Delhi District Court
State vs . Dipin @ Yogesh on 27 August, 2022
IN THE COURT OF SH. GAURAV KATARIYA METROPOLITAN MAGISTRATE07, NORTH, ROHINI COURTS, DELHI State Vs. Dipin @ Yogesh FIR No. 490/2016 PS. Jahangir Puri U/s. 25/54/59 Arms Act CR No. 5297782/2016 JUDGMENT
1) The date of commission : 31.08.2016
Of offence
2) The name of the complainant : Ct. Shri Bhagwan
3) The name & parentage : Dipin @ Yogesh
Of accused S/o Sh. Krishan Kumar
R/o K - 112021, Jahangir Puri.
4) Offence complained of : U/s 25/54/59 Arms Act
5) The plea of accused : Pleaded not guilty.
6) Final order : Acquitted
7) Date of Institution of case : 18.11.2016
Judgment reserved on : 27.08.2022
Judgment announced on : 27.08.2022
FIR No.490/16
State Vs. Dipin @ Yogesh Page 1 of 17
THE BRIEF REASONS FOR THE JUDGMENT:
1. The case of the prosecution is that on 31.08.2016, at about 02:30 pm, at Outer Ring Road, towards EE Block, Bus Stand, Jahangir Puri, Delhi, accused was found in possession of one button actuated knife having blade of the length of 15 cm without any permit or license. A complaint was made against the accused. FIR was registered. Investigation was carried out and charge sheet was filed u/s 25/54/59 Arms Act. Accused was summoned and documents were supplied to the accused in compliance of Section 207 Cr.P.C.
2. Thereafter, charge was framed U/s 25/54/59 Arms Act on 28.02.2017 to which accused pleaded not guilty and claimed trial.
3. Matter was listed for prosecution evidence. Prosecution examined following witnesses :
4. PW1 is HC Shri Bhagwan, No. 735/NW, Ashok Vihar, District Line, Delhi. He deposed, that on 31.08.2016, he was posted at PS Jahangir Puri as Constable. On that day, his duty hours were 08:00 am to 08:00 pm. On that day, he alongwith Ct. Suresh were on patrolling duty on official motorcycle No. HP7. At about 02:30 PM, when they reached near Bus Stand. He had seen, that one person was coming towards EE Block. He entertained doubt due to his conduct so he FIR No.490/16 State Vs. Dipin @ Yogesh Page 2 of 17 asked him to stop. That person turned back and went towards Mukundpur. Then, he asked Ct. Suresh to chase that person as Ct.Suresh was driving the motorcycle. They apprehended that person by chasing to some distance. Accused revealed his as Dipin @ Yogesh. In the cursory search of accused, a buttondar knife was recovered from the right side pocket. He made call to DO of PS Jahangir Puri.
After some time, IO HC Hanumant alongwith Ct. Gulshad reached at the spot. They handed over the custody of recovered knife and accused Dipin @ Yogesh to the IO HC Hanumat. He narrated the incident to the IO upon which, IO recorded his statement, which is Ex.PW1/A, bearing his signature at point A. IO prepared tehrir and got FIR prepared. IO HC Hanumant prepared sketch of the knife which is Ex. PW1/B, bearing his signature at Point A. IO seized the knife vide seizure memo which is Ex.PW1/C, bearing his signatures at Point A. IO prepared pullinda of recovered knife and sealed with the seal of HS. After use, seal was handed over to Ct. Gulshad.
IO arrested the accused vide arrest memo, which is Ex.PW1/D, bearing his signature at point A. Accused was personally searched vide personal search memo, which is Ex.PW1/E, bearing his signature at point A. IO deposited the case property in Malkhana and put the accused in the lock up. IO recorded his statement.
This witness was duly cross examined by Ld. Defence Counsel.
FIR No.490/16 State Vs. Dipin @ Yogesh Page 3 of 175. PW2 is ASI Satender, No. 180/NW, PS Jahangir Puri, Delhi. He deposed, that on 31.08.2016, he was posted as Duty Officer at PS Jahangir Puri from 04:00 pm to 12 midnight. On that day, at about 04:20 pm, he received one rukka brought by Ct. Gulshad sent by HC Hanumant. On the basis of said rukka, he registered present FIR as Ex.PW2/A and also made endorsement on the original rukka, which is Ex.PW2/B. This witness was duly cross examined by Ld. Defence Counsel.
