Delhi District Court
Sc No. 330/17 State vs . Manoj 12.12.2018 Page 1 on 12 December, 2018
IN THE COURT OF SHRI A.S. JAYACHANDRA, DISTRICT & SESSIONS JUDGE, SHAHDARA DISTRICT, KARKARDOOMA COURTS, DELHI SC No. 330/17 FIR No. 327/17 PS Welcome U/s 393/398 IPC & 25/27 Arms Act State by its PS Welcome .............Complainant: Versus Manoj S/o Sh. Happu R/o Gali No. 10, Bank Colony, Rajiv Nagar, Delhi. ............... Accused Date of Institution : 17.10.2017 Date of charges framed : 08.12.2017 Date of Arguments : 06.12.2018 Date of Judgment : 12.12.2018 JUDGMENT
1. One Lala Ram s/o Jaggi Singh had made a complaint to the police who were on patrolling duty on 20.07.2017. He alleged that he was driving his auto rickshaw bearing no. DL-1R 7871 on the intervening night of 19/20.07.2017. One passenger was in the vehicle who was to be dropped at Seelampur. It was around 11.45 pm or 12.00 in the midnight. When the auto reached near Kawar Tent, Maujpur, the passenger suddenly took out a katta (a countrymade pistol) and put it on the back of the said auto driver demanding him to stop the vehicle. It is further alleged that he stopped the vehicle on the road and at the same time one police constable along with another person were passing through in a bullet motorcycle to whom the complainant revealed the act of the passenger. The police caught hold of the accused and the katta was SC No. 330/17 State vs. Manoj 12.12.2018 Page 1 seized and the name of passenger was revealed as Manoj s/o Happu. Concerning the incident, on receipt of DD No. 3-B ASI Yogesh Tyagi along with constable Vinay reached the scene of occurrence where ASI Ashok Kumar, constable Jitender, complainant Lala Ram were present. The accused Manoj along with one desi katta was produced before the ASI.
2. On opening the barrel of katta one live cartridge was found. He recorded the statement of complainant Lala Ram who stated that he is working as TSR driver and accordingly his statement was recorded as mentioned above concerning the incident.
3. On interrogation the name of passenger was revealed as Manoj. IO recorded the statements of witnesses, prepared ruqqa and got the case registered. During investigation of this case the IO prepared the site plan at the spot at the instance of complainant. Accused was arrested in this case. After necessary investigation, charge sheet is filed in this case against the accused.
4. The matter is committed by the ld. M.M. to this court. The accused was charged for the offences u/s 393/398 of IPC and u/s 25/27 of Arms Act. He pleaded not guilty and the trial was ordered.
5. The prosecution has examined ten witnesses as under :
PW-1 Constable Vinay Kumar - joined the investigation along with IO ASI Yogesh Tyagi.
PW-2 ASI Ashok Kumar - was checking the vehicles at 66 Ft.
Road near Tent Wala School and apprehended the accused.
PW-3 Constable Jitender (DHG) - accompanied ASI Ashok Kumar.
PW-4 ASI Ravinder Singh - Duty Officer - recorded the DD No. SC No. 330/17 State vs. Manoj 12.12.2018 Page 2 4-A at Ex. PW4/A, proved his endorsement Ex. PW4/B on ruqqa, FIR at Ex. PW4/C. He also issued the certificate u/s 65-B of Indian Evidence Act at Ex. PW4/D. PW-5 HC Ajesh - deposited one sealed parcel in FSL Office vide RC No. 94/21/17.
PW-6 Retired ASI Yogesh Tyagi - IO who conducted the investigation, recorded the statement of complainant Lala Ram at Ex. PW6/A, prepared ruqqa at Ex. PW6/B, prepared site plan Ex PW6/C. He also proved the seizure memo of desi katta at Ex. PW1/C, arrested the accused vide memo Ex. PW1/C and proved the arrest memo at Ex. PW1/D. He also proved the disclosure statement made by accused at Ex. PW1/E. He recorded the statements of witnesses.
PW-7 Lala Ram - complainant.
PW-8 Addl. DCP-I Rajender Prasad Meena - accorded the
sanction u/s 39 of Arms Act against accused.
PW-9 ASI Kartar Singh - submitted the supplementary charge
sheet in the court.
PW-10 Sh. R. Eniyavan, Jr. Forensic/Asstt. Chemical Examiner
(Ballistic) -proved his report at Ex. PW10/A.
