Delhi District Court
State vs . Mohd. Tosif on 13 January, 2020
IN THE COURT OF Ms. PRIGYA GUPTA
METROPOLITAN MAGISTRATE08, CENTRAL,
TIS HAZARI COURTS, DELHI
CIS No. 8873/19
State Vs. Mohd. Tosif
FIR No. 107/19
PS : Kamla Market
U/s. 25 Arms Act
JUDGMENT
1) The date of commission of offence : 07.06.2019
2) The name of the complainant : Ct. Ruchin
3) The name & parentage of accused : Mohd. Tosif
S/o Sh. Mohd. Chiraguddin
R/o Jhuggi No. 345, LNJP,
Colony, Delhi.
4) Offence complained of : u/s 25 Arms Act
5) The plea of accused : Pleaded not guilty
6) Final order : Acquittal
7) Date of Institution : 05.07.2019
8) Judgment announced on : 13.01.2020
BRIEF REASONS FOR THE JUDGMENT:
1. The case of the prosecution against the accused is that on 07.06.2019 at about 12:10 pm at Tikona Park, Bus Stop, Delhi within the jurisdiction of PS Kamla Market, accused was found in possession of a buttondar knife without any license or permit in contravention of DAD Notification of GNCT of Delhi. On the said allegations, accused was charged with the offence under Section 25 Arms Act.
State vs. Mohd. Tosif FIR No. 107/19 U/s 25 Arms Act MM08/C/Delhi/13.01.2020 PS Kamla Market Page 1 of 12
2. After investigation, chargesheet was filed against the accused. The copy of chargesheet was supplied to the accused in compliance of Section 207 Cr.P.C. Thereafter, charge was framed against the accused under Section 25 Arms Act to which he pleaded not guilty and claimed trial. The accused admitted FIR, endorsement on rukka, certificate u/s 65B Indian Evidence Act and DAD Notification under section 294 Cr.P.C. After the conclusion of the prosecution evidence, statement of accused was recorded separately wherein accused claimed to be innocent and denied allegations against him. Accused opted to not lead any Defence Evidence.
Appreciation of evidence
3. Having heard the learned APP for the State and Ld. LAC Sh. N K Saraswat for the accused, I have also perused the entire record meticulously. A detailed scrutiny of the testimonies of the prosecution witnesses has been done and is hereby discussed in detail.
PW1 Ct. Ruchin has deposed that on 07.06.2019, he alongwith Ct. Gauri Shankar were on bus checking duty through DD No. 38A dated 07.06.2019. When they were present near Tikona Park bus stand and checking a bus, one boy got down from that bus after seeing police party and started going towards NDRS in fast speed. On suspicion, they chased the accused and after 1520 steps, he alongwith Ct. Gauri Shankar apprehended the accused. On inquiry, the accused could not give any satisfactory answer. He conducted the cursory search of the accused and found a button actuated knife in the right pocket of worn jeans pant of the accused. He informed regarding same to DO, PS Kamla Market through DD No. 39A. ASI P R Pattnaik alongwith Ct. Mahesh reached at the spot to State vs. Mohd. Tosif FIR No. 107/19 U/s 25 Arms Act MM08/C/Delhi/13.01.2020 PS Kamla Market Page 2 of 12 whom he had handed over case property alongwith the accused. The accused disclosed his name as Tausif to IO. He has correctly identified the accused. IO recorded his statement Ex PW1/A. IO asked 45 public persons to join the investigation but none of them agreed and left the spot without disclosing their identity. Thereafter, IO had opened the knife with the help of button and prepared a sketch of the same vide sketch memo Ex. PW1/B. The total length of the knife was 23.7 cms, the length of the blade was 10.7 cms, the length of the handle was 13 cms and the breath of the blade was 3.3 cms. There were green and red strips on the handle of the knife. IO put the knife in cloth pullanda and sealed with the seal of PRP. Seal after use was handed over to him. IO seized the knife vide seizure memo Ex. PW1/C. IO prepared Rukka on the basis of his statement and handed over to him for registration of FIR. He went to PS Kamla Market and got FIR registered and came back at the spot alongwith copy of FIR and original rukka and handed over the same to the IO. IO prepared site plan at his instance Ex. PW1/C1. IO arrested and personally searched the accused vide memos Ex. PW1/D and Ex. PW1/E. IO also recorded the disclosure statement of the accused vide memo Ex. PW1/F. Thereafter, they went to PS where case property was deposited in malkhana and the accused was lodged in lockup after medical examination. He has correctly identified one button actuated knife Ex. P1 as the same was recovered from the possession of the accused. The witness was duly cross examined by learned defence counsel.
