IN THE COURT OF SH. [ENTITY], ADDITIONAL CHIEF METROPOLITAN MAGISTRATE, SOUTH DISTRICT, SAKET COURTS COMPLEX, NEW DELHI [ENTITY] v/s [ENTITY] FIR No. 42/11 PS: Saket U/s: 25/54/59 [ACT]. JUDGMENT
1. S. No. / ID No. of the Case : 02406R0141812011 2. Date of Commission of Offence : 01.02.2011 3. Date of institution of the case : 04.06.2011 4. Name of the complainant : [ENTITY] No.509/SD, Saket. 5. Name of accused, parentage : [ENTITY] S/o Sh. [ENTITY] R/o H.No. 24/1B, [ENTITY], Farsh Bazaar, Vishwas Nagar, Shahdara, New Delhi 6. Offence complained or proved : U/s: 25/54/59 [ACT]. 7. Plea of Accused : Pleaded Not Guilty. 8. Final Order : Convicted 9. Date of Final Order : 19.04.2014. B RIEF REASONS FOR SUCH DECISION :
1. Accused [ENTITY] S/o Sh. [ENTITY] has been tried for offence under [SECTION], [ACT] upon the allegation of having carried one loaded country made pistol which was recovered from his possession on 01.02.2011 at about 06:30 PM, near CNG Pump Station, Lado Sarai.
2. Brief facts gleaned from police report reveals that one [ENTITY] was arrested by police in FIR No. 41/11, PS Saket U/[SECTION] [ACT] and 25, [ACT] on 01.02.2011 and he disclosed about involvement of accused [ENTITY] in instances of crime. He also divulged that accused [ENTITY] used to dispose the stolen goods and he would be coming at CNG pump, Lado Sarai at about 06:30 PM. Thereupon, IO [ENTITY] along with police staff and accused [ENTITY] left Metro Station, Saket by Govt. vehicle at 06:15 PM and reached CNG pump, Lado Sarai at 06:20 PM. He requested 34 public persons to join raiding party but they refused and left without disclosing their names and addresses. At about 06:30 PM, accused [ENTITY] came at CNG pump riding one TVS motorcycle bearing no. DL7SBB6196 and was apprehended by [ENTITY] and Ct. [ENTITY] upon pointing by accused [ENTITY]. One country made loaded pistol was recovered from his left dub which was unloaded and one live cartridge was taken out. IO prepared the sketch of pistol and cartridge and took its measurement. Pullanda of case property was prepared with white cloth and after filling the FSL form, pullanda and form FSL were sealed and case property was seized vide memo.
3. [ENTITY] was prepared by IO which was sent to PS Saket through Ct. [ENTITY] and FIR under [SECTION], [ACT] was registered on 01.02.2011. During investigation, IO recorded disclosure statement of accused and prepared the site plan. Accused [ENTITY] was arrested and his wife Smt. [ENTITY] was informed over mobile phone no. 9990795992. One polythene bag was also recovered from the cavity under the seat of motorcycle no. DL7SBB6196 and it was found containing eight (8) mobile phones of different companies. Accused could not produce any document of ownership nor could satisfactorily reply its possession and motorcycle and mobile phones were seized under [SECTION] [ACT]. Case property i.e. country made pistol was sent to FSL, Rohini and ballistic report was obtained. Sanction under [SECTION] of [ACT] was received from DCP, South and after collecting sufficient evidence against accused, IO concluded investigation and prepared charge sheet which was filed in court.
4. Cognizance of offence was taken upon police report and after summoning the accused and compliance of [SECTION] [ACT], charge for offence under [SECTION], [ACT] was framed on 12.02.2013, to which accused pleaded not guilty and claimed trial.
