Delhi District Court
State vs Mohd. Yunus @ Raju on 19 July, 2014
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IN THE COURT OF Ms. VEENA RANI, CHIEF METROPOLITAN
MAGISTRATE, DISTRICT SOUTH EAST, SAKET COURT, NEW DELHI.
STATE VERSUS Mohd. Yunus @ Raju
FIR No.38/2011
U/s 25/54/59 Arms Act
P. S. Crime Branch(SE)
Date of filing of the charge sheet : 15042011
Date of reserving order : Not reserved
Date of pronouncement : 19072014
JUDGEMENT
(a) Serial Number of the case : 42/5 of 2011
(b) The date of the commission of the : 15022011
offence
(c) The name of the complainant : HC Sandeep No:166/Crime.
(d) The name of the accused person, Yunus @ Raju S/o Mohd.
his parentage and residential Hazi Yasim R/o Village
address Post Mehmudpur Mafi,
Sambhal Road, PS
Manather, Distt.
Muradabad, U.P.
(e) The offence complained of : Section 25/54/59 Arms Act
(f) (1) The plea of the accused Yunus : Pleaded not guilty
(2) The plea of accused Tribhuvan Already Pleaded guilty &
Convicted vide order dated
vide order Dt.05072011.
FIR No. 38/2011, State Vs. Yunus @ Raju
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(g) The final order : Acquittal
(h) The date of the order : 19072014
PROSECUTION CASE:
1. In the present case, the charge sheet was filed U/s 25 of Arms Act by the Crime Branch of Delhi Police alleging that on 15022011, one secret informer Ct. Ashok that Tribhuvan and his associates will come to ICD, Tuglakabad between 8 p.m to 10 p.m, having illegal fire arms, for committing theft. Ct. Ashok gave this information to HC Ajit and produced informer before him. Further HC Ajit conveyed this secret information to Inspector Richpal Singh, who further informed ACP/ARC and also produced the informer before the ACP. ACP/ARC directed to prepare a raiding party. Thereafter, a raiding party was prepared consisting of HC Ajit Singh, Inspector Richpal, Ct. Sandeep, Ct. Mohid and secret informer, Ct. Ashok , SI Sanjay, Ct. Nihal and Ct. Manoj along with secret informed and reached at the spot told by the secret informer. There some passerby were asked to join the raiding party but they refused and left the spot. At about 9:10 p.m. two person came from Lal Kuan side and on seeing him secret informer informed that they are the Tribhuvan and Mohd. Yunus, HC with Ct. Nihal apprehended Tribhuvan and Ct. Ashok apprehended Mohd. Yunus. On the routine search of FIR No. 38/2011, State Vs. Yunus @ Raju 3 Tribhuvan by HC one country made illegal firearm was recovered from his left dhab of his pant which was found loaded with a live cartridge. From the routine search of accused Mohd. Yunus by Ct. Ashok one country made illegal firearm was recovered from his left dhab of his pant and opening of katta one live cartridge was found loaded in the same. IO prepared the sketch of the illegal arms recovered from the accused persons. Accused persons were arrested and necessary documents were prepared at the spot and on completion of investigation, chargesheet U/s 25/54/59 of Arms Act was filed against the accused persons.
2. Cognizance of the offence was taken by the Ld. Predecessor of this court vide order dated 1542011 against the accused persons and copies of charge sheet supplied to accused persons. Charge was framed against the accused persons for an offence U/s 25/54/59 of Arms Act.
3. On 05072011 accused Tribhuvan pleaded guilty and he was sentenced for imprisonment already undergone by him and the case was fixed for prosecution evidence qua the accused Mohd. Yunus.
4. The prosecution in order to prove its case had examined 9 witnesses namely PW1 Ct. Sandeep, PW2 Ct. Ashok, PW3 ASI Ashok Kumar, PW4 ASI Ajeet Singh, PW5 HC Jag Narain, PW6 K.C. Varshaney, PW7 Sanjay Bhatia, PW8 HC Sandeep and PW9 Inspector Richpal.
5. PW 4 ASI Ajeet Singh in his chief examination deposed that on dated 15.02.11 he was posted at PS Anti Robbery Cell at Nehru Place.
