Delhi District Court
3.Title State vs . Yunus on 18 January, 2023
THE COURT OF SHRI RUPINDER SINGH DHIMAN
METROPOLITAN MAGISTRATE-01, NORTH EAST DISTRICT,
KARKARDOOMA COURTS, DELHI
1.FIR No. 605/2022, PS Bhajanpura
2.Unique Case no. 4655/22
3.Title State Vs. Yunus
3(A). Name of complainant Ct. Ravi
3(B). Name of accused Yunus
S/o Mohd, Yusuf
R/o H. No. 93, Gali no. 25, 25 Futa
Road, Old Mustafabad, Bhajanpura,
Delhi
4.Date of institution of challan 01.11.2022
5.Date of Reserving judgment 12.01.2023
6.Date of pronouncement 18.01.2023
7.Date of commission of offence 03.10.2022
8.Offence complained of U/s 25 Arms Act 1959
9.Offence charged with U/s 25 Arms Act 1959
10.Plea of the accused Pleaded not guilty.
11.Final order Acquitted
12. Date of receiving of judicial 01.11.2022
file in this court
JUDGMENT
1. The present prosecution case was put into action with the complaint of the complainant, Ct. Ravi stating that on 03.10.2022 at about 10.20 pm, while he was on patrolling duty and present at Shaheed Bhagat Singh Park, Delhi, accused was found in conscious possession of one button actuated knife in contravention of notification issued by Delhi Administration dt.
State Vs. Yunus Page 1 of 11 FIR No.: 605/2022 17.02.2019 and thereby committed offence punishable u/s 25 Arms Act, 1959 and within the cognizance of this Court.
2. On the basis of the complaint, FIR no 605/2022 U/s 25 Arms Act was registered. After completion of investigation, chargesheet was filed U/s 25 Arms Act.
3. On 01.11.2022, cognizance was taken and the accused was summoned. Thereafter, charge for the offence punishable u/s 25 Arms Act was framed against the accused on 15.11.2022 to which he pleaded not guilty and had claimed trial.
4. Prosecution had named total 6 witnesses in the charge sheet. However, accused did not dispute the registration of FIR and DD no. 99 A dated 03.10.2022 which was exhibited as Ex. D-1 and Ex. D-2 respectively. Further accused also did not dispute the DAD notification, which was exhibited as Ex. D-3. In view of statement of accused u/s 294 Cr.P.C., the corresponding witness was dropped. Further, Ld. APP for the State dropped HC Kapil on 02.01.2023 for the sake of avoiding repetition of evidence on same aspect as PW 1 /Ct. Ravi had already been examined. Therefore, only 4 witnesses were examined by the prosecution.
5. PW-1 is Ct. Ravi. He has deposed that on 03.10.2022, he was posted as Constable at PS Bhajanpura and doing the patrolling duty. At around 10.20 p.m, he saw one person standing at the gate of Shaheed Bhagat Singh Park. The said person was overpowered and apprehended on suspicion with the help of HC Kapil. During his personal search, one button actuated knife was recovered from his possession which he was carrying in his right pocket of the pant. He then gave intimation to the PS. Then ASI Siddharth came to the spot. He handed over the accused and the case property to ASI Siddharth. ASI Siddharth interrogated the accused and prepared the sketch State Vs. Yunus Page 2 of 11 FIR No.: 605/2022 memo of the knife which is Ex. PW1/A. The said knife was seized in a white pulinda and sealed vide seizure memo Ex. PW1/B. IO then recorded his statement which was Ex. PW1/C and he then prepared the Tehrir and handed over the same to him for getting the FIR registered. Then he went to the PS and came back to the spot after getting the FIR registered. He handed over the copy of the FIR and the tehrir to IO ASI Siddharth. Thereafter, accused was arrested vide arrest memo Ex PW1/D. His personal search was also made by the IO vide search memo Ex. PW1/E. IO also recorded the disclosure statement of accused Ex. PW1/F. IO then prepared the site plan at his instance which is Ex. PW1/F. Then the witness correctly identified the accused present in the Court as the one from whom the buttondar knife was recovered. Thereafter the case property was opened with the permission of the court and the witness identified the case property as the knife which was recovered from the possession of the accused. The case property was exhibited as P1. The witness was then cross-examined by counsel for accused Ms. Asha Kumari. In his cross- examination, the witness deposed that place of incident is a crowded spot. He conceded that no public witness joined the investigation. He also admitted that no notice was issued in writing to the public persons to join the investigation nor their names noted down though 2-3 persons were present. He also stated that he did not offer his personal search to the accused before searching him. He also stated that there is no CCTV Cameras present around at the place of incident. He denied the suggestion that no recovery was affected from the accused. He also stated that IO had prepared the site plan with plastic scale under the street light though no street light has been shown in the site plan.
6. PW-2 is HC Rajeev. He produced the register number 19 and stated that case property i.e. buttondar knife and motorcycle were deposited in the State Vs. Yunus Page 3 of 11 FIR No.: 605/2022 malkhana vide mud number 4316/2022 by ASI Siddharth. Detail of the said entry is Ex. PW2/1. In his cross examination, he denied that the entry is ante dated or ante time.
