Delhi District Court
State vs . Narender Goyal on 18 September, 2018
IN THE COURT OF MS. CHETNA SINGH: ACMM-02
(CENTRAL), TIS HAZARI COURTS, DELHI
STATE Vs. NARENDER GOYAL
New Case No: 298485/16
FIR N0. : 78/08
U/S : 286/336 IPC and Section 9B(3) (b) of Explosive Act, 1884.
PS : Roop Nagar
Date of Institution : 15.07.2008
Date on which case reserved for Judgment : 18.09.2018
Date of Judgment : 18.09.2018
JUDGMENT
1. FIR No. of the case : 78/2008
2. Date of commission of offence : 11.04.2008
3. Name of the accused : Narender Goyal
S/o late Sh. Paras Dass
Goyal, R/o H.No. 17/27,
Basement, Shakti Nagar,
Delhi.
4. Offence complained of : 286/336 IPC and Section
9B(3) (b) of Explosive Act,
1884.
FIR No . 78/08 State Vs. Narender Goyal PS Roop Nagar Page No. 1 of 14
5. Plea of accused : Pleaded not guilty.
6. Final order : Convicted.
BRIEF FACTS
1. The story of the prosecution is that on 11.04.2008 at about 8.35 PM at house No. 17/27, Basement, Shakti Nagar, Delhi with in the jurisdiction of PS Roop Nagar, the accused was found in possession of a huge quantity of crackers as detailed in seizure memo Mark A and accused omitted to take such order which is sufficient to guard against the probable danger to the human life and acted so rashly or negligently in stocking the crackers so as to endanger the human life and personal safety of other and without any permit or license from the competent authority and thereby committed offences punishable u/s 286/336 IPC and Section 9(3) (b) of Explosive Act, 1884.
2. On the basis of a complaint, present FIR was registered. After carrying out the investigation, charge sheet was filed on 15.07.2008. Accused was summoned. After compliance of section 207 Cr.P.C, notice u/s 251 Cr.PC for the offence punishable u/s 286/336 IPC and Section 9(3)
(b) of Explosive Act, 1884 was framed against accused on 24.09.2010.
Appreciation of Evidence
3. In order to prove its case, the prosecution has examined four witnesses in total.
FIR No . 78/08 State Vs. Narender Goyal PS Roop Nagar Page No. 2 of 14
4. PW1 HC Jagbir Singh deposed that on 11.04.2008, he was posted as HC at PS Roop Nagar on patrolling duty alongwith ASI Kalau Ali Khan and at about 8.25 PM when they reached near Nagia Park, Shakti Nagar, a secret information was received by ASI Kalau Ali Khan that at H.No. 17/27, Shakti Nagar, Delhi a huge quantity of crackers were stacked unauthorizedly. They both reached at the above said address where they found that accused was present in the basement of the house and during the search of the basement they found that the huge quantity of crackers were stored in 8 cartons. They asked the accused to produce any license for stocking the crackers but the accused failed to produce any such license. Police was called and came in one gypsy no. DL-1CJ-3860 at the spot. The crackers were weighed and the same were found to be weighing 145.400 kg in presence of ASI Kalau Ali Khan. Thereafter the entire case property was taken into possession vide memo Ex.PW1/A and IO arrested accused vide arrest memo Ex.PW1/B and personal search of accused was conducted vide memo Ex.PW1/C, all bearing his signatures at point A. Accused was correctly identified by the witness in the court. IO recorded his statement. The case property is Ex.P1 to P8 (colly).
This witness was not cross-examined by accused despite opportunity being given.
5. PW2 Ct. Dayal Chander deposed that on 24.06.2008, he was posted as Constable at PS Roop Nagar. On that day, exhibits i.e. 8 pullandas alongwith FSL form was obtained by him from the malkhana of PS Roop Nagar vide RC No. 38/21/08 and the same was deposited at FIR No . 78/08 State Vs. Narender Goyal PS Roop Nagar Page No. 3 of 14 CFSL Lodhi Colony. The exhibits were duly sealed with the seal of KAK. He returned the receipt of RC to MHCM after depositing the case property.
This witness was not cross-examined by accused despite opportunity being given.