PW2 Ct. Mahesh has deposed that on 07.06.2019, ASI P R Pattnaik received DD No. 39A. Thereafter, he alongwith IO reached at the spot and met with Ct. Ruckhin and Ct. Gauri Shankar who had handed over case property alongwith the accused to the IO. The accused disclosed his name as Tausif to IO. He has correctly identified the accused. IO recorded State vs. Mohd. Tosif FIR No. 107/19 U/s 25 Arms Act MM08/C/Delhi/13.01.2020 PS Kamla Market Page 3 of 12 statement of Ct. Ruchin. IO asked 45 public persons to join the investigation but none of them agreed and left the spot without disclosing their identity. Thereafter, IO had opened the knife with the help of button and prepared a sketch of the same vide sketch memo Ex. PW1/B. The total length of the knife was 23.7 cms, the length of the blade was 10.7 cms, the length of the handle was 13 cms and the breadth of the blade was 3.3 cms. There were green and red strips on the handle of the knife. IO put the knife in cloth pullanda and sealed with the seal of PRP. Seal after use was handed over to Ct. Ruchin. IO seized the knife vide seizure memo Ex. PW1/C. IO prepared Rukka on the basis of statement of Ct. Ruchin and handed over to him for registration of FIR. Ct. Ruchin went to PS Kamla Market and got FIR registered and came back at the spot alongwith copy of FIR and original rukka and handed over the same to the IO. IO arrested and personally searched the accused vide memos Ex. PW1/D and Ex. PW1/E. IO also recorded the disclosure statement of the accused vide memo Ex. PW1/F. He has correctly identified knife Ex.P1. The witness was duly cross examined by learned defence counsel PW3 Ct. Gori Shankar has deposed that on 07.06.2019, he alongwith Ct. Ruchin were on bus checking duty through DD No. 38A dated 07.06.2019. When they were present near Tikona Park bus stand and checking a bus, one boy got down from that bus after seeing police party and started going towards NDRS in fast speed. On suspicion, they chased the accused and after 1520 steps, he alongwith Ct. Ruchin apprehended the accused. On inquiry, the accused could not give any satisfactory answer. Ct. Ruchin conducted the cursory search of the accused and found a button actuated knife in the right pocket of worn jeans pant of the State vs. Mohd. Tosif FIR No. 107/19 U/s 25 Arms Act MM08/C/Delhi/13.01.2020 PS Kamla Market Page 4 of 12 accused. Ct. Ruchin informed regarding same to DO, PS Kamla Market through DD No. 39A. ASI P R Pattnaik alongwith Ct. Mahesh reached at the spot to whom Ct. Ruchin had handed over case property alongwith you. The accused disclosed his name as Tausif to IO. He has correctly identified the accused. IO recorded statement of Ct. Ruchin. IO asked 45 public persons to join the investigation but none of them agreed and left the spot without disclosing their identity. Thereafter, IO had opened the knife with the help of button and prepared a sketch of the same vide sketch memo Ex. PW1/B. The total length of the knife was 23.7 cms, the length of the blade was 10.7 cms, the length of the handle was 13 cms and the breadth of the blade was 3.3 cms. There were green and red strips on the handle of the knife. IO put the knife in cloth pullanda and sealed with the seal of PRP. Seal after use was handed over to Ct. Ruchin. IO seized the knife vide seizure memo Ex. PW1/C. IO prepared Rukka on the basis of statement of Ct Ruchin and handed over to Ct. Ruchin for registration of FIR. He went to PS Kamla Market and got FIR registered and came back at the spot alongwith copy of FIR and original rukka and handed over the same to the IO. IO prepared site plan at the instance of Ct. Ruchin Ex. PW1/C1. IO arrested and personally searched the accused vide memos Ex. PW1/D and Ex. PW1/E. IO also recorded the disclosure statement of the accused vide memo Ex. PW1/F. The witness was duly cross examined by learned defence counsel.
PW4 ASI P R Pattanaik has deposed that on 07.06.2019, he received DD No. 39A. Thereafter, he alongwith Ct. Mahesh Kumar reached at the spot I.e Tikona Park, Bus Stop where they met with Ct. Ruckhin and Ct. Gauri Shankar who had handed over case property alongwith the accused to him. The accused disclosed his name as Tausif. He has correctly State vs. Mohd. Tosif FIR No. 107/19 U/s 25 Arms Act MM08/C/Delhi/13.01.2020 PS Kamla Market Page 5 of 12 identified the accused. He recorded statement of Ct. Ruchin Ex. PW1/A. He asked 45 public persons to join the investigation but none of them agreed and left the spot without disclosing their identity. Thereafter, he had opened the knife with the help of button and prepared a sketch of the same vide sketch memo Ex. PW1/B. The total length of the knife was 23.7 cms, the length of the blade was 10.7 cms, the length of the handle was 13 cms and the breath of the blade was 3.3 cms. There were green and red strips on the handle of the knife. He put the knife in cloth pullanda and sealed with the seal of PRP. Seal after use was handed over to Ct. Ruchin. He seized the knife vide seizure memo Ex. PW1/C. He prepared Rukka Ex. PW4/A, on the basis of statement of Ct. Ruchin and handed over to him for registration of FIR. Ct. Ruchin went to PS Kamla Market and got FIR registered and came back at the spot alongwith copy of FIR and original rukka and handed over the same to him. He arrested and personally searched the accused vide memos Ex. PW1/D and Ex. PW1/E. He also recorded the disclosure statement of the accused vide memo Ex. PW1/F. The witness was duly cross examined by learned defence counsel.
