Delhi District Court
State vs . (1). Dharam Dutt @ Bobby on 21 November, 2014
FIR No. 494/08; U/s 399/402 IPC & Sec. 25 Arms Act; P.S. S.P. Badli DOD: 21.11.2014 IN THE COURT OF SHRI VIDYA PRAKASH: ADDL. SESSIONS JUDGE04 (NORTH): ROHINI COURTS: DELHI Session Case No. 96/1/14 Unique Case ID No. 02404R0049552009 State Vs. (1). Dharam Dutt @ Bobby S/o Sh. Prem Chand R/o Village Kankar Khera, Near Shahbad Dairy, Delhi. (2). Vijay @ Rakesh @ Cartoon S/o Sh. Ram Swaroop R/o A4720, Gali No.4, Balbir Nagar, Shahdara, Delhi. (3). Vickey S/o Sh. Virender Singh R/o Village Kankar Khera, Near Shahbad Dairy, Delhi. (4). Javed @ Rohit S/o Sh. Ahmad Hussain R/o B748749, Shahbad Dairy, Delhi (5). Babu Khan S/o Latif Khan R/o D113, Gali No.9, New Seemapuri, Delhi (Declared P.O. vide order dated 21.01.2011) State V/s Dharam Dutt @ Bobby etc. (" Acquitted") Page 1 of 19 FIR No. 494/08; U/s 399/402 IPC & Sec. 25 Arms Act; P.S. S.P. Badli DOD: 21.11.2014 FIR No. : 494/08 Police Station : S.P. Badli Under Sections : 399/402 IPC & Sec. 25/54/59 Arms Act Date of committal to Sessions Court : 03.06.2009 Date on which judgment was reserved: 21.11.2014 Date on which Judgment pronounced : 21.11.2014 JUDGMENT
The facts and circumstances giving rise to the present case are that on 03.12.2008, SI Sanjay Gade(PW8) alongwith HC Rishi Ram, HC Ramesh Chand(PW7), HC Yogesh, HC Hari Chand, Ct. Prem, Ct. Devraj, Ct. Gajender(PW4), Ct. Anup and Ct. Satbir were on patrolling duty and were present near railway crossing, main Bawana Raod vide DD no. 7. At about 7.05 pm, SI Sanjay Gade received information that some boys would assemble near DTC Bus Terminal, S.P Badli, Main Bawana Raod, Delhi with intention to commit dacoity with arms and they would plan for committing the dacoity or some incident in factory of S.P Industrial Area. SI Sanjay Gade passed the said information to senior police officer who instructed him to prepare raiding party and to take necessary action. Accordingly, after sharing secret information with other members of raiding party, SI Sanjay Gade requested 56 passers by to join the raiding party but none agreed and accordingly, all the members of raiding party reached the spot where HC Ramesh Chand was asked to become shadow State V/s Dharam Dutt @ Bobby etc. (" Acquitted") Page 2 of 19 FIR No. 494/08; U/s 399/402 IPC & Sec. 25 Arms Act; P.S. S.P. Badli DOD: 21.11.2014 witness and to hear the conversation of said boys by hiding himself. SI Sanjay Gade also instructed HC Ramesh Chand to give signal by lighting the torch after revolving over his head.
It is case of prosecution that at about 8.00 P.M, HC Ramesh Chand alongwith secret informer proceeded near DTC Bus Terminal and took their positions whereas other members of raiding party were instructed to conduct raid after seeing the signal of HC Ramesh Chand.
It is alleged that at about 8.25 P.M, some boys gathered near the wall of DTC Bus Terminal and after hearing the conversation of those boys, HC Ramesh Chand gave the agreed signal on which all the members of raiding party conducted the raid and apprehended the accused persons.
It is alleged that accused Babu Khan was apprehended by police officials namely Ct. Gajender(PW4) and Ct. Dev Raj; accused Dharam Dutt @ Boby was apprehended by police officials namely Hari Chand and Ct. Arun; accused Vicky was apprehended by police official namely Ct. Prem Singh; accused Javed was apprehended by police official namely HC Yogesh and accused Rakesh @ Vijay was apprehended by police officials namely HC Ramesh Chand and Ct. Satbir Singh.
