Delhi District Court
State vs . Ali Khan. on 16 January, 2014
STATE vs. ALI KHAN.
IN THE COURT OF SH. SUNIL BENIWAL, ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE (SHAHDARA), KKD COURTS DELHI.
FIR No. 186/2007
PS : Anand Vihar
U/s 25 Arms Act
State vs. Ali Khan
a) Serial No. of the case : 02402R0326962007
b) Date of Institution : 27.04.2007
c) Date of commission of offence : 10.04.2007
d) Name of complainant : Ct. Mukesh Kumar No.
1335/East.
e) Name of the accused, and : Ali Khan S/o Abrar
Khan
parentage and address R/o Joshi Colony,
Mandawali, Delhi
(permanent address
Kakrala, P.S. Alapur,
Distt. Badaun, U.P.)
f) Offence complained of : U/s 25 Arms Act.
g) Plea of the accused : Pleaded not guilty
h) Date of judgment reserved : Unreserved
i) Final order : Acquittal
j) Date of such Order : 16.01.2014
JUDGEMENT
Brief reasons for the decision of the case FIR NO.186/07 PS Anand Vihar PAGE 1/7 STATE vs. ALI KHAN.
1. The case of prosecution is that on 10.04.2007 HC Rambir Singh while patrolling reached at D platform lavatory in ISBT Anand Vihar where at about 9.10P.M Ct. Mukesh Kumar met him and produced accused Ali Khan with recovered buttondar knife. HC Rambir Singh recorded the statement of Ct. Mukesh Kumar on which rukka was prepared and thereafter case FIR no. 186/2007 registered in PS Anand Vihar against the accused U/S 25 Arms Act. Statement of witnesses were recorded, site plan was prepared, accused was arrested and after completion of all necessary investigation challan U/S 173 Cr. P.C was presented in the court for trial.
2. Accused appeared to face trial so copy of challan as required U/S 207 Cr.P.C, was supplied to him. Thereafter case was fixed for consideration of charge.
3. After hearing arguments and on perusal of record, charge for the offence under section 25 Arms Act was framed against the accused on 11.01.2008. Thereafter case was fixed for prosecution evidence.
4. In support of its case, prosecution has produced and examined three witnesses namely HC Mukesh Kumar as PW1, ASI Yashpal Singh as PW2 and ASI Rambir Singh as PW3.
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STATE vs. ALI KHAN.
4A. PW1 deposed that on 10.04.2008, when he was on patrolling
duty at ISBT Anand Vihar, he saw one person coming from the rest room of the drivers of U.P. Roadways. On seeing him, that person tried to escape and on suspicion, PW1 apprehended him after chasing for a while. PW1 further deposed that on cursory search of accused he found a buttondar knife, meanwhile HC Rambir Singh/IO came there while on patrolling duty and PW1 handed over the accused with recovered knife to IO. PW1 further deposed that IO prepared sketch of knife Ex.PW1/A and kept the same into a pullanda and sealed the same with the seal of 'RSY' and handed over the seal to him. he further deposed that IO recorded his statement Ex.PW1/B. PW1 further deposed that IO seized the knife vide memo Ex.PW1/C. PW1 further testified that IO prepared rukka which was handed over to him for registration of case FIR and he took the same to PS and got recorded the case FIR from the duty officer concerned and came back on spot with copy of FIR and original rukka to hand over same to IO. PW1 further deposed that IO prepared site plan and arrested the accused vide memo Ex.PW1/D and conducted his personal search vide memo Ex.PW1/E and also recorded his supplementary statement. PW1 correctly identified the accused and case property/knife as Ex.P1. 4B. PW2/ASI Yashpal deposed that on 10.04.2007, he was working as duty officer and at about 10.40P.M on production of rukka by FIR NO.186/07 PS Anand Vihar PAGE 3/7 STATE vs. ALI KHAN.