6. After conclusion of the prosecution evidence, the statement of the accused u/s 313 of Cr.PC is recorded. The accused had denied the circumstances appearing against him and further claimed that he is an innocent. The arguments from the side of the State and that of the accused through the ld. Counsel are heard.
7. The Ld. Addl. PP appearing for the state submits that the prosecution had proved its case since the evidence of PW-7 - the SC No. 330/17 State vs. Manoj 12.12.2018 Page 3 complainant remains unassailable. The police apprehending the accused at the spot is proved by the evidence of PW-2 Ashok Kumar who was on duty along with Home Guard Jitender. The Ld. Addl. PP further submits that the say of PW-7 is corroborated by the testimonies of PW-2 and PW- 3 who is a home guard constable. He further argues that the cross examination of these witnesses does not shake the credibility of these witnesses. The confiscation of the fire arm on the spot itself would suffice the ingredients of the offence for which the accused is charged.
8. On the other hand, Ld. Counsel Sh. Gaurav Vashisht - the Ld. Amicus Curiae appointed by this court vide order dated 10.11.2017, submits that the testimony of PW-7 - the complainant in this case does not support the allegation of attempt to robbery and therefore the offence u/s 393 of IPC nor the offence u/s 398 of IPC is attracted. He further submits that the version of PW-2 is in conflict with the testimony of PW-7 regarding the presence of the accused in the TSR. He argues that PW-2 & 3 deposed that the accused was very much in the TSR whereas PW-7 had stated on oath that the accused ran away after seeing the police. The Ld. Counsel further argues that the relevant material object in which the alleged commission of offence took place i.e. the auto rickshaw (TSR) was not seized nor it was photographed. According to him the fire arm is planted by the police. Therefore, he submits that the accused is entitled for benefit of doubt and a case of clear acquittal is made out. Offences u/s 393, 398 of IPC
9. In the backdrop of the submissions made by the Ld. Addl. PP and also the Ld. Amicus Curiae, this court is to find out whether the prosecution establishes the complicity of the accused for the offences u/s 393, 398 of IPC and also u/s 25 of the Arms Act beyond doubt?
10. The careful analysis of the evidence in order to answer the SC No. 330/17 State vs. Manoj 12.12.2018 Page 4 point in question as above, the evidence of PW-7 being the star witness is very material. No doubt he deposed to the fact that he was driving the auto with a passenger who suddenly wielded the weapon and asked him to stop the vehicle. He deposed that the police party were passing through on a bullet and on seeing the police, the accused ran away. According to PW-7 the police chased him and thereafter he was apprehended. The ASI Yogesh Tyagi thereafter reached the spot and seized the weapon for which the sketch was prepared containing the signature of PW-7. In his examination in chief itself PW-7 clearly stated that he cannot say whether the accused had made an attempt to rob PW-
7. He reiterated that on seeing the police the accused ran away.
11. This testimony of PW-7 is to be viewed from the testimony of PW-2 Ashok Kumar who was on patrolling duty. He testified that around midnight on 19/20.07.2017, when he was checking the vehicles near 66 Ft. Road, one TSR driver came to him and informed PW-2 that the passenger in his vehicle had attempted to commit robbery by using the katta.
12. PW-3 who was also along with PW-2 had sailed with the testimony of PW-2. But the star witness PW-7 clearly testified that on seeing the police the accused ran away and thereafter he was apprehended after chasing. PW-7 had further testified that he was not definite whether the accused tried to rob him. Excepting the evidence of PW-7 and the immediate witnesses PW-2 and 3 there is none who can speak about what had happened while the accused-passenger was sitting in the vehicle. Suffice it to say that with the contradictory statement of PW-7 regarding the alleged robbery and further having stated that the accused had run away on seeing the police, the necessary ingredients for the offences u/s 393 attempt to commit robbery is not made out. In all the SC No. 330/17 State vs. Manoj 12.12.2018 Page 5 cases of robbery either there should be a commission of theft or extortion. The testimony of PW-7 in chief does not depict that the accused had intentionally caused fear of any injury in dishonestly putting the PW-7 into fear to part with any property or valuable security which amounts to extortion. Likewise there is no testimony by PW-7 to find that the accused had dishonestly took any movable property out of the person of PW-7. Considering the evidence of PW-7, this court is unable to hold that there was any theft or extortion amounting to robbery as required u/s 390 of IPC. Therefore, any attempt to commit robbery disappears from the very testimony of PW-7. In the circumstances, the usage of the arm in committing the robbery for commission of the offence u/s 393 of IPC is also not made out, thereby not projecting any ingredients for the offence u/s 398 of IPC. The accused is thus entitled for acquittal since the offences are not proved.