It is alleged that during the search of accused Babu Khan and Dharam Dutt, one country made pistol each alongwith one live cartridge each were recovered whereas one buttondar knife each were recovered from accused Vijay @ Rakesh and Vicky and one iron rod, surgical paper tape and plastic tape were recovered from the possession of accused Javed @ Rohit.
State V/s Dharam Dutt @ Bobby etc. (" Acquitted") Page 3 of 19 FIR No. 494/08; U/s 399/402 IPC & Sec. 25 Arms Act; P.S. S.P. Badli DOD: 21.11.2014 It is further alleged that the country made pistols and cartridges were measured and were kept in a white colour cloth and were sealed with the seal of SKG. Forms FSL were also filled up and were sealed with the seal of SKG. Likewise, both the knives were also measured and after preparing their rough sketch, their separate pullandas were prepared which were also sealed with the seal of SKG. The articles including iron rod recovered from accused Javed @ Rohit were also seized after preparing their separate pullanda which was sealed with the seal of SKG.
The motorcycle no. DL9SG 7645 recovered from the possession of accused Dharam Dutt was also seized. Thereafter, SI Sanjay Kumar Gade prepared rukka (Ex.PW8/J) and handed over the same to Ct. Gajender for registration of FIR. Accordingly, Ct. Gajender went to PS, got the FIR (Ex.PW3/A) registered through SI Surya Narain (PW3) who was working as Duty Officer at that time and came back to the spot alongwith SI Joginder (PW5), who was entrusted with further investigation.
It is further case of prosecution that SI Joginder met SI Sanjay Kumar Gade alongwith other staff members of Operation Cell Outer District. SI Sanjay Kumar Gade produced all the sealed pullandas bearing case particulars sealed with the seal of SKG alongwith FSL Forms before SI Joginder. SI Sanjay Kumar Gade also produced accused persons before SI Joginder. He also handed over motorcycle alongwith seizure memos and sketches of weapons to SI Joginder.
At the instance of SI Sanjay Kumar Gade, SI Joginder State V/s Dharam Dutt @ Bobby etc. (" Acquitted") Page 4 of 19 FIR No. 494/08; U/s 399/402 IPC & Sec. 25 Arms Act; P.S. S.P. Badli DOD: 21.11.2014 inspected the spot and prepared the site plan (Ex.PW5/B). Accused persons were interrogated and were arrested and their personal search were conducted.
On 22.12.08, exhibits were sent to FSL, Rohini through Ct. Satbir in sealed condition. SI Joginder collected the FSL result (Ex.PX) from FSL. He also obtained the sanctions (Ex.PW9/A & Ex.PW9/B) U/s 39 Arms Act against accused Dharam Dutt @ Boby and Babu Khan.
After completion of investigation, chargesheet was filed before the Court of Ld. M.M. After compliance of section 207 Cr.P.C., the case was committed to the Court of Sessions and was assigned to Ld. Predecessor of this Court.
After hearing arguments on the point of charge, Ld. Predecessor of this Court was pleased to frame the charges u/s 399/402/34 IPC against accused persons namely Dharam Dutt @ Bobby, Rakesh @ Vijay, Vicky and Javed @ Rohit and charge in respect of Sec. 25 Arms Act was framed against accused Dharam Dutt @ Bobby, Vijay @ Rakesh and Vicky vide order dated 08.03.2013 to which said accused persons pleaded not guilty and claimed trial.
In support of its case, prosecution examined ten witnesses namely PW1 Sh. Kali Charan, PW2 Ms. Mobina, PW3 SI Surya Narayan, PW4 Ct. Gajender Singh, PW5 Inspector Joginder Singh, PW6 ASI Dhanvir Chikara, PW7 HC Ramesh Chand, PW8 Inspector Sanjay Gade, State V/s Dharam Dutt @ Bobby etc. (" Acquitted") Page 5 of 19 FIR No. 494/08; U/s 399/402 IPC & Sec. 25 Arms Act; P.S. S.P. Badli DOD: 21.11.2014 PW9 Sh. B.K. Singh and PW10 HC Chander Mohan during trial.
