Delhi District Court
State vs . Sanjeev Maheshwari on 18 September, 2012
Case No.56/3: PS Special Cell: U/s 25(1-B) (a) Arms Act DOD : 18.09.2012 IN THE COURT OF SH. VIDYA PRAKASH CHIEF METROPOLITAN MAGISTRATE DELHI State Vs. Sanjeev Maheshwari FIR No. 32/06 PS: Special Cell U/s 25/54/59 Arms Act ID No. 02401R0588372006 JUDGMENT
A) Sl. No. of the case : 56/3
B) The date of commission : 14.05.2006
of offence
C) The name of the complainant : SI Vinay Tyagi
Special Cell,NDR/OC,
Lodhi Colony, Delhi.
D) The name & address of accused : Sanjeev Maheshwari
@ Jeewa
s/o Sh. Om Parkash,
R/o Village Adampur, PS
Bheron Kalan District
Mujjafar Nagar, UP.
Presently residing at:
Gali no. 10, Second
Pushta, Sonia Vihar,
near Bengali Doctor
State Vs. Sanjeev Maheshwari (Convicted) Page No. 1/29
Case No.56/3: PS Special Cell: U/s 25(1-B) (a) Arms Act DOD : 18.09.2012
Shop,Delhi.
E) Offences complained of : U/s 25(1B) (a) Arms
Act
F) The plea of accused : Pleaded not guilty
G) Final order : Convicted
H) The date of such order : 18.09.12
Date of Institution: 05.07.2006
Judgment reserved on: 18.09.2012
Judgment announced on: 18.09.2012
THE BRIEF REASONS FOR THE JUDGMENT:
1. The accused Sanjeev Maheshwari @ Jeewa is facing trial for the offence u/s 25 Arms Act on the allegations that on 15.05.06 at about 1.00 pm at Siraspur Turn, Near Gurudwara, GT Karnal Road, Delhi, he was found in possession of one loaded country made pistol having total length 23 ½ cm and its barrel's length 13 cm, length of body 8 ½ cm and length of butt 10 ½ cm alongwith six live cartridges of .32 bore each, in contravention to Section 3 of the Arms Act 1959 and thereby committed an offence punishable u/s 25(1B) (a) of Arms Act 1959.
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2. In brief, the case of prosecution is that on 14.05.06 at about 10 am, Inspector M.C Sharma Special Cell NDR Lodhi Road received an information through telephone that one Sanjeev Maheshwari @ Jiwa @ Doctor armed with weapons would come to Bus stand, Siraspur more, GT Karnal Road, Delhi to meet his relative at about 12.30 pm. If raid is conducted then he could be arrested. The said information was brought to the notice of senior officers who ordered to form a raiding party and to take appropriate action immediately. Accordingly under the supervision of Inspector M.C Sharma, raiding party consisting of Inspector Sanjay Dutt, SI Rahul, SI Vinay Tyagi, SI Dalip Kumar, SI Pawan Kumar, ASI Anil Tyagi, ASI Satish Kumar, HC Ajit Singh, HC Hansraj, HC Krishna Ram, Ct Bijender, Ct. Iqbal Singh was prepared. All the members of raiding party alongwith secret informer left to the said place in private vehicles at about 10.30 am vide DD No. 5 and reached the said place at about 11.45 am. SI Vinay Tyagi shared the secret information with 45 passers by and asked them to join the raiding party but none agreed and left on expressing their individual difficulties and without disclosing their names and addresses. Due to shortage of time, no State Vs. Sanjeev Maheshwari (Convicted) Page No. 3/29 Case No.56/3: PS Special Cell: U/s 25(1-B) (a) Arms Act DOD : 18.09.2012 notice could be served upon the said witnesses. At about 1 pm, one person came from the side of Siraspur More towards Shiv Dharam Kanta. Secret informer gave signal towards that person by claiming him to be Sanjeev Maheshwari @ Jiwa @ Doctor i.e the accused herein and went away from the spot. The said person was got stopped by ASI Anil Tyagi and was apprehended. On inquiry, his name was revealed as Sanjeev Maheshwari @ Jiwa @ Doctor. On formal search by SI Vinay Tyagi of accused Sanjeev Maheshwari @ Jiwa @ Doctor, one country made pistol was recovered from the right side dub of his pant and six live cartridge were also recovered from his pocket.
