Delhi District Court
State vs . Babloo @ Mukesh Fir No.81/06, Ps ... on 10 March, 2011
State Vs. Babloo @ Mukesh FIR No.81/06, PS Kapashera
IN THE COURT OF SHRI VISHAL GOGNE :
METROPOLITAN MAGISTRATE:03 SOUTH WEST
DISTRICT, DWARKA, NEW DELHI
STATE Vs. Babloo @ Mukesh Date of Institution 22/05/07
FIR No. 81/06 Judgment Reserved on 03/03/11
PS Kapashera Date of Judgment 10/03/11
Under 203, 211 IPC & 25 Arms
Section Act.
JUDGMENT
a) Sr. No. of the case 33/2
b) Date of offence 18/03/6
c) Name of the complainant Babloo @ Mukesh
d) Name & address of the accused Babloo @ Mukesh S/o Sh. Mahender
Gaud R/o Village Khandasa,
Gurgaon, Haryana.
e) The offence complained of 203, 211 IPC & 25 Arms Act.
f) Plea of accused Pleaded not guilty
g) The final order Convicted
h) Date of order 10/03/11
BRIEF STATEMENT OF REASONS FOR DECISION:
1. The law has acted as a double edged sword for the accused. State Vs. Babloo @ Mukesh FIR No.81/06, PS Kapashera Having initiated the machinery of police investigation as a complainant, he finds himself tried as an accused.
2. On 18/03/06, the accused namely Babloo @ Mukesh made a complaint(Ex. PW1/A) to the police alleging that at around 1:50 AM, while he was present at the second floor situated office of M/s Sharma Cables, Samalkha, Delhi with another person namely Sarvan, he heard three gunshots. As he looked outside, he saw two boys leaving on a motorcycle in the direction of nearby hutments(jhuggies). He alleged that the two boys were looking towards his office. As the accused and Sarvan came to the main office on the first floor, they saw two bullet holes on the glass door of the office facing the road while a portion of a single bullet was found near the door. Small pieces of broken glass were seen scattered throughout the room. The accused called up the owner namely Sukhnandan Sharma and also the police. He expressed in Ex. PW1/A that business rivals in cable operations had caused the firing to scare them.
3. The FIR was registered under section 506 IPC and sections 25 and 27 of the Arms Act. Three police officials viz Ct. Prem Prakash, ASI Dharam Singh and SI A.K. Singh(the IO) i.e PW1 , PW2 and PW5 respectively reached the spot and found two empty cartridges and a piece of lead on the footpath on the road while one empty cartridge was found on the main road. Another piece of lead was found inside the office on the first floor. A bullet mark was seen on the sign board of M/s Laxmi Opticals situated on the ground floor whereas two bullet holes were found on the glass door of the office of M/s Sharma Cables.
4. The circumstances in which accused found himself indicted by the chargesheet revolve around the recovery of the weapon of firing and the positioning of the bullet holes. The chargesheet alleges that the description of the incident given by the accused was found suspicious as there existed a State Vs. Babloo @ Mukesh FIR No.81/06, PS Kapashera discrepancy in the description of firing and the placement of the bullets. Further, that despite being cautioned against doing so, the accused changed the glass of the door of the office on or before 19/03/06 i.e the day after the incident. This conduct lead the IO to treat the accused as a suspect resulting in his disclosure statement Ex. PW3/A wherein he purportedly confessed that he had himself fired at the office in order to harass the competitor cable operators so that the dominance of M/s Sharma Cables could be maintained. Upon the said disclosure, the purported pistol from which the firing was done was recovered from the second floor of the building, having been kept behind the cable system.
5. The accused came to be charged under the Arms Act and also the IPC. He pleaded not guilty to the charge under section 25 & 27 of the Arms Act and also under section 203, 211 and 336 IPC.
6. The entire cast of witnesses comprised of the investigating police officials, with the ballistic expert from FSL being the last witness. Sukhnandan Sharma and Sarvan were not made witnesses.
7. Let me take up the twin articles of charge under the Arms Act at the outset. The learned APP relied on the deposition of the two witnesses to the recovery of the pistol viz PW3(HC Vinod Kumar) and PW5(IO SI A.K. Singh) in support of the allegations qua section 25 of the Arms Act. It was agitated that both witnesses had consistently deposed that the accused had made a disclosure Ex. PW3/A leading to the recovery of the pistol from behind the cable system at the office of M/s Sharma Cable. This pistol was seized vide memo Ex. PW3/D1 with its sketch being Ex. PW3/D. The learned APP argued that the portion from the disclosure statement wherein the accused expressed his ability to get recovered the pistol was admissible in evidence under section 27 of the Evidence Act and that the recovery itself had been proved by PW3 and PW5.
