Delhi District Court
State vs . Manoj @ Sonu on 15 May, 2010
1
FIR No. 121/07
State vs. Manoj @ Sonu
IN THE COURT OF SH. SANDEEP GARG, METROPOLITAN
MAGISTRATE (CENTRAL)-05, DELHI
FIR No. 121/2007
U/s 25/54/59 Arms Act
PS- Kamla Market
State Vs. Manoj @ Sonu
JUDGMENT:
a The Sl. No. of the case : 1080/2
b The date of commission : 19.02.2007
c The name of complainant : ASI Ramphool Singh
d The name of accused : Manoj @ Sonu @ Raja S/o late
: Naurangi, R/o House No. C-405,
: Aman Vihar, Sultan Puri, Delhi.
e The offence complained of : 25/54/59 Arms Act
f The plea of accused : Pleaded not guilty
g The final order : Acquitted
h The date of such order : 15.05.2010
i The date of institution
of the case : 18.04.2007
j Date of hearing final arguments
and adjourning the matter
for orders : 15.05.2010
BRIEF REASONS FOR THE DECISION:
1. The accused Manoj @ Sonu has been sent for trial on the allegations that he was found in possession of one country made pistol (Desi Katta) on 19.02.2007 at about 04:45 PM, in front of the main gate of Shastri Park, Delhi, with one live cartridge without having license for the possession of the same. Investigation was conducted and charge sheet was filed in the court on 18.04.2007.
2. Vide order dated 01.04.2008, accused was charged for offence u/s 25 of Page 1 of 8 2 FIR No. 121/07 State vs. Manoj @ Sonu Arms Act to which he pleaded not guilty and claimed trial.
3. In order to substantiate its case, prosecution has examined seven witnesses.
4. PW-1 is duty officer ASI Bodhraj. He has proved FIR No. 121/07 PS Kamla Market on record, Ex. PW-1/A.
5. PW-2 is HC Vinod Kumar. He has deposed that on 19.02.2007, he was on patrolling duty along with ASI Ramphool and Ct. Hemraj at Hamdard Chowk. At about 04:30 PM when they were patrolling, they received information that a person is standing near Shastri Park, main gate and is having country made revolver in his possession. ASI Ramphool requested 4/5 passersbys to join the investigation, but all of them refused and left without disclosing their name and addresses. They went to the spot alongwith the secret informer. At about 04:45 PM, the accused was apprehended at the instance of secret informer. Upon personal search of the accused, a country made revolver (Desi katta) was recovered from the right dub of his jeans. The katta was loaded with one cartridge. IO prepared the sketch of a Katta which is Ex. PW-2/A. The katta was kept in pullanda and sealed with the seal of RPS vide seizure memo Ex. PW-2/B. FSL form was filled by the IO. IO also prepared the rukka and gave it to Ct. Hemraj, who Page 2 of 8 3 FIR No. 121/07 State vs. Manoj @ Sonu got the FIR registered and returned at the spot alongwith SI Kanwar Singh. The personal search of the accused was conducted vide personal search memo Ex. PW-2/C. The witness has identified the case property comprising of country made revolver Ex. P-1 and cartridge Ex. P-2.
During cross examination by Ld. defence counsel, the witness stated that he does not know the name of the secret informer who gave information about the accused. When the accused was arrested, nobody was present at the spot. IO did not give any information to the PS.
6. PW-3 is first IO ASI Ram Phool. The witness has supported the prosecution case and deposed on lines similar to that of PW-2 HC Vinod Kumar.
During cross examination, the witness has stated that there was no person when the accused was arrested at the spot and he had given information about arrest of the accused to the SHO. He did not give his personal search either to the accused or to any public person.
7. PW-4 is second IO SI Kanwar Singh. The witness has deposed that on 19.02.2007, Ct. Khem Raj handed over copy of FIR and original rukka to him and he went to the spot i.e. Hamdard Chowk, Asaf Ali Road, where he met the first IO ASI Ram Phool Singh and HC Vinod Kumar. The first IO Page 3 of 8 4 FIR No. 121/07 State vs. Manoj @ Sonu handed over the accused to him. He prepared site plan Ex. PW-4/A. He arrested the accused and conducted his personal search vide memos Ex. PW- 2/C and PW-2/D. He also obtained sanction U/s 39 of Arms Act.
8. PW-5 is Surender Singh, DCP North East District. The witness has proved sanction accorded by him U/s 39 of the Arms Act. The sanction order dated 07.08.2007 is Ex. PW-5/A.
9. PW-6 is Ct. Khem Raj. The witness has deposed on lines similar to that of PW-2 Vinod Kumar and has supported the prosecution case.
During cross examination by Ld. defence counsel, the witness has stated that he did not give any warning before conducting formal search of the accused. He conducted formal search of the accused within five minutes. IO had not sent any information to the PS regarding arrest of the accused.