6. PW3 is HC Gulshad Ahmed, No. 777/NA. PS Shastri Park. He deposed, that on 31.08.2016, he was posted at PS Jahangir Puri as a constable. On that day, his duty hours were from 08:00 am to 08:00 pm. At about 02:45 pm, he alongwith HC Hanumant went to the spot i.e. Outer Ring Road towards EE Block, Bus Stand, Delhi, where, they met with the Ct. Shree Bhagwan and Ct. Suresh.
Ct. Shree Bhagwan and Ct. Suresh handed over the custody of accused Vipin @ Yogesh and one buttondar knife to HC Hanumant. IO HC Hanumant recorded the statement of Ct. Shree Bhagwan. IO prepared a sketch of the knife which is already exhibited as Ex.PW1/B, bearing his signature at point B. The lengh of fal of knife was 15 cm, width of fal was 3 cm, dasta 18 cm, width of dasta from upper side 2.5 cm and below side 3 cm.
FIR No.490/16 State Vs. Dipin @ Yogesh Page 4 of 17IO seized the knife vide seizure memo, already exhibited as Ex.PW1/C, bearing his signature at point B. IO prepared pullanda of the knife and same was sealed with the seal of HS. After use seal was handed over to him. Thereafter, IO prepared rukka and handed over the same to him for registration of FIR.
Accordingly, he went to the PS Jahangir Puri and got registered the present FIR. After registration of case, he handed over copy of FIR and original rukka to HC Narender as the further investigation of the present case was marked to him.
Thereafter, he alongwith HC Narender came back to the spot. Thereafter, HC Hanumant handed over the sketch of knife, seizure memo of knife, pullanda of Knife and accused to HC Narender.
This witness was duly cross examined by Ld. Defence Counsel.
7. PW4 is ASI Hanumant Singh, No. 391, PCR. He deposed, that on 31.08.2016, he was posted at PS Jahangir Puri as a Head Constable. On that day, on receipt of DD no. 26A, which is Ex.PW4/A, at about 02:45 pm, he alongwith Ct. Gulshad went to the spot i.e. Outer Ring Road towards EE Block, Bus Stand, Delhi, where, they met with the Ct. Shree Bhagwan and Ct. Suresh.
Ct. Shree Bhagwan and Ct. Suresh handed over the custody of accused Vipin @ Yogesh and one buttondar knife to him. He recorded the statement of Ct. Shree Bhagwan, which is already exhibited as Ex.PW1/A, bearing his signature at FIR No.490/16 State Vs. Dipin @ Yogesh Page 5 of 17 point B. He prepared a sketch of the knife which is already exhibited as Ex.PW1/B, bearing his signature at point C. The lengh of fal of knife was 15 cm, width of fal was 3 cm, dasta 18 cm, width of dasta from upper side 2.5 cm and below side 3 cm.
He seized the knife vide seizure memo, already exhibited as Ex.PW1/C, bearing his signature at point C. He prepared pullanda of the knife and same was sealed with the seal of HS. After use seal was handed over to Ct. Gulshad. Thereafter, he prepared rukka which is Ex.PW4/B, bearing his signature at point A and handed over the same to Ct. Gulshad for registration of FIR.
Accordingly, Ct. Gulshad went to the PS and got registered the present FIR. After registration of case, Ct. Gulshad handed over copy of FIR and original rukka to HC Narender as the further investigation of the present case was marked to him. I recorded the statement of Ct. Gulshad and he handed over the case file, custody of accused and case property to IO HC Narender.
This witness was duly cross examined by Ld. Defence Counsel.
8. PW5 is ASI Narender Pal, No. 144/NW, PS Mukharjee Nagar. He deposed, that on 31.08.2016, he was posted at PS Jahangir Puri as a Head Constable. On that day, Ct. Gulshd handed over copy of FIR and original rukka to him as the further investigation of the present case was marked to him by FIR No.490/16 State Vs. Dipin @ Yogesh Page 6 of 17 concerned SHO. Thereafter, he alongwith Ct. Suresh and Ct. Shri Krishan went to the spot i.e. outer ring road, EE Block, Jahangir Puri, where he met with the HC Hanumant and HC Hanumant handed over the case file, custody of accused and case property to him.