The learned counsel for the accused challenged this account State Vs. Babloo @ Mukesh FIR No.81/06, PS Kapashera submitting that the police had not joined any public witnesses to the purported recovery which was induced by a forced confession. It was contended that the police could have involved the owner i.e Sukhnandan Sharma while searching the premises. Their omission to do so was projected as evidence of the falsity of the allegations.
8. It is indeed a prudent norm that the police ought to join independent persons while searching the premises of an accused. Association of public persons does lend a measure of credibility to a recovery. Yet, such a requirement is not an absolute norm. The learned defence counsel was not accurate in asserting that the police should have joined two witnesses in terms of section 102 Cr. P.C. The present recovery was not effected under section 100 Cr. P.C and was made during investigation of the present FIR. The place of the recovery was the office of the accused himself and cannot be termed a public place with access to all. The accused can be validly ascribed exclusive knowledge of the place of hiding of the pistol. The recovery witnesses cannot be disbelieved merely because they are police officials. There is a presumption that a witness would be truthful unless proved otherwise. The cross examination of the two witnesses did not throw up any material contradiction. The Hon'ble High Court of Delhi citing the decision in Himachal Pradesh Administration Vs. Om Prakash, AIR 1972 SC 975 held in Hari Shankar Vs. State 1985(2) RCR(Crl) 582 that:
the contention of the learned counsel for the appellant that no public witness was joined by the Investigating agency at the time of recovery and, therefore, no reliance could be placed on the testimony of the police officials alone is not at all tenable because there is no such legal requirement. As observed by the Supreme court in Himachal Pradesh Administration v. Om Parkash, AIR 1972 SC 975, the evidence relating to recoveries is not similar to that contemplated under Section 103 of the State Vs. Babloo @ Mukesh FIR No.81/06, PS Kapashera Criminal P.C. where searches are required to be made in the presence of two or more inhabitants of the locality in which the place to be searched is situate. In an investigation under Section 157 of the Cr.P.C. the recoveries could be proved even by the solitary evidence of the Investigating Officer if his evidence could otherwise be believed.
9. What was perhaps most critical to the charge under section 25 Arms Act in the present facts was infact overlooked by the defence counsel.
This aspect relates to the report of the ballistic expert from the FSL(PW11). This report, duly proved by the expert as Ex. PW11/A, made two damning conclusions. The relevant portion from the report is reproduced below: "Result of examination
5. one 7.65mm cartridge from the laboratory stock was test fired through the improvised pistol 7.65mm bore marked exhibit 'F1' above, the test fired cartridge, case marked as 'TC1' and the recovered test fired bullet marked 'TB1' above.
6. The individual characteristic of firing pin marks and breech face marks present on evidence fired cartridge case marked exhibit 'EC1' and on test fired cartridge case marked 'TC1' were examined and compared under the Comparison Microscope Model Leica DMC and were found identical. Hence, exhibits 'EC1' has been fired through the improvised pistol 7.65 mm bore marked exhibit 'F1' above.
9. The individual characteristics of striations present on exhibit 'EBR2' and on test fired bullet marked 'TB1' were examined and compared under the comparison Microscope Model Lieca DMC and were found identical. State Vs. Babloo @ Mukesh FIR No.81/06, PS Kapashera Hence, exhibit 'EBR2' is a part of jacket of bullet that has been discharged through the improvised pistol 7.65 mm bore marked exhibit 'F1' above.
10. It is evident from finding No. 6 that one of the recovered cartridges was fired from the very pistol seized from the accused. It is also seen from finding number 9 that one of the pieces of lead formed a part of the bullet which was fired from the same pistol. These findings leave the accused defenceless. If the report from FSL did not exist, the evidence would have merely comprised the statements of the recovery witnesses who could have been viewed with caution in the absence of public witnesses. Yet, it has emerged that the very pistol recovered from the accused was used to fire at his office. This finding operates in complement to the statements of PW3 and PW5. To disbelieve PW3 and PW5 would amount to drawing a corollary that not only did the police witnesses plant the weapon at the house of the accused, but that they also fired the same at the office on the date of incident and followed it up by somehow sneaking in the weapon to the office of the accused. The court cannot draw such an absurd assumption.
