Delhi District Court
Cr. Case/309582/2016 on 24 September, 2018
IN THE COURT OF SH. ASHU GARG
CHIEF METROPOLITAN MAGISTRATE (CENTRAL)
TIS HAZARI COURTS, DELHI
New Case No. 309582/2016
CNR No. DLCT02-0245437-2016
FIR No.: 176/2016
PS: Crime Branch
U/s 25/27 Arms Act & Section 3/181 MV Act
State v. Sultan Azeem Ahmd @ Mohd. Azeem Ahmed @ Bunty
(a) S. No. of the case : 309582/2016
(b) Name of complainant : HC Rakesh Kumar,
No. 114/Crime
PIS no. 28902481, ISC,
Crime Branch,
Chankya Puri, Delhi
(c) Date of commission of offence : 20.10.2016
(d) Name of the accused person : Sultan Azeem Ahmd @
Mohd. Azeem Ahmed @
Bunty
S/o Mansoor Ahmed,
R/o E-58/9, Welcome,
Delhi & 197, Gali no. 3,
Kardampuri, Bhajanpura,
Delhi
(e) Offence complained of : U/s. 25/27 Arms Act &
Section 3/181 M.V. Act
Charges framed : U/s. 25/27 Arms Act &
Section 3/181 M.V. Act
(f) Plea of accused : Pleaded not guilty
FIR No. 176/2016, PS Crime Branch Page No. 1 of 26
(g) Final arguments heard on : 12.09.2018
(h) Final Order : Convicted
(i) Date of such order : 24.09.2018
JUDGEMENT:
1. The accused had been charge-sheeted for commission of offences under Section 25/27 Arms Act and Section 3/181 Motor Vehicle Act, 1988 with the allegations that on 20.10.2016, at about 04:30 PM, near Kalu Bhagat Mandir, Farsh Khana, Shardhanand Road, Delhi, accused was found in illegal possession of one pistol and three live cartridges without any license or permit, which he also used to threat the police team by pointing it towards them. Further, the accused was found driving a scooty no. DL3SCT-1115 without a driving license.
2. As per the case of the prosecution, in the month of December 2015, members of a gang had attacked one Chhenu Pehalwan and in the firing, one police official had died and few injured, the prime suspect in which was accused Azeem @ Bunty, who was also involved in other cases and even a reward had been declared by the then Police Commissioner. Thus, the police officials had deployed their sources to trace the accused and was kept under surveillance. In October 2016, the police officials received information that accused Azeem @ Bunty used to visit Old Delhi are on a scooter for extorting money, along with one lady and child to avoid the police attention. On FIR No. 176/2016, PS Crime Branch Page No. 2 of 26 20.10.2016, one secret information was received at about 02:00 PM that accused Azeem @ Bunty would come in the area of Frashkhana, Old Delhi at about 03.00-04.00 PM on a scooty no. 1115 and could be apprehended if raided. Upon information, raiding team was prepared constituting several police officials, who left from their office in two private vehicles, make Santro car No. 7042 and Hyundai i10 car No. 1607, vide departure DD No. 14. The team went to the spot, that is, near Kallu Bhagat Mandir, Farashkhana, Shradhanand Road and reached there at about 03.00 PM. They asked 4-5 public persons to join the raiding party, but none agreed The team members took their positions and at about 04.30 PM, they noticed one black colour scooty no. DL3SCT-1115 coming from the side of Farashkhana and going towards Sharadhanand Marg, on which one lady with a child were also sitting. Secret informer pointed out towards the said scooty and informed that the rider of the scooter was Azeem @ Bunty, and he left from there. Upon this, the police officials gave signal to the accused to stop the scooty, upon which the accused stopped the scooty and tried to run away towards Farashkhana. The team started chasing him, but the accused took out a pistol from the left side dub of his wearing jeans, cocked it and pointed towards them. The team however was able to apprehended the accused after chasing him for about 30-35 steps and took the said pistol from his hand. The pillion rider of the scooty, a lady, disclosed her name to be Heena Khan and claimed to be wife of the accused. Upon checking, the pistol was found containing one cartridge in its chamber and two cartridges in its magazine. A sketch of the recovered pistol and three live cartridges with its FIR No. 176/2016, PS Crime Branch Page No. 3 of 26 magazine was prepared and their measurements noted. The said firearm and ammunition were sealed with the seal of NK and seized, and relevant documents prepared. Rukka was prepared and the present FIR was got registered. The accused was arrested and case property was deposited in the Malkhana. Investigation was carried out where the recovered property was sent for forensic examination and as per its result, the said property was firearm and ammunition. Necessary sanction was taken from the concerned DCP under section 39 Arms Act. The After completion of investigation, chargesheet was filed on the court on 19.12.2016, alleging that the accused was found in possession of illegal firearm and ammunition without a license, that he had used the said weapon by pointing it out towards the police officials, and that he was driving a scooty without any driving license.