It may be mentioned here that accused persons made joint statement during trial on 08.09.14 that there were not disputing the contents of FSL result dt. 06.02.09 given by Sh. K.C Varshney, Ballistic Expert on which the FSL result was given exhibit mark as Ex. PX.
It may also be mentioned here that on 08.09.14, Ld Additional PP dropped PWs namely HC Rishi Ram, HC Yogesh, Ct. Hari Chand, Ct. Satbir, Ct. Prem Singh, Ct. Anup Singh, Ct. Dev Raj and Dealing Clerk from the office of Deputy Secretary(Home) from the list of witnesses as the said witnesses were witnesses of repetitive facts in respect of which prosecution had already examined PW4 namely Ct. Gajender, PW7 namely HC Ramesh and PW8 namely Inspector Sanjay Gade( the then HC) during the course of trial.
Thereafter, statements U/s 313 Cr.P.C. of all the aforesaid four accused persons were recorded during which all the incriminating evidence which came on record, were put to them which they denied. All the said accused persons claimed that they are innocent and have been falsely implicated in this case. However, all the said accused persons opted not to lead any evidence towards their defence.
Before discussing the rival submissions made on behalf of both the sides, it would be appropriate to discuss, in brief, the testimonies of prosecution witnesses which have come on record. The said testimonies are detailed as under: State V/s Dharam Dutt @ Bobby etc. (" Acquitted") Page 6 of 19 FIR No. 494/08; U/s 399/402 IPC & Sec. 25 Arms Act; P.S. S.P. Badli DOD: 21.11.2014 PUBLIC WITNESSES PW1 Sh. Kalicharan: This witness deposed that on 04.12.08, he was present in his shop no. 73, DDA Market, Majnu Ka Tila when accused Vijay entered inside his shop and took out one black colour polythene containing Rs. 1,25,000/ from a box which was kept in the said shop. The amount was seized by the police vide seizure memo Ex PW1/A. He further deposed that the said accused Vijay had introduced himself as his brother in law but he had no relation with him.
The said witness has not been cross examined by accused persons despite grant of opportunity.
PW2 Ms. Mobina: This witness has not supported the case of prosecution at all. Accordingly, she was declared hostile and was cross examined by Ld Additional PP on behalf of State.
POLICE WITNESSES PW3 SI Surya Narayan: He is the Duty Officer. He has proved factum regarding registration of FIR No. 494/08. He proved computerized copy of FIR as Ex.PW3/A and his endorsement Ex.PW3/B regarding registration of FIR.
During cross examination, this witness deposed that rukka was brought by Ct. Gajender at about 11.50 pm and it took about 3035 minutes in recording the FIR. He denied the suggestion that the FIR in question was ante dated or ante timed.
PW4 Ct. Gajender Singh, PW7 HC Ramesh Chand and State V/s Dharam Dutt @ Bobby etc. (" Acquitted") Page 7 of 19 FIR No. 494/08; U/s 399/402 IPC & Sec. 25 Arms Act; P.S. S.P. Badli DOD: 21.11.2014 PW8 Inspector Sanjay Gade: All these three witnesses alognwith other police officials namely HC Rishi Kumar, HC Yogesh Kumar, Ct. Devraj, Ct. Hari Chand, Ct. Anup Singh, Ct. Prem Singh and Ct. Satbir were on patrolling duty at Badli Phatak. They deposed on identical lines during chief examination and deposed about the relevant proceedings carried out at the spot.