5. Prosecution has examined five witnesses for proving its case against accused.
6. PW01 Ct. [ENTITY] has deposed to have collected the case property from MHC(M) on 11.02.2011 and deposited it at FSL, Rohini vide [CASE NUMBER]. PW02 [ENTITY] has deposed about the incidents of 01.02.2011 leading to arrest of accused [ENTITY] and recovery of loaded country made pistol from accused. He has also deposed about seizure of motorcycle no. DL7SBB6196 and eight (8) mobile phones found in the polythene cover kept under its seat. PW03 Sh. [ENTITY], Sr. Scientific Officer (Ballistics), FSL Rohini has deposed to have examined the case property received in sealed parcel and proved his detailed report as Ex.PW 3/A. PW04 SI [ENTITY] has deposed to have registered FIR of instant case. He has proved copy of FIR as Ex.PW 4/A and his endorsement upon rukka as Ex. PW4/B. Lastly, PW05 Sh. [ENTITY], Superintendent of Police, Security and FRRO, Goa has proved his sanction under [SECTION] of [ACT] as Ex.PW 5/A.
7. After closure of prosecution evidence, accused [ENTITY] was examined by court under [SECTION] [ACT] and denied the depositions of police witnesses regarding recovery and seizure of loaded pistol by police at Lado Sarai. Accused has set up his plea by claiming to have gone to Krishna Nagar for purchasing uniform for his children where he was apprehended by police and falsely implicated in this case. Accused, nonetheless, has declined to lead any evidence in defence.
8. Final arguments have been addressed by ld. APP for the [ENTITY] and ld. defence counsel Sh. [ENTITY] for accused.
9. Ld. defence counsel has argued for acquittal of accused by pointing out that no public witness was joined by IO in raiding party at the time of alleged recovery of pistol and mobile phones. Ld. defence counsel has also drawn court's attention to submit that no disclosure statement of alleged [ENTITY] was recorded by police or proved during evidence. Next, ld. defence counsel has challenged the sanction under [SECTION] of [ACT] by submitting that PW05 has admitted to have given his sanction on the basis of documents and the case property was not physically produced before him. Lastly, ld. defence counsel has referred to the length of pistol being 26 cm, to submit that considering its size, it could not be kept in pant's pocket and recovery shown by police had been planted upon accused.
10. Ld. APP for [ENTITY], per contra, has argued for convicting accused by referring to depositions of witnesses, to submit that prosecution has proved its case against accused beyond reasonable doubt. He has rubbished the plea of accused of being lifted by police from Krishan Nagar and planting of pistol and mobile phones, by submitting that accused has not led any evidence to substantiate his contention
11. I have meticulously perused the evidence led on judicial record by prosecution and heard the rival submissions addressed by ld APP for the [ENTITY] and ld. defence counsel representing accused.
12. [SECTION] of The [ACT] lays down : Whoever has in contravention of a notification issued under [SECTION] in his possession or in contravention of a notification issued under [SECTION] caries or otherwise has in his possession, any arms or ammunition shall be punishable with imprisonment for a term which shall not be less than three years, but which may extend to seven years and shall also be liable to fine.
13. Sanction under [SECTION] of [ACT] for prosecuting accused [ENTITY] was given by PW05 Sh. [ENTITY] which has been proved as Ex PW5/A. He has deposed of being posted as Addl. DCP01, South Distt. on 06.04.2011 and to have given his sanction for prosecuting accused after going through the ballistic report, seizure memo and police diary of the case for recording his satisfaction. During his crossexamination, witness has stated that papers were presented to him by Sh. [ENTITY], SO to Addl. DCP01. Though he admitted that case property was not placed before him, nonetheless, has denied the suggestion of having accorded his sanction in a mechanical way without recording his satisfaction.
14. PW03, Sh. [ENTITY] has proved his report as Ex PW3/A and deposed that country made pistol marked Ex F1 was in working condition and successfully test fired cartridge marked Ex A1. [CASE NUMBER] dated 04.03.2011 records description of country made pistol .315" bore marked exhibit 'F1' and one 8mm /.315" cartridge marked exhibit 'A1'. As per FSL result, exhibit marked 'F1' was found in working condition and successfully test fired 8 mm / .315" cartridge exhibit 'A1'.
