Delhi District Court
State vs Yakub on 14 May, 2012
State v. Yakub
IN THE COURT OF SH. SANJAY SHARMA, ADDITIONAL
CHIEF METROPOLITAN MAGISTRATE, DISTRICT SOUTH
EAST, SAKET COURT, NEW DELHI.
Case No.27/3N
Unique Case I.D. No.02403R0161022006
STATE VERSUS YAKUB
FIR No.359/05
U/s 25 Arms Act
P. S. New Friends Colony
Date of filing of the charge sheet: 27.03.2006
Date of reserving order : 14.05.2012
Date of pronouncement : 14.05.2012
JUDGEMENT
(a Serial Number of the case : 27/3N )
(b The date of the commission : 14.07.2005
) of the offence
(c The name of the : Ct. Ramesh Kumar No.
) complainant 767/SD, PIS No.28960220,
Police Station New
Friends Colony.
(d The name of the accused : Sh. Yakub S/o Sh.
) person, his parentage and Maqsood R/o H. No.199,
residential address Gali No. 22, Jakir Nagar,
Jamia Nagar, New Delhi.
(e The offence complained of : Section 25 Arms Act, 1959
)
(f) The plea of the accused : Pleaded not guilty
(g The final order : Acquittal
)
(h The date of the order : 14.05.2012
)
Case No.27/3N
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State v. Yakub
PROSECUTION CASE:
1. The case of the prosecution, in brief, is that on 14.07.2005 at 07.45 PM, Ct. Ramesh Kumar (PW-3) while patrolling in the area of police station New Friends Colony reached near Altaquba Masjid, Joga Bai Extension, Batla House, New Delhi and noticed that the accused was running from the corner of the Masjid towards Nai Sarak. Ct. Ramesh Kumar apprehended the accused after chasing him 15-20 steps. The accused could not offer any satisfactory reason of running. It generated suspicion. Ct. Ramesh Kumar (PW-3) conducted his personal search. As a result, a button actuated knife was recovered from right pocket of his trousers. Ct. Ramesh Kumar (PW-3) informed the matter to the police post. On receiving wireless message, HC Yash Pal (PW-4) reached at the site where he recorded statement Ex.PW-3/C of Ct. Ramesh Kumar (PW-3) and requested 4-5 passer byes to join the proceedings but they proceeded on their way after expressing their genuine excuses without disclosing their names and addresses. HC Yash Pal (PW-4) opened the said knife with the help of button and prepared a sketch thereof Ex.PW-3/A on a white paper. On measurement, the total length of the said knife was found 23.5 cm comprising 12.5 cm handle and 11 cm blade with 2.5 cm breadth. HC Yash Pal (PW-4) closed the said knife with the help of a button and kept it in a white cloth and sealed the pullanda with his seal 'YP', and seized the knife vide Seizure Memo Ex.PW-3/B, and handed over the seal to Ct. Ramesh Kumar (PW-3). The accused was found in possession of a knife in contravention of Notification dated Case No.27/3N Page 2 of 12 State v. Yakub 17.02.1979 Ex.PW-2/A and thus, he had committed an offence punishable U/s 25 of the Arms Act.
2. Therefore, HC Yash Pal (PW-4) sent a rukka Ex.PW-4/A at 08.50 PM to P. S. New Friends Colony through Ct. Ramesh Kumar (PW-3) for registration of FIR. As a result, the case FIR Ex.PW-1/A was registered at 09.10 PM and investigation was marked to HC Yash Pal (PW-4). During investigation, HC Yash Pal (PW-4) prepared the site plan Ex.PW-4/B at the instance of Ct. Ramesh Kumar (PW-3), recorded statement of witnesses, arrested the accused vide Arrest Memo Ex.PW-3/D and conducted personal search vide Personal Search Memo Ex.PW-3/E and deposited case property Ex.P-1 in Malkhana. On completion of investigation, HC Yash Pal (PW-4) filed charge-sheet under Section 25 of the Arms Act, 1959 against the accused.
3. The Court had taken cognizance of offence under Section 25 of the Arms Act and issued process to the accused. The accused was supplied copy of charge sheet and accompanying documents as provided u/s 207 Cr.P.C.
4. On appraisal of material on record, the Court framed charge under Section 25 of the Arms Act against the accused to which he pleaded not guilty and claimed trial.
