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2007 DIGILAW 1875 (PNJ)

Yakka Ullah @ Abbu Usman v. State of Punjab

2007-10-17

A.N.JINDAL

body2007
JUDGMENT A.N. Jindal, J.:- This appeal is directed against the judgment of conviction and sentence dated 31.7.2003 passed by the learned Additional Sessions Judge (Adhoc), Fast Tract Court, Gurdaspur, whereby the accused-appellant Yakka Ulah (hereinafter referred to as ‘the accused’) was convicted under Sections 4/5 Explosive Substances Act; 25 Arms Act and Section 14 of Foreigners Act and was sentenced as under :- U/s 4 of the Explosive To undergo rigorous imprisonment for seven Substances Act years and to pay fine of Rs.1000/- U/s 5 of the Explosive To undergo rigorous imprisonment for six years Substances Act and to pay fine of Rs.1000/- U/s 25 of Arms Act To undergo rigorous imprisonment for five years and to pay fine of Rs.500/- U/s 14 of the Foreigners Act To undergo rigorous imprisonment for three years and to pay fine of Rs.500/- 2. The facts of the case as unfolded by the prosecution are that on 11.8.2000, during investigation of the case FIR No.98 dated 28.7.2000 under Section 307/34 read with Section 25 Arms Act; 4/5 Explosive Substances Act and Section 14 of Foreigners Act, when Inspector Major Singh and DSP Paramdeep Singh were further investigating the case, the Investigating Officer during the course of interrogation of the accused recorded his confessional statement to the effect that “he had kept concealed two hand grenades HE 36, four magazines of AK 47 rifle, forty rounds of AK 47 rifle after wrapping the same in a plastic bag and buried the aforesaid ammunition near Gurudwara Manji Sahib on the bank of river Beas, about which only he knew and could get the same recovered”. In pursuance of the aforesaid statement, the accused got recovered the aforesaid articles which were taken into possession vide memo Ex.PC. On the basis of the ruqa, FIR Ex.PW5/B was registered against the accused. Rough site plan Ex.PW5/D was prepared; statement of the witnesses were recorded and completion of the investigation was followed by the challan against him. 3. Consequently, charges under Sections 25 of Arms Act, 14 of the Foreigners Act and 4/5 of Explosive Substances Act were framed against the accused to which he pleaded not guilty and claimed trial. 4. During trial, the prosecution examined Jagdish Chander (PW1), ASI Darshan Singh (PW2), ASI Harpal Singh (PW3), ASI Sham Lal (PW4) and Inspector Major Singh Investigating Officer (PW5). 5. 4. During trial, the prosecution examined Jagdish Chander (PW1), ASI Darshan Singh (PW2), ASI Harpal Singh (PW3), ASI Sham Lal (PW4) and Inspector Major Singh Investigating Officer (PW5). 5. When examined under Section 313 Cr.P.C., while denying all the incriminating circumstances appearing against him he pleaded his false implication in the case and further submitted that he had come to India to meet his relatives when the police illegally detained him and involved him in the aforesaid case. 6. The trial ended in conviction. Hence this appeal. 7. Arguments heard. Records perused. 8. The main thrust of the arguments as advanced by the learned counsel for the appellant, in order to prove the innocence of the accused, is that the accused was in custody since 28.7.2000 and it was suddenly on 11.8.2000, that he was taken out, his statement was recorded, therefore, such statement could not be believed, consequently, the recovery of the ammunition as referred to in the statement Ex.PB is not worth believing. 9. Having heard the rival contentions, it would be worth while to mention here that in order to bring home the charge against the accused, the prosecution is banking upon the statement of ASI Darshan Singh (PW2) and Inspector Major Singh (PW5). Both the witnesses are officers of the armed police and their testimonies do not find corroboration from any independent source. The prosecution has tried to base the conviction of the accused on the statement Ex.PB under Section 27 of the Indian Evidence Act, recorded by Inspector Major Singh Investigating Officer (PW5). But, testimonies of both these witnesses have failed to inspire confidence of this Court so as to believe them regarding effecting recovery of 4 magazines of AK47 rifle Ex.P1 to Ex.P4, 40 live cartridges of AK47 rifle Ex.P5 to Ex.P45 and two hand grenades Ex.P45 and Ex.P46, for the reasons firstly that the accused was inside the jail since 28.7.2000 and it was only after 13 days when the alleged statement under Section 27 of the Indian Evidence Act was reduced into writing. In any case, no independent witness was joined by Inspector Major Singh (PW5) at the time of interrogation of the accused especially when he had the ample opportunity to join such witnesses. The place of recovery is stated to be near thoroughfare and easily accessible to the general public. In any case, no independent witness was joined by Inspector Major Singh (PW5) at the time of interrogation of the accused especially when he had the ample opportunity to join such witnesses. The place of recovery is stated to be near thoroughfare and easily accessible to the general public. Nothing has come on record as to if the accused had given any identification mark of the aforesaid incriminating material before getting the recovery effected. It is also surprising to see that in the earlier case registered against him vide FIR No.98 dated 28.7.2000, the recovery was effected from him in pursuance of the statement recorded under Section 27 of the Indian Evidence Act on 29.7.2000, therefore, if the accused had the knowledge of the incriminating material as unfolded in this case or he had placed such incriminating articles, then there was no difficulty with the police to derive the knowledge of the articles involved in this case at that time or he would have also disclosed about the said articles at the time of his earlier statement. The prosecution has failed to point out any change in the circumstances which prompted him to disclose about the recovery of the articles in the subsequent statement recorded after 13 days of his previous statement. The accused being not an Indian national and not hailing from the area from where the recovery was effected could not be supposed to conceal such material at a place about the topography of which he was never familiar as such it was difficult to specify that place as alleged by the prosecution. No independent witness was summoned to attest the recovery memo. 10. Even the statement of armourer could not be believed as he did not physically try to bring the arms and ammunition into operation. He has also not given the method of his checking so as to reach the conclusion regarding the serviceability of the incriminating arms and ammunition. The accused being the foreign national must have been in possession of AK47 rifle if he had concealed 4 magazines of such rifle, but no such rifle was recovered from him. Consequently, the recovery of the arms and ammunition as alleged by the prosecution can hardly be believed. 11. The accused being the foreign national must have been in possession of AK47 rifle if he had concealed 4 magazines of such rifle, but no such rifle was recovered from him. Consequently, the recovery of the arms and ammunition as alleged by the prosecution can hardly be believed. 11. As regard the offence under Foreigners Act, the accused has already been tried under Section 14 of the Foreigners Act in case FIR No. 98 dated 28.7.2000, as such he cannot be tried twice for the same offence. 12. While scanning the impugned judgment minutely and the same is shorn of proper appreciation of evidence. The aforesaid facts and circumstances were not taken into consideration while recording the judgment of conviction against him, therefore, interference in the impugned judgment has become inevitable. 13. For the foregoing reasons, I accept the appeal, set aside the impugned judgment, acquit the accused of the charges framed against him and direct that he be set at liberty forthwith, if not required in any other case. Fine, if any deposited by him, be refunded. 14. Before parting with the judgment, it has been brought to my notice by Mr. Sanjeev Kumar, learned counsel for the appellant that during the long incarceration of the accused since 28.7.2000, though he remained under trial and convict and was put to work at different places at different times, yet he has not been paid any remuneration for the same. Under these circumstances, Superintendent, Central Jail, Gurdaspur is directed to look into the matter and facilitate the appellant to have his permissible remuneration for the work he has done during his exile so that he may convey a good message about the behaviour of the jail authorities when he would be back to his country. —————————