo clearly
shows that this memo was prepared after registration of FIR and not prior to registration of FIR as alleged in the prosecution story. This fact clearly shows that all the proceeding have been done in the police station and not at the spot as alleged by PWS which proves that PWS are not stating the truth before the court.
3 Malkhana Moharrar was not examined and the entries of Malkhana register were not proved on record to show that IO had deposited the specimen impression of his seal with the case property in Malkhana.
4 IO has not given any explanation as to from where they have brought the measuring instrument for measuring the knife or cloth for sealing the knife.
It is further argued that there are various contradictions in the testimonies of PWS such as PW1 in his cross examination submitted that Ct. Robin Singh reached along with ASI Prakash Chand at about 9 am after registration of case, though PW2 Ct. Girish Chand stated that Ct. Robin Singh and ASI Prakash Chand came at the spot after registration of FIR at around 8.15 to 8.30 am. Though ASI Prakash Chand in his statement stated that he received the copy of FIR through Ct.Girish and investigation of the case was marked to him and HC Chander Pal produced the accused Mohd Sakir and sealed pulnda of Desi Katta and handed over the site plan in the police post, meaning thereby that ASI Prakash Chand never went to the spot nor he prepared the site plan. Though he has been shown as author of site plan as per charge sheet and the IO of the case ASI Prakash Chand only arrested the accused vide arrest memo and FIR NO.389/01 St Vs Mohd Sakir 5 of 9 conducted his personal search. It is argued that all these contradictions clearly shows that whatever police is saying is false and in the absence of any independent witness their testimonies cannot be believed against the accused. It is admitted fact that despite the availability of public witness at the spot such as Chowkidar of Qabristan and various public were visiting the Mandir, no public witness was joined. The secret information was not told to the senior officer before taking any action despite the availability of time with them between the receipt of secret information and apprehension of accused. It is also pertinent to mention here that case property was sent to CFSL on 21082001 i.e after 40 days of the seizure of case property and such delay has not been explained. No finger prints from the said fire arms has been taken to show that it belongs to the accused. It is submitted that accused was arrested just to book him in case FIR NO. 342/01 U/s 392/397/34 IPC wherein accused has already been acquitted. Copy of judgment placed on record.
I have heard the arguments and perused the record. In my opinion, all the points raised by the defence counsel are material points which cannot be over looked just on the ground that testimonies of all the witnesses are almost identical and on the lines of prosecution case or because of the fact that some of the PWS were even not cross examined. It is well settled law that even without cross examination if the testimonies of witnesses are not found convincing or satisfactory, they are not to be relied upon and mere their non rebuttal in cross examination is no ground for their admission in evidence against the accused. In the present case only general allegations have been made that IO made efforts to join public witnesses but nothing material has FIR NO.389/01 St Vs Mohd Sakir 6 of 9 come on record to show the same such as the name of the person who were asked to join the proceeding etc. Though, it is not the case that police witnesses are not material witnesses or on their sole testimonies accused cannot be convicted but it is well settled that in the absence of any independent witness the contradictions in the testimonies though minor in nature should be viewed seriously as decided in Kuldeep Singh Vs State of Haryana, 2004(4) RCR 103 wherein it is held that: Recovery effected at a place where independent witness were available but not joined Discrepancies in statement of official witnesses Discrepancies assume importance when no independent witness was joined.
In Passi @ Parkash V State of Haryana, 2001(1) RCR 435 wherein it is held that: Discrepancies in statement of witnesses assumed importance due to non joining with independent witness. Had an independent witness been joined these discrepancies would not have affected the prosecution.
In Pawan Kumar Vs Delhi Admn. 1987 CC. Cases 585(HC) wherein it has been held that:
in the normal circumstances, the FIR number should not find mention on the recovery memo or the sketch plan which had come into existence before the registration of the case. However, from the perusal of the recovery memo, I find that the FIR is mentioned whereas the sketch plan does not show the number of FIR. It is not explained as to how and under what circumstances, the recovery memo came to bear the FIR number which had already come into existence before the registration of the case. These are few of the circumstances which created a doubt about the genuineness of the weapon of offence alleged to have been recovered from FIR NO.389/01 St Vs Mohd Sakir 7 of 9 the accused. If in the recovery memo description of the weapon shows defers or did not find mentioned in the sketch plan, it creates a doubt about the identify of the weapon from the accused. It was also held that where the IO does not make any attempt to make any public witness despite the presence of large number of persons on the spot and no plausible explanation comes from the side of prosecution in forth coming for non joining of independent witnesses in a case of serious nature like 25 Arms Act, it creates a doubt on the arrest and the recovery of the weapon from the person of the accused.
In Karambir Vs State 1997 JCC 520 wherein it has been held that: Malkhana Moharrar where the recovered property was deposited not examined in court and no explanation for non examination forth coming and IO did not say that he had deposited specimen impression of the seal with the Moharrar Malkhana along with the case property. All these deficiencies resulted in the mis carriage of justice. Under the circumstances benefit goes to the accused.
Des Raj Vs State, 83(2000) DLT 262 wherein it has been held that: Delay of 12 days in sending the parcel by Moharir Malkhana to CFSL is a serious lacuna in the prosecution version. This lapse casts serious doubt about the truthfulness and credibility of the prosecution version. Non examination of Moharir Malkhana and failure of the prosecution to even file his affidavit to testify to the safe custody of the recovered articles is also a serious lacuna in prosecution version. It was further held that neither depositing the CSFL form in the Malkhana nor sending it along with the sample parcel to the office of the CSFL puts a serious question mark on the credibility of the prosecution version.
FIR NO.389/01 St Vs Mohd Sakir 8 of 9 In Gurdial V/s State of Punjab , 2004 (2) RCR ) (CR) 745 It was held that: In case of secret information, the investigation agency should join some independent witness and this requirement of joining of independent witness is only to ensure what the official witness are deposing is supported by such witness.
In view of above mentioned judgments, I am of the opinion that merely on the basis of routine identical statements of police witnesses it would not be safe to hold accused guilty as there are above mentioned short coming in the case of prosecution which cast a doubt and makes the accused entitled for benefit of doubt, hence I am of the opinion that prosecution has failed to prove its case beyond reasonable doubt against the accused and accused is stands acquitted for the offence U/s 25/54/59 Arms Act. Bail bond stands cancelled. Surety stands discharged. File be consigned to Record Room.
ANNOUNCED IN THE OPEN COURT ( NAVEEN ARORA ) TODAY ON 23rd March2011 ACMM/SE/ SAKET FIR NO.389/01 St Vs Mohd Sakir 9 of 9