Delhi District Court
State vs Rajan Kaushik on 14 August, 2024
IN THE COURT OF JUDICIAL MAGISTRATE FIRST CLASS-03,
NORTH, ROHINI COURTS, NEW DELHI
Presided over by - Sh. Himanshu Sehloth, DJS
Cr. Case no. : 5307/2019
Unique Case ID no. : DLNT020106432019
FIR No. : 387/2018
Police Station : KNK Marg
Sections(s) : 286 IPC & 9B of Explosive Act
In the matter of -
STATE
VS.
Rajan Kaushik
S/o late Sh. Jeevan Prabhat ................Accused
Cr. Case 5307/2019 State Vs. Rajan Kaushik
1. Name of the Complainant : Ct. Ravinder
2. Name of Accused : Rajan Kaushik S/o late Sh. Jeevan
Prabhat
3. Offence complained of or : 286 IPC & 9B Explosive Act.
proved
4. Plea of Accused : Not guilty
5. Date of commission of : 07.11.2018
offence
6. Date of Filing of case : 09.10.2019
7. Date of Reserving Order : 24.07.2024
8. Date of Pronouncement : 14.08.2024
9. Final Order : Acquittal
BRIEF STATEMNT OF REASONS FOR THE DECISION:-
FACTUAL MATRIX-
1. The accused Rajan Kaushik is facing trial for offence u/s 286 IPC and 9B
Explosives Act.
2. Stated succinctly, the facts germane for the case of the prosecution are
that on 07-11-2018, at about 12:05 am, within the jurisdiction of PS KNK Marg,
the accused was found in possession of fire crackers as mentioned in the seizure
memo, which he had kept in his possession without having any license or
permit. Further, by doing such an act he omitted to take such an order with
explosive substances, so as to endanger human life or to be likely to cause hurt
or injury to any person and was subsequently charged with offence u/s 286 IPC
and 9B Explosives Act.
Cr. Case 5307/2019 State Vs. Rajan Kaushik
3. Cognizance was taken on 09-10-2019 and the accused entered appearance
on 31-01-2020 and provisions of Section 207 Cr.P.C. were complied with.
Charges u/s 286 IPC and 9B Explosives Act were framed and read over to the
accused, in Hindi, on 31-01-2020 to which he pleaded not guilty and claimed to
be tried.
4. The prosecution, in order to prove the case beyond all reasonable doubt,
examined five witnesses in support of its case during the course of trial.
5. Evidence on behalf of the prosecution was closed vide order dated 16-01-
2024 and the accused was examined u/s 313 Cr.P.C. on 05-04-2024 wherein he
chose not to lead DE. The matter was fixed for Judgement vide order dated 12-
07-2024.
APPRECIATION OF EVIDENCE
6. The primary issue to be decided in the present case is whether the
prosecution has been able to prove its case against the accused beyond all
reasonable doubt i.e. whether the accused was found in the possession of fire
crackers in contravention of Explosives Act and his act endangered or was likely
to hurt or injure any person or human life.
7. It is imperative for the prosecution to successfully establish the recovery
of the said alleged articles from the possession of the accused. It is only after the
prosecution has proved the possession of the alleged articles by the accused, that
the accused can be called upon to account for the same. However, for the
reasons mentioned hereinafter the prosecution has failed to establish beyond
reasonable doubt that the accused was found in possession of the alleged
explosives/fire crackers.
Cr. Case 5307/2019 State Vs. Rajan Kaushik
8. In the present case, no public witness has been examined on behalf of the
prosecution in order to assuage its claim. The recovery is alleged to have been
done at a market, as envisaged also from the site map, and as per the
examination of PW1 as well as PW3 and PW4, public persons were readily
available at the time when the accused was apprehended, however, they were not
included as witnesses in the investigation.
9. Moreover, while PW4 has stated in his cross-examination that he did not
give notice to any person to join the investigation. From a perusal of the record,
no serious effort for joining public witnesses appears to have been made. PW4
stated when he opened the shutter, 2-3 people were present but they escaped
whereas PW3 stated that when the shutter was opened, only the accused was
inside the shop. There is nothing on record to show that PW4 had served any
notice u/s 160 Cr.P.C. on the public persons who were present at the time when
the seizure was affected. The failure to make conscious and serious efforts to
give adequate notice to public witnesses is amplified in view of the statuary duty
which is imposed u/s 100(4) Cr.P.C. to call upon two respectable persons of the
locality to join the search. However, no such notice was served, thereby raising a
doubt on the case of the prosecution.
