Delhi District Court
State vs Md Kasim@Wasim on 5 December, 2023
IN THE COURT OF MS. BHARTI BENIWAL, METROPOLITAN
MAGISTRATE-11, DWARKA COURT, NEW DELHI
FIR No.385/2023
PS Janakpuri
State Vs. Md.Kasim @ Wasim
U/s 25/54/59 Arms Act
CNR No. : DLSW020SJ7042023
Crl. Case No. : 12294/2023
Date of institution of the case : 30.10.2023
Date of commission of offence : 28.09.2023
Name of the complainant : Ct.Arvind
Name of accused and address : Md.Kasim @ Wasim
S/o Sh.Md.Salim @
Saleem
R/o A-565, JJ Colony,
Pankha Road, Uttam
Nagar, New Delhi
Offence complained of : U/s 25/54/59 Arms Act
Plea of the accused : Pleaded not guilty.
Ld. APP for the State : Sh.Amit Sehrawat
Final order : Acquital
Date of judgment : 05.12.2023
FIR No.385/2023
State vs. Md.Kasim @ Wasim Page No. 1 of 14
JUDGMENT
1. The brief facts of the case of the prosecution are that on 28.09.2023 at about 09 : 30 PM at District Park, Janakpuri, Delhi, accused Md.Kasim @ Wasim was found in possession of one button operated knife and after completion of the investigation, charge-sheet was filed against the accused u/s 25/54/59 Arms Act.
2. On receipt of chargesheet, cognizance of offence was taken and accused was summoned. After supply of copy of chargesheet, a formal charge was framed u/s 25/54/59 of Arms Act against the accused to which he pleaded not guilty and claimed trial.
3. Prosecution has examined 3 witnesses to prove its case.
4. Prosecution examined ASI Palwinder Kaur as PW1. He deposed that on 28.09.2023, he was posted as a duty Officer from 8P.M. to 8 A.M. On that day, Ct. Arvind had come to the P.S. at about 11 P.M. with the Rukka and he had informed the SHO regarding the same and then registered the FIR on the same. Endorsement on rukka is Ex. PW1/A. Copy of FIR is Ex. PW 1/B and certificate u/s 165B of Indian Evidence Act is Ex. PW1/C. FIR No.385/2023 State vs. Md.Kasim @ Wasim Page No. 2 of 14 Witness was cross examined by ld. Defence counsel wherein he stated that he does not have any personal knowledge of the present FIR.
5. Prosecution examined Ct. Arvind as PW2. He deposed that on 28.09.2023, he was on patrolling duty in B1, B3 and other area in Janakpuri. At about 9 : 20 P.M. when he reached at the District Park, Janakpuri, they saw one person sitting at near the electricity pole. On seeing them, he started walking away fastly. They got suspicion of his conduct, therefore, he chased him and apprehended him. He conducted his prima facie search and found one button operated knife in right pocket of the pant of the accused. Thereafter, he informed the duty Officer P.S. Janakpuri telephonically regarding the same. After around 10 Minutes IO HC Vikram came to the spot and he handed over the accused and the recovered knife to the IO. Thereafter, IO recorded his statement which is Ex.PW2/A bearing his signature at point 'A'. IO prepared sketch memo of the recovered knife which is Ex.PW2/B bearing his signature at point 'A'. The length of the knife was 23.5 CM. Length of the but was 12.5 CM. Length of the blade was 11 CM and breadth of the Blade was 2.6 CM. Thereafter, IO seized the recovered knife vide seizure memo Ex. PW2/C bearing his signatures at point 'A'. IO further prepared Tehrir and handed over the same to him for registration of FIR. He came back to the spot around 11 P.M. with the copy of FIR and original Tehrir and handed over the same to the IO. Thereafter, IO prepared site plan at his instance which is Ex. PW2/D bearing his signature at point 'A'. IO formally arrested FIR No.385/2023 State vs. Md.Kasim @ Wasim Page No. 3 of 14 the accused vide arrest memo Ex. PW2/E bearing his signature at point 'A' and conducted his personal search vide personal search memo Ex. PW2/F bearing his signature at point 'A'. IO further recorded disclosure statement of the accused which is Ex.PW2/G bearing his signature at point 'A'. Thereafter, as per the disclosure made by the accused in his disclosure statement Ex.PW2/G, they recovered one scooty Jupiter of Blue colour from Ganda Nala Bus Stand and two mobile phone company Realme and Redmi which he had hidden in the said scooty which were found to be stolen property from P.S. Janakpuri. IO seized the scooty and the 2 mobile phone vide seizure memo Ex.PW2/H bearing his signature at point 'A'. Thereafter, the accused was taken for Medical examination by HC Maange Ram. The case property was deposited in the Malkhana at P.S. Janakpuri. Accused was present in the court and he was correctly identified by the witness.