3. Cognizance of the offences was taken by the court on 19.12.2016 itself. Charge was framed against the accused for commission of offences punishable under section 25/27 Arms Act and Section 3/181 Motor Vehicle Act, vide order dated 13.02.2017, to which he pleaded not guilty and claimed trial.
4. At the trial, prosecution examined three witnesses in support of its case.
5. PW-1 HC Sunil Pandey and PW-2 Ct. Sikander were a part of the raiding them that had apprehended the accused and witnessed the recovery of firearm and ammunition, while PW-3 ASI Vikram was the FIR No. 176/2016, PS Crime Branch Page No. 4 of 26 investigating officer (IO) of the case who had filed the chargesheet. Both PW-1 and PW-2 deposed in detail about surveillance over the accused for a few months as he was wanted in several cases, and receipt of secret information on 20.10.2016 by HC Rakesh Tomar that accused Azeem @ Bunty would be coming in the area of Frashkhana, Old Delhi at about 03.00-04.00 PM on a scooty no. 1115. HC Rakesh Tomar communicated the information to Inspector Sunil Kumar, who also made inquiries from the secret informer. On the directions of Inspector Sunil Kumar, a raiding party was constituted, including HC Sunil Pandey, SI Neeraj, HC Rakesh Tomar, HC Rakesh Kumar, Const. Sikander, Const. Subhash and W/Const. Pushpa. The team along with secret informer left from office in two private vehicles make Santro white colour No. 7042 and Hyundai i10 white colour No. 1607, while making departure entry through DD No. 14. In the Santro Car, SI Neeraj, HC Rakesh Kumar, Const. Subhash and W/Const. Pushpa sat and the said car was driven by SI Neeraj. In Hyundai i10 Car, HC Sunil Pandey, Const. Sikander, HC Rakesh Tomar and secret informer sat and the said car was driven by HC Rakesh Tomar. The team went to the spot near Kallu Bhagat Mandir, Farashkhana, Shradhanand Road via Vijay Chowk, Janpath, Connaught Place, Minto Road, Shradhanand Road and reached there at about 03.00 PM. They parked their vehicles and HC Rakesh Tomar asked 4-5 public persons to join the raiding team, but none agreed and left without disclosing their identities. HC Rakesh Tomar briefed the members of the raiding party and they took their positions. At about 04.30 PM, they noticed one black colour scooty no. DL3SCT-1115 coming from FIR No. 176/2016, PS Crime Branch Page No. 5 of 26 the side of Farashkhana and going towards Sharadhanand Marg. The secret informer pointed towards it and informed that the driver of the same was accused. On the said scooter, one lady with child were also sitting. HC Rakesh Tomar gave signal to the accused to stop, upon which the accused stopped his scooty at the distance of about 10-15 steps before them and tried to run towards Farashkhana. The officials chased him and while they were chasing him, the accused took out a pistol from the left side dub of his wearing jeans, cocked it and pointed towards them. The team however apprehended the accused and took pistol from his hand. During interrogation, accused disclosed his name as Mohd. Azeem Ahmed @ Bunty and the lady who was the pillion rider disclosed her name as Heena Khan and stated to be his wife. The pistol was checked by opening the same and one cartridge was found in its chamber and two cartridges were found in its magazine. A sketch Ex. PW-1/A of the recovered pistol and three live cartridges with its magazine was prepared and measurements recorded. The triangular length of the recovered pistol was 21 cm, length of its barrel was 10 cm and the length of its body was 17.3 cm, length of its butt was 10 cm. Upon the body of recovered pistol "AUTO PISTOL IN INDIA" had been engraved and on the other side of its body, "765 7 round" had been engraved. The length of its magazine was 11 cm. The length of recovered three cartridges were 2.5 cm and on the bottom of recovered cartridges, "KF 7.65" had been engraved. The recovered property was sealed with the seal of NK and seal was handed over to PW-1 HC Sunil. FSL form was filled. The recovered pistol and three live cartridges were taken FIR No. 176/2016, PS Crime Branch Page No. 6 of 26 into possession vide seizure meme Ex. PW-1/B. Rukka was prepared and handed over to PW-1 HC Sunil Pandey for the registration of FIR. He went to the Duty Officer and got the FIR registered. In