15. Witness of recovery of pistol from accused is [ENTITY] (PW02) and he has deposed of being posted at PS Saket and having joined investigation of FIR No. 41/11 PS Saket on 01.02.2011. He further deposed to have reached Metro Station, Saket where [ENTITY] was arrested and disclosed that accused [ENTITY] would be coming to CNG pump, Lado Sarai at about 06:30 PM. Thereupon he alongwith SI [ENTITY], HC Balbir, Ct. [ENTITY], Ct. [ENTITY] and [ENTITY] reached at CNG pump Lado Sarai and requested 34 public persons to join the raiding party, but, none agreed and left without disclosing their names and addresses. At about 06:30 PM, accused came from the side of Mehrauli and having parked his motorcycle was standing at CNG pump when he was apprehended by IO. Upon his search, one loaded country made pistol was recovered from his left dub. Pistol was opened and one live cartridge was found in the pistol. IO has proved the sketch of pistol and cartridge as Ex PW2/A and seizure memo of pullanda containing case property, sealed with seal of 'TC' as EX PW2/B. Form FSL was filled and and after applying his seal, same was handed over to Ct. [ENTITY]. He has proved rukka as Ex PW2/C and site plan as EX PW2/D. After registration of FIR, Ct. [ENTITY] returned back to spot and handed over copy of FIR and original rukka and thereafter accused [ENTITY] was arrested vide arrest memo Ex PW2/E and his disclosure statement was recorded which is referred as EX PW2/F. Seizure memo of motorcycle No. DL7SBB6196 has been proved as Ex PW2/G and seizure memo of eight (8) mobile phones found in one polythene cover kept under the seat of motorcycle has been proved as EX PW2/H. Personal search of accused conducted by IO has been proved as Ex PW2/I and after his medical examination accused was sent to lockup and case property was deposited in malkhana. He has identified accused [ENTITY] present in the court and also identified the country made pistol and empty cartridge taken out of pullanda as Ex P1 collectively.
16. PW02 has been cross examined by ld defence counsel and has referred to DD entry No. 18A recorded by SI [ENTITY] on 01.02.2011 as Mark 'A'. He has replied the query of ld defence counsel by stating that four (4) police personnels out of 15 16 members of raiding party of FIR No. 41/11 had joined the raiding party of present FIR. Though he admitted of having not collected the disclosure statement of [ENTITY], nonetheless maintained that [ENTITY] remained with them from 06:15 PM to 10:00 PM. Similarly, despite admitting of having not given any written notice to public persons who refused to join the raiding party, he has denied the suggestion of having deposed falsely or that nothing was recovered from accused and the recovery shown from accused had been planted. Significantly, witness has denied the suggestion that accused was lifted from his way while he was returning to his house from his aunt's place at Seemapuri.
17. Accused [ENTITY] on his part has denied the testimony of PW02 and states that no recovery or seizure was effected from him at Lado Sarai and he has been falsely implicated in this case. He claims to have been apprehended by police from Krishna Nagar where he had gone for purchasing uniform of his children on 01.02.2011. However, accused has not led any evidence in support of his plea. It is relevant to note at this stage that during the crossexamination of PW02, a suggestion was put to witness that accused [ENTITY] was returning to his house from his aunt's house at Seemapuri, but, in his examination under [SECTION] [ACT] accused has changed his story by claiming to have gone to Krishna Nagar for purchasing uniform of his children. Though accused [ENTITY] has denied recovery and seizure of pistol, mobile phones and motorcycle No. DL7S6196, however, perusal of record discloses that being the registered owner of motorcycle, accused [ENTITY] has moved his application for seeking release of motorcycle which was seized by IO alongwith its key and helmet vide memo proved as EX PW2/G. Seizure memo of pistol and live cartridge has been proved as EX PW2/B and seizure memo of eight (8) mobile phones of different companies has been proved as Ex PW2/H.
