Delhi District Court
State vs . Abdul Gaffar on 18 March, 2014
Page 1
IN THE COURT OF MS. SWATI KATIYAR: MM, NEW DELHI
State Vs. Abdul Gaffar
FIR No. : 439/2005
P.S. : Tilak Marg
U/Sec. : 25/54/59 Arms Act
JUDGMENT :-
a) Srl. No. of the case & Date of institution : 103/3 & 14.12.2005
b) Date of commission of offence : 13.10.2005
c) Name of the complainant : State through HC Yashpal
Singh
d) Name of the accused : Abdul Gaffar
s/o. Mohammad Ibrahim
r/o. Village Mandawali
Maksoodenpur, Hafiz
Patti, PO Mandawali PS
Bijnore City,
District- Bijnore, UP.
e) Nature of offence complained of : U/Sec.25/54/59 Arms Act
f) Plea of the accused person : Accused pleaded not
guilty
g) Date reserved for order : 19.02.2014
h) Final Order : Acquitted
i) Date of order : 18.03.2014
BRIEF STATEMENT OF REASONS FOR DECISION OF THE CASE:-
1. Accused Abdul Gaffar is facing trial in the present case for the offence punishable U/Sec.25/54/59 Arms Act on the allegations that on 13.10.2005 at 03:30 pm at footpath, Matkapir near Petrol Pump, Pragati Maidan, Mathura Road, New Delhi he was found in illegal possession of one button operated knife having total length of 24 cm, blade 11 cm and maximum width of the blade was State Vs.Abdul Gaffar FIR No.439/05 P.S. Tilak Marg Page 2 2.5 cm without any valid license and in contravention of Notification issued by Delhi Administration.
2. After completion of investigation, charge-sheet was filed. After supplying the copies to the accused U/Sec.207 Cr.P.C., charge was served upon the accused on 04.01.2007 for the offence punishable U/Sec.25 Arms Act to which he pleaded not guilty and claimed trial.
3. The prosecution had cited 8 witnesses, out of which 6 witnesses were examined.
4. PW1 is SI Hari Sharan who was posted as Duty Officer on 13.10.2005 and who recorded FIR Ex. PW1/A and made endorsement on the rukka Ex. PW1/B.
5. PW2 is HC Yashpal who deposed that on 13.10.2005 he was posted as Head Constable at PS Tilak Marg and on that day, he alongwith ASI Narsingh, Ct. Ram Pal and Ct. Pramod were on patrolling duty. He deposed that at about 03:15 pm, when they reached Bhairon Road, Pragati Maidan, New Delhi, there secret informer informed ASI Narsingh that two persons namely Abdul Gaffar and Mohd. Asim used to rob TSR passengers are standing at Matka Peer, Mathura Road with intention to commit a crime having illegal knife in their possession and if raided, they can be apprehended. He deposed that the said secret information was also disclosed to them by ASI Narsingh and also conveyed to SHO PS Tilak Marg. He deposed that as per the direction of SHO a raiding party was formed and in the meantime, Ct. Sabir Ali also came who joined the raiding party. It is submitted that ASI Narsingh requested some passersby to join raiding party but they refused after telling their genuine cause and left without disclosing their names and addresses. He further deposed that ASI Narsingh formed raiding party consisting of all police officers present there. It is submitted that thereafter they alongwith secret informer reached at the Matka peer at about 03:45 pm where they apprehended accused Abdul Gaffar and Mohd. Asim. PW2 deposed that Ct. Pramod overpowered accused Abdul Gaffar while accused Mohd. Asim was apprehended by ASI Narsingh. PW2 stated that he conducted personal State Vs.Abdul Gaffar FIR No.439/05 P.S. Tilak Marg Page 3 search of accused Mohd. Asim. PW2 further deposed that one button operated knife was recovered from the front right pocket of his pant. He further deposed that total length of knife was 24 cm, handle 13cm, blade 11 cm and maximum width of the blade was 2.5cm. He further stated that blade was of steel and handle was of aluminium and some designs with red and green colour were engraved on the handle of the knife. PW2 stated that one brass button knife was also present between handle and blade, sketch of the same was prepared i.e. Ex. PW2/A. PW2 deposed that knife was kept in a white cloth parcel and sealed with the seal of YPS and after use seal was given to Ct. Sabir Ali. PW2 stated that knife was taken into possession and seized vide memo Ex.PW2/B. Thereafter rukka was prepared which is Ex. PW2/C and handed over to Ct. Pramod for registration of the case. After registration of the case, Ct. Pramod return back at the spot alongwith subsequent to IO SI Dharma Dev. PW2 deposed that he handed over accused alongwith case property and said documents to SI Dharma Dev. PW2 further stated accused was arrested and his personal search conducted by SI Dharam Dev who also prepared site plan at his instance i.e. Ex. PW2/D. PW2 deposed that his statement was recorded by SI Dharam Dev at the spot. PW2 identified the case property in the Court.
