Bhupender Singh Solank @ Bunty vs State

Hon'ble Ms. Justice Mukta Gupta

By this petition the Petitioner challenges the judgment of the Learned Metropolitan Magistrate dated 27th October, 2010 whereby he has been convicted and sentenced for offence punishable u/s 25 Arms Act and the judgment of the learned Additional Sessions Judge dismissing his appeal.

Learned Counsel for the Petitioner at the outset states that the illegality in the impugned judgment is the incorrect appreciation of evidence. According to him since the site plan Ex.PW9/B does not mention that the country made pistol was recovered from the Petitioner it cannot be stated that the Petitioner was found in possession of the country made pistol. The arrest memo of the Petitioner does not mention that he was earlier involved in a case or that he was facing externment. The recovery of the pistol is not made from the Petitioner. Further there are contradictions in the testimonies of PW2, PW3, PW8 and PW9 as two of them state that the Petitioner was wanted in another case of Dabri, the third says that he was externed and the fourth witness states that he was wanted in a case of Vasant Kunj. Further no extrernment order has been produced. Despite the fact that the place was near the railway crossing and there was a temple also close by, no public witness was joined. The recoveries made were not as per the provisions of Section 100(5) Cr.P.C. Further the case property was brought in unsealed condition and hence the recovery is belied.

Learned APP for the State on the other hand contends that the Petitioner had undergone imprisonment from 30th September, 2004 to 15th December, 2004 and thereafter from 28th January, 2010 to 27th October, 2010. Thus the sentence awarded to him was for the period undergone. The Petitioner alleges false implication however, both PW9 and PW10 have not been cross-examined. Since their testimonies have gone unchallenged the said plea is not available to the Petitioner. Further the testimonies of PW2, PW3, PW8 and PW9 the recovery witnesses corroborate each other. The FSL report has also been received which has been exhibited as Ex. PW7/A which proves that the pistol found in the possession of the Petitioner was a fire arm. The prosecution has also proved the sanction Ex.PW6/A. Thus, the present petition is meritless and liable to be dismissed.

I have heard learned counsel for the parties.

In this revision petition the Petitioner primarily seeks re-appreciation of evidence. It may be noted that both the Courts below have dealt with the issues raised by the Petitioner. Learned Appellate Court has noted the contention of the Petitioner regarding producing of the case property in unsealed condition in a polythene bag. It was noted that PW7 Ballistic Expert from FSL Rohini has deposed that one sealed parcel sealed with the seal of HS was received in the laboratory on 13th October, 2004 which was found containing one country made pistol of.315 inch bore and two cartridges of 8 mm/.315 inch which were examined in the laboratory. It was further noted that when the case property was first brought to the Court during the examination of PW3 on 29th June, 2006 it was in a sealed condition, with the seal of FSL, Rohini and the witness identified all the three articles to have been recovered from the Petitioner and exhibited the same as Ex. P1, P2 and P3. It is thereafter that the Court did not seal it and thus when it was produced during the examination of PW7 and PW8 it was found to be unsealed.

Further the non-mentioning of recovery of weapon in Ex.PW9/B is not fatal to the prosecution case. The issue of non cross-examination of PW9 and PW10 was also dealt with and it was held that despite opportunity they were not cross-examined. Further no application was moved to recall them nor was any application made before the learned Appellate Court. The Petitioner was represented by a counsel and wherever required he has cross-examined the witnesses. In the absence of cross-examination of PW9 and PW10 it cannot be held that the fire arm and ammunitions were planted on the Petitioner. The contradictions in the statements of the witnesses stating about the other involvement of the Petitioner and non-production of externment order does not go to the root of the matter discrediting the credit worthiness of the witnesses. It may be noted that PW3 who stated that the Petitioner was wanted in PS Dabri and was under extrernment order from Delhi has not been cross-examined on this point. This fact was also stated by PW2 HC Narender Kumar who has also not been cross examined on this point. PW8 and PW9 have also stated that the Petitioner was wanted in a case of 304 IPC at PS Vasant Kunj and was under an externment order, however they have also not been cross-examined. As there were externment orders against the Petitioner the possibility of his being involved in cases of different police stations cannot be ruled over. Moreover the witnesses have not been cross-examined in this regard, thus no mileage can be taken by the Petitioner at this stage.

I find no infirmity in the impugned judgment. Revision petition is dismissed.