Arms Act Case

Statev.
SurenderSingh
INTHECOURTOFSH.SUSHANTCHANGOTRA,
METROPOLITANMAGISTRATE(SOUTH)05,
SAKETCOURTS,NEWDELHI
State
versus
SurenderSingh
FIRNo.81/03
PSMehrauli
U/s25ArmsAct
JUDGMENT
SerialNo.ofthecase
: 28/1/03
Dateofcommission
Dateofinstitutionofthecase : 21.05.2004
Nameofcomplainant
: Ct.Shri.Bhagwan
Nameofaccused
: Surender Singh S/o Sh.

Balbir Singh, R/o H. No.
8116/3, Mehrauli, New
Delhi.
Offencecomplainedof
: U/s25ArmsAct
Pleaofaccused
: Pleadednotguilty
Argumentsheardon
: 07.06.2016
Finalorder
: Acquitted
10 Dateofjudgment
: 21.02.2003
: 07.06.2016
BRIEFFACTSANDREASONSFORDECISION
1.
Thebrieffactsofthecaseoftheprosecutionare
that on 21.02.2003 at about 11.30 PM, near Auila Maszid

Mehrauli,NewDelhi,accusedSurenderSinghwasfoundin
possession of one countrymade pistol which was loaded
FIRNo.81/03PS:Mehrauli
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Statev.SurenderSingh
with three live cartridges. Two live cartridges were also

recovered from right pocket of his pant. He was carrying
weapon and cartridges without any license. Accordingly,
presentFIRu/s25ArmsActwasregistered.
2.
After completion of
investigation, the
chargesheet was filed. Copy of challan was supplied to

accusedincomplianceofsection207ofCrPC.
3.
Primafaciecaseofcommissionofoffenceunder
Section25ArmsActwasmadeoutagainstaccused.Charge
under Section 25 Arms Act was framed on 04.12.2006.
Accusedpleadednotguiltyandclaimedtrial.
4.
Inordertoproveitscase,prosecutionexamined
sixwitnesses.PW1Sh.P.C.Hotaprovedthesanctionorder
u/s39ofArmsActasEx.PW1/A.
5.
PW2 ASI Subhash Chand deposed that he
collectedtheFSLreportandobtainedSanctionu/s39Arms
ActfromAddl.DCP/SDnamelySh.P.C.Hota.
6.
PW3SIBirsaOraonandPW4Ct.ShriBhagwan
deposed about the manner, place and time when the

recovery of country made pistol and live cartridge was
effectedfromtheaccused.Theyprovedroughsketchofone
country made pistol and live cartridges as Ex. PW3/A,
seizurememoofcountrymadepistolandlivecartridgeas
Ex.PW3/B.SIBirsaOraonrecordedthestatementofCt.Shri
BhagwanandpreparedrukkaEx.PW3/C.Theyprovedthe
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site plan Ex. PW3/D. They also proved arrest memo of

accusedEx.PW3/EandpersonalsearchmemoEx.PW3/F.
Theyalsoprovedthedisclosurestatementofaccusedvide
memoEx.PW3/G.PW4Ct.ShriBhagwanprovedtherukka
Ex.PW4/A.Theyalsoidentifiedthecountrymadepistoland
cartridgesEx.P1(colly).
7.
PW 5 Sh. Puneet Puri, Senior Scientific Officer
(Ballistics) deposed that on 10.06.2003, he examined the

caseproperty.Thecountrymadepistolwasinworkingorder
andtestfirewasconductedsuccessfully.ThecardridgeA1to
A3wasaliveandwastestfiredthroughcountrymadepistol
markedEx.F1.TheEx.F1/A1wasfirearm/ammunitionas
defined in the Arms Act 1959 and he proved his detailed
reportEx.PW5/A.
8.
PW6HCAshokKumarbroughttheregisterNo.
19.ThekattaandthreeroundsweredepositedinMalkhana
on 22.02.2003 with mud no. 1797 and same be produced
beforethecourtandsealedwithcourtseal.ThesameisEx.
P1.
9.
PE was closed on 07.04.2016. Statement of
accused u/s 313 Cr. PC was recorded on 03.06.2016.