MHC(M) produced one white pullanda bearing the seal of MR. The seal was broken and one button operated knife was taken out which was correctly identified by the witness.
6. Witness was cross examined by ld. Defence counsel wherein he stated that there are no fixed duty hours while patrolling. That he did not make any DD Entry regarding his departure. The distance between the spot and place of incident is about 300-400 Mtr. He was doing patrolling on Govt. Motorcycle FIR No.385/2023 State vs. Md.Kasim @ Wasim Page No. 4 of 14 bearing registration no.DL1SAF2569. The spot of the incident was not crowded at the time of the incident. There were few people present in the park at the time of the incident. IO had asked 2-3 public persons to join the investigation but none agreed to join the investigation citing their personal reasons. All the proceedings was conducted by the IO at the spot. There was street light at the spot. The accused was arrested at about 11:10 P.M. He had gone to the P.S. for registration of FIR on the government motorcycle. He had finally left the spot at about 11:45 P.M. He did not know how the case property was taken to the P.S. No CCTV cameras were installed at the spot.
7. Prosecution examined HC Vikram Singh as PW3. He deposed that on 28.09.2023, he was on duty from 8 P.M. to 8 A.M. On that day, he received a DD No.157A. Thereafter, he reached at the spot at the District Park, Janakpuri. Ct.Arvind handed over the accused and recovered knife to him. Thereafter, he recorded the statement of Ct.Arvind Ex.PW2/A bearing his signatures at point 'B'. He prepared sketch memo of the recovered knife which is Ex.PW2/B bearing his signatures at point 'B'. The length of the knife was 23.5 cm, Length of the butt was 12.5 cm, length of the blade was 11 cm and breadth of the Blade was 2.6 cm. Thereafter, he seized the recovered knife vide seizure memo Ex.PW2/C bearing his signatures at point 'B'. That he further prepared Tehrir which is Ex.PW3/A bearing his signatures at point 'A' and handed over the same to Ct.Arvind for registration of FIR. He came back to the spot around 11 P.M with FIR No.385/2023 State vs. Md.Kasim @ Wasim Page No. 5 of 14 the copy of FIR and original Tehrir and handed over the same to him. Thereafter, he prepared site plan at the instance of Ct.Arvind which is Ex.PW2/D bearing his signature at point 'B'. That he formally arrested the accused vide arrest memo Ex.PW2/E bearing his signature at point 'B' and conducted his personal search vide personal search memo Ex.PW2/F bearing his signature at point 'B'. That he further recorded disclosure statement of the accused which is Ex.PW2/G bearing his signatures at point 'B'. Thereafter, as per the disclosure made by the accused in his disclosure statement Ex.PW2/G, he recovered one scooty Jupiter of Blue colour from Ganda Nala Bus Stand and two mobile phone company Realme and Redmi which he had hidden in the said scooty which were found to be stolen property from P.S. Janakpuri. He seized the scooty and the 2 mobile phone vide seizure memo Ex.PW2/H bearing his signatures at point 'B'. Thereafter, the accused was taken for Medical examination by HC Maange Ram. The case property was deposited in the Malkhana by him at P.S. Janakpuri. Accused was present in court and he was correctly identified by witness. MHC(M) produced one white pullanda opened in testimony of PW2 and the same was correctly identified by the witness.
8. Witness was cross examined by ld. Defence counsel wherein he stated that he did not make any DD Entry regarding his departure. The distance between the spot and place of incident is about 400-500 Mtr. He went to the spot on his private Motorcycle. He did not remember the registration number of the FIR No.385/2023 State vs. Md.Kasim @ Wasim Page No. 6 of 14 said motorcycle. The spot of the incident was not crowded at the time of the incident. There were 4-5 people roaming around at the spot. He had asked 2-3 public persons to join the investigation but none agreed to join the investigation citing their personal reasons. No notice was served due to paucity of time. He had reached at the spot at around 9:30 to 9:35 P.M. He had conducted all the proceedings and investigation. Ct. Arvind left the spot with original Tehrir around 10 : 40 P.M. Ct. Arvind had gone to the P.S. in E-Rikshaw. There was street light at the spot. The accused was arrested at about 11 : 10 P.M. No CCTV cameras were installed at the spot.