7. PW-3 is HC Vikash. He has deposed that on 30.10.2022 (sic 03.10.2022), he was posted as HC at PS Bhajanpura and his duty hours were from 08.00 p.m. to 08.00 a.m. DD No. 87 A and he joined investigation with ASI Sidharth. Thereafter, he went to the spot with IO where they met Ct. Ravi. Ct. Ravi produced accused Yunus and narrated the entire incident. He identified the accused present in the Court and deposed that IO recorded statement of Ct. Ravi. He also deposed regarding preparation of tehrir, seizure of case property i.e. buttondar knife and registration of FIR on similar terms as Ct. Ravi/PW 1. In his cross examination, he stated that IO had made the departure entry. He conceded that the spot is a crowded area but no public person was stopped by Ct. Ravi. He further deposed that site plan was prepared with the light of mobile phone under street light by the IO.
8. PW-4 is ASI Siddharth. He has deposed that on 03.10.2022, he was posted at PS Bhajanpura. On the said day, he received information from DO regarding apprehension of accused with buttondar knife vide DD no. 87 A. Hence, he reached the spot alongwith PW 3. Thereafter, PW1 produced the accused and handed over the case property i.e. buttondar knife and motorcycle to him. Then he interrogated the accused and prepared the sketch memo of the buttondar knife which is already Ex. PW1/A. Then the said knife was seized after preparing a pulinda in a white cloth vide seizure memo Exhibit PW1/B and sealed with seal of SS. The said seal was handed over to PW 1. Then, he recorded the statement of Constable Ravi/PW 1 which is Ex. PW1/C and prepared tehrir which was then exhibited as PW4/A. He handed over Ex. PW4/A to PW 1 for getting State Vs. Yunus Page 4 of 11 FIR No.: 605/2022 the case registered at PS Bhajanpura. After getting the case registered, constable Arun/PW 1 returned to the spot vide DD no. 99 A Ex. PW4/C and handed over the original Tehrir and the copy of the FIR to him. Thereafter he prepared the site plan exhibit PW1/G at the instance of PW
1. Thereafter he arrested the accused wide arrest memo Ex PW1/D and personally searched the accused vide search memo Ex PW1/E. Then he recorded the disclosure statement of accused already Ex. PW1/F. Thereafter, he returned to the police station with the accused and the case property was deposited in the malkhana. Accused was lodged at the police lock-up after his medical examination vide DD no. 12 A Ex. PW4/D. He also identified the accused present in the court as the one from whom knife was recovered as well as the case property Ex. P1. In his cross- examination, he stated that his duty hours were from 08.00 p.m. to 08.00 a.m. He further stated that no separate departure entry was made. He conceded that no public person had been stopped by PW1. He stated that though 3-4 public persons were present at the spot but none joined the investigation. He conceded that no notice in writing was issued nor their names noted down. He stated the he prepared the sketch memo under street light and mobile phone. He also admitted that no handing over memo of seal was prepared. He denied that false recovery has been planted upon the accused.
9. Statement of the accused u/s 313 Cr.P.C. read with Section 281 Cr.P.C was recorded on 12.01.2023 wherein he denied the allegations in toto. He stated that he does not wish to lead DE and has been falsely implicated in the present case.
10. Final arguments were addressed by Ld APP for the state Shri Rajesh Kumar and by Ld. Defence Counsel Ms. Asha Kumari.
State Vs. Yunus Page 5 of 11 FIR No.: 605/2022
11. I have heard the submissions of both the parties and perused the material on record. However, before proceeding to the merits of the case, I wish to reiterate that in a criminal trial, it is for the prosecution to prove its case beyond all reasonable doubts. An accused is presumed to be innocent, until proven guilty. It is for the prosecution to travel the entire distance from the accused "may have" to accused "must have" committed the offence. With respect to offences pertaining to recovery of contraband items from the possession of accused, I find it pertinent to refer to the importance of joining a public witness to the investigation. If a public witness is not available, then the prosecution must show that sincere effort was made to ensure the presence of public witness to join the raiding party. Here I would like to refer to the observations of the Hon'ble High Court of Delhi in Anoop Joshi Vs. State, 1992 (2) C.C. Cases 314 (HC), "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."
12. Additionally, Hon'ble High Court of Delhi in Pawan Kumar vs. Delhi Administration 1987 SCC OnLine Del 290 observed "....Here is a case where no effort was made to join any public State Vs. Yunus Page 6 of 11 FIR No.: 605/2022 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 a 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...."
13. The said position also find support from the observations of the Hon'ble Apex Court in Sahib Singh Vs State of Punjab wherein it was held that Before conducting a search the police officer concerned is required to call upon some independent and respectable people of the locality to witness the search. In a given case it may so happen that no such person is available or, even if available, is not willing to be a party to such search. It may also be that after joining the search, such persons later on turn hostile. In any of these eventualities the evidence of the police officers who conducted the search cannot be disbelieved solely on the ground that no independent and respectable witness was examined to prove the search but if it is found -- as in the present case
-- that no attempt was made even by the police officer concerned to join with him some persons of the locality who were admittedly available to witness the recovery, it would affect the weight of evidence of the police officer, though not its admissibility.