3. The country made pistol recovered from accused Sanjeev Maheshwari @ Jiwa @ Doctor was loaded one and six live cartridges were found therein. Thereafter, rough sketch of pistol as well as of live cartridges was prepared. The total length of the said pistol was 23 ½ cm, length of barrel 13 cm, length of body 8 ½ cm and length of handle 10 ½ cm. Pullanda of country made pistol as well as of live cartridges was prepared by SI Vinay Tyagi which was sealed with the seal of VKT. FSL form was also prepared and seal after use was State Vs. Sanjeev Maheshwari (Convicted) Page No. 4/29 Case No.56/3: PS Special Cell: U/s 25(1-B) (a) Arms Act DOD : 18.09.2012 handed over to ASI Anil Tyagi. FIR was got registered through ASI Anil Tyagi and further investigation was handed over to SI Subhash Vats who prepared the site plan at the instance of SI Anil Tyagi, arrested the accused, recorded the statements of the witnesses and also obtained sanction u/s 39 Arms Act for prosecuting the accused Sanjeev Maheshwari @ Jiwa @ Doctor.
4. After completion of investigation, charge sheet U/s 25 Arms Act was prepared against the accused person and was filed in the Court.
5. After complying with the provisions of Sec. 207 Cr.P.C., arguments on charge were heard and vide order dated 05.09.06, charge was framed U/s 25 Arms Act against the accused to which he pleaded not guilty and claimed trial.
6. In support of its case, the prosecution has examined eight witnesses namely PW1 SI Vinay Tyagi, PW2 ASI Anil Tyagi, PW3 Sh. A. Dey Principal Scientific Officer Cum Assistant Chemical State Vs. Sanjeev Maheshwari (Convicted) Page No. 5/29 Case No.56/3: PS Special Cell: U/s 25(1-B) (a) Arms Act DOD : 18.09.2012 Examiner, Govt. of India, CFSL, CBI New Delhi, PW4 SI Jaipal Singh, PW5 SI Dilip Kumar, PW6 SI Bhopal Singh, PW7 HC Satender Kumar and PW8 Inspector Subhash Vats.
7. Thereafter, the statement of accused was recorded under Section 281 Cr.P.C. in which the stand of the accused Sanjeev Maheshwari @ Jiwa @ Doctor was of general denial. Accused stated that he is innocent and has falsely been implicated in this case by the police officials by lifting him from his residential house and nothing was recovered from his possession. However, he opted not to lead any DE.
8. I have heard the arguments of Ld. Substitute APP for the State and Ld. Counsel Sh. K.S. Singh, adv. on behalf of accused. I have also perused the record carefully.
9. Out of the aforesaid eight witnesses examined by the prosecution, PW1 namely ASI Vinay Tyagi, PW2 ASI Anil Tyagi, PW5 SI Dalip Kumar and PW8 Inspector Subhash Vats are the State Vs. Sanjeev Maheshwari (Convicted) Page No. 6/29 Case No.56/3: PS Special Cell: U/s 25(1-B) (a) Arms Act DOD : 18.09.2012 material witnesses relied by prosecution.
10. PW3 namely A. Dey Principal Scientific Officer Cum Assistant Chemical Examiner, Govt. of India, CFSL, CBI New Delhi, is the Ballistic Expert who has proved his detailed report regarding examination of exhibits as PW3/A. He testified that on 24.5.06, one sealed parcel duly sealed with the seal of VKT was received in the office of CFSL, Lodhi Road. Seals appearing on the said parcels were found to be intact and same were tallying with the specimen seal forwarded in this case. After examination, he found that revolver of .32 bore marked W1 was in working order and six live cartridges of .32 bore marked C1 to C6 were live cartridges. He had conducted test fire of cartridge marked C1 with revolver mark W1. He also correctly identified the said revolver Ex P1, empty cartridge Ex P2 and five live cartridges Ex P3 collectively during trial. In his cross examination, he admitted that the deposition made by him is based upon his report Ex PW3/A. He explained that test firing was got conducted between 7.6.06 and 09.06.06 and during said period, the weapon was in his custody under lock and key.