Offence u/s 25 of Arms Act
13. It must be also kept in mind that the accused is also charged for the offence u/s 25 of the Arms Act. The say of PW-7 that the accused took out the country made pistol and put on his back is to be viewed from the immediate witnesses after the incident, i.e. through PW-2 and PW-3.
14. PW-2 deposed that he informed the police immediately after the accused was apprehended with the help of PW-3. The PW-2 found a desi katta (country made pistol) in the right hand from passenger who was sitting in TSR. PW-3 testified corroborating the version of possession of desi katta by the accused. The cross examination of PW-2 does not discredit the possession of the said desi katta from the person of the accused. The PW-3's cross examination is silent with regard to the possession of desi katta with the accused. On the other hand the cross SC No. 330/17 State vs. Manoj 12.12.2018 Page 6 examination suggests "ASI Ashok had taken the katta from the hand of the accused". It must be kept in mind that the seizure memo concerning the country made pistol is witnessed by PW-3 Jitender, PW-2 Ashok Kumar. The Ld. Counsel for the accused submits that the seizure is opposed to the principles of law governing u/s 100 r/w Section 52 of Cr.P.C. since no public witnesses are examined to prove the seizure. This aspect is cleared in the ruling of Kalpnath Rai vs. State 1997 (4) RCR Cri. 768 where it is held that there is no legal proposition that the evidence of the police officials without independent witnesses is unworthy of acceptance. Therefore, the non joining of public witnesses will not discredit the seizure of the desi katta. Further more the accused in his statement u/s 313 Cr.P.C. has only denied the seizure. He admits that there was a verbal duel with the auto driver who is examined as PW-7 Lala Ram with regard to the fare. The presence of the accused at the spot is not denied.
15. As regards the country made pistol seized which is exhibited through the evidence of PW-1, the desi katta Ex. P1 and the cartridge found in the chamber of the country made pistol which is Ex. P2 are corroborated through the evidence of PW-2 and PW-3. Considering the above said seizure and further after weighing the evidence of PW-7 who had also deposed that around 11.45 to 12 in the midnight when the vehicle reached Maujpur, the passenger (accused) took out a katta and put it on his back demanding PW-7 to stop the vehicle, the possession of such an instrument with the accused cannot be held as not proved. The contention of the defence that the said weapon - instrument is planted cannot be believed since the same is also shown to the witness PW-7 who identified the said weapon.
16. The evidence of PW-10 the Jr. Forensic Examiner SC No. 330/17 State vs. Manoj 12.12.2018 Page 7 (Ballistic) is perused. PW-10 R. Eniyavan testified that he received the parcels sent by the police and upon opening the parcel he found F-1 - the weapon and A-1 - the cartridge which were tested in the lab. F-1 turned out to be a country made pistol capable of chambering and firing 8 mm . 315 ammunition. A-1 - cartridge turned out to be an 8 mm cartridge and exhibited in the court as P2. He has given the opinion that F-1 is a fire arm - a country made pistol capable of chambering and firing standard 8 mm/.315" ammunition. The A-1 cartridge is ammunition defined under the Arms Act. His testimony is not discredited in the cross examination. The document Ex. PW10/A and B and particularly the results of ballistic examination which is at Ex. PW10/A establishes that these exhibits were examined and the opinion was given. F-1 was found to be in working order and such of the material objects are fire arms as defined under the Arms Act.