Ct. Mukesh Kumar, he registered the FIR of the case. 4C. PW3 deposed on the investigation aspect of the case. PW3 deposed that on 10.04.2008, he was on patrolling duty in the area of ISBT Anand Vihar and at about 9.10P.M he reached at D platform where Ct. Mukesh met him who handed over the accused with recovered knife to him. PW3 further deposed that he recorded the statement of Ct. Mukesh Ex.PW1/B. PW3 further deposed that he prepared sketch of knife Ex.PW1/A and kept the knife into a pullanda and sealed the same with the seal of 'RSY' and seized it vide memo Ex.PW1/C. PW1 further testified that he prepared rukka after his endorsement Ex.PW3/A and handed over to Ct. Mukesh for registration of case FIR. PW3 further deposed that he prepared site plan Ex.PW3/B. PW3 further deposed that after interrogation, he arrested the accused vide memo Ex.PW1/D and conducted his personal search vide memo Ex.PW1/E.
5. Statement of accused was recorded under section 313 Cr. P.C in the manner prescribed under Section 281 Cr.P.C wherein he denied all the allegation of prosecution and further stated that all witnesses are false and have wrongly deposed against him and that all the documents are fabricated. However, accused did not prefer to lead any defence evidence.
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STATE vs. ALI KHAN.
6. I have heard the arguments of Ld. APP for the State and the Ld. Counsel for the accused and have also carefully perused the entire record and the relevant provisions of the law.
7. PW1 deposed that IO prepared site plan of spot in his presence but IO/PW3 deposed that he prepared site plan Ex.PW2/B after sending rukka. Admittedly, rukka was given to PW1 for registration of FIR, so PW1 left to PS for registration of case, hence it is clear that site plan was not prepared by PW2 in presence of PW1. It is pertinent that both PW1 & PW3 deposed that the spot was a public place, despite that no public witness was joined in the investigation. There is no public witness regarding recovery of the knife. Hence, recovery of buttondar knife from the possession of accused is doubtful.
8. On careful perusal and analysis of the entire evidence on record, I am of considered opinion that the testimony of PW1 & PW3 are not consistent and corroborated. I find that no corroborative, consistent reliable and sufficient evidence to make up the edifice of the prosecution case which has been produced by the prosecution. Moreover, the testimonies of the prosecution witnesses do not inspire confidence.
9. Admittedly, during the investigation of the case no public FIR NO.186/07 PS Anand Vihar PAGE 5/7 STATE vs. ALI KHAN.
witness was joined nor seems to be any sincere efforts made in this regard as PW1 & PW3 admitted that public persons were present on the spot, so this makes the case of the prosecution weak and suspicious. In State of Punjab vs. Gurmel Singh 1991(2) Recent Criminal Reporters 361 Hon'ble Court held that: "Where there were 20 shops nearby and the investigating officer had ample opportunity to join independent witness statement of official witnesses would not be sufficient to convict the accused. Contention of the prosecution that the police officials had no ill will to involve the accused in false case was repelled."
10. Further, it is also pertinent that sketch and seizure memo of knife Ex.PW1/A and Ex.PW1/C show that FIR number is mentioned therein. There is not a single word in the testimony of the PW3 as to when and at what stage FIR number was inserted in Ex.PW1/A & Ex.PW1/C. Moreover, the testimony of PW1 is also totally silent on this aspect. In the circumstances FIR was recorded posterior in time or that documents were prepared after the recording of FIR. In case Mohd. Hasim vs. State VI AD (Delhi) 569 (Hon'ble Mr. Justice M S A Siddiqui) it was observed that documents prepared before registering the FIR bears FIR numbers, meaning thereby either FIR was recorded posterior in time or that documents were prepared after the recording of FIR NO.186/07 PS Anand Vihar PAGE 6/7 STATE vs. ALI KHAN.
FIR, and was hold that in both case, prosecution case would collapse.
11. Apart from this, the presence of PW1 & PW3 at the spot is not proved. If they had departed from PS for patrolling duty the entry to this effect must exist in the Roznamcha but that has not been proved, raising an adverse presumption against the prosecution U/S 114 (g) of the Evidence Act and if the said Roznamcha had been produced it would have not shown their departure at all.
12. In view of the above, I hold that prosecution has failed to prove its case beyond reasonable doubt against accused and he is given the benefit of doubt and therefore accused Ali Khan is acquitted of the offence punishable U/S 25 Arms Act.
Announced in Open Court (SUNIL BENIWAL)
16.01.2014 Additional Chief Metropolitan Magistrate
Shahdara Distt., KKD Courts, Delhi
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