Delhi District Court
State vs . Md. Asif on 3 May, 2018
IN THE COURT OF SH. PRANJAL ANEJA
METROPOLITAN MAGISTRATE-01, SHAHDRA DISTRICT,
KARKARDOOMA COURTS, DELHI
State Vs. Md. Asif
FIR No. 247/11
PS: Jafrabad
U/s 25/54/59 Arms Act
a. Serial No. of the case : 76057/16
b. Date of commission of offence : 13.08.2011
c. Date of institution of the case : 12.10.2011
d. Name of complainant : SI Vivek Sharma
e. Name of accused : Mohd. Ashif
S/o Mohd. Yakub
R/o H. No. 1178, Gali no. 38,
Jafrabad, Delhi.
f. Offence complained of : U/s 25/54/59 Arms Act
g. Plea of accused : Pleaded not guilty
h. Arguments heard on : 24.02.2018
i. Final order : Acquitted
j. Date of judgment : 03.05.2018
JUDGMENT
FACTS IN BRIEF :
1. Briefly stating, the case as per prosecution is that on 13.08.2011 at about 08.40 p.m. at Puri Gali near Darbar Chicken point, Maujpur, Delhi, accused was found in possession of one country FIR No. 247/11 PS Jafrabad State V. Mohd. Asif (03.05.2018) Pg No. 1 of 15 made pistol with two live cartridge in contravention of Section 3 Arms and committed an offence punishable U/s 25 Arms Act, 1959.
2. After completion of investigation, charge-sheet was filed. Upon taking cognizance of the offence, accused was summoned and supplied copy of charge-sheet in compliance of section 207 of Cr.P.C. Charge u/s 25 Arms Act, 1959 was framed on 04.07.2012. Accused pleaded not guilty and claimed trial.
3. In order to prove its case the prosecution examined several witnesses. PW1 is SI Vivek Sharma, PW2 is duty officer Retired SI Babu Lal, PW-3 is Ct. Chatar Singh, PW4 is ASI Ombir Singh, PW-5 is HC Rajesh Kumar and PW-6 is ASI Krishan Pal.
4. PE was closed on 19.12.2017. Statement of accused u/s 313 Cr.P.C was recorded on 13.02.2018 wherein accused opted not to lead defence evidence.
5. I have heard the arguments of Ld. APP for the State as well as on behalf of accused. I have also gone through the evidence on record.
REASONS FOR DECISION :
6. In order to establish the guilt of the accused, prosecution was under obligation to prove charge upon the accused.
7. The testimonies of prosecution witnesses is touched upon FIR No. 247/11 PS Jafrabad State V. Mohd. Asif (03.05.2018) Pg No. 2 of 15 in brief as follows:-
7.1 PW1 SI Vivek Sharma is the 1st IO of the case and deposed that on 13.08.2011 he was a member of investigation team headed by Inspector Malket Singh FIR no. 243/11 PS Jafrabad and on receipt of secret information, they went near Darbar Restaurant Maujpur where accused persons namely Md.
Asif and one another Md. Kamil, on seeing police party, tried to slip away but apprehended by them. PW-1 further deposed that accused Md. Asif was formally searched by him where accused Kamil was formally searched by SI Vikas Panwar and upon search of accused Md. Asif, one loaded country made pistol and cartridge was recovered. PW-1 further stated that he unloaded the pistol and prepared its sketch as Ex. PW1/A and took the measurement of the pistol, seized the same vide seizure memo Ex. PW1/B and thereafter, filled the FSL form and got registered the case FIR no. 247/11 Ex. PW1/C through Ct. Chattar Singh and seal after use was handed over to HC Pawan. PW-1 stated that he handed over the accused, sealed pulland, sketch, seizure memo etc. to ASI Krishan Pal who prepared site plan Ex. PW1/D at his instance. PW-1 has correctly identified the accused and case property as Ex. P-1, Ex. P-2 and Ex. P-3.
