Delhi District Court
State vs . Samsuddin & Others on 11 March, 2013
FIR No. 311/2001
P.S.: Gokalpuri
U/s: 292/34 IPC
IN THE COURT OF SH. JITENDRA SINGH, METROPOLITAN
MAGISTRATE, NORTHEAST- 04, KARKARDOOMA COURTS,
DELHI
State Vs. Samsuddin & others
FIR No.: 311/01
P.S.: Gokalpuri
U/S: 292/34 IPC
JUDGMENT
1. S. No. of the Case : 306/01 2. Date of Commission of Offence : 27.08.2001 3. Date of institution of the case : 03.12.2001 4. Name of the complainant : ASI Raj Pal Sharma
5. Name of accused, parentage & address. : (1) Mohd. Samsuddin S/o Sh.
Maqbool Ahmad, R/o; H.No. 241, Gali No. 3, Moonga Nagar, Gokalpuri, Delhi.
(2)Mujahid S/o Sh. TanvirAhmad, R/o; H.No. 1157, Punjabi Phatak Wali Mazid, Delhi. (Proceedings has already been abated vide order dated 07.06.2012.)
6. Offence complained or proved : U/s. 292/34 IPC
7. Plea of Accused : Pleaded Not Guilty.
8. Final Order : Acquitted
9. Date of Final Order : 11.03.2013 JUDGMENT 11.03.2013 Page 1 of 17 of Pages FIR No. 311/2001 P.S.: Gokalpuri U/s: 292/34 IPC
1. Accused Samsuddin S/o Sh. Maqbool Ahmad and Muzahid S/o Sh. Tanvir Ahmed have been sent up to face trial for offence under Section 292/34 IPC with the allegations that on 27.08.2001, at about 2.45 p.m. at H.No. A9, Gali No. 1, Nehru Vihar, Delhi within the jurisdiction of P.S. Gokalpuri, the accused persons were found in possession of obscene books and as such had allegedly committed the offence under Section 292/34 IPC. After usual investigation, the charge sheet was filed in the court on 03.12.2001 and provisions of Section 207 Cr. P.C were completed on 09.05.2002.
2. Vide order dated 03.04.2003, the accused persons were charged for offence under Section 292/34 IPC, to which the accused persons pleaded "Not Guilty" & claimed trial.
3. During trial accused namely Muzahid S/o Sh. Tanvir Ahmed has expired and proceedings against him was abated vide order dated 07.06.2013.
4. In order to substantiate the charge, prosecution had examined 4 witnesses in total.
PW-1, HC Om Parkash, Belt No. 162/NE , who had deposed that on 27.08.2001, he was the duty officer at P.S. Gokalpuri from 4.00 p.m. to 12.00 night, where on the said date, PW2 (Ct. Anil Kumar) brought a tehrir/rukka, 11.03.2013 Page 2 of 17 of Pages FIR No. 311/2001 P.S.: Gokalpuri U/s: 292/34 IPC whereafter the present FIR was lodged. The FIR in question which was lodged was proved as Ex. PW1/A. PW2, Ct. Anil Kumar, Belt No. 586/President House, who had deposed that on 27.08.2001, he was posted at AATS NorthEast. ASI Raj Pal received an information through secret informer that obscene books are lying in the house of Master Samsuddin at Nehru Vihar, Delhi and after receiving the said information, a raiding party was constituted consisting of himself, HC Sahid Ali, HC Har Pal, Ct. Ram Bir and Ct. Sukh Ram Pal and ASI Raj Pal. PW2 deposed that thereafter that they went at Nehru Vihar at the corner of Gali No. 1. IO ASI Raj Pal asked some public persons to join the raiding party and one of them agreed to do so. PW2 further deposed that thereafter, they raided the house no. A9, Gali No. 1, Nehru Vihar, there was only one room and one person was found sitting there and books which were in bundles (28 bundles on which Kunwara was written, 26 bundles of books Saajan Chale Sasural and 25 of Aur Pyar Ho Gaya) and in each bundle about 50 to 60 books were tied. PW2 further deposed that IO had seen the books and found that obscene literature were in it and books were put in bora's and bora's were sealed with the seal of RPS. PW2 further deposed that before sealing the books, three books were taken out and same are on record Ex. PW2/A and PW2/B. PW2 further deposed that on record, book titled Kunwara is not on record and the case property was taken into police possession vide memo Ex. PW2/C. PW2 further deposed that IO prepared rukka and he got 11.03.2013 Page 3 of 17 of Pages FIR No. 311/2001 P.S.: Gokalpuri U/s: 292/34 IPC registered the case at PS and after getting case registered, he had handed over the copy of FIR and original rukka/tehrir to IO. PW2 further deposed that during course of interrogation, the accused made disclosure statement Ex. PW4/D and accused was arrested vide arrest memo Ex. PW2/E. His personal search was also conducted vide memo Ex. PW2/F. PW2 further deposed that thereafter, accused was released on police bail. PW2 further deposed that his statement was recorded to this effect.