10. PW-7 is Dr. Gourhari Kamila, Ballistic Expert. The witness has deposed that on 30.04.2007 he received the pullanda sealed with the seal of RPS, sent by DCP (C&R) in case FIR no. 121/07 PS Kamla Market. The seal was intact and tallied with the specimen seal impression. He examined the country made pistol and the cartridge. The country made pistol was in a working condition and cartridge was live. The detail report submitted by him is Ex. PW-7/A. Page 4 of 8 5 FIR No. 121/07 State vs. Manoj @ Sonu
11. All the incriminating evidence was put to the accused and his statement U/s 313 Cr.P.C. was recorded to which he denied his involvement in the offence. However, he preferred not to lead any defence evidence.
12. The court had heard the statement of Ld. APP for State as well as Ld. defence counsel. Ld. APP for states submits that the accused is liable to be convicted for offence charged, as the prosecution has been able to bring home guilt of the accused.
On th other hand, the Ld. defence counsel submits that they are glaring discrepancies in the statement of prosecution witness. Moreover, the alleged secret informer has not been examined. In view of the same, accused deserves to be acquitted of the charges levelled against him.
13. It is submitted by the Ld. defence counsel that there are material contradictions in the statement of PW-2 HC Vinod Kumar, PW-3 ASI Ramphool Singh and PW-6 Ct. Khemraj. While PW-2 HC Vinod Kumar and PW-3 ASI Ramphool Singh have stated that there was no person present at the spot when the accused was apprehended, on the contrary of PW-6 Ct. Khemraj has stated that besides him, ASI Ramphool Singh, HC Vinod Kumar and the secret informer were present when the accused was apprehended.
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14. Secondly, it is submitted by the Ld. defence counsel that PW-2 HC Vinod Kumar and PW-6 Ct. Khemraj have stated that IO did not give any intimation to the police station/SHO, whereas PW-3 ASI Ramphool Singh has stated that he had informed the SHO about the incident, which is a material contradiction and same casts a shadow upon the veracity of the prosecution story. The secret informer who is stated to have accompanied the police officials to Hamdard Chowk has not been examined. The accused is therefore, entitled to acquitted of the charges levelled against him.
15. There is merit in the submissions made by Ld. defence counsel. The secret informer who is stated to have been present along with other police officials at the time of apprehension of the accused has not been examined. Moreover, there are material contradictions in the testimonies of the PW-2 HC Vinod Kumar, PW-3 ASI Ramphool Singh and PW-6 Ct. Khemraj regarding presence of police officials and secret informer at the time of apprehension of the accused. The statements of PW-2 HC Vinod Kumar, PW-3 ASI Ramphool Singh and PW-6 Khemraj are contradictory to each other. As per PW-2 HC Vinod Kumar and PW-6 Ct. Khemraj, IO did not gave any information to the police station whereas PW-3, the first IO ASI Ramphool Singh has stated that he had informed the SHO about the incident. Page 6 of 8 7 FIR No. 121/07
State vs. Manoj @ Sonu The IO has admitted that he did not offer his personal search either to the accused or to the public person.
16. The Hon'ble Orissa High Court in the case of "Rabindernath Prusty Vs. State of Orissa", has held as under:
"10. The next part of the prosecution case is relating to the search and recovery of Rs. 500/- from the accused. One of the formalities that has to be observed in searching a person in that the searching Officer and other assisting him should give their personal search to the accused before searching the person of the accused. (See AIR 1969 SC 53 : (1969 Cri L.J. 279), State of Bihar V/s Kapil Singh). This rule is meant to avoid the possibility of implanting the object which was brought out by the search. There is no evidence on record whatsoever that the raiding party gave their personal search to the accused before the latter's person was searched. Besides the above, it is in the evidence of PWs 2 and 5 that the accused wanted to know the reason for which his person was to be searched and the reason for such search was not intimated to the accused. No independent witness had witnessed the search. In the above premises, my conclusion is that the search was illegal and consequently the conviction based thereon is also vitiated".
Being guided by above said case law, it can be said that search of the accused by above said police officials was in complete violation of the above said case law and the same can be said to be illegal.
17. The search of the accused conducted by IO and other police officials is illegal. The alleged secret informer has not been examined at all by the Page 7 of 8 8 FIR No. 121/07 State vs. Manoj @ Sonu prosecution. Accordingly, the court holds that prosecution has failed to discharge the onus proving that the accused was in possession of a country made pistol (Desi Katta) loaded with a live cartridge. He is thus acquitted of the charges levelled against him. His bail bonds are cancelled and surety is discharged. Case property be confiscated to State and be destroyed after expiry of period of appeal. File be consigned to Record Room.
Announced in the open (Sandeep Garg)
Court on 15.05.2010 MM(Central)-05,
Delhi.
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