Delhi District Court
State vs Wasim @ Balla on 22 August, 2012
IN THE COURT OF SH. MUNEESH GARG,
METROPOLITAN MAGISTRATE
KARKARDOOMA COURTS, DELHI
State versus Wasim @ Balla
FIR No. 321/05
U/s 25/54/59 Arms Act
PS Geeta Colony
JUDGMENT
a. Unique ID Number of the case : 02402R0570882005 b. Sl. No. of the case : 134/3 c. Date of institution : 13.12.2008 d. Date of commission of offence : 18.10.2005 e. Name of complainant : SI Rajni Kant f. Name & address of accused person : Wasim @ Balla S/o Late Sh.
Ayub Beg R/o 242 Gali no. 8,
New Lahore, Shastri Nagar,
Delhi.
g. Offence complained of : U/s 25 Arms Act
h. Plea of accused : Pleaded Not Guilty
i. Arguments heard on : 22.08.2012
j. Final order : Acquitted
k. Date of Judgment : 22.08.2012
BRIEF STATEMENT OF REASONS FOR DECISION
01. Briefly stated the case of the prosecution is that on 18.10.2005 at about 07:25 p.m. at Ram Leela Ground, Rani Garden, Delhi within the jurisdiction of PS Geeta Colony, accused Wasim @ Balla was found in possession of one button-actuated knife in contravention of the notification issued by Delhi Administration and thereby committed an FIR No. 321/05 Page No. 1/12 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 12.09.2007, 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. PW 1 HC Rishi Pal deposed that on 18.10.05, he was posted as Duty Officer at PS Geeta Colony and proved the copy of FIR Ex. PW 1/A and stated that he made endorsement on the rukka Ex. PW2/B.
05. PW-2 Head Constable Amrish Tyagi is a recovery witness who deposed that on 18.10.05, he was posted as Constable at Police Station Geeta Colony. He further deposed that he alongwith SI Rajni Kant was on patrolling duty in the area of Police Station. At about 07:25 p.m. when they reached near Ram Leela Ground, Rani Garden, they saw a person standing near the gate of Ram Leela Ground and on seeing them, that person started moving inside the ground with fast steps and they apprehended the accused person present in the Court correctly identified by chasing him. On his formal search, one buttondar knife was recovered from the right pocket of his jeans pant. On interrogation they came to FIR No. 321/05 Page No. 2/12 know the name of the accused person as Wasin @ Balla. First IO SI Rajni Kant asked 3-4 public persons to join the investigation but they all refused and left the spot without disclosing their names and addresses. First IO prepared the sketch of the knife Ex. PW 2/A. Knife was seized vide memo Ex. PW 2/B and sealed with the seal of RKS and seal after use was handed over to him. First IO prepared rukka and handed over the same to him for registration of FIR. He went to police station for registration of FIR and came back at the spot alongwith second IO HC Baljor Singh. First IO handed over the documents prepared by him, accused and case property to the second IO. Accused was arrested by second IO vide arrest memo Ex. PW 2/C and personally searched vide memo Ex. PW 2/D. Case property was deposited in the Malkhana. PW 2 identified the accused in the court and case property Ex. P1.
06. PW 3 Head Constable Baljor is the second IO who deposed that on 18.10.05 investigation of the case has been marked to him by SHO. Thereafter, he alongwith Constable Amrish reached at the spot where SI Rajni Kant met them and handed over the sealed pullanda, documents prepared by him and accused to him. He prepared site plan Ex. PW-3/A at the instance of SI Rajnikant. Accused was arrested vide arrest memo Ex. PW 2/C and personally searched vide memo Ex. PW 2/D. Case property was deposited in the Malkhana. He recorded the statement of prosecution witnesses.
07. PW 4 SI Rajni Kant is the first Investigating Officer of the case who deposed that on on 18.10.05, he was posted as Sub Inspector at FIR No. 321/05 Page No. 3/12 Police Station Geeta Colony. He further deposed that on that day he alongwith PW-2 HC Amrish Tyagi was on patrolling duty. At about 07:25 p.m. when they reached near Ram Leela Ground, Rani Garden, they saw a person standing near the gate of Ram Leela Ground and on seeing them, that person started moving towards Ram Leela Ground. On suspicion, they apprehended the accused person present in the Court correctly identified by chasing him. On his formal search, one buttondar knife was recovered from the right pocket of his jeans pant. On interrogation they came to know the name of the accused person as Wasin @ Balla. He prepared the sketch of the knife Ex. PW 2/A. Knife was seized vide memo Ex. PW 2/B and sealed with the seal of RKS and seal after use was handed over to Ct. Amrish Tyagi. He prepared rukka Ex. PW-4/A and handed over the same to Ct. Amrish Tyagi for registration of FIR. Ct. Amrish Tyagi went to police station for registration of FIR and came back at the spot alongwith second IO HC Baljor Singh. He handed over the documents prepared by him, accused and case property to the second IO. PW 4 identified the accused in the court and case property Ex. P1.