11. The learned counsel for the accused relied on the decision in Chander Vs. State 1999 Criminal Law Journal 135; Usman Vs. State MANU/DE/1400/2010 and Jaivir Vs. State 1995 Criminal Law Journal 1477 in support of the submission that the absence of public witnesses vitiated the recovery of the pistol. As noted earlier, the involvement of public witnesses is a prudent norm. What distinguishes the present facts is the fact that the same pistol as recovered at the instance of the accused has been found by the ballistics expert to be the weapon of offence. It is one thing to view the police officials with suspicion but quite another to impute motives to the opinion rendered by the expert from the FSL. Such an approach is unwarranted. The opinion from the FSL operates in aid of the deposition of PW3 and PW5.
12. The deposition of PW3 and PW5 and the report from the FSL State Vs. Babloo @ Mukesh FIR No.81/06, PS Kapashera are entirely inconsistent with the innocence of the accused under section 25 of the Arms Act. The premises were under the control of the accused. The recovery was at his behest and the same weapon was found to have fired one cartridge and one bullet at the office. The witnesses to the recovery duly identified the pistol and magazine Ex. P1 and P2 when produced in court and also identified the sketch of the same alongwith the seizure memo (Ex. PW3/D and PW3/D1 respectively. This pistol was in the possession of the accused without any license. Indeed no defence was raised claiming the possession of any license. The concerned DCP proved the sanction U/s 39 of the Arms Act(Ex. PW8/A). The contravention of section 3 of the Arms Act is manifest.
13. The accused is liable for conviction under section 25 of the Arms Act.
14. The same finding can, however, not be returned with respect to the charge under section 27 of the Arms Act. I do not agree with the submission of the Ld. APP that the factum of recovery at the behest of the accused and the opinion from the FSL established that it was the accused who pulled a trigger leading to the three gun shots. While the finger of suspicion is undoubtedly pointing in the direction of the accused, it cannot be held with certainty that it was him and none else on his behalf or at his behest who fired the gun shots. It would have been prudent for the police officials to have lifted finger prints from the pistol Ex. P1. This was not done. There is no eye witness to the firing either. Resultantly, it is only the possession of the pistol which can be ascribed to the accused and not its use by him. The accused is entitled to acquittal under section 27 of the Arms Act.
15. For the same reasons, a finding of guilt cannot follow under section 336 IPC either. The said provision requires as an ingredient that a rash or negligent act endangering human life or personal safety be committed by the accused. The evidence is insufficient for determining whether it was the accused who committed the apparently rash act of firing at the office of State Vs. Babloo @ Mukesh FIR No.81/06, PS Kapashera M/s Sharma Cables.
16. The charge under section 203 IPC may be taken up next. The provision is reproduced below for greater clarity: whoever, knowing or having reason to believe that an offence has been committed gives any information respecting that offence which he knows or believes to be false, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
17. It is seen that twin requirements exist. Foremost, that the accused must know or have reason to believe that an offence has been committed. The provision does not require exclusively that an offence should have been committed. It would be sufficient if the accused believed that an offence has been committed. In interpreting the existence of such a belief, it is undoubtedly the standard of a reasonable person which shall be applied by the court. Secondly, information of a nature which the accused knows to be false or believes to be false should have been given in order to complete the offence. Whether the accused believed an information to be false can be gathered from the circumstances as appearing from the evidence.
18. Judged in the above context, the conduct of the accused in making the complaint Ex. PW1/A does stand incriminated under section 203 IPC. This complaint, proved by PW1 Ct. Prem Prakash who carried the Rukka(Ex.PW5/A) and the IO(PW5), who confirmed his endorsement on the same made a specific allegation that certain gunshots had been fired at the office of M/s Sharma Cables. The firing of gunshots at a private premises would constitute an offence in the estimation of any reasonable member of the public. Such a person viz the accused in the present case is not expected to know the exact offence under the prevailing penal code. As noted earlier, it is sufficient that the accused believes that an offence has been committed. It State Vs. Babloo @ Mukesh FIR No.81/06, PS Kapashera would be a matter of stating the obvious to conclude that the accused made the complaint Ex. PW1/A believing that an offence had been committed. The first ingredient of section 203 IPC noted above stands established.
19. It is the second ingredient which has been the subject of elaborate defence by the counsel for the accused. The learned APP had relied on three circumstances in support of the charge under section 203 IPC. It was firstly argued that as deposed by PW1 to PW2 and PW5, the account of the accused seemed doubtful and he was directed by the IO to not tamper with the site yet, as deposed by PW5, the glass on the door was changed on the day after the incident. The learned APP also relied on the assertion of PW5 that the lower hole on the glass hole was not visible while standing on the road. Reliance was placed on the photographs of the place of occurrence(Ex. P7 to P17) supported by the negatives Ex. PW10/A. The Ld. APP argued that the firing could therefore have not occurred from the road as asserted by the accused.
