Delhi District Court
State vs Imran on 22 July, 2014
IN THE COURT OF SH. TARUN YOGESH, ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, SOUTH DISTRICT, SAKET COURTS
COMPLEX, NEW DELHI
State v/s Imran
FIR No. 51/11
PS: Saket
U/s: 25/54/59 Arms Act.
JUDGMENT
1. S. No. / ID No. of the Case : 6R0235772011
2. Date of Commission of Offence : 08.02.2011
3. Date of institution of the case : 12.09.2011
4. Name of the complainant : ASI Makkhan Singh
PIS No. 28821581, Saket.
5. Name of accused, parentage : Imran
S/o Sh. Ahsan
R/o H. No. 130, Vill Pasonda,
PS Sahibabad,
Dist Ghaziabad, UP.
6. Offence complained or proved : U/s: 25/54/59 Arms Act.
7. Plea of Accused : Pleaded Not Guilty.
8. Final Order : Convicted.
9. Date of Final Order : 22.07.2014.
FIR No: 51/11 PS Saket State Vs. Imran Page 1 of 15
B RIEF REASONS FOR SUCH DECISION :
01. Accused Imran S/o Sh. Ahsan has been charged under section 25, Arms Act upon allegation of having got recovered one loaded country made pistol, kept in scooter no. DL5ST2910, from parking behind DDA Flats, Lado Sarai at around 09:45 AM on 08.02.2011.
02. Brief facts gleaned from police report reveals that accused Imran alongwith his accomplices namely Arif S/o Asgar and Gulfam S/o Immanuddin was apprehended in course of investigation of FIR No. 296/10, PS Saket and led police personnels to the parking behind DDA Market, Lado Sarai where he pointed to scooter No. DL5ST2910 being used for committing crime and for keeping katta in its dickey. Upon checking the dickey of the scooter, one country made pistol was found which was taken out and upon opening its safety latch, one live cartridge was found inside its barrel. The cartridge was taken out and sketch of pistol (katta) and cartridge was prepared upon white sheet. After recording its measurements, katta and cartridge were kept in a white cloth and converted into pullanda which was sealed with the seal of 'MS' and seized by ASI Makhan Singh. Seal after use was handed over to HC FIR No: 51/11 PS Saket State Vs. Imran Page 2 of 15 Randhawa. Form FSL was prepared and the scooter was seized in FIR No. 296/10, PS Saket. Thereafter ASI Makhan Singh prepared tehrir which was sent to PS Saket through HC Suresh for registration of FIR.
03. After registration of FIR, investigation was marked to HC Janak Raj (IO) who prepared the site plan at the instance of ASI Makkhan Singh and deposited the case property in Malkhana PS Saket. Disclosure statement of accused was recorded and after his formal arrest, he was produced in court and remanded to judicial custody. Country made pistol (katta) was sent to FSL Rohini and Ballistic Expert's Report was obtained by IO. Sanction under section 39, Arms Act was received and after collecting sufficient evidence against accused, HC Janak Raj (IO) concluded investigation and prepared charge sheet which was filed in court.
04. Cognizance of offence was taken and after summoning accused Imran and compliance of section 207 Cr.P.C, charge under section 25, Arms Act was framed and explained to accused on 31.08.2012, to which he pleaded not guilty and claimed trial.
05. Prosecution has examined five witnesses for proving its case FIR No: 51/11 PS Saket State Vs. Imran Page 3 of 15 against accused.