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11. PW4 namely ASI Jai Pal Singh has proved the sanction order Ex PW4/A in terms of Sec. 39 of Arms Act for prosecuting the accused herein in this case. He also identified the signature of Sh. Ajay Kumar DCP Special Cell appearing on Ex PW4/A. He has not been cross examined by the accused despite grant of opportunity.
12. PW6 is the Duty Officer who has simply proved the copy of FIR No.32/06 as Ex.PW6/A. He has also not been cross examined by the accused.
13. PW7 HC Satender Kumar deposed that on 24.05.06, he had obtained one sealed packet bearing seal of VKT from MHC(M) vide RC No. 60/21. He deposited the sealed packet at CFSL, CGO Complex, Lodhi Road. He deposed that during the period sealed packet remained in his custody, same was not tampered with. During cross examination, he deposed that he had obtained the case property from Malkhana at about 1 P.M and reached at the office of CFSL at about 1.25 P.M and immediately deposited the sealed pullanda of cloth with CFSL.
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14. PW1, PW2 and PW5 are alleged recovery witnesses examined by prosecution during trial. All the said three witnesses deposed on the lines of prosecution story as discussed above during their chief examination and have also duly corroborated each other on all material points. They have proved the sketch of weapon and cartridges as Ex PW1/A, seizure memo of case property Ex PW1/B, rukka Ex PW1/C, site plan Ex PW1/D. They have also correctly identified the accused during trial as well as the recovered revolver Ex P1, empty cartridge Ex P2 and five live cartridges Ex P3 collectively.
15. During his cross examination, PW1 claimed that they had proceeded towards the spot in three private cars and two private motorcycles. He was sitting in car no. DL9CF 8522. However, he could not tell the persons to whom said vehicles were belonging. Out of said cars, two were WagonR and one was Santro. Both the motorcycles were of red colour but he did not remember the registration numbers of said motorcycles. He deposed that distance between spot and PS Special Cell was about 2630 km and it took about 60 to 90 minutes in reaching the spot. The vehicles were parked State Vs. Sanjeev Maheshwari (Convicted) Page No. 9/29 Case No.56/3: PS Special Cell: U/s 25(1-B) (a) Arms Act DOD : 18.09.2012 at different places and at distance of 5 to 7 meters. He did not mention FIR number on any of the documents prepared by him. PW1 testified that five passers by were asked to join the raiding party but no notice was given to them. He admitted that passers by were never informed by him that legal action may be taken against them for not joining the raiding party. He denied the suggestion that the present case was registered at the instance of STF UP for the purpose of killing the accused in fake encounter or that the entire case has been fabricated against accused after lifting him from his house on 13.5.06.
16. PW2 also could not disclose the ownership of either of the three cars used by them in going towards the spot. He also could not tell the registration numbers of either of the two motorcycles. He claimed that FIR number was conveyed by him on telephone to SI Subhash Vats(PW8) on land line connection installed at the Police Station. The accused was apprehended at about 2.15 AM and his cursory search was conducted by SI Vinay Tyagi(PW1). He did not have knowledge as to whether any written notice was served upon passers by who had refused to join the proceedings. He denied the State Vs. Sanjeev Maheshwari (Convicted) Page No. 10/29 Case No.56/3: PS Special Cell: U/s 25(1-B) (a) Arms Act DOD : 18.09.2012 suggestion that no writing work was done at the spot or that entire documents were prepared at the police station or that accused had been falsely implicated in this case.
17. PW5 stated during his cross examination that he was sitting in Santro car being driven by Inspector Sanjay Dutt. The vehicles were parked at a distance of about 100 to 150 meters from the spot. He claimed that there was Gurudwara situated behind the bus stop near the spot and public persons were coming and going. Accused was coming all alone on foot and was apprehended at about 1 P.M. He denied the suggestion that no such raid was conducted at the spot or that accused was lifted from his house and was falsely implicated in this case.