6. During cross-examination, PW2 stated that Ct. Sabir Ali came to him between 03:30 pm to 03:45 pm. He deposed that the distance between the place of secret information and the place where they apprehended the accused was about 500 to 550 yards. PW2 stated that at that time there was no police booth or traffic police booth near to the place of arrest. PW2 deposed that the petrol pump was 50 yards away from the place. He further deposed that public persons were also present at the Matka Peer. PW2 further stated that all members of the police party were on foot and SI Dharam Dev came to the spot after registration of the case. He further stated that SHO was informed by a landline phone situated between gate no.2 and museum and all writing work was done at the spot while sitting on a bench. PW2 stated that after arrest of the accused, he was taken to State Vs.Abdul Gaffar FIR No.439/05 P.S. Tilak Marg Page 4 the hospital for medical examination. PW2 stated that thereafter he was brought to Police Station and SI Dharam Dev came to the spot by his own motorcycle. PW2 deposed that Ct. Pramod went to the police station with rukka by a motorcycle of petrol pump. PW2 denied the suggestion that no secret information was received or that he was present at the spot. He also denied the suggestion that accused persons came to India Gate where they were inquired by Ct. Sabir Ali who inquired address of the accused persons and on being suspicion that they were not telling their correct address of Bijnor he took them to the police station and false recovery was planted on the accused persons. PW2 further denied the suggestion that no knife was recovered from their possession or that all writing work was done while sitting in the police station or that he was deposing falsely.
7. PW3 is HC Pramod who deposed that on 13.10.2005, he was posted at PS Tilak Marg as constable and on that day, he alongwith ASI Narsingh, HC Yashpal and Ct. Rampal was on patrolling duty. PW3 deposed that at about 03:15 pm they reached near Bhairon Road, Pragati Maidan and at about 03:25 pm, a secret informer informed ASI Narsingh that near Matka Peer near Petrol Pump, two boys were standing who were habitual criminals and having illegal knives in their possession and if raided, they can be apprehended. PW3 stated that ASI Narsingh narrated the entire information to SHO and SHO instructed to commit an immediate raid. PW3 stated that in the meanwhile, Ct. Sabir also reached the spot. IO prepared the raiding party after briefing them the information. PW3 stated that IO also requested 4-5 public persons to join the raiding party but all the public persons left the spot after telling their reasonable reasons and without disclosing their names and addresses. PW3 stated that thereafter they alongwith secret informer reached at Matka Peer at 03:30 pm and there PW3 alongwith HC Yashpal and Ct. Sabir Ali apprehended accused. PW3 stated that upon casual search of the accused by HC Yashpal, one buttondar knife was recovered from his right side pant pocket and the sketch of the knife State Vs.Abdul Gaffar FIR No.439/05 P.S. Tilak Marg Page 5 was prepared by HC Yashpal i.e. Ex. PW2/A. PW3 stated that the total length of knife was 24 cm out of which handle was 13cm, blade was 11 cm and width of blade was 2.5cm. PW3 stated that the blade was made of steel and handle was of brass on which some line with red and green colour were engraved. PW3 deposed that there was one alphabet M also written on the handle of the knife. PW3 stated that knife was placed on white paper and HC Yashpal converted the same into pullanda and sealed the pullanda with the seal of YPS. PW3 deposed that the seal after use was handed over to Ct. Sabir Ali and the knife was seized vide memo Ex. PW2/B. PW3 further deposed that at about 04:45 pm, HC Yashpal handed over the rukka to him for registration of the case and he got the case registered by ASI Hari Sharan. PW3 stated that after registration of case, he handed over the original rukka Ex. PW2/C and copy of FIR Ex. PW1/A to SI Dharam Dev. PW3 stated that he alongwith SI Dharam Dev went to the spot and SI Dharam Dev recorded the statement of witnesses. PW3 deposed that accused was arrested vide memo Ex. PW3/A and personally searched vide memo Ex. PW3/B. PW3 identified the case property.
