Delhi District Court
3.Title State vs . Rajesh Kumar on 21 December, 2010
IN THE COURT OF Sh SUNIL KUMAR SHARMA :
METROPOLITANMAGISTRATE
TIS HAZARI COURTS : DELHI
1.FIR No. 318/99
2.Unique Case ID No. Not alloted.
3.Title State Vs. Rajesh Kumar
3(A).Name of complainant SI Ram Singh PS Moti Nagar,
Delhi.
3(B).Name of accused Rajesh Kumar s/o Sh Ajit Singh
r/o Village : Looksar, PS Bahadurgarh
District : Jhazzar (Haryana).
4.Date of institution of challan 25.01.2000
5.Date of Reserving judgment 21.12.2010
6.Date of pronouncement 21.12.2010
7.Date of commission of offence 18.05.1999
8.Offence complained of Under Section 25/54/59 Arms Act
9.Offence charged with Under Section 25/54/59 Arms Act
10.Plea of the accused Pleaded not guilty
11.Final order Accused convicted U/sec 25/54/59 Arms Act
BRIEF REASONS FOR THE DECISION OF THE CASE:
1. The case of the prosecution in brief is that on 18.05.1999 at about 12:10 PM at Mother dairy booth Basai Darapur Delhi, accused was found in his possession one county made pistol without any permit or license.
2. Accordingly, charge sheet was filed, copies were supplied to the accused in compliance of section 207 cr.p.c and on the basis of record, charge u/s 25/54/59 Arms Act was framed against the accused on 10.01.2001, to which he pleaded not guilty and claimed trial.
3. The prosecution has examined only eight witnesses.
PW1 Ct. Vinod Kumar, deposed that on 18.05.1999 he was posted at PS Moti Nagar and on that day he alongwith SI Ram Singh, HC Rajesh, Ct Krishan Gopal, Ct. Jagom were on patrolling duty and were present at division No. 4 Basai Darapur, Delhi. When they reached at Basai Darapu at about 12:10 PM one scooter No. HR328644 came from the side of Ring Road and three boys were found sitting on the scooter. One of them ran way from there accused Rajesh alongwith one Sunil were overpowered. He further deposed that accused Rajesh was overpowered by him with the help of Ct. Jag Om. On formal search of accused Rajesh one country made pistol was recovered from right pocket of his pant. He further deposed that IO prepared the sketch memo of the country pistol. The sketch is exhibited as Ex PW1/A. Thereafter, pistol was measured and it was found total length of 32.05cm. He further deposed that country made pistol was kept in a pullanda and pullanda was sealed with the seal of "RS" and pullanda was taken in to possession vide seizure memo Ex PW1/B. After use seal, was handed over to him. IO prepared a rukka and same were handed over to Ct. Jag Om for registration of the case. Ct. Jag Om went to PS for registration of the case. He further deposed that, IO prepared the site plan. He further deposed that his statement was recorded by IO. He also identified case property that is country made pistol as Ex P1 produced by MHC (M) (sealed with the seal of FSL).
PW2 Ct. Sanjeev, deposed to have been posted in PS Moti Nagar and on 27.05.1999 the instruction of IO, MHC (M) handed over one pulanda with the seal of "RS" alongwith FSL form vide RC No. 104/21. He deposed that he took the pullanda to FSL office, Malviya Nagar and after depositing, he obtained the receipt of the same and came back at PS Moti Nagar and receipt was handed over to MHC (M). He further deposed that the case property was not tempered.
PW3 Ct. Jag Om, deposed that on 18.05.1999 he was posted at PS Moti Nagar and on that day he alongwith SI Ram Singh, HC Rajesh, Ct Krishan Gopal, Ct. Vinod were on patrolling duty and were present at division No. 4 Basai Darapur, Delhi. When they reached at Basai Darapu at about 12:10 PM one scooter No. HR328644 came from the side of Ring Road and three boys were found sitting on the scooter. One of them ran way from there accused Rajesh alongwith one Sunil were overpowered. He further deposed that accused Rajesh was overpowered by him with the help of Ct. Vinod and SI Ran Singh. On formal search of accused Rajesh one country made pistol was recovered from right pocket of his pant. He further deposed that IO prepared the sketch memo of the country pistol. The sketch is exhibited as Ex PW1/A. Thereafter, pistol was measured and it was found total length of 32.05cm. He further deposed that country made pistol was kept in a pullanda and pullanda was sealed with the seal of "RS" and pullanda was taken in to possession vide seizure memo Ex PW1/B. After use seal, was handed over to Ct. Vinod. IO prepared a rukka and same were handed over to him for registration of the case. He went to PS for registration of the case. He further deposed that, IO prepared the site plan. He further deposed that his statement was recorded by IO. He also identified case property that is country made pistol as Ex P1 produced by MHC (M).