18. PW8 is the last IO of the case who has corroborated the testimonies of recovery witnesses by testifying that that on 14.5.06 at about 2 P.M, he had reached the spot i.e Siraspur near GTK Road on receipt of information from Inspector Mohan Chand Sharma where SI Vinay Tyagi(PW1) handed over exhibits alongwith documents and State Vs. Sanjeev Maheshwari (Convicted) Page No. 11/29 Case No.56/3: PS Special Cell: U/s 25(1-B) (a) Arms Act DOD : 18.09.2012 custody of accused to him. He also correctly identified the accused during trial. He has further proved site plan Ex PW1/D, arrest and personal search memos Ex PW5/A and PW5/B respectively, inspection memo Ex PW8/A. He deposed that he had also recorded disclosure statement Ex PW5/C of the accused and statements U/s 161 Cr.PC of all the witnesses. He also got deposited exhibits for expert opinion through HC Satinder(PW7) on 24.5.06 and obtained the FSL result as well as sanction U/s 39 Arms Act from DCP Special Cell. During his cross examination, he deposed that information was received by him in the Police Station and he was not having any mobile phone at that time. He had gone to the spot on his own motorcycle. There were five land line telephone connections installed in the police station of Special Cell. He admitted that accused was already in detention at the spot when he reached there. He denied the suggestion that the documents relied by prosecution were fabricated in the police station in order to falsely implicate the accused.
19. Ld. Defense counsel referred to the proceedings dated 02.11.2011 passed by Ld. Predecessor of this Court whereby his application dated 06.08.2011 seeking correction in the statement dated State Vs. Sanjeev Maheshwari (Convicted) Page No. 12/29 Case No.56/3: PS Special Cell: U/s 25(1-B) (a) Arms Act DOD : 18.09.2012 23.07.2011 of PW2 was kept pending with the observation that same would be considered at the time of final order. In this regard, Ld. Defense counsel relied upon the provision contained in Section 278 Cr.P.C. and submitted that Court has got ample power to make necessary correction in the statement of witness examined before the Court. The correction sought by Ld. Defense counsel in the said application, is that the relevant portion of testimony of PW8 should be read as "the accused was already in detention on the spot" instead of " It is correct that accused was already in detention on the spot". Ld. Defense counsel submitted that the statement of said witness should be considered as a whole and not in piecemeal. If the statement of PW8 is considered in the aforesaid manner then it is quite apparent that the accused nowhere admitted the case of the prosecution and direct question was put during cross examination of said witness as to where the accused was at the time of his arrival at the spot. In this regard, he has also relied upon the authority mentioned at serial no.2 hereinbefore wherein it has been observed that stray sentence elicited in the statement could barely be construed as an admission. Before the right of the party can be considered to have been defeated on the basis State Vs. Sanjeev Maheshwari (Convicted) Page No. 13/29 Case No.56/3: PS Special Cell: U/s 25(1-B) (a) Arms Act DOD : 18.09.2012 of alleged admission by him, implication of the statement made by him must be clear and conclusive.
Having considered the statement made on behalf of both the sides on the said application in the light of testimony of PW8 recorded during trial and the authority referred by Ld. Defense counsel, Court is in agreement with the defense that relevant portion in the cross examination of PW8 recorded on 23.07.2011 as discussed above, should not be considered as an admission on the part of accused. The defense of accused throughout the trial has been that he is falsely implicated in this case and he was never apprehended from the alleged place as claimed in the prosecution story. With these observations, the said application stands disposed of accordingly.
20. Ld. Counsel for the accused has argued that the prosecution has not been able to prove its case against the accused beyond reasonable doubt. While referring to the testimonies of PWs as available on record, he has pointed out contradictions appearing in the testimonies of PW1, PW2 and PW5 who are alleged to be the recovery witnesses. He also submitted that despite independent public witnesses State Vs. Sanjeev Maheshwari (Convicted) Page No. 14/29 Case No.56/3: PS Special Cell: U/s 25(1-B) (a) Arms Act DOD : 18.09.2012 available at the spot, no effort has been made by IO to join them due to which the prosecution story should not be believed in totality. In support of his aforesaid contentions, Ld. Defense counsel has also relied upon the following authorities;
i). 1990 Crl.L.J. 2201 Bombay High Court
ii). AIR 1981 Karnataka 40
iii). AIR 1984 Supreme Court 1799
iv). AIR 1995 Supreme Court 1930
21. On the other hand, Ld. Substitute APP for the State has argued that the prosecution has been able to prove its case against the accused in view of the documentary evidence as well as occular evidence which has come on record. Ld. APP submitted that public persons are not easily willing to join the police proceedings and therefore, no benefit can be given to the accused on this count. He has also relied upon an authority reported at AIR 2011 SC 2552.