Accusedoptednottoleadanyevidenceindefence.
10.
IhaveheardtheargumentsofLd.APPaswellas
ofld.defencecounselandgonethroughevidenceonrecord.
11.
As per chapter 22 rule 49 of the Punjab Police

3of12
Rules, which is reproduced herein for ready reference:

Chapter22Rule49ofPunjabPoliceRules,1934,provides
asunder:
''22.49MatterstobeenteredinRegister
No.IIThefollowingmattersshall,amongstothers,
beentered:
(c)Thehourofarrivalanddepartureon
duty at or from a police station of all enrolled
policeofficersofwhateverrank,whetherpostedat
thepolicestationorelsewhere,withastatementof
thenatureoftheirduty.Thisentryshallbemade
immediatelyonarrivalorpriortothedepartureof
theofficerconcernedandshallbeattestedbythe
latterpersonallybysignatureorseal.
Note:ThetermPoliceStationwillincludeallplaces
suchasPoliceLinesandPolicePostswhereRegisterNo.IIis
maintained.
12.
Inthepresentcase,theabovesaidprovisionhas
notbeencompliedwithbyprosecution.Therelevantentries
regarding the arrival and departure of the police officials
havenotbeenprovedonrecord.
13.
Atthisjuncture,itwouldberelevanttorefertoa
caselawreportedas RattanLalV/sState,1987(2)Crimes
29theHon'bleDelhiHighCourtithasbeenheldthat,
4of12
if the investigating agency

deliberately ignores to comply with the
provisionsoftheActthecourtswillhave
to approach their action with
reservations.Thematterhastobeviewed
withsuspicioniftheprovisionsoflaware
not strictly complied with and the least
thatcanbesaidisthatitissodonewith
anobliquemotive.Thisfailuretobringon
record, the DD entries creates a
reasonable doubt in the prosecution
versionandattributesobliquemotiveon
thepartoftheprosecution.
14.
Inthepresentcase,accusedhasbeenchargedfor
committinganoffencepunishableunderSection25ofThe
ArmsAct,1959. Inordertoprovetheguiltoftheaccused,
prosecution has to prove that the accused was found in
possessionofonecountrymadepistolwithlivecartridgesas
per seizure memo which is in contravention of the
notification issued by Delhi Administration and thereby
committedanoffencepunishableunderSection25ofThe
Arms Act, 1959. As per the case of the prosecution, the
accusedwascaughtwithonecountrymadepistolwithlive
cartridges on 21.02.2003 at about 11.30 PM near Aulia
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Masjid, Mehrauli, New Delhi. The spot is a busy public

place. Hence, there must be number of public persons
presentatthespotatthetimeofallegedrecovery.However,
the witnesses have not deposed regarding any concrete
efforttojoinpublicwitnessesmadebythematthetimeof
affectingtheallegedrecoveryofonecountrymadepistoland
threelivecartridgesdespitetheiravailabilityonthespot.
15.
Public witnesses were admittedly not joined in
investigation though available. The testimony of official

witnesses does not find any corroboration from any
independentsource.IntheopinionofthisCourt,thenon
joining of public witness is fatal to the prosecution case,
particularlywhennoreasonableexplanationhasbeengiven
by prosecution for not joining public witnesses. In case
titledasRoopChandVs.StateofHaryanareportedasCC
Cases3(HC),itwasheldthat,Wherethepolicehasfailed
to join independent witnesses in the investigation despite
their availability and further failed to take action against
those who refused to take part in investigation nor their
nameswerenoteddownbythepolice,theexplanationofthe
police for not joining independent witnesses is an
afterthoughtandliabletoberejected.
16.
InthecaseofHemRajv.StateofHaryanaAIR
2005SC2110,ithasbeenobservedthat:
The fact that no independent
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witness though available, was examined