In cross-examination, PW-1 stated that he personally did not made any departure entry, the same may be made by IO of the concerned case. PW-1 admitted that accused Asif and Mohd. Kamil were accused in case FIR no.243/11. PW- 1 stated that he did not heard the secret information through secret informer directly and further stated that the spot and place FIR No. 247/11 PS Jafrabad State V. Mohd. Asif (03.05.2018) Pg No. 3 of 15 of secret information is a densely populated area and at public persons were present at the spot and at both the places public persons were present and voluntarily said that public persons were passes thereby. PW-1 further stated that IO did not gave any written notice to public persons who refused to join the investigation. PW-1 was unable to tell whether Darbar Chicken Corner Point was open or not, whether police team was having weapon or not and who first apprehended by the police officials. PW-1 stated that both the accused tried to fled away from the spot but later on both of them apprehended at about distance of 10-15 steps. PW-1 denied to the suggestion that accused Asif was lifted from his house two days prior to the alleged arrest and thereafter case property planted upon the accused and nothing was recovered from the possession of accused.
7.2 PW-2 Retired SI Babu Lal is the duty officer who received the rukka from Ct. Chatter Singh and on the basis of rukka he recorded the FIR no. 247/11 as Ex. PW2/B and endorsed the rukka as Ex. PW2/A. Nothing was asked from PW2 in cross-examination despite opportunity being granted.
7.3 PW-3 is Ct. Chatar Singh deposed that on 13.08.2011 he alongwith other police official was present in the area of PS in connection with the investigation of FIR no. 243/11, PS Jafrabad and at about 01.25 pm, when they reached Tent Wala School, one secret informer met with Inspector Malkiyat Singh and gave secret information to the effect that persons FIR No. 247/11 PS Jafrabad State V. Mohd. Asif (03.05.2018) Pg No. 4 of 15 involved in the above said FIR were standing near Darbar Chicken Point and waiting for their associates and they be apprehended, if raid is conducted. DW-1 further deposed on the lines of PW-1 and exhibited the following documents i.e. disclosure statement of accused Mohd. Asif Ex. PW3/A, arrest memo and personal search memo of accused Mohd. Asif as Ex. PW3/B and Ex. PW3/C. PW-3 has correctly identified the accused and case property.
In cross-examination, PW-3 deposed that he had not lodged any DD entry with regard to his arrival or departure on that day and IO might have lodged the same. PW-3 admitted that area where Darbar Chicken and spot is situated is a crowded place. PW-3 stated that IO asked three four passerby to join the raid when they were waiting for the arrival of accused and even after the apprehension of accused, but they refused to join the proceedings. PW-3 further stated that IO did not give any to those public person who did not join the raid and did not tell there address. PW-3 stated that he saw the accused coming at the spot from a distance of about 20 meters and they had ran away in the Gali situated by the side of Chicken Darbar and were apprehended after chasing them for about 5 to 7 steps. PW-3 was unable to tell that howmany papers were signed by him and which paper he signed in PS and which paper he signed at the spot. PW-3 denied to the suggestion that accused was lifted his house two days prior to present matter and thereafter, case property was planted upon the accused and falsely implicated in the present case.
FIR No. 247/11 PS Jafrabad State V. Mohd. Asif (03.05.2018) Pg No. 5 of 15 7.4 PW-4 is MHC(M) ASI Ombir Singh, who deposed that on 13.08.2011, SI Vivek Sharma deposited the sealed pullanda of case property in the malkhana and exhibited the copy of relevant entry in Reg. no. 10 as Ex. PW4/A. PW-4 further proved on record road certificate no.124/21 as Ex. PW4/B, receiving in this regard as Ex. PW4/C and acknowledgment of case acceptance as Ex. PW4/D. Nothing incriminating came out in the cross-
examination of PW-4 by ld. Defence Counsel.
7.5 PW-5 HC Rajesh Kumar deposited the case property at FSL Rohini and handed over the receiving in this regard to MCH(M).
