Delhi District Court
State vs . Mohd. Yunus on 10 February, 2017
IN THE COURT OF SH. GAURAV GUPTA, METROPOLITAN MAGISTRATE04, SOUTH
DISTRICT, NEW DELHI
STATE VS. Mohd. Yunus
FIR NO: 60/08
P. S. Sangam Vihar
U/s 25/54/59 Arms Act
Crc/2033804/2016
JUDGMENT
Sl. No. of the case : 892/2 (20.12.2008)
Name of the complainant : SI Suresh Sharma, Belt NO.D628,
then posted at PS Sangam Vihar,
New Delhi.
Date of Commission of offence : 28.01.2008
Name of the accused : Mohd. Yunus, S/o Sh. Mohd. Gani,
R/o H. No. K1451, Gali NO. 18/17,
Sangam vihar, New Delhi.
Offence complained of : Section 25/54/59 Arms Act
Plea of accused : Not Guilty
Case reserved for orders : 10.02.2017
Final Order : ACQUITTED
Date of Judgment : 10.02.2017
BRIEF STATEMENT OF FACTS FOR THE DECISION:
1.This is the prosecution of the accused Mohd. Yunus 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. 60/08.
2. The prosecution case against the accused is this: On 28.01.2008 at 07:45 PM at Shooting range road, near cut of gali no. 9, Sangam vihar, New Delhi, accused was found in possession of one country made pistol and one cartridge in contravention of Notification of Delhi Administration, thus committed an offence u/s 25/54/59 Arms Act.
FIR no. 60/08 State Vs. Mohd. Yunus 1/5
3. On consummation of investigation and other formalities, charge sheet was submitted against the accused and the accused was indicted on charges under section 25/54/59 Arms Act. He 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 four witnesses were examined. PW1 HC Shravan Kumar, has deposed about his involvement in the investigation and got exhibited sketch as Ex. PW1/A, arrest memo as Ex. PW1/B and personal search memo as Ex. PW1/C, seizure memo as Ex. PW1/D. He was cross examined on behalf of accused. PW2 ASI Gajraj has exhibited FIR as Ex. PW2/A and endorsement on rukka as Ex. PW2/B. He was not cross examined on behalf of accused despite given opportunity. PW3 ASI Hans Kumar was on area patrolling duty with SI Suresh Kumar, Ct. Sahib Singh and Ct. Shravan. He was cross examined by Ld. Counsel for the accused. PW4 SI Suresh has exhibited rukka as Ex. PW4/A and site plan as Ex. PW4/B. He was cross examined by Ld. Counsel for the accused. The case property i.e. one country made pistol along with one empty cartridge was exhibited as Ex. P1.
5. Accused admitted the genuineness of copy of FSL report, Sanction of prosecution U/s 39 Arms Act and MHC (M) register 19, U/s 294 of the Criminal Procedure Code, 1973 (for short "the Code"). This is the overall prosecution's evidence in this case. Prosecution's evidence stood closed vide order dated 03.02.2017.
6. Statement of the accused was recorded U/s 281 of Code wherein all the incriminating circumstances was put to him which he denied and pleaded his false implication and also false plantation of the case property. He, however, chose not to lead defence evidence. Thereafter, final arguments were heard.
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 and one cartridge without any licence which he could not FIR no. 60/08 State Vs. Mohd. Yunus 2/5 validly possess.
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.
11. Firstly, if the police personnel who has apprehended the accused with the country made pistol and one 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 the present case also this provision has not been complied. 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 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. The second reason is that the public witnesses have 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 FIR no. 60/08 State Vs. Mohd. Yunus 3/5 the witnesses examined by the prosecution are the police witnesses. Although, it can be said that it was a chance recovery but the incident had occurred near 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 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."
15. During the investigation of the case no public witnesses were joined nor there 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.
16. Further, as per the testimony of PW 1 HC Rambir Singh seal after the use was handed over to ASI Hans Kumar. 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 tampering with the case property which has not been done in the present case. Admittedly no handing over memo of the seal was prepared. In view of this, the veracity of the seizure of the FIR no. 60/08 State Vs. Mohd. Yunus 4/5 case property also comes under scanner.
17. 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.
18. On the basis of aforesaid discussions, the accused Mohd. Yunus is acquitted of the offence u/s 25/54/59 of Arms Act. He is set at liberty. Bail bonds U/s 437 A of Cr.PC is to be furnished which would remain valid for a period of 6 months.
Announced in the open court (Gaurav Gupta) on 10.02.2017 MM04, South, New Delhi
It is certified that this judgment contains 5 pages and each page bears my signatures.
(Gaurav Gupta)
MM04, South, New Delhi/ 10.02.2017
FIR no. 60/08 State Vs. Mohd. Yunus 5/5