Delhi District Court
State vs . Karan @ Govardhan on 10 July, 2023
IN THE COURT OF SH. ANIMESH KUMAR, METROPOLITAN
MAGISTRATE-08, SOUTH WEST DISTRICT, NEW DELHI
STATE VS. KARAN @ GOVARDHAN
FIR NO: 1097/2015
P. S UTTAM NAGAR
U/s 482/411 IPC & 25/27 Arms Act
Crc/7623/2019
JUDGMENT
Sl. No. of the case : 3958/2
Date of its institution : 22.10.2015
Name of the complainant : ASI Dilbag Singh, Belt No. 2488/W,
then posted at PS Uttam Nagar,
New Delhi.
Date of Commission of offence : 26.08.2015
Name of the accused : (i) Karan @ Govardhan,
S/o Sh. Kanwar Singh,
R/o H. No. E-53, Gali No. 4, Vikas
Nagar, Uttam Nagar, New Delhi
Offence complained of : 482/411 IPC & 25/27 Arms Act
Plea of accused : Not Guilty
Case reserved for orders : 07.06.2023
Final Order : Acquittal
Date of orders : 07.07.2023
Page 1 of 16
BRIEF STATEMENT OF FACTS FOR THE DECISION:-
1. This is the prosecution of the accused namely Karan @ Govardhan upon a charge sheet filed by the police station Uttam Nagar under section 482/411 Indian Penal Code (IPC) & 25/27 Arms Act.
2. Briefly stated, as per the case of prosecution, on 26.08.2015, on the basis of information received from a secret informer, a raiding party was formed which consisted of SI Dilbagh Singh, HC Ved Prakash, Ct. Naveen, Ct. Ajay, Ct. Hari Prakash and HC Rupesh Kumar. The raiding party initially went to Government School, Hastsal Village, Nala Road where they met with secret informer. At the instance of secret informer, the raiding party reached at the Fruits Market, near Ganda Nala, Hastsal Road.
3. Thereafter, at around 7:250 PM, they all saw that the accused Karan @ Govardhan came at the spot in an alto car bearing no. DL 9CD 9870 from Shiv Vihar, JJ Colony side. After reaching at the spot, the accused stopped his car and took out country made pistol from the right pocket of his trouser and brandished the same in air in order to threaten the public already present there. Thereafter, SI Dilbagh Singh took out his service revolver and pointed the same towards the accused. In the meanwhile, HC Rupesh Kumar and Ct. Naveen had apprehended the accused and the said pistol along with three live cartridges were recovered from the accused. Information was shared with the DO, Page 2 of 16 AATS after which the IO SI Dipender Singh reached at the spot and interrogated the accused. He arrested the accused and completed the necessary codal formalities. During the course of investigation, one car with fake registration number plate was also recovered at the instance of accused.
4. After completing the formalities, investigation was carried out by PS Uttam Nagar and a charge sheet was filed against the accused. The charge was framed against the accused u/s 482/411 IPC & 25/27 Arms Act, to which he pleaded not guilty and claimed trial.
5. In order to substantiate its case, prosecution has examined three witnesses.
• ASI Rupesh Kumar examined as PW-1;
• SI Dilbagh Singh examined as PW-2; and • SI Dipender Singh examined as PW-3;
6. PW1 deposed that in the year he was posted at AATS, West District, Paschim Vihar. On 26.08.2015, he joined the raiding party along with ASI Dilbagh Singh, HC Ved Prakash, Ct. Naveen, Ct. Ajay and Ct. Hari Prakash. Thereafter, PW1 along with other raiding party members reached at Government School Hastsal. He further deposed that when he along with the raiding party members reached at the spot, ASI Dilbagh Singh had asked some public persons to join the raiding party Page 3 of 16 but all of them refused to join the same. After some time, secret informer also reached at the spot with whom the raiding party members went to the Fruits Market, near Ganda Nala, Hastsal Road. ASI Dilbagh Singh again asked public members present there but all of them refused to join the investigation.
7. PW1 further deposed in his examination-in-chief that at about 7:50 PM, the accused came there in an alto car bearing registration number DL9CD9870. After reaching at the said spot, the accused stopped his car and took out country made pistol from the right pocket of his trouser, brandished the pistol in the air and threatened the persons present there. At the instance of secret informer, ASI Dilbagh Singh along with PW1 and Ct. Naveen apprehended the accused. PW1 snatched the countryside pistol from the hand of the accused which was loaded with live cartridges. During the personal search of the accused, three live cartridges were also found.
