Delhi District Court
State vs Sanjay @ Punty on 24 September, 2014
THE COURT OF SH. PAWAN SINGH RAJAWAT
METROPOLITAN MAGISTRATE 11(CENTRAL), ROOM NO. 266,
TIS HAZARI COURTS, DELHI.
STATE
VERSUS
SANJAY @ PUNTY
FIR No. 03/11
P.S.: SUBZI MANDI
U/S: 25 Arms Act
1. Serial No. of the case : 02401R0317742011
2. Date of commission of offence: 03.01.2011
3. Name of the Complainant : SI VINOD YADAV
No. D4405,
P.S Subzi Mandi, Delhi.
4. Name of the accused, and SANJAY @ PUNTY
his parentage and residence : S/o Raj Kumar,
R/o D7, Kabir Basti, Malka
Ganj, Subzi Mandi, Delhi.
5. Date when judgment : 29.08.2014
was reserved
6. Date when Judgment : 24.09.2014
was pronounced
7. Offence Complained of : Section 25 Arms Act
or proved
8. Plea of accused : Pleaded not guilty
9. Final Judgment : Convicted for the offence U/s
25 Arms Act.
FIR No. 03/11
PS- Subzi Mandi
State Vs. Sanjay @ Punty page 1/12
Brief Statement of reasons for the decision of the case
1. Briefly facts of the case are that on 03.01.2011 at about 11.30 AM at Kamla Nehru Park, Delhi within the jurisdiction of PS Subzi Mandi, on the basis of secret information accused was found in possession of one pistol and five live cartridges loaded from left side dub of his jeans without any license. Accordingly, FIR No. 03/11, PS Subzi Mandi, U/s 25 Arms Act was registered. The chargesheet was filed on 15.07.2011.
2. After hearing the arguments, charge was framed against him for the offence U/s 25 Arms Act to which he pleaded not guilty and claim trial. Thereafter, matter was fixed for prosecution evidence.
3. In support of the allegations, prosecution has examined five witnesses namely PW1 HC Sanjay Kumar, PW2 HC Kushal Singh, PW3 SI Vinod Yadav, PW4 HC Hari Om and PW5 SI Sanjeev Kumar to prove the case of the prosecution. Accused has not disputed the genuineness of FIR No. 03/11 dated 03.02.2011 and and Sanction order U/s 39 Arms Act No. 1141/S.O.Addl DCP/North dated 11.02.2011. The evidence of each prosecution witness is relevant and will be discussed at later stage.
4. After concluding the prosecution evidence, statement of accused U/s 313 Cr.P.C. was recorded and all the incriminating evidence were put to him wherein he denied the allegations and stated that he was falsely implicated by Rajesh, S/o Jagdish who is BC of Subzi Mandi area due to previous enmity. He further stated that he do not wish to lead evidence in his defence. Thereafter, final arguments were heard.
5. Ld. APP for the State argued that offence against the accused has been proved as all the witnesses including recovery witnesses have supported the case of the prosecution. He prays for conviction of the accused.
FIR No. 03/11
PS- Subzi Mandi
State Vs. Sanjay @ Punty page 2/12
6. On the other hand, Ld counsel for accused submits that accused was falsely implicated by Rajesh, S/o Jagdish who is BC of Subzi Mandi area due to previous enmity. He also pointed out that there are material contradictions in the testimony of PW1 and PW2. He also argued that in the absence of public witnesses, the recovery is doubtful. He prays for acquittal.