All these three witnesses narrated the entire sequence of facts leading to the apprehension of accused persons and recovery of arms and ammunitions from individual accused, as alleged in the charge sheet during the course of their chief examination. They had proved rough sketch of katta and cartridge recovered from accused Babu Khan, as Ex PW4/A and its seizure memo as Ex PW4/B. They also proved rough sketch of katta and cartridge recovered from accused Dharam Dutt @ Boby, as Ex PW8/A and its seizure memo as Ex PW8/B. They also proved rough sketch of knives recovered from the possession of accused Rakesh @ Vijay as Ex PW7/A and Ex PW8/E and their seizure memos as Ex PW7/B and Ex PW8/F respectively. They also proved the seizure memo of one iron rod, surgical paper tape and plastic rope as Ex PW8/G. They also proved seizure memo of motorcycle as Ex PW8/D. PW4 and PW7 also deposed about the factum regarding arrest of accused persons and the factum of their personal search being conducted by SI Joginder Singh(PW5).
The said witnesses also identified the case properties produced during trial.
State V/s Dharam Dutt @ Bobby etc. (" Acquitted") Page 8 of 19 FIR No. 494/08; U/s 399/402 IPC & Sec. 25 Arms Act; P.S. S.P. Badli DOD: 21.11.2014 All these three witnesses have been cross examined at length on behalf of accused persons.
PW5 Inspector Joginder Singh: He is the IO of this case. He also deposed on the lines of prosecution story during chief examination. He deposed about the relevant proceedings carried out by him at the spot. He proved relevant arrest memos and personal search memos claimed to have been prepared at the spot. He also deposed that he had prepared site plan Ex PW5/B at the instance of SI Sanjay Gade(PW8).
He further deposed that on 22.12.08, exhibits were sent to FSL, Rohini through Ct. Satbir. He further deposed that he also collected FSL result Ex.PX and had also obtained sanctions U/s 39 Arms Act Ex PW9/A and Ex PW9/B for prosecuting accused persons namely Babu Khan and Dharam Dutt @ Boby for offence U/s 25 Arms Act.
PW6 ASI Dhanvir Chhikara: This witness deposed that on 03.12.08, he was working as DD Writer in the office of Special Staff(OD) Rohini. He deposed about the factum regarding departure of police officials namely SI Sanjay Gade alongwith other staff of Special Staff vide DD No. 7 and proved copy thereof as Ex PW6/A. This witness has not been cross examined by accused persons despite grant of opportunity.
PW9 Sh. B.K. Singh: This witness had accorded sanction U/s 39 Arms Act on 08.04. for prosecution of accused Babu Khan, Dharam Dutt for offence U/s 25 Arms Act. The said witness had proved the said sanctions as Ex PW9/A and Ex PW9/B. State V/s Dharam Dutt @ Bobby etc. (" Acquitted") Page 9 of 19 FIR No. 494/08; U/s 399/402 IPC & Sec. 25 Arms Act; P.S. S.P. Badli DOD: 21.11.2014 This witness has not been cross examined by accused persons despite grant of opportunity.
PW10 HC Chander Mohan: This witness was working as MHC(M) in PS S.P. Badli during the relevant period. He deposed about the deposit of exhibits of this case by SI Sanjay Kumar of Operation Cell, Outer District in Malkhana on 03.12.08 and on 04.12.08. He proved the relevant entries of register no. 19 regarding deposit of case property in Malkhana on 03.012.08 and on 04.12.08 as Ex PW10/A and Ex PW10/B. He also deposed that the case property containing katta and cartridge was got deposited in FSL Rohini through Ct. Satbir on 22.12.08 vide RC no. 178/21/08 and proved copy thereof as Ex PW10/C. This witness has not been cross examined by accused persons despite grant of opportunity.
ARGUMENTS ADVANCED AND CASE LAW CITED While opening the arguments, Ld. Addl. PP submitted that all the police witnesses examined during trial, have fully supported the case of prosecution on all material points and accused could not impeach their testimonies during cross examination. Hence, the prosecution has been able to establish its case against them beyond reasonable doubt. He further submitted that there has been recovery of arms and ammunitions from the possession of accused persons namely Dharam Dutt @ Boby, Babu Khan, Vicky and Rakesh @ Vijay at the time of their apprehension and since the possession of those arms and ammunitions was in violation of relevant State V/s Dharam Dutt @ Bobby etc. (" Acquitted") Page 10 of 19 FIR No. 494/08; U/s 399/402 IPC & Sec. 25 Arms Act; P.S. S.P. Badli DOD: 21.11.2014 Notification issued by Delhi Administration and said two accused persons could not produce any license to possess country made pistols, knives and live cartridges, offence U/s 25 Arms Act has also been proved against them beyond shadow of doubt.