PW3, Ct. Rambir Singh, No. 317/DRP, who had deposed that on 27.08.2001, he was posted at AATS/NE and on that day, he alongwith ASI Raj Pal, HC Sahid, HC Har Pal, Ct. Sukram and Ct. Anil Kumar (PW2) were present at AATS Office situated at New Zafrabad. PW3 deposed that ASI Raj Pal received a secret information through secret informer that one person namely Shamsuddin, who resides at Gali No. 1, A9, Nehru Vihar and obscene books were lying in that house and he may be arrested alonbgwith the books if raided. PW3 further deposed that thereafter, the intimation was given to Inspector AATS regarding this information and thereafter, ASI Raj Pal constituted a raiding party comprising himself and abovesaid police officials. PW3 further deposed that they left their office at about 2.15 PM and reached at the corner of Gali No. 1, Nehru Vihar, there ASI Raj Pal asked 4/5 public persons to join the raiding party, but nobody joined it and they left without disclosing their names and addresses. PW3 further deposed that thereafter, 11.03.2013 Page 4 of 17 of Pages FIR No. 311/2001 P.S.: Gokalpuri U/s: 292/34 IPC they raided House No. A9, Gali No. 1, Nehru Vihar and in that house there was only one room and accused Shamsuddin was present there and bundles of books were there of different three types of books. PW3 further deposed before the court that IO counted those bundles and on counting it were found 28 Pyar Ho Gaya and obscene pictures and language were in those books and thereafter, out of those bundles IO had taken out one book from each three types of books (three books) were taken out for sample and remaining case property i.e. bundles which were put in 13 boras and boras were sealed with the seal of RPS and after sealing the case property the seal was handed over to HC Shahid and taken into possession vide seizure memo, Ex. PW2/C. PW3 further deposed that IO prepared tehrir/rukka and sent it it PS through Ct. Anil Kumar (PW2). Subsequently, Ct. Anil Kumar (PW2) came back at the spot alongwith carbon copy of FIR and rukka. PW3 further deposed that IO prepared site plan and accused was arrested and his personal search was also conducted and accused Shamsuddin was interrogated and during the course of interrogation he made disclosure statement Ex. PW2/D. PW3 further deposed that thereafter, the accused was released on police bail and case property was deposited in Malkhana. PW3 further deposed that on the next day i.e. 28.08.2001, he again join the investigation of the present case with the IO and they went at the printing press situated at V26, Gali No. 27, Vijay Park, Mauj Pur, Delhi, where they entered into the said printing press, there the bundles of obscene literature (sheets) were lying in the room. PW3 further deposed that 11.03.2013 Page 5 of 17 of Pages FIR No. 311/2001 P.S.: Gokalpuri U/s: 292/34 IPC bundles were counted and on counting it found 41 bundles (each bundle having 500 sheets) and all the bundles were put in 12 boras. PW3 further deposed that boras (12) were sealed with the seal of RPS and accused was handed over to HC Har Pal and taken into possession vide memo Ex. PW3/A. PW3 further deposed that the said premise was belonging to one Muzahid, but at that time, he was not present there and premises was lying open.
The said witness was cross examined on behalf of the Ld. counsel for defence.
5. The other witness of prosecution was PW4, HC Har Pal Singh, who had deposed that on 28.08.2001, he was posted with AATS/NE and on that day, he joined investigation of the present case alongwith ASI Rajpal, Ct. Anil and Ct. Rambir and they reached at V26, Gali No. 27, Vijay Park, Maujpur, Delhi, there the door of the house was opened and they entered into the house. PW4 deposed that there they found sheets of bundles of obscene literature ans thereafter ASI Raj Pal counted them and it came out to be 41 bundles. PW4 further deposed that 500 printed sheets were there in each bundles and the same were seized. PW4 further deposed that the said literature was packed in 12 tooat bori and was sealed with the seal of RPS. Seizure memo is Ex. PW3/A. Seal was handed over to him after use. PW4 further deposed that all the seized boris were deposited with the malkhana and they also asked about Mujahid from the neighborhood, but Mujahid was not traceable. PW4 further deposed 11.03.2013 Page 6 of 17 of Pages FIR No. 311/2001 P.S.: Gokalpuri U/s: 292/34 IPC that on 12.09.2001, accused Mujahid alongwith his brother Mushir came to the office of AATS and the accused Mujahid was arrested vide memo Ex. PW4/A. His personal search was conducted vide memo Ex. PW4/B and accused was released on bail.