Nothing was asked from PW-5 in cross-examination despite opportunity being granted.
7.6 PW-6 ASI Krishan Pal is the second IO of the case and deposed that on 13.08.2011 he alongwith with Ct. Chatar Singh went to the spot as the DO handed over to him copy of FIR and rukka of present matter for investigation where SI Vivek Sharma alongwith staff met him and produced sealed pullanda of case property, documents prepared by him and accused Asif. PW-6 carried out further investigation and prepared site plan Ex. PW1/D, arrest memo Ex. PW3/D, personal search Ex. PW3/C, and recorded the disclosure statement of accused Ex. PW3/A. PW-6 recorded the statement of PWs and deposited the case property in malkhana and sent the case property to FSL Rohini through Ct. Rajesh and filed challan and supplementary challan.
FIR No. 247/11 PS Jafrabad State V. Mohd. Asif (03.05.2018) Pg No. 6 of 15 In cross-examination, PW-6 deposed that spot was a public way and public persons were passing through there and he asked some public person to join the investigation but none agreed. He further deposed that information regarding arrest of accused was given to Mohd. Kasif through telephone and they left the spot at about 06.00 p.m.
8. In examination U/s 313 Cr.P.C. the accused stated that he was lifted from his house two days before the date of arrest as shown and he was kept at the PS and thereafter this false case registered against him. Accused further stated that a dacoity was occurred at his cousin's house in front of his house for which he had protested to purse the case and therefore, police has falsely implicated him in this case and case property was planted against him by the police and he is innocent. Accused opted not to lead DE.
10. Considering the points contended on behalf of accused, it is observed that there is no independent witness joined in the investigation. In State of Punjab v. Balbir Singh, AIR 1994 SC 1872, the Hon'ble Supreme Court held that:
"It therefore emerges that non-compliance 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 FIR No. 247/11 PS Jafrabad State V. Mohd. Asif (03.05.2018) Pg No. 7 of 15 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 non-compliance. It is well-settled 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]"
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 Procedure. Merely mentioning that public persons were requested to joined the investigation is of no avail. Name of those persons are not mentioned. Prosecution has not examined any other independent public witness. Further, it is noted that in his cross-examination IO/PW-6 ASI Krishan Pal stated that information of arrest of accused was given to Mohd. Kasif through telephone however perusal of arrest memo does not reveal any phone FIR No. 247/11 PS Jafrabad State V. Mohd. Asif (03.05.2018) Pg No. 8 of 15 number of Mohd. Kasif on which information was conveyed to him. Regarding the importance of joining independent witness during investigation in a case like the present one, reliance may be placed on the following case laws:
In a case law reported as Anoop Joshi Vs. State 1999(2) C.C. Cases 314 (HC), Hon'ble High Court of Delhi has observed as under:
"18. It is repeatedly laid down by this court that in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evident that no such sincere efforts have been made, particularly when we find that shops were open and one or two shopkeepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the shopkeepers had declined to join the raiding party, the police could have later on taken legal action against such shopkeepers because they could not have escaped the rigours of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC".
In case law Nanak Chand Vs. State of Delhi DHC 1992 CRI LJ 55 it is observed as under:-
"that the recovery is proved by three police officials who have differed on who snatched the Kirpan from FIR No. 247/11 PS Jafrabad State V. Mohd. Asif (03.05.2018) Pg No. 9 of 15 the petitioner and at what time. The recovery was from a street with houses on both sides and shops nearby. And, yet no witness from the public has been produced. Not that in every case the police officials are to be treated as unworthy of reliance but their failure to join witnesses from the public especially when they are available at their elbow, may, as in the present case, cast doubt. They have again churned out a stereotyped version. Its rejection needs no Napoleon on the Bridge at Arcola".