PW4 ASI Uma Devi, who is duty officer and deposed to have recorded an FIR No. 318/99 Ex PW4/A on 18.05.1999.
PW4 HC Laloo Orao, (inadvertently numbered as PW4) who has deposed to be MHC (M) on duty on 18.05.1999 and on that day SI Ram Singh had deposited a sealed pullanda sealed with the seal of "RS" in Malkhana and on which he had recorded entry No. 2082 of regsiter No. 19. On 27.05.1999 he had handed over the sealed pullanda to Ct. Snajeev Kumar for depositing it with FSL Malviya Nagar and the same is Ex PW 5/A. On 23.12.1999 the same was received back from FSL. He further deposed that during the period this pullanda remained in his possession and it was not tempered.
PW5 Sh Uday Sahay deposed that on 28.12.1999 he was working as Dy. Commissioner of Police, Wes District New Delhi. He further deposed that IO produced the present file before him. He deposed that he has perused the copy of FIR and statements of witness U/sec 161 CrPC, seizure memo, report of Ballistic report and after satisfying himself from the aforesaid report, he gave sanction of 39 Arms Act against the accused Rajesh Kumar for possessing desi katta without any permit or license. The copy of the section 39 to prosecute the accused for the offence under section 25/54/59 Arms Act 1959 is Ex PW 5/A. PW6 K. C. Varshney deposed that on 27.05.1999 one sealed parcel seal with the seal of RS was received in FSL alongwith forwarding letter from PS Moti Nagar through Ct. Sanjeev Kumar. The seal on the parcel were intact and as per the specimen seal. On opening the parcel on country made pistol of point 315 inch bore was found which is mark Ex F1 by him on examination it was found that the country made pistol Ex F1 was in working order and test fire conducted successfully. It was a fire arm as defined in the Arms Act. His detail report in this regard is Ex PW6/A. PW7 SI Ran Singh, deposed that on 18.05.1999 he was posted as SI in PS Moti Nagar alongwith HC Rajesh and Ct Kishan Gopal and Ct. Jag Om and Ct. Vinod Kumar were in petrolling duty in Basi Dara pur, Delhi in division No 4 at about 11 PM, when we reached at Mother dairy booth, one two wheeler scooter which was having no number came and two boys were riding the same. The scooter was stopped by the police party but accused ran away after leaving the scooter. He further deposed that he alongwith Ct. Jag Om apprehended accused Rajesh, his search was taken and dessi katta was recovered form the right side dub of the pant. He prepared sketch of the same. He prepared a seal pullanda of the same and appended seal of RS, after using the seal was handed over to Ct. Vinod. He prepared a rukka Ex PW7/A and Ct. Jag Om took the same for registration of FIR at PS. He prepared site plan Ex PW7/B and Constable Jag Om took the same for registration of FIR at PS. He further deposed that he had prepared site plan Ex PW7/B. The pistol was taken in to possession vide seizure memo Ex PW1/B, accused was arrested and his jamatalashi prepared. He further deposed that he prepared CFSL form. Accused was put up in the lock up and case property deposited in the Malkhana.
That on 27.05.1999, the case property was sent to FSL Malviya Nagar through Ct. Sandeep Kumar. He collected the Ballistics Expert report and thereafter, sanction of DCP West was obtained. He recorded the statement of witnesses and prepared challan. He can identified the case property if shown to him. He has been shown pistol and he identified the same Ex P1 recovered from the possession of accused.
4. No other PW was examined. PE was closed. Accused was examined u/s 281 r/w section 313 cr.p.c. wherein accused deposed that he is innocent and has been falsely and wrongly implicated in this case. However, he denied to lead any evidence in defence.
5. I have heard the Ld. APP for the state, Ld. counsel for the accused person and perused the entire material available on record.
6. Here it would be appropriate to refer the case law reported as " Sadhu Singh Vs. State of Punjab" 1997 (3) Crime 55 the Punjab & Haryana High Court wherein it was observed as under:-
" In a criminal trial, it is for the prosecution to establish its caHere it would be appropriate to refer the case law reported as " Sadhu Singh Vs. State of Punjab" 1997 (3) Crime 55 the Punjab & Haryana High Court wherein it was observed as under:-
" In a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubts. It is for the prosecution to travel the entire distance from 'may have' to 'must have'. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused" .
