Delhi District Court
State vs . 1. Anupam S/O Shyam Singh, on 11 August, 2011
1
IN THE COURT OF SH. SANJEEV AGGARWAL
ADDL. SESSIONS JUDGEV: ROHINI COURTS: DELHI
SC No.462/11
ID No.02404R0030382011
FIR No.296/10
PS Aman Vihar
U/s 307/34 IPC & 25/27 Arms Act.
State Vs. 1. Anupam S/o Shyam Singh,
R/o K45, Rama Vihar, Delhi.
2. Akhilesh Kumar Tiwari S/o Radha Kishan,
R/o K45, Rama Vihar, Delhi.
Date of institute in this court : 05.02.2011
Date of Judgment : 11.08.2011
Judgment:
1.In brief the prosecution story is that one Pawan Kumar @ Babu made the following statement to the police on 05.10.2010.
State Vs. Anupam etc. PS Aman Vihar FIR No.296/10 2 "That he was running a auto part shop at Rama Vihar, Delhi. Yesterday, on 04.10.2010, at around 10:00 p.m, he was present at his house, at that time, his brother Monu made a call to him and he told him that he and his friend Rinku had a quarrel with Akhilesh Tiwari over money transaction and Akhilesh Tiwari had slapped Rinku. Thereafter, he told Monu that he was reaching the said place.
Thereafter, aforesaid complainant left for the house of Akhilesh Tiwari. On the way, his brother Monu and his friend Rinku also joined him. Thereafter, all of them reached the house of Akhilesh Tiwari, where Akhilesh Tiwari along with his brother in law Anupam, were present outside their house.
When, he asked the reason from Akhilesh Tiwari as to why he had beaten up his brother Rinku, and due to this there was an altercation, Akhilesh Tiwari caught hold of him and his brother in law Anupam took out a tube light and assaulted him with the same. Thereafter, Akhilesh Tiwari told Anupam that the would not understand in this manner and they should be killed.
Thereafter, Anupam took out one katta State Vs. Anupam etc. PS Aman Vihar FIR No.296/10 3 from the dub of his pant and with the intention to kill him fired the same towards him, as a result of which bullet hit his left hand, thereafter, all of them ran away in order to save themselves and made a call to the police. Police came there and they were removed to SGM Hospital for treatment".
2. On the said statement an FIR U/s 307/34 IPC r/w section 25/27 Arms Act was registered at PS Aman Vihar and the investigation(s) were taken up by ASI Nanad Kishore.
3. Thereafter, both the accused persons were arrested at the instance of the Rinku, their separate disclosure statements were recorded. Pursuant to disclosure statement of accused Akhilesh Tiwari, he got recovered five rounds from his house from iron safe and accused Anupam got recovered katta from an open plot, beneath the bricks, which were separately seized.
4. After the surgical operation of Pawan Kumar @ Babu, the bullet State Vs. Anupam etc. PS Aman Vihar FIR No.296/10 4 was taken out by the doctor and handed over to the I.O, which was sent to FSL Rohini for forensic evaluation along with the other exhibits including the katta and cartridges.
5. After completion of the investigation(s), a charge sheet U/s 307/34 IPC r/w section 25/27 Arms Act was filed in the court.
6. Upon committal of the case to the court of sessions, a charge U/s 307/34 IPC was framed against both the accused persons, whereas an additional charge U/s 25 Arms Act was framed against the accused Akhilesh Tiwari and a separate charge U/s 25/27 Arms Act was framed against the accused Anupam, to which both of them pleaded not guilty and claimed trial.
7. Thereafter, the prosecution in support of its case has examined four witnesses. PW1 is HC Ghan Shyam, the duty officer, who has proved the copy of the FIR, Ex.PW1/A, rukka Ex.PW1/B, PW2 is State Vs. Anupam etc. PS Aman Vihar FIR No.296/10 5 Pawan Kumar, the complainant and the injured, who has totally turned hostile, regarding the incident, dt. 04.10.2010 with regard to the identity of the accused persons, being involved in the said incident of shooting, similarly PW3 Rinku & PW4 Monu have also turned hostile, with regard the said incident as well as with regard to the identity of the accused persons.