22. Ld defence counsel pointed out that as per prosecution story, secret information allegedly received by Inspector M.C. Sharma, was State Vs. Sanjeev Maheshwari (Convicted) Page No. 15/29 Case No.56/3: PS Special Cell: U/s 25(1-B) (a) Arms Act DOD : 18.09.2012 never reduced into writing and that is why, no DD entry in this regard has been placed on record or proved during trial. He also submitted that no separate DD entry was recorded regarding departure of members of raiding party in 5 private vehicles consisting of 3 private cars and two private motorcycles. He also contended that no explanation has been furnished by prosecution witnesses as to why they opted to go in private vehicles to the spot. Therefore, the entire prosecution story becomes doubtful.
However, the Court does not any any force in the submission made on behalf of accused that entire case of prosecution should be doubted merely because the members of raiding party went to the spot in private vehicles. Ld. Substitute APP has pointed out from the record that secret information was reduced into writing vide DD No.5 Special Cell dated 14.05.2006 and true copy thereof has also been filed alongwith the chargesheet. The said submission is duly borne out from the record. Moreover, it is nowhere the defense of accused that the members of raiding party never went to the spot on that day. No such suggestion has been put during cross examination of prosecution State Vs. Sanjeev Maheshwari (Convicted) Page No. 16/29 Case No.56/3: PS Special Cell: U/s 25(1-B) (a) Arms Act DOD : 18.09.2012 witnesses by the accused.
23. The Court also does not agree with the argument raised by Ld. Defense counsel that members of raiding party were duty bound to go in official vehicle to the spot for conducting the raid. There is no such requirement in law which enjoins upon the police officials to go in official vehicle every time while leaving for conducting raid. This is more so when the raiding party consists of several members who could not have been accommodated in one official vehicle. Accused did not put relevant questions during cross examination of prosecution witnesses in order to bring on record as to whether any official vehicle was available in PS Special Cell at the time when members of raiding party had left for conducting raid. There is also no force in the argument advanced by Ld. Defense counsel that it is highly improbable that the accused herein who is claimed to be high profile criminal, would visit at the given place on bare foot all alone. The case of the prosecution is that as per secret information received by Inspector M.C. Sharma, the present accused was likely to visit the given place at about 12:30 PM in order to meet his relative. That being State Vs. Sanjeev Maheshwari (Convicted) Page No. 17/29 Case No.56/3: PS Special Cell: U/s 25(1-B) (a) Arms Act DOD : 18.09.2012 so, the prosecution story cannot be viewed with suspicious on this ground.
24. The contradiction pointed out on behalf of accused is about the time of apprehension of accused at the spot. PW1 SI Vinay Tyagi claimed that accused was apprehended at about 01:00 PM whereas PW2 claimed during cross examination that the accused was apprehended at about 02:15 PM. Ld. Defense Counsel also pointed out that none of the alleged recovery witnesses examined by prosecution, could disclose the names of the owners of private vehicles in which they had travelled to the spot. He also pointed out that position of members of raiding party as disclosed by PW5 namely SI Dalip Kumar is different from the position of the members of raiding party as shown in site plan Ex.PW1/D. In this regard, PW5 claimed that he alongwith Inspector M. C. Sharma (PW), SI Vinay Tyagi (PW ), ASI Anil Tyagi (PW ) and secret informer had taken their position near Siraspur mor. But, the site plan Ex.PW1/D shows that SI Vinay Tyagi and Inspector M.C. Sharma had taken their position at point A whereas the other members of raiding party had taken their position at State Vs. Sanjeev Maheshwari (Convicted) Page No. 18/29 Case No.56/3: PS Special Cell: U/s 25(1-B) (a) Arms Act DOD : 18.09.2012 points B and C shown to be situated at quite some distance from point A. Another contradiction pointed out by defense counsel is on the aspect of distance at which the vehicles were parked by the members of raiding party as appearing during the testimonies of PW1 and PW5.