7. Ld. defence counsel has argued that since no public witness has been joined and there are contradiction in the statements of prosecution witnesses and more over since the accused has been acquitted in case FIR No. 144/99 U/sec 379/411 IPC registered at PS Kashav Puram, the accused deserves acquittal in this case. On the other hand Ld. APP submits that the acquittal of accused in case FIR No. 144/99 U/sec 379/411 IPC registered at PS Kashav Puram, has no bearing in the present case as in FIR No. 144/99 U/sec 379/411 IPC registered at PS Kashav Puram, accused has been acquitted on the ground that complainant of that case was not traceable and moreover the witnesses have deposed consistently in the present case which is in corroboration to each other and the mere fact that public witnesses have not been joined would not entitled accused for acquittal and as per Ld. APP the prosecution has been able to prove its case.
8. I have considered the rival submissions, and now the stage has been set to discuss the testimonies of prosecution witnesses.
The prosecution has examined PW1 Ct. Vinod Kumar, PW3 Ct. Jag Ram, PW 7 Ran Singh as recovery witnesses and the perusal of the testimonies of the above witnesses reveals that the witnesses has deposed in corroboration to each other and have deposed about the recovery of country made katta Ex P1 from the possession of accused and also identify the accused. As per the testimony of PW's on 18.05.1999 they were posted at PS Moti Nagar and on that day they were on patrolling duty and were present at division No. 4 Basai Darapur, Delhi. When they reached at Basai Darapur at about 12:10 PM one scooter No. HR328644 came from the side of Ring Road and three boys were found sitting on the scooter. One of them ran way from there accused Rajesh alongwith one Sunil were overpowered. They further deposed that accused Rajesh was overpowered by them and on formal search of accused Rajesh one country made pistol was recovered from right pocket of his pant. They further deposed that IO prepared the sketch memo of the country pistol. The sketch is exhibited as Ex PW1/A. Thereafter, pistol was measured and it was found total length of 32.05cm. They further deposed that country made pistol was kept in a pullanda and pullanda was sealed with the seal of "RS" and pullanda was taken in to possession vide seizure memo Ex PW1/B. After use seal, was handed over to him. IO prepared a rukka and same were handed over to Ct. Jag Om for registration of the case. Ct. Jag Om went to PS for registration of the case. They further deposed that, IO prepared the site plan. They also identified case property that is country made pistol as Ex P1 produced by MHC (M) (sealed with the seal of FSL/court). The recovery witnesses i.e PW 1 Ct Vinod and PW3 Ct Jag Mohan have been cross examined by the defence, but the perusal of the cross examined reveals that nothing favorable to the defence has come out from his cross examination.
9. So far as, the testimonies of other PW's are concerned, PW2 Sanjeev Kumar has duly deposed that on 27.05.1999 the instruction of IO, MHC (M) handed over one pulanda with the seal of "RS" alongwith FSL form vide RC No. 104/21. He deposed that he took the pullanda to FSL office, Malviya Nagar and after depositing, he obtained the receipt of the same and came back at PS Moti Nagar and receipt was handed over to MHC (M). He further deposed that the case property was not tempered. This witness has not been cross examined despite opportunity.
PW4 HC Laloo Orao, (inadvertently number) who has deposed to be MHC (M) on duty on 18.05.1999 and on that day SI Ram Singh had deposited a sealed pullanda sealed with the seal of "RS" in Malkhana and on which he had recorded entry No. 2082 of register No. 19. On 27.05.1999 he had handed over the sealed pullanda to Ct. Snajeev Kumar for depositing it with FSL Malviya Nagar and the same is Ex PW 5/A. On 23.12.1999 the same was received back from FSL. He further deposed that during the period this pullanda remained in his possession and it was not tempered. This witness has not been cross examined despite opportunity.
PW5 Sh Uday Sahay deposed that on 28.12.1999 he was working as Dy. Commissioner of Police, Wes District New Delhi. He further deposed that IO produced the present file before him. He deposed that he has perused the copy of FIR and statements of witness U/sec 161 CrPC, seizure memo, report of Ballistic report and after satisfying himself from the aforesaid report, he gave sanction of 39 Arms Act against the accused Rajesh Kumar for possessing desi katta without any permit or license. The copy of the section 39 to prosecute the accused for the offence under section 25/54/59 Arms Act 1959 is Ex PW 5/A. This witness has not been cross examined despite opportunity.