6. PW3 HC Sanjay Kumar deposed that on 24.06.2008, he was posted as HC at PS Roop Nagar, Delhi and was working as MHCM. On that day on the direction of IO/ASI K.A. Khan, he handed over the exhibit i.e. 8 pullandas, all sealed with the seal of KAK to Ct. Dayal vide RC No. 38/21/08 for deposit of the same in the FSL, Lodhi Colony, Delhi. As long as the sample remained in his custody, they were not tampered. The copy of the register No.19 which is ex.PW3/C running into 2 pages. The copy of RC is Ex.PW3/B, bearing his signature at point A. This witness was not cross-examined by accused despite opportunity being given.
7. PW4 retired ASI Kalau Ali Khan deposed that on 11.04.2008, he was posted at PS Roop Nagar as ASI on motorcycle duty upon bike No.16. HC Jagbir Singh (231 North) was also accompanying him. They departed from the PS for patrolling duty at about 08:25 PM and reached Nagia Park, Shakti Nagar. They met a secret informer, who informed them that illegal crackers have been stored at H. No. 17/27, Shakti Nagar, Delhi and the same can be recovered if a raid is carried out. He requested 5-6 passersby to join the investigation but they all left citing one ground or the other. At about 08:35 PM, he alongwith HC Jagbir went to the basement of FIR No . 78/08 State Vs. Narender Goyal PS Roop Nagar Page No. 4 of 14 H. No. 17/27, Shakti Nagar, where they met accused (correctly identified by the witness in the court) and found 8 small and big paper cartons placed there. Upon checking, the same were found to be containing crackers. He telephonically informed PS Roop Nagar whereupon HC Dharamvir came at the spot in a Govt. vehicle. The recovered cartons were loaded in the said Govt. Vehicle and taken to a weighing scale at gali No. 7, Roop Nagar. The weighing scale was owned by one Ramjani. The crackers were weighed and its weight came out to be about 145.4 Kg. The cartons were assigned Sl. No. 1 to 8. One packet each was withdrawn from the all the cartons and assigned Sl. No. 1A to 8A. The samples and the cartons were tied with the help of a small jute rope and sealed with the seal of KAK. He deposed that he filled Form M-29 at the spot which is Ex. PW4/A bearing his signature at point A. This witness was not cross-examined by accused despite opportunity being given.
8. Upon completion of Prosecution Evidence, statement of accused Narender Goyal u/s 313 Cr.P.C was recorded on 20.08.2018 wherein accused has pleaded innocence. Final arguments heard on 01.09.2018.
9. I have heard the rival submissions and carefully perused the record.
Reasons for Decision
10. The prosecution has alleged commission of offences punishable FIR No . 78/08 State Vs. Narender Goyal PS Roop Nagar Page No. 5 of 14 u/s 286/336 IPC and offence punishable u/s 9(3)(b) of Explosive Act, 1884. It has been alleged that in the basement of house no. 17/27, Shakti Nagar, Delhi, the accused was found in possession of huge quantity of crackers so as to endanger human and personal safety of others. The same was done without any permit or license from the competent authority. In this regard, the prosecution has examined four witnesses in total and another witness for proving the FIR was dropped from the list of witnesses on account of admission of registration of FIR No. 78/08 on 11.04.2008 u/s 294 Cr.PC.
As the execution of the documents Ex.A1 i.e. copy of FIR No.78/08 was admitted and thus no formal proof of the same was required as per the provision of Section 294 Cr.PC.
11. PW1 HC Jagbir Singh is the main recovery witness alongwith ASI Kalau Ali Khan who is the Investigating Officer of the present case and who was examined as PW4. As per the testimony of PW1, he alongwith ASI Kalau Ali Khan were on patrolling duty on 11.04.2008 when they received secret information that huge quantity of crackers were being stored unauthorizedly at house No. 17/27, Shakti Nagar, Delhi and found the accused in the basement of the house and on search 8 cartons containing huge quantity of crackers were recovered and the accused could not produce any license. Information was sent to the police and one gypsy bearing NO. DL-1CJ-3860 was called at the spot which was being driven by HC Dharamvir and the illegal crackers were loaded in the said gypsy and was taken to the nearby Dharam Kanta and were found to be weighing 145.400 Kg. Thereafter all the cartons were opened and one packet from each carton taken as sample and tied and sealed with the seal of KAK. The cartons were again tied up and sealed with the seal of KAK.