In 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 genuine 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 above authorities, I am of the considered opinion that prosecution has failed to show a genuine effort FIR No. 247/11 PS Jafrabad State V. Mohd. Asif (03.05.2018) Pg No. 10 of 15 to make a public witness with regard to the apprehension of accused and alleged recovery of Katta & cartridge from the possession of the accused.
9. Regarding entry and departure of police personnels, Chapter 22 rule 49 of the Punjab Police Rules, 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."
At this juncture, it would be relevant to refer to a case law reported as Rattan Lal V/s State, 1987 (2) Crimes 29 in which the Hon'ble Delhi High Court has been held as under:
FIR No. 247/11 PS Jafrabad State V. Mohd. Asif (03.05.2018) Pg No. 11 of 15 "if the investigating agency deliberately ignores to comply with the provisions of the Act the courts will have to 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."
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 have not been proved on record. This raises a doubt regarding the presence of police on the spot and all consequential event such as arrest, seizure, investigation etc.
10. Further observed that the seal after use was not handed over to any independent person. Seal was handed over to HC Pawan. It appears that no efforts was made to hand over the seal after use to independent person. 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 FIR No. 247/11 PS Jafrabad State V. Mohd. Asif (03.05.2018) Pg No. 12 of 15 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."
Hence, considering the legal position, the benefit of doubt should be given to the accused.
11. Now, I consider the observation made by Hon'ble Delhi High Court in Giri Raj v. State, 83 (2000) DLT 201. In the present case, the sketch and seizure memo of case property Ex.PW1/B and Ex.PW1/B respectively bear the number of FIR. At the time of the seizure, FIR number was not available and therefore, FIR number could not have figured on the seizure memo or on the sketch. The existence of FIR number on seizure memo suggests that the seizure memo was prepared after the registration of FIR and is therefore ante- time. It is not the case of prosecution that FIR number was later appended/mentioned upon these memos. This erodes the credibility of the witnesses who have stated that the sketch and seizure memo was prepared on the spot and before the registration of FIR. That being so, FIR No. 247/11 PS Jafrabad State V. Mohd. Asif (03.05.2018) Pg No. 13 of 15 the benefit arising out of such a situation must necessarily go to the accused.
12. Furthermore, it also came on record that 1 st IO/PW1 or accompanying police personnel PW3 did not give their personal search to any one before checking the accused. When the raiding members took the personal search of the accused then they must have offered their personal search to someone so that the possibility of false plantation of the property could be ruled out. In the present case no such precaution was taken by the IO and as such the possibility of false planting the case property upon the accused could not be ruled out.
In the judgment titled as S.L.Goswami v. State of M.P reported as 1972 CRI.L.J.511(SC) the Hon'ble Supreme Court held:
"...... In our view, the onus to proving all the ingredients 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 cases 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 FIR No. 247/11 PS Jafrabad State V. Mohd. Asif (03.05.2018) Pg No. 14 of 15 which has to be eliminated by the prosecution to establish the ingredients 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 rests upon the prosecution..........................."
13. In view of the above appreciation of evidence, no confidence is inspired to record any conviction in this case. It is the cardinal principle of criminal justice delivery system that the prosecution has to prove the guilt of accused beyond reasonable doubts. No matter how weak the defence of accused is, but the golden rule of criminal jurisprudence is that the case of the prosecution has to stand on its own legs. It is evident from the above analysis that prosecution has failed to establish that the accused committed the offence charged upon him.
14. Accordingly, the accused Mohd. Asif is acquitted in this case.
Directly Dictated on the
Computer System and (PRANJAL ANEJA)
Announced in the open Metropolitan Magistrate-01
Court on 03.05.2018 Shahdra District, Karkardooma
Courts, Delhi.
Digitally signed
by PRANJAL
ANEJA
PRANJAL Location:
karkardooma
ANEJA Courts, Delhi
Date:
2018.05.03
16:27:34 +0530
FIR No. 247/11 PS Jafrabad State V. Mohd. Asif (03.05.2018) Pg No. 15 of 15