06. HC Suresh Chand (PW01) and HC Randhawa (PW02) have deposed to have joined investigation of FIR No. 296/10, PS Saket on 08.02.2011 and alongwith ASI Makhan Singh (PW05) reached the parking behind DDA Flats, Lado Sarai where accused Imran pointed to scooter No. DL5ST2910 and got recovered one loaded country made pistol (katta) with one live cartridge from the dickey of the scooter. Ct. Ramesh (PW03) has deposed to have collected the case property from MHC(M) Saket on 23.02.2011 and to have deposited the same at FSL Rohini. PW04 HC Janak Raj (IO) has deposed of having investigated the case and referred to the site plan, disclosure statement of accused, arrest memo and personal search memo of accused, Ballistic Expert's Report and sanction U/s 39, Arms Act for prosecuting accused. Complainant ASI Makhan Singh (PW05) has deposed about recovery of loaded country made pistol from dickey of scooter No. DL5ST2910, kept in the parking behind DDA Market, Lado Sarai and has proved the sketch of pistol and cartridge, their seizure memo and tehrir sent to PS Saket. Copy of FIR No. 51/11 PS Saket, Report No. FSL 2011/ F0840 dated 03.03.2011 and FIR No: 51/11 PS Saket State Vs. Imran Page 4 of 15 Sanction letter dated 03.05.2011 have been mentioned in the list filed by prosecution U/s 294 Cr.PC and the documents have not been disputed by accused, hence exhibited as Ex. A1, Ex A2 and Ex A3 respectively.
07. After closure of prosecution evidence, accused Imran was examined U/s 313 Cr.P.C and denied the depositions of police witnesses by claiming to have been falsely implicated in this case. He has denied recovery of any country made pistol (katta) and live cartridge by claiming that alleged scooter did not belong to him and the documents and memos prepared by police are false. Accused Imran nonetheless has declined to lead any evidence in defence.
08. Final arguments have been addressed by ld. APP for the State and ld. defence counsel Sh. Mohd. Yusuf for accused Imran.
09. Ld. APP for State has argued for convicting accused for offence U/s 25, Arms Act by referring to depositions of witnesses to contend that prosecution has proved its allegation against accused beyond reasonable doubt. Ld. APP for State has also referred to conviction of accused Imran for offences U/s 356, 379, 411 r/w 34 IPC in FIR No. 296/10 PS Saket and pointed to his application filed in the other case for seeking release of FIR No: 51/11 PS Saket State Vs. Imran Page 5 of 15 scooter No. DL5ST2910 on superdari, to submit that accused Imran being convicted in the other case upon his plea of guilt, recovery of katta effected from scooter cannot be disputed.
10. Ld. defence counsel per contra has argued for acquittal of accused by pointing that no public witness was joined by police at the time of alleged recovery of pistol. Next, he has pointed to the crossexamination of witnesses to submit that they have admitted of not giving their own personal search before searching accused. Ld. defence counsel has also argued against conviction of accused by contending that no investigation has been carried out to establish the ownership of alleged scooter. Ld defence counsel has sought acquittal of accused by contending that country made pistol (katta) and cartridge were planted upon accused to falsely implicate him in the present case and prosecution has failed to establish its case against accused beyond reasonable doubt.
11. I have meticulously perused the evidence led on record by prosecution and heard the rival submissions addressed by ld APP for the State and ld. defence counsel representing accused.
12. Section 25 (1AAA) of The Arms Act 1959 lays down : FIR No: 51/11 PS Saket State Vs. Imran Page 6 of 15 Whoever has in contravention of a notification issued under Sec. 24A in his possession or in contravention of a notification issued under Sec. 24B caries or otherwise has in his possession, any arms or ammunition shall be punishable with imprisonment for a term which shall not be less than three years, but which may extend to seven years and shall also be liable to fine.
13. FIR No. 51/11, PS Saket, Report No. FSL 2011/ F0840 dated 03.03.2011 and Sanction letter dated 03.05.2011 have been admitted by accused U/s 294 Cr.PC, as such do not require any formal proof. FIR records time of recovery of pistol (katta) at 09:45 hrs and registration of FIR U/s 25, Arms Act at 11:20 hrs on 08.02.2011. Accused Imran has been apprehended in the other case on 07.02.2011 and recovery of katta has been effected from scooter no. DL5ST2910 kept in the parking behind DDA Flats, Lado Sarai during investigation of the other case. Sanction under section 39, Arms Act for prosecuting accused Imran was given by Sh. Vijay Singh, Addl. Dy. Commissioner of Police after recording his satisfaction upon Ballistic Report, seizure memo and police FIR No: 51/11 PS Saket State Vs. Imran Page 7 of 15 diary of the case. Report No. FSL 2011/ F0840 dated 03.03.2011 records description of country made pistol of 8 mm/ .315" bore marked exhibit 'F1' and one improvised cartridge marked exhibit 'A1'. As per FSL result, exhibit marked 'F1' is a country made pistol capable of loading and firing standard 8 mm/.315" bore ammunition and exhibit improvised cartridge marked 'A1' was successfully test fired through country made pistol marked 'F1'.
