Delhi District Court
State vs (1) Yusuf @ Galkata on 12 August, 2009
IN THE COURT OF SH. GURDEEP SINGH:ASJ-04
NORTH-EAST DISTRICT: KARKARDOOMA COURTS:DELHI
FIR No: 149/2004
PS: Welcome, Delhi
U/s: 394/397/34 IPC
& 25 of Arms Act
Sessions Case No. :- 42/08
Date of institution :- 13/07/2004
Date of committal :- 23/08/2004
Date on which reserved for order:- 04/08/2009
Date of delivery of Judgment :- 12/08/2009
STATE Versus (1) Yusuf @ Galkata
S/o Sh. Ahmed Ali
R/o H.No.E-140, Janta Colony
Welcome, Delhi.
(2) Rustam @ Javed
S/o Sh. Nawab
R/o Vegabond, Ghaziabad, U.P.
AND
STATE Versus Rustam @ Javed
S/o Sh. Nawab
R/o Vegabond, Ghaziabad, U.P.
FIR No: 268/2004
PS: Welcome, Delhi
U/s 25/54/59 of Arms Act
JUDGMENT
1. Vide this common judgment, I shall decide the FIR bearing No. 149/2004, PS: Welcome, Delhi, U/s:
394/397/34 IPC and 25 of Arms Act and FIR bearing No. 268/2004, PS: Welcome, Delhi, U/s 25/54/59 of Arms Act as both the cases are connected cases and have arisen out of the same transaction.
2. The brief facts of the prosecution case are that accused Yusuf @ Galkata was sent up for trial by police of PS:
Welcome for offence punishable U/s 394/397/34 IPC and U/s 25 of Arms Act on the allegations that on 13.05.04 at about 11.05 PM, at Kacha rasta near new Jaffrabad pulia, one Mohd. Anis was going having Rs. 5,000/- with him. Two boys came from the side of New Jaffrabad. One boy caught hold him from his waist and put some pointed object on his waist and the other boy put one knife on his neck and taken his search and forcibly taken out Rs. 5000/- from his pocket. One of them had also given the blow with the sharp edged object on his cheek and thereafter, they fled away. Thereafter, the statement of Mohd. Anis was recorded and the FIR was registered. He was also medically examined. Later on accused Yusuf @ Galkata was apprehended on a secret information and on conducting his cursory search, one button actuated knife was recovered from his possession. He also made disclosure statement and gave the name of his co- accused namely Rustam @ Javed as a person who was also involved in the incident. Later on, accused Rustam was also arrested on the secret information and one knife was also recovered at his instance. He also refused to join the Test Identification Parade proceedings. Supplementary charge-sheet was filed against accused Rustam @ Javed for offence punishable U/s 25 of Arms Act.
3. After supplying the copies to the accused persons, the case was committed to the court of sessions vide order dated 23.08.2004.
4. My Ld. Predecessor after finding prima-facie offence punishable U/s 392/394/397 IPC, charged both the accused persons to which they pleaded not guilty and claimed trial. Accused persons were also charged separately for offence punishable U/s 25 of Arms Act, to which, they also pleaded not guilty and claimed trial.
5. The prosecution in support of their case examined as many as eleven witnesses.
The formal witnesses examined by the prosecution are :-
PW-1 Constable Dharmender who joined the investigation with the IO and got the FIR registered. PW-3 Dr. Krishna who proved the MLC of Mohd. Anis Ex.PW3/A. PW-4 ASI Sahab Singh was the duty officer who recorded the formal FIR and proved the same as Ex.PW4/A. He proved his endorsement of the rukka Ex.PW4/B at point X. PW- 5 Ms. Archana Sinha, Ld. Metropolitan Magistrate who had conducted the TIP of accused Yusuf @ Galkata.
