Delhi District Court
State vs . Awadh Kishore on 12 December, 2018
IN THE COURT OF SH. VISHAL PAHUJA, MM-04,
WEST DISTRICT, TIS HAZARI COURTS, DELHI
STATE VS. AWADH KISHORE
FIR NO. 253/10
PS: MIANWALI NAGAR
U/S: 336/471 IPC R/W SECTION 468
& U/S 25/27 ARMS ACT
JUDGMENT
Case No. : 64019/16
Date of commission of offence : 24.10.2010
Date of institution of the case : 27.02.2013
Name of the complainant : Sh. Upender Kumar
Name of accused and address : Awadh Kishore s/o Sh.
Shesh Pal, r/o Village
Karimpur Post & PS Sakir,
Distt. Etha, UP.
Offence complained of or proved : U/s 336/471 IPC r/w section
468 IPC & u/s 25/27 Arms Act.
Plea of the accused : Pleaded not guilty
Final order : Acquitted
Date on which reserved for judgment : 12.12.2018
Date of judgment : 12.12.2018
******************************************************************************************************************************* BRIEF STATEMENT OF THE FACTS FOR DECISION:
1. This is the prosecution of accused Awadh Kishore pursuant to charge sheet filed by PS Mianwali Nagar U/s 336/471 IPC r/w section 468 IPC & u/s 25/27 Arms Act subsequent to the investigation carried out by them in FIR No. 253/10.FIR No. 253/2010, PS Mianwali Nagar Page 1/7
2. As per the prosecution, on 24.10.2010 at about 09:00 PM in front of H.no. RZ-56, Saiyad Village, Nangloi, Delhi, accused in intoxicated condition had fired in the air with his gun which was an act so rash or negligent to endanger human life or the personal safety of others. The accused was found in possession of one double barrel breech loading gun 12 bore and four 12 bore live cartridges and two used cartridges. Further the accused fraudulently or dishonestly produced a forged Arms License and also used the same as genuine. Accordingly, after the investigation, police filed the present charge sheet against the accused for commission of offences punishable U/s 336/471 IPC r/w section 468 IPC and u/s 25/27 Arms Act.
3. Complete set of charge sheet and other documents were supplied to the accused. After hearing arguments, charge for offence punishable under section 336/471 IPC r/w section 468 IPC and u/s 25 Arms Act was framed against the accused to which he pleaded not guilty and claimed trial.
MATERIAL EVIDENCE IN BRIEF:
4. The prosecution in support of present case has examined eight witnesses in total.
5. PW1 Sh. Upender Kumar is the complainant in the present case. It is stated that PW1 was living at RZ-50, Sayyed Gaon, Nangloi, Delhi at the time of incident. It is further stated by PW-1 that he was taking food when he heard noise of fire two times. He further stated that when he came out he saw public persons gathered. He made a call at 100 number.
PW-1 further stated that after one hour, he was called by the police and he saw accused Awadh Kishore sitting in the police station. As the witness did not support the case of the prosecution he was cross examined by Ld. APP for state with the permission of the court. This witness was not cross examined on behalf of the accused.
FIR No. 253/2010, PS Mianwali Nagar Page 2/76. PW2 Ct. Mahesh Kumar stated that on 24.10.2010 at about 09:00 pm, he received a call regarding open fire at Sayyed Gaon, Nangloi upon which he alongwith SI Jai Prakash went to the spot and met the complainant namely Upender Kumar. PW-2 identified the accused in the Court and stated that accused was also present at the spot alongwith one gun. PW-2 further stated that accused was found in possession of gun that was taken into the possession by the IO. License of arm was also taken into possession. PW-2 further stated that accused was arrested and the case property was deposited in Malkhana. This witness identified the case property also exhibited it on record as Ex. P1 and Ex. P2. This witness was cross examined on behalf of the accused.
7. PW3 HC Heera Lal, Duty Officer, exhibited on record computer generated copy of FIR as Ex.PW3/A and endorsement on rukka as Ex. PW3/B. This witness was also cross examined on behalf of the accused.
8. PW3 IO SI Jai Prakash deposed qua the manner and his involvement in the investigation being the IO of the case. PW3 deposed on the same lines as that of PW2. This witness relied upon all the documents exhibited on record by PW1 I.e. complainant Sh. Upender Kumar. In addition to the said documents, this witness marked on record the application moved before the District Magistrate for verification of the arm i.e. Mark-X and the verification report is Mark-X. The report of arm license is Mark-Z. This witness was cross examined on behalf of accused.
9. PW4 ASI Sriniwas deposed that on 24.10.2010 was MHC(M) and on that day SI Jai Prakash deposited in Malkhana case property of present case. Same are exhibited as Ex. PW4/A. This witness was cross examined on behalf of the accused.
10. PW5 Retd. ASI Prahalad Singh stated that on 23.07.2012 he filed the charge against the accused before the court. This witness was not cross examined on behalf of the accused.
FIR No. 253/2010, PS Mianwali Nagar Page 3/711. PW6 Insp. Madan Lal deposed that on 11.04.2012 the present case file was entrusted to him for further investigation. It is stated that the permission u/s 39 Arms Act was required to be taken from the concerned DCP and accordingly PW6 moved an application for said purpose. This witness marked on record the sanction order u/s 39 Arms Act as Mark P6/1. This witness was not cross examined on behalf of the accused.
12. PW7 Sh. Devender Arya, Additional DCP, South West District, exhibited on record sanction order u/s 39 Arms Act as Ex. PW7/A. This witness was cross examined on behalf of accused.