8. During cross-examination, PW3 deposed that the secret informer gave the information at about 03:15 pm at Bhairon Road, Pragati Maidan, New Delhi. PW3 deposed that they were four police officers and they were patrolling on foot. PW3 stated that at the time of departure from PS, IO might have entered the entry in the Roznamcha Register but he had no knowledge about the same. PW3 stated that they reached at Matka Peer, near Petrol Pump, Bhairon Road at about 03:30 pm. PW3 admitted that there were public persons at the petrol pump and IO did not serve any notice to the public persons who refused to join the raiding party. PW3 deposed that IO might have recorded the names of the persons who refused to join the raiding party. PW3 was confronted with the case property and he stated that the handle of the knife was made of aluminium whereas in examination, he had deposed that the handle of the knife was made of brass. PW3 denied the suggestion that accused had been falsely implicated in the State Vs.Abdul Gaffar FIR No.439/05 P.S. Tilak Marg Page 6 present case or that case property has been planted upon the accused or that he was deposing falsely.
9. PW4 Ct. Sabir Ali deposed in his examination on similar lines as PW3. However, during cross-examination, PW4 stated that he was alone on a patrolling duty. PW4 stated that he departed for patrolling at about 10 am and made entry for patrolling. PW4 stated that he did not remember the name of Duty officer. PW4 stated that he made the departure entry as it is understood. PW4 further stated that he did not remember exactly when he came back to the PS and he himself did not record the arrival entry. PW 4 deposed that all other raiding party members were on foot and when he joined the raiding party, accused was no present. PW4 stated that accused was standing near Petrol pump, Matka Peer. PW4 admitted that several persons were present at petrol pump and Matka Peer. PW4 stated that the public persons who were available at petrol pump and matka peer were not asked to join the raiding party. PW4 stated that he remained at the spot from 03:30 pm to 09:10 pm and Ct. Pramod went to Police Station at about 04:45 pm with rukka on foot. PW4 deposed that accused was taken to hospital for his medical examination directly from the spot and all raiding party members went to the hospital with accused for his medical examination. PW4 again stated that he alongwith Ct. Pramod and SI Dharam Dev went to hospital with accused for medical examination in Auto. PW4 was not able to remember the name of the Auto Driver and number of the Auto. PW4 stated that SI Dharam Dev came to the spot at about 05:30 pm or 05:45 pm. PW4 did not remember on which conveyance SI Dharam Dev came at the spot. PW4 deposed that rukka was prepared by HC Yashpal. PW4 stated that he signed all the documents i.e. personal search memo, arrest memo, seizure memo and rest he could not remember. PW4 deposed that they had come back from hospital to the police station at about 09-10 pm. PW4 stated that arrival entry was made by IO in his presence. PW4 stated that only HC Yashpal had searched the accused and all the writing work was done by sitting on benches. State Vs.Abdul Gaffar FIR No.439/05 P.S. Tilak Marg Page 7 PW4 stated that benches were brought from Matka Peer but he could not remember who brought the benches. PW4 stated that the SHO was informed by the mobile phone of ASI Narsingh about the forming of the raiding party. PW4 denied the suggestion that accused was already in his custody or that he was not present at the spot. PW4 denied the suggestion that he was not a member of the raiding party or that nothing was recovered from the accused. PW4 denied the suggestion that recovery has been planted or that all writing work was done while sitting in police station or that he was deposing falsely.
10. PW5 Sh. Giriraj Sharma, posted as Warder, Home Department proved on record copy of DAD notification dated 17.02.1979 i.e. Ex. PW5/A.
11. PW6 is Inspector Dharam Dev who deposed that on 13.10.2005 he was posted as Sub Inspector at PS Tilak Marg and on that day, Ct. Pramod had handed over original rukka and copy of FIR to him. PW6 deposed that he alongwith Ct. Pramod reached at near Matka Peer, near Mathura road, pragati maidan where he met HC Yashpal. PW6 stated that HC Yashpal had handed over seizure memo Ex. PW2/B and sealed knife sealed with the seal of YPS, sketch of knife already exhibited as Ex. PW2/A and accused Abdul Gaffar. PW6 deposed that he had prepared site plan Ex. PW2/D on the instructions of HC Yashpal. PW6 further stated that he recorded statement of HC Yashpal and thereafter he enquired about accused Abdul Gaffar and arrested him vide memo Ex. PW3/A bearing his signatures at point A. PW6 further stated that he had also prepared personal search memo Ex. PW3/B and thereafter he had recorded statement of witnesses and prepared the challan. PW6 identified the accused in the Court.
