Delhi District Court
State vs Kapil on 6 October, 2023
IN THE COURT OF MS. APOORVA RANA, M.M-10,
DWARKA COURT (SOUTH WEST), NEW DELHI
CNR No. DLSW02-003867-2018
Cr. Case 638/2018
STATE Vs. KAPIL
FIR No. 427/2017
P.S Kapashera
06.10.2023
JUDGMENT
Case No. : 638/2018 Date of commission of offence : 17.10.2017
Date of institution of the case : 20.01.2018
Name of the complainant : SI Yaqub Khan
Name of accused and address : Kapil
S/o Lt. Sh. Davinder
R/o H. No. 364,
Gali No. 2, Bhitrla
Dana Mohalla,
Bijwasan, New
Delhi.
Offence complained of or proved : U/s 286 of IPC and Section 9B of The Explosives Act, 1884.
Plea of the accused : Pleaded not guilty Final order : Acquitted
Date when reserved for judgment : 24.08.2023 Date of judgment : 06.10.2023 State Vs. Kapil Page No.1 / 17 BRIEF STATEMENT OF THE FACTS FOR DECISION:
1. The present case pertains to prosecution of accused Kapil (hereinafter referred to as the accused), pursuant to charge sheet filed qua him under Section 286 of IPC and Section 9B of The Explosives Act, 1884 (hereinafter IPC and 'the Act' for the sake of brevity) subsequent to the investigation carried out at P.S:
Kapashera, in FIR no. 427/2017.
2. It is the case of the prosecution that on 17.10.2017, at about 09.30 p.m, at Shiv Book Depot, Street No. 2, Bijwasan, Delhi, the accused knowingly or negligently omitted to take such order with any explosive substance in his possession as is sufficient to guard against any probable danger to any human life from that substance and was found selling the explosive substance without any valid license from any appropriate authority. The same were seized by the police officials and thereafter, an FIR was registered qua the accused. After investigation, the police filed the present charge sheet against the accused for commission of offence punishable u/s 286 of IPC and Section 9B of The Explosives Act, 1884.
3. Complete set of charge sheet and other documents were supplied to the accused. After hearing the arguments, charge for offence punishable u/s 286 of IPC and Section 9B of The Explosives Act, 1884 was framed qua the accused to which he pleaded not guilty and claimed trial. Further, the accused, vide his statement u/s 294 Cr.P.C, had admitted the genuineness of copy of FIR No. 427/2017 along-with certificate u/s 65B of IEA State Vs. Kapil Page No.2 / 17 Ex. A1(colly) and DD No. 54B dated 17.10.2017 Ex. A2.
MATERIAL EVIDENCE IN BRIEF:
4. The prosecution, in support of the present case has examined four witnesses in total.
5. PW-1 was Ct. Ashok Kumar, who deposed that on 17.10.2017, at around 9.30 PM, he was on patrolling duty alongwith HC Deepak and ASI Sumer at beat no. 6 at Bijwasan. When they reached near Shiv Book Depot, they found one person selling fire crackers on a table in front of his shop and thereafter they asked him for the license for selling the aforesaid crackers. However, the accused was unable to produce any license and further acknowledged that he has no such license for selling the abovesaid crackers. Thereafter, they put the said crackers in two white kattas and weighed them and upon weighing, they were found to be weighing 28 Kg. Thereafter, the said PW deposed with respect to the investigation carried out in the present case. Through him, arrest memo was exhibited as Ex. PW1/A, personal search memo was exhibited as Ex. PW1/B and the photographs of the case property were exhibited as Ex. P1(colly).
6. PW-2 was ASI Sumer Singh, who deposed on similar lines as PW1. Through him, seizure memo was exhibited as Ex. PW2/A and site plan was exhibited as Ex. PW2/B.
7. PW3 was ASI Deepak, who also deposed on similar lines as PW1 and PW2. Through him, case property was State Vs. Kapil Page No.3 / 17 exhibited as Ex. P2, GD entry number was exhibited as Ex. P3 and the photographs of case property were exhibited as Ex. P4(colly).
8. PW4 was Inspector Yakoob Khan, who also deposed on similar lines as PW1, PW2 and PW3.
9. On account of admission of accused u/s 294 Cr.P.C, PW at serial no. 4 DO ASI Sunder Singh, as per list of prosecution witnesses were dropped from the list of prosecution witnesses and the formal proof of the documents sought to be proved by them was dispensed with.