He prepared site plan at the instance of Ct. Shri Bhagwan, which is Ex.PW5/A, bearing his signature at point A. He recorded disclosure statement of the accused vide disclosure memo, which is Ex.PW5/B, bearing his signatures at point A. He arrested the accused vide memo which is already exhibited as Ex.PW1/D, bearing his signature at point B. IO prepared personal search memo which is already exhibited as Ex.PW1/E, bearing his signature at point B. He recorded statement of witnesses. After medical examination, accused was put into lock up and case property deposited in the malkhana.
After completion of investigation, he prepared chargesheet and filed the same in the court for trial.
This witness was duly cross examined by Ld. Defence Counsel.
9. PW6 is Statement of Ct. Suresh, No. 614/Security, PIS No. 28106945. He deposed, that on 31.08.2016, he was posted at PS Jahangir Puri as Constable. On that day, his duty hours were 08:00 am to 08:00 pm. On that day, he alongwith Ct.Shri Bhagwan were doing patrolling duty in E E Block on Motorcycle bearing registration No. HP 7.
FIR No.490/16 State Vs. Dipin @ Yogesh Page 7 of 17At about 02:30 PM, when they reached near Bus Stand, E E Block, Jahangir Puri, Delhi, they saw that one person was standing at E E Block Bus Stand and on seeing them in uniform, accused tried to flee away from the spot. On suspicion, they apprehended that boy and Ct. Shri Bhagwan conducted personal search of that boy. During personal search, that boy found in possession of one buttondar knife and he revealed his name as Dipin @ Yogesh. The knife was recovered from the right dub of the accused from his wearing pant. Ct. Shri Bhagwan gave the said information to the Police Station.
After some time, IO HC Hanumat alongwith Ct. Gulshad reached at the spot. They handed over the custody of recovered knife and accused Dipin @ Yogesh to the IO HC Hanumat. IO HC Hanumat prepared sketch of the knife which is already exhibited as Ex.PW1/B, bearing his signatures at Point D. IO seized the knife vide seizure memo already Ex.PW1/C, bearing his signatures at Point A. IO prepared pullinda of recovered knife and sealed with the seal of HS. After use, seal was handed over to Ct. Gulshad.
IO recorded statement of Ct. Shri Bhagwan and prepared rukka and handed over the same to Ct. Gulshad for registration of FIR. Accordingly, Ct. Gulshad went to the PS and got registered the FIR. After registration of FIR, Ct. Gulshad came back at the spot and handed over the copy of FIR and original rukka to IO. IO prepared site plan at the instance of Ct. Shri Bhagwan which is already FIR No.490/16 State Vs. Dipin @ Yogesh Page 8 of 17 exhibited as Ex.PW5/A, bearing his signatures at Point B. IO mentioned FIR Nunmber on the sketch of the knife and seizure memo of knife. IO recorded disclosure statement of accused vide memo already exhibited as Ex.PW5/B, bearing his signatures at Point B. IO arrested and personally searched the accused vide memos already exhibited as Ex.PW1/D and Ex.PW1/E, both bearing his signatures at Point C. IO deposited the case property in Malkhana and put the accused in the lock up. IO recorded his statement u/s 161 Cr. PC.
This witness was duly cross examined by Ld. Defence Counsel.
10. Statement of accused Dipin @ Yogesh was also recorded u/s 294 Cr.P.C in which, accused has admitted the following documents i.e. DD Entry No. 26A dated 31.08.2016 which is Ex. C1, the Notification No. F/13/451/79 of Deputy Secretary Home which is Ex. X1, Registration of FIR No. 490/16 which is Ex. A1, DD Entry No. 14B dated 31.08.2016 which is Ex. A2 and the contents of register No. 19 regarding the deposition of case property.
11. Thereafter, PE was closed and statement of accused u/s 313 Cr.P.C r/w 281 Cr.P.C. was recorded, wherein, the accused pleaded innocence but did not lead any evidence in his defence.
FIR No.490/16 State Vs. Dipin @ Yogesh Page 9 of 1712. It is argued by Ld. APP that from ocular and documentary evidence or record, Prosecution has proved the case beyond reasonable doubt that accused Dipin @ Yogesh was found in possession of knife and submitted that accused person was convicted of the offence charged.
