Delhi District Court
State vs . Mohd. Yunis on 16 December, 2014
IN THE COURT OF SH. NAVJEET BUDHIRAJA, METROPOLITAN MAGISTRATE04,
SOUTH DISTRICT, NEW DELHI
STATE VS. Mohd. Yunis
FIR NO: 863/06
P. S. Sangam Vihar
U/s 25/54/59 Arms Act
Unique ID no. 02403R0561402008
JUDGMENT
Sl. No. of the case and : 2037/2 (22.3.2011)
Date of its institution : 9.6.2008
Name of the complainant : SI Vishwajit Kumar, then posted at PP
H Block, Sangam Vihar, New Delhi.
Date of Commission of offence : 24.8.2006
Name of the accused : Mohd. Yunis, S/o Mohd. Abdul Gani,
R/o K18/10/77, Sangam Vihar, New
Delhi.
Offence complained of : Section 25/54/59 Arms Act
Plea of accused : Not Guilty
Case reserved for orders : 16.12.2014
Final Order : ACQUITTED
Date of Judgment : 16.12.2014
BRIEF STATEMENT OF FACTS FOR THE DECISION:
State Vs. Mohd. Yunis 1/7 FIR no. 863/06
1. This is the prosecution of the accused Mohd. Yunis pursuant to a charge sheet filed by the Police Station Sangam Vihar under section 25/54/59 Arms Act subsequent to the investigation carried out by them in FIR no. 863/06.
2. The prosecution case against the accused persons is this: On 24.8.2006 at about 9.20 am at Behind Vayu Sena Vihar, DDA Park, Tughlakabad Extension, New Delhi accused was found in possession of one country made pistol and two cartridges without any valid license in contravention of Notification of Delhi Administration, thus committed an offence u/s 25/54/59 Arms Act.
3. On consummation of investigation and other formalities, charge sheet was submitted against the accused persons and the accused persons were indicted on charges under section 25/54/59 Arms Act. They pleaded not guilty and claimed trial.
4. The prosecution, to prove above charges against the accused, tendered oral as well as documentary evidence. In all, five witnesses were examined. PW 1 HC Sandeep Singh deposed about his involvement in the investigation with SI Vishwajeet and HC Mohd. Haroon. He also proved sektch of country made pistol Ex.PW1/a, seizure memo Ex.PW1/B, arrest memo of accused Ex.PW1/C, personal search of accused Ex.PW1/D, disclosure statement of accused Ex.PW1/E and case property Ex.P1 (colly). He was cross examined by Ld. Counsel for the accused. PW 2 HC Mohd. Haroon deposed about his involvement in the investigation with SI Vishwajeet and HC Sandeep Singh. He was cross examined by Ld. Counsel for the accused persons. PW 3 SI Balbir Singh deposed about the aspect of investigation done by him. He has also proved site plan Ex.PW3/A, arrest and personal search of accused as Ex.PW1/C and Ex.PW1/D, disclosure statement of accused as Ex.PW1/E. He was cross examined by Ld. Counsel for the accused. PW 4 HC Sukh Lal deposed about State Vs. Mohd. Yunis 2/7 FIR no. 863/06 registration of FIR upon rukka and got exhibited the same as Ex.PW4/A and Ex.PW4/B. He was cross examined by Ld. Counsel for the accused. PW 5 IO/Inspector Vishwajeet Kumar deposed about the aspect of investigation done by him. He also proved sketch of desi katta and cartridges Ex.PW1/A, seizure memo of pullanda Ex.PW1/D and site plan Ex.PW3/A. He was cross examined by Ld. Counsel for the accused.
5. This is the overall prosecution's evidence in this case. Prosecution's evidence stood closed vide order dated 15.10.2014.
6. The statement of the accused persons under Section 313 of the Criminal Procedure Code, 1973 (for short, `the Code') was recorded. He denied the allegations against him and asserted that he was innocent and had been falsely implicated. Further, he chose not to lead any defence evidence. Final arguments were then heard on behalf of both the parties.
7. I have heard the learned Assistant Public Prosecutor and carefully perused the record in extenso. Ld. APP has canvassed that the prosecution has been successful in proving the guilt of the accused beyond reasonable doubt as testimony of all the witnesses were not impeached by the accused.