There is, however, no substance in the aforesaid submissions made by Ld. Defense counsel. The aforesaid contradiction has pointed out on behalf of accused, do not constitute material contradictions which may go to the root of the prosecution story so as to disbelieve the entire prosecution story in totality. Rather, Court is in agreement with the submission made by Ld. Substitute APP for the State that some sort of discrepancies are bound to occur in the deposition of prosecution witnesses being usual and natural. Even otherwise, they are found to be formal in nature and same cannot be treated as fatal for the case of the prosecution. Furthermore in the case reported as "JT 1999 (9) SC 43 State of H.P. Vs. Lekhraj and another", it was observed by the Hon'ble Supreme Court of India as under: "In the deposition of witnesses there are always normal discrepancy, however, honest and truthful they may be. Such discrepancies are due to normal errors of observations, normal errors of memory due to lapse of time, due to mental disposition State Vs. Sanjeev Maheshwari (Convicted) Page No. 19/29 Case No.56/3: PS Special Cell: U/s 25(1-B) (a) Arms Act DOD : 18.09.2012 such as shock and horror at the time of occurrence, and the like".
It was further observed in the said judgment as under: "The traditional dogmatic hypertechnical approach has to be replaced by rational, realistic and genuine approach for administering justice in a criminal trial"
26. In the matter titled as "Sheelam Remesh & Anr. Vs. State of A.P." reported in JT 1999 (8) S.C. 537, it was observed by Hon'ble Apex Court as under: "Courts are concerned with the quality and not quantity of evidence and in a criminal trial, conviction can be based on a sole evidence of a witness, if it inspire confidence".
27. The other argument raised by Ld. defence counsel that since no independent public witness has been joined during recovery proceedings or further investigation, the prosecution story should be viewed with suspicion, is again without any merit. As rightly argued by Ld. Substitute APP for the State, the prosecution witnesses have categorically deposed that public persons were requested to join the raiding party but none agreed and left the spot and there were no residential houses situated near the spot which was situated nearby State Vs. Sanjeev Maheshwari (Convicted) Page No. 20/29 Case No.56/3: PS Special Cell: U/s 25(1-B) (a) Arms Act DOD : 18.09.2012 Siraspur More, G.T Karnal Road. Thus, no fault can be attributed on the part of investigating agency for non joining of independent public witnesses. Moreover, there is no reason for the police officials to falsely depose against the accused or to implicate the accused.
28. The case of prosecution is that few independent witnesses were indeed requested to become witness but they did not agree. It is not uncommon these days that people are reluctant to become witness in criminal trial cases. In such circumstances no benefit can be given to the accused for non joining of independent public witnesses. It is a matter of common knowledge that public persons are reluctant to become witnesses of criminal trial. It has been held in a number of judgments by Hon'ble Supreme court and High Courts that merely because public witnesses are not joined in a case, prosecution case cannot be thrown out.
29. In the case of State of U.P. vs. Anil Singh AIR 1988 SC 1998, it was held that in some cases the entire prosecution case is doubted for not examining all witnesses to the occurrence. We have recently State Vs. Sanjeev Maheshwari (Convicted) Page No. 21/29 Case No.56/3: PS Special Cell: U/s 25(1-B) (a) Arms Act DOD : 18.09.2012 pointed out to the indifferent attitude of the public in the investigation of crimes. The public are generally reluctant to come forward to depose before the Court. It is, therefore, not correct to reject the prosecution version only on the ground that all witnesses to the occurrence have not been examined. Nor it is proper to reject the case for want of corroboration by independent witnesses if the case made out is otherwise true and acceptable.