Accused Yusuf refused to join the TIP proceedings. She proved the TIP proceedings as Ex.PW5/A. PW-8 H.C Madan Pal recorded the FIR Ex.PW7/D U/s 25 of Arms Act regarding recovery effected from accused Rustam @ Javed. PW-9 Ms. Bharka Gupta, the then Ld. Metropolitan Magistrate, who conducted the TIP of accused Rustam @ Javed. Accused Rustam also refused to join the TIP proceedings. She proved the application moved for conducting the TIP as Ex.PW9/A, application for adjourning the TIP proceedings Ex.PW9/B, statement of accused Ex.PW9/C, her certificate of correctness Ex.PW9/D and TIP proceedings Ex.PW9/E. The material witness and the witnesses of arrest and recovery who are examined by the prosecution are :-
PW-6 Mohd. Anis is the complainant. He turned hostile regarding the identification of accused Rustam @ Javed and thereafter, regarding identification of accused Yusuf @ Galkata, when he was recalled on the application U/s 311 Cr.P.C. . PW-7 H.C Ram Bhaj Sharma is the witness of arrest of accused Rustam @ Javed and recovery of knife from him. He proved the sketch of the knife Ex.PW7/A, seizure memo of the knife Ex.PW7/B, rukka Ex.PW7/C, copy of FIR No. 268/04 Ex.PW7/D, site plan Ex.PW7/E, arrest memo of accused Rustam Ex.PW7/F and his personal search memo Ex.PW7/G. PW-10 Inspector Arun Kumar Chaudhary is the Investigating officer and also the witness of arrest of accused Rustam @ Javed. PW-2 Ct. Nand Lal joined the investigation with the I.O. He is the witness of arrest and recovery of knife from accused Yusuf @ Galkata. He proved the sketch of knife Ex.PW2/A, seizure memo of knife Ex.PW2/B, disclosure statement of accused Yusuf Ex.PW2/C, arrest memo of accused Yusuf Ex.PW2/D and his personal search memo Ex.PW2/E. PW-11 S.I Imadul Islam is the initial I.O. He is also the witness of arrest of accused Yusuf @ Galkata and recovery of knife from him.
6. Thereafter, the statements of accused persons were recorded U/s 313 Cr.PC. Both the accused persons denied the prosecution evidence and claimed innocence. They stated that the present case has been planted upon them. Their photographs were taken by the police officials and were shown to the witnesses, therefore, PWs have falsely deposed against them. Accused Rustam @ Javed stated that he was lifted from his house by the police officials.
7. I have heard Ld. Addl. P.P for the State, Sh. K.K Dikshit, Advocate for accused Rustam @ Javed, Sh. Abdul Sattar, Advocate for accused Yusuf @ Galkata and also gone through the record.
8. Firstly, I shall take up the evidence of eye-witness. PW-6 Mohd. Anees testified that he used to work as barber in the shop of his uncle Shamim. Irshad is his brother-in- law. On the intervening night of 13/14.05.2004, at about 11.00/11.15 PM, he was coming from his shop to his house after collecting money of Rs. 5000/- from his brother. When, he reached near Jaffrabad Nala, two persons came to him and they apprehended him from behind. When he cried, one assailant closed his mouth and another assailant caught hold of his hand and they started snatching money from him. One of them took out some sharp edged weapon and gave blow with the same on his right side face. They snatched Rs.5000/- and other Rs. 50-100/-from him. Thereafter, both the assailants ran away. He came to his house. He told about the incident to his brother, who informed the police. Police officials came and took him to GTB Hospital where he was medically examined. He proved his statement Ex.PW6/A. He stated that accused Yusuf is one of the assailant who caught hold of his hands from behind and committed robbery from his person alongwith other assailant. After the incident, he had gone to Tihar Jail alongwith the police to identify the assailants where he was told that accused refused to join the TIP proceedings. He was declared hostile with respect to accused Rustam. He categorically denied that the accused Rustam was also present with accused Yusuf at the time of incident. He was, however, not cross-examined on behalf of accused Yusuf and thereafter, he was recalled on the application U/s 311 Cr.P.C moved on behalf of accused Yusuf but when he appeared, he categorically stated that accused Yusuf is not the one who was present and committed robbery. He stated that at the time of occurrence, there was darkness due to which he could not identify the accused persons. He was re-examined by the Ld. Addl. P.P. He admitted that he identified accused Yusuf previously but categorically stated that Yusuf was not the person who committed robbery with him.