FIR No . 78/08 State Vs. Narender Goyal PS Roop Nagar Page No. 6 of 14 The entire case property was taken into possession vide memo Ex.PW1/A bearing signature of HC Jagbir at point A. Thereafter rukka was prepared by ASI Kalau Ali Khan and handed over to HC Jagbir for registration of FIR. Thereafter the accused was arrested vide memo Ex.PW1/B and his personal search was conducted vide memo Ex.PW1/C, both bearing signature of PW1 HC Jagbir Singh at point A. The case property Ex.P1 to Ex.P8 was correctly identified by PW4 ASI Kalau Ali Khan.
12. It is pertinent to mention here that this witness was not cross- examined by the accused despite opportunity given and hence his testimony has gone un-controverted and un-rebutted.
13. It is well settled principle of law that if a witness is not cross examined on a particular issue by the opponent party, the evidence ought to be accepted. Reliance is placed on the judgment of Sarwan Singh Vs. State of Punjab (2003) 1 SCC 240 wherein it was observed as under:-
"in any event, on the state of evidence, the factum of Sarwan Singh together with Bagicha Singh calling out to the deceased and Mukhtiar Singh and compelling them to the fields to Shahbeg Singh does not seem to stand contradicted at any point of time. The evidence to that effect stands out to be credit worthy and thus, acceptable". .................
FIR No . 78/08 State Vs. Narender Goyal PS Roop Nagar Page No. 7 of 14 ........... It is a rule of essential justice that whenever the opponent has declined to avail himself of the opportunity to put his case in cross-examination it must follow that the evidence tendered on that issue ought to be accepted."
14. Another witness examined by the prosecution is PW2 Ct. Dayal Chander who deposited the case property at CFSL, Lodhi Colony on the basis of RC No. 38/21/08 and he deposed that during the time the case property remained in his possession it was not tampered with.
This witness was not again cross-examined by Ld. defence counsel and hence based on the ratio on the above mentioned judgment, his testimony also remains un-rebutted and un-controverted and ought to be accepted by this court. Same analogy applies to the testimony of PW3 HC Sanjay Kumar who also handed over the 8 pullandas to PW2 Ct. Dayal Chander on directions of IO/ASI Kalau Ali Khan on the basis of Road Certificate which is Ex.PW3/B.
15. Another material witness for the prosecution is PW4 ASI Kalau Ali Khan who was the Investigating Officer and who deposed on the lines similar to PW1 HC Jagbir. He correctly identified the accused present in the court and described in detail as regards sequence of events leading to recovery of crackers weighing 145.400 kg from the accused. He prepared site plan Ex.PW4/B. Apart from the preparing other documents such as FIR No . 78/08 State Vs. Narender Goyal PS Roop Nagar Page No. 8 of 14 seizure memo Ex.PW1/A, arrest memo Ex.PW1/B, personal search memo Ex.PW1/C and FSL result which is Ex.PW4/C, all bearing his signature at point A. He also identified the case property produced in the court.
This witness also was not cross-examined by Ld. defence counsel despite opportunity given and thus it can be successfully presumed that the accused had no defence to put forward. It is a rule of essential justice that whenever the accused has declined to avail an opportunity of cross-examination than the evidence tendered ought to be accepted.
16. It was argued by Ld. defence counsel that no public witnesses were examined by the prosecution. However, much credence cannot be given to this arguments and it is not possible that in all cases public persons would be willing to join investigation giving the conditions and the circumstances surrounding a criminal trial in India. Even otherwise, it is settled law that police officials are reliable witnesses and there is no principle of law that without independent corroboration their testimony cannot be relied upon. It is matter of common knowledge that members of general public are reluctant of joining investigation and testify in the court of law. The pious cause of justice cannot be abandoned due to general apathy and callousness of common man.
It has been observed by the Hon'ble Apex Court in the matter of "Karamjit Singh v. State" (AIR 2003 SC 1311) that :-
"The testimony of the police personnel should be treated in the same manner as testimony of any FIR No . 78/08 State Vs. Narender Goyal PS Roop Nagar Page No. 9 of 14 other witness and there is no principle of law that without corroboration by independent witnesses their testimony cannot be relied upon. The presumption that a person acts honestly applies as much in favour of police personnel as of other persons and it is not a proper judicial approach to distrust and suspect them without good grounds'.