10. No other PW was left to be examined, hence, P.E was closed.
STATEMENT OF ACCUSED U/S 313 Cr.P.C.:
11. Statement of the accused u/s 281 Cr.P.C read with Section 313 Cr.P.C. was recorded separately in which all the incriminating circumstances appearing in evidence were put to him. The accused controverted and denied the allegations levelled against him and stated that he has been falsely implicated in the case and that the alleged firecrackers/explosives were planted upon him by the police. Accused further opted to not lead evidence in his defence, hence DE was closed.
State Vs. Kapil Page No.4 / 17FINAL ARGUMENTS:
12. Ld. APP for the State has argued that prosecution witnesses have supported the prosecution case and their testimony has remained unrebutted. It has been further argued that on the combined reading of the testimony of all the prosecution witnesses, offence u/s u/s 286 of IPC and Section 9B of The Explosives Act, 1884 has been proved beyond doubt.
13. Per contra, Ld. Counsel for accused has stated that there is no legally sustainable evidence against the accused and that the accused has been falsely implicated by the police officials and the alleged recovery has been planted upon him. Arguing further, Ld. counsel has inter-alia submitted that no public witnesses were joined by the police officials during investigation and no recovery photographs were also taken on record by the investigating officer. It is further argued that due to the lacunae and incoherency in the story of the prosecution, accused be given the benefit of doubt and is therefore, entitled to be acquitted.
APPRECIATION OF EVIDENCE AND CONSEQUENT FINDINGS:
14. Arguments adduced by Ld. APP for State and Ld. Counsel for accused have been heard. The evidence and documents on record have been carefully perused.
15. I have bestowed my thoughtful consideration to the State Vs. Kapil Page No.5 / 17 rival submissions made by both the parties. Accused Kapil has been indicted for the offence u/s u/s 286 of IPC and Section 9B of The Explosives Act, 1884.
16. Section 286 IPC provides punishment to a person who does, with any explosive substance, any act so rashly or negligently as to endanger human life, or to be likely to cause hurt or injury to any other person, or knowingly or negligently omits to take such order with any explosive substance in his possession as is sufficient to guard against any probable danger to human life from that substance. Furthermore, section 9B of The Explosives Act, 1884, in relation with the conditions of license, is reproduced as follows:
"9B. Punishment for certain offences.--(1) Whoever, in contravention of rules made under section 5 or of the conditions of a licence granted under the said rules--
(a) manufactures, imports or exports any explosive shall he punishable with imprisonment for a term which may extend to three years, or with fine which may extend to five thousand rupees, or with both;
(b) possesses, uses, sells or transports any explosive shall be punishable with imprisonment for a term which may extend to two years or with fine which may extend to three thousand rupees or with both; and
(c) in any other case, with fine which may extend to one thousand rupees.
................."
17. It is trite law that the burden always lies upon the prosecution to prove its case beyond reasonable doubt on the basis of acceptable evidence and that the law does not permit the court to punish the accused on the basis of moral conviction or State Vs. Kapil Page No.6 / 17 on account of suspicion alone. Also, it is well settled that accused is entitled to the benefit of every reasonable doubt in the prosecution story and such doubt entitles him to acquittal. However, as discussed hereinafter, careful scrutiny of the evidence placed on record brings to light the fact that the case of the prosecution is fraught with multiple inconsistencies, rendering the prosecution version incredible.
i). Doubtful Seizure Memo.
18. A careful reading of the testimony of PW-1, PW-2, PW-3 and PW-4 reflects that SI Yakub Khan had seized the fire crackers vide seizure memo Ex. PW 2/A at the spot and thereafter, had prepared the rukka Ex. PW 4/A and handed over the same to Ct. Ashok, for registration of FIR. The narration of such a chronology of events leads to the irresistible conclusion that the seizure memo was prepared at the spot, prior to the rukka being sent to the police station for registration of the FIR and that the FIR was, therefore, admittedly registered after the preparation of these documents. Accordingly, it follows that the number of the FIR would have come to the knowledge of the investigating officer only after a copy of the FIR was brought to the spot by Ct. Ashok. Thus, ordinarily, the FIR number should not find mention in the seizure memo which document came into existence before registration of the FIR. However, quite surprisingly, perusal of seizure memo reflects the mentioning of the full particulars of the FIR thereupon, which fact has remained unexplained on behalf of the prosecution. It is not even the case that the same, on the face of it, appears to have been written in separate ink or at some left over space. Rather, it appears to have been recorded in same State Vs. Kapil Page No.7 / 17 continuity, handwriting and ink as rest of the contents of these documents. No explanation from the prosecution is forthcoming as to how the FIR number surfaced on a document which was prepared prior to the registration of the FIR. This fact casts a fatal doubt upon the case of prosecution.
