Delhi District Court
Title : State vs Vishalludin on 25 June, 2010
IN THE COURT OF SH. SHAILENDER MALIK:
METROPOLITAN MAGISTRATE (NORTH)
TIS HAZARI COURTS: DELHI
Case No. / FIR No. : 59/04
Unique Case ID : 02401R5397752004
Title : State V/s Vishalludin
S/o Sh. Habibbudin
R/o Raini Kuan, Thokar No.7,
Vikas Marg, Shakar Pur, New
Delhi
Date of Institution : 21.02.04
Date of reserving judgment / Order : 25/06/10
Date of Pronouncement : 25/06/10
BRIEF FACTS OF THE CASE : -
1. Accused Vishaluddin S/o Sh. Habibbudin has been sent up to face trial for offence u/s 25 Arms Act with the allegations that on 07.02.04 at about 08.10 am at below Metro Station, near local bus stand, Delhi within the jurisdiction of PS Kashmere Gate, accused was found in possession of one buttondar knife without any permit or licence, as such committed the aforesaid offence. After usual investigation, charge sheet was filed.
2. Copies of charge sheet supplied to the accused, free of cost.
Considering the material available on the record, vide order dated 25.03.10 accused was charged for offence u/s 25 Arms Act, to which accused pleaded not guilty and claimed trial.
3. In order to substantiate the charge prosecution could examine four witnesses. PW1 is ASI Neeru, who proved the formal FIR Ex. PW1/A.
4. PW2 is HC Yashvir Singh, who has testified that on 07.02.04 I was posted at PS, Kashmere Gate as Constable. On that day he along with SI Ajit Kumar, SI N. C. Thakur, HC Vinod Kumar and HC Ramesh Chand were deputed on special checking at Ritz Cinema. Around 8.00 am, SI FIR No. 59/04 1 Harish Chand and Ct. Kushal Pal reached there who intimated them that they had received a secret information that some criminals who are involved in committing theft of the belongings of the passengers who used to board on "Tonga" and on resistance they are ready to use the knife. At around 8.10 am one Tonga came there where around 5/6 persons were boarding therein. On seeing them, the persons who were boarded on the tonga started to run here and there. PW2 further states that they chased them and one person namely Visaluddin stared to run towards Metro Station and they chased him. At Metro Station near local bus stand PW2 and SI Ajit Singh apprehended him and thereafter they conducted personal search and found one button actuated knife in his right side pocket of pant. Thereafter, SI Ajit Kumar prepared the sketch of button actuated knife in a plain white paper which is Ex. PW2/A. PW2 further states that SI Ajit Kumar had also measured the length and width of button actuated knife. The total length of knife was found as 24.2 CM, length of handle 13 CM, length of blade of knife 11.2 CM and width of blade of knife was found as 2.5 CM. Thereafter, SI Ajit Kumar put the knife in a white cloth and sealed the same with the seal of AK and sealed pullinda was taken into possession vide seizure memo Ex. PW2/B which was sealed with the seal AK. Thereafter, the seal of AK was handed over to PW2 by SI Ajit Kumar. PW2 further says that SI Ajit Kumar had also prepared a rukka for the purpose of registration of FIR. Rukka was handed over to PW2. I went to PS, got the case registered and retained to the spot with HC Mohd. Salim by whom the further investigation was conducted. SI Ajit Kumar handed over the accused along with sealed pullinda and relevant documents i.e. sketch memo and seizure memo to IO HC Mohd. Salim. IO prepared the site plan. Accused was arrested vide Arrest memo Ex. PW2/C and his personal search was conducted vide personal search memo Ex. PW2/D. Statement of PW1 was recorded by the IO. The knife is Ex. P1.
5. PW3 is HC Mohd. Salim, who has testified that on 07.02.04 he was posted at PS, Kashmere Gate as Head Constable. On that day he was FIR No. 59/04 2 present at the police station where at about 9.45 am, when Ct. Yashvir handed over to PW3 carbon copy of FIR and original rukka of the present case and the investigation of the present case was marked to him as per the orders of SHO of PS, Kashmere Gate. Thereafter, PW3 accompanied with Ct. Yashvir to the spot below Metro Station near Local Bus Stand, Kashmere Gate, Delhi where SI Ajit Kumar met PW3 who handed over me accused Visaluddin along with one sealed pullinda sealed with the seal of AK and sketch memo and seizure memo of the present case. PW3 further states that he prepared the site plan at the instance of SI Ajit Kumar which is Ex. PW3/A. Accused was arrested. Arrest memo and personal search memos was in this regard are already exhibited as PW2/C and PW2/D respectively. The notification issued by Delhi Administration was placed on file by PW3 which is Ex. PW3/B. Thereafter, accused was got medically examined at Aruna Asif Ali Govt. hospital. PW3 further states that thereafter, we returned to the police station with accused and case property. Case property was deposited in malkhana by PW3. PW3 recorded statement U/s 161 Cr.P.C. of Ct. Yashvir. The accused was produced in the court on the same day i.e. 07.02.04 and the Hon'ble court was pleased to send the accused in J/C. PW3 completed the investigation prepared the charge sheet and filed the same in the court through SHO.