Examination in chief was deferred for the wants of case property.
6. No other witness was examined by the prosecution and after completion of prosecution evidence, all the incriminating evidence was put to the accused in the statement of accused recorded under Section 313 Cr. P.C. wherein while denying the allegations, the accused had taken the plea of "False Implication". No evidence in defence was led however by the accused.
7. I have heard Ld. APP for State and the accused, who has appeared in person and has also gone through the case file very carefully.
8. Ld. APP for the State submitted that in the present case, the accused is liable to be convicted for the offence under Section 292/34 IPC, on the basis of depositions made by various prosecution witnesses.
9. On the other hand, counsel for the accused submitted that accused has been falsely implicated in this case and case property has been falsely planted upon the accused and thus acquittal with respect to the accused has 11.03.2013 Page 7 of 17 of Pages FIR No. 311/2001 P.S.: Gokalpuri U/s: 292/34 IPC been prayed for.
10. I have given a considered thought to the rival submissions made by Ld. APP for state and counsel for the accused, keeping in view the material available on the judicial file.
11. It is a settled proposition of criminal law that prosecution is supposed to prove its case on judicial file beyond reasonable doubt by leading reliable, cogent and convincing evidence. Further it is a settled proposition of criminal law that in order to prove its case on judicial file, prosecution is supposed to stand on its own legs and it cannot derive any benefit whatsoever from the weaknesses, if any, of the defence of the accused. Further it is a settled proposition of criminal law that burden of proof of the version of the prosecution in a criminal trial throughout the trial is on the prosecution and it never shifts on to the accused. Also it is a settled proposition of criminal law that accused is entitled to the benefit of every reasonable doubt in the prosecution story and such reasonable doubt entitles the accused to acquittal.
12. In my considered opinion as a cumulative effect of the following reasons, accused is entitled to be acquitted for the charge against him by reasons of reasonable doubts in the prosecution story. 11.03.2013 Page 8 of 17 of Pages FIR No. 311/2001 P.S.: Gokalpuri U/s: 292/34 IPC
13. Chapter 22 Rule 49 of Punjab Police Rules, 1934, provides 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 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 personality by signature or seal.
Note: The term Police Station will include all places such as Police Lines & Police Posts where Register No. II is maintained.
14. In the present case, the above said provision appears to have not been complied with by the prosecution. As per the prosecution version, at the time of the apprehension of the accused with obscene books in his possession, PW-2, PW3 and PW4 alongwith other police officials were present in AATS Office/NorthEast, but the said DD entry vide which they had left the AATS Office/NorthEast for conducting the raid regarding the same has not been brought on record. In my opinion, the prosecution was under an obligation to bring on record and prove the above said DD entry vide which the above said police officials had left the AATS Office/NorthEast for conducting the raid, so as to prove the possibility of availability of PW 2, PW3, PW4 & other police 11.03.2013 Page 9 of 17 of Pages FIR No. 311/2001 P.S.: Gokalpuri U/s: 292/34 IPC officials at the place of apprehension of the accused. In the facts and circumstances of the case, the prosecution ought to have brought on record & prove the DD entry by which the above said police officials had left the AATS Office/NorthEast, so as to inspire the confidence regarding their availability/presence at the place of apprehension of the accused, since the said police officials were under bounden duty to enter their departure & arrival from/at the AATS Office/NorthEast by making a D.D. entry in that respect as per the aforesaid mentioned P.P. Rule.
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.
15. As per rukka Ex. PW1/A and testimony of PW2, PW3 and PW4 before conducting the raid asked the some passerby's to join the raid, but all of them left the spot after giving reasonable excuses without disclosing their 11.03.2013 Page 10 of 17 of Pages FIR No. 311/2001 P.S.: Gokalpuri U/s: 292/34 IPC names and addresses. Now as per rukka, it is clear that no serious attempt was made by the concerned police officials to get independent public persons to join the police proceedings of raid and of subsequent apprehension of the accused despite availability of such witnesses. In circumstances like the present one, if members of the public had in reality refused to assist the members of the raiding party, they could have served the said passerby/public witnesses with a notice in writing to join the police proceedings either at the time of seeking their initial assistance for joining the raid or later at the time of apprehension of the accused since after the apprehension of the accused, there was no possibility of accused escaping his arrest or crime going undetected. At least in these facts and circumstances of the case, in my opinion, the police officials concerned must have asked the passersby/public persons available at the spot of the conceptualization of the raid on information from the secret informer and also at the spot of the arrest & search of the accused on the spot of apprehension by serving them a notice in writing and further in case of their refusal, the concerned police people must have taken action against them under Section 187 IPC. Facts and circumstances of the case suggests that no sincere efforts were made by police officials concerned to join independent public witnesses in the concerned police proceedings at any of the available stages. In this regard reliance is being placed on the following judgments: In case law reported as "Anoop Joshi Vs. State" 1992(2) C.C. Cases 314(HC), High Court of Delhi had observed as under: 11.03.2013 Page 11 of 17 of Pages FIR No. 311/2001 P.S.: Gokalpuri U/s: 292/34 IPC "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".