The counsel for the accused challenged this submission submitting that the account of PW5 had emerged for the first time during his deposition in the court and the chargesheet did not reveal any investigation regarding the angles of firing when measured from the road so as to justify the conclusion that the same could not have occurred as alleged by the accused.
20. The submission of the learned defence counsel is valid. The crime team which visited the spot did not record any angles. The report Ex. PW5/C does not bear any such indication. There is no scientific document on record which enables the court to draw any conclusion regarding the source of firing, its distance from the bullet marks and the probability of the bullets having been fired from the road vis a vis the possibility the firing having occurred from the first floor itself. The photographs are not helpful in this exercise in the absence of estimation of the possible angle of firing. Also, what the accused alleged in Ex. PW1/A was only that he had seen two boys State Vs. Babloo @ Mukesh FIR No.81/06, PS Kapashera on a motorcycle on the road as they were leaving. He did not allege that he saw them fire any shot. It cannot be ruled out that whoever fired the bullets may have fired them having reached the first floor itself. Thus the version of the prosecution based on the position of the bullets is not substantiated by the evidence on record.
21. The above analysis, however, does not exonerate the accused under section 203 IPC as the same circumstances which rendered him culpable under section 25 Arms Act operate to prove his guilt under section 203 IPC. These circumstances are the recovery of the pistol from his possession and the opinion from the FSL recording the firing of one cartridge and one bullet from this pistol. These aspects have to be seen in conjunction for the immediate point of consideration is the second ingredient of section 203 IPC i.e whether the accused gave information respecting an offence knowing or believing it to be false. If the version projected by him in Ex. PW1/A is shown to be impossible on objective standards, it must be presumed that the accused was providing false information. The recovery and the opinion from FSL render impossible the allegation that it were two boys on a motorcycle who escaped from the spot after the firing. The pistol was in the possession of the accused and at least one shot was fired from the same as per the FSL opinion. The accused would have known that it were not unknown persons who fired at his office. The accused would either have been guilty of firing himself or would have known the person who fired at his behest. That the prosecution could not pin the act of firing on the accused himself or on any specific person acting on behalf does not diminish the finding that the pistol was in possession of the accused and was used for firing. The version in Ex. PW1/A is absolutely incompatible with the weapon of offence having been found at the premises of the accused. The accused would have known that the allegation made by him to the police was false. For the court to conclude otherwise would amount to holding that unknown persons sneaked into the office of the accused on 18/03/06, took away his gun, fired the same at his office, then planted it behind the cable system at State Vs. Babloo @ Mukesh FIR No.81/06, PS Kapashera the office on the second floor, meandered back to their motorcycle and waited just enough for the accused to emerge and have a look at their face. Such a sequence of events is to be absolutely ruled out. Neither would an outsider be presumed to know the location of a hidden pistol in the premises of another nor would he have the leisure of time to pull off such a daring act. The accused quite evidently took the law for a ride and must suffer the penal consequences. The accused is held guilty under section 203 IPC.
22. The last article of charge relates to section 211 IPC. While the accused has been held guilty under section 203 IPC, there is no logical deduction that conviction must follow under section 211 IPC too. The ingredients of section 211 are quite different. Chiefly, section 211 requires that the accused institute criminal proceedings against 'any person' knowing that there was no lawful ground for proceeding against 'that person'. It is evident that this provision contemplates a named person. The accused did not specify the name of any person in complaint Ex. PW1/A nor was any person identified or apprehended in consequence of the FIR registered by the accused. No person can be held to have suffered injury on account of the conduct of the accused.
23. The accused is acquitted under section 27 Arms Act and sections 211 and 336 IPC. The accused is convicted under section 25 Arms Act and section 203 IPC.
Announced in open Court.
Delhi Dated the 10th March, 2011 This Judgment contains 11 pages and each paper is signed by me.
VISHAL GOGNE Metropolitan Magistrate 03 Dwarka New Delhi.
State Vs. Babloo @ Mukesh FIR No.81/06, PS Kapashera IN THE COURT OF SHRI VISHAL GOGNE :
METROPOLITAN MAGISTRATE:03 SOUTH WEST DISTRICT, DWARKA, NEW DELHI STATE Vs. Babloo @ Mukesh FIR No. 81/06 PS Kapashera Under Section 203, 211 IPC & 25 Arms Act.