30. Hon'ble Supreme Court in the case Ambika Prasad & Anr vs. State 2002 (2) CRIMES 63 (SC) has held that it is known fact that independent persons are reluctant to be a witness or to assist the investigation. Reasons are not far to seek. Firstly, in cases where injured witnesses of the close relative of the deceased are under constant threat and they dare not depose the truth before the Court, independent witnesses believe that their safety is not guaranteed. That belief cannot be said to be without any substance. Other reason may be the delay in recording the evidence of independent witnesses and repeated adjournments in the Court. In any case if independent persons are not willing to cooperate with the investigation, prosecution State Vs. Sanjeev Maheshwari (Convicted) Page No. 22/29 Case No.56/3: PS Special Cell: U/s 25(1-B) (a) Arms Act DOD : 18.09.2012 cannot be blamed at and it cannot be a ground for rejecting the evidence of injured witnesses. It was also held that non examination of investigating officer of the case is no ground to discard the evidence of vs. Anil Singh eye witnesses. Similarly in the case of State of U.P. AIR 1988 SC 1998 ; Dr Krishna Pal and another vs. State of U. P. 1996 (7) SCC 194 and in the case of Appabhai Vs. State Of Gujrat AIR 1988 SC 696, it was held that these days people in the vicinity where the incident took place avoid to come forward to give evidence and civilized people are insensitive when crime is committed even in their presence and they withdraw both from the victim and vigilante.
31. The authorities relied by Ld. Defense counsel on the point of non joining of independent witnesses of locality during recovery proceedings, are entirely distinguishable from the facts and circumstances of the present case. Thus, those authorities do not help the accused in any manner.
32. Moreover, it is well settled law that the testimonies of police State Vs. Sanjeev Maheshwari (Convicted) Page No. 23/29 Case No.56/3: PS Special Cell: U/s 25(1-B) (a) Arms Act DOD : 18.09.2012 officials should not always be looked with suspicion when they have otherwise proved the prosecution story by deposing consistently and corroborating each other on material points. Still if any authority is required then reference with advantage can be made to the judgment reported in State Vs. Sunil (2001) 1 SCC 652, wherein it was observed as under: "We feel that it is an archaic notion that action of the police officer should be approached with initial distrust. We are aware that such a notion was lavishly entertained during the British period and policemen also knew about it. Its hangover persisted during post independent years but it is time now to start placing at least initial trust on the action and the documents made by the police. At any rate, the Court can not start with the presumption that the police records are untrustworthy. As a proposition of law the presumption should be the other way around. That official acts of the police have been regularly performed is a wise principle of presumption and recognized even by the legislature. Hence, when a police officer gives evidence in Court that a certain article was recovered by him on the strength of the statement made by the accused it is open to the Court to believe the version to be correct if it is not otherwise shown to be unreliable. It is for the accused through cross examination of witnesses or through any other materials, to show that the evidence of the police officer is either unreliable or at least unsafe to be acted upon in a particular case. If the Court has any State Vs. Sanjeev Maheshwari (Convicted) Page No. 24/29 Case No.56/3: PS Special Cell: U/s 25(1-B) (a) Arms Act DOD : 18.09.2012 good reason to suspect the truthfulness of such records of the police the Court would certainly take into account the fact that no other independent person was present at the time of recovery. But it is not a legally approvable procedure to presume the police action as unreliable to start with, nor to jettison such action merely for the reason that police did not collect signatures of independent persons in the documents made contemporaneous with such actions".
In A.R.Khimma Vs. State of Saurashtra AIR 1956 SC 217, it was observed as: "The presumption that a person acts honestly applies so much in favour of a police officer as of other persons and it is not judicial approach to distrust and suspect him without good grounds therefore, such an attitude can do neither credit to the magistracy nor good to the public. It can only run down the prestige of the police administration".
In Ashraf Ali Vs. State (Delhi) 1991 SCC 203, it has been observed as under : "The testimony of a witness is not to be disbelieved or discarded on the ground that the he happens to be an official witness but it is an equally well recognized rule of caution that Court should look for independent corroboration to the testimony of official witness in such cases. Relevant, of course, in the context are State Vs. Sanjeev Maheshwari (Convicted) Page No. 25/29 Case No.56/3: PS Special Cell: U/s 25(1-B) (a) Arms Act DOD : 18.09.2012 the time and opportunity available to the police party to associate with such an independent witness. It is a matter of common knowledge that no public person would like to involve himself by becoming a witness of recovery. Minor contradictions are bound to occur if a witness is examined after a considerable time".