19. At this stage, reference may be made to the decision of the Hon'ble High Court of Delhi in Lalit v. The Delhi Administration, 1989 Cri. L.J. 127, wherein it was observed in paragraph 5 as follows:
"....Learned counsel for the state concedes that immediately after the arrest of the accused, his personal search was effected and the memo Ex.PW11/D was prepared. Thereafter, the sketch plan of the knife was prepared in the presence of the witnesses. After that, the ruqa Ex.PW11/F was sent to the Police Station for the registration of the case on the basis of which the FIR, PW 11/G was recorded. The F.I.R. is numbered as 36, a copy of which was sent to the I.O. after its registration. It comes to that the number of F.I.R. 36 came to the knowledge of the I.O. after a copy of it was delivered to him at the spot by a constable. In the normal circumstances, the F.I.R. No. should not find mention in the recovery memo or the sketch plan which had come into existence before the registration of the case. However, from the perusal of the recovery memo, I find that the FIR is mentioned whereas the sketch plan does not show the number of the FIR. It is not explained as to how and under what circumstances the recovery memo came to bear the F.I.R. No. which had already come into existence before the registration of the case. These are few of the circumstances which create a doubt, in my mind, about the genuineness of the weapon of offence alleged to have been recovered from the accused."
20. Similarly, in paragraph 4 of Mohd. Hashim vs State, 82 (1999) DLT 375, the Hon'ble High Court of Delhi observed:
"...Surprisingly, the secret information (Ex. P.W. 7/A) received by the Sub-Inspector Narender Kumar Tyagi (P.W. 7), the notice under S. 50 of the Act (Ex. P.W. 5/A) alleged to have been served on the appellant, the seizure memo (Ex. P.W. 1/A) State Vs. Kapil Page No.8 / 17 and the report submitted under S. 57 of the Act (Ex. P.W. 7/D) bear the number of the FIR (Ex. P.W. 4/B). The number of the FIR (Ex. P.W. 4/B) given on the top of the aforesaid documents is in the same ink and in the same handwriting, which clearly indicates that these documents were prepared at the same time. The prosecution has not offered any explanation as to under what circumstances number of the FIR (Ex. P.W. 4/B) had appeared on the top of the aforesaid documents, which were allegedly prepared on the spot. This gives rise to two inferences that either the FIR (Ex. P.W. 4/B) was recorded prior to the alleged recovery of the contraband or number of the said FIR was inserted in these documents after its registration. In both the situations, it seriously reflects upon the veracity of the prosecution version and creates a good deal of doubt about recovery of the contraband in the manner alleged by the prosecution."
21. The aforesaid rulings of the Hon'ble High Court of Delhi squarely apply to the facts in the present case as well, which leads to only one of the either inference, that is, either the FIR was registered prior to the alleged recovery of the illicit liquor, or that the said documents were prepared later in point of time. In either of the scenarios, a dent is created in the version of the prosecution, the benefit of which must accrue to the accused.
ii). The non-joining of any independent / public witness.
22. It is evident from the record that no public witness to the recovery of the firecrackers has been either cited in the list of prosecution witnesses or has been examined by the prosecution. As per the version of PW1, some public persons were passing by near the spot at the relevant time, however no such person appears to have been made to join the investigation in the case. Further, during his cross-examination, IO was shown one person in blue T-shirt in photograph Ex.P-1/X-1 at point X and asked if he knew the said person or if the IO had made an State Vs. Kapil Page No.9 / 17 enquiry from the said person and recorded his statement. To this, the IO replied that he did not know as to who the said person was and he had not made any enquiry from or recorded the statement of the said person. Thus, it is not the case of prosecution that public witnesses were not available at the spot. However, from a perusal of the record, no serious effort for joining public witnesses appears to have been made by the investigating officer. These facts are squarely covered by the ruling of the Hon'ble High Court of Delhi in the case titled as, Anoop Joshi Vs. State"
1992 (2) C.C. Cases 314 (HC), wherein it was observed as under:
".........18. It is repeatedly laid down by this Court 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 evidence 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 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."