8. After the apprehension of the accused, PW1 handed over the pistol to ASI Dilbagh who prepared the sketch of pistol and cartridges Ex. PW1/ A. Thereafter, the case properties were seized by ASI Dilbagh Singh vide seizure memo Ex. PW1/B. Car of the accused was also seized vide seizure memo Ex. PW1/C. Thereafter, ASI Dilbagh Singh shared the information regarding apprehension of the accused with AATS. After some time, ASI Dipender Singh reached at the spot and took the Page 4 of 16 custody of accused and case properties. ASI Dilbagh Singh had prepared the tehrir sent the same to AATS through Ct. Naveen for registration of FIR. After getting the FIR registered, Ct. Naveen came at the spot and handed over copy of FIR to ASI Dipender Singh. Thereafter, ASI Dipender Singh prepared the site plan, recorded the disclosure statement of the accused. At the instance of the accused, another car having fake registration number was seized by the IO vide seizure memo Ex. PW1/D. PW1 correctly identified the accused and case properties in the Court.
9. PW2 SI Dilbagh Singh was also one of the raiding party members. He also deposed on the similar lines as deposed by PW1. During his examination-in-chief, he gave a detailed account of the manner in which the raiding team was prepared and the accused was apprehended with country made pistol and live cartridges. He had deposed that at the instance of secret informer, the accused was identified. Thereafter, he took out his service revolver and pointed it out towards the accused and asked him to surrender. HC Rupesh Kumar and Ct. Naveen apprehended the accused and HC Rupesh Kumar snatched country made pistol from the hand of the accused. During the personal search of the accused, three live cartridges were also recovered from his possession. Thereafter, PW2 shared the information with DO, AATS. He also prepared the sketch of pistol and cartridges recovered from the accused Ex. PW1/A and also seized the same vide seizure memo Ex. Page 5 of 16 PW1/B. Car of the accused was also seized by him vide seizure memo Ex. PW1/C. Thereafter, he prepared the tehrir Ex. PW2/A and handed over the same to Ct. Naveen for registration of FIR. He correctly identified the accused and case properties in the Court.
10. PW3 was the IO of the present case. He had reached at the spot after the apprehension of the accused with country made pistol and live cartridges. When he reached at the spot, PW2 had handed over the custody of accused and case properties to him. During interrogation, the accused had disclosed his name as Karan. Thereafter, he prepared the site plan at the instance of PW2 Ex. PW2/B. He also arrested the accused vide arrest memo Ex. PW3/A and conducted the personal search of the accused vide search memo Ex. PW3/B. Thereafter, he along with accused and other police officials came back at the police station where he deposited the case properties in malkhana. Thereafter, on 27.08.2015, at the instance of the accused, he had seized the Santo car bearing registration no. DL12CE 7615 along with fake number plate DL7CB 3287 near Shiv Vihar Park vide seizure memo Ex. PW1/D.
11. Accused admitted the genuineness of copy of FIR, certificate u/s 65B Indian Evidence Act, DD No. 14 & 20 dated 26.08.2015, sanction u/s 39 Arms Act and FSL result dated 30.10.2015 Ex. X-1 to X-5, u/s 294 of the Criminal Procedure Code, 1973 (herein after referred as Cr.P.C). Page 6 of 16
12. Statement of the accused was recorded U/s 313 Cr.P.C wherein all the incriminating circumstances were put to her which he denied and pleaded his false implication and also false plantation of the case properties. He, however, chose not to lead defence evidence. Thereafter, final arguments were heard.
13. I have heard the Ld. APP and carefully perused the record in extenso. Ld. APP has canvassed that the prosecution has been successful in proving the guilt of the accused beyond reasonable doubt as testimony of all the witnesses were not impeached by the accused. Per contra, Ld. Counsel for the accused submitted that no public witnesses were examined in the present case regarding recovery of country made pistol and car with fake number plate. No photographs of recovered case properties were produced on record by the prosecution and no CCTV footage of the recovery was filed. He further submitted that the accused has been falsely implicated in the present case and the case properties have also been planted against the accused.
14. It is cardinal principle of criminal jurisprudence that an accused is presumed to be innocent and, therefore, the burden lies on the prosecution to prove the guilt of the accused beyond reasonable doubt. The prosecution is under a legal obligation to prove each and every ingredient of the offence beyond any doubt, unless otherwise so Page 7 of 16 provided by any statute. This general burden never shifts and it always rests on the prosecution.
15. However, for the reasons mentioned hereinafter the prosecution has failed to establish beyond reasonable doubt that the accused was found in possession of the country made pistol along with live cartridges and car with fake registration plate. Hence, benefit of doubt has to be extended to the accused in the present case.