the meanwhile, information was given to PW-3 who reached at the spot where the members of the raiding team met him and handed over the accused and case property to him. He prepared site plan Ex. PW-2/A, arrested the accused vide memo Ex. PW-2/B and conducted his personal search vide memo Ex. PW-2/C. He also seized the scooty vide memo Ex. PW-2/D. The case property was deposited with the MHC(M) and disclosure statement of the accused Ex. PW-2/E was recorded. The accused was taken on one day police custody remand and hos supplementary disclosure statement Ex. PW-2/F was recorded. A pointing out memo Ex. PW-3/A (with respect to another case of a murder) was prepared. PW-3 stated that statement of one public witness Govind had also been recorded. The FSL result was obtained and prosecution sanction was taken from the DCP. After completion of investigation, chargesheet was filed by PW-3. The pistol and cartridges (2 live and 1 test-fired) were identified as Ex. P-1 and Ex. P-2, respectively.
6. Vide separate statement dated 04.06.2018 under section 294 CrPC, the accused admitted the genuineness of various documents, including the FIR Ex. D-1 registered through duty officer ASI Ram Prasad, the deposition of exhibits/case property with MHC(M) HC Jag Narayan, the contents of the register already Ex. PW-1/C, Ex. D-2 and Ex. D-3, the report of Assistant Director FSL Ex. D-4 with covering FIR No. 176/2016, PS Crime Branch Page No. 7 of 26 letter Ex. D-5, and the sanction of the DCP (Crime) Ex. D-6.
7. During cross-examination, PW-1 deposed that there was no order in writing regarding the surveillance and that he was present in his office when secret information was received by HC Rakesh. He accepted that the spot was a densely populated area where public persons present and many shops were also open there. He stated that the vehicles had been parked near the police booth and the positions of the team members were such that they were able to see each other. He denied that public persons or shopkeepers had gathered there, though accepted that some public persons were present near the spot. He informed that the accused was wearing a black coloured helmet which was open from front, which he was still wearing while running. He testified that the HC Rakesh Tomar was already having his IO kit and measurements had been taken using a steel scale of 12 inches. He stated that 4-5 male public persons had been requested to join the public persons, but none agreed, though no notice in writing was given to them. He denied that no such firearm or ammunition was recovered from the accused, or that the same had been planted upon him, or that the documents had been forged and fabricated.
8. During cross-examination, PW-2 deposed that there was no notice in writing was received by him to join raiding team, though departure entry had been made. He confirmed that the vehicles had been parked near police booth, though could not recall if any police official was present there. He also accepted that the spot was a public FIR No. 176/2016, PS Crime Branch Page No. 8 of 26 area and public persons were present there, and shops were also open at that time. He again confirmed that accused was rwearing a helmet and they could see his face. He stated that public persons were frequenting the spot, though they never gathered there as such. He could not say if IO had requested shopkeepers to join the proceedings or not. He also testified that measurements had been taken using a steel scale of 12 inches at the spot. He denied that no such weapon was recovered from the accused, or that the same had been planted upon him, or that the accused had been falsely implicated.
9. PW-3 during cross-examination, informed that he went to the spot in an auto after receipt of information. He accepted that the spot was a crowded area, that public persons were frequenting the spot and that some shops there were also open, though he did not record the statements of such public persons or shopkeepers. He had prepared the site plan while sitting on a bench near the mandir, and remained at the spot till about 10.00 PM. He deposed that the accused was not having driving licence or papers of the scooty. He denied that fair investigation was not conducted or that no such weapon was recovered from the accused.
