Delhi District Court
State vs . Raju on 19 April, 2012
IN THE COURT OF SH. HEM RAJ: METROPOLITAN MAGISTRATE:
(WEST)09:TIS HAZARI COURTS:DELHI
STATE Vs. RAJU
FIR No : 781/1997
U/S : 25 ARMS ACT
P.S : VIKAS PURI
1. Serial No. of the Case : 118/3/10
2. Unique ID No, of the : 02401R0137331999
3. Date of Commission of Offence : 20.10.1997
4. Date of institution of the case : 18.03.1999
5. Name of the complainant : SI. Jai Parkash
6. Name of accused & address : Raju
S/o Sh. Ishwar Dayal Sharma
R/o Shop No. 7470, Gurudwara
Wali Gali, Gandhi Nagar, Delhi.
7. Offence complained : 25 Arms Act 1959.
8. Offence charged with : 25 Arms Act 1959
9. Plea of Accused : Pleaded Not Guilty.
10.Final Order : Convicted
11.Date of Final Order : 19.04.2012
J U D G M E N T
1 The accused has been facing a trial for the commission of the offence under section 25 Arms Act,1959 on the allegations that on 20.12.1999 at about 4 am, at picket, Kakrola Mode, Najafgarh road, Vikas Puri, Delhi he was FIR No.781/1997 STATE V/s RAJU PAGE No.1/17 found in possession of one Holster having six live cartridges in the same without any license thereof in accordance with the Arms Act,1959. On inquiry the accused could not produce any license for the same. Hence, the accused was alleged to have committed an offence under section 25 Arms Act 1959. 2 After the completion of the investigation a charge sheet under section 25 Arms Act was filed against the accused. In compliance of section 207 Cr PC the copy of the charge sheet along with other documents were supplied to him and later on, vide order dated 28..6.2001, charge for the offence under section 25 Arms Act, 1959 was framed to which the accused pleaded not guilty and claimed trial.
3 In order to prove its case against the accused, the prosecution examined as many as eight witnesses.
4 PW1, retired SI Jai Parkash was the IO of the case. He deposed that consistently with the prosecution case. He proved the sketch of the cartridges and the holster as Ex. PW1/A. He also proved the seizure memo of the same as Ex. PW1/B. After the seizure of the case property, he prepared the Ruqqa which he proved on the record as Ex. PW1/C. Thereafter, he got the FIR registered FIR No.781/1997 STATE V/s RAJU PAGE No.2/17 through Ct. Sher Singh. He prepared the site plan as Ex. PW1/D at the instance of HC Kiran Pal. Accused was arrested by him vide seizure memo Ex. PW1/F. On 10.07.1997, he sent the case property to FSL through Ct. Sanjay. He collected the result of the FSL. Then he applied for sanction under Section 39 Arms Act. The investigation thereafter was handed over to SI Rajesh. He correctly identified the six cartridges as Ex. P1 and the holster as Ex. P2. He was not cross examined by the Ld. Defence Counsel.
5 PW2, Ct. Sanjay Kumar deposited the sealed pullanda vide RC No. 36/21 at FSL, Malviya Nagar. After the deposit of the pullanda, he submitted the receipt to the MHC(M). He was not crossexamined by the Ld. Defence Counsel.
6 PW3, HC Dharamvir was the MHC(M). He deposed that on 20.12.1997, SI Jai Prakash deposited one sealed pullanda with the seal of JP containing one holster and six live cartridges and he made the relevant entry in Register No. 19 at Serial No. 2212. He further deposed that on 10.02.1998, he sent the sealed pullanda to the FSL, Malviya Nagar vide RC No. 36/21 and he made the relevant entry in this regard. He proved the same as Ex. PW3/A on the record. He was also not crossexamined by the Ld. Defence Counsel.