PW6 K. C. Varshney deposed that on 27.05.1999 one sealed parcel seal with the seal of RS was received in FSL alaongwith forwarding letter from PS Moti Nagar through Ct. Sanjeev Kumar. The seal on the parcel were intact and as per the specimen seal. On opening the parcel on country made pistol of point 315 inch bore was found which is mark Ex F1 by him on examination it was found that the country made pistol Ex F1 was in working order and test fire conducted successfully. It was a fire arm as defined in the Arms Act. His detail report in this regard is Ex PW6/A. This witness has been cross examined by the defence, but the perusal of the cross examined reveals that nothing favorable to the defence has come out.
10. It has been argued that no public witness have been joined to witness recovery and there are contradictions in the statement made by the PWs during crossexamination. On the contrary Ld. APP for the State submits that the members of the raiding party requested the public persons for joining the raid and sincere efforts have been made to join them.
11. So far as arguments raised in respect of nonjoining of public witnesses, it is well settled law that the case of the prosecution cannot be thrown away merely on the ground that public witnesses have not been joined. Reliance is placed upon the judgment titled Ambika Prasad & Anr Vs. State reported in 2002(2) Crimes 63 SC wherein it has been held ' Independent persons are reluctant to be a witness or to assist the investigation. In any case if independent persons are not willing to cooperate with the investigation, prosecution cannot be blamed at and it cannot be a ground for rejecting the evidence of injured witnesses'
12. Reliance is also placed upon judgment titled Appa Bhai Vs. State of Gujrat reported in AIR 1988 SC 696 wherein it has been held 'These days people in the vicinity where the occurrence took place avoid to come forward to give evidence and civilized persons are in sensitive when crime is committed even in their presence and they withdraw both from the victim and vigilance'.
In view of the above settled law it is clear that the prosecution case can not be thrown away merely on the ground that no public witnesses have been joined and it is also settled that the testimonies of police officials could be believed if the some have same reliability and inspires the confidence of the court.
13. The law is well settled to the effect as held in " SUKHDEV YADAV & ORS VS STATE OF BIHAR" (2001)8 SCC 186 that " once the trustworthiness of evidence stated in a case stands satisfied, the court should not hesitate in accepting the same. If the evidence in its entirety appears to be trustworthy it can not be discarded meraly on the ground of presence of minor variation in evidence. When the witnesses are examined after a long gap minor contradiction commission and discrepancies are bond to occur in the testimony of witness.
14. Further, in judgment titled as Leela Ram vs State of Haryana (1999) 9 SCC 525 is was observed that there are bound to be some discrepancies between the narrations of different witnesses when they speak on details, and unless the contradictions are of a material dimsension, the same should not be used to jettison the evidence in its entirely. Incidentally, corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishments, there may be, but variations by reason therefore, should not render the evidence of eye witnesses unbelievable. Trivial discrepancies ought not be obliterate an otherwise acceptable evidence.
15. The next argument raised by Ld. defence Counsel that since the accused has been acquitted in case FIR No. 144/99 U/sec 379/411 IPC registered at PS Kashav Puram, the accused deserves acquittal in this case. On the other hand Ld. APP submits that the acquittal of accused in case FIR No. 144/99 U/sec 379/411 IPC registered at PS Kashav Puram, has no bearing in the present case as in FIR No. 144/99 U/sec 379/411 IPC registered at PS Kashav Puram, accused has been acquitted on the ground that complainant of that case was not traceable.
I have gone through the copy of judgment filed by defence of case FIR No. 144/99 U/sec 379/411 IPC registered at PS Kashav Puram and find force in the arguments of Ld. APP. In my considered view the acquittal of accused in FIR No. 144/99 U/sec 379/411 IPC registered at PS Kashav Puram has no bearing on the merits of the present case.
16. In view of the above discussion, I am of the considered opinion that prosecution has been able to prove its case beyond shadow of reasonable doubts to the effect that on 18.05.1999 at about 12:10 PM at Mother dairy booth Basai Darapur Delhi, accused was found in possession of one county made pistol without any permit or license, accordingly, the accused Rajesh Kumar is convicted for commission of offence punishable under Section 25/54/59 Arms Act 1959.
Be heard separately on the point of sentence.
Announced in the (Sunil Kumar Sharma)
Open Court on 21.12.2010 Metropolitan Magistrate
(West11), THC,Delhi
It is certified that this judgment contains 17 pages and each page bears my signature.
(Sunil Kumar Sharma) Metropolitan Magistrate (West11), THC,Delhi