10. Reliance in this regard is placed on paragraph 6 of the judgment in Pawan
Kumar v. Delhi Administration 1989 Cri.L.J. 127, wherein the Hon'ble High
Court of Delhi had observed as under:
" ... According to Jagbir Singh, he did not join any public witness in
the case while according to Kalam Singh, no public person was
present there.
It hardly stands to reason that at a place like a bus stop near Subhas
Bazar, there would be no person present at a crucial time like 07.30
p.m. when there is a lot of rush of commuters for boarding the buses
to their respective destinations. Admittedly, there is no impediment in
Cr. Case 5307/2019 State Vs. Rajan Kaushik
believing the version of the Police officials but for that the
prosecution has to lay a good foundation. At least one of them should
deposed that they tried to contact the public witnesses or that they
refused to join the investigation. Here is a case where no effort was
made to join any public witness even though number of them were
present. No plausible explanation from the side of the prosecution is
forthcoming for not joining the independent witnesses in a case of
serious nature like the present one. It may be that there is an apathy
on the part of the general public to associate themselves with the
Police raids or the recoveries but that apart, at least the I.O. should
have made an earnest effort to join the independent witnesses. No
attempt in this direction appears to have been made and this, by
itself, is a circumstance throwing doubt on the arrest or the recovery
of the knife from the person of the accused."
11. The same has been reiterated in "Anoop Joshi Vs. State" 1992(2) C.C.
Cases 314(HC), wherein it had been observed by Hon'ble High Court of Delhi
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".
12. Similarly in in a case law reported as "Roop Chand Vs. The State of
Haryana" 1999 (1) C.L.R. 69, the 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
Cr. Case 5307/2019 State Vs. Rajan Kaushik
was affected from the possession of the petitioner during noon time
and it is in the evidence of the prosecution witnesses that some
witnesses form 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 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 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 afterthought and is not worthy of
credence. All these facts taken together make the prosecution case
highly doubtful".
13. Similarly, in "Sadhu Singh Vs. State of Punjab" 1997 (3) Crime 55 the
Punjab & Haryana High Court had 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 to go to the accused". "6. In the present case, the
Cr. Case 5307/2019 State Vs. Rajan Kaushik
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
nonavailability 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".
14. This Court is, however, conscious that the prosecution case cannot be
thrown out or doubted on the sole ground of non-joining of public witnesses as
public witnesses keep themselves away from the Court unless it is inevitable, as
has been held in Appabhai and another v. State of Gujarat, AIR 1988 SC
696. However, in the present case, it is not only the absence of public witnesses
which raises a doubt on the prosecution but there are other circumstances too, as
discussed hereinafter, which raise suspicion over the prosecution version.
15. The arrival or departure entry has not been proved in the present case,
recording of which is a statutory duty cast on the police officials. It would be
prudent to reproduce Chapter 22 Rule 49 of the Punjab Police Rules, 1934,
which reads as under:
"22.49 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
Cr. Case 5307/2019 State Vs. Rajan Kaushik
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."
16. In the present case, the non-proof of entries assumes more significance in
view of the fact that no public person was portrayed as a witness on behalf of the
prosecution. At this juncture, it would be relevant to refer to a case law reported
as "Rattan Lal Vs. State" 1987 (2) Crimes 29, wherein the Delhi High Court
has observed 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 & thus the matter has to be viewed by the court with suspicion, if
the necessary provisions of law are not strictly complied with and then it can at
least be said that it was so done with an oblique motive. This failure of the
prosecution to bring on record & prove the relevant DD entry as discussed above
creates a reasonable doubt in the prosecution version and attributes oblique
motive on to the actions of the members of the raiding party.
17. Moreover, nowhere in the tehrir, it is mentioned that after the
apprehension of the accused, but before taking the formal/casual search of the
accused persons, the police officials including the members of the raiding party,
any of them had offered their own search to the accused persons, meaning
thereby, that it has not been proved on record that the said police officials, who
had effected the apprehension of the accused persons had offered themselves for
search by the accused persons or to any other member of public before
conducting the search of the accused persons so as to obviate the possibility of
the planting of the case property on to the accused persons.