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 was effected 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 11.03.2013 Page 12 of 17 of Pages FIR No. 311/2001 P.S.: Gokalpuri U/s: 292/34 IPC 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 after thought and is not worthy of credence. All these facts taken together make the prosecution case highly doubtful".
16. In case law reported as "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 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 11.03.2013 Page 13 of 17 of Pages FIR No. 311/2001 P.S.: Gokalpuri U/s: 292/34 IPC the person of the petitioner, but there was no public witness who had joint. 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".
17. The prosecution has failed to prove that the raiding party had offered their own search to the accused or to any other member of the public before conducting the search of the accused, which led to the recovery of the impugned weapon from the accused. It is not mentioned anywhere in the rukka/tehrir that PW2, PW3 and PW4 had offered their own personal search to the accused or to any other member of the public persons before conducting the search of the accused. The said contradiction on the aspect of the personal search by said police officials, so appearing in the testimonies of PW2, PW3 and PW4 & other police officials, who were members of joint raiding party, creates a shadow of doubt on the aspect as to in reality whether the members of the raiding party had offered their own search before searching the accused. The aforesaid contradiction makes it a probability that the case property might have been planted over the accused.
11.03.2013 Page 14 of 17 of Pages FIR No. 311/2001 P.S.: Gokalpuri U/s: 292/34 IPC
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. Being guided by above said case law, it can be said that search of the accused by above said police official (s) i.e. members of the raiding party was in complete violation of the above said case law and the same can be said to be illegal & motivated, more so, in the circumstances as discussed herein above which otherwise makes the story of prosecution doubtful. 11.03.2013 Page 15 of 17 of Pages FIR No. 311/2001 P.S.: Gokalpuri U/s: 292/34 IPC
20. As per rukka and testimony of PW2, PW3 and PW4, the seal i.e. "RPS" after use on the pulanda containing the case property allegedly recovered from the accused was given to none else but to PW2, PW3 and PW4, who themselves are material prosecution witnesses being member of the raiding party & one of the witness to the alleged recovery of the case property (obscene books) from the possession of the accused. Such material witness of a case is always interested in the success of the case of the prosecution and keeping in view this fact, the chances of fabrication & planting of the case property cannot be ruled out beyond reasonable doubt.
21. Moreover the testimony of PW2 & PW4 cannot be read in evidence as their examination in chief was never completed and the incomplete deposition by the witnesses are no evidence in the eyes of law and therefore cannot be used for the purpose of proving any particular fact. I am enlightened by the judgment of Hon'ble Delhi High Court in case titled as "Ripen Kumar Vs. Department of Customs" cited as 2001 Cr.L.J. 1288. The relevant extract of the same is reproduced below for easy reference: "9. ...... This observation of the Learned ASJ is contrary to the well understood expression of the word "evidence". The words "all statements" include the examinationinchief as well as cross examination and subject to the permission reexamination also. It is only when the witness is permitted to be cross examined that the credibility of the witness can be looked into. The emphasis is on the fact that the witness had been cross examined fully. 11.03.2013 Page 16 of 17 of Pages FIR No. 311/2001 P.S.: Gokalpuri U/s: 292/34 IPC Only thereafter the evidence given by a witness in judicial proceedings is relevant for the purpose of proving a particular fact...".
22. In my opinion framed in view of the above mentioned discussion, it can be safely concluded that prosecution has failed to prove its case on judicial file beyond reasonable doubt. There do exist such doubts & unexplained holes in the prosecution story and as such accused is given benefit of doubt & is hereby acquitted of the charge framed against him. File be consigned to record room.
Announced in the open court on 11.03.2013 (JITENDRA SINGH) METROPLITAN MAGISTRATE KARKARDOOMA COURTS, DELHI 11.03.2013 Page 17 of 17 of Pages FIR No. 311/2001 P.S.: Gokalpuri U/s: 292/34 IPC 11.03.2013 Page 18 of 17 of Pages