7. PROSECUTION EVIDENCE:
7.1 PW1 stated that on the intervening night of 02/03.01.2011, he joined the investigation of FIR No. 93/10 U/s 307 PS Morice Nagar in search of wanted accused Sanjay and Raju. He further stated that at about 11:20 AM on 03/01/2011 while he along with SI Vinod Yadav and other police officials reach near Jule Lal Mandir, Kabir Basti, Sabji Mandi a secret informer told SI Vinod Yadav that accused Sanjay in possession of illegal pistol is present behind Ramleela Ground and can be apprehended. He further stated IO prepared the raiding party including the secret informer and also asked 34 passersby to join the raiding party but none agreed and left. He also stated that on the pointing out of secret informer accused Sanjay was apprehended and on his cursory search one pistol from left dub of his jeans was recovered and Magazine of the pistol was found containing five live cartridges. He also stated that IO prepared sketch of the recovered pistol vide Ex.PW1/A and described the design of the pistol and stated that same was seized vide Ex.PW1/B and after sealing the same seal was handed over to HC Kushal Singh. He also stated that Rukka was prepared and FIR was registered through HC Khushal. He also stated his presence at the time of arrest and personal search and recording of the disclosure statement vide Ex.PW1/D to Ex.PW1/F respectively. PW1 correctly identified the accused as well as the case property when produce before FIR No. 03/11 PS- Subzi Mandi State Vs. Sanjay @ Punty page 3/12 him and stated that it is the same pistol which was recovered from the possession of the accused and was proved as Ex.P1 and the magazine was proved as Ex.P2 and cartridges were proved vide Ex. P3. During cross examination by Ld. Counsel for accused he fail to told the exact time when they left the Police Station and stated that departure entry was made but he did not remember its number. He further stated that secret information was given to the IO in his presence and admitted the presence of public persons at the place where secret information was received. He fail to recollect whether IO forwarded secret information to higher officers and whether they were in vehicle or on foot. He stated that secret informer left after the accused apprehended at his pointing out and public persons were present in the park at the time of apprehension of accused. He admitted that they did not offered their personal search before taking search of the accused. Surprisingly, during the cross examination he stated that the pistol was recovered from the right side dub of the accused whereas in his examination chief he stated that pistol was recovered from left side dub.
He fail to recollect about the scale by which pistol was measured. He also fail to recollect whether the rukka was sent to HC Kushal. 7.2 PW2 is another recovery witness and gave his testimony on the lines of PW1 and he also identified the accused and recovery of pistol from the possession of accused. During cross examination PW2 stated that the secret information was given to SI Vinod Yadav in his presence. He admitted that no written notice was served upon public persons who refused to join investigation and further stated that secret informer left the spot after pointing out towards the accused. PW2 has stated that accused did not tried to escape from the spot and pistol was recovered from left side dub of the accused. He stated that he did not remember whether they offered their FIR No. 03/11 PS- Subzi Mandi State Vs. Sanjay @ Punty page 4/12 search to the accused before searching him. He further stated that his statement was recorded by the IO at the spot alongwith the statement of HC Sanjay and Hari Om. He denied the suggestion that no pistol was recovered from the possession of accused and all writing were done while sitting in the Police Station and he has deposed falsely at the instance of IO. 7.3 PW4 was also member of the raiding party and he also give testimony on the lines of PW1 and PW2. During cross examination by Ld. LAC for accused he stated that at the time to taking search of accused, no public persons was present. He fail to recollect the exact time when HC Kushal came back at the spot after registration of FIR. He denied the suggestion the accused not apprehended from the spot and nothing was recovered from his possession. He further denied suggestion that accused was apprehended at Nagia Park in connection with the case U/s 307 IPC and falsely implicated in the present case.
7.4 PW3 is the IO. He stated that on the intervening night of 23 January, 2011 he alongwith HC Kushal Singh, HC Sanjay and HC Hari Om were in search of accused Sanjay @ Punty and Raju @ Hakla in FIR No. 93/10 U/s 307/34 IPC, PS Morice Nagar through DD NO. 48B dated 02.01.2011 and on 03.01.2011 at about 11.20 AM when they reached at Jhulelal Mandir, Kabir Basti one secret informer met and informed that accused Sanjay @ Punty having illegal arms will came to Kamla Nehru Park and behind Ramilila ground and can be apprehended if raided. He further stated that he asked 34 public persons to join the raiding party but none agreed and left the spot without disclosing their identity and no written notice was served upon them due to lapse of time. He further stated that they went to Kamla Nehru Park and entered into the same from the last corner of gali Jhulelal Mandir and at about 11.30 AM at the instance of secret informer FIR No. 03/11 PS- Subzi Mandi State Vs. Sanjay @ Punty page 5/12 accused Sanjay @ Punty who was standing behind the stage of Ramlila ground was apprehended. He further stated that on search of accused, one pistol was recovered from the left dub of his wearing jeans pant and same was checked and its magzine was found containing five live cartridges and he stated about preparation of sketch of pistol, five live cartridges and its magzine by putting the same on white paper vide