10. Statement of the accused under Section 313 CrPC was recorded on 01.08.2018, wherein he denied the allegations and pleaded innocence. Though he admitted that he had been apprehended by the police team on 20.10.2016 while he was present at Farsh Khana area with his wife and child, yet he claimed that he was not in possession FIR No. 176/2016, PS Crime Branch Page No. 9 of 26 of any firearm or ammunition and he never pointed any pistol towards anyone as he was not having any such pistol with him. He took stand that the said articles had been planted upon him and that the present had been registered against him as he was wanted in some other case. He claimed that he had been made to sign some papers forcibly without knowing their contents. He also led evidence in defence.
11. In defence, accused examined his wife Ms. Heena Khan as DW- 1 as the only witness. She deposed that on 23.11.2016, she along with her husband (accused herein) had gone for shopping with their child at Farash Khana, Delhi-06. While she was in the market, her husband was waiting on his scooty no. CT-1115, Jupiter Black, near a Mandir ahead of Farash Khana. Her son was in her lap and as soon as she sat on the scooty, 10-12 persons in civil dress whom she did not know, came and apprehended her husband. The said persons had two cars, one Wagon-R and one i10, of red and blue colours, respectively. As her husband was caught, she along with the child fell on the road and when she was trying to compose herself, her husband was taken away in a car by those persons. She further deposed that it was heavily crowded place and many persons had gathered there. She took an auto and proceeded behind the cars. When she reached Chankyapuri and inquired about her husband, she was told that her husband had been implicated in a case of possession of a pistol. She reiterated that her husband was never in possession of any pistol and that they had gone there only for shopping. During cross-examination, by the Ld. APP for the State, she accepted that accused was not having a driving FIR No. 176/2016, PS Crime Branch Page No. 10 of 26 licence, though he was having a driving licence of UP as issued by RTO, Amroha. She alleged that the persons in civil dress had also snatched her mobile phone and therefore, she did not make any call at 100 number. She informed that he brother Farman had also sent a fax message / online message to the concerned authorities informing about the incident, though she was not having any such message now. She denied deposing falsely to protect her husband.
12. It is in these circumstances that the Ld. APP has argued that the prosecution has been able to prove its case against the accused beyond reasonable doubt, as all the witnesses have supported its case and no material contradiction can be seen in their testimony.
13. On the other hand, Ld. Legal Aid Counsel for the accused has argued that the present case is false which is based only on the evidence of police officials and despite availability, no independent public witness was joined at any stage of the proceedings. Attention of the court is drawn towards the evidence of PW-3 who stated that statement of one Govind was recorded by him, though no details of any such person have been given nor he was cited as a witness nor his statement is on record nor he was been examined in court. Similarly, it is pointed out that the all the members of the raiding team have not been examined on record, nor even cited as witnesses. It is contended that the pistol in question was easily available in the open market and could have been easily planted as there was no specific mark of identification on the same. Ld. Defence Counsel has also relied upon FIR No. 176/2016, PS Crime Branch Page No. 11 of 26 the evidence of defence witness DW-1 to contend that the present is a false case. It is submitted that the accused is entitled to be acquitted.
14. I have heard the arguments as advanced by the Ld. APP for the State as well as the Ld. Legal Aid Counsel for the accused and have carefully perused the material available on record.
15. To begin with, I do not find myself in agreement with the prime argument that no reliance can be placed on the evidence of the police officials, who have been claimed to be 'interested witnesses'. The law is well settled in this regard. There is no rule of law that requires the court to view the testimony of the police witnesses and official witnesses with any suspicion. Their evidence on oath in the court of law cannot be thrown away merely because they belong to any particular service or profession. Their version cannot be disbelieved just because they happen to serve in a government agency. These witnesses are as good as any other witness and their testimony stand on the same footing as that of other witnesses. The yardstick to test their credibility is the same as that of any other witness, though in matters where the case is based only on the evidence of such officials, the court has to remain extra-cautious and careful while appreciating their evidence. It is not that whenever a case comes before a court with only police officials having been cited as witness, that the court is required to refuse to take cognizance or immediately discharge the accused or acquit the accused without any trial or examination of those witnesses. Of course, evidence of such witnesses needs to be FIR No. 176/2016, PS Crime Branch Page No. 12 of 26 appreciated carefully, but that would not make any such case entirely false and fabricated just because it is based only on the evidence of police officials.