Non-examination of independent public witnesses
16. During the final arguments, Ld. Counsel for the accused submitted that the prosecution did not examine even a single public witness to prove the recovery of illicit liquor from the possession. Both the recovery witnesses were police officials.
17. It is a well settled proposition that non-joining of public witness shrouds doubt over the fairness of the investigation by police. Section 100(4) of the Cr.PC also casts a statutory duty on an official conducting search to join two respectable persons of the society. Same has not been done in the present case. This casts a doubt on the fairness of the investigation.
18. From the overall testimony of the witnesses, it appears that no sincere efforts, have been made to join the public persons in the investigation. The witnesses examined by the prosecution are police witness. Not even a single public witness was examined by the prosecution nor joined in the investigation and no plausible reason could be put forward Page 8 of 16 by the prosecution witnesses that for what reason they were unable to gather support from public or independent witnesses to establish the guilt of the accused. Reference can be taken from the decision of the Hon'ble Delhi High Court in the case of Pawan Kumar v. The Delhi Administration, 1989 Cri.L.J. 127.
19. In the instant case, as per the testimonies of PWs and also from the perusal of site place Ex. PW2/B, the alleged recovery was made from a busy locality i.e. fruit Mandi at around 7:50 PM in the evening which is generally peak hour The said police during that time is generally very crowded. Therefore, it cannot be said that no public person would have been available at the spot.
20. Interestingly, as per the testimonies of PW1 and PW2, the accused was apprehended at the time when he was brandishing the country made pistol in the air and threatened the public who were already present there. However, surprisingly, even those persons were not joined in the investigation. Even their names were not recorded by the police officials. No reasonable explanation could be provided by the prosecution behind this.
21. Although prosecution witnesses have asserted that they implored some of the public witnesses to join the investigation but they refused to participate in the investigation. This explanation tendered by the prosecution witnesses does not seem to be tenable as neither the Page 9 of 16 details of those public persons have been brought on record nor any legal action was taken against those persons under relevant sections of law who had declined to assist the police in investigation. If the public persons were really present at the spot, then the police officials should have made endeavor to get them join the investigation. They should have issued notice asking them to join the investigation. On their refusal, necessary action as per law could have been taken against them.
22. The failure on the part of the police personnel could only suggest that they were not interested in joining the public persons in the police proceedings. Failure on the part of the police officials to make sincere effort to join public witnesses for the proceedings when they may be available creates reasonable doubt in the prosecution story. Reference can be taken from the decision of Anoop Joshi Vs. State 1992 (2) C.C. Cases 314 (HC), Hon'ble High Court of Delhi has observed as under;
"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 shop keepers could have been persuaded to join the 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 Page 10 of 16 law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC."
23. While the testimony of the police officials cannot be discarded away merely because of the fact that no public witnesses were not examined, however, their testimonies have to be scrutinised in more detail. If it is found the police officials during the course of investigation did not even make endeavour to ask the public witnesses to join the investigation, did not even ask their names and details etc. then it would cast a very serious doubt on the testimonies of the police officials. At this stage, reference can be taken from the decision of the Hon'ble Supreme Court in the case of Tahir v. State (Delhi) [(1996) 3 SCC 338], dealing with a similar question, the Hon'ble Apex Court held interalia the following:
"In our opinion no infirmity attaches to the testimony of the 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 e vid e n ce , d o e s n ot i n a n y wa y affect the creditworthiness of the prosecution case. The obvious result of the above discussion is that the statement of a police officer can be relied upon and even form the basis of conviction when it is reliable, trustworthy and preferably corroborated by other evidence on record."Page 11 of 16
24. The requirement of the police officials to make endeavour to ask the public witnesses to join the proceedings was discussed by the Hon'ble Supreme Court in the case of Sahib Singh vs. State of Punjab AIR 1997 SC 2417, wherein it interalia held the following:
"In a given case it may so happen that no such person is available or, even if available, is not willing to be a party to such search. It may also be that after joining the search, such persons later on turn hostile. In any of these eventualities the evidence of the police officers who conducted the search cannot be disbelieved solely on the ground that no independent and respectable witness was examined to prove the search but if it is found -as in the present case -that no attempt was even made by the concerned 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 evidence of the Police Officer, though not its admissibility"
25. Therefore, in view of the above mentioned case law, it becomes clear that while the testimony of the police officials cannot be discarded away forthwith in the absence of any public witnesses, however, it would be prudent to examine or scrutinise their testimonies more closely and should preferably be corroborated. Accused may be convicted on the basis of the testimonies of the police officials if their testimonies are found to be reliable and trustworthy.