FIR No.781/1997 STATE V/s RAJU PAGE No.3/17 7 PW4, ASI Resham Pal was the DO. He proved the FIR on the record as Ex. PW4/A. He was also not crossexamined by the Ld. Defence Counsel. 8 PW5, Retired HC Kiran Singh was the recovery witness in this
case. He deposed that on 22.12.1997, at 12.00 MidNight at Kakrola Mod, he checked one TSR and from the possession of the accused, one holster of 36 bore was recovered from the right side pocket of the pants of the accused and he informed the PS about the same. He further deposed that six live cartridges were also found inside the holster. ASI Jai Prakash arrived at the spot and the case property was handed over to him. He could not identified the accused. He proved the seizure memo of the case property as Ex. PW1/B. However, his testimony was not accepted by the Ld. APP for the State and he was crossexamined by him. In his crossexamination admitted that the sketch of the holster was prepared by the IO and the pullinda was also prepared which was sealed but he could not tell the seal. He also admitted the site plan prepared at his instance and the accused being arrested in his presence. He also admitted the personal search of the accused. He correctly identified the accused as the person from whose possession the recovery was effected. He also FIR No.781/1997 STATE V/s RAJU PAGE No.4/17 correctly identified the case property.
In the cross examination by tlhe Ld. Defence Counsel he stated that IO had shown him the revolver after taking out the same from the holster. The IO has sealed the revolver, one holster and six cartridges of point 32 caliber. He stated that the constable never brought the rukka and the FIR at the spot. He could not tell the name of the said constable. He denied the suggestion that he was deposing falsely being the police officiols.
9 PW6, Udai Sahay was the concerned DCP who granted the sanction under section 39 Arms Act for the prosecution of the accused. He proved his sanction as Ex PW6/A. In his cross examination he stated that he was satisfied about the procedural steps taken by the IO and nothing more. He denied the suggestion that he granted the sanction without seeing the material on the record. 10 PW7, Inspector Rajesh Kumar was handed over the further investigation of the case. He sent constable Sanjay to the FSL along with the sealed pullinda with the seal of the JC vide RC no. 36/21. He recorded the statement of the MHC(M) and constable Sanjay. He was cross examined by the accused.
FIR No.781/1997 STATE V/s RAJU PAGE No.5/17 11 PW8, Inspector K.K.Upadhyay was the ballistic expert at FSL,
Malviya Nagar. He deposed that on 10.02.1998 FSL received the sealed parcel with the seal of JP through Constable Sanjay, which contained six 7.65 mm/32 inch pistol cartridges in a holster. On examination of the same the cartridges were found to be live ones and they were the ammunitions as defined by the Arms Act. He proved his report as Ex PW8/A. In the cross examination by the Ld. Counsel he stated that he certified the cartridges to be live cartridges as per the physical examination and he did not conduct the test fire of the same. He denied the suggestion that from the physical examination of the cartridges the liveliness of the cartridges cannot be ascertained. He denied the suggestion that he has given a false report. 12 In his statement under Section section 313 Cr.P.C the accused stated that he has been falsely implicated in the case by the police. However, he admitted that he was found in the possession of the one holster and the six live cartridges but he explained that the same belonged to his father who was having the license of pistol. On the said date his father was going for his duty and he was handed over the same by his father at Old Delhi Railway Station to be taken to their residence. He then took one passenger from there for Najafgarh. After dropping the said passenger at the Najafgarh he was coming back to the Kakrola FIR No.781/1997 STATE V/s RAJU PAGE No.6/17 Mode when police officiol stopped and recovered the same from him. He chose to lead defence evidence in his support and he examined one witness in his defence. 13 The accused examined only one witness in support of his defence. DW1 Sh Ishwar Dayal Sharma was the father of the accused. He deposed that he was working in PM International as security guard in its office situated at Kucha Mahajani as well as Connaught Place. His job was to assist the transportation of cash as well as gold items alongwith other staff. He further deposed that in the year 1997, he was sent to Ahmadabad by his employer and the accused who was driving the TSR took him to NDLS in his auto. He further deposed that he forgot his clothes in the TSR alongwith the cover of the revolver which was licensed one. The accused informed him about the same and he directed him to take the bag to the residence.
In the crossexamination conducted by the Ld. APP he denied the suggestion he being the father of the accused or that he never gone to Ahmdabad or that he did not forgot his clothes or the cover of the revolver in the TSR of the accused or that the accused did not carry him to the NDLS.
14 I have heard the Ld. APP for the State, as well as Ld. Defence Counsel for the accused. I have also gone through the oral and documentary FIR No.781/1997 STATE V/s RAJU PAGE No.7/17 evidence available on the record carefully.