16. In Karamjit Singh v. State [AIR 2003 SC 1311], the Hon'ble Supreme Court has held that:
"The testimony of the police personnel should be treated in the same manner as testimony of any other witness and there is no principle of law that without corroboration by independent witnesses their testimony cannot be relied upon. The presumption that a person acts honestly applies as much in favour of police personnel as of other persons and it is not a proper judicial approach to distrust and suspect them without good grounds".
17. The Apex Court reiterated the above position in a later precedent titled as Girija Prasad v. State of MP [AIR 2007 SC 3106] and held as under:
"It is well settled that credibility of witness has to be tested on the touchstone of truthfulness and trustworthiness. It is quite possible that in a given case, a court of law may not base conviction solely on the evidence of complainant or a police official but it is not the law that the police witnesses should not be relied upon and their evidence cannot be accepted unless it is corroborated in material particulars by FIR No. 176/2016, PS Crime Branch Page No. 13 of 26 other independent evidence. The presumption that every person acts honestly applies as much in favour of a police official as any other person. No infirmity attaches to the testimony of police officials merely because they belong to police force. There is no rule of law which lays down that no conviction can be recorded on the testimony of police officials even if such evidence is otherwise reliable and trustworthy. The rule of prudence may require more careful scrutiny of their evidence. But, if the court is convinced that what was stated by a witness has a ring of truth, conviction can be based on such evidence".
18. Thus, merely because the present case is based only on the testimonies of the police officials, no infirmity can be attributed to the case so as to attach falsity to the entire version. The court has to see if the witnesses are otherwise reliable and trustworthy.
19. Similar is the position with respect to non-joining of public persons. Merely because no other person could corroborate the version of the police officials, their version cannot be said to be false. No doubt, the joining of public persons would have helped the prosecution case and would have given more credibility, but mere absence of the same would not demolish the prosecution case altogether. The court is not oblivious of the fact that ordinarily, people are reluctant in joining such legal proceedings which involve lengthy paper work, tedious formalities and strict future commitments, FIR No. 176/2016, PS Crime Branch Page No. 14 of 26 particularly when a criminal is involved. Ld. Defence Counsel has pointed out that as per PW-1, PW-2 and PW-3, public persons were frequenting the spot and many shops were also there which were open at that time, but still, no witness was joined in any proceedings. It is submitted that no notice was given to any public person who did not join the proceedings as claimed and no action was taken against them for such refusal. It is argued that even their identities are not known and their names or addresses were never recorded by the IO.
20. Well, it cannot be denied that no public persons were joined by the police officials in this case. The person Govind, as named by PW- 3 to be the one public person whose statement was recorded by him, was not related to the present case. A perusal of the file would show that his statement recorded under section 161 CrPC is indeed on record, which shows that he had only witnesses pointing out memo prepared at the instance of the accused with respect to murder of a girl Naina. His name, age, address, parentage, etc. all are on record and it cannot be said that his identity has been concealed. No question was asked from PW-3 during his cross-examination seeking any further explanation if required by the Ld. Defence Counsel. As the said Govind had never witnessed the apprehension of the accused or recovery of any property from his possession, he was not required to be cited as a witness. Thus, his non-examination has no bearing on the present case.