6. PW4 is SI Ajeet Kumar, who has testified that on 07.02.04 he was posted at PS, Kashmere Gate as SI. On that day he along with HC Yashvir Singh, SI N. C. Thakur, HC Vinod Kumar and HC Ramesh Chand were deputed on special checking at Ritz Cinema. Around 8.00 am, SI Harish Chand and Ct. Kushal Pal reached there who intimated them that they had received a secret information that some criminals who are involved in committing theft of the belongings of the passengers who used to board on "Tonga" and on resistance they are ready to use the knife. At around 8.10 am one Tonga came there where around 5/6 persons were boarding therein. On seeing us, the persons who were boarded on the tonga started to run here and there. They chased them and one person namely Visaluddin stared to run towards Metro Station and we chased him. At FIR No. 59/04 3 Metro Station near local bus stand PW4 and HC Yashbir Singh apprehended him whose name upon inquiries revealed to be Vishaluddin and thereafter they conducted personal search where they found one button actuated knife in his right side pocket of pant. Thereafter, PW4 prepared the sketch of button actuated knife in a plain white paper which is already Ex. PW2/A. PW4 had also measured the length and width of button actuated knife. The total length of knife was found as 24.2 CM, length of handle 13 CM, length of blade of knife 11.2 CM and width of blade of knife was found as 2.5 CM. Thereafter, PW4 put the knife in a white cloth and sealed the same with the seal of AK and sealed pullinda was taken into possession vide seizure memo already Ex. PW2/B which was sealed with the seal AK. Thereafter, the seal of AK was handed over to HC Yashbir Singh by PW4. PW4 further states that he had also prepared a rukka Ex. PW4/A for the purpose of registration of FIR. Rukka was handed over to HC Yashbir Singh and he went to PS, got the case registered and returned to the spot with HC Mohd. Salim by whom the further investigation was conducted. PW4 handed over the accused along with sealed pullinda and relevant documents i.e. sketch memo and seizure memo to IO HC Mohd. Salim. Thereafter IO prepared the site plan already Ex. PW3/A at the instance of PW4. The statement of PW4 was recorded by the IO.
7. Upon completion of prosecution evidence all the incriminating evidence were put to the accused in statement of accused recorded u/s 281/313 Cr. PC, in which while denying the evidence accused has taken the plea of false implication.
8. No evidence was led in defence.
9. I have heard Ld. APP for state and counsel for accused and have gone through the case file very carefully. Ld. APP for state submits that in the present case accused is liable to be convicted for the offence U/s 61 Ex. Act on the basis of depositions made by various prosecution witnesses. On the other hand, Ld. Counsel for accused submits that accused has been falsely implicated in this case and acquittal of the FIR No. 59/04 4 accused has been prayed for.
10. I have given a considered thought to the rival submissions made by Ld. APP for state and Ld. Counsel for accused keeping in view the material available on the judicial file.
11. Having heard the submissions at bar and having gone through the record. It is to note that evidence of PW2 HC Yashvir Singh and PW4 SI Ajeet Kumar are very consistent and cogent regarding recovery of illicit knife from the possession of accused. As per PW2 and PW3, when they were on patrolling duty, a secret informer met them and informed that some criminals are coming on a tonga. PW2 and PW3 have also testified that upon receipt of said secret information, they tried to join 4/5 persons of public in the raiding party, but all of them left after expressing their inability and because of shortage of time and no notice could be given to them and PW2 and PW4 apprehended the accused, who was found having possession of one button actuated knife. In such factual background, when the evidence of PW2 and PW4 is well established regarding their effort to join the independent witness at the time of apprehension of accused and PW2 and PW3 have specifically testified regarding joining of independent witness at the time of arrest of accused. In such circumstance, their evidence cannot be brushed aside only on the technical ground that independent witness was not joined. No doubt joining of independent witness is one of the material requirement to authenticate the recovery, but in this case both witness PW2 and 4 has stated that they tried to join the independent witness, but all of them left after expressing their inability. It is a normal human conduct that normally public persons are not much inclined to join the police proceedings. In such circumstance, non-joining of independent witness is to be appreciated in the light of evidence of police witnesses. In this case, police witnesses have cogently and consistently gave evidence regarding the recovery, which to my mind is believable. Moreover, nothing could come out in the cross-examination of PW2 and PW4 to render their testimony to be unreliable. Therefore, I find from the evidence recorded on the record. The recovery of button FIR No. 59/04 5 actuated knife is well established. Therefore, I hold the accused guilty for offence U/s 25 Arms Act. Let he be heard on the point of sentence.
Announced in open
court on 25.06.10 (Shailender Malik)
Metropolitan Magistrate (North)
Tis Hazari Courts, Delhi
FIR No. 59/04 6
FIR No. 59/04
PS: Kashmere Gate
25.06.10
Order on point of Sentence
Present : Ld. APP for State
Convict with counsel Sh. S.B. Shaily
It is argued by Ld. APP for State on the point of sentence that accused should be sentenced appropriately.
On the other hand Sh. S.B. Shaily, Ld. Counsel for the accused has submitted that accused is a young man and the sole bread earner in his family. It is also submitted that accused has spent about 3 months in J/C. It is submitted that keeping in view the period of detention and his circumstance in his family, a sympathetic approach may be taken.
Having heard the submissions at bar and having considered the fact that accused is a young man and very poor person and has also responsibility to look after his family. Therefore, taking the above said facts as special reasons, I sentence the accused for imprisonment for period already undergone while giving benefit U/s 428 Cr.PC.
Let copy of judgment and order on sentence be supplied to accused free of cost. File be consigned to record room.
Announced in open
court on 25.06.10 (Shailender Malik)
Metropolitan Magistrate (North)
Tis Hazari Courts, Delhi
FIR No. 59/04 7