14. Recovery witnesses ASI Makhan Singh (PW05), HC Suresh Chand (PW01) and HC Randhawa (PW02) have deposed of being posted at PS Saket and having joined investigation of FIR No. 296/10 PS Saket on 08.02.2011. They have further deposed of being led by accused Imran and others to parking behind DDA Market, Lado Sarai and to have recovered one country made pistol containing one live cartridge inside its barrel from the dickey of scooter No. DL5ST2910. Sketch of pistol and cartridge has been proved by witnesses as Ex PW 2/A and seizure memo of pullanda containing case property, duly sealed with seal of 'MS' has been proved as EX PW2/B. Form FSL was filled and the seal after use was handed over to HC Randhawa. Tehrir prepared by ASI Makhan FIR No: 51/11 PS Saket State Vs. Imran Page 8 of 15 Singh which was taken to PS by HC Suresh for registration of FIR has been proved as Ex. PW 5/A.
15. After registration of FIR, HC Suresh (PW01) returned back to the spot and handed over copy of FIR and original rukka to PW04 HC Janak Raj (IO). Disclosure statement of accused has been referred as Ex. PW 2/C and arrest memo of accused has been proved as Ex PW 2/D. Site plan prepared at the instance of ASI Makhan Singh has been proved by HC Janak Raj (IO) as Ex. PW 4/A and case property taken out of sealed envelope bearing case particulars and FSL number consisting one country made pistol and one empty cartridge has been identified by PW HC Randhawa as Ex P1. Case property has also been identified by complainant ASI Makhan Singh (PW05).
16. Recovery witnesses in their crossexamination by defence counsel have denied the suggestion of pistol (katta) being planted upon accused to falsely implicate him in the present case. Though PWs HC Randhawa and ASI Makhan Singh have admitted of having not offered their own personal search to accused before effecting recovery of country made pistol and cartridge from the dickey of the scooter and also admitted of FIR No: 51/11 PS Saket State Vs. Imran Page 9 of 15 being not aware about the ownership of scooter no. DL5ST2910, nonetheless, they have denied about case property being planted upon accused.
17. Testimonies of recovery witnesses has remained unimpeached during their crossexamination and creates an impression in favour of their trustworthiness. Nothing substantial has been elicited during their crossexamination which would impeach their veracity or impel the court to draw an adverse inference against their testimony. Minor discrepancy in deposition of HC Suresh Chand (PW01) to the extent that HC Janak Lal had opened the dickey of scooter and found loaded country made pistol with cartridge has been explained by witness himself. Even otherwise such aberration in his testimony which he amended forthwith does not demolish the case of prosecution as such minor discrepancy may be due to lapse of memory.
18. It is relevant to refer to para no. 38 of judgment titled Raj Kumar Singh @ Raju @ Batya v. State of Rajasthan. AIR 2013 Supreme Court 3150, wherein the Division Bench of Hon'ble Supreme Court has held : FIR No: 51/11 PS Saket State Vs. Imran Page 10 of 15 "It is a settled legal proposition that, while appreciating the evidence of a witness, minor discrepancies on trivial matters, which do not affect the core of the case of the prosecution, must not prompt the court to reject the evidence thus provided, in its entirety. The irrelevant details which do not in any way corrode the credibility of a witness, cannot be labelled as omissions or contradictions...."