4. It is a settled proposition of criminal law that prosecution is supposed to prove its case on judicial file beyond reasonable doubt by leading reliable, cogent and convincing evidence. Further, it is a settled proposition of criminal law that in order to prove its case on judicial file, prosecution is supposed to stand on its own legs and it cannot derive any benefit whatsoever from the weaknesses, if any, of the defence of the accused. Further, it is a settled proposition of criminal law that burden of proof of the version of the prosecution in a criminal trial throughout the trial is on the prosecution and it never shifts on to the accused. Also, it is a settled State vs. Mohd. Tosif FIR No. 107/19 U/s 25 Arms Act MM08/C/Delhi/13.01.2020 PS Kamla Market Page 6 of 12 proposition of criminal law that accused is entitled to the benefit of every reasonable doubt in the prosecution story and such reasonable doubt entitles the accused to acquittal.
5. Evaluating the facts and evidence, in light of the above said edicts, I proceed further to deliberate on various facets, dealing with one at a time. First of all, it comes out that no independent witness was joined the investigation. The hon'ble supreme court in STATE OF PUNJAB V. BALBIR SINGH AIR 1994 SC 1872, held that :
"It therefore emerges that noncompliance of these provisions i.e. Sections 100 and 165 Cr.P.C. would amount to an irregularity and the effect of the same on the main case depends upon the facts and circumstances of each case. Of course, in such a situation, the court has to consider whether any prejudice has been caused to the accused and also examine the evidence in respect of search in the light of the fact that these provisions have not been complied with and further consider whether the weight of evidence is in any manner affected because of the noncompliance. It is wellsettled that the testimony of a witness is not to be doubted or discarded merely on the ground that he happens to be an official but as a rule of caution and depending upon the circumstances of the case, the courts look for independent corroboration. This again depends on question whether the official has deliberately failed to comply with these provisions or failure was due to lack of time and opportunity to associate some independent witnesses with the search and strictly comply with these provisions. [Emphasis supplied]"
6. Considering facts and circumstances of the present case, there was no lack of time and opportunity to associate some independent witnesses with the search and strictly comply with the provisions of code of criminal State vs. Mohd. Tosif FIR No. 107/19 U/s 25 Arms Act MM08/C/Delhi/13.01.2020 PS Kamla Market Page 7 of 12 procedure. Merely mentioning that public persons were requested to join the investigation is of no avail. Name of those persons are not mentioned. It is not mentioned as to what action was taken against those persons who refused to join the investigation.
7. As per the testimonies of PW1 Ct. Ruchin, PW2 Ct. Mahesh Kumar, PW3 Ct. Gauri Shankar and PW4 ASI Pattaniak, it was sought to be shown by the prosecution that during the investigation, PW4 had asked numerous passersby to join the police party, but none of them agreed to join the investigation.
Now as per material on record, it is clear that no serious attempt was made by the concerned police officials to get independent public persons to join the police proceedings of investigation despite availability of such witnesses.
Believing the depositions of PW1 Ct. Ruchin, PW2 Ct. Mahesh Kumar, PW3 Ct. Gauri Shankar and PW4 ASI Pattaniak if members of the public had in reality refused to assist the members of the raiding party, they could have served the said passerby/public witnesses with a notice in writing to join the police proceedings since after the apprehension of the accused, there was no possibility of accused escaping his arrest or crime going undetected, but admittedly no action was taken against such members of the public by PW4. At least in these facts and circumstances of the case, in my opinion, the police officials concerned must have asked the passersby/public persons available at the spot of the apprehension & search of the accused by serving them a notice in writing and further in case of their refusal, the concerned police people must have taken action against them under Section 187 IPC.
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Secondly, another essential circumstance is that the seal, after use, was not handed over to any independent person. As comes out from the testimony of PW1, PW2, PW3 and PW4 the seal i.e. "PRP" after use on the pullanda containing the case property, allegedly recovered from the accused, was given to none else but to PW1 Ct. Ruchin by PW4 ASI P R Pattanaik. Apparent it is, that no efforts were made to hand over the seal to an independent person. The said fact raises a cloud of suspicion on the alleged recovery, more particularly so, when the PW1, PW2, PW3 and PW4 have admitted that passersby were available at the spot, however, no notice was served upon the public persons for refusal to join the investigation.
