Delhi District Court
Satish Kumar vs The State (Govt. Of Nct on 9 May, 2012
IN THE COURT OF SHRI RAJEEV BANSAL,
ASJ-03 (SOUTH DISTRICT), SAKET COURTS,
NEW DELHI.
Criminal Appeal No.4/12
(Unique I.D. No.02406R0072672012)
Satish Kumar
S/o Sh. Suraj Pal
R/o 821, Saraswati Puram,
JNU Campus, B & C, New Delhi
...........Appellant
Versus
The State (Govt. of NCT, Delhi)
...........Respondent
Date of Institution :31.03.2012
Date of Reserving Order :26.04.2012
Date of Pronouncement of Order :09.05.2012
ORDER
1. The present appeal has been filed under Section 374 Cr.P.C against the judgment dated 02.3.2012 by which the appellant/accused was convicted of the offence punishable under Section 27 of the Arms Act and the consequent sentence of RI of six months and a fine of Rs. 1,000/-. Fine was duly paid. Aggrieved by these, the present appeal has been preferred.
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2. Prosecution case as set out in the Charge sheet is that on 12.5.2009 the appellant Satish Kumar was apprehended with a knife on the complaint of Shree Chand Meena. The complainant had stated that he is a security guard and was performing duty on B&C gate of JNU from 9.30 PM to 6 AM. At 11.30 pm one person came there and tried to enter the B&C Gate. On enquiry, he disclosed his name as Satish Kumar and gave his parentage and address. When the guard stopped him from entering the gate, the accused took out a fish shaped buttondar knife from the front right pocket of his pant and flashed it on the Guard. The Guard intimated about it to his Supervisor Rakesh Kumar by wireless, who came immediately and both these persons overpowered the accused and seized the fish shaped buttondar knife from the right front pocket of his pant. The accused was taken to police station where a case u/s 25 of the Arms Act was registered against the accused. Charge sheet was filed u/s 27 of the Arms Act and the charge was framed against the accused u/s 27 of the Arms Act.
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3. In order to prove its case, prosecution examined 5 witnesses i.e. PW-1 Sri Chand Meena - Complainant; PW-2 Ct. Sheesh Ram; PW-3 Rakesh Kumar - Supervisor; PW-4 Sandeep Kumar and PW-5 SI Gopi Ram. The Ld. Trial Court relying on the depositions of these witnesses, convicted the appellant u/s 27 Arms Act.
4. The argument of the Ld. Counsel for the appellant is that the Ld. Trial court has wrongly convicted the appellant as the knife was planted and the appellant is innocent. It was stated that the appellant lives in JNU campus and has to pass through B&C Gate to go to his house. It was also stated that no independent public witness has been joined in the alleged recovery of knife as PW-1 and PW-3 belong to the same Security Agency and are interested witnesses, hence unreliable. Lastly, it has been alternatively pleaded that being a first time offender, the benefit of Probation should have been given by the Ld. Trial Court to the appellant.
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5. Per contra, Ld. Addl. PP has supported the Judgment of the Ld. Trial Court and has stated that the charge was duly proved against the appellant and hence the appellant was rightly convicted by the Ld. Trial Court. As such, the conviction recorded by the Ld. Trial Court be confirmed by this Court, is the argument of the Ld. Addl. PP.
6. I have heard both the sides and have perused the records of the case, alongwith the Trial Court record. The powers of the appellate court are provided u/s 386 Cr.P.C and particularly against an appeal against conviction - the same are provided under sub section (2) of Section 386 Cr.P.C. The law regarding the power of the appellate court in an appeal against conviction is well settled now. In a criminal appeal a duty is enjoined upon the appellate court to re-appreciate the evidence itself and it cannot proceed to dispose of the appeal upon appraisal of evidence by the trial court alone - Rama vs. State 2002 (4) SCC 571. In Chinnamal vs. State 1997 (1) SCC 145, it was held that C.A. 4/12 Satish Kumar Vs. The State 4/8 an appeal is to be decided on the basis of the evidence adduced by witnesses during the trial. The entire evidence is available to the appellate court to consider the guilt or innocence untrammeled by what the trial court said - Bhaskaran Nair vs. State of Kerala 1991 Cr LJ 23 Kerala. Keeping these broad principles in mind, I now proceed to discuss the evidence available on record.
7. If we examine the deposition of the public witnesses i.e the complainant and the Supervisor minutely, it is found that there are discrepancies which goes to the very root of the prosecution case and make the same doubtful. The Complainant PW-1 stated in his deposition that the accused showed him a knife from his back pocket, when he was stopped by him. PW-3 Rakesh Kumar also deposed that one buttondar knife was found from his right back pocket of his pant. As per the asal tehrir/FIR, the accused had flashed the fish shaped buttondar knife from the front right pocket of his pant and when the Supervisor Rakesh Kumar came, the said knife was recovered from C.A. 4/12 Satish Kumar Vs. The State 5/8 the front right pocket of his pant. So, as per the FIR, the knife was flashed from front right pocket and was recovered from that pocket. But as noted earlier, as per the depositions of PW-1 and PW-3, the knife was flashed and recovered from back pocket of the pant of the accused. So, it is not clear from which pocket of the accused the alleged knife was recovered i.e. from the front pocket or from the back pocket. Carrying a buttondar knife and its flashing by the accused are the main limbs of charge against the accused and the prosecution is duty bound to prove both these beyond any doubt. However, the deposition of PW-1 and PW-3 does not go hand in hand with the FIR. The testimony of PW-1 and PW-3 are not free from suspect. The contradiction about the front pocket and the back pocket is a material contradiction as the very carrying of the knife and its flash becomes doubtful and casts serious doubts about the prosecution story. The aforesaid aspect of the matter has not been noticed by the Ld. Trial Court while recording a finding of conviction against the accused. It also looks unnatural C.A. 4/12 Satish Kumar Vs. The State 6/8 that the accused would not make any attempt to stab the PW-1 or PW-3 after being apprehended by them or that he would not throw it enroute when he was taken to police station. There is no evidence that the accused attempted to stab either PW-1 or PW-3. There is no independent witness to the flashing of the knife or of the recovery of the knife. The spot where the knife is stated to have been flashed is B&C gate of JNU. Except the complainant PW-1, there is no other witness of the flashing of the knife by the accused. The deposition of PW-1 in this regard however does not inspire confidence. In the FIR it was stated that the accused had disclosed PW-1 stated that the accused came and entered B&C Gate. The evidence of PW-3 in this regard is hearsay and hence not admissible. The accused has in his statement recorded u/s 313 Cr PC stated that no knife was recovered from him and a false case was registered against him. It is trite that contradictions which shake the substantive part of the evidence with regard to an offence are fatal. Suffice it to say that the possibility of planting the knife on the accused C.A. 4/12 Satish Kumar Vs. The State 7/8 cannot be ruled out in the circumstances of the case. It is well settled that in a criminal trial, if there are two opinions possible the opinion favourable to the accused is to be given precedence. Be that as it may, the prosecution has thus not succeeded in discharging its burden of proving its case beyond reasonable doubt. In the result, the impugned Judgment convicting the appellant and the consequent sentence cannot be sustained in law. The appellant is thus entitled to be acquitted and he is accordingly acquitted of the charge u/s 27 of the Arms Act.
8. TCR be sent back to the Ld. Trial Court alongwith a copy of this order.
9. File be consigned to the Record Room.
Announced in the open Court. (Rajeev Bansal)
Dated:09.05.2012 ASJ-3/South District
Saket Courts, New Delhi
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