15 It has been submitted by Ld. APP that the prosecution has been able to prove the guilt of accused beyond the reasonable doubt It has been further stated that the testimonies of the prosecution witnesses are reliable and trustworthy which have been able to bring home the guilt of the accused beyond the reasonable doubt.
16 On the other hand, the Ld. Defence Counsel who submitted that the prosecution has miserably failed to prove the case against the accused beyond reasonable doubt. He further argued that no incriminating material has come on the record against the accused and the prosecution has miserably failed to prove the case beyond reasonable doubt. He further submitted that the cartridges belonged to the father of the accused and therefore, the accused was in the lawful possession of the same.
17 Standard of Proof In a recent case reported as Paramjeet Singh @ Pamma Vs. State of Uttarakhand , 2011CRI.L.J.663, Supreme Court, Hon'ble Mr. Justice Dr. B. S. Chauhan, speaking for the Bench, held in para no. 11 and 12 as under:
FIR No.781/1997 STATE V/s RAJU PAGE No.8/17 "11. A criminal trial is not a fairy tale wherein one is free to give flight to one's imagination or fantasy. Crime is an event in real life and is the product of an interplay between different human emotions. In arriving at a conclusion about the guilt of the accused charged with commission of a crime, the court has to judge the evidence by the yardstick of probabilities, intrinsic worth and the animus of witnesses. Every case, in the final analysis, would have to depend upon its own facts. The court must bear in mind that "human nature is too willing, when faced with brutal crimes, to spin stories out of strong suspicions." Though an offence may be gruesome and revolt the human conscience, an accused can be convicted only on legal evidence and not on surmises and conjecture. The law does not permit the court to punish the accused on the basis of a moral conviction or suspicion alone. "The burden of proof in a criminal trial never shifts and it is always the burden of the prosecution to prove its case beyond reasonable doubt on the basis of acceptable evidence." In fact, it is a settled principle of criminal jurisprudence that the more serious the offence, the stricter the degree of proof required, since a higher degree of assurance is required to convict the accused. The fact that the offence was committed in a very cruel and revolting manner may in itself be a reason for scrutinizing the evidence more closely, lest the shocking nature of the crime induce an instinctive reaction against dispassionate judicial scrutiny of the facts and law. (Vide: Kashmira Singh Vs. State of Madhya Pradesh, AIR 1952 SC 159; State of Punjab Vs. Jagir Singh Baljit Singh & Anr. AIR 1973 SC 2407; Shankarlal Gyarasilal Dixit Vs. State of Maharashtra, AIR 1981 SC 765; Mousam Singha Roy & Ors. Vs.State of West Bengal, (2003) 12 SCC 377; and Aloke Nath Dutta & Ors. Vs. State of West Bengal, (2007) 12 SCC 230).
12. In Sarwan Sigh Rattan Singh Vs. State of Punjab, AIR 1957 SC 637, this court observed (Para12) :
"Considered as a whole the prosecution story may be true; but between 'may be true' and 'must be true' there is inevitably a long distance to travel and the whole of this distance must be covered by legal, reliable and unimpeachable evidence (before an accused can be convicted."
Beyond Reasonable Doubt 18 In the judgment of Sucha Singh and Another Vs. State of Punjab, AIR 2003 Supreme Court, the Hon'ble Supreme Court observed as under:
21. Exaggerated devotion to the rule of benefit of doubt must not nurture FIR No.781/1997 STATE V/s RAJU PAGE No.9/17 fanciful doubts or lingering suspicion and thereby destroy social defence.
Justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punish an innocent. Letting guilty escape is not doing justice according to law. [See Gurbachan Singh v. Satpal Singh and others, AIR 1990 SC 209 : 1990(1) RCR(Crl.) 297 (SC)]. Prosecution is not required to meet any and every hypothesis put forward by the accused. [See State of U.P. v. Ashok Kumar Srivastava, AIR 1992 SC 840 : 1992(3) RCR(Crl.) 63 (SC)]. A reasonable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case. If a case is proved perfectly, it is argued that it is artificial; if a case has some flaws inevitable because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty persons must be allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish. [See Inder Singh and Anr. v. State of (Delhi Admn.) (AIR 1978 SC 1091)]. Vague hunches cannot take place of judicial evaluation. "A judge does not preside over a criminal trial, merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. Both are public duties." (Per Viscount Simon in Stirland v. Director of Public Prosecution (1944 AC (PC) 315) quoted in State of U.P. v. Anil Singh, AIR 1988 SC 1998). Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth.
