Delhi District Court
State vs . Nand Kishore. on 7 June, 2010
IN THE COURT OF SH. VISHAL SINGH : MM : DELHI
State Vs. Nand Kishore.
FIR No. 77/2001.
U/s. 25 Arms Act.
PS Mangol Puri, Delhi.
JUDGMENT
a) The sl. no. of the case : 41/3 .
b) The Unique ID No. of the case : 02401R0318942002.
c) The date of commission of the : 25/01/2001.
offence
d) The date of institution of case : 25/01/2002.
e) The name of the complainant : ASI Nathu Ram.
f) The name & address of accused : Nand Kishore @ Nandu
@ Karatey, S/o. Raja
Ram, R/o. B-3/253,
Sultan Puri, Delhi.
g) The offence complained of : U/s. 25/54/59 Arms Act.
h) The plea of the accused : pleaded not guilty.
i) The date of reserving the order : 01/06/2010.
j) The final order : Acquitted.
k) The date of such order : 07/06/2010.
THE BRIEF REASONS FOR THE JUDGMENT :
1. Brief resume of facts of the present case are that on 25/01/2001, at about 10:25 am, at behind X Block, DSIDC, Mangol Puri, Delhi FIR No. 77/01 PS Mangol Puri accused was found in possession of one country made pistol, loaded with one live cartridge without any valid permit or licence. After investigation, the challan was filed by the police.
2. Complete set of copies were supplied to the accused and after hearing arguments, charge for trial of offence U/s. 25/54/59 Arms Act was framed against the accused by my Ld. Predecessor to which accused pleaded not guilty and claimed trial.
3. Prosecution in support of present case examined PW.1 Ct. Tilak Raj, who took pulinda from the PS malkhana and deposited the same at FSL, Malviya Nagar. PW.2 is HC Rajinder, who was on petrolling duty on the day of incident along with other police officials. PW.3 is Retired Inspector Vishnu Madan, 2nd IO in this case, who has proved the site plan Ex. PW3/A and other memos on the record. PW.4 is ASI Karambir Singh, Duty Officer, who had registered the FIR no. 77/01 on the basis of rukka sent by ASI Nathu Ram. PW.5 is Ct. Dinesh Kumar, recovery witness, who had joined the investigation along ASI Nathu Ram and proved the sketch memo of recovered arm vide Ex. PW2/A and its seizure vide memo Ex. PW2/B. PW.6 is Sh. R. S., Yadav, the then Additional DCP, North/West, who has proved the sanction given by him vide Ex. PW6/A. PW.7 is ASI Nathu Ram, 1st IO in this case, who has proved the rukka Ex. PW7/A and also identified the case property as Ex. P1 and P2 in court. PW.8 is Sh. K. C. Varshney, Senior Scientific Officer (Ballistics), FSL, Rohini, who has proved his report Ex.
FIR No. 77/01PS Mangol Puri PW8/A and PW.9 is HC Joginder, MHC(M), who has proved the relevant entry made in Register No. 19 regarding depositing of case property in PS Malkhana vide Ex. PW9/A.
4. Statement of accused was recorded separately U/s. 313/281 CrPC, wherein he pleaded innocence and false implication in this case. He wished to lead D.E., however, despite opportunity, he had not examined any witness in support of his defence.
5. I have heard arguments from Ld. APP for State, Ld. Defence Counsel for accused and also gone through the evidence and documents on record carefully.
6. To prove the offence U/s. 25/54/59 Arms Act, the prosecution has to prove that accused was found in possession of country made pistol loaded with one live cartridge without any valid permit or licence. First of all, no public witness has been joined by the IO in this case. It has been observed by the Hon'ble Supreme Court in case of Sans Pal Singh Vs. State of Delhi 1999, Cri.L.J. 19 as under :
"3. interrogation 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 witnesses. 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 public witness to be witness at the time of search of the accused. Likewise PW.6 Sub Inspector, Mahipal Singh has also stated that no public witness was joined at the time when the recovery was being effected. It is thus evidence that public witnesses 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 FIR No. 77/01 PS Mangol Puri 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."
In the present case, it is the case of prosecution that the accused was apprehended at about 10:25 am, at behind X Block, DSIDC, Mangol Puri, Delhi, which is also a public place and where many public persons would be available, however, no sincere effort seems to have been made by the IO to join any public witness either at the time of recovery or at the time of investigation.
7. Further, there are contradictions in the statement of prosecution witnesses. PW.2 HC Rajinder has deposed in his cross-examination that public persons were asked to join raiding party but they refused and no notice in writing was given to any public person, whereas PW.5 Ct. Dinesh Kumar has deposed in his cross-examination that a notice in writing was served by the IO upon those persons who refused to join investigation. Further, PW.2 has deposed that all the writing work was done at the spot by sitting on the chair which was procured from DSIDC office, however, the office bearers of DSIDC refused to join investigation, whereas PW.7 ASI Nathu Ram has deposed that nobody from the office of DSIDC was called to join the investigation.
8. Further, as per prosecution case, the sketch memo of recovered arm Ex. PW2/A and Ex. PW2/B and its seizure vide memo Ex. PW2/C were prepared by PW.7 ASI Nathu Ram, 1st IO before registration of the case FIR, but all these documents finds mention the FIR FIR No. 77/01 PS Mangol Puri number on them. However, statement of PW.3 Retired Inspector Vishnu Madan, 2nd IO is silent on this aspect. He has nowhere stated in his statement as to when and by whom the FIR number and other particulars were put on Ex. PW2/A to PW2/C, when the same were handed over to him by the 1st IO on spot after registration of FIR at PS.
9. Further, as per statement of PW.2 HC Rajinder, the police party left the spot at about 1:00 pm and the accused was arrested at about 1:30 pm, whereas PW.5 Ct. Dinesh Kumar has deposed that the spot was finally left at about 1:00/1:15 pm and he could not say the exact time of arrest of accused. However, perusal of arrest memo Ex. PW2/D shows that the accused was arrested at X Block, DSIDC office, Mangol Puri, Delhi by the IO SI Vishnu Madan at about 2:10 pm. If the police party had already left the spot at about 1 or 1:30 pm, then how the accused was arrested at 2:10 pm has not been explained anywhere on record.
10.Thus in view of above observation and discussion in my opinion, the prosecution has failed to prove the case against the accused beyond any reasonable doubt. Hence I hereby acquit the accused for the offence, he has been charged with. He is on bail. Bail bond cancelled. Surety discharged. Case property be confiscated to the State, as per rules. File be consigned to Record Room.
ANNOUNCED IN THE OPEN (VISHAL SINGH) COURT ON 07/06/2010. Metropolitan Magistrate (Copies 1 + 1) Delhi FIR No. 77/01 PS Mangol Puri