5. In order to prove its case, the prosecution examined four witnesses namely HC Suresh Chander (PW-1), Sh. Anil Yadav from Home Department, Delhi Secretariat (PW2), HC Ramesh Kumar (PW-3) and IO ASI Yash Pal (PW-4).
Case No.27/3N Page 3 of 12 State v. Yakub
6. In his statement recorded U/s 281 of the Cr.P.C., the accused alleged false implication and pleaded innocence.
7. I have heard Ld. APP for State and Sh. Vijay Pal Bidhuri, Advocate for the accused and considered the evidence on record.
8. PW-1 HC Suresh Chander is the Duty Officer. He recorded the FIR Ex.PW-1/A at 09.10 PM on 14.07.2005 on receipt of rukka Ex.PW-4/A sent by PW-4 HC Yash Pal.
9. PW-2 Sh. Anil Yadav, UDC, Home Department, Delhi Secretariat, Delhi proved Notification dated 17.02.1979 Ex.PW-2/A issued by Ms. Jai Shree Raghuraman, the then Under Secretary (Home - General), Delhi Administration, Delhi.
10. PW-3 HC Ramesh is the complainant in this case. He was posted as a Constable with PS New Friends Colony. According to him, on 14.07.2005, he was patrolling in the area of Joga Bai Extension. At 07.45 PM when he reached near Altaqua Masjid, the accused came from Nai Sarak side. He deposed that on seeing him, he tried to run away from the spot. He deposed that on suspicion, he apprehended him after chasing him for 15-20 paces. He deposed that the said person could not give any satisfactory reply. He deposed that on cursory search of the accused, one buttondar knife was recovered from the right pocket of his trousers. He deposed that he had given information to police post and HC Yash Pal reached at the spot. HC Yash Pal (PW-4) opened the knife with the help of button and the Case No.27/3N Page 4 of 12 State v. Yakub prepared the sketch thereof after taking its measurements, and closed the knife and prepared a pullanda and sealed it with his seal 'YP' and handed him over the seal. He deposed that HC Yash Pal (PW-4) seized the said knife and recorded his statement Ex.PW-3/C.
11. PW-3 HC Ramesh Kumar deposed that HC Yash Pal prepared a rukka Ex.PW-4/A and handed over to him for registration of FIR. He deposed that he got the FIR Ex.PW-1/A registered and returned to the spot with original rukka Ex.PW-4/A and a copy of FIR Ex.PW-1/A and handed over the said documents to HC Yash Pal (PW-4). He deposed that HC Yash Pal (PW-4) prepared the site plan Ex.PW-4/B at his instance, arrested the accused and conducted his personal search. He deposed that HC Yash Pal (PW-4) deposited the case property in the Malkhana. He proved Sketch of the recovered knife Ex.PW-3/B and Seizure Memo Ex.PW-3/C, Arrest Memo Ex.PW-3/D and Personal Search Memo Ex.PW-3/E. He identified the accused and the case property Ex.P-1.
12. In his cross - examination, PW-4 ASI Yash Pal stated that that the spot is a public place and few public persons were passing by. He stated that he requested few public persons to join the investigation but none of them agreed and left the place without disclosing their names and addresses on justified excuses. He stated that no notice was served upon the public person who refused to join the investigation.
13. Ld. APP argued that on 14.07.2005 at 07.45 PM PW-3 Ct. Ramesh while patrolling near Alatqua Masjid, Joga Case No.27/3N Page 5 of 12 State v. Yakub Bai Extension, Batla House, New Delhi apprehended the accused with a button actuated knife. He argued that PW-3 Ct. Ramesh Kumar is a natural witness and his depositions have a ring of truth. He argued that PW-3 has proved recovery of illegal knife from the possession of the accused. He argued that the depositions of PW-3 are credible and trustworthy.
14. Ld. APP argued that PW-3 has no enmity against the accused. He argued that testimony of PW-3 cannot be doubted on the sole premise that there is no public witness to the seizure of the illegal knife. He argued that ordinarily, there is reluctance on the part of public to become witness. He argued that PW-4 made efforts to join public persons to join seizure proceedings but they were not agreeable. He argued that the defence failed to elicit any contradiction in testimony of prosecution witness. He argued that testimony of PW-3 and PW-4 has been corroborated by FIR Ex.PW-1/A and rukka Ex.PW-4/A. He argued that the accused was in possession of the knife in contravention of DAD Notification dated 17.02.1979 Ex.PW-2/A and therefore, he is liable to be held guilty for committing offence U/s 25 of Arms Act, 1959.