9. Ld. Counsel on behalf of the accused persons submitted that witness had identified the accused Yusuf as his photographs were previously taken and shown to the witness and when he appeared again and questions were put to him, he denied that accused Yusuf was the same person who committed robbery with him.
10. On the other hand, Ld. Addl. P.P submits that he did not identify accused Yusuf as he has been won over by the accused persons.
11. The examination of the witness is completed only when he is properly cross-examined. The witness had identified accused Yusuf in his examination-in-chief but he was not cross-examined. Both the accused persons have refused to join the TIP proceedings. Accused Yusuf has categorically stated before Ld. Metropolitan Magistrate who conducted the TIP that he does not want to join TIP as his photographs were already shown to the witness by the police at police station on 16.05.04. Although, likelihood of the witness having won over after recall of the witness cannot be ruled out. However, this is not the case where he was earlier cross-examined on behalf of accused Yusuf and later on, he was recalled and he failed to identify the accused. It is the case where he was not cross-examined at all as the counsel for the accused person was not present. Moreover, the testimony of such witness cannot be relied upon to record conviction as the witness himself is shakey. At one point, he is not identifying one of the accused and when, he was recalled, he has failed to identify the other one also. Accordingly, I am of the opinion that accused Yusuf is entitled to benefit of doubt. However, the prosecution has miserably failed to prove the offence U/s 394/397 IPC against accused Rustam.
12. Now coming to the offence U/s 25 of Arms Act. The prosecution has examined PW-2 Ct. Nand Lal regarding recovery of knife from accused Yusuf and Rustam. PW-2 Ct. Nand Lal deposed that on 16.05.04, he alongwith IO and Ct. Parvesh were busy in the investigation of this case. On that day, at about 6:45 PM, they left the police station and had reached near police booth, Janta Colony at about 7.00 PM. The secret informer gave the secret information regarding presence of two persons namely Yusuf @ Galkata and Rustam, who had committed Rs. 5,000/-. IO had asked 4-5 public persons to join the investigation but none agreed and they left the spot without disclosing their names and addresses. Thereafter, he alongwith Ct. Parvesh, IO and secret informer reached at 65 feet road and on the pointing out of secret informer, accused Yusuf @ Galkata was apprehended. On conducting his personal search, one knife was recovered from the front side pocket of his pant. The sketch of the knife was prepared by the IO after taking its measurement. The knife was kept into a pullanda and sealed with the seal of RBS. Thereafter, accused Yusuf was arrested in the present case vide arrest memo Ex.PW2/D.
13. PW-11 S.I Imadul Islam similarly corroborated regarding the receipt of secret information, apprehension of accused Yusuf and recovery of button actuated knife from his possession. He proved the knife as Ex.PW11/Article
1.
14. PW-2 Ct. Nand Lal in his cross-examination has testified that no notice was given by the IO in writing to the public persons. He admitted that there are houses around the police booth, Janta Colony where the informer had given the secret information. He also admitted that there is MCD office outside the Jheel Park and a busy road also passes outside the said park. He also admitted that other public persons were also sitting in the park. IO did not ask the said public persons to join the investigation at the time of the apprehension, search and arrest of the accused Yusuf @ Galkata. No one was called from the office of the MCD to join the investigation. He further stated that documents were not changed and nothing was added later on. He denied the suggestion that the knife was planted on the accused Yusuf with a view to falsely implicate him in this case.
15. PW-11 S.I Imadul Islam in his cross-examination also testified that Jheel Park is residential area. He stated that he asked the public persons who were passersby to join the investigating but he did not ask the residents of the area to join the investigation. The knife was recovered on the search of the accused but he did not offer his own search before conducting personal search of the accused Yusuf.
16. Ld. Counsel for the accused submitted that the alleged recovery of knife from the accused is doubtful as there is interpolation in the documents i.e personal search memo Ex.PW2/E where the date has been changed. There is also an interpolation in the documents Ex.PW2/A and PW2/D. It is further submitted that the place from where the accused were apprehended was situated in the residential area but no effort was made to join the public witnesses. IO has not made any attempt to call the public servants from the MCD Office who could not have refused the same. He further submitted that this case is planted upon the accused persons.