Ex. PW1/A. He also stated that particulars of the recovered pistol as well as the length of five live cartridges. He he also stated that on the slider of the pistol "Auto Pistol No. 71117657 Round" was engraved and on the other side "No. 7111 Automatic Pistol made in USA" was engraved. He further stated that on the bottom of recovered cartridges "KF 7.62" and on the barral "only for Army Supply" was engraved. He further proved the preparation of pullanda of recovered pistol, cartridges and magazine by putting in white cloth and sealing with the seal of VY and handing over of seal to HC Kushal Singh. He further stated that the recovered pistol, cartridges and magazine were seized vide Ex. PW1/B and rukka was prepared vide Ex. PW3/A and FIR was got registered through HC Khushal Singh. He also proved the arrest and personal search of the accused and preparation of site plan and pointing out memo at the instance of the accused. He further stated that thereafter they went in search of accused Raju @ Hakla whose name was disclosed by accused Sanjay in his disclosure statement but no clue was found and thereafter, accused Sanjay was sent to lockup after medical examination and case property was deposited in the malkhana in sealed condition. PW3 correctly identified the accused as well as the case property when produce before him and stated that it is the same pistol which was recovered from the possession of the accused which are Ex. P3 (colly). During cross examination by Ld Defence Counsel he stated that he had not FIR No. 03/11 PS- Subzi Mandi State Vs. Sanjay @ Punty page 6/12 given the secret information to his higher officials at that time but after arresting the accused Sanjay he gave information to his higher officials. He further stated that public persons were present in the park but he do not ask any public person to join investigation before arresting the accused at the time when secret informer pointed out towards the accused. He also stated that accused was standing behind the wall of Ramleela stage situated in Kamla Nehru Park but failed to recall how many gates were there. He stated that the distance between the gate and spot where accused was standing as about 1015 steps and stated that accused had not tried to escape from the spot. He also stated that before taking search of accused, he offered his search and had not asked any public person to join at the time of taking search of the accused and he searched the accused only once and pistol was recovered from the left dub of accused alongwith one mobile make Karbon, Rs. 100/. He stated that search memo, arrest memo and other written documents were prepared while sitting in the park. He further stated that after registration of FIR, he recorded the statements of HC Khushal Singh, HC Sanjay and HC Hariom at the spot. He also stated that after recovery of the pistol, he asked public persons to join investigation but all refused and left the spot without disclosing their identity and he tried to give written notice but all refused to received the same and he had not taken any action against those public persons as they left the spot at that time. He further stated that he had not taken signatures of public persons on the site plan and sketch of pistol. He denied the suggestion that accused was arrested from Chowki No.2 and no incriminating articles were recovered from the possession of the accused. He also denied the suggestion that all the written work was done by sitting in the Police Station and he is deposing falsely being IO of the case.
FIR No. 03/11
PS- Subzi Mandi
State Vs. Sanjay @ Punty page 7/12
7.5 PW5 is the second IO and stated that on 31.01.2011 exhibits of the
present case were sent to FSL, Rohini through Constable Sandeep Kumar and result of same were obtained from FSL. He also stated that he obtained Sanction U/s 39 Arms Act from DCP North in respect of the present case. 7.6 In terms of Section 294 Cr.P.C, vide separately statement accused has not disputed the genuineness of original FIR No. 03/11 dated 03.01.2011 and Sanction order U/s 39 Arms Act No. 1141/S.O.Addl DCP/North dated 11.02.2011.
8. APPRECIATION OF EVIDENCE:
8.1 In the present case, accused has not put any probable defence. All the prosecution witnesses have deposed about the recovery of illegal weapon from his possession for which he could not provide explanation.
There is no material contradictions in the testimony of prosecution witnesses. The report of ballistic expert which is admissible U/s 293 Cr.P.C has proved that recovery items are Firearms/Ammunition as defined in the Arms Act, 1959. The sanction u/s 39 of the Arms Act has also not been disputed by the accused vide separate statement in terms of Section 294 Cr.P.C. There is no tampering with the seal of the case property as it was produced in sealed condition. The link evidence is also against the accused as PW5 stated that he got deposited the sealed pullandas of case property at FSL, Rohini and thereafter, obtained the result. Despite opportunities, accused has not led any evidence in his defence. The only piece of contradictions pointed out by the Ld counsel for accused is that during cross examination PW1 stated that pistol was recovered from the right side dub of the accused whereas all the other witnesses have stated that same was recovered from the left side dub is humbly rejected as the testimony of PW1 was recorded after eight months from his examination in chief and at FIR No. 03/11 PS- Subzi Mandi State Vs. Sanjay @ Punty page 8/12 the time of cross examination, PW1 has not refreshed his memory. Therefore, they are bound to have some contradictions and the testimony cannot be rejected.
8.2 The other arguments that there was no public witness either to the recovery or to the arrest of the accused is also humbly rejected as the said fact itself cannot be a ground for rejecting the unimpeached testimony of the PWs.