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.
FIR No. 321/05 Page No. 4/1209. I have gone through the rival submissions of both the parties as well as material on record carefully.
10. As per the prosecution version, there are two recovery witnesses PW 2 Constable Amrish Tyagi and PW 4 SI Rajni Kant. PW-2 Constable Rajnish deposed in his testimony that on 18.10.05, he alongwith SI Rajni Kant 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 they were 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:
"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 FIR No. 321/05 Page No. 5/12 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, PW 2 Constable Amrish Tyagi and PW 4 SI Rajni Kant were on patrolling duty at the relevant time but the DD entry vide which they had left the PS for patrolling duty has not been brought on record. PW 2 Constable Amrish Tyagi stated in his cross-examination that he does not remember the DD number vide which he left the police station for patrolling duty. PW 4 SI Rajni Kant also stated in his cross- examination that he does not remember the DD number vide which he left the police station for patrolling on motorcycle. 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 above said DD entry vide which above said police officials had left the PS 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 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 FIR No. 321/05 Page No. 6/12 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. PW 2 Constable Amrish Tyagi deposed that on 18.10.05 he alongwith PW-4 SI Rajni Kant was on patrolling duty in the area of Police Station. At about 07:25 p.m. when they reached near Ram Leela Ground Rani Garden, they saw a person sitting near the gate of Ram Leela Ground who started moving inside the ground after seeing them. On suspicion, they apprehended the accused person by chasing him. On his formal search, one buttondar knife was recovered from the right pocket of his jeans pant. IO asked 3-4 public persons to join the investigation but they all refused and left the spot without disclosing their names and addresses. From his testimony, it is clear that he did not make any attempt to join public witnesses prior to recovery of the knife. PW-2 deposed in his cross examination that spot is a residential place where public persons were coming and going from there. PW 2 deposed that IO asked 3-4 persons to join the investigation but they all refused and left the spot without disclosing their names and addresses. At that time, since the recovery had already been effected, there was no requirement of joining public witnesses as there was nothing left to be witnessed. It seems that the attempt to join public witnesses was a sham.
12. Second IO PW 3 HC Baljor has also not made any public witnesses of the recovery of the alleged knife despite the fact that alleged spot was FIR No. 321/05 Page No. 7/12 a public area. 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 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.
13. 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 FIR No. 321/05 Page No. 8/12 registration of FIR. Thus according to the prosecution witnesses, FIR was registered after seizure of buttondar knife. However, the seizure 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."
14. There are other contradictions in the testimony of prosecution FIR No. 321/05 Page No. 9/12 witnesses which raises a serious doubt on the version of the prosecution. PW-2 deposed in his cross examination that all writing work was done at the spot while sitting at the scooter whereas PW-3 stated in his cross examination that all writing work was done at the spot while sitting at the bench and PW-4 first IO SI Rajni Kant stated in his cross examination that all writing work was done at the corner of the park under the street light while sitting on the ground. PW-2 stated in the cross examination that he took rukka to the PS at about 08:15- 08:30 p.m. and came back at the spot alongwith second IO at 09:30 p.m. Whereas PW-4 SI Rajni Kant stated in his cross examination that second IO reached at the spot at about 09:15 p.m. All these contradictions taken altogether creates a serious doubt on the story of the prosecution.
15. 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.
16. 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 framed against him and he is acquitted of the charge under section 25 Arms Act framed against him. Accused be set at his liberty if he is not FIR No. 321/05 Page No. 10/12 required in any other case. 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 22.08.12 METROPOLITAN MAGISTRATE
KARKARDOOMA COURTS, DELHI
FIR No. 321/05 Page No. 11/12
State versus Wasim @ Balla
FIR No. 321/05
U/s 25/54/59 Arms Act
PS Geeta Colony
22.08.2012
Present: Ld. APP for the State.
Accused on bail with counsel Sh. Roop Kishore from Legal Aid.
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 entitled. File be consigned to record room after compliance.
(Muneesh Garg) MM/KKD/22.08.2012 FIR No. 321/05 Page No. 12/12