FIR No. 38/2011, State Vs. Yunus @ Raju 4 On that day at about 7:00 pm constable Ashok received a secret information regarding the arrival of the accused persons who were involved in the theft of one truck and they might having illegal weapons also. PW4 deposed that he alongwith Constable Ashok and informer gave the information to Inspector Richpal and he further gave the information to ACP. Inspector Richpal constituted a raiding party comprising SI Sanjay, HC Ajeet, Constable Nihal, Constable Sandeep, Constable Mohit, Constable Manoj including me. It is further deposed by PW4 that they left the office vide DD No. 11 and they went to the spot through two private vehicles and reached near ICD depot, Tughlakabad. Inspector Richpal asked 10 /15 persons to join the investigation but none agreed and went without disclosing their names and addresses. It is deposed by PW4 that they took their positions in different places near the spot. At about 9:30 pm they saw that two persons were coming from the side of Lal Quan on foot and on the pointing out of secret informer they apprehended both the accused persons. PW4 deposed that accused Tribhuvan was apprehended by him with the help of constable Nihal and accused Yunus was apprehended by constable Ashok. PW4 conducted the personal search of accused Tribhuvan and one desi katta was recovered on the possession of accused Tribhvan, Constable Ashok conducted the personal search of accused Yunus and one desi katta duly loaded was recovered from the right dub of the accused. Constable Ashok handed over the said FIR No. 38/2011, State Vs. Yunus @ Raju 5 katta and accused Yunus to PW4. PW4 further deposed that he opened both the said kattas which were recovered from both the accused persons and one live cartridge each was taken out from the said kattas. PW4 prepared sketch of the knife of both the kattas and live cartridges separately vide memos already Ex. PW 1/A and Ex. PW 1/B which are bearing his signatures at point X and seized and sealed both the kattas in different pulandas with the seal of AS vide memos already Ex. PW 1/C and Ex. PW 1/D which are bearing his signatures at point X respectively. PW4 prepared rukka vide Ex. PW 4/A which is bearing his signatures at point X and the case was got registered through constable Ashok. It is deposed by PW4 that Constable Ashok came back to the spot after registration of the case and he handed over copy of FIR and original rukka to him. Second IO HC Sandeep reached at the spot and PW4 handed over the accused and the recovered case alongwith documents to HC Sandeep for further investigation. HC Sandeep prepared site plan at the instance of PW4 instance which is Ex. PW 4/B which is bearing his signatures at point X. (Another co accused namely Tribhuvan already pleaded guilty). PW4 deposed that HC Sandeep recorded his statement. PW4 identified the accused Yunus in the court during his examination in chief and case property is already Ex. P1 and P2.
Despite opportunity given to the accused Yunus PW4 was not cross examined on his behalf or by him.
FIR No. 38/2011, State Vs. Yunus @ Raju 6
6. PW1, PW2 & PW9, who were also the member of the raiding party deposed on the same line as deposed by PW4.
7. PW3 is the duty officer who recorded the present case FIR on 15022011 at PS crime Branch which is Ex.PW3/A and his endorsement on rukka is Ex. PW3/B.
8. PW5 HC Jag Narain has brought the register no:19, of PS Crime Branch and relevant entry pertaining to the deposit of the case property is mentioned at serial no:831/11, copy of the same is Ex. PW5/A bearing his signature at point A(OSR).
9. PW6 Sh. K.C. Varshaney, Dy. Director, FSL Rohini, Delhi deposed that on 2822011 two sealed parcels, sealed with the seal of AS were received in the office of FSL pertaining to the present case along with forwarding letter and the same were marked to him for examination and opinion. The seals on the parcels were intact. On opening the parcels, the parcel no:1 contained one country made pistol of .315 inch bore and one cartridge of 8 mm/.315 inch which were marked Ex.F1 & A1 respectively by him. Parcel no:2 contained one country made pistol of .315 inch bore and one cartridge of 8 mm/.315 inch which were marked Ex.F2 & A2 respectively by him. PW6 further deposed that on examination of aforesaid exhibits, he found that the country made pistols Ex.F1 and F2 were in working order and test fire conducted successfully by using the cartridge Ex.A1 and A2 respectively. The country made pistols Ex.F1 and F2 were fire arms and the cartridges FIR No. 38/2011, State Vs. Yunus @ Raju 7 Ex.A1 and A2 were ammunition as per the definition of the Arms Act. The detailed report prepared by PW6 dated 11042011 in this regard is Ex. Pw6/A bears his signatures at point A on both pages. Despite opportunity accused Yunus has failed to cross examine PW6.
10. PW7 Sh. Sanjay Bhatia, DCP Railway and Metro deposed that on 18052011, after going through the documents of the present case he accorded the sanction for the prosecution of the accused Mohd. Yunus and accused Tribhuvan under section 39 of Arms Act vide Ex.PW7/A bearing his signature at point A.