Per contra, ld. defence counsels vehemently argued that prosecution has not been able to establish the charges against the accused persons in this case. They contended that there are contradictions appearing in the testimonies of witnesses examined during trial. They also assailed the case of prosecution by submitting that no independent witness had been joined during proceedings despite their availability at or near the spot. In this regard, they also referred to the relevant portions of the testimonies of PW4, PW7 and PW8 wherein they have admitted that public persons were present near the spot not only at the time of apprehension of accused persons but also even prior thereto.
It is an admitted case of prosecution that there was DTC Bus Stand situated at a distance of 1015 feet from the place of apprehension of accused persons. Not only this, PW7 has also claimed during cross examination that IO had stopped 34 vehicles and requested vehicle owners to join the proceedings but none agreed. However, no sincere effort whatsoever is shown to have been made by police officials to join any person who may be present at DTC Bus Stand or any other on looker or passerby who was present near the spot, either in the raiding party or during the entire proceedings claimed to have been carried out at the spot.
Although, it has been claimed by the aforesaid three police State V/s Dharam Dutt @ Bobby etc. (" Acquitted") Page 11 of 19 FIR No. 494/08; U/s 399/402 IPC & Sec. 25 Arms Act; P.S. S.P. Badli DOD: 21.11.2014 witnesses i.e. PW4, PW7 and PW8 who were allegedly part of the raiding team, that PW8 SI Sanjay Gade had requested 56 passers by to join the raiding party but none agreed and all of them had left the spot by showing their inability and without disclosing their names and addresses. However, the said claim is nothing but mechanical excuses given by police officials in order to cover up their own lapse besides trying to fill up lacunae in the case of prosecution. Same is manifestly clear from the fact that no written notice was served upon any of those public persons for joining the proceedings and no legal action is shown to have been taken against any of them for his/her refusal to join the investigation as claimed by these police witnesses. It is important to note that there was no possibility of accused persons having escaped from the clutches of police officials due to which effort could not have been made to join public witnesses or to serve them notices after apprehension of accused persons in this case.
In a case law reported as Anoop Joshi v/s State, 1992 (2) C.C. Cases 314 (HC), 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 raiding party to witness the recovery being made from the appellant. In case any of the shopkeepers had State V/s Dharam Dutt @ Bobby etc. (" Acquitted") Page 12 of 19 FIR No. 494/08; U/s 399/402 IPC & Sec. 25 Arms Act; P.S. S.P. Badli DOD: 21.11.2014 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."
In a case law reported as Roop Chand v/s The State of Haryana, 1999(1) C.L.R 69, Hon'ble Punjab & Haryana High Court held as under:
3. I have heard the learned counsel for the parties and gone through the evidence with their help. The recovery of illicit liquor was effected from the possession of the petitioner during noon time and it is in the evidence of the petitioner witnesses that some witnesses from the public were available and they were asked to join the investigation. The explanation furnished by the prosecution is that the independent witnesses were asked to join the investigation but they refused to do so on the ground that their joining will result into enmity between them and the petitioner.