13. Per contra, it is argued by Ld. Counsel for accused that neither any person was made witness nor any handing over memo of seal was prepared. Further, no notice was served to the public persons, hence, the prosecution has miserably failed to prove its case beyond reasonable doubt. Therefore, the accused is liable to be acquitted.
14. I have heard the arguments addressed by the Ld. APP and the Ld counsel for the accused and perused the documents on record carefully.
15. Points for determination:
(i) Whether Point No. 2 that " on 31.08.2016, at about 02:30 pm, at Outer Ring Road, towards EE Block, Bus Stand, Jahangir Puri, Delhi, accused was found in possession of one button actuated knife having blade of the length of 15 cm without any permit or license, in contravention to the notification issued by the Delhi Administration".
FIR No.490/16 State Vs. Dipin @ Yogesh Page 10 of 1716. From the over all testimony of the witnesses, it is clear that the IO has not joined any public witness in the investigation. In fact, not even an effort was made to join the public witnesses. There is a possibility that it was a chance recovery, however, at the time and place from where the accused was apprehended and when the formalities were being completed, there must be public persons around as it is a public place, which is expected to be crowded with people. Also, no reason as to why no public witness could be found has been put forth by the prosecution. All the witnesses examined are police witnesses. This casts a doubt about the sincere efforts made by the IO to join independent witnesses.
17. Regarding the importance of joining independent witness during investigation in a case like the present one, reliance may be placed on "Anoop Joshi Vs. State 1999(2) C.C. Cases 314 (HC), wherein, Hon'ble High Court of Delhi has observed as under:
"18. It is repeatedly laid down by this court that in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evident that no such sincere efforts have been made, particularly when we find that shops were open and one or two shopkeepers could have been persuaded to join the FIR No.490/16 State Vs. Dipin @ Yogesh Page 11 of 17 raiding party to witness the recovery being made from the appellant. In case any of the shopkeepers had declined to join the raiding party, the police could have later on taken legal action against such shopkeepers because they could not have escaped the rigours of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC".
18. Similarly, in Nanak Chand Vs. State of Delhi reported as DHC 1992 CRI LJ 55, it is observed as under:-
"that the recovery is proved by three police officials who have differed on who snatched the Kirpan from the petitioner and at what time. The recovery was from a street with houses on both sides and shops nearby. And, yet no witness from the public has been produced. Not that in every case the police officials are to be treated as unworthy of reliance but their failure to join witnesses from the public especially when they are available at their elbow, may, as in the present case, cast doubt. They have again churned out a stereotyped version. Its rejection needs no Napoleon on the Bridge at Arcola".FIR No.490/16 State Vs. Dipin @ Yogesh Page 12 of 17
19. Also, in State of Punjab v. Balbir Singh, AIR 1994 SC 1872, the Hon'ble Supreme Court of India held as under :-
"It therefore emerges that non-compliance of these provisions i.e. Sections 100 and 165 Cr.P.C. would amount to an irregularity and the effect of the same on the main case depends upon the facts and circumstances of each case. Of course, in such a situation, the court has to consider whether any prejudice has been caused to the accused and also examine the evidence in respect of search in the light of the fact that these provisions have not been complied with and further consider whether the weight of evidence is in any manner affected because of the non-compliance. It is well-settled that the testimony of a witness is not to be doubted or discarded merely on the ground that he happens to be an official but as a rule of caution and depending upon the circumstances of the case, the courts look for independent corroboration. This again depends on question whether the official has deliberately failed to comply with these provisions or failure was due to lack of time and opportunity to associate some independent witnesses with the search and strictly comply with these provisions." [Emphasis supplied].FIR No.490/16 State Vs. Dipin @ Yogesh Page 13 of 17
20. Considering the aforesaid observations made by the Higher Courts, the omissions / failure on the part of investigating agency to join independent public witnesses create reasonable doubt in the prosecution story.