23. Further, in a case law reported as Roop Chand v. The State of Haryana, 1999 (1) C.L.R. 69, Hon'ble Punjab & Haryana High Court held as under:
"........The recovery of illicit liquor was effected from the possession of the petitioner during noon time and it is in the evidence of the prosecution 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 State Vs. Kapil Page No.10 / 17 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 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 names 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 IO must have proceeded against them under the relevant provision of law. The failure to do so by the police officer is suggestive of the fact that the explanation for non- joining 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."
24. This Court is conscious of the legal position that non-joining of independent witnesses cannot be the sole ground to discard or doubt the prosecution case, as has been held in Appabhai and another v. State of Gujarat, AIR 1988 SC 696. However, evidence in every case is to be sifted through in light of the varied facts and circumstances of each individual case. As observed above, the testimony of the police witnesses in the present case is not worthy of credit. In such a situation, evidence of an independent witness would have rendered the much needed corroborative value, to the otherwise uncompelling case of the prosecution, as discussed above, and hereinafter.
iii). Possibility of misuse of seal of the investigating officer.
25. As per record, after sealing the case property with seal of 'YK', the aforesaid seal was handed over to HC Deepak. However, HC Deepak was a recovery witness and had State Vs. Kapil Page No.11 / 17 apprehended the accused and was subsequently, a part of the investigation in the present case. Thus, the seal was not handed over to any independent witness. There is nothing on record to suggest that IO had made efforts to handover the seal to any independent witness. Further, no handing over memo is on record to show the genuineness of fact of actual handing over of seal by IO to HC Deepak. Also, there is no taking over memo on record to show as to when the seal was taken back from HC Deepak or if it remained with him forever. In such a factual backdrop, since the seal was given to HC Deepak, the seal remained with the police officials of the same police station and therefore, the possibility of tampering with the case property cannot be ruled out. Moreover, it is not even the case of the prosecution that the seal was not within the reach of the IO and thus, there was no scope of tampering of case property.
26. In this regard, judgment in case titled as Ramji Singh Vs. State of Haryana 2007 (3) RCR (CRIMINAL) 452, may be adverted to, wherein it was observed in paragraph 7 that:
"....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 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. In the present case, the seal of Investigating Officer-Hoshiar Singh bearing impression HS was available with Maha Singh, a junior police official and that of Deputy Superintendent of Police remained with Deputy Superintendent of Police himself. Therefore, the possibility of tampering with seals as well as seized contraband and samples cannot be ruled out."State Vs. Kapil Page No.12 / 17
27. Similarly, Hon'ble High Court of Delhi in Safiullah v. State, (1993) 49 DLT 193, had observed:
"9. ... The seal after use were kept by the police officials themselves therefore the possibility of tempering with the contents of the seealed 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 tempered with. The prosecution could have proved from the CFSL form itself and from the road certificate as to what articles were taken from the Malkahana. Once a doubt is created in the preservation of the sample the benefit of the same should go to the accused..."....
11. It is nowhere the case of the prosecution that the seal after use was handed over to the independent witness P.W.5. Even the I.O. P.W.7 does not utter a word regarding the handing over of the seal after use. Therefore, the conclusion which can be arrived at is that the seal remained with the Investigating Officer or with the other member of the raiding party therefore the possibility of interference or tempering of the seal and the contents of the parcel cannot be ruled out...."
Thus, in light of the aforesaid discussion, the possibility of misuse of seal and tampering of case property cannot be ruled out.
iv). Other infirmities in the prosecution case.
28. Furthermore, various inconsistencies have surfaced in the testimonies of the PWs examined on behalf of the prosecution, as discussed hereinafter. First and foremost, there is ambiguity as regards the fact as to how and when the various police officials had reached at the spot. On one hand, PW1 Ct. Ashok Kumar deposed that he along with HC Deepak had left for the spot on his personal motorcycle and reached there at around 9:30 PM. He also deposed that ASI Sumer had reached the spot alone and later SI Yakoob Khan had also reached there after about half an hour. On the other hand, PW2 ASI Sumer Singh deposed that he was on bike with Ct. Deepak and IO SI Yakoob Khan was on another bike along with HC Ashok and they were State Vs. Kapil Page No.13 / 17 all patrolling together on bike that day and had reached together at the spot at around 9:30 PM. Not only this, PW4 IO Inspector Yakoob Khan deposed that on the relevant day, he had left the PS at around 5:30 PM on the personal motorcycle of HC Deepak which was being driven by HC Deepak himself and that they had all reached at the spot together. However, PW3 ASI Deepak, in contrast to the above versions, deposed that he was on his personal motorcycle along with ASI Sumer and that he and ASI Sumer had reached at the spot firstly, thereafter which SI Yakoob Khan had reached the spot.