andnotevenanexplanationwassoughtto
begivenfornotexaminingsuchwitnessis
aseriousinfirmityintheprosecutioncase.
Amongst the independent witnesses one
whowasverymuchintheknowofthings
from the beginning was not examined by
the prosecution. Nonexamination of
independentwitnessbyitselfmaynotgive
rise to adverse inference against the
prosecution. However,whentheevidence
of the alleged eyewitnesses raise serious
doubtsonthepointoftheirpresenceatthe
timeofactualoccurrence,theunexplained
omission to examine the independent
witnesswouldassumesignificance.
In the case of Sahib Singh v. Sate of
17.
PunjabAIR1997SC2417,ithasbeenheldasunder:
Havinggonethroughtherecordwe
findmuchsubstanceineachoftheabove
contentions. Before conducting a search
theconcernedpoliceofficerisrequiredto
call upon some independent and
respectablepeopleofthelocalitytowitness
7of12
the search. In a given case it may so

happen that no such person is available
or,evenifavailable,isnotwillingtobea
party to such search. It may also bethat
afterjoiningthesearch,suchpersonslater
on turn hostile. In any of these
eventualities the evidence of the police
officerswhoconductedthesearchcannot
bedisbelievedsolelyonthegroundthatno
independentandrespectablewitness was
examined to prove the search but if it is
found as in the present case that no
attemptwasevenmadebytheconcerned
police officer to join with him some
persons of the locality who were
admittedly available to witness the
recovery, it would affect the weight of
evidenceofthePoliceOfficer,thoughnot
itsadmissibility.
18.
In the case of D. V. Shanmugham v. State of
A.P.,AIR1997SC2583ithasbeenobservedasunder:
It also appeared from the evidence of
PW2andPW8thattherewereseveralotherpeople
who witnessed the occurrence and they are not the
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residents of that locality. If such independent

witnesseswereavailableandyetwerenotexamined
by the prosecution and only those persons who are
relatedtothedeceasedwereexaminedtheninsucha
situation the prosecution case has to be scrutinised
withmorecareandcaution.
19.
In the case of Pawan Kumar Vs. The Delhi
Administration, 1989 Cr.LJ 127 Delhi, in which it was

observedasfollows:
KalamSinghhastoadmitthatatthetimeof
thearrestandrecoveryoftheknife,therewasalotofrush
ofpublicatthebusstopnearSubhashBazar.Accordingto
JagbirSingh,hedidnotjoinanypublicwitnessinthecase
while according to Kalam Singh, no public person was
presentthere.Ithardlystandstoreasonthatataplacelike
abusstopnearSubhashBazar,therewouldbenoperson
presentatacrucialtimelike7.30pmwhenthereisalotof
rush of commuters for boarding the buses to their
respectivedestinations.Admittedly,thereisnoimpediment
inbelievingtheversionofthepoliceofficialsbutforthat
theprosecutionhastolayagoodfoundation.Atleastone
ofthemshouldhavedeposedthattheytriedtocontactthe
public witnesses or that they refused to join the
investigation. Hereisacasewherenoeffortwasmadeto
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joinanypublicwitnesseventhoughnumberofthemwere
present. Noplausiblefromthesideoftheprosecutionis
forthcomingfornotjoiningtheIndependentwitnessesin
caseofaseriousnaturelikethepresentone.Itmaybethat
there is an apathy on the part of the general public to
associatethemselveswiththepoliceraidsortherecoveries
butthatapart,atleasttheIOshouldhavemadeanearnest
efforttojointheindependentwitnesses.Noattemptinthis
directionappearstohavebeenmadeandthis,byitself,isa
circumstancethrowingdoubtonthearrestortherecovery
oftheknifefromthepersonoftheaccused.''
20.
In the case of Sadhu Singh Vs. State of
Haryana 2000(2)CCCasesHC73,theCourttooknoteof
the fact that public witnesses were not joined in
investigationtoacquittheaccused.
21.
InthecaseofMassaSinghVs.StateofPunjab
2000(2)C.C.CasesHC11,convictionwassetasideonthe
ground that it was obligatory on the part of investigating
officertotakeassistanceofindependentwitnessestolend
authenticitytotheinvestigationconductedbyhim.Itwas
observedasunder:
The recovery has been effected from a public
place. The Investigating Officer could have taken the
trouble to associate an independent witness to get the
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attestation of such independent witness regarding the