ORDER ON SENTENCE.
The convict has been found guilty U/s 25 of the Arms Act, 1959 and section 203 of the IPC. The prosecution was successful in establishing that an unlicensed pistol was recovered from the convict in contravention of section 3 of the Arms Act. It was also proved from the evidence on record that the convict had provided false information to the police regarding an incident of firing at his office by unknown persons whereas the pistol in question was found to be under possession of the convict himself.
The learned APP has prayed for imposition of a stringent sentence on the submission that the convict willfully acquired and possessed a pistol without any valid license and that he deliberately mislead the police into believing that an incident of firing had taken place at his premises on 18/03/06.
The learned counsel for the convict has submitted that the convict does not have any previous criminal antecedents and has a family to support for which a lenient view may be exercised regarding the matter of sentence. Further, that the convict was acquitted U/s 27 of the Arms Act and sections 211 and 336 IPC for want of direct evidence regarding firing by himself. A prayer for release of convict on probation has also been made.
The offences in question involve a grave violation of the law. The convict was found to have displayed scant regard for legal processes by first acquiring a weapon unlawfully and then having sent the law enforcement State Vs. Babloo @ Mukesh FIR No.81/06, PS Kapashera machinery on a wild goose chase. Deterrence to crime remains one of the principal features of the sentencing policy. Undoubtedly, reformation through the instrument of probation is also an available option while considering the aspect of sentence. However, the court must weigh the relative benefits of imprisonment vis a vis probation on a case to case basis. In the present facts, the law must exercise the option of penalization as the possession of illicit firearms must be curbed with an iron hand. Deliberate misleading of public authorities needs to be equally punished. The grant of probation in such a situation would not be in the interest of the wider goal of ensuring compliance with law and would send out a signal that the law can be violated with impunity and can be used as a tool for settling scores by filing false complaints against business rivals.
The prayer for release of the convict on probation is declined. The aspect of sentence under section 25 of the Arms Act may be taken up first.
The possession of illicit/unlicensed firearms poses a grave risk to other peace loving citizens. It reflects a mindset of possessing a weapon without going through the rigors of obtaining a license. A firearm is a weapon to be handled or acquired with great caution. A person who acquires such a weapon illegally can justifiably be ascribed a thought process which is more inclined towards violation of the law than its obeyance. Such a person would perhaps have even less restraint in using such a weapon. The possible outcomes of use of such a weapon are easy to comprehend. Such illegal possession of a firearm ought to be penalized with sufficient stringency. I find no special reasons to inflict a sentence of imprisonment less than one year. The fact that the trial has continued for four years does not mitigate the offence. The convict may yet be a bread winner for his family but he cannot escape just punishment for this reason alone. The rule of law mandates that violation of law should be accounted for.
The convict is sentenced to simple imprisonment for one year and fine of Rs. 1,000/ under section 25 of the Arms Act.
As to the conviction under section 203 IPC, not only did the State Vs. Babloo @ Mukesh FIR No.81/06, PS Kapashera convict display the tendency to avoid legal processes by acquiring an illegal weapon, he was also proved to have acted in a devious manner in misleading the police officials by his initial complaint dated 18/03/06 wherein he alleged that certain boys had fired at his office and then escaped. He further alleged that certain rivals in the business of cable operations had caused the firing to scare him. It was later found during the investigation and proved during evidence that this information was false. The pistol in question was infact recovered from the premises of the convict himself and that too at his own instance. The story of the firing by unknown persons was throughly disbelieved by the court for reasons recorded in the judgment which do not require reproduction. The convict escaped conviction under section 27 Arms Act and section 336 of the IPC only because direct evidence did not emerge regarding the shots having been fired by the convict himself. However, as recorded in the judgment dated 10/03/11, one bullet and one cartridge were found by the FSL report to have been fired from the same pistol which was found from the possession of the convict. The convict was found by the court to have known that it were not unknown persons who fired at his office. It was observed in the judgment that the convict took the law for a ride and must suffer the penal consequences.
The convict is sentenced to Simple Imprisonment for one year and fine of Rs. 1000/ upon conviction under section 203 IPC.
In default of payment of either fine amount, the convict shall undergo Simple Imprisonment for one week each.
Both sentences of Simple Imprisonment for one year each shall run concurrently. The convict shall be entitled to benefit of section 428 Cr. P.C. Announced in open Court.
Delhi Dated the 31st March, 2011 VISHAL GOGNE Metropolitan Magistrate 03 Dwarka New Delhi.