4. It is well settled principle of the law that the Investigating Agency should join independent witnesses at the time of recovery of contraband articles, if they are available and their failure to do so in such a situation casts a shadow of doubt on the prosecution case. In the present case also admittedly the independent witnesses were available at the time of recovery but they State V/s Dharam Dutt @ Bobby etc. (" Acquitted") Page 13 of 19 FIR No. 494/08; U/s 399/402 IPC & Sec. 25 Arms Act; P.S. S.P. Badli DOD: 21.11.2014 refused to associate themselves in the investigation. This explanation does not inspire confidence because the police officials who are the only witnesses examined in the case have not given the name and addresses of the persons contacted to join. It is a very common excuse that the witnesses from the public refused to join the investigation. A police officer conducting investigation of a crime is entitled to ask anybody to join the investigation and on refusal by a person from the public the investigating Officer can take action against such a person under the law. Had it been a fact that the witnesses from the public had refused to join the investigation, the Investigating Officer must have proceeded against them under the relevant provisions of law. The failure to do so by the police officer is suggestive of the fact that the explanation for nonjoining the witnesses from the public is an after thought and is not worthy of credence. All these facts taken together make the prosecution case highly doubtful."
In case law reported as Sadhu Singh v/s State of Punjab, 1997(3) Crimes 55, Hon'ble Punjab & Haryana High Court observed as under:
5.In a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubts.
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 State V/s Dharam Dutt @ Bobby etc. (" Acquitted") Page 14 of 19 FIR No. 494/08; U/s 399/402 IPC & Sec. 25 Arms Act; P.S. S.P. Badli DOD: 21.11.2014 to go to the accused.
In the present case, the State examined two witnesses namely, Harbans Singh ASI who appeared as PW1 and Kartar Singh PW2. Both the witnesses supported the prosecution version in terms of the recovery of opium from the person of the petitioner, but there was no public witness who had joined. It is not necessary in such recoveries that public witnesses must be joined, but attempt must be made to join the public witnesses. There can be cases when public witnesses are reluctant to join or are not available. All the same, the prosecution must show a genuine attempt having been made to join a public witness or that they were not available. A stereotype statement of non availability will not be sufficient particularly when at the relevant time, it was not difficult to procure the service of public witness. This reflects adversely on the prosecution version.
Moreover, seal all along remained in possession of police witnesses and thus, possibility of tampering of the case property cannot be ruled out. It has been admitted by PW7 HC Ramesh Chand during his cross examination that no handing over memo of seal was prepared at the spot.
There are various contradictions appearing in the testimonies of police witnesses examined during trial.
Firstly, PW4 Ct. Gajender deposed during cross examination that he was not aware if RC of any vehicle was recovered from any of the State V/s Dharam Dutt @ Bobby etc. (" Acquitted") Page 15 of 19 FIR No. 494/08; U/s 399/402 IPC & Sec. 25 Arms Act; P.S. S.P. Badli DOD: 21.11.2014 accused persons which is contrary to the case of prosecution besides being contrary to the testimony of PW8 SI Sanjay Gade who deposed that accused Dharam Dutt had produced RC of motorcycle no. DL9SG7645, at the spot itself.
Secondly, PW4 Ct. Gajender deposed that rough site plan was prepared by pencil which is neither the case of prosecution nor deposed by IO i.e PW5 Inspector Joginder ( the then SI). Moreover, the site plan Ex PW5/B as available on record, would show that it has been prepared with the help of pen.
Thirdly, as per the prosecution story police official namely HC Ramesh Chand(PW7) had over heard the conversation of accused persons. Not only this, it is specifically alleged as to what sort of conversation took place between accused Dharam Dutt @ Boby and other accused persons. However, the entire prosecution story on this aspect, got demolished during cross examination of PW7 HC Ramesh Chand wherein he admitted that there was boundary wall around the said bus terminal and he had heard the conversation from a distance of about 56 meters. It does not stand to reason as to why the accused persons would converse with each other in such high volume when they were preparing to commit dacoity and in such a manner so that their conversation may be clearly and easily heard by someone hiding or concealing in nearby place. Rather, the natural conduct would be that the offenders who are conspiring to commit dacoity, would firstly ensure their safety by giving a look all around the place where they have assembled before talking about secret conversation. State V/s Dharam Dutt @ Bobby etc. (" Acquitted") Page 16 of 19 FIR No. 494/08; U/s 399/402 IPC & Sec. 25 Arms Act; P.S. S.P. Badli DOD: 21.11.2014 In some what similar facts & circumstances in a case U/s 399/402 IPC, it has been held by Hon'ble Allahabad High Court in the judgment reported at 2003 CR.L.J. 1321 that it is not digestible that the appellants and their associates would have been talking at such pitch of voice as to the clearly audible by the police party concealing nearby.