19 In the present case, the prosecution to sustain the conviction of the accused U/s 25 Arms Act, was required to prove that the accused was found in possession of arms or ammunition without any licence thereof. The prosecution was also required to prove the fact that the fire arms or ammunition alleged to have been recovered from the possession of the accused, fell into the category of arms or ammunition. Section 39 of Arms Act further provides that no prosecution shall be instituted against any person in respect of any offence U/s 3 of Arms Act FIR No.781/1997 STATE V/s RAJU PAGE No.10/17 without the provision sanction by the District Magistrate. Hence, the prosecution was also required to prove the sanction under section 39 Arms Act. 20 PW5 Retd. HC Kiran Singh was the alleged recovery witness of the prosecution. He has specifically deposed about the checking of the vehicles by him and recovery of the holster containing the six live cartridges in the same. Initially he did not depose the facts of the prosecution case, however, when led by Ld. APP for the State, he correctly identify the accused as well as the live cartridges. He correctly identify the holster as Ex.P1 and live cartridges as Ex.P2 to P7. 21 PW1 SI Jai Prakash reached at the spot and conducted the further investigation of the case. He corroborated the testimony of PW5 and deposed about the investigation conducted by him. PW6 Udai Sahai was the DCP who granted sanction U/s 39 Arms Act for the prosecution of the accused. He proved his sanction as Ex.6/A and he specifically deposed in his cross examination that he was satisfied with the procedure step of the seizure taken by the IO. He denied the suggestion that he has given sanction in the case without seeking the material available on the record.
22 PW8 Inspector K.K. Upadhyay was the Ballistic Expert who FIR No.781/1997 STATE V/s RAJU PAGE No.11/17
examined the live cartridges. He specifically deposed that live cartridges were ammunition as defined U/s 3 of Arms Act. He proved his report as Ex.PW8/A. He stated that he did not conduct any test fire of the cartridges to ascertain that the same were live or not as on the physical examination of the cartridges, he was satisfied that they were the live cartridges. Ld. counsel for the accused has argued that it was not possible for him to come to the conclusion whether cartridges were live cartridges without conducting the test fire of the cartridges. However, in my opinion, the contention of Ld. defence counsel is not holding any ground as the witness was a Ballistic Expert and no suggestion was given to the witness that he was not a Ballistic Expert and thus could not determine the liveliness of the cartridges merely by the physical examination of the same. No judgment or relevant literature has been produced by the defence counsel before the Court that it was not possible for PW8 to say that the cartridges are live. Therefore, I have no reason to disbelieve the testimony of the Ballistic Expert. Even otherwise, it is well settled that the word "ammunition" included empty cartridges as well, as held in "Emperor Vs. Baldeo Singh, 10 Crl.J 573 (All.) and "Emperor Vs. Alladin" , AIR 1924 All. 215. It is not the case of the accused that the cartridges Ex.P2 to P7 were not recovered from him. Rather his case was that he carried the same to his house under the constructive possession of his father who held a licence for the revolver and to whom the live cartridges belong. Accordingly, I reject the contention of the FIR No.781/1997 STATE V/s RAJU PAGE No.12/17 counsel for the accused. In my considered opinion, the prosecution has successfully proved the cartridges as the ammunition as defined U/s 3 of the Arms Act.
23 The Ld. defence counsel argued that the case of the prosecution suffers from the contradictions between the oral and documentary evidence. He drew the attention of the Court that the prosecution has not proved the relevant extracts of Register no.19 showing the deposit of the case property in the Malkhana and of the Register no.21 showing the departure of the case property from the Malkhana to the FSL. The said contention would have had some merit had the case of the accused was not that the cartridges were not recovered from him. Once in his statement U/s 313 Cr.PC the accused explained and admitted the possession of the same and further the testimony of DW1 was led on the record to show that he was in the possession of the cartridges albeit under the constructive possession of his father, the prosecution case cannot be thrown away on this ground. No cross examination was conducted by the accused from PW2 Ct.Sanjay Kumar who took the sealed pullanda to FSL and also from PW3 HC Dharambir who was the MHC(M). Therefore, their testimonies cannot be challenged by the accused at this stage.