11. PW8 is the second IO in the present case. PW8 deposed that on 1522011, he was posted as HC in CB, Nehru Place. On that day on receiving message from Duty Officer, he left his office after entering departure entry number DD No:13, which is Ex.PW8/A bearing his signature at point A, and proceeded towards near IC Depot Tuglakabad. He reached over there at about 11:10 p.m and met with HC Ajeet, inspector Richpal, SI Sanjay, Ct. Nihar, Ct. Manoj, Ct. Mohit and Ct. Sandeep. Two accused persons namely Yunus (present in the court today) and Tribhuvan were also present at the spot. PW8 deposed that HC Ajeet handed over two sealed pulandas, FSL forms, seizure memo, sketch of the country made pistols and cartridges to him, thereafter, he prepared site plan at the instance of HC Ajeet vide Ex.Pw4/B bearing his signature at point B. PW8 deposed that he arrested both the accused persons and their personal search was also conducted vide Ex.PW1/E, PW1/F, PW1/G and PW1/H bearing his signatures at point A. It is further deposed by PW8 that in the meantime Ct. Ashok reached at the FIR No. 38/2011, State Vs. Yunus @ Raju 8 spot and handed over the copy of FIR and original rukka to him and PW8 recorded the statements of witnesses, accused was sent to lock up and case property was deposited in Malkhana. PW8 further deposed that lateron he obtained sanction u/s 39 of Arms Act and collected FSL results, prepared the challan and submitted in the court.
12. Thereafter, the statement of the accused was recorded and accused chosen not to lead defence evidence.
13. I have heard the Ld. APP for State and Ld. Defence counsel and perused the material available on record.
14. It is argued by the Ld. APP for State that the case has been duly proved against the accused person beyond any reasonable doubt and he should be convicted. He argued that competent authority had given its Sanction for prosecution of accused person by applying its mind to the facts of the case and after considering relevant material and FSL Report. He had argued that the prosecution had been able to successfully prove that accused was in possession of Arms and Ammunition without any licence and therefore, he is liable to be held guilty for committing offence U/s 25 of Arms Act. As far as the case of the prosecution is concerned, the accused person was apprehended with the arms and ammunitions which he could not hold without valid licenses.
15. 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.
FIR No. 38/2011, State Vs. Yunus @ Raju 9
(a) No independent public witnesses have been joined at the time of recovery or during investigation despite their easy availability as the place where the alleged recovery had been affected was a public place. It is argued that merely a general allegation /averment that IO had asked few public persons to join the investigation but they had refused to participate and left the place by telling their genuine problem was not sufficient to evade the mandatory requirement of law of joining public witnesses. It is submitted that no written notice was given to those persons who had refused to join the investigation nor their particulars were recorded and the bald allegations of witnesses and IO in this regard were of no legal consequence.
(b) The mentioning of FIR Number on sketch memos and seizure memos clearly shows that these memos were prepared after registration of FIR and not prior to registration of FIR as alleged in the prosecution story. This fact clearly shows that all the proceeding have been done at the police station and not at the spot as alleged by PWs which proves that PWs were not stating the truth before the court.
(c) Even the notification, the violation of which had been alleged in the present case was also never placed on judicial record. Hence, all these short falls appearing in the story of prosecution are sufficient enough to cast a dent in the story of prosecution and its authenticity and FIR No. 38/2011, State Vs. Yunus @ Raju 10 genuineness and casts a serious shadow of doubt and suspicion over the same.
Reliance has also been placed by the learned Defence Counsel on the ratio of the case titled as "Abdul Sattar & Anr. Vs. State", reported in 2009 (4) JCC 3179 (Del.) wherein it has been held by our own Hon'ble High Court of Delhi that in the absence of a notification being placed or proved on record by the prosecution, it would be difficult to conclude that the possession of the recovered weapon from an accused was actuallyin contravention of Section 5 of the Arms Act, which is one of the main ingredients for offence punishable under Section 25 of the Arms Act.
The prosecution however, has neither placed nor proved any such Notification. Thus, in the absence of any evidence to that effect, it is difficult to conclude that the possession of above recovered knife and dagger by the respective appellants was in contravention of Section 5 of the Arms Act, which is one of the main ingredients for offence punishable under Section 25 of Arms Act.
16. As per Judgment of Manpreet Singh vs. State 2004 (1) JCC 1 it was held that:
"seal after sealing not handed over to the independent witness creates doubts and also not joining the independent witness creates doubt and violation of Section 100 (4) Cr.P.C."
17. In case titled as State of Haryana Vs. Ram Singh 2002 SCC (CRL) 351 Hon'ble Apex court had observed that when disclosure, discoveries and FIR No. 38/2011, State Vs. Yunus @ Raju 11 arrest are made in the absence of independent witness it creates a doubt or suspicion which must go to the benefit to the accused.
18. That if there are material contradictions in the statements of witnesses and no documentary proof of DD entry, then the prosecution case is not free from shadow of the doubts and failed to prove its case beyond any reasonable doubts then prosecution had failed as held in Satish Kumar vs. State 2013 (JCC) 441.