26. As discussed in the preceding paragraphs of this judgment, IO did not even make any endeavor to join the public witnesses. This becomes all the more important especially in light of the fact that this was not a chance recovery. It was a pre planned recovery after the formation of a Page 12 of 16 raiding party. Police officials had the opportunity to include public persons in the raiding party itself. However, nothing like this was done by the police officials.
27. Further, the prosecution did not even bring on record necessary DD entries to prove arrival and departure of the police officials from the police station. At this stage, reference can be taken from the provision enshrined in 22 rule 49 of the Punjab Police Rules, which is reproduced as under;
"Chapter 22 rule 49 Matters to be entered in Register no. II. The following matters shall amongst others, be entered:-(c) 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. This entry shall be made immediately on arrival or prior to the departure of the officer concerned and shall be attested by the latter personally by signature or seal. Note:- The term Police Station will include all places such as Police Lines and Police Posts where Register No. II is maintained.
28. Perusal of the above rule clearly suggests that the police officials are mandated to record their time of arrival and departure on duty at or from the police station. In the instant case, this provision has not been complied by the concerned police witnesses. The relevant entries regarding the arrival and departure of the police officials have not been proved on record. It has been held in Rattan Lal Vs. State 1987 (2) Crimes 29 the Hon'ble Delhi High Court held that;
"if the investigating agency deliberately ignores to comply with the provisions of the Act the Courts will have to approach their action with reservations. The Page 13 of 16 matter has to be viewed with suspicion if the provisions of law are not strictly complied with and the least that can be said is that it is so done with an oblique motive. This failure to bring on record, the DD entries creates a reasonable doubt in the prosecution version and attributes oblique motive on the part of the prosecution."
29. In the instant case, the prosecution has indeed filed on record the relevant departure entries of PW1 and PW2 who were the members of the raiding party, however, necessary departure entry of IO PW3 were not filed on record. Similarly, the arrival entries of the police officials along with the accused and case properties in the PS were not filed by the prosecution. Further, as per the prosecution, one car with fake registration number was also recovered at the instance of the accused during the course of investigation on the next day, however, necessary DD entries showing the departure and arrival of the police officials from the PS for recovery of this case property was also not filed on record by the prosecution. No explanation on this regard could be provided by the prosecution.
30. Since all the witnesses are police personnel and the necessary safeguards in the investigation have not been followed by the IO, I am of the view that chances of false implication of accused cannot be ruled out at the instance of the police officials.
Loopholes in the case of prosecution
31. Further, PW1 & PW2 in their respective testimonies had deposed that after the apprehension of the accused, country made pistol and live cartridges were recovered from his possession. Thereafter, sketch of the pistol and cartridges were prepared by the IO which is Ex. PW1/A and the case properties were seized vide seizure memo Ex. PW1/B and the car which the accused was driving at the time of apprehension was also seized vide seizure memo Ex. PW1/C. Thereafter, tehrir was Page 14 of 16 prepared by PW2 Ex. PW2/A and the same was handed over to Ct. Naveen for the registration of FIR.
32. Perusal of the above testimonies would clearly show that the PW2 had prepared sketch of the case properties and seized the case properties before the registration of FIR. Hence, FIR number should not have been mentioned on the sketch and seizure memo i.e. Ex. PW1/A, Ex. PW1/B and Ex. PW1/C.
33. However, interestingly, perusal of these documents would show that "FIR No. 1097/15" is mentioned therein. It is very difficult to understand as to how FIR No. could be mentioned on the sketch and seizure memo when the FIR itself was not registered at the time of preparation of these documents. It appears that both PW1 and PW2 had deposed falsely in the Court at the time of his examination.
34. Also, last but not the least, the case properties i.e. pistol, live cartridges and fake registration number plate allegedly re-covered from the possession of the accused were not sealed by the IO during the course of investigation. Any case property which are recovered from the possession of the accused are sealed with the seal of IO after the same has been seized during the course of investigation. Prosecution failed to provide any explanation behind this.
35. It is true that evidence is to be weighed and not counted but in this case whatever evidence has been produced by the prosecution is not sufficient to fortify the edifice of the prosecution's case and the prosecution fails to prove all the links. In case where the prosecution has failed to prove all the links, the benefit of doubt has to be given to the accused. As such the accused deserves acquittal in the present case.
Page 15 of 16
36. Therefore, in view of the above discussions and findings, the accused Karan @ Govardhan is acquitted for the offence u/s 482/411 IPC and section 25/27 Arms Act.
Announced in the open court. (ANIMESH KUMAR)
MM-08, South West
New Delhi/07.07.2023
on 07.07.2023
It is certified that this judgment contains 16
pages and each page bears my signatures.
(ANIMESH KUMAR)
MM-08, South West
New Delhi/07.07.2023
Page 16 of 16