"It is in fact, the entirety of the situation which must be taken into consideration. While appreciating the evidence,the court must not attach undue importance to minor discrepancies, rather must consider broad spectrum of the prosecution version. The discrepancies may be due to normal errors of perception or observation or due to lapse of memory or due to faulty of stereotype investigation. After exercising such care and caution, and sifting through the evidence to separate truth from untruth, embellishments and improvements, the court must determine whether the residuary evidence is sufficient to convict the accused." FIR No: 51/11 PS Saket State Vs. Imran Page 11 of 15
19. So far as nonjoining of public persons in recovery of country made pistol (Katta) is concerned, HC Randhawa (PW02) has deposed about IO having requested public persons to join investigation but they refused to join investigation. The general apathy of public persons to join investigation is not unknown. Generally public persons are reluctant to join investigation in order to avoid harassment at the hands of the accused as also from taking rounds of court. The fact of nonjoining of independent public witnesses by itself is not sufficient enough to discard testimonies of recovery witnesses as held in Mukesh Vs. State (NCT of Delhi) CRL. A. No. 274 / 2009.
20. In para no. 7 of the judgment of Hon'ble Supreme Court of India in case titled Ashok Kumar Chaudhary & Ors Vs. State of Bihar (2008) 12 Supreme Court Cases 173, Hon'ble Apex Court has held : "In our opinion, even otherwise it will be erroneous to lay down as a rule of universal application that nonexamination of a public witness by itself gives rise to an adverse inference against the prosecution or that the testimony of a relative of the victim, which is otherwise creditworthy, cannot be relied FIR No: 51/11 PS Saket State Vs. Imran Page 12 of 15 upon unless corroborated by public witness."
21. Recovery of country made pistol (katta) with loaded cartridge has been effected from scooter No. DL5ST2910 during investigation of FIR No. 296/10, PS Saket and accused Imran and his accomplices namely Arif and Gulfam have been convicted in FIR No. 296/10, PS Saket. It is significant to record that accused Imfan had moved his application for seeking release of Bajaj Chetak Scooter bearing No. DL 5ST 2910 as SPA of the registered owner which was opposed by ASI Makkhan Singh and the application was dismissed as withdrawn vide order dated 07.04.2011. Though, accused Imran has denied recovery of loaded katta by claiming that scooter No. DL 5ST 2910 did not belong to him and no such recovery was effected from him, but, despite testimonies of police witnesses about recovery of pistol (katta) being effected from scooter in the presence of his accomplices namely Gulfam and Arif, accused Imran has not examined those accomplices to prove his plea of planting of pistol upon him. Except for his bare denial of recovery of loaded katta, he has not impeached the testimonies of police witnesses by examining his accomplices and the reason for alleged false implication by police has not FIR No: 51/11 PS Saket State Vs. Imran Page 13 of 15 been spelt out by accused.
22. In case titled Tahir v. State AIR 1996 SC 3079, Honble Supreme Court of India has held : "In our opinion no infirmity attaches to the testimony of police officials, merely because they belong to the police force and there is no rule of law or evidence which lays down that conviction cannot be recorded on the evidence of the police officials, if found reliable, unless corroborated by some independent, evidence. The Rule of Prudence, however, only requires a more careful scrutiny of their evidence, since they can be said to be interested in the result of the case projected by them. Where the evidence of the police officials, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it can form basis of conviction and the absence of some independent witness of the locality to lend corroboration to their evidence, does not in any way affect the credit worthiness of the prosecution case."
23. Therefore, on the basis of testimonies of police witnesses, FIR No: 51/11 PS Saket State Vs. Imran Page 14 of 15 recovery of loaded country made pistol (katta) from the dickey of scooter No. DL5ST2910, kept in the parking behind DDA Flats, Lado Sarai, at the instance of accused Imran has been proved beyond reasonable doubt. Therefore, in my considered opinion, prosecution has successfully proved the guilt of accused Imran for offence U/s 25, Arms Act. Accused Imran S/o Sh. Ahsan is accordingly convicted for offence U/s 25 of Arms Act.
24. Be listed for submissions and order on the point of sentence on 01.08.2014 at 02:00 PM.
ANNOUNCED IN THE OPEN COURT DATED: 22 July, 2014 nd (TARUN YOGESH) ADDITIONAL CHIEF METROPOLITAN MAGISTRATE SOUTH DISTRICT, SAKET COURTS : NEW DELHI FIR No: 51/11 PS Saket State Vs. Imran Page 15 of 15