Amrik Singh vs State
2010 Latest Caselaw 5163 Del

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*       IN THE HIGH COURT OF DELHI AT NEW DELHI

+       CRL.A. 176/2001
                                        Decided on : 12th November, 2010



AMRIK SINGH                                         ..... Appellant
                           Through:     Mohd. Nasir and Mohd. Saleem,
                                        Advocates.
        versus

STATE                                              ..... Respondent
                           Through:     Mr. Manoj Ohri, APP.



CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                        Not necessary

2. To be referred to Reporter or not?                     Yes

3. Whether the judgment should be reported
   in the Digest?                                         Yes



MUKTA GUPTA, J. (ORAL)

The Appellant was charged for offence under Section 307IPC for

having injured one Joginder Kumar Chaddha with a country made revolver

on 8th January, 2000. When the Appellant was arrested on 13th December,

2000, on his pointing out, a country made pistol was recovered and for this

he was also charged for offence punishable under Section 25 of the Arms

Act. As the public witnesses and even the injured witness PW2 Joginder

Kumar Chaddha turned hostile, the Appellant was acquitted of the charge

under Section 307 IPC.

The learned Trial Court convicted the Appellant for the charge under

Section 25 Arms Act on the basis of the testimony of the police officers

PW7, Head Constable Shri Krishan and PW8 SI Gulab Singh and sentenced

him to undergo Rigorous Imprisonment for one year. During the pendency

of the present appeal the Appellant was involved in another case and thus, as

per the learned counsel for the Appellant he has already undergone the

sentence of one year awarded to him.

Learned counsel for the Appellant states that all the public witnesses,

that is, the injured and also PW3 Hardev Singh who had joined at the time of

alleged arrest of the Appellant and had signed the seizure memo of the

country made pistol, have turned hostile. Not only this, the Appellant

produced a telegram sent by the Appellant through his cousin who appeared

as defence witness that he was going to surrender before SI Gulab Singh on

13th December, 2000 at 9.00 A.M. Learned counsel for the Appellant

contends that the testimony of both these witnesses PW7 and PW8 is full of

contradictions and thus, no conviction can be based upon their testimony.

Moreover the public witnesses having not supported the case of the

prosecution, the Appellant is entitled to acquittal. It is further contended that

no site plan of the place of recovery has been prepared. In the area from

where allegedly the recovery has taken place, there are two ponds and it is

not evident from near which pond the recovery had taken place. Around 40-

50 yards away from the place of alleged recovery, admittedly there were

showrooms however no independent person was associated with this

recovery. Reliance is place on Dalaut Ram vs. State of Haryana, AIR 1995

SC 1998, Nanak Chand vs. State of Delhi, 1991 JCC 1 and Munni Lal vs.

State, 1995 JCC 110 to contend that where no independent witnesses are

associated though available for proving seizure and recovery of the pistol

and the testimony of police officials is full of contradictions, the accused is

entitled to the benefit of doubt. Reliance is also placed on Raosaheb Balu

Killedar vs. State of Maharashtra, 1995 Crl. Law Journal 2632 to canvass

the proposition that the recovery of revolver and cartridge pursuant to

disclosure statement by the accused does not clothe him with the conscious

possession thereof.

Learned APP for the State on the other hand contends that from the

testimony of PW7 and 8 it is apparent that the Appellant was in conscious

possession of the weapon of offence which he had concealed in the garbage

and after his arrest pursuant to his disclosure at his instance the same was

recovered from below the garbage. The CFSL report received in this regard

clearly prove that the same was a country made pistol and was capable of

firing. It is also stated that the telegram exhibited as Exhibit DW/1 appears

to be an afterthought as the same has not been put to the witnesses and what

has been put is that a telephone call was made. Moreover, the alleged

telegram only states his prospective surrender. It is contended that there is no

discrepancy in the testimony of the two witnesses and the testimony of

police witnesses cannot be disbelieved merely because the public witnesses

turned hostile.

In the present case the Appellant has been acquitted of the charge

under Section 307 IPC for having injured Joginder Kumar Chaddha on 8 th

January, 2000. The only charge for which he has been convicted is under

Sec. 25, Arms Act for unlawful possession of the country made revolver on

13th December, 2000 so the fact that PW1 who was witness to the incident of

8th January, 2000 and PW2 who was the injured of the incident have turned

hostile, has no relevance in the present appeal. However, PW3 who was the

witness to this recovery of the country made pistol and had signed the

seizure memo has also turned hostile. The Hon'ble Supreme Court in

Karamjit Singh vs. State (Delhi Administration) (2003) 5 SCC 291 held that

the testimony of police personnel should be treated in the same manner as

testimony of any other witness and their testimony could be relied upon

without being corroborated by the testimony of independent witnesses. It

may be noted that no suggestion has been put to the witnesses PW7 and

PW8 in the cross-examination as regards the telegram and what has been put

is that the Appellant was produced by his cousin Sunder Singh and a

telephone to this effect was made to the higher officials. There is no

contradiction or improvement in the testimony of PW7 and PW8 and the

same is reliable. The testimony of both the witnesses show that pursuant to

the arrest of the Appellant he had disclosed about the country made pistol.

This pistol was recovered from below the garbage. Though the place was an

Aam Rasta (thorough way) but the manner in which it was concealed clearly

demonstrates that he had knowledge where this pistol was lying. The

Hon'ble Supreme Court in Raosaheb (Supra) held that recovery of country

made revolver and cartridge pursuant to the disclosure statement by the

accused though attribute knowledge of the concealment of revolver at the

particular place but the same cannot attribute a conscious possession thereof.

This decision rendered by the Hon'ble Supreme Court applies on all force to

the facts of the present case, and thus, entitles him to be acquitted of the

charge under Sec. 25 Arms Act.

For the reasons stated above, the Appellant is acquitted of the charge

under Sec. 25 Arms Act.

The appeal is accordingly allowed.

MUKTA GUPTA, J.

NOVEMBER 12, 2010 vn