8.3 In view of the judgment in the matter of Sunder Singh v. State of Uttar Pradesh, AIR 1956 SC 411, it is held that irregularity cannot vitiate the trial unless the accused has been prejudiced by the defect and it is also held that if reliable local witnesses are not available the search would not be vitiated. In Matajog Dubey v. H.C. Bahri, AIR 1956 SC 44 it is held that when the salutary provisions have not been complied with, it may, however, affect the weight of the evidence in support of the search or may furnish a reason for disbelieving the evidence produced by the prosecution unless the prosecution properly explains such circumstance which made it impossible for it to comply with these provisions. This again depends on question whether the official has deliberately failed to comply with these provisions or failure was due to lack of time and opportunity to associate some independent witnesses with the search and strictly comply with these provisions."
8.4 There is no reason to doubt the testimony of PWs merely because they are police personnel. It has been held by the Hon'ble Supreme Court in Karamjit Singh Vs. State (Delhi Administration) reported in AIR 2003 SC 1311;
"........The testimony of police personnel should be treated in the same manner as testimony of any other witness and FIR No. 03/11 PS- Subzi Mandi State Vs. Sanjay @ Punty page 9/12 there is no principle of law that without corroboration by independent witnesses their testimony cannot be relied upon. The presumption that a person acts honestly applies as much in favour of police personnel as of other persons and it is not a proper judicial approach to distrust and suspect them without good grounds. It will all depends upon the facts and circumstances of each case and no principle of general application can be laid down....."
9. On the basis of evidence of record and above discussion, I am satisfied that accused has failed in putting any probable defence and case of the prosecution is proved beyond reasonable doubt. Accordingly, accused Sanjay @ Punty is convicted for the offence U/s 25 Arms Act, 1959. Copy of judgment be given free of cost to the convict.
Put up for arguments on sentencing at 2.00 pm today.
ANNOUNCED IN THE OPEN (PAWAN SINGH RAJAWAT)
COURT ON 24.09.2014 METROPOLITAN MAGISTRATE07
CENTRAL, TIS HAZARI COURTS/DELHI.
FIR No. 03/11
PS- Subzi Mandi
State Vs. Sanjay @ Punty page 10/12
THE COURT OF SH. PAWAN SINGH RAJAWAT,
METROPOLITAN MAGISTRATE07, ROOM NO. 137,
TIS HAZARI COURTS:DELHI.
STATE
VERSUS
SANJAY @ PUNTY
P.S SUBZI MANDI
FIR No. 03/11
U/s 25 ARMS ACT.
At 2.00 PM
Present : Ld APP for the State.
Convict Sanjay @ Punty produced from J/C.
Counsel for accused.
O R D E R ON SENTENCING
Arguments on the point of sentence heard today.
Ld. APP for the State submits that the offence by the convict is proved. He also argued that exemplary punishment be given to the convict as he is a previous convict in FIR No. 93/10, PS Maurice Nagar for offence U/s 307/34 IPC where he was sentenced to five years rigorous imprisonment. He submits that convict be sentenced to the maximum punishment.
On the other hand Ld. Counsel for the convict submits that convict prays for releasing the convict on period of detention already undergone.
In the present case convict Sanjay @ Punty was found in the possession of illegal arms and same was used for commission of offence U/s 307 IPC in FIR No. 93/10, PS Maurice Nagar. Section 25 of Arms Act provides for minimum punishment for FIR No. 03/11 PS- Subzi Mandi State Vs. Sanjay @ Punty page 11/12 three years (03 years) which may be extended upto seven years (07 years) and shall be subject to fine also.
Therefore, taking a lenient view against the convict, convict Sanjay @ Punty is sentenced to rigorous imprisonment for three years (03 years) and fine of Rs. 1000/ for the offence punishable U/s 25 Arms Act. In default of payment of fine, convict shall further undergo imprisonment for three months. Convict shall have the benefit of Section 427 Cr.P.C and the present sentence shall run concurrently with the previous sentence awarded in FIR No. 93/10, PS Maurice Nagar.
No application U/s 389 Cr.P.C. is moved. Hence, convict is sent to Tihar Jair for serving out his sentence.
Copies of order be given free of cost to convict alongwith full papers i.e charge, exhibited documents, copies of statements of witnesses and statement of accused U/s 313 Cr.P.C be given free of cost to the convict.
File be consigned to Record Room after due compliance.
Announced in the open (PAWAN SINGH RAJAWAT)
court on 24.09.2014 METROPOLITAN MAGISTRATE07(Central)
TIS HAZARI COURTS, DELHI
FIR No. 03/11
PS- Subzi Mandi
State Vs. Sanjay @ Punty page 12/12