9. Vide separate statement recorded u/s 294 Cr.P.C, accused had admitted the documents MHC(M) with register no.19 Ex.A1 and Concerned Clerk Office Home (General) Delhi Administration, Delhi with original DAD Notification No.F- 13/451/179 Home (General) Dt.29.10.1980. Hence the above documents were ordered to be read in evidence without its formal proof.
10. No other witness was examined by prosecution and hence, PE was closed vide order dated 01.12.2023.
11. Statement of accused under Section 313 Cr.P.C. was recorded wherein the entire incriminating evidence was put to him. According to him, he has been falsely implicated in the FIR No.385/2023 State vs. Md.Kasim @ Wasim Page No. 7 of 14 present case. He further stated that he was lifted from his colony situated at Pankha Road by HC Lokesh and HC Tejender. That he had an arguments with the abovementioned officers due to which he had been wrongly framed in the present case. Accused chose not to lead any evidence in his defence and hence, the matter was put up for final arguments.
12. Final arguments were thereafter heard on behalf of State as well as the accused.
13. After hearing Sh.Amit Sehrawat, Learned Assistant Public Prosecutor for the state and Ms.Deepti, Learned counsel for the accused and having gone through the case file carefully and meticulously, it is observed by the court that it is the case of prosecution that on the fateful day accused was found in possession of one buttondar knife. The court is of the view that to prove the charge against the accused, the prosecution is required to prove the allegation beyond reasonable doubt.
14. The relevant portion of Arms Act is reproduced as under:
Section 25: Punishment for certain offences:
(1) whoever-
(a) Manufactures, sells, transfers, converts, repairs, tests or proves, or exposes or offers for sale or transfer, or has in his possession for sale, FIR No.385/2023 State vs. Md.Kasim @ Wasim Page No. 8 of 14 transfer, conversion, repair, test or proof, any arms or ammunition in contravention of section 5; or
(b) Shortens the barrel of a firearm or converts an imitation firearm into a firearm in contravention of section 6; or 2[***]
(c) bring into, or takes out of, India, any arms or ammunition of any class or description in contravention of section 11, shall be punishable with imprisonment for a term which not be less than three years but which may extend to seven years and shall also be liable to fine.
15. As per the prosecution case, it has been stated by PW3 IO/HC Vikram in his cross examination that he had asked public persons to join the investigation but they all refused to join the investigation citing one reason or the other. The fact is further corroborated by the testimony of PW2/complainant Ct.Arvind. Thus, the prosecution has failed to prove that any serious effort was made by PW1 and PW2 to join public witnesses in the proceedings. It is a well settled proposition that non-joining of public witness shrouds doubt over the fairness of the investigation by police.
16. In case law reported as "Anoop Joshi Vs. State"
1992 (2) C.C. Cases 314 (HC), High Court of Delhi had observed as under:-
"18. It is repeatedly laid down by this Court in such cases it should be shown by the police that FIR No.385/2023 State vs. Md.Kasim @ Wasim Page No. 9 of 14 sincere efforts have been made to join independent witnesses. In the present case, it is evidence that no such sincere efforts have been made, particularly when we find that shops were open and one or two shop-keepers 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".
17. In a case law reported as "Roop Chand Vs. The State of Haryana" 1999 (1) C.L.R. 69, the Punjab & Haryana High Court held as under:
"3. I have heard the learned counsel for the parties and gone through the evidence with their help. The recovery of illicit liquor was effected from the possession of the petitioner during noon time and it is in the evidence of the prosecution witnesses that some witnesses from the public were available and they were asked to join the investigation. The explanation furnished by the prosecution is that the independent witnesses were asked to join the investigation but they refused to to so on the ground that their joining will result into enmity between them and the petitioner".FIR No.385/2023 State vs. Md.Kasim @ Wasim Page No. 10 of 14
"4. It is well settled principle of the law that the Investigating agency should join independent witnesses at the time of recovery of contraband articles, if they are available and their failure to do so in such a situation casts a shadow of doubt on the prosecution case. In the present case also admittedly the independent witnesses were available at the time of recovery but they refused to associate themselves in the investigation. This explanation does not inspire confidence because the police officials who are the only witnesses examined in the case have not given the names and addresses of the persons contacted to join it is a very common excuse that the witnesses from the public refused to join the investigation. A police officer conducting investigation of a crime is entitled to ask anybody to join the investigation and on refusal by a person from the public the Investigating Officer can take action against such a person under the law. Had it been a fact that the witnesses from the public had refused to join the investigation, the Investigating Officer must have proceeded against them under the relevant provision of law. The failure to do so by the police officer is suggestive of the fact that the explanation for non-joining the witnesses from the public is an after thought and is not worthy of credence. All these facts taken together make the prosecution case highly doubtful".
