Delhi District Court
Shyam Sunder vs State (Gnct Of Delhi) on 21 February, 2014
Shyam Sunder v. State
IN THE COURT OF SH. PULASTYA PRAMACHALA
ADDITIONAL SESSIONS JUDGE (SHAHDARA),
KARKARDOOMA COURTS, DELHI
Unique I.D. : 02402R0052042014
Criminal Appeal No. : 29/2014
Shyam Sunder
S/o. Sh. Sewa Lal
R/o. 807/14, Rehman Building,
Shahdara, Delhi.
(Presently confined in Central Jail No.9, Tihar, New Delhi)
...........Appellant
Versus
State (GNCT of Delhi)
..........Respondent
1. Date of Institution of appeal : 15.02.2014
2. Date of receiving the case in the present : 17.02.2014 court
3. Date of reserving the order : 20.02.2014
4. Date of pronouncement : 21.02.2014
5. Decision : Appeal is allowed and appellant is acquitted of the charges (Pulastya Pramachala) Page no. 1 of 9 Addl. Sessions Judge (Shahdara) Karkardooma Courts / Delhi.
Shyam Sunder v. State J U D G M ENT IN APPEAL
1. This is a criminal appeal, filed by the appellant against the judgment passed by ld. MM on 26.09.2013, vide which he was convicted and order on sentence dated 30.09.2013, vide which ld. MM had sentenced the appellant to undergo SI for one year and to pay a fine of Rs.500/- ID SI for 10 days, in a proceedings under Section 25/54/59 of Arms Act.
2. Briefly stated, the relevant facts giving rise to present appeal are that a chargesheet was filed against accused for offence under Section 25 Arms Act alleging that the complainant HC Noor Mohd. was on patrolling duty near Shyam Lal College, where a secret informer met him at around 07:00 PM and informed that a criminal namely Pappan would come to meet his friends at Shahdara bus terminal. Thereafter, HC Noor Mohd. formed a team comprising of his companions namely Ct. Pradeep and Ct. Jitender, after giving information to In-charge of Special Staff. At around 07:20 PM, accused was coming from the side of Railway Road, Shahdara on red coloured Pulsar motorcycle and at the instance of secret informer, he was stopped by the complainant, but accused tried to take a U-turn and tried to run away. But in that process, he fell down. When complainant along with his companions tried to overpower him, accused took out a country made pistol from (Pulastya Pramachala) Page no. 2 of 9 Addl. Sessions Judge (Shahdara) Karkardooma Courts / Delhi.
Shyam Sunder v. State pocket of his wearing pant and aimed it at the complainant, but before he could fire, Ct. Jitender pulled him down and, thereafter, he was overpowered by the police team. The country made pistol was checked and a live cartridge was found therein. Another live cartridge was also found in the left pocket of wearing pant of the accused. Complainant prepared sketch of the pistol and the cartridges, seized them and, thereafter, prepared a Rukka, on the basis of which present FIR was lodged. The pistol and cartridges were sent to FSL for examination and the report was received that the pistol and the cartridges were in working condition and were covered within definition of firearm/ammunition as defined in the Arms Act. A Sanction under Section 39 of Arms Act was given by Addl. DCP and, thereafter, the prosecution was launched against the accused for offence under Section 25 Arms Act.
3. Prosecution examined 7 witnesses. Thereafter, accused was examined under Section 313 Cr.P.C., but accused did not lead any evidence in his devence.
GROUNDS OF APPEAL :-
4. The trial court did not consider and appreciate the statement of PW-2, PW-3 and PW-5 properly so as to find contradictions in respect of important facts.
5. The trial court did not consider that no public witness was joined in the alleged recovery proceedings, which made the case of (Pulastya Pramachala) Page no. 3 of 9 Addl. Sessions Judge (Shahdara) Karkardooma Courts / Delhi.
Shyam Sunder v. State prosecution doubtful.
FINDINGS :-
6. From the perusal of judgment passed by trial court, I find that trial court gave observation that case of prosecution rested upon testimony of PW-2, PW-3 and PW-5 and on perusal of their testimonies the trial court found them to be reliable as they had corroborated each other. Ld. trial court also observed that there were no contradiction brought forth in their testimonies and sufficient explanation was given for none joining the public witnesses. Trial court relied upon judgment passed by Supreme Court in a case titled as Pradeep Narayan Madgaonkar & Ors.
Vs. State of Maharashtra AIR 1995 SC 1930 to say that police witnesses had satisfactorily proved the recovery of pistol and cartridges from the accused and their testimonies were consistent and corroborated, which could be relied upon by the Court.
7. I have perused the testimony of PW-2, PW-3 and PW-5, who are actual star witnesses of the prosecution. I have also perused the record of trial court to look into the other evidence proved by the prosecution.
8. To start with the allegations made by the complainant, I find that complainant alleged that the secret informer told him that a noted criminal of area namely Pappan would come at Shahdara bus terminal to meet his friends. In the trial court record a list of (Pulastya Pramachala) Page no. 4 of 9 Addl. Sessions Judge (Shahdara) Karkardooma Courts / Delhi.
Shyam Sunder v. State criminal cases pending against the accused was filed, which showed that there were 19 criminal proceedings against the accused. The important aspect of this situation is that if actually these cases were pending against the accused, then complainant i.e. PW-5 would have been recognizing the accused very well. However, the testimony of PW-2, PW-3 and PW-5 show that the accused was pointed out by the secret informer and at the instance of secret informer, he was stopped by the police team and, thereafter, they came to know about his name as Pappan. This situation itself raises doubt over the alleged story of prosecution regarding receiving a secret information about Pappan.