21. None of the recovery witnesses in their examination-in-chief have stated that they offered their personal search to accused before inspecting the knife carried by the accused persons. Principles of natural justice demanded that accused should have been offered search by recovery witness who allegedly recovered case property from accused and should have reduced this fact into writing which has not been done in present case and which fact diminishes credibility of prosecution version. Reliance being placed on a judgment of Hon'ble Orissa High Court reported as "Rabindernath Prusty Vs. State of Orissa". In this situation, it can be said that search of the accused by above said police officials was in complete violation of the above said case law and the same can be said to be illegal & motivated.
22. From the aforesaid discussion, it is very clear that the manner in which the inquiry, seizure and search etc. has been conducted on the spot at the time of alleged recovery of weapon, it makes the prosecution version highly doubtful. In a criminal trial, the onus remains on the prosecution to prove the guilt of accused beyond all reasonable doubts and benefit of doubt, if any, must necessarily go in favour of the accused. 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.
FIR No.490/16 State Vs. Dipin @ Yogesh Page 14 of 1723. The Section 100(4) Cr.P.C. provided that " before making a search of the officer or other person about to make it shall call upon the two or more independent and respectable inhabitants of the locality in which the place to be searched is situated or any other locality if no such inhabitant of the said locality is available or is willing to be a witness of the search, to attend the witness the search and may issued an order in writing to them or any of them so to do".
24. In the present case, the IO has even failed to note down the particulars of the person who refused to join the investigation and this creates doubt regarding the fairness of the investigation. The chances of false implication cannot be ruled out.
25. PW 3 and PW 6 categorically stated in their crossexaminations that, " IO did not prepare handing over memo of the seal ". PW 4 also categorically stated in his crossexamination that " He did not prepare handing over memo of the seal".
26. In these circumstances, the possibility of tampering of case property cannot be ruled out. Reliance is placed on "Ramji Singh V/s State of Haryana "
2007 (3) R.C.R. (Criminal) 452, the Hon'ble Punjab and Haryana High Court held that:
7. "The very purpose of giving seal to an independent person is to avoid tampering of the case property. It is well settled that till the case property is not dispatched to the forensic science laboratory, the seal should not be FIR No.490/16 State Vs. Dipin @ Yogesh Page 15 of 17 available to the prosecuting agency and in the absence of such a safeguard the possibility of seal, contraband and the samples being tampered with cannot be ruled out".
27. Similarly, Hon'ble Delhi High Court in "Safiullah v. State", 1993 (1) RCR (Criminal) 622, held that -
"10. The seals after use were kept by the police officials themselves. Therefore the possibility of tampering with the contents of the sealed parcel cannot be ruled out. It was very essential for the prosecution to have established from stage to stage the fact that the sample was not tampered with. Once a doubt is created in the preservation of the sample the benefit of the same should go to the accused."
28. It is pertinent to mention that PW 6 deposed in his cross examination that "
he did not make any Departure Entry before leaving Police Station for the spot"
as well as PW 1 stated in his cross examination that " he do not remember the DD entry Number vide which he left the PS"
Further, Chapter 22 Rule 49 of Punjab Police Rules, 1934, provides that the hour of arrival and departure on duty at or from a police station of all enrolled police officers of whatever rank, whether posted at the police station or elsewhere, with a statement of the nature of their duty shall be entered vide a separate entry and this entry shall be made immediately on arrival or prior to the FIR No.490/16 State Vs. Dipin @ Yogesh Page 16 of 17 departure of the officer concerned and shall be attested by the latter personality by signature or seal. In the present case, complete departure or the arrival entries have not been proved on the record by the prosecution. In absence of such proof, the presence of the police officials at the spot cannot be believed. Reference can be made to on "Rattan Lal Vs. State 1987 (2) Crimes 29".
29. All the lapses in investigation creates doubt on the very recovery of a buttondar knife from the possession of the accused. The court is of the considered view that prosecution has not been able to prove the guilt of accused beyond reasonable doubt.
30. In view of the above said discussion, I am of the considered view that the prosecution has failed to prove the guilt of the accused beyond reasonable doubt. Accordingly, the accused Dipin @ Yogesh is acquitted from the charges leveled against him.
31. File be consigned to Record Room after due compliance.
32. This Judgment consists of 17 pages and all pages bear my signature.
Announced in open court (Gaurav Katariya)
on 27th Day of August 2022 MM07/North District
Rohini Courts, Delhi.
FIR No.490/16
State Vs. Dipin @ Yogesh Page 17 of 17