21. Again, such non-joining of other public persons, who might be FIR No. 176/2016, PS Crime Branch Page No. 15 of 26 present at the spot, would not be sufficient to negate the testimonies given on oath in the court by the police officials. Though it has come on record that public persons and shopkeepers were present at the spot, yet there is nothing to conclude that any of them had agreed to or had actually joined the proceedings. Not taking action against such persons by the IO would be a different matter altogether, but just because there is no public person to corroborate the evidence of police officials, no fault can be attributed to the case. Since the matter involved urgency as an accused who was wanted in many cases, was to be apprehended, the police team was not expected to prepare and give notices in writing to all the persons coming in their way while proceeding to the spot or to keep recording their names, addresses, etc. Further, it was not that a petty street-thief was to be apprehended from somewhere, rather a person wanted in several serious cases and even carrying a reward was to be apprehended, on a secret information and at the instance of the said informer. The officials could not have been expected to raise a hue and cry and going to the spot while raising alarms that they were going to catch a person. The matter was sensitive and even the lives of police officials and public persons were at risk as the accused was carrying live firearm and ammunition. At the spot, the court can easily comprehend the refusal of public persons to join such a raiding team to apprehend a wanted accused. And once the accused was apprehended and recovery effected, there remained not much to do for the public witnesses. Most such public persons, be the passersby or be the shopkeepers, would want to carry on to their work and reach their destinations, rather than joining legal criminal FIR No. 176/2016, PS Crime Branch Page No. 16 of 26 proceedings against a criminal, and such reluctance is quite obvious. In such a situation, non-joining of public witness would not prove fatal or falsify the prosecution case on this count. Of course, in such a case, the court needs to be extra careful and circumspect while appreciating the testimony of police officials, yet the court cannot simply refuse to rely on the evidence of such police officials given in the court just on hypothetical assumption of their being 'interested witnesses'. If there are some serious contradictions in the testimony of witnesses which go to the root of the matter, the accused would certainly get benefit of doubt. But if the witnesses are truthful, credible and trustworthy, and they withstand the test of cross- examination, the court cannot still refuse to believe them on the ground that their version has not been corroborated by public witnesses.
22. As far as the credibility of the witnesses in the case at hand is concerned, in view of their testimony in court, the court finds no reason to disbelieve them. There is nothing on record to show that the witnesses were having any enmity or ill-relations with the accused. No ulterior motive has been shown to exist between the witnesses and the accused. Even the accused in his statement under section 313 CrPC did not allege any previous dealing or rivalry, monetary or social, psychological or professional, so as to hint towards any ill- intention for the witnesses to depose against him, except stating that he had been implicated as he was wanted in other cases. Well, if he was already wanted in other cases, there was no reason for the police FIR No. 176/2016, PS Crime Branch Page No. 17 of 26 officials to plant a weapon and to register a fresh case as well, without any reason. No specific stand was taken during the entire trial. Thus, the court is bound to believe such evidence when there is nothing to doubt. There is nothing in evidence of witnesses which could destroy the prosecution case.
23. It may be noted that the accused has never disputed his presence at the spot. He has accepted that he had been apprehended from the spot, though has disputed his being in possession of weapons. Even DW-1 accepted that the accused had been apprehended from the spot. Thus, it is not a case where the accused claims that he had been lifted from his house and implicated in a false case. Accused has not claimed what he was doing at the spot, where was he going and what did he shop. Nothing else was recovered from the possession of the accused, except a sum of Rs. 500/- only. It is not his case that he had been detailed a few days ago and then implicated in this case. PW-1 and PW-2 have deposed on oath about presence of the accused at the spot. Such an unexplained presence at the spot also goes against him.
24. One HC Rakesh Kumar was also a material witness but could not be examined in court, not because he was not summoned, but because of his medical condition. He had been served several times but he could not appear in court due to his medical condition, after which the court closed the prosecution evidence as the accused was running in custody. However, his non-examination and non- examination of other members of the raiding team would also not FIR No. 176/2016, PS Crime Branch Page No. 18 of 26 negate or nullify the version of the witnesses who have deposed against the accused. It is the quality of witnesses and not their quantity that determines the fate of the case. If a witness is reliable, conviction can be based even on his sole testimony, and similarly, one fact need not be proved by a large number or witnesses. Thus, there is no merit in the stand of the defence even from this angle.
25. Further, the accused has never disputed his identity. It is not his case that he was apprehended under some mistaken identity. His defence has been that he was apprehended as he was wanted in other cases.
26. The accused has not questioned the factum of the pistol Ex. P-1 and cartridges Ex. P-2 being in contravention of the notifications/law. It is not his case that the case property had been possessed by him without any positive knowledge. No such defence was put by the accused to any of the prosecution witness. Rather his defence is that no such weapon at all was recovered from his possession. Further, the accused has never disputed the factum of the firearm and ammunition to be in working order. The report of ballistic expert, the correctness of chich has never been disputed by the accused and rather admitted by hum under section 294 crPC, leaves nothing to doubt. The report shows that the one seized cartridge was test fired successfully from the seized pistol. This would show that the pistol and the cartridges were working and were not fake or dummy. No such defence has been taken by the accused questioning the working nature of the arm or FIR No. 176/2016, PS Crime Branch Page No. 19 of 26 ammunition.
