Delhi District Court
State vs Guddi Devi on 31 October, 2023
1
IN THE COURT OF SH. AKSHAY SHARMA, METROPOLITAN
MAGISTRATE-02, SOUTH EAST, SAKET COURTS, DELHI.
FIR No.437/18
PS. OIA
U/s. u/s 286 IPC & 9.B(1) Explosive Act.
STATE VS GUDDI DEVI
JUDGMENT
A. SL. NO. OF THE CASE : 04/2/2019 B. DATE OF INSTITUTION : 04.01.2019 C. NAME OF THE : HC Ombir Singh COMPLAINANT D. NAME OF THE : Guddi Devi ACCUSED w/o Tirath Ram E. OFFENCE COMPLAINED OF AND DATE OF : U/s286 IPC & 9.B(1) Explosive Act.
OFFENCE
F. PLEA OF ACCUSED : Pleaded not guilty.
G. FINAL ORDER : Acquitted
H. DATE OF COMMISSION
OF OFFENCE : 07.11.2018
I. DATE OF FINAL
ARGUMENTS : 20.09.2023
J. DATE OF SUCH ORDER : 31.10.2023
BRIEF REASONS FOR THE DECISION OF THE INSTANT CASE
1. The present accused is produced before the court to stand trial for the offence punishable u/s 286 IPC & 9.B(1) Explosive Act.
2. In brief, facts of the case as per prosecution are that on 07.11.2018, when Ct. Harish along with Ct. Ombir were on beat patrolling duty in the area of Beat no.8 when at about 01:30 pm one secret informer informed them, that one lady near foot over bridge, railway line, Harkesh Nagar is selling fire crackers without having any license or permission to sell the same and if raid be conducted, she can be apprehended. Upon the 2 same, said information was given to SHO who further directed him to proceed further as per law. That thereafter a raiding party was prepared and W/Ct. Meena Yadav was asked to join the investigation in civil clothes, 4-5 public persons were asked to join the investigation, however none of the public persons agreed to the same. It is further stated that W/Ct. Meena Yadav who was in civil clothes was asked to visit the accused as a customer and was further handed over a note of denomination of Rs. 50/- bearing no. 4EF742104 by HC Ombir after signing the same. It is further stated that at about 01:50 pm, W/Ct. Meena Yadav handed over the said note of Rs. 50 to accused who was sitting on a foldable bed near foot over bridge railway line Harkesh Nagar and asked her for fire crackers upon which accused was about to hand over the fire crackers to W/Ct. Meena Yadav. Upon the same, W/Ct. Meena Yadav gave signal to HC Ombir, upon which HC Ombir alongwith Ct. Harish and W/Ct. Meena Yadav apprehended the accused and on interrogation accused reveal her name as Guddi Devi. The abovesaid note of Rs. 50 so handed over by W/Ct. Meena Yadav was recovered from the right hand of accused. It was further stated by accused Guddi Devi that she was selling said fire crackers without having valid license or permission. It is further stated that HC Ombir again asked some public persons to join in the investigation, however none agreed. Thereafter HC Ombir seized the fire crackers which were there in the white plastic sacks in the possession of the accused, with the help of the staff and upon weighing, it was found that accused was having about 14 kg, 600gms of fire crackers which were seized by the HC Ombir and same were sealed with the seal of OSR. Tehrir was prepared and Ct. Harish was sent for registration of FIR against the accused u/s 286 IPC & 9.B(1) Explosive Act. After the registration of FIR, investigation was handed over to ASI Ravi Prakash, who came to the spot, HC Ombir handed over the seized 02 3 plastic sacks consisting the fire crackers and the seized Rs.50/- note.
IO arrested the accused, prepared the site plan, recorded statement u/s 161 CrPC and after completion of investigation, charge-sheet was filed against the accused before the Court.
3. Accused person appeared before the court on 04.01.2019 and copy of chargesheet was supplied to her as per section 207 CrPC. Thereafter accused was charged on the same day u/s 286 IPC & 9.B(1) Explosive Act to which she pleaded not guilty and claimed trial.