FIR No.781/1997 STATE V/s RAJU PAGE No.13/17 24 Now, I come to the defence of the accused. The accused has raised a
defence that he was carrying the cartridges under the instruction of his father who was having the licence for the revolver and the cartridges were pertaining to the said revolver. This fact was within the special knowledge of the accused. The burden to prove the fact that the father of the accused was having any valid licence for the revolver which was lying with the accused. Section 106 of Indian Evidence Act provides that when any fact is especially within the knowledge of any person, the burden of proving that fact lies upon him. The illustration B appended to the said Section gives the proper example of the same. When A is charged traveling on a Rail without any ticket, the burden to prove that he had ticket for the same lies upon him. Relying upon the judgments of "Shambhu Nath Mehra Vs. State of Ajmer", 1956 SCR 1999 and "State of W.B. Vs. Mir Mohammad Omar", (2000) 8 SCC 382, the Hon'ble Supreme Court in "Murlidhar & Ors. VS. State of Rajasthan, AIR 2005 SC 2345, held that the rule in Section 106 of the Indian Evidence Act would apply when the facts are "especially within the knowledge of the accused" and it would be impossible, or at any rate disproportionately difficult for the prosecution to establish such facts, "especially within the knowledge of the accused". It is settled principle of criminal jurisprudence that the burden of prove on the accused is not to prove beyond reasonable doubt as is on the prosecution but the same is based upon the preponderance of probabilities which is the similar to FIR No.781/1997 STATE V/s RAJU PAGE No.14/17 the Civil cases.
25 The question which arises for further consideration is that whether the accused has been able to prove the facts which were especially within his knowledge. The facts which accused claimed were that his father held a licence for revolver and the cartridges recovered from him pertained to the said revolver and under the permission of his father he was carrying the same. But I am constrained to say that the accused has failed to prove those facts on the record. In his statement U/s 313 Cr.PC., the accused explained that he dropped his father at Old Delhi Railway Station and he was operating from there as TSR Driver . He further stated that he took one passenger to Najafgarh from Old Delhi Railway Station and he was stopped at Kakrola More by the police when the cartridges were recovered from him. However, DW1 Ishwar Dayal Sharma deposed that accused took him to New Delhi Railway Station in his TSR and he forgot his clothes and revolver cover alongwith the cartridges. Clearly there is a contradiction in the explanation given by the accused in his statement U/s 313 Cr.PC and the defence evidence lead by him. The accused did not suggest his defence to any of the prosecution witnesses especially to PW 5 HC Kiran Singh. For the first time in his statement U/s 313 Cr.PC the accused raised the said defence. It is trite law that if the accused has not suggested his defence to the prosecution witnesses in their FIR No.781/1997 STATE V/s RAJU PAGE No.15/17 cross examination and the same is raised for the first time in the statement U/s 313 Cr.PC, the same is an afterthought and the same cannot be believed. It is also a settled principle of law that any false explanation given by the accused can be treated as a missing link in the chain of the circumstances. 26 The accused has also not proved on the record the licence of the revolver of his father. The accused could have brought the concerned licencing authority which have granted the licence to the father of the accused alongwith the original record of the licence in the name of his father which has not been done in this case. The accused also could have called the witness alongwith the original record showing the purchase of the cartridges Ex.P2 to P7 by his father against the licence issued in the name of his father. It has been provided in the rules under the Arms Act that every Arm dealer selling the arms and ammunition would keep a copy of the arms licence with him. But the same exercise has not been done by the accused. In my opinion, the accused has failed to discharge the onus on him to prove his defence on the criterion of the preponderance of probabilities and has failed to create a reasonable doubt in the story of the prosecution.
27 Therefore, in view of the discussions made herein above and the facts and circumstances of the present case, in my considered opinion, the FIR No.781/1997 STATE V/s RAJU PAGE No.16/17
prosecution has proved the case against the accused beyond reasonable doubt. Hence, the accused Raju stands convicted for the offence under Section 25 Arms Act, he has been charged with. Let the parties be heard on the point of sentence.
ANNOUNCED IN THE OPEN COURT (HEM RAJ)
TODAY i.e. ON 19TH APRIL, 2012 MM:09:WEST:THC
DELHI:19.04.2011
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FIR No.781/1997 STATE V/s RAJU PAGE No.17/17