authenticity of the investigation conducted by him. This
aspectofthecasehasnotbeenproperlyappreciatedbythe
Courtbelow.
22.
InthecaseofChananSinghVs.State1986Crl.
Rev.No.720(P&H)94,itwasheldthatitwasobligatoryon
thepartofthepolicetojoinindependentwitnessesandthe
statementofofficialwitnessthatwitnessesrefusedtojoin
investigationwasrejectedasanafterthought.
23.
In the cases of Gurbel Singh Vs. State of
Punjab 1991 Crl. Rev. No.504 (P&H) and Dhanpat Vs.

StateofPunjab2000(1)CCCasesHC52,ithasbeenheld
that nonjoining of independent witnesses is fatal to the
prosecutioncaseandaccusedisentitledtobenefitofdoubt.
24.
There are other inconsistencies on the record
which have not been explained. According to the

depositionsofprosecutionwitnesses,thecasepropertywas
first seized, sketch of one countrymade pistol and live
cartridges was prepared and then Rukka was sent for
registration of FIR. Thus,according to the witnesses, FIR
wasregisteredafterseizureofcountrymadepistolandlive
cartridges and the sketch was prepared. However, the
seizurememoandsketchbeartheFIRnumber.Atthetime
oftheseizure,FIRnumberwasnotavailableandtherefore,
FIRnumbercouldnothavefiguredontheseizurememoor
11of12
on the sketch. The existence of FIR number on seizure

memosuggeststhattheseizurememowaspreparedafter
the registration of FIR and is therefore antetimed. This
erodesthecredibilityofthewitnesseswhohasstatedthat
theseizurememowaspreparedonthespotandbeforethe
registrationofFIR.
25.
In view of the aforementioned facts and
circumstances,ithastobeconcludedthatprosecutionhas
failed to prove its case against the accused beyond
reasonable doubt. Accused is given benefit of doubt.
Accordingly,theaccusedSurenderSinghisherebyacquitted
foroffencepunishableunderSection25ofTheArmsAct,
1959. Case property be confiscated to the State and be
destroyedafterexpiryofperiodofappeal.
26.
Theaccusedwasdirectedtofurnishbailbonds
andsuretybondsu/s437ACr.PC.
Announcedintheopen
courton07.06.2016
(SUSHANTCHANGOTRA)
MM5(South),SaketCourts
NewDelhi
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Statev.

: Surender Singh S/o Sh.

that on 21.02.2003 at about 11.30 PM, near Auila Maszid

with three live cartridges. Two live cartridges were also

chargesheet was filed. Copy of challan was supplied to

PW2 ASI Subhash Chand deposed that he

deposed about the manner, place and time when the

site plan Ex. PW3/D. They also proved arrest memo of

PW 5 Sh. Puneet Puri, Senior Scientific Officer

(Ballistics) deposed that on 10.06.2003, he examined the

PE was closed on 07.04.2016. Statement of

accused u/s 313 Cr. PC was recorded on 03.06.2016.

As per chapter 22 rule 49 of the Punjab Police

Rules, which is reproduced herein for ready reference:

if the investigating agency

Masjid, Mehrauli, New Delhi. The spot is a busy public

Public witnesses were admittedly not joined in

investigation though available. The testimony of official

witness though available, was examined

the search. In a given case it may so

In the case of D. V. Shanmugham v. State of

residents of that locality. If such independent

In the case of Pawan Kumar Vs. The Delhi

Administration, 1989 Cr.LJ 127 Delhi, in which it was

In the case of Sadhu Singh Vs. State of

attestation of such independent witness regarding the

In the cases of Gurbel Singh Vs. State of

Punjab 1991 Crl. Rev. No.504 (P&H) and Dhanpat Vs.

There are other inconsistencies on the record

which have not been explained. According to the

on the sketch. The existence of FIR number on seizure

In view of the aforementioned facts and

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