15. Ld. Defence Counsel contended that the accused was arrested from a public place. He argued that public persons were available to witness search and seizure proceedings but no sincere effort was made to join them. He argued that there is no independent witness to search and seizure proceedings. He argued that PW-3 has not deposed that he had made any effort to join any public person to join any public person to search and recovery of the alleged knife. He argued that PW-4 not made any efforts to join any Case No.27/3N Page 6 of 12 State v. Yakub person who had seen search and recovery of the alleged knife. He argued that no written notice was served upon any person to join seizure proceedings. He argued that the accused cannot be convicted on the basis of un- corroborated deposition of PW-3 and PW-4. He argued that the documents were tempered after registration of FIR and the accused is entitled to be acquitted from charge under Section 25 Arms Act, 1959.
16. Besides a police official PW-3 Ct. Ramesh Kumar, there is no public witness to the search and seizure of alleged knife from the possession of the accused.
17. In State of Punjab v. Gurnam Singh, AIR 1984 SC 1799(1); it was held that:
"2. The High Court has taken the view that it is unsafe to convict the appellant merely on the basis of the uncorroborated evidence pertaining to the alleged recovery of the weapon at the instance of the respondent. And that the respondent is therefore entitled to benefit of reasonable doubt. The view taken by the High Court is a plausible one. The appeal must accordingly fail and be dismissed."
18. In Sans Pal Singh v. State of Delhi, AIR 1999 SC 49; the Hon'ble Supreme Court held as under:
"3. Inter alia, it has been urged by learned counsel for the appellant that it would not be safe to maintain the conviction because the recovery of the illicit arms did not inspire confidence, supported as it is, by the evidence of two police officials alone, unassociated by the testimony of any independent witness. It has also been urged that witnesses of the public were available and neither were they associated nor was any explanation given at the trial as to why they were not associated. From the evidence of PW-5 Head constable, Sat Pal Singh, it is clear that the police party did not ask any public witness to be witness at the time of search of the accused. Likewise, P.W. 6, Sub Inspector, Mahipal Singh has also stated that no public witness was joined at the time of the search of the accused Case No.27/3N Page 7 of 12 State v. Yakub even though a number of persons were passing through at the time when the recovery was being effected. It is thus evident that public witnesses were available and could have been associated to witness the recovery. It would have been a different matter altogether had there been no public witness available or none was willing to associate. Here, as said before, public witnesses were available but no explanation on these lines is forthcoming. Thus, we got to the view that it would be unsafe to maintain the conviction of the appellant for the offences charged. We, therefore, order his acquittal. He is in jail. He be set at liberty forthwith."
19. In Narsi v. State of Haryana, AIR 1999 SC 234; the Hon'ble Supreme Court noted that "In absence of any independent evidence, seizure of a pistol and a cartridge from possession of the appellant becomes doubtful."
20. In Sahib Singh v. Sate of Punjab, AIR 1997 SC 2417; the Hon'ble Supreme Court held that "7.... Before conducting a search the concerned police officer is required to call upon some independent and respectable people of the locality to witness the search. In a given case it may so happen that no such person is available or, even if available, is not willing to be a party to such search. It may also be that after joining the search, such persons later on turn hostile. In any of these eventualities the evidence of the police officers who conducted the search cannot be disbelieved solely on the ground that no independent and respectable witness was examined to prove the search but if it is found - as in the present case - that no attempt was even made by the concerned police officer to join with him some persons of the locality who were admittedly available to witness the recovery, it would affect the weight of evidence of the Police Officer, though not its admissibility."
21. In Chitwant Singh v. State of Punjab, AIR 1999 SC 1606; it was held that Case No.27/3N Page 8 of 12 State v. Yakub "There is also no independent witness to the seizure of the rifle and the cartridges. For all these reasons, there is occasion to entertain doubt about the prosecution case."
22. In Staila Sayyed v. State, 2008(10) A.D.(Delhi) 91; the Hon'ble High Court of Delhi held that "We are of the view that the absence of any other evidence against the accused except that given only by the police witnesses makes it extremely unsafe to sustain the conviction of the appellants.