In another matter reported at 2005 Cr.L.J. 185, the accused/ appellants were charged with offences U/s 399/402 IPC and the facts of the case were almost similar to the facts of the present case as it was also claimed in the said case that accused/appellants were apprehended by police officials after giving them a chase. In this backdrop, it has been held by Hon'ble Allahabad High Court that it does not appear to be natural that no injury could take place on either side and four of the miscreants were arrested, fire arms and cartridges were recovered from their possession.
Not only this, he admitted that he did not enter inside said bus terminal for hearing their conversation and also that the boundary wall of bus terminal was having height. That being so, it is not understandable as to how it was possible for said witness to hear the conversation amongst the accused persons and it was next to impossible for this witness to know about the fact that it was accused Dharam Dutt @ Boby who had been issuing instructions to co accused persons when he did not had the occasion to see their faces while hearing the conversation.
It has also not been explained by the prosecution witnesses as to why none of them made any effort to take photographs of the place State V/s Dharam Dutt @ Bobby etc. (" Acquitted") Page 17 of 19 FIR No. 494/08; U/s 399/402 IPC & Sec. 25 Arms Act; P.S. S.P. Badli DOD: 21.11.2014 where accused persons were sitting and were allegedly conspiring to commit dacoity. Not only this, they also did not make any effort to videograph the said place before actually conducting the raid. It has not been explained by prosecution witnesses as to what prevented them to do so when it could have been done by them.
Moreover, the prosecution witnesses examined during trial failed to prove that there was any overt act on the part of any of the accused persons which may lead to the inference that they had any intention to commit dacoity or they were planning to commit dacoity over there.
Court also finds considerable force in the argument raised by ld. defence counsel that accused persons did not even resist before police officials when they apprehended them as admitted by relevant prosecution witnesses during their respective cross examination. It is a matter of common knowledge that any person who is in possession of illegal arms and ammunitions, would definitely resist his/her apprehension by police officials under the fear of being booked in criminal case. In this backdrop, the story as set up in the charge sheet seems flimsy and does not appeal to reasoning.
Moreover, the prosecution has failed to lead any cogent evidence which may even suggest that there was any intention on the part of accused persons to commit dacoity. In the matter reported at 1979 SCC (Cri.) 502, Hon'ble Apex Court has observed that the near fact that accused persons were found present at particular place, does not by itself prove that they had assembled for the purpose of committing dacoity or for making State V/s Dharam Dutt @ Bobby etc. (" Acquitted") Page 18 of 19 FIR No. 494/08; U/s 399/402 IPC & Sec. 25 Arms Act; P.S. S.P. Badli DOD: 21.11.2014 preparation to accomplish that object.
In another matter reported at 1978 Cr.L.J. 877, it has been held by Hon'ble Patna High Court that no conviction U/s 399 or 402 IPC can be recorded simply on the basis that a certain number of persons, some being armed, are apprehended at the platform of a railway station. The prosecution has to establish that they had assembled there for committing dacoity or were preparing to commit dacoity.
Similar view has been taken by our own High Court in the judgment reported at 2000 Cr.L.J. 2083.
In the light of aforesaid discussion, Court is of the considered view that the prosecution has failed to establish the charges levelled against all the accused persons beyond shadow of doubt. Consequently, all four accused persons namely Dharam Dutt @ Bobby, Vijay @ Rakesh @ Cartoon, Vicky and Javed @ Rohit are acquitted of the charges levelled against them by giving them benefit of doubt. However, case property be confiscated to the State. File be consigned to Record Room after compliance of Section 437A Cr.P.C with liberty to revive the same in the event of arrest of accused Babu Khan at any subsequent point of time, as per the rules.
Announced in open Court today
dt. 21.11.2014 (Vidya Prakash)
Additional Sessions Judge04 (North)
Rohini Courts, Delhi
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