8. It was stated by both the accused persons that, in the present case, all the material witnesses of the prosecution including PW2 complainant Pawan Kumar, PW3 Rinku and PW4 Monu had all been examined, all of whom had turned hostile, regarding the incident dated 4.10.2010 and none of them had supported the prosecution version regarding the said incident, and all of them had turned hostile on the point of identity of the accused persons being involved in the said incident of shooting & quarrel dt. 4.10.2010. State Vs. Anupam etc. PS Aman Vihar FIR No.296/10 6
9. It was further prayed by the accused persons that, in the present case, though, charge under Section 25/27 Arms Act was framed against both the accused persons, however, the said charge was not legally tenable, as neither the FSL Report had been filed on the record nor any sanction under Section 39 of the Arms Act was placed on the record to prosecute them u/s. 25 Arms Act.
10. It was further stated by them that, even if, all the remaining prosecution witnesses are allowed to be examined, even then, it would be impossible to secure their conviction and continuing with the trial in these circumstances, would be a futile exercise, no purpose would be achieved by doing so. Therefore, it was prayed by them that prosecution evidence be closed.
11. On the other hand, ld. Addl. PP for the State had opposed the same.
State Vs. Anupam etc. PS Aman Vihar FIR No.296/10 7
12. After going through the record, it was found that all the material witnesses of the prosecution including the complainant Pawan Kumar PW2 and another eyewitness PW3 Rinku and PW4 Monu had all turned hostile regarding the alleged incident of quarrel and shooting dt. 4.10.2010, and they had also turned hostile on the point of identity of the accused persons being involved in the said incident, despite lengthy cross examination by the ld. Public Prosecutor, nothing had come out against the accused persons.
13. Though, charge u/s. 25/27 Arms Act was framed against the accused persons vide order dated 29.04.2011, however, the charge u/s. 25 Arms Act could not have been framed against both the accused persons, in view of the fact that no FSL Report was placed on the record, nor any sanction u/s. 39 Arms Act was obtained from the competent authority i.e. the DCP in this case for prosecuting the State Vs. Anupam etc. PS Aman Vihar FIR No.296/10 8 accused persons u/s. 25 Arms Act, which was an essential requirement of law as per Section 39 of the Arms Act. In these circumstances, the charge u/s. 25 Arms Act was wrongly framed against both the accused persons, without meeting the requirements of Section 39 of the Arms Act.
14. In these circumstances, continuing with the trial would have been a futile exercise and no purpose would have been achieved by doing so, as all the remaining prosecution witnesses were formal in nature, even if, all of them would have been allowed to be examined, even then, it would have been impossible to secure the conviction of the accused persons on their testimonies, and the charge u/s. 25 Arms Act wrongly framed against the accused persons could not have been cured ex post facto. Consequently, prosecution evidence was closed.
State Vs. Anupam etc. PS Aman Vihar FIR No.296/10 9
15. Statements of both the accused persons u/s. 313 Cr.P.C. were dispensed with, as no incriminating evidence had come on the record to connect them with the commission of the offence(s) u/s.307/34 IPC, and u/s. 25/27 Arms Act, for which they had been charged.
16. Consequently, both the accused persons stand acquitted of the charge(s) u/s. 307/34 IPC read with Section 25/27 Arms Act. Their bail bonds stand cancelled. Sureties are discharged. Original documents, if any, be returned, after cancelling endorsement, if any. File be consigned to record room.
Announced in the open court (Sanjeev Aggarwal)
On 11.08.2011 Addl. Sessions Judge
Rohini Courts: Delhi.
State Vs. Anupam etc. PS Aman Vihar FIR No.296/10