14. Now proceeding upon the basis of aforesaid principles of law, I shall render my finding against the accused qua the offence. Onus is on the State Vs. Yunus Page 7 of 11 FIR No.: 605/2022 prosecution to prove:
i. Recovery of button actuated knife from the accused. ii. Accused was in conscious possession said button actuated knife
15. The present case was registered on the basis of complaint by PW 1. He has deposed that on 03.10.2022 while he was on patrolling duty, at around 10.20 p.m., he saw one person near gate of Shaheed Bhagat Singh Park road who after seeing him started to make a U-Turn. The said person was overpowered and apprehended with help of HC Kapil. During his personal search, one button actuated knife was recovered from his possession which he was carrying in his right pocket of the half pant. Hence, PW1 is the star witness of the prosecution and his testimony requires careful scrutiny as HC Kapil was dropped by the State. In his testimony, PW1 has supported the prosecution version. However, in his cross-examination material inconsistencies have been brought out by the counsel for accused which have been left unexplained by the prosecution. As per the testimony of PW1, none of the public persons present around the spot joined the injvestigation. 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. There is no independent public witness of the recovery and the explanation offered by the prosecution for the absence of public witness does not seem plausible. 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. No notice in writing was given to them to join the State Vs. Yunus Page 8 of 11 FIR No.: 605/2022 investigation. No action was taken qua the persons who refused to disclose their names or addresses. It is also not in dispute that the place of incident is a public place. If the first few people did not join the investigation, other people could have been requested. But no sincere efforts were made to make a public person to join the investigation. A public witness would have been an important link in the chain of circumstances to support the prosecution version. 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 afterthought and is not worthy of credence.
16. Hence, uncorroborated testimony of PW1 is insufficient to prove the recovery of button actuated knife from the accused. No effort was made by him to join any public witness. Further, PW3 and PW 4 reached the spot only after the alleged recovery had already been affected from the accused by PW1. Hence their testimony in this respect is hearsay evidence based upon what was informed to him by PW1 and cannot be used to corroborate the testimony of PW1. Also, PW4 has admitted in his cross examination that no public witness had been stopped by the PW1 when he reached the spot. Further, none of the prosecution witnesses have deposed in their examination in chief that they offered their personal search to the accused before inspecting the accused. Principles of natural justice demand that accused should have been offered their personal search by the recovery witness and this fact should have been reduced into writing. This fact is another missing link in the prosecution's case.
17. Lastly, no DD entry has been proved on record by prosecution in order to show that PW1 on patrolling duty on the day of alleged recovery of knife from the accused. It is an important missing link in the version of prosecution. As per chapter 22 rule 49 of the Punjab Police Rules, which is reproduced as under;
State Vs. Yunus Page 9 of 11 FIR No.: 605/2022 "Chapter 22 rule 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.
18. In view of this rule, while deposing none of the prosecution witnesses has told that by what entry in the register no.II, he was on patrolling duty in the particular area. In Rattan Lal Vs. State 1987 (2) Crimes 29 the Hon'ble Delhi High Court held that:
"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"
19. Thus, PW1's presence at the spot is not proved. If he had departed from PS for patrolling duty the entry to this effect must exist in the Roznamancha but that has not been proved, raising an adverse presumption against the prosecution U/s 114 (g) of the Evidence Act that if the said Roznamancha had been produced it would have not shown their departure at all.
State Vs. Yunus Page 10 of 11 FIR No.: 605/2022
20. Considering the aforesaid infirmities and inconsistencies in the prosecution version, I find that the prosecution has failed to prove the recovery of button actuated knife from the accused on 03.10.2022 at about 10.20 pm. Hence, question whether the accused was in conscious possession of said knife in contravention of Delhi Administration Notification issued in this respect does not arise. Benefit of doubt must go in favour of accused. It is cardinal principle of criminal law that accused is presumed to be innocent until proven guilty. In view of material inconsistencies in the prosecution version as discussed above, I find that the prosecution has failed to prove its case beyond reasonable doubt. Accordingly, accused is acquitted for the offence under section 25 Arms Act. His bail bond stands cancelled and surety stands discharged.
21. File be consigned to the Record Room as per rules.
RUPINDER Digitally signed by
RUPINDER SINGH DHIMAN
SINGH Date: 2023.01.18 12:21:13
DHIMAN +0100
Announced in the (RUPINDER SINGH DHIMAN)
Open Court on 18.01.2023 Metropolitan Magistrate-01
KKD Courts, Delhi
It is certified that this judgment contains eleven (11) pages and each page bears my signature. RUPINDER Digitally signed by RUPINDER SINGH SINGH DHIMAN Date: 2023.01.18 DHIMAN 12:21:22 +0100 (RUPINDER SINGH DHIMAN) Metropolitan Magistrate-01 NE/KKD Courts, Delhi 18.01.2023 State Vs. Yunus Page 11 of 11 FIR No.: 605/2022