23. The prosecution case hinges on the sole testimony of PW-3 Ct. Ramesh. There is no independent witness to the search and seizure proceedings. PW-3 categorically stated that "It is correct that the spot is a public place and the public persons were passing by." According to the case of the prosecution, PW-3 Ct. Ramesh apprehended and carried out personal search of the accused. There is no explanation as to why PW-3 Ct. Ramesh had not joined or made any efforts to join any public person to witness search and recovery proceedings despite availability. PW-4 Yash Pal had reached the site after recovery of the alleged knife. In his examination in chief, he has not stated that he had requested any person to join any public person to seizure proceedings. In his cross - examination, PW-4 Yash Pal stated that "It is correct that the spot is a public place and the public persons were passing by. I requested few public persons to join the investigation but none of them agreed and left the place without disclosing their names and addresses on justified excuses. It is correct that no written notice was served upon the public person who refused to join investigation. I do not know what else was recovered in the personal search of the Case No.27/3N Page 9 of 12 State v. Yakub accused." Such a general and routine explanation cannot be accepted.
24. Absence of public witness despite availability casts serious doubt on the prosecution case. It would not be safe to convict the accused because recovery of the said knife does not inspire confidence, supported as it is, by deposition of a police official alone, unassociated by the testimony of any independent witness.
25. In Prithvi Pal Singh @ Munna v. State, (Delhi) 2001 (1) R.C.R. (Cri.) 482; Hon'ble Delhi High Court held that "8...... It is also undisputed that the appellant was apprehended in the market, which is a crowded place. Prosecution witnesses Constable Raj Kumar (PW-3), SI Rishal Singh (PW-4), SI Pannalal (PW-5), A.C.P Manaktala (PW-8) and A.C.P. J.S. Rana (PW-11), who were members of the raiding party, want us to believe that at the relevant time public witnesses were approached but they declined to join the raiding party. It is worth mentioning that the evidence of the said police officials is conspicuous by the absence of any description as to who were the persons who were asked to witness the search and seizure and whether they were called upon to do so by an order in writing. Reference may in this context be made to the provision of sub-Section (8) of Section 100 Cr.P.C., which provides that any person, who without reasonable cause, refuses or neglects to attend and witness a search under Section 100 of the Code, when called upon to do so by an order in writing delivered or tendered to him, shall be deemed to have committed an offence under Section 187 IPC. In the instant case, there is nothing to indicate that the authorized officer had served or even attempted to serve an order in writing upon any public witness as envisaged by sub- Section (8) of Section 100 Cr.P.C."
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26. There is another aspect of the matter which goes to the root of the matter. According to prosecution, the Sketch of the alleged knife Ex.PW-3/A and Seizure Memo Ex.PW-3/B were prepared before registration of FIR Ex.PW-1/A. There is no explanation as to how the particulars of FIR found mentioned on sketch plan Ex.PW-3/A and Seizure Memo Ex.PW-1/B. The particulars of FIR on the top of the said documents appear to have been written with the same pen and handwriting and after registration of FIR. It adversely affects the credibility of the prosecution case. Tempering with Sketch Plan Ex.PW-3/A and Seizure Memo Ex.PW-3/B casts serious doubt on the prosecution case.
27. Dealing with an identical fact situation, Hon'ble High Court in Prithvi Pal Singh's case (supra) observed that "It gives rise to two inferences that either the FIR (Ex. PW-7/A) was registered prior to the alleged recovery of the contraband or that number of the FIR was inserted in these documents after its registration. In both the situations, it seriously reflects upon the veracity of the prosecution case and robs the efficacy of the evidence of the aforesaid police officials regarding the alleged recovery of contraband from the appellant's possession."
28. In view of these features, I am of the opinion that the depositions of PW-3 and PW-4 do not inspire confidence. It will be highly unsafe to place reliance upon sole testimony of PW-3 to convict the accused especially when public and independent witnesses were not joined and the Sketch Plan Ex.PW-3/A and Seizure Memo Ex.PW-3/B were tempered.
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29. Therefore, it is hereby held that the prosecution has failed to prove seizure and recovery of the knife in contravention of notification dated 17.02.1979 Ex. PW-2/A.
30. Accordingly, the accused Yakub is acquitted from charge under Section 25 of the Arms Act.
Announced in the open Court on 14.05.2012 (SANJAY SHARMA) ACMM - 01/SE, SAKET COURTS, NEW DELHI.
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