13. PW8 Sh. V.R. Anand, Assistant Director, Ballistic Division exhibited on record his detailed report as Ex. PW8/A. This witness was cross examined on behalf of the accused.
14. No other PW was left to be examined, hence PE was closed vide order dated 25.09.2018.
STATEMENT OF ACCUSED PERSONS U/S 313 Cr.P.C.:
15. Statement of accused recorded separately U/s 313 Cr.P.C in which all the incriminating circumstances appearing in evidences were put to him. The accused controverted and denied the allegations levelled against him. It is stated by accused that he has been falsely implicated in the present case and it is a false case. Accused opted not to lead any defence evidence.
ARGUMENTS:
16. Ld. APP for State has argued that prosecution witnesses have supported the prosecution and their testimony has remained unrebutted. That on a combined reading of testimony of prosecution witnesses, FIR No. 253/2010, PS Mianwali Nagar Page 4/7 offence U/s 336/471 IPC r/w section 468 IPC & u/s 25 Arms Act is proved beyond doubt.
17. On the other hand, Ld. Counsel for accused has stated that there is no legally sustainable evidence against the accused. It is argued further that there is no incriminating evidence against the accused as the material witnesses has not supported the case of prosecution and failed to identify the accused. It is further argued that the accused has been falsely implicated, hence, he is entitled to be acquitted.
FINDINGS:
18. Arguments adduced by Ld. APP for State and Ld. Defence Counsel for the accused have been heard. Evidences and documents on record perused carefully.
19. I have bestowed my thoughtful consideration to the rival submissions made before me. Accused is indicted for the offences U/s 336/471 IPC r/w section 468 IPC & u/s 25/27 Arms Act. Section 471 IPC provides punishment for the offence whereby fraudulently or dishonestly one uses as genuine any document with the knowledge or the reason to believe to be a forged document. Section 468 IPC provides punishment for the offence committing forgery with the intention that the document (forged) shall be used for the purpose of cheating. Section 336 IPC provides punishment for an act rash or negligent as to endanger human life or the personal safety of others. Section 25/27 Arms Act provides punishment for possessing/using arm or ammunition in contravention of section 3/5 of Arms Act 1959.
20. After appreciating the evidence and going through the testimony of the prosecution witnesses this Court finds the accused not guilty for any offence charged herein and he deserves acquittal for the following reasons:-
FIR No. 253/2010, PS Mianwali Nagar Page 5/721. The only star witness i.e. the complainant/PW1 in the present case has been examined by the prosecution. In his deposition before the court PW1 failed to support the case of the prosecution in any manner. In his examination in chief this witness categorically denied seeing of the accused making fire. He further stated that police obtained his signatures on the blank papers. This witness further stated that the gun was shown to him in the PS and he failed to identify the same before the court. In view of his unsupported testimony this witness was cross examined by Ld. APP for state with the permission of the court in which again the witness did not support the case of the prosecution in any manner. This witness categorically denied recovery of any gun from the possession of accused when quetioned by Ld. APP for state in cross examination. There is no other public witness to the recovery of the gun from accused. The recovery of gun from the accused is highly doubtful.
In view of the testimony of PW1 the ingredients of offences u/s 336 IPC and u/s 25/27 Arms Act are not made out.
22. Now coming to the offences charged against the accused u/s 471 r/w section 468 IPC alleging that the Arms License produced by the accused was found to be forged and he used the same as genuine. In this respect no cogent evidence has been produced on record by the prosecution witnesses. No witness from the office of Arms Branch, District Magistrate, Ettah, UP has been called to prove the document I.e. letter no. 877 dated 11.08.2011. The endorsement regarding verification has not been proved by the witness that issued the same. During cross examination of PW3 IO SI Jai Prakash in his cross examination could not tell whether any departure entry was made by him for Ettah, UP. No such departure entry / DD entry has been found on record when confronted to the witness. Above all the recovery of Arm License from the possession of accused is also highly doubtful as in the personal search memo PW1/H the same was not found with accused. As he was not carrying the license, its production before the IO as alleged is not possible. In view of the same FIR No. 253/2010, PS Mianwali Nagar Page 6/7 the ingredients of section 471 r/w 468 are also not proved on record.
No material and cogent evidence has come on record to prove the guilt of accused. The only eye witness examined by prosecution has failed to support its case. The ingredients of offences charged against the accused have not been established.
23. It is a settled proposition of criminal law that prosecution is supposed to prove its case on judicial file beyond reasonable doubt by leading reliable, cogent and convincing evidence. The burden of proof of the version of the prosecution in a criminal trial throughout the trial is on the prosecution. Also it is a settled proposition of criminal law that accused is entitled to the benefit of reasonable doubt in the prosecution story and such reasonable doubt entitles the accused to acquittal.
Thus, in view of material on record, accused is entitled to be acquitted on account of benefit of doubt. Therefore, the accused is hereby acquitted of the charges levelled against him in the present case.
24. Fresh bail/surety bond has already been furnished on behalf of accused and accepted in compliance of Section 437-A Cr.P.C. File be consigned to Record Room after due compliance.
Digitally signed by VISHAL VISHAL PAHUJA
PAHUJA Date:
2018.12.12
17:08:58 +0530
ANNOUNCED IN THE OPEN (VISHAL PAHUJA)
COURT ON 12.12.2018 MM-04 (WEST)/DELHI
Digitally signed
Containing 07 pages all signed by the presiding officer. VISHAL by VISHAL
PAHUJA
PAHUJA Date:
2018.12.12
17:09:08 +0530
(VISHAL PAHUJA)
MM-04 (WEST)/DELHI
FIR No. 253/2010, PS Mianwali Nagar Page 7/7