27. PW-1 and PW-2 were eye-witnesses of the recovery in the present case. No major contradiction can be seen in their testimony. Their version is corroborative in nature on material particulars rather than contradictory. In the present case, they gave all satisfactory replies to the questions of the Ld. Defence Counsel and there is nothing in their cross-examinations that could shake their credibility. They have corroborated each other on material particulars as to the apprehension of the accused in the aforesaid manner, recovery of weapon from his possession, seizure of same, etc. They both deposed in detail about the manner in which raid was conducted and case property recovered. They both deposed about the vehicles in which they went, about the timings when they left, when they reached, which vehicles they took, who drove those vehicles, who were sitting in which vehicle, the place where the vehicles were parked, the pointing out by the secret informed and his leaving the spot, apprehension of the accused while he was running away, the accused cocking the pistol and pointing towards them, recovery of firearm and ammunition, sealing and seizure of case property, preparation of necessary documents at the spot and arrest of accused. PW-1 informed that he remained at the PS with the FIR and the IO mentioned the FIR number on the documents prepared earlier, after he reached there.
28. The record shows the DD entries of departure and arrival, which mention necessary details. There is nothing to assume that these DD FIR No. 176/2016, PS Crime Branch Page No. 20 of 26 entries were forged or fabricated, in the absence of any material to this extent. The time of receipt of secret information (about 2.00 PM on 20.10.2016), time of departure entry DD No. 14 (2.15 PM on 20.10.2016), time of reaching (around 03.00 PM), time of apprehension of accused (04.30 PM), time of taking the rukka (8.00 Pm on 20.10.2016), time of registration of FIR (09.15 PM on 20.10.2016), time of arrival entry DD no. 2 (12.35 AM on 21.10.2016), all are in order and there is no reason to doubt that. The arrest memo and DD no. 2 shows that the intimation of arrest of the accused had been given to his wife Heena Khan. Arrest memo also bears her signatures, and even while deposing as DW-1, she never disputed or denied the same.
29. It is to be understood that some minor variations, contradictions, omissions and exaggerations do appear in the evidence of witnesses with the passage of time but unless such a variation or contradiction goes to the root of the matter, the same cannot be allowed to falsify the entire prosecution case. Human memory is liable to fade with the lapse of time and if the witnesses are reliable on material particulars, conviction can be based on their testimony, as the court cannot expect the witnesses to remember all minute details of the incident with mathematical accuracy and scientific precision. In the present case, no such contradiction can be seen which could make the prosecution witnesses doubtful, who have corroborated each other on all material particulars even during their cross-examination and also gave satisfactory replies to the questions of Ld. Defence Counsel.
FIR No. 176/2016, PS Crime Branch Page No. 21 of 26
30. As per the defence of the accused, Ld. Defence Counsel has submitted that the same were planted upon him and that there is no mark of identification on them which could be easily procured from the market. In this regard, it is pertinent to note that the witnesses have categorically denied that the firearm and ammunition were planted. Even if there is no such specific mark of identification on them, which might distinguish it from all other available weapons, that would not make the recovery doubtful. The fact remains that the case property was duly identified by the witnesses in the Court to have been recovered from him. It does not appeal to senses that the police officials would falsely implicate any innocent person and plant such weapon without any reason or motive whatsoever.
31. The accused has also not questioned the genuineness of the sanction accorded under section 39 Arms Act given by the DCP concerned. This sanction has been admitted by the accused under section 294 CrPC. There is nothing to show that the said sanction was defective, or was given without application of mind, or that the DCP was not competent to give such sanction.
32. Now coming to the defence of the accused, which is mainly denial simplicitor. The stand of the accused that he was made to sign the papers forcibly, was never taken at any stage of the trial and no suggestion to that extant was put to any PW so as to enable them to accept or deny the same. Such a stand had been raised for the first FIR No. 176/2016, PS Crime Branch Page No. 22 of 26 time during his statement under section 313 CrPC at the fag end of the trial. Such an explanation to the incriminating material given under section 313 CrPC is not an evidence or a proof of existence of any fact, as this statement is never on oath and never subjected to cross- examination. No evidence in defence was led to establish this fact. The DW-1 never deposed that the accused was made to sign papers forcibly. No complaint was lodged anywhere in any forum at any point of time in this regard.