12. During cross-examination, PW6 stated that the investigation of the present case was handed over to him on the verbal directions of SHO. PW6 stated that he did not make departure entry. PW6 admitted that he did not place on record his arrival entry. PW6 denied the suggestion that he had not verified the facts from the public persons present there i.e. Matka Peer and petrol pump regarding State Vs.Abdul Gaffar FIR No.439/05 P.S. Tilak Marg Page 8 the recovery of knife. PW6 denied the suggestion that he had not joined the investigation or reached the spot. PW6 denied the suggestion that accused was already in the custody of HC Yashpal and Ct. Pramod or that all writing work was done while sitting in police station.
13. Statement of accused was recorded U/Sec.313 Cr.P.C. On 22.01.2013 wherein he denied the case of the prosecution and pleaded innocence. Accused stated that he has been falsely implicated. Accused stated that police had already taken him into custody and that present case has been falsely planted on him. However, he declined to lead any evidence in his defence.
14. Final arguments were advanced at length by Sh. Honey Goel, Ld. APP for State and Sh. Susheel Kumar Sharma, Ld. Counsel for accused.
15. I have considered the submissions and perused the record carefully.
16. In the present case there are many discrepancies in the case of the prosecution. For instance, no public witness has been examined by the prosecution. As per PW2, PW3 and PW4, there were many public persons present at the spot, however, none agreed to join the raiding party and they left without disclosing their names. It is inexplicable as to why no notice was served upon the public persons who refused to assist the police officials. In Anoop Joshi Vs. State, 1992 (2) C.C.Cases 314 (HC), Hon'ble High Court of Delhi had observed as under:-
"18. It is repeatedly laid down by this Court 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 evidence 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".
In case of Roop Chand Vs. The State of Haryana, 1999 (1) C.L.R. 69, the State Vs.Abdul Gaffar FIR No.439/05 P.S. Tilak Marg Page 9 Hon'ble Punjab & Haryana High Court held as under:-
"3. ........The explanation furnished by the prosecution is that the independent witnesses were asked to join the investigation but they refused to to so on the ground that their joining will result into enmity between them and the petitioner.
4. 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. In the present case also admittedly the independent witnesses were available at the time of recovery but they refused to associate themselves in the investigation. This explanation does not inspire confidence because the police officials who are the only witnesses examined in the case have not given the names and addresses of the persons contacted to join 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 under the law. Had it been a fact that the witnesses from the public had refused to join the investigation, the Investigating Officer must have proceeded against them under the relevant provision of law. 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 after thought and is not worthy of credence. All these facts taken together make the prosecution case highly doubtful".
In the present case as well, there is no public person joined by the IO for conducting the raid and there is no satisfactory explanation for the same, which creates a doubt in the case of the prosecution.
17. Further, as per PW2, PW3 and PW4, they were on patrolling duty at the relevant time. Now, as per Chapter 22 Rule 49 of Punjab Police Rules, 1934, police officials are required to enter their departure and arrival to and from the police station in the DD Register of the Police Station. However, in the present case, no such entry was made by PW2 and PW3. PW4 states that he had made entry at the time of departure. However, there is no document on record to authenticate that PW4 had made entry while departing or arriving in the police State Vs.Abdul Gaffar FIR No.439/05 P.S. Tilak Marg Page 10 station.
18. Further, in the present case, no efforts were made to hand over the seal after use in the presence of independent public persons. In such circumstances, the possibility of planting the case property cannot be ruled out and in such cases, benefit of doubt has to be given to the accused.
19. The entire case of prosecution is filled with unexplained discrepancies requiring extension of benefit of doubt in favour of the accused. Accordingly, accused stands acquitted of the charges. File be consigned to Record Room.
(Announced in open
Court on 18.03.2014 ) (Swati Katiyar)
MM, New Delhi
State Vs.Abdul Gaffar
FIR No.439/05
P.S. Tilak Marg
Page 11
State Vs. Abdul Gaffar
FIR No. : 439/2005
P.S. : Tilak Marg
U/Sec. : 25/54/59 Arms Act
18.03.2014
Present : APP for State.
Accused in person with Ld. Counsel Sh. Sushil Kumar Sharma.
Vide separate judgment the accused Abdul Gaffar is acquitted of the offence punishable U/Sec.25 Arms Act. Bail bond stand cancelled. Documents, if any be returned. Endorsements, if any , be cancelled. Fresh Bail Bond has been furnished by accused U/Sec.437-A Cr.P.C. which shall be valid for six months from today.
File be consigned to Record Room.
(Swati Katiyar) MM/ND/18.03.2014 State Vs.Abdul Gaffar FIR No.439/05 P.S. Tilak Marg