The Apex Court reiterated the above position in precedent titled as Girija Prasad v. State of MP (AIR 2007 SC 3106) has held that:-
"It is well settled that credibility of witness has to be tested on the touchstone of truthfulness and trustworthiness. It is quite possible that in a given case, a court of law may not base conviction solely on the evidence of complainant or a police official but it is not the law that the police witnesses should not be relied upon and their evidence cannot be accepted unless it is corroborated in material particulars by other independent evidence. The presumption that every person acts FIR No . 78/08 State Vs. Narender Goyal PS Roop Nagar Page No. 10 of 14 honestly applies as much in favour of a police official as any other person. No infirmity attaches to the testimony of police officials merely because they belong to police force. There is no rule of law which lays down that no conviction can be recorded on the testimony of police officials even if such evidence is otherwise reliable and trustworthy. The rule of prudence may require more careful scrutiny of their evidence. But, if the court is convinced that what was stated by a witness has a ring of truth, conviction can be based on such evidence".
17. Furthermore, no contradiction in the testimony of material witnesses can be noted and their testimonies clearly prove that crackers beyond permissible limit and without license were stored by the accused in the basement of house No. 17/27, Shakti Nagar, Delhi. It is clear that this act of the accused storing crackers in such a huge quantity in the basement of house no. 17/27, Shakti Nagar, Delhi was a negligent conduct in respect of explosive substance.
18. The storage of such huge quantity of crackers in the FIR No . 78/08 State Vs. Narender Goyal PS Roop Nagar Page No. 11 of 14 basement clearly speaks for itself and it is clear that it was rash and negligent act by the accused to endanger human life which was also likely to cause hurt to residents of the house bearing 17/27, Shakti Nagar, Delhi and other adjoining house in Shakit Nagar, Delhi. The accused had stored the said explosives unauthorizedly and negligently and thus he has clearly committed offences punishable u/s 286/336 IPC.
19. It was argued by Ld. defence counsel that notice u/s 9(3)(b) of Explosive Act, 1884 has been wrongly framed against the accused by stating that Section 9(3)(b) of Explosive Act, 1884 states that whoever sell, deliver or dispatch any explosives in contravention of provision of clause (b) of section 6A is not applicable to the accused as Section 6A pertains to certain category of persons who have not completed the age of 18 years etc.
20. Even if this argument is accepted and it is concluded that notice has been wrongly framed u/s 9(3) (b) of Explosive Act, 1884. However, it is clear that the offence committed by the accused clearly falls under the Section 9B(1) (b) of Explosive Act, 1884. It is settled law that the accused can be convicted for lesser offence than the offence for which the notice/charge was originally framed. It has been proved by the prosecution that the accused was in possession of crackers weighing 145.400 Kg without license and thus he clearly contravened the provision of section 5 and hence committed offences punishable u/s FIR No . 78/08 State Vs. Narender Goyal PS Roop Nagar Page No. 12 of 14 286/336 IPC and Section 9B (1) (b) of Explosive Act, 1884.
21. In case of Sharad Birdhi Chand Sharda Vs. State of Maharastra AIR 1984 SC 1622, the apex court had laid down the test which are per-requisites before conviction should be recorded, which are as under:-
(1) The circumstances from which the conclusion of guilt is to be drawn should be fully established; (2) The circumstances concerned "must or should"
and not "may be" established;
(3) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
(4) The circumstances should be of conclusive nature and tendency;
(5) They should exclude every possible hypothesis except the one to be proved; and (6) There must be a chain of evidence so complete as not to leave any reasonable ground for conclusion consistent with the innocence of the accused and must so that in all human probability the act must have been done by the accused.
FIR No . 78/08 State Vs. Narender Goyal PS Roop Nagar Page No. 13 of 14
22. Thus, it is clear from the above mentioned discussion that the prosecution has been able to prove its case against accused Narender Goyal and hence the accused is hereby held guilty for the offences punishable u/s 286/336 IPC and Section 9B(1)(b) of Explosive Act, 1884. Thus, accused Narender Goyal is convicted for the offence punishable u/s 286/336 IPC and Section 9B(1)(b) of Explosive Act, 1884.
23. Ordered accordingly. Digitally signed by CHETNA CHETNA SINGH SINGH Date:
2018.09.24 15:19:10 +0000 Announced in the open court on 18.09.2018 (Chetna Singh) Addl. Chief Metropolitan Magistrate-02 Central/THC/Delhi/18.09.2018 FIR No . 78/08 State Vs. Narender Goyal PS Roop Nagar Page No. 14 of 14