18. Testimony of PW02 [ENTITY] has remained unshaken during his crossexamination and except for his bare denial, accused has not explained the recovery of pistol and polythene bag containing mobile phones which were seized by IO. So far as the nonjoining of public persons in recovery of country made pistol is concerned, PW02 has deposed to have requested 34 public persons to join investigation but they left without disclosing their names and addresses. The general apathy of public persons to join investigation is not unknown. Generally public persons are reluctant to join investigation in order to avoid harassment at the hands of the accused as also from taking rounds of court. The fact of nonjoining of independent public witnesses by itself is not sufficient enough to discard the testimony of PW02 [ENTITY]. (See Mukesh Vs. [ENTITY] (NCT of Delhi) CRL. A. No. 274 / 2009).
19. In para no. 7 of the judgment of Hon'ble Supreme Court of India in case titled [ENTITY] Kumar Chaudhary & Ors Vs. [ENTITY] of Bihar (2008) 12 Supreme Court Cases 173, Hon'ble Apex Court has held : "In our opinion, even otherwise it will be erroneous to lay down as a rule of universal application that nonexamination of a public witness by itself gives rise to an adverse inference against the prosecution or that the testimony of a relative of the victim, which is otherwise creditworthy, cannot be relied upon unless corroborated by public witness."
20. It is also obligatory upon accused while being examined under [SECTION] [ACT] to furnish some explanation in respect of incriminating circumstances associated with him and his failure would be read against him as held by Hon'ble Supreme Court in Sunil Clifford Daniel vs. [ENTITY] of Punjab, (2012) 11 Supreme Court Cases 205. Hon'ble Apex Court has referred to its earlier finding in case titled [ENTITY] of Maharashtra vs. Suresh (2000) 1 SCC 471 : 2000 SCC (Cri) 263, to hold : "When the attention of the accused is drawn to to such circumstances that inculpate him in relation to the commission of the crime, and he fails to offer an appropriate explanation or gives a false answer with respect to the same, the said act may be counted as providing a missing link for completing the chain of circumstances."
21. In the present case, recovery of loaded pistol from accused [ENTITY], seizure memo of pistol and live cartridge, seizure memo of his motorcycle with its key and helmet and seizure memo of mobile phones of different companies, recovered under [SECTION] [ACT] have been put to accused during his examination under [SECTION] [ACT] and he has denied the evidence by claiming that police officials have falsely deposed against him and no such recovery was effected from him. The recoveries being proved by [ENTITY] (PW02), accused has taken the plea of returning from the house of his aunt at Seemapuri during cross examination of PW02, but took different plea of having gone to Krishnanagar for purchasing uniform of his children during his examination under [SECTION] [ACT] His failure to offer appropriate explanation and his conduct of giving false answer with respect to recovery of country made pistol and mobile phones from his possession, rules out any possibility of planting of pistol upon him. Also the reason for alleged false implication by police has not been spelt out by accused.
22. In case titled Tahir v. [ENTITY] AIR 1996 SC 3079, Honble Supreme Court of India has held : "In our opinion no infirmity attaches to the testimony of police officials, merely because they belong to the police force and there is no rule of law or evidence which lays down that conviction cannot be recorded on the evidence of the police officials, if found reliable, unless corroborated by some independent, evidence. The Rule of Prudence, however, only requires a more careful scrutiny of their evidence, since they can be said to be interested in the result of the case projected by them. Where the evidence of the police officials, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it can form basis of conviction and the absence of some independent witness of the locality to lend corroboration to their evidence, does not in any way affect the credit worthiness of the prosecution case."
23. Therefore, in my considered opinion, on the basis of evidence led on record, prosecution has successfully proved the guilt of accused [ENTITY] S/o [ENTITY] for offence U/[SECTION], [ACT]. Accused [ENTITY] is accordingly convicted for offence U/[SECTION] of [ACT] for carrying loaded country made pistol in contravention of provisions of [ACT]. Be listed for submissions and order on the point of sentence on 24.04.2014 at 02:00 PM.
ANNOUNCED IN THE OPEN COURT DATED: 19 April, 2014 th ([ENTITY]) ADDITIONAL CHIEF METROPOLITAN MAGISTRATE SOUTH DISTRICT, SAKET COURTS : NEW DELHI