4. Prosecution in order to prove its case has examined the following witnesses:
4.1. PW-1 Ct. Harish, was examined, he in his examination in chief deposed that on 07.11.2018, he was posted as constable at PS OIA. On that day, he alongwith HC Ombir were on patrolling duty. At about 01:30pm, one secret informer met HC Ombir and informed him that one lady was selling the explosives at Railway Foot over Bridge without having valid license and in case raid be conducted she could be apprehended. IO asked few public persons to join the investigation, however, none agreed.
Thereafter, IO informed the SHO regarding the same upon which SHO asked the IO to take legal action. Thereafter, IO called at PP and called W/Ct. Meena at the spot in civil cloth. Thereafter, IO handed over a note of denomination of Rs.50/- and asked W/Ct to produce the same to the accused. Thereafter, W/Ct went to the accused and handed over the note to her. Thereafter, upon the signal of the decoy witness, he alongwith IO reached at the spot and they apprehended the accused and recovered the said note of Rs.50/- from her right hand. Thereafter, explosives were recovered from the accused. She further informed that two more katta of explosives were lying under the folding bed. Upon the search, two katta of explosives were recovered. Upon weighing the same, the weight of the same was found to be 14 kg 600 grams. Thereafter, IO prepared the tehrir 4 and handed over the same to him for registration of FIR. Thereafter, he got the FIR registered and returned back at the spot and handed over the same to the IO. IO prepared the site plan which was Ex.PW1/B, seized the explosives vide Ex.PW1/C, bearing his signature at point 'A'. IO further seized the said note of Rs.50/- vide seizure memo Ex.PW1/A bearing his signature at point 'A' Thereafter, IO recorded his statement. Accused was present in the Court that day, correctly identified by the witness.
At that stage, MHC(M) produced the katta having seal of OMR same was opened with the permission of the Court. Upon seeing the contents of the same, witness correctly identified the case property as the same which was seized from the possession of the accused. 4.2. PW2 W/HC Meena was examined, she in her examination in chief deposed that on 07.11.2018 she was posted as W/Ct. at PP OIA-III. On that day, she was informed by the DO that to reach near Railway Line, Foot over Bridge. Further, the accused who was to be apprehended was a female, therefore, she was asked to reach the spot. When she reached the spot she was given a 50 rupee note bearing No. 4EF742104 by HC Omveer. Further PW2 submitted that she was asked to purchase fire-crackers from a lady sitting on a folding bed. When she went to the lady and she gave her a 50 rupee note and asked her to give the crackers. As soon as the accused was about to hand-over the crackers to her she signaled HC Omveer and Ct. Harish. Upon her signal they both apprehended the accused and aforesaid 50 rupee note was recovered from her right hand and explosives were also recovered. The accused further informed that there were two more plastic kattas of explosives are lying under a folding bed. Upon checking two kattas of explosives were recovered from the folding bed. Upon weighing the said explosives weighed out to be 14 kgs and 600 gms. HC Omveer seized the explosives and the 50 rupee note which was Ex. PWI/C and Ex. PWI/A respectively.