17. The prosecution further examined PW-8 R.P. Meena (DCP-I) NE. He testified that after considering the case records and statements along with the opinion of the ballistic expert, he had accorded the sanction u/s 39 of the Arms Act which is exhibited as Ex. PW8/A. This testimony of PW-8 cannot be discarded as contended by the Ld. counsel for the defence on the ground that that PW-8 did not examine the material objects. It is nowhere provided that the sanctioning authority u/s 39 of the Arms Act is mandated to examine the exhibits. The examination of fire arms are to be opined by the proper expert i.e. FSL which is proved through the evidence of PW-10. Suffice it to say that the prosecution had successfully established the possession of fire arm by the accused. There is nothing on record to hold that PW-8 had not applied his mind in ordering the sanction of prosecution of the accused for the offences under Section 25 of the Arms Act. In these circumstances, the following :
SC No. 330/17 State vs. Manoj 12.12.2018 Page 8 ORDER The accused is acquitted for the offences u/s 393, 398 of IPC. The accused is convicted for the offence u/s 25 of the Arms Act in FIR No. 327/17 of P.S. Welcome, Delhi. Now to come up for hearing on quantum Digitally signed by of sentence by 12.30 pm. A.S. A.S. JAYACHANDRA JAYACHANDRA Date: 2018.12.12 14:18:58 -0400 Pronounced in open court (A.S. Jayachandra) on 12.12.2018 District & Sessions Judge Shahdara District, Delhi SC No. 330/17 State vs. Manoj 12.12.2018 Page 9 IN THE COURT OF SHRI A.S. JAYACHANDRA, DISTRICT & SESSIONS JUDGE, SHAHDARA DISTRICT, KARKARDOOMA COURTS, DELHI SC No. 330/17 FIR No. 327/17 PS Welcome U/s 25 Arms Act State Versus Manoj S/o Sh. Happu ORDER ON SENTENCE 12.30 PM Present : State - by Sh. Tofeeq Ahmed, Ld. Addl. PP.
Convict b/f judicial custody - represented by Sh. Gaurav Vashisht, Ld. Amicus Curiae.
Heard on the point of sentence. The accused is convicted for the offence u/s 25 of the Arms Act which reads as under:
"Punishment for certain offences whoever - (1) xxxxxxx (1A) xxxxxxx (1AA) xxxxxx (1AAA) xxxxxx (1B) whoever -
a) acquires, has in his possession or carries any fire arm or ammunition in contravention of Section 3; or xxxxxx ---------
shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to three years and shall also be liable to fine.
Provided that the court may for any adequate and special reasons to be recorded in the judgment impose a sentence of SC No. 330/17 State vs. Manoj 12.12.2018 Page 10 imprisonment for a term less than one year".
Heard the Ld. Addl. PP for the State and also the Ld. Counsel for the convict. The Ld. Addl. PP submits that the accused possessing the fire arm would be a danger to the society and he be dealt severely which would deter others.
On the other hand the Ld. Counsel for the convict submits that the convict is parent-less and is eking out his livelihood by doing the polishing work of metals and is aged 30 years. It is further submitted that he hails from the rural background from the State of U.P. and had come to Delhi in search of his livelihood. If he is sentenced to longer imprisonment, that would expose him to hard criminals and the chances of reformation would remain remote. He further submits that the incident was only a quarrel which had occurred on the dispute over fare while travelling in an auto rickshaw and he be dealt leniently following the theory of reformation.
This court has given careful thought to the submissions on either side. It is always expedient while sentencing any convict to afford an opportunity to the convict so that he may reform himself and become a responsible citizen. This Court has also taken note of the age of the convict. The convict has been in custody ever since the date of his arrest. He was arrested on 20.07.2017. More than one year had already elapsed. He should be given an opportunity to reform himself. In the circumstances the following sentence would meet the ends of justice. Hence, the :
ORDER:
The convict is sentenced to undergo one year rigorous imprisonment for the offence u/s 25 (1B) of Arms Act, 1959 and is also sentenced to pay a fine of Rs.1000/- in default whereof he shall undergo SC No. 330/17 State vs. Manoj 12.12.2018 Page 11 SI for a period of one month.
Since the convict has already undergone the period of sentence and the default sentence in lieu of fine, he be given the benefit u/s 428 of Cr.P.C.
The jail authorities are directed to set forth the accused at liberty forthwith if not wanted in any other case after furnishing the personal bond u/s 437-A of Cr.P.C. for a sum of Rs.5000/-.
The complainant police is directed to destroy the material objects Ex. P1 and P2 namely the country made pistol and cartridge seized in this case after the expiry of appeal period and file a report into this court since they are of no value. A copy of the judgment and sentence be given free of cost to the convict. Digitally signed by A.S. A.S. JAYACHANDRA File be consigned to record room. JAYACHANDRA Date: 2018.12.12 14:19:32 -0400 Pronounced in open court (A.S. Jayachandra) on 12.12.2018 District & Sessions Judge Shahdara District, Delhi SC No. 330/17 State vs. Manoj 12.12.2018 Page 12