17. I find force in the argument of Ld. Counsel. The place from where the accused persons were arrested was situated in the residential area. The IO has no-where stated that any effort has been made by him to join the public witnesses, whereas, the other constable i.e PW-2 claims that the IO had asked 4-5 public persons to join the investigation. There is apparent inconsistencies and in these circumstances, the recovery from accused Yusuf is doubtful and accordingly, accused Yusuf @ Galkata is given the benefit of doubt.
18. As regards the recovery of knife from accused Rustam, PW-2 Ct. Nand Lal testified that on 13.08.04, he alongwith H.C Ram Bhaj were on patrolling duty. At about 6 pm, a secret information was received to H.C Ram Bhaj that one person was standing near the corner of park of New Jaffrabad, with illicit knife. They reached at park and accused Rustam was apprehended on the pointing out of the secret informer. On conducting his cursory search, one button actuated knife was recovered from his right side pocket of his pant. The knife was measured and it was kept in a sealed parcel. The knife was taken into possession vide sizure memo Ex.PW7/B and the accused Rustam was arrested vide his arrest memo Ex.PW7/F. His personal search was conducted vide memo Ex.PW7/G.
19. PW-7 H.C Ram Bhaj Sharma similarly corroborated PW-2 regarding the apprehension of the accused Rustam and recovery of button actuated from him.
20. Ld. Counsel for the accused pointed out that there are material contradiction in the testimony of both the witnesses who are the police officials. PW-2 Ct. Nand Lal in his cross-examination, has categorically stated that the secret information was not reduced in writing. There was residential area near the place and not inhabitant of the residential area was made witness in this case. He further categorically stated that no public witness was joined prior to or subsequent to arrest and recovery. On the other hand, PW-7 H.C Ram Bhaj in his examination- in-chief, says that four-five passersby were requested to join but they left without telling their names and addresses. Further, it is submitted that the recovery his doubtful as the sketch of knife Ex.PW7/A, seizure memo Ex.PW7/B which were admittedly prepared prior to the registration of the FIR finds FIR number mentioned on them which creates doubt about the manner in which the recovery was effected and the recovery. Despite the fact that the place from where the recovery was effected was a residential area, no effort was made by the IO to join the public witnesses. Accused Rustam is accordingly given benefit of doubt.
21. Accordingly, as per the discussion above, accused Yusuf @ Galkata and Rustam @ Javed are acquitted of the charges in case FIR No: 149/2004 for the offences punishable U/s: 394/397/34 IPC & 25 of Arms Act. Accused Rustam @ Javed is also acquitted of the charges in case FIR No: 268/2004 for the offence punishable U/s 25/54/59 of Arms Act. Accused Yusuf @ Galkata be released from J/C forthwith, if not required in any other case. Bail bond of accused Rustam @ Javed stands cancelled. Surety discharged. File be consigned to record room.
Announced in the open Court today i.e on 12/08/09 (GURDEEP SINGH) Additional Sessions Judge Karkardooma Courts, Delhi FIR No: 149/2004 PS: Welcome, Delhi U/s: 394/397/34 IPC & 25 of Arms Act 12.8.2009 Pr.: Ld. Addl PP for the state Accused Yusuf @ Galkata in J/C with Sh. Abdul Sattar, Advocate.
Accused Rustam @ Javed on bail with Sh. K. K. Dikshit, Advocate Vide my separate common judgment announced today accused Yusuf @ Galkata and Rustam @ Javed are acquitted of the charges in case FIR No: 149/2004 for the offences punishable U/s: 394/397/34 IPC & 25 of Arms Act. Accused Rustam @ Javed is also acquitted of the charges in case FIR No: 268/2004 for the offence punishable U/s 25/54/59 of Arms Act. Accused Yusuf @ Galkata be released from J/C forthwith, if not required in any other case. Bail bond of accused Rustam @ Javed stands cancelled. Surety discharged. File be consigned to record room.
(GURDEEP SINGH) ASJ/NE-04/KKD/12.8.2009