Delhi District Court
State vs . Trilochan Singh on 7 June, 2022
IN THE COURT OF Ms. AKANKSHA GARG, MM03: SE/
SAKET COURT, NEW DELHI
FIR NO.311/2018
PS - H. N. Din
State Vs. Trilochan Singh
U/s 9B Explosive Act and Section 286 IPC
JUDGMENT
A. CR. NO. OF THE CASE : 3236/2019
B. DATE OF INSTITUTION : 26.04.2019
C. DATE OF OFFENCE : 06.11.2018
D. NAME OF THE : ASI Rohitash
COMPLAINANT
E. NAME OF THE ACCUSED : Trilochan Singh
S/o Kuldeep Singh
R/o H.No.30, Masjid Lane
Bhogal, New Delhi
F. OFFENCE : U/s 9B Explosive Act and
Section 286 IPC
COMPLAINED OF
G. PLEA OF ACCUSED : Pleaded not guilty
H. FINAL ORDER : Acquittal
I. DATE OF FINAL ORDER : 07.06.2022
Brief Statement of Reasons for Decision:
1. The present accused is produced before the court to stand trial for the offences punishable u/s 286 The Indian Penal Code (hereinafter IPC) & Section 9B The Explosives Act,1884.
FIR No.311/2018 State Vs Trilochan PS H.N.Din page no.1/12
2. It is the case of the prosecution that on 06.11.2018 at about 5.00PM at H.No.30, Masjid Lane, Bhogal, New Delhi within the jurisdiction of PS H.N.Din, accused was apprehended with the explosive material without having valid license and which was in contravention of rules made by the Govt. U/s 5 Explosive Act and while being in possession of the aforesaid explosive material, accused was rash and negligent towards the same and failed to guard against any probable danger thereby endangering human life and thereby committed an offence punishable u/s 9B The Explosives Act,1884 and Section 286 IPC.
3. The accused appeared before the court and copy of charge sheet was supplied to him as per section 207 Cr.PC. Accused was charged u/s 9B Explosive Act and Section 286 IPC on 21.12.2019 to which accused pleaded not guilty and claimed trial.
4. In order to substantiate its case, the prosecution has examined the following witnesses:
• PW1 Ct. Jagveer Singh has deposed that on 06.11.2018 he along with ASI Rohitash was on patrolling duty. Secret informer informed him that in Masjid lane at H.No.30 fire crackers were being sold. That ASI Rohitash sent him to the shop to purchase the crackers as a dummy buyer. He was given a Rs.500/ note after noting its serial number i.e. 792164. He gave the said note to the accused and he handed over him crackers in return. That Ct. Trilok who was standing at a distance signaled the raiding team as soon as he purchased the crackers. That when the team arrived, they apprehended the accused along with crackers. The Rs.500/ note bearing serial number i.e.792164 was also recovered from the pocket of the accused. That upon searching the shop, crackers of around 33.5Kg were recovered. Accused was FIR No.311/2018 State Vs Trilochan PS H.N.Din page no.2/12 arrested by the IO vide arrest memo ExPW1/A and personal search of the accused was conducted vide personal search memo ExPW1/B. The crackers were seized vide seizure memo ExPW1/C. That Rs.500/ note bearing no.792164 was seized vide seizure memo ExPW1/D. • PW2 Sanjay Kumar has deposed that on 06.11.2018, when he was on patrolling duty with ASI Rohitash, IO prepared a raiding team. Thereafter, they reached at Masjid Lane, house no.13 there the accused was selling fire crackers without any permit. IO seized the crackers vide seizure memo already ExPW1/C. IO prepared the tehrir and sent him to the PS for registration of FIR. He returned back to the spot along with the copy of FIR and tehrir and handed over the same to the IO.