I am conscious of precedent laid down by Hon'ble Delhi High Court in "Safiullah v. State", 1993 (1) RCR (Criminal) 622, that:
"10. The seals after use were kept by the police officials themselves. Therefore the possibility of tampering with the contents of the sealed parcel cannot be ruled out. It was very essential for the prosecution to have established from stage to stage the fact that the sample was not tampered with. ..... Once a doubt is created in the preservation of the sample the benefit of the same should go to the accused."
Hon'ble Punjab & Haryana High Court also held in "Ramji Singh v. State of Haryana", 2007 (3) RCR (Criminal) 452, that
7. The very purpose of giving seal to an independent person is to avoid tampering of the case property."
The case property was lying in the Maalkhana of the same police station where the police officials having the possession of seal were posted. Furthermore, it can be observed that handing over memo was not made.
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There were ample opportunities for tampering with the case property. Hence, considering the legal position, the benefit of doubt should be given to the accused.
The IO and the raiding party must have offered their personal search to some independent witness. However, no such precaution was taken by PW1, PW2, PW3 and PW4 the doubt as to the false plantation of the case property cannot be ruled out. In "S. L. Goswami vs. State of M. P", 1972, Cri.L.J 511 (SC), the Hon'ble Supreme Court held:
"... in our view, the onus to proving all the ingredient of an offence is always upon the prosecution and at no stage does it shift to the accused. It is no part of the prosecution duty to somehow hook the crook. Even in case where the defence of the accused does not appear to be credible or is palpably false that burden does not become any the less. It is only when this burden is discharged that it will be for the accused to explain or controvert the essential elements in the prosecution case, which would negative it. It is not however for the accused even at the initial stage to prove something which has to be eliminated by the prosecution to establish the ingredient of the offence with which he is charged, and even if the onus shifts upon the accused and the accused has to establish his plea, the standard of proof is not the same as that which vests upon the prosecution..."
Besides all this, in the present case, the aforesaid lapse on the part of police officials assumes significance on account of another grave contradiction apparent in the document Ex.PW1/B. The sketch memo of the knife Ex.PW1/B and seizure memo of the knife Ex. PW1/C bears the number of FIR. As per the rukka and testimony of witnesses, the sketch memo of the knife and seizure memo were prepared prior to registration of FIR. If that be so then how Ex.PW1/B and Ex. PW1/C bears the FIR number. Now, I consider the observation made by Hon'ble Delhi High Court in Giri Raj v. State, 83 (2000) DLT 201. This gives rise to two inferences State vs. Mohd. Tosif FIR No. 107/19 U/s 25 Arms Act MM08/C/Delhi/13.01.2020 PS Kamla Market Page 10 of 12 that either the FIR was recorded prior to the alleged recovery of the case property or number of the said FIR was inserted in the 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 the recovery of the case property in the manner alleged by the prosecution. That being so, the benefit arising out of such a situation must necessarily go to the accused.
In this regard, reference can is also made to the judgment of Hon'ble High Court of Delhi in case titled as "Mohd Hasim V/s State" 1999 VI AD (Delhi) 569 wherein it was observed:
"...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, and in both cases, prosecution case would collapse."
It raises doubt that the entire paper work was done by the police officials at Police Station itself. It further strengthens the doubt of false implication of the accused.
This also raises doubt about the recovery of the said case property from the present accused and strengthens the possibility of planting of the case property upon the accused.
The onus and duty to prove the case against the accused was upon the prosecution and the prosecution must establish the charge beyond reasonable doubt. It is also a cardinal principle of criminal jurisprudence that if there is a reasonable doubt with regard to the guilt of the accused is entitled to benefit of doubt resulting in acquittal of the accused. Reference State vs. Mohd. Tosif FIR No. 107/19 U/s 25 Arms Act MM08/C/Delhi/13.01.2020 PS Kamla Market Page 11 of 12 may also be made to the judgment titled as Nallapati Sivaiah v. Sub Divisional Officer, Guntur reported as VIII(2007) SLT 454(SC).
In view of above said discussion, the prosecution has failed to prove the guilt of the accused beyond reasonable doubt. Accordingly, I acquit the accused Mohd. Tosif of the charges framed in the present case. Case property be confiscated to the State. Same be destroyed. File be consigned to Record Room subject to compliance of section 437A Cr.PC.
Announced in the open court (PRIGYA GUPTA)
on 13.01.2020 Metropolitan Magistrate08
Central District, Tis Hazari Courts/Delhi
State vs. Mohd. Tosif
FIR No. 107/19
U/s 25 Arms Act MM08/C/Delhi/13.01.2020
PS Kamla Market Page 12 of 12