33. The next argument raised on behalf of accused is that sanction order Ex. PW4/A proved by PW4, reflects non application of mind on the part of sanctioning authority. The argument that there is no proper and valid sanction to prosecute the accused in terms of S. 39 of Arms Act due to which accused is entitled to acquittal, does not hold any ground. Although, Ld. Defense counsel tried to make a feeble attempt by referring to sanction order Ex.PW4/A wherein the name of accused has been typed as Sanjeev Maheshwari @ Jeewa @ Doctor @ Deepak @ Naveen s/o Sh. Om Prakash and by submitting that in all other material relied by prosecution, the name of accused has been mentioned as Sanjeev Maheshwari @ Jeewa which goes to show that the concerned DCP had simply put his signatures on the aforesaid sanction order in mechanical manner. However, record reveals otherwise as the prosecution has also relied upon the disclosure statement Ex.PW5/C proved on record wherein the name of the State Vs. Sanjeev Maheshwari (Convicted) Page No. 26/29 Case No.56/3: PS Special Cell: U/s 25(1-B) (a) Arms Act DOD : 18.09.2012 accused has been mentioned as Sanjeev Maheshwari @ Jeewa @ Doctor @ Deepak @ Naveen s/o Sh. Om Prakash. Thus, no fault can be found on the part of the sanctioning authority in according the sanction to prosecute the accused vide order Ex.PW4/A.
34. As already discussed above, all the recovery witnesses examined by prosecution namely PW1, PW2 and PW5 have fully supported the case of prosecution on material points and all the said three PWs have successfully withstood the test of cross examination. Their testimonies is further corroborated by second IO namely PW8 Inspector Subhash Vats during whose cross examination also, the accused could not elicit anything contrary to the case of prosecution.
35. The FSL report Ex.PW3/A proved by PW3 i.e ballistic expert clearly shows that the country made pistol Ex.P1 recovered from the accused was found to be in working order and was fire arm. Not only this, the cartridges Ex.P2 and P3 Colly. were also found to be live cartridges out of which cartridge Ex.P2 was also test fired with the help of pistol Ex.P1. It is nowhere the case of accused herein that he State Vs. Sanjeev Maheshwari (Convicted) Page No. 27/29 Case No.56/3: PS Special Cell: U/s 25(1-B) (a) Arms Act DOD : 18.09.2012 was holding any valid license or permission to retain possession of the aforesaid arm and ammunition as on 15.05.06 and thus, his possession of those arms is proved to be illegal and in violation of Section 3 & 4 of Arms Act.
36. In the present case, I have already mentioned above that there is nothing on record to suggest untrustworthiness of the witnesses including police officials. Although the accused in his statement claimed that he is innocent and that case property was planted upon him by the police but the defence taken by the accused does not inspire any confidence whatsoever. It would be anybody's guess as to why police officials would do this. If the accused wants this Court to believe that he has been implicated falsely, the least which was expected from the accused was to at least come out as to what could have been the motive for the police for his false implication and as to what was that reason for which police officials could have done so. But no such reason could be shown or proved by him. The accused cannot expect this Court to believe his version by simple bare allegation that he is falsely implicated. In the absence of this, I do not find any reason to throw out the testimony of witnesses. State Vs. Sanjeev Maheshwari (Convicted) Page No. 28/29 Case No.56/3: PS Special Cell: U/s 25(1-B) (a) Arms Act DOD : 18.09.2012
37. In view of aforesaid discussion, this Court is of the view that the prosecution has successfully proved the complete chain of evidence leading to the guilt of accused Sanjeev Maheshwari @ Jiva @ Doctor in respect of offence u/s 25(1B)(a) of Arms Act. Consequently, he is convicted for the said offence.
Announced in open Court (VIDYA PRAKASH)
Dated: 18.09.2012 Chief Metropolitan Magistrate:
Delhi.
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