• PW3 Ct. Rajesh Kumar has deposed that on 06.11.2018, they were on patrolling duty at around 5.00PM, they were informed by secret informer that the accused person is selling fire crackers without having a valid permit. Thereafter, IO/ ASI Rohitash prepared a raiding team. Ct. Jagbir was sent as a dummy customer to the shop of the accused for purchase of crackers along with Rs.500/ note. Ct. Jagbir after he had purchased the crackers gave us a sign upon which they apprehended the accused and upon cursory search the same Rs.500/ note was recovered from the pocket of the accused and a katta containing fire crackers weighing around 3.5 kgs was also recovered from the accused. Thereafter, tehrir was prepared and after the FIR was registered the crackers were seized vide seizure memo already ExPW1/C. • PW4 ASI Rohitash has deposed that on 06.11.2018, he was on patrolling duty along with Ct. Jagbir, Ct. Sanjay, Ct. Rajesh and Ct. Trilok. At around 5.00PM a secret informer informed them that the accused was selling fire crackers without any valid license at H.No.30, Masjid Lane. He prepared a raiding party and upon reaching the spot, secret informer pointed towards the accused. Accused was present in the court today correctly identified by the FIR No.311/2018 State Vs Trilochan PS H.N.Din page no.3/12 witness. He sent Ct. Jagbir as a dummy buyer to the accused for purchasing fire crackers alongwith a Rs.500/ note. After Ct. Jagbir had purchased the crackers, he gave them a sign. After that, they apprehended the accused. He conducted cursory search of the accused, upon which he found the same Rs.500 note from the left pocket of the kurta of the accused. He prepared tehrir and sent Ct. Sanjay along with tehrir to PS for registration of FIR. Ct. Sanjay returned back to the spot along with copy of FIR and tehrir and handed over the same to him. Thereafter, he weighed the crackers which turned out to be around 3.5 kgs. He seized the crackers vide seizure memo already ExPW1/C signed by him at point B. He prepared the site plan ExPW4/A. He arrested the accused vide arrest memo ExPW1/A. He conducted personal search vide person search memo ExPW1/B. Thereafter, he seized the Rs.500 note vide seizure memo already ExPW1/D and placed the note in a white envelope and sealed it with the seal of RS. Thereafter, he sealed the crackers in a white katta with a seal of RS. He informed the accused that he was being charged with a bailable charge and asked to arrange for the surety. The accused was released on bail vide bail bond ExPW4/B. Thereafter, the case property was deposited into the Malkhana. After sometime, the seized crackers were deposited at a godown in Gurgaon who had a valid license to store the fire crackers.
5. Vide a separate recorded statement, the accused admitted FIR No.311/2018 Ex P/A/1 under Section 294 Cr.P.C. After examination of abovesaid witnesses, PE was closed.
STATEMENT / DEFENCE OF THE ACCUSED
6. In his examination under Section 281 r/w 313 The Code Of Criminal Procedure,1973 (hereinafter CrPC), the accused has denied the entire evidence put to him and has stated that he was innocent and falsely implicated in this FIR No.311/2018 State Vs Trilochan PS H.N.Din page no.4/12 case as he denied illegal demands of the beat constables and opted not to lead DE. Accordingly, DE was closed.
ARGUMENTS
7. Learned APP for the State has argued that the testimonies of all prosecution witnesses have established guilt on the part of accused and that he be convicted for offence under Section 283 IPC and section 9B of The Explosives Act. It is further argued by the Ld. APP that the accused has been caught at the spot by a decoy witness in the presence of a raiding party and the recovery has been made from the possession of the accused.
8. Per Contra, it has been argued by the learned counsel for accused that the entire case has been investigated by the complainant ASI Rohitash himself who is also the IO in the present case. It is further argued that when the decoy witness has admitted to be wearing police uniform at the time of the raid, the entire story of decoy witness collapses. It is further argued by the Ld. Counsel that the case property has not been identified by any of the prosecution witnesses and hence, accused is innocent as there is no evidence, which will prove guilt of accused to the hilt.
ANALYSIS AND FINDING
9. I have heard Ld. APP for the State and the Ld. counsel for the accused at length and perused the record carefully. In a criminal trial, the onus remains on the prosecution to prove the guilt of accused beyond all reasonable doubts and benefit of doubt, if any, must necessarily go in favour of the accused . 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.
FIR No.311/2018 State Vs Trilochan PS H.N.Din page no.5/12
10. Before adverting further, it is apposite to briefly discuss the provisions under which the accused has been prosecuted.
Section 283 IPC reads as under: "Danger or obstruction in public way or line of nav igation: Whoever, by doing any act, or by omitting to take order with any property in his possession or under his charge, causes danger, obstruction or in jury to any person in any public way or public line of navigation, shall be punished with fine which may extend to two hundred rupees."
11. Therefore, one of the most common ingredients to be proved by the prosecution for the offence under Section 283 IPC against the accused is the obstruction of the public way by the accused which was caused under the authority or directions of the accused and by doing so the accused had actually obstructed the road/caused danger or injury to any person using that road.
12. Section 9B of The Explosives Act provides as under:
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 be 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 (Emphasis Supplied)
13. The accused has been prosecuted for the offence of being in illegal possession FIR No.311/2018 State Vs Trilochan PS H.N.Din page no.6/12 of the explosive substances. With respect to the charge in the present case , the case of the prosecution is that on the fateful day the accused was found in illegal possession of explosive substances without any permit or licence. In order to bring home the charge against the accused, the prosecution was required to prove beyond reasonable doubt the recovery of the said substance from the possession of the accused. Therefore, it is imperative for the prosecution to successfully establish the recovery of the said alleged substances from the possession of the accused. It is only after the prosecution has proved the possession of the alleged substances 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 explosive substance.
Non identification of the case Property:
14. PW4 who is the IO deposed that he had seized the crackers in a white katta with a seal of RS and the case property was deposited in the malkhana and after sometime the seized case property was deposited at a godown in Gurgaon which had a valid license to store the same.
15. However, in the case at hand neither the case property has been produced before the court for the purposes of identification, nor the MHC(M) has been made a witness to prove the receipt of the same. Apart from this, the IO has failed to record the statement of the In charge of the said godown nor made him a witness to prove the deposition of the case property. There is only a letter issued on the Letter head of the said Incharge which has been placed on record in order to prove the deposition of the case property.