Cr. Case 5307/2019 State Vs. Rajan Kaushik
18. At this juncture, it would be appropriate to refer to the judgment of Orissa
High Court reported as "Rabindernath Prusty Vs. State of Orissa" wherein it
was held as under:
"10. The next part of the prosecution case is relating to the search
and recovery of Rs. 500/ from the accused. One of the formalities
that has to be observed in searching a person in that the searching
Officer and others assisting him should give their personal search
to the accused before searching the person of the accused. (See
AIR 1969 SC 53 : (1969 Cri. L.J. 279), State of Bihar Vs. Kapil
Singh). This rule is meant to avoid the possibility of implanting the
object which was brought out by the search. There is no evidence
on record whatsoever that the raiding party gave their personal
search to the accused before the latter's person was searched.
Besides the above, it is in the evidence of PWs 2 & 5 that the
accused wanted to know the reason for which his person was to be
searched and the reason for such search was not intimated to the
accused. No independent witness had witnessed the search. In the
above premises, my conclusion is that the search was illegal and
consequently the conviction based thereon is also vitiated".
19. In view of the above observations and discussion, this Court is of the
considered opinion that the prosecution had failed to discharge its burden of
proving its case against the accused. It is well settled that the burden which lies
on the prosecution is to prove the case beyond all reasonable doubt and not
merely on the preponderance of probabilities. The case of the prosecution must
stand on its own two legs. Reliance in this regard is placed on the judgment
titled as "S.L.Goswami v. State of M.P" reported as 1972 CRI.L.J.511(SC)
wherein the Hon'ble Supreme Court held:-
"...... In our view, the onus to proving all the ingredients of an
offence is always upon the prosecution and at no stage does it shift
to the accused. It is no part of the prosecution duty to somehow
hook the crook. Even in cases where the defence of the accused
does not appear to be credible or is palpably false that burden does
Cr. Case 5307/2019 State Vs. Rajan Kaushik
not become any the less. It is only when this burden is discharged
that it will be for the accused to explain or controvert the essential
elements in the prosecution case, which would negative it. It is not
however for the accused even at the initial stage to prove
something which has to be eliminated by the prosecution to
establish the ingredients of the offence with which he is charged,
and even if the onus shifts upon the accused and the accused has to
establish his plea, the standard of proof is not the same as that
which rests upon the prosecution..........................."
20. Furthermore, another material consideration which ought to be considered
in the present case is that the seized property was sealed with the seal of the I.O.
'VK. PW4/IO stated that he did not prepare any seal handing over memo The
possibility of misuse of the seal in the present case cannot be ruled out since the
same was not handed over to an independent witness nor was the same
deposited in the Malkhana. Further, PW4 stated that weighing machine was
brought by PW3 Ct. Ravinder to take total weight of the fire crackers. PW3 has
denied in his cross-examination that he brought the weighing machine and had
stated that same was arranged by the IO. PW3 also could not state the names of
the police officials present at the spot. Further, PW3 stated that weighing
machine was brought to the spot, whereas, PW4 stated in his cross-examination
that weighing was done at the PS. It is pertinent to mention here that PW3
deposed that the site plan Ex. PW3/C did not bear his signatures. PW4 stated
that there was no witness to the site plan and it was prepared at his own behest.
These facts raise apprehension of planting of the case property especially in light
of want of arrival/departure entries, seal handing over memo and non-joining of
public persons.
21. The onus and duty to prove the case against the accused is upon the
prosecution and the prosecution must establish the charge beyond reasonable
Cr. Case 5307/2019 State Vs. Rajan Kaushik
doubt. It is also a cardinal principle of criminal jurisprudence that if there is a
reasonable doubt with regard to the guilt of the accused the accused is entitled to
benefit of doubt resulting in acquittal of the accused. Reference may also be
made to the judgment titled as Nallapati Sivaiah v. Sub Divisional Officer,
Guntur reported as VIII(2007) SLT 454(SC).
22. In light of the discussion, in the opinion of the court, the prosecution has
failed to prove that the accused was in possession of the fire crackers or did any
negligent act which was likely to cause harm or injury to any person or human
life, beyond reasonable doubt. Accused Rajan Kaushik is hereby acquitted of the
offence punishable under u/s 286 IPC and 9B Explosives Act.
23. File be consigned to record room.
ORDER:ACQUITTED Pronounced in open court on 14.08.2024 in presence of the accused person. This judgment contains 11 pages and each page has been signed by the undersigned. HIMANSHU by Digitally signed HIMANSHU SEHLOTH SEHLOTH Date: 2024.08.14 16:05:31 +0530 (HIMANSHU SEHLOTH) JMFC-03 / North / Rohini Courts 14.08.2024.
Cr. Case 5307/2019 State Vs. Rajan Kaushik