8. I have bestowed my thoughtful considerations to the rival submissions made before me.
9. As far as the case of the prosecution is concerned, the accused was apprehended with the country made pistol with two live cartridges which he could not hold without valid license.
10. After going through the complete evidence and records of this case I am of the view that the accused deserves acquittal in this case on the following grounds.
State Vs. Mohd. Yunis 3/7 FIR no. 863/06
11. Firstly, if the police personnel who has apprehended the accused with country made pistol alongwith two live cartridge was on patrolling duty, prosecution should have brought the relevant records showing their arrival and departure and should have proved by documentary evidence that he was on patrolling duty by producing DD entry for the same.
12. As per chapter 22 rule 49 of the Punjab Police Rules, which is reproduced as under;
"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.
13. In view of this rule, while deposing none of the prosecution witnesses has told that by what entry in the register no. II, they were patrolling in the particular area. In the present case also this provision has not been complied with by the prosecution witnesses. The relevant entries regarding the arrival and departure of the police officials has not been proved on record. It has been held in Rattan Lal Vs. State 1987 (2) Crimes 29 the Hon'ble Delhi High Court held that;
"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 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 State Vs. Mohd. Yunis 4/7 FIR no. 863/06 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."
14. Apart from this, their presence at the spot is not proved. If they 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 as all.
15. The second reason is that the public witnesses are not joined in the investigation. From the overall testimony of the witness, it appears that no effort, what to talk of a sincere/vague effort has been made to join the public persons in the investigation. All the witnesses examined by the prosecution are the police witnesses. It is the testimony of PW 1 HC Sandeep Singh and PW 2 HC Mohd. Haroon that IO requested certain passersby to join the investigation but they refused. In such a case, to show its bonafide, it was obligator upon the IO to have given notice to such passersby so that appropriate action could be taken against them for not cooperating with the investigation. In the absence of any such notice, the statements of PW 1 and PW 2 do not seem to be credible. Although, it can be said that it was a chance recovery but the incident had occurred at 9.20 pm and at that time from a busy locality and therefore, it cannot be said that no public person would have been available at the spot and even if the prosecution has not joined the public witnesses it was incumbent upon the prosecution to at least put forward the reasons for not doing so. The failure on the part of the police personnels goes to suggest that they were not interested in joining the public persons in the police proceedings. Failure on the part of the police officials to State Vs. Mohd. Yunis 5/7 FIR no. 863/06 make sincere effort to join public witnesses for the proceedings when they may be available creates reasonable doubt in the prosecution story in view of the following case law. In the case of Anoop Joshi Vs. State 1992 (2) C.C. Cases 314 (HC), Hon'ble High Court of Delhi has observed as under;
" 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 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."
16. During the investigation of the case no public witnesses were joined nor there are seems to be any sincere efforts made in this regard, when it was possible to do so, which makes the case of the prosecution weak and suspicion. Since all the witnesses are police personnels and the necessary safeguards in the investigation has not been followed by the investigating officer, I am of the view that chances of false implication cannot be ruled out at the instance of the police. Country made pistol is such a small things which can be hidden in a pocket and easily available in market thus can be easily planted.
17. Further as per the testimony of PW 1 HC Sandeep Singh seal after the use was handed over to him. During his cross examination, he stated that he returned the seal on the next day after returning to the PS. However, it is not clear as to when the seal State Vs. Mohd. Yunis 6/7 FIR no. 863/06 was returned to the IO. No memo has been prepared and proved on the record. The prosecution was bound to prove on the record as to when the seal was returned to the IO to remove the element of the tempering with the case property.
18. It is true evidence is to be weighed and not counted but in this case whatever evidence has been produced by the prosecution is not sufficient to fortify the edifice of the prosecution case and the prosecution has failed to prove all the links. In case where the prosecution has failed to prove all the links, the benefit of doubt has been given to the accused.
19. On the basis of aforesaid discussions, the accused Mohd. Yunis is acquitted of the offence u/s 25/54/59 of Arms Act. He is set at liberty.
Announced in the open court (Navjeet Budhiraja)
on 16.12.2014 Metropolitan Magistrate04,
South, New Delhi
State Vs. Mohd. Yunis 7/7 FIR no. 863/06