PW2 further submitted that HC Omveer prepared the tahrir and handed-over the same to Ct. Harish for registration of FIR at the PS. Thereafter, Ct. Harish went to the PS. Thereafter, ASI Ravi Prakash/IO came to the spot alongwith original tahrir and FIR. HC Omveer handed-
5over the accused alongwith the two kattas of explosives and 50 rupee note to ASI Ravi Prakash. IO interrogated the accused and given a notice U/s 41A Cr.PC to the accused. Accused present in the Court today, (correctly identified by the witness.) 10 prepared the site plan at the instance of HC Omveer which is already Ex.PW1/B. At that stage, MHC(M) produced the kattas in sealed condition and the same was opened with the permission of the Court. Upon seeing that contents of the same, witness correctly identified the same. 4.3. PW3 ASI Ravi Prakash, was examined, he in his examination in chief deposed that on 07.11.2018, he was posted as ASI at PS OIA. On that day a this case file was marked to him for further investigation. The investigation was majorly undertaken and completed by HC Ombir Singh Rathi, he gave notice u/s 41 A CrPC to the accused which was Ex.PW3/A. Thereafter he recorded statement u/s 161 CrPC of HC Ombir Singh Rathi, Ct. Harish and W/Ct. Meena. Thereafter, he prepared the interrogation report of the accused. (Court observation: the said report was not present in the judicial file.) He further submitted that he had interrogated the accused however, he did not remember whether the report was reduced into writing. Thereafter, accused was discharged and he filed the charge-sheet before this court.
4.4. PW-4 ASI. Ombir Rathi,was examined, he in his examination in chief deposed that on 07.11.2018, he was posted as HC at PS OIA. On that day, he alongwith Ct Harish were on patrolling duty. At about 01:30pm, one secret informer met him and gave information that one lady was selling the explosives at Railway Foot over Bridge without having valid license and in case raid be conducted she could be apprehended. PW4 further submitted that he asked few public persons to joint the investigation, however, none agreed. Thereafter, he informed the SHO regarding the same upon which SHO asked him to take legal action. Thereafter, he called at PP and called W/Ct. Meena at the spot in civil cloth. Thereafter, he handed over a note of denomination of Rs.50/- and asked W/Ct to produce the same to the accused. Thereafter, W/Ct went to the accused and handed over the note to her. Thereafter, upon the signal of the 6 decoy witness, he along with Ct. Harish reached at the spot and they apprehended the accused and recovered the said note of Rs.50/- from her right hand. Thereafter, explosives were recovered from the accused. She further informed that two more katta of explosives were lying under the folding bed. Upon the search, two katta of explosives were recovered. Upon weighing the same, the weight of the same was found to be 14 kg 600 grams. PW4 further submitted that he seized the explosives vide already Ex.PW1/C. He further seized the said note of Rs.50/- vide seizure memo already Ex.PWI/A Thereafter, he prepared the tehrir which was Ex.PW4/A and handed over the same to Ct. Harish for registration of FIR. Thereafter, Ct. Harish got the FIR registered and after registration of FIR further investigation was marked to ASI Ravi Prakash who along with Ct. Harish reached the spot. He handed over the custody of the accused along with case property and seizure memos to the IO and he prepared the site plan which was Ex.PWI/B at his instance accused was given notice u/s 41A CrPC and she was interrogated by the IO. After interrogation, accused was bound down and discharged. Thereafter, he got shifted the case property and deposited the same in the malkhana, he recorded his statement and the statement of Ct. Harish and W/Ct. Meena. Accused was present in the Court that day and was correctly identified the witness.
PW4 further submitted that he can identify the case property if shown to him. At that stage, case property was exhibited in the testimony of PW1 on 25.07.2019.
5. Thereafter, statement of the accused U/s 281 CrPC r/w Section 313 CrPC was separately recorded on 17.08.2023, wherein accused denied all the allegations as levelled by the prosecution against her. She further chose not to lead any defence evidence and thereafter matter was fixed for arguments.
6. I have heard Ld. APP for the state and Ld. counsel for the accused person and perused the file carefully.
77. It is settled proposition of law that burden lies upon prosecution to prove its case beyond all reasonable doubt. It is the case of the prosecution that IO upon the secret information apprehended the accused while she was selling explosives (fire crackers) without having any valid license or permission for the same.
8. It is pertinent to state in here that although as per the case of prosecution on 07.11.2018 Ct. Harish alongwith HC Ombir were on patrolling duty on the alleged date, the prosecution for the reasons best known to itself has not placed on record any document in order to show or prove that the said police officials were on patrolling duty on the alleged date. Further there is nothing placed on record to show as to on which place the abovesaid police officials were deputed for patrolling duty.
