Delhi District Court
Criminal Case/406/1999 on 30 May, 2008
IN THE COURT OF SHRI MANOJ KUMAR:METROPOLITATE
MAGISTRATE:KARKARDOOMA:DELHI
FIR No. 406/99
Police Station Shakarpur
Under Section 25 Arms Act, 1959
State v. Sunil Kumar
JUDGMENT:
(a) Serial number of the case :657/07
(b)Date of the commission of the offence : 30.10.1999
(c)Name of the complainant :SI D.K. Tejwan
(d)Name of the accused & address :Sunil Kumar S/o
Sh. Vishwa Nath Ram R/o
Village Batueya, PS Balaiya,
District: Lakhi Sarai Bihar.
Present address:
S-352, School Block,
Shakarpur, Delhi.
(e)Charge against the accused :25 Arms Act, 1959
(f)Plea of the accused :Pleaded not guilty
(g)Final order :Acquitted
(h)Date of such order :31.05.2008
Date of Institution : 14.02.2002
Date of arguments : 30.05.2008
Date of Decision : 31.05.2008
BRIEF STATEMENT OF THE REASONS FOR DECISION:
A police report was put up against accused Sunil Kumar S/o Vishwa Nath Cont..........2 2 Ram on 14.02.2002, by the State through the Officer Incharge of police station Shakarpur stating that on 30.10.1999 during their police patrol in the area of police station Shakarpur, SI D.K. Tejwan (PW3), HC Bhim Singh (PW4) and Ct. Rishi Pal (PW1) received an information from a secret informer that one person was present near R.K. Garage, DDA Park, who was possessing an illegal pistol and who could be apprehended if a raid was conducted immediately. It was further reported that after getting the information, SI D.K. Tejwan and other abovesaid police officers conducted a raid and the accused was apprehended near R.K. Garage after he was identified by secret informer and on a casual search of the accused, a countrymade pistol was found placed in the left side pocket of the pant, which the accused was wearing at that time. It was further reported that the fire arm was seized and an FIR was got registered by SI D.K. Tejwan by sending Ct. Rishi Pal to the police station. It was further reported that during the investigation, other evidences were collected and the accused was found involved in the commission of offence punishable under section 25 of the Arms Act, 1959 for which he should be prosecuted and be punished as per law.
2. On the basis of police report, my learned predecessor took cognizance of the offence and subsequently the presence of the accused was secured as per law. Subsequently after appearance of the accused, he was supplied with a copy of police report and other documents filed alongwith the same in compliance of section 207 of the Code of Criminal Procedure, 1973 (Cr.P.C.) and thereafter having heard the prosecution and the accused a formal charge was framed against him on 02.11.2002 whereby he was charged with the commission of offence punishable under section 25 of the Arms Act, 1959, to which the accused did not plead guilty and claimed trial. Cont..........3 3
3. In support of its case the prosecution got examined PW1 Ct. Rishi Pal, PW2 ASI Usha Verma, PW3 SI D.K. Tejwan, PW4 HC Bhim Singh, PW5 Sh. K.C. Varshney, PW6 Sh. R.K. Sharma and PW7 ASI Mohan Chand. During the recording of evidence of the prosecution witnesses documents Ex.PW1/A, Ex.PW1/B, Ex.PW1/C, Ex.PW2/A, Ex.PW3/A, Ex.PW5/A, Ex.PW6/A, Ex.PW7/A, Ex.PW7/B and the case property Ex.P1 were also tendered and thereafter prosecution evidence was closed and the accused was examined under section 313 of Cr.P.C.
4. During his examination under section 313 Cr.P.C., the accused expressed his innocence and stated that he has been falsely implicated in this case. The accused also expressed his desire to lead evidence in his defence.
5. In support of his defence, the accused got examined DW1 Pappu Kumar and thereafter defence evidence was closed.
6. I have heard Assistant Public Prosecutor (APP) for the State and counsel for the accused and gone through the material on record carefully.
7. The learned APP for the State having drawn my attention on the testimonies of PW1 to PW7 and the documents tendered during their examination submitted that the prosecution has succeeded in proving its case against the accused and it has been proved that on 30.11.1999 the accused was possessing a fire arm in contravention of section 3 of the Arms Act, 1959 and therefore the accused be convicted and punished for having committed the said offence.
Cont..........4 4
8. On the other hand, counsel for the accused having drawn my attention on the statement of the accused, the testimony of DW1 and the testimonies of PW1, PW3 and PW4, submitted that the charge against the accused has not been proved. Counsel for the accused also argued that the accused was not possessing any fire arm and the testimonies of PW1, PW3 and PW4 are not reliable.
9. I have given my thoughtful consideration to the submissions made on behalf of the parties.
10. As I have already observed, to prove its case against the accused, the prosecution has examined as many as seven witnesses.
11. PW1 Ct. Rishi Pal, PW3 SI D.K. Tejwan and PW4 HC Bhim Singh during their respective testimonies deposed that on 30.10.1999 on the basis of a secret information the accused was apprehended near R.K. Rikshaw Garage, DDA Park and on his search the pistol Ex.P1 was recovered.
12. PW1 Ct. Rishi Pal during his examination also deposed that the katta in question was opened and then sealed with the seal of DKT.
13. PW3 SI D.K. Tejwan during his testimony also deposed that the firearm, allegedly recovered from the accused, was sealed by him with the seal of DKT. PW4 HC Bhim Singh also deposed that the katta was sealed by the IO with the seal of DKT.