29. Furthermore, there is also discrepancy as regards the police officials who were present at the time when the measurement of the weight of the crackers was done and also as regards the circumstances under which the same was done. It is the version of the IO/PW4 that firecrackers were weighed at the spot with the help of a weighing machine which was brought at the spot by HC Sumer Singh and HC Deepak. He also deposed that at the time of weighing the fire-crackers, HC Sumer Singh and HC Deepak were present. In sharp contrast to this, PW1 deposed that the crackers were weighed with the help of a weighing machine kept at a shop adjacent to the book depot of the accused and the said measurement was carried out by IO. Not only this, PW3 ASI Deepak deposed that he did not know as to where the IO had got the weight measurement of the case property done, further adding that he had not accompanied the IO for the said purpose and only came to know about the weight of the crackers later on, when the IO told him about the same. Such material discrepancies raise doubt regarding the proceedings State Vs. Kapil Page No.14 / 17 having been conducted at the spot and also give rise to the suspicion that the same were done in a mechanical manner in the PS itself and that the accused may have been falsely implicated in the present case.
30. In addition to the above, none of the prosecution witnesses could depose about the specific details/type of crackers which were allegedly seized from the possession of the accused. In fact, during his cross-examination, PW4/IO categorically deposed that he had not prepared any inventory/list of firecrackers and could not tell as to how many types and which type of firecrackers were there. In addition to this, he also deposed that photographs Ex. P1(colly) were clicked by him from his mobile phone and that he had not annexed certificate under section 65 B of the Indian Evidence Act, 1872, in support of the same. In such circumstances, though, the said photographs have been marked as exhibits, the same are not admissible in evidence, in the absence of the aforesaid certificate (reliance placed on Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1). Even otherwise, no specific mark on the case property allegedly visible in the said photographs is apparent as would, on the face of it, establish their identity as the same firecrackers which were allegedly seized from possession of the accused. In such a scenario, how the case property was identified by the prosecution witnesses in Court during trial, remains unanswered and unexplained, thus creating a dent in the prosecution story.
State Vs. Kapil Page No.15 / 1731. In view thereof, this Court is of the humble opinion that the prosecution has miserably failed in proving that the accused was found selling firecrackers without any valid license and that the said firecrackers were seized from his possession as such. Additionally, it is the mere allegation of the prosecution that the accused was found selling the firecrackers without any license, which very fact, has not been conclusively proved by the prosecution, as discussed above. It is not even remotely the case of the prosecution that the accused was found storing or selling the firecrackers in violation of Rules 15, 84 and 85 or any other rule laid down under Explosive Rules, 2008. Other than this, there are no allegations with respect to any negligent conduct/act on the act part of the accused as would render him liable for offence under section 286 of IPC.
32. There is no gainsaying that if two reasonably probable and evenly balanced views of the evidence are possible, one must necessarily concede to the existence of a reasonable doubt. The aforementioned lacunae in the story of the prosecution render the version of the prosecution doubtful, leading to the irresistible conclusion that the burden of proving the guilt of the accused beyond reasonable doubt has not been discharged by the prosecution. Thus, this Court is of the opinion that the prosecution has failed to bring on record any cogent evidence in order to prove the commission of and guilt of the accused for offence u/s u/s 286 of IPC and Section 9B of Explosive Act, 1884 beyond reasonable doubt, thus, entitling the accused person to benefit of doubt and acquittal.
State Vs. Kapil Page No.16 / 1733. Accordingly, this Court hereby accords the benefit of doubt to the accused for the offence u/s u/s 286 of IPC and Section 9B of Explosive Act, 1884 and holds the accused not guilty of commission of the said offence. Accused Kapil is thus, acquitted of the offence u/s u/s 286 of IPC and Section 9B of Explosive Act, 1884.
34. Copy of this judgment be given free of cost to the accused.
Announced in the open court
on 06.10.2023, in presence of
accused and Ld. Counsel for
accused. Digitally signed
by APOORVA
APOORVA RANA
RANA Date:
2023.10.06
15:33:04 +0530
(APOORVA RANA)
M.M-10/Dwarka Courts/06.10.2023
It is certified that this judgment contains 17 pages, Digitally signed by all signed by the undersigned. APOORVA APOORVA RANA RANA Date: 2023.10.06 15:33:12 +0530 (APOORVA RANA) M.M-10/Dwarka Courts/06.10.2023 State Vs. Kapil Page No.17 / 17