16. Moreover, neither a panchnama has been prepared nor any photographs have been placed on record which could establish the identity of the case property.
FIR No.311/2018 State Vs Trilochan PS H.N.Din page no.7/12 No sufficient and plausible explanation has been forthcoming from the prosecution for the nonproduction of case property or the photographs and panchnama of the same. Though the failure to produce the case property is not at the very outset fatal to the case of the prosecution if the chain of events is otherwise established. However apart from the aforesaid lapse there are other infirmities as well in the present case which render the credibility of the prosecution completely dubious.
Failure to rule out the possibility of tampering with the case property:
17. No prosecution witness who had collected the property from malkhana of the police station for depositing the same in the godown has been examined by the prosecution. Moreover the MHC(M) has failed to establish as and when the case property remained in his custody and the same was not tampered with. In fact the MHC(M) has never entered the witness box and deposed as a witness. In such a factual backdrop, the possibility of tampering with the case property cannot be ruled out.
Absence of independent witnesses
18. Evidently, no public witness to the recovery of the crackers has been either cited in the list of witnesses or examined by the prosecution. The recovery is alleged to have been effected at about 5:00PM near Masjid lane, New Delhi. The spot of recovery as per the site plan Ex. PW4/A was located on a main road. The place of recovery is, therefore, clearly located in an area where public persons would be readily available. Thus, at the place and time of the alleged recovery of explosives, public persons would in all likelihood have been present and available or have at least passed by the spot. It is not the case of the prosecution that no public person was present at or near the spot of arrest and recovery.
FIR No.311/2018 State Vs Trilochan PS H.N.Din page no.8/12
19. All the prosecution witnesses , in their examination have stated that they did ask certain public persons to join the proceedings however they refused citing just reasons. It is further, stated that no public witness came forward to give statement. However, neither of them stated the description of the persons who had allegedly refused to join the investigation. Further, there is nothing on record to show that the said witnesses had served any notice under Section 160 Cr.PC. upon the persons who refused to join the investigation. Thus, the prosecution has failed to prove that any serious effort was made by the witnesses to join public witnesses in the proceedings. From a perusal of the record, no serious effort for joining public witnesses appears to have been made. It is a well settled proposition that nonjoining of public witness shrouds doubt over the fairness of the investigation by police. Section 100(4) of the CrPC. also casts a statutory duty on an official conducting search to join two respectable persons of the society. Same has not been done in the present case. This casts a doubt on the fairness of the investigation.
20. Reliance is placed by this court on paragraph 6 of the judgment in Pawan Kumar v. The 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 believing the version of the Police officials but for that the prosecution has to lay a good foundation. At least FIR No.311/2018 State Vs Trilochan PS H.N.Din page no.9/12 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."
21. This Court is, however, conscious that the prosecution case cannot be thrown out or doubted on the sole ground of nonjoining 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.
Possibility of misuse of seal of the investigating officer
22. As per the version of the prosecution witnesses, after sealing the case property and the samples of explosives with the seal of "RS". However, 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, neither the handing over memo nor the taking over memo is on record. In such a factual backdrop, since 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 FIR No.311/2018 State Vs Trilochan PS H.N.Din page no.10/12 prosecution that the seal was not within the reach of the IO and thus, there was no scope of tampering of case property.
23. 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 OfficerHoshiar 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."
24. The facts that the case property could not be identified, no independent witness was cited or examined, possibility of misuse of seal has not been ruled out, when kept in juxtaposition to each other, cast a cloud of suspicion over the prosecution version. In view of the aforesaid, the possibility of false implication of the accused in the present case cannot be ruled out.
25. It is trite in criminal jurisprudence that the prosecution is under an obligation to prove its case against the accused beyond reasonable doubt. The standard of proof to be adopted in criminal cases is not merely of preponderance of probabilities but proof beyond reasonable doubt on the basis of cogent, convincing and reliable evidence. It is also well settled that in case of doubt, the benefit must necessarily be allowed to the accused.
FIR No.311/2018 State Vs Trilochan PS H.N.Din page no.11/12
26. Thus, in view of the foregoing analysis, this Court is of the considered opinion that the benefit of doubt ought to be granted to the accused, who is entitled to be exonerated of the charges against her in the present case. The accused is hereby acquitted of the offence punishable under u/s 286 The Indian Penal Code (hereinafter IPC) & Section 9B The Explosives Act,1884.
27. Let the copy of this judgment be provided to accused free of cost and a copy be placed on the district court website.
Digitally signed by
Announced in open court on 07.06.2022 AKANKSHA AKANKSHA GARG
GARG Date: 2022.06.07
17:38:41 +0530
(AKANKSHA GARG)
MM03 (SouthEast),
Saket Courts, New Delhi07.06.2022
FIR No.311/2018 State Vs Trilochan PS H.N.Din page no.12/12