Delhi District Court
State vs Asgar Ali on 21 June, 2012
IN THE COURT OF SH. MUNEESH GARG,
METROPOLITAN MAGISTRATE
KARKARDOOMA COURTS, DELHI
State versus Asgar Ali
FIR No. 171/03
U/s 25 Arms Act
PS Geeta Colony
JUDGMENT
a. Unique ID Number of the case : R0168562003 b. Sl. No. of the case : 113/3 c. Date of institution : 10.12.08 d. Date of commission of offence : 29.07.03 e. Name of complainant : SI Harpal Singh f. Name & address of accused person : Asgar Ali S/o Akhtar Ali R/o E-337, Jawahar Mohalla, Shashi Garden, Trilok Puri, Delhi.
g. Offence complained of : U/s 25 Arms Act h. Plea of accused : Pleaded Not Guilty i. Arguments heard on : 14.05.12 j. Final order : Acquitted k. Date of Judgment : 21.06.12 BRIEF STATEMENT OF REASONS FOR DECISION
01. Briefly stated the story of the prosecution is that on 29.07.2003 at about 9:00 am at opposite Taj Enclave, Geeta Colony, Delhi, within the jurisdiction of PS Geeta Colony, accused was found in possession of one buttondar knife in contravention of notification issued by Delhi Administration and thereby committed an offence u/s 25 Arms Act.
FIR No. 171/03 Page No. 1/1002. After filing of the police report, cognizance of offence under section 25 Arms Act was taken by my 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 09.08.2005, 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 Inspector Harpal Singh deposed that on 29.07.2003, he was posted as SI at PS Geeta Colony. He further deposed that he alongwith Ct. Yashveer and Ct. Prem Pal were on patrolling duty at Taj Enclave, Geeta Colony, Delhi. At about 08:30 p.m. they saw three boys coming from Pushta Road. Two boys were holding one TV and one boy was holding TV on his shoulder. On seeing them, they turned back. On suspicion, they stopped the accused persons. From the search of accused Asgar one buttondar knife was recovered. He prepared the sketch Ex. PW-1/A. He sealed the knife in a pullanda with a seal of HPS and seized vide memo Ex. PW-1/B. Seal after use was handed over to Ct. Yashveer. He prepared rukka Ex. PW-1/C and gave the same to Ct. Yashveer who got the case registered vide FIR Ex. PW-1/D. HC Inderpal did further investigation to prepare the site plan Ex. PW-1/E at his instance. Accused was personally searched vide memo Ex. PW-1/F and arrested vide arrest memo Ex. PW-1/G. PW-1 identified the case property Ex. P1.
FIR No. 171/03 Page No. 2/1005. PW 2 HC Satya Prakash deposed that on 29.07.03, he was posted as Duty Officer at PS Geeta Colony. He registered the FIR Ex. PW-1/D and made endorsement on the rukka Ex. PW2/B.
06. PW 3 ASI Inderpal Yadav deposed that on 29.07.03 he was posted as HC of PS Geeta Colony. On that day the investigation of the present case was marked to him. He alongwith Ct. Yashveer reached at the spot. He further deposed that first IO SI Harpal Singh handed over the accused Ajgar Ali present in the Court correctly identified alongwith sealed pullanda sealed with the seal of HPS and other documents prepared by him. He prepared the site plan and recorded the statement of witnesses. Thereafter, he arrested the accused vide arrest memo PW-1/F. Case property was deposited in the Malkhana.
07. PW 4 Ct. Prem Pal is also the witness to the recovery, seizure and arrest of the accused. He identified the 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.
09. I have gone through the rival submissions of both the parties as FIR No. 171/03 Page No. 3/10 well as material on record carefully.
10. As per the prosecution version, there is three recovery witnesses PW-1 Inspector Harpal Singh, PW-4 Ct. Prempal and Ct. Yashveer. PW-1 Inspector Harpal Singh deposed in his testimony that on 29.07.03 he alongwith PW4 Ct. Prempal and Ct. Yashveer were on patrolling duty, 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 been complied with by prosecution. As per the prosecution version, at FIR No. 171/03 Page No. 4/10 the time of the apprehension of the accused with one buttondar knife in his possession, PW-1 Inspector Harpal Singh, PW-4 Ct. Prempal and Ct. Yashveer 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. 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 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.FIR No. 171/03 Page No. 5/10
11. PW 1 Inspector Harpal Singh deposed that on 29.07.03 at about 08:30 pm, he had seen the accused coming from the side of Pushta Road and on seeing him, accused took reverse turn. On suspicion, he apprehended the accused and on his checking, one button actuated knife was recovered. From his testimony, it is clear that he did not make any attempt to join public witnesses prior to recovery of the knife. PW-1 deposed in his cross examination that spot was a public place and he had asked few person to join the investigation but none agreed. 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. IO has also not made any public witnesses of the recovery of the alleged knife despite the fact that alleged spot was a residential area. In this regard, the explanation of the PW 3 second IO ASI Inderpal Yadav that none of the public persons agreed to join the investigation. The explanation given by the prosecution witness 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 FIR No. 171/03 Page No. 6/10 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 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:
FIR No. 171/03 Page No. 7/10"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. 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.
15. 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 FIR No. 171/03 Page No. 8/10 Arms Act framed against him. Accused be set at his liberty if he is not 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 21.06.12 METROPOLITAN MAGISTRATE
KARKARDOOMA COURTS, DELHI
FIR No. 171/03 Page No. 9/10
State versus Asgar Ali
FIR No. 171/03
U/s 25 Arms Act
PS Geeta Colony
21.06.2012
Present: Ld. APP for the State.
Accused on bail with counsel Sh. Roop Kishore from Legal Aid.
Clarification addressed.
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 entitles. File be consigned to record room after compliance.
(Muneesh Garg) MM/KKD/21.6.2012 FIR No. 171/03 Page No. 10/10