19. In case titled as Prithivi Pal Singh @ Munna Vs. State of Delhi 2000 Law Suit (Delhi) 197 it was held in Para 6 that:
"that the provision of the Code of Criminal Procedure relating to search, seizure or arrest apply to search, seizure and arrest under the act also to the extent they are not inconsistent with the provisions of the act. Thus while conducting search and seizure, in addition to the safeguard provided under Cr.P.C., the safe guard provided under the act are also required to be followed. It is well settled that failure to comply with the provisions of the Code of Criminal Procedure in respect of search and seizure and particularly those of sections 100, 102, 103, 164 per se does not vitiate the trial under the Act. But it has to be borne in mind that conducting a search and seizure in violation of statutory safeguardwould be violative of the reasonable fair and just procedure...................."
20. In Menka Gandhi Vs. Union of India it was held that when the statue itself provides for a reasonable, fair and just procedure, it must be honoured. Thus an accused has right to reasonable fair and just procedure. The statutory provisions embodied in section 41 to 55 and\ section 57 of the Act and FIR No. 38/2011, State Vs. Yunus @ Raju 12 Sections 100, 102, 103 and 165 of the Cr.P.C. Fair and reasonable, fair and just proper.
21. Section 43 of the act read alongwith sub section 4 of the Section 100 Cr.P.C. contemplates that search should as far as practicable be made in presence of two independent and respectable witnesses of the locality and if the designated officers fail to do so, the onus would be on the prosecution to establish that the association of such witnesses was not possible on the facts and circumstances of a particular case." "............. thus, the statutory desirability in the matter of search and seizure is that there should be two or more independet and respectable witnesses.
22. In the present case, only general allegations were being made that IO had made efforts to join public witnesses but nothing material had come on record to show the same such as the names of the persons who were asked to join the proceeding etc. Not only this, but also, no finger prints of accused persons were taken or lifted from the weapons alleged to have been recovered from their possession so as to link them with the said alleged possession and recovery.
Though, it is not the case that police witnesses were not material witnesses or on their sole testimonies accused could not have been convicted but it is well settled that in the absence of any independent witness, the contradictions in the testimonies though minor in nature should also be viewed seriously as decided in Kuldeep Singh Vs State of Haryana, 2004(4) RCR FIR No. 38/2011, State Vs. Yunus @ Raju 13 103 wherein it was held that: Recovery effected at a place where independent witness were available but not joined Discrepancies in statement of official witnesses Discrepancies assume importance when no independent witness was joined. In Passi @ Parkash V State of Haryana, 2001(1) RCR 435 wherein it was held that: Discrepancies in statement of witnesses assumed importance due to non joining with independent witness. Had an independent witness been joined these discrepancies would not have affected the prosecution. In Pawan Kumar Vs Delhi Admn. 1987 CC. Cases 585(HC) wherein it has been held that:
In the normal circumstances, the FIR number should not find mention on the recovery memo or the sketch plan which had come into existence before the registration of the case. However, from the perusal of the recovery memo, I find that the FIR is mentioned whereas the sketch plan does not show the number of FIR. It is not explained as to how and under what circumstances, the recovery memo came to bear the FIR number which had already come into existence before the registration of the case. These are few of the circumstances which created a doubt about the genuineness of the weapon of offence alleged to have been recovered from the accused. If in the recovery memo description of the weapon shows defers or did not find mentioned in the sketch plan, it creates a doubt about the identify of the weapon from the accused. It was also held that where the IO does not make any attempt to make any public witness despite the presence of large number of persons on the spot and no plausible explanation comes from the side of prosecution in forth coming for FIR No. 38/2011, State Vs. Yunus @ Raju 14 non joining of independent witnesses in a case of serious nature like 25 Arms Act, it creates a doubt on the arrest and the recovery of the weapon from the person of the accused.
23. In view of above mentioned judgments, I am of the opinion that merely on the basis of routine identical statements of police witnesses, it would not be safe to hold accused guilty as there are above mentioned shortcomings in the case of prosecution which cast a doubt and makes the accused entitled for every benefit of doubt, hence I am of the opinion that prosecution has failed to prove its case beyond reasonable doubt against the accused and accused namely Yunus @ Raju is stands acquitted for the offence U/s 25/54/59 of Arms Act.
4. On oral request for the counsel for accused previous bail bond of the accused is accepted in compliance of Section 437(A) of Cr.P.C. File be consigned to record room.
ANNOUNCED IN THE OPEN COURT ( VEENA RANI)
TODAY ON 19072014 CMM/SE/SAKET COURT/ND.
FIR No. 38/2011, State Vs. Yunus @ Raju