Cont..........5 5
14. PW2 ASI Usha Verma during her examination proved the copy of FIR Ex.PW2/A.
15. PW5 Sh. K.C. Varshney, Senior Scientific Officer (Ballistics), FSL Rohini, Delhi, during his examination deposed that on 31.03.2000 one sealed parcel sealed with seal of DKT was received in the office of FSL in case FIR No.406/99 pertaining to police station Shakarpur with intact seal, PW5 further deposed that one countrymade pistol of 3.03 inch bore was found inside the sealed parcel and the same was tested and was found as a fire arm. PW5 K.C. Varshney also proved report Ex.PW5/A.
16. PW6 Sh. R.K. Sharma during his examination proved the sanction under section 39 of the Arms Act, 1959 accorded against the accused by him.
17. PW7 ASI Mohan Chand during his examination deposed that on 30.10.1999, after registration of the case, he received the investigation of the case and visited the spot where SI D.K. Tejwan and HC Bhim Singh met him and he was handed over a seizure memo, a sealed parcel and FSL Form. PW7 further deposed that he had later sent the parcel for forensic examination and prepared the site plan Ex.PW7/B at the pointing out of HC Bhim Singh. PW7 further deposed that he also obtained the section 39 of the Arms Act.
18. From the perusal of the testimonies of PW1 Ct. Rishi Pal, PW3 SI Tejwan, PW4 HC Bhim Singh and testimony of PW7 ASI Mohan Chand, it has been proved that after seizure of the firearm Ex.P1 the same was immediately sealed and Cont..........6 6 FSL Form was filled. By that time, the investigation of the case had not begun nor any FIR was got registered. As per the police report and the testimony of PW7 the case was investigated by ASI Mohan Chand but from the testimonies of witnesses, it is obvious that ASI Mohan Chand, IO of the case, had no occasion to see the fire arm in question during the whole investigation of the case. As per the testimonies of PW1, PW3 and PW4, the fire arm was sealed with the seal of DKT and according to the testimony of PW5 K.C. Varshney, when the parcel was received in FSL, it was bearing the same seal. It is very surprising that the IO of the case without having had a look on the alleged weapon, forwarded the same to the FSL and subsequently formed his opinion that the accused had committed offence punishable under section 25 of the Arms Act. During the testimony of PW7, it has nowhere come as to where the fire arm was kept after its seizure because as per the testimony of PW7 the fire arm was seized on 30.10.1999 and the same was received in the FSL only on 31.03.2000 after a gap of about four months. It has also not come in the evidence of the prosecution that during the said period of about four months between 30.10.1999 to 31.03.2000 Ex.P1 remained in the same condition in which it was allegedly seized from the accused on 30.10.1999 and it was not tampered with. The prosecution ought to have produce link evidence in this regard and the same has not been done.
19. Further, as per the testimonies of PW1 and PW4, public persons were available at the time when the fire arm was allegedly recovered from the accused and the police was having prior information. Still no public witness has been associated during the raid and the search of the accused and no plausible explanation has come for such omission.
Cont..........7 7
20. As per the statement of the accused under section 313 Cr.P.C. and the testimony of DW1 Pappu Kumar, on 30.10.1999 when the accused reached near R.K. Garage at 10.00 pm, one police personnel stopped the accused for interrogation and he was made to sit in the vehicle of the police officer and was taken to police station. As per the statement of the accused he was not having any weapon in his possession.
21. In the light of the conduct of the prosecution witnesses, the conduct of the investigating officer, who did not even bother to inspect the weapon during the investigation or before forming his opinion regarding commission of offence by the accused and in the light of the defence taken by the accused, I am of the view that the prosecution has failed to prove its case against the accused beyond reasonable doubt. The conduct of the prosecution witnesses makes the prosecution case suspicious and doubtful.
22. For the reasons aforementioned, the benefit of doubt is given to the accused. The accused is acquitted of charge under section 25 of the Arms Act, 1959 framed against him on 02.11.2002. his bond and bail bond are cancelled. Surety is discharged. File be sent to records.
Announced in the open court (Manoj Kumar)
on 31.05.200. Metropolitan Magistrate,
Karkardooma Court, Delhi.
30.05.2008 FIR No. 406/99
PS Shakarpur
Present : Sh. S.K. Raghuvanshi, APP for the State.
Accused on bail alongwith Sh. Pankaj Kumar Sinha, Advocate. Arguments heard. During the course of argument, it is revealed that in the charge framed on 02.11.2002, the date of offence has been wrongly mentioned as 03.10.1999 instead of 30.10.1999. It is submitted by learned APP for the State that error in the charge may be rectified. The learned APP further submitted that after alteration in the charge, there will be no need of taking further evidence because both the parties have full information regarding the charge against the accused.
It is submitted by counsel for the accused that the accused has no objection if the error in the charge is rectified and the charge is altered. The statement of the accused be recorded in this regard.
Statement of the accused is recorded. It is stated by the accused that he has no objection if the charge is altered.
In the light of the submissions made by both the parties and the statement of the accused, I agree with the learned APP that there is defect in the charge dated 02.11.2002. In exercise of power under section 216 of the Cr.P.C., the charge is altered to the effect that in charge dated 02.11.2002 against the accused in place of dated 03.10.1999, 30.10.1999 should be written and read. The charge is altered accordingly.
Arguments heard. Put up for judgment on 31.05.2008.
(Manoj Kumar) Metropolitan Magistrate KKD, Delhi, 30.05.08 31.05.2008 FIR No. 406/99 PS Shakarpur Present :
By my separate judgment of even date announced in the open court accused Sunil Kumar S/o Sh. Vishwa Nath Ram is acquitted of charge under section 25 of the Arms Act, 1959. His bond and bail bond are cancelled. His surety is discharged. After compliance file be sent to records.
(Manoj Kumar) Metropolitan Magistrate KKD, Delhi, 31.05.08