9. Moreover, though PW-5 claimed that he had informed In-charge Special Staff about such information received by him at 07:00 PM, but prosecution did not prove any DD entry from the office of Special Staff regarding such information received.
10.On further careful scrutiny of the testimony of PW-2 and PW-3, I find that in the cross-examination, PW-2 deposed that they all were on patrolling duty on their private motorcycles. There were two motorcycles. PW-2 was riding one motorcycle alone and PW-3 and PW-5 were riding other motorcycle. On the other hand, PW-3 deposed that he was riding one motorcycle alone and PW-2 and PW-5 were riding another motorcycle. Further more PW-5 said that he along with PW-2 was checking the vehicle near Shyam Lal (Pulastya Pramachala) Page no. 5 of 9 Addl. Sessions Judge (Shahdara) Karkardooma Courts / Delhi.
Shyam Sunder v. State Colony. He did not say anything about the role of PW-3. Thus, there are different situations regarding the alleged duty of patrolling being performed by three star witnesses of the prosecution, which shakes the root of allegations made by them.
11.As per PW-2 and PW-3, the accused was apprehended at U-bus terminal at Shahdara. On the other hand, PW-5 deposed about a bus terminal. PW-7 deposed that he had reached new bus terminal and met PW-3 and PW-5. Rukka Ex.PW-5/A shows the place of occurrence at new bus terminal, but the site plan does not mention the nature of bus terminal. There are two bus terminals at Shahdara. One is new bus terminal and one is old bus terminal. This fact is well reflected from the testimony of PW-7 that he had reached new bus terminal, but the allegations made by PW-2, PW-3 and PW-5 that accused was coming from the side of railway road, Shahdara, becomes doubtful because a person situated at new bus terminal cannot see a person coming from the side of railway road, Shahdara, as the approximate distance between new bus terminal and railway station road would be around 500 meters. Therefore, the statement given by PW-2, PW-3 and PW-5 that accused was coming from the side of railway road, Shahdara appears to be an after thought and artificial statement.
12.The another aspect related to this case is that the case properties were sent to FSL after around 25 days and prosecution did not (Pulastya Pramachala) Page no. 6 of 9 Addl. Sessions Judge (Shahdara) Karkardooma Courts / Delhi.
Shyam Sunder v. State examine concerned person, who had allegedly taken the case property to FSL. The defence had taken plea that the case properties were planted upon the accused and therefore, it was duty of the prosecution to establish all chain of facts to enthuse confidence that not only the case properties were recovered at the alleged time, but were deposited in malkhana in sealed condition and were sent to FSL without any tempering. The absence of witness, who took the case property to FSL so as to state that whether the case property was in sealed condition or not, becomes relevant on account of delay in sending the case property to FSL. Another aspect of this case is that the IO i.e. PW-7 deposed that he had been given custody of the motorcycle as well and he had deposited the case property and motorcycle in malkhana. But this motorcycle was never summoned by the prosecution during trial of this case nor was its existence ever admitted by the defence. On the other hand, PW-6, who had brought register no.19 from police station, also did not say anything about deposit of motorcycle in malkhana.
13.PW-2 and PW-3 have been shown to be present at the spot during apprehension of the accused. Rukka was handed over to PW-2 for registration of FIR, who came back on the spot along with copy of FIR along with PW-7. However, during their cross-examination PW-2 and PW-3 deposed that arrest memo was not prepared in (Pulastya Pramachala) Page no. 7 of 9 Addl. Sessions Judge (Shahdara) Karkardooma Courts / Delhi.
Shyam Sunder v. State their presence. This situation is not consistent along with case of prosecution. Similarly, PW-2 deposed that IO PW-7 handed over the accused to him and he had taken him to GTB hospital for his medical examination and from the hospital he took the accused to the police station. On the other hand, PW-7 deposed that he along with PW-7 took the accused to GTB hospital from police station and they remained at hospital for about 25-30 minutes. These contradictions once again show the artificial allegations made by PW-2, PW-3 and PW-5 against the accused.
14.In my considered opinion so much of contradictions appearing in the testimony of star witnesses of the prosecution were more than sufficient to find that the testimony of PW-2, PW-3 and PW-5 were full of in consistence and were highly doubtful.
15.In these circumstances, the absence of an independent witness in the recovery proceedings became very important, which also goes to show that an artificial recovery proceedings were projected before the Court. The judgment relied upon by the trial court does not say that the statement given by a police official is to be treated as gospel truth, which simply shows that the police witnesses are not lesser trustworthy than other witnesses, provided that their testimony are well corroborated with other piece of evidence.
16.In view of my aforesaid observations and findings, I find that the trial court erred in recording its observation that testimony of (Pulastya Pramachala) Page no. 8 of 9 Addl. Sessions Judge (Shahdara) Karkardooma Courts / Delhi.
Shyam Sunder v. State PW-2, PW-3 and PW-5 were well corroborated and were reliable to find guilt of the accused. Hence, the judgment dated 26.09.2013 as well as the order on sentence dated 30.09.2013 passed by the trial court are set aside.
The appellant is acquitted of the charges. File of appeal be consigned to record room.
TCR along with copy of this judgment be sent back to the trial court through ld. CMM (Shahdara), KKD.
Announced in the open court (PULASTYA PRAMACHALA) today on 21.02.2014 Additional Sessions Judge (Shahdara), Karkardooma Courts, Delhi (This Order contains 9 pages) (Pulastya Pramachala) Page no. 9 of 9 Addl. Sessions Judge (Shahdara) Karkardooma Courts / Delhi.