33. Similarly, the version of the DW-1 has also remained doubtful. Even her version is to be appreciated carefully as she happens to be wife of the accused and would be interested in helping her husband. But even otherwise, her testimony would show material inconsistencies and missing links. She deposed about the incident to be dated 23.11.2016, whereas the date of apprehension of accused in this case is 20.10.2016. Then, she claims that the officials in civil dress came on two cars, Wagon-R and i-10. But in this case, the two cars were make Santro and i-10. The accused during cross- examination or even in his statement under section 313 CrPC never claimed that Santro car was not there or Wagon-R car was there. Further, DW-1 alleged that the said officials had snatched her mobile phone, but again, no such stand was taken during the cross- examination of the PWs and no suggestion was put to them to enable them to deny or explain the same. No details of said phone have been given. DW-1 claimed that her brother Farman had sent some fax message or online message about the incident, but neither any such FIR No. 176/2016, PS Crime Branch Page No. 23 of 26 message was placed on record, nor summoned from any office, nor her brother Farman has been examined in defence. It is not disclosed what message was sent, to whom, when, and what was the response. Entire version of defence has remained bald averment, without any satisfactory proof. The accused or his relatives never lodged any complaint against the police officials before any forum whatsoever alleging his false implication. Thus, such inconsistencies in the testimony of DW-1, particularly in view of the fact that no such stand was raised during the trial, would compel the court to discard the same. Mere denial or things altogether would not come to the rescue of the accused. The accused has not raised any specific defence. General denial of allegations would not serve the purpose.
34. In a criminal trial, the burden is upon the prosecution to prove its case against the accused by leading cogent evidence. In the case at hand, the witnesses are reliable and there is no reason to disbelieve them.
35. In view of the above discussion, it can be said that the prosecution has been able to establish its case against the accused beyond a reasonable doubt. It has been established that the accused was found in possession of a pistol loaded with a live cartridge and having two cartridges in its magazine, without any license in violation of the law, thus proving the offence punishable under section 25 Arms Act.
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36. It is further established that while the accused was being chased, he cocked the pistol, loaded the cartridge and pointed towards the police team. Such 'pointing' towards the team would amount to "use" of the firearm withing the meaning of section 27 of the Arms Act. It may be understood that "use" does not necessarily mean actual firing of the weapon. The moment it is shown and made visible to others so as to threat or intimidate or restrain them, the 'use' of weapon would be complete. This is for the purposed of section 27 Arms Act as well as section 397 IPC. Reliance can be placed on the judgements titled as Seetal v. State [Crl. A. no. 94 of 2010, Delhi High Court, dated 08.08.2014] and very recently in Surender @ Sonu v. State of NCT of Delhi [Crl. A. No. 1051/2016, Delhi High Court, dated 17.09.2018]. In view of this, the aggravated form of offence under section 25 Arms Act, that is, section 27 Arms Act stands proved.
37. Further, it is also proved that the accused was driving the scooty, a motor vehicle, without a license. No such licence was recovered from him. Even DW-1 admitted that accused was not having driving license. Her version that he had a driving licence of UP, issued by RTO Amhora, has not been proved. No such licence was produced, summoned or proved. It is not his case that he was carrying a licence which was destroyed or thrown away. Thus, the offence under section 3/180 MV Act also stands proved as he was driving vehicle without a valid licence.
38. Thus, the accused is held guilty and is convicted for the FIR No. 176/2016, PS Crime Branch Page No. 25 of 26 offences punishable under section 27 of the Arms Act (which is aggravated form of section 25 Arms Act) and 3/180 MV Act.
39. Matter be now listed for arguments on sentence.
Digitally
signed by
ASHU ASHU GARG
Announced in the open Court
Date:
GARG 2018.09.24
01:19:58
this 24th Day of September 2018 +0530
(Ashu Garg)
Chief Metropolitan Magistrate (Central)
Tis Hazari Courts, Delhi
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