9. It is further pertinent to state in here that although as per the case of prosecution the seizure memo as well as the recovery memo of the abovesaid note of Rs. 50/- was made prior to the registration of FIR, however both the abovesaid documents bear the FIR number. The said fact raises suspicion over the case of prosecution. Furthermore, Hon'ble High Court of Delhi in Pradeep Saini v. State 2009 SCC OnLine Del 2803, has observed as follows qua such type of documents :
70. Another circumstance which needs to be highlighted is that as per the case of the prosecution the sketch Ex. PW-3/D of the knife purportedly recovered from the possession of accused Kishore Kumar was prepared before the registration of the FIR Ex.PW-2/B. Surprisingly, sketch Ex.PW-3/D of the knife contains the number of the FIR registered in the present case. The prosecution has not 8 offered any explanation whatsoever as to under what circumstances number of the FIR Ex.PW-2/B has appeared on the document, which was allegedly prepared before registration of the FIR. This gives rise to two inferences;
either the FIR Ex. PW-2/B was recorded prior to the alleged recovery of the knife or number of the said FIR was inserted in said document 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 knife in the manner alleged by the prosecution.
10. It is further pertinent to state in here that during the course of cross examination it is admitted by PWs that public persons were present and asked to join the investigation, but none agreed. Non joining of public persons in the investigation again goes to raise grave suspicion over the investigation being carried out by the police. For the same, I may gainfully referred to the observations made by Hon'ble High Court of Delhi in Surender @ Dheeraj v. State 2018 SCC OnLine Del 7506,
77. The arrests of the accused were all in public places and yet none of the arrests were in the presence of independent public witnesses. Parrot-like statements to the effect that passersby were asked but declined to join are given by the IOs in the present case. This does not convince the Court. In Kehar Singh v. State (1988) 3 SCC 609 : AIR 1988 SC 1883 one of the accused, Balbir Singh, was arrested at the bus stand at Najafgarh, which was a public place but there were no independent public witnesses to the arrest. It was argued by the State that there was no such requirement in the Cr PC. Repelling this contention, the Supreme Court observed:
"It may be as technically argued by the learned 9 Additional Solicitor General that the presence of public witness under the scheme of Code of Criminal Procedure is required when there is search and seizure from the house or property of the accused but not when a person is arrested and something is recovered from the personal Search. But it is well-known that in all matters where the police wants that the story should be believed they always get an independent witness of the locality so that that evidence may lend support to what is alleged by the police officers. Admittedly for this arrest at Najafgarh and for the seizure of the articles from the person of this accused is no other evidence except the evidence of police officers. Independent witness in this case would be all the more necessary especially in view of what has been found above as his release after the earlier arrest is not established, and his abscondence is not proved. In such a controversial situation the presence of an independent witness from the public, if not of the locality, would have lent some support to the case of the prosecution."
78. In the present case every arrest is on the basis of both information provided by and identification by a secret informer who is not produced as a PW.
Most arrests have taken place from open public places and during times when there is a lot of movement of the public. It is therefore difficult to accept that in every such instance, no independent witness was available. The circumstance of arrest has not been convincingly proved by the prosecution.
1011. Even if for the sake of argument it is believed that recovery was effected from the accused, it is for the prosecution to show that the said alleged fire crackers stated to have been seized by the IO from the possession of the accused herein falls within the definition of explosives under the Explosive Act. There is nothing on record to show or prove that the items so alleged to have been seized from the accused herein were explosives. The seized case property was not sent to the FSL for examination.
12. In view of the law and facts discussed above, prosecution has failed to prove its case beyond reasonable doubts. In view of the same accused Guddi stands acquitted for the offence u/s 286 IPC &
9.B(1) Explosive Act.
Pronounced in the open court on 31.10.2023.
Judgment contains total 10 pages, each signed by the undersigned.
(AKSHAY SHARMA) MM-02/SE/Saket/ND 31.10.2023