18. Non joining of public witnesses despite availability casts a doubt on the fairness of the investigation. Reliance is placed on FIR No.385/2023 State vs. Md.Kasim @ Wasim Page No. 11 of 14 paragraph 6 of the judgment in Pawan Kumar v. The Delhi Administration, 1989 Cri.L.J. 127, wherein the Hon'ble High Court of Delhi had observed as under:
" ... According to Jagbir Singh, he did not join any public witness in the case while according to Kalam Singh, no public person was present there. It hardly stands to reason that at a place like a bus stop near Subhas Bazar, there would be no person present at a crucial time like 07.30 p.m. when there is a lot of rush of commuters for boarding the buses to their respective destinations. Admittedly, there is no impediment in believing the version of the Police officials but for that the prosecution has to lay a good foundation. At least one of them should deposed that they tried to contact the public witnesses or that they refused to join the investigation. Here is a case where no effort was made to join any public witness even though number of them were present. No plausible explanation from the side of the prosecution is forthcoming for not joining the independent witnesses in a case of serious nature like the present one. It may be that there is an apathy on the part of the general public to associate themselves with the Police raids or the recoveries but that apart, at least the I.O. should have made an earnest effort to join the independent witnesses. No attempt in this direction appears to have been made and this, by itself, is a circumstance throwing doubt on the arrest or the recovery of the knife from the person of the accused."FIR No.385/2023 State vs. Md.Kasim @ Wasim Page No. 12 of 14
19. This Court is, however, conscious that the prosecution case cannot be thrown out or doubted on the sole ground of non- joining of public witnesses as public witnesses keep themselves away from the Court unless it is inevitable, as has been held in Appabhai and another v. State of Gujarat, AIR 1988 SC 696. However, in the present case, it is not only the absence of public witnesses which raises a doubt on the prosecution but there are other circumstances too, as discussed hereinafter, which raise suscpicion over the prosecution version.
20. Further, the seal remained with a police official only and it has not been proved that the seal was handed over to any other independent public person and therefore, the possibility of sample being tempered with cannot be ruled out. Reference may be made to the judgment of Subeg Singh v. State of Haryana, reported as 1992(3) RCR (Criminal) 596. In the judgment titled as Karambir v. State of Delhi reported as 1997 JCC 520 it has been held that absence of proof that the specimen impression of the seal was deposited with MHCM(M) along with case property results in miscarriage of justice and is fatal to the prosecution.
21. The incident took place at 09 : 30 PM at District Park, Janakpuri, which is a very crowded area, despite that, no sincere efforts were made by any police official to join public person in the investigation. No DD entry was made either by PW1 or PW2 stating their departure from PS Janakpuri. It is incumbent upon the police official to regularly maintain the depature and arrival FIR No.385/2023 State vs. Md.Kasim @ Wasim Page No. 13 of 14 entry in the PS. However, the same was not done by them in the present case and prosecution has failed to explain the reasons about the missing departure entry.
22. Thus, in view of the foregoing analysis, this Court is of the considered opinion that the benefit of doubt ought to be granted to the accused, who is entitled to be exonerated of the charges against him in the present case. The accused is hereby acquitted of the offence punishable under Section 25 of Arms Act.
Accused be set at liberty.
Pronounced in open Court on this 5st Day of December, 2023. This judgment consists of 14 pages and each pages are signed by the undersigned.
(BHARTI BENIWAL) Metropolitan Magistrate-11 South West District, Dwarka Courts New Delhi FIR No.385/2023 State vs. Md.Kasim @ Wasim Page No. 14 of 14