Delhi District Court
Criminal Case/363/2003 on 4 February, 2012
FIR No. 363/03
S/v Fida Hussain & Anr
U/s 286 IPC
PS: Sadar Bazar
IN THE COURT OF SH. NEERAJ GAUR, LD.METROPOLITAN
MAGISTRATE-III/NORTH, DELHI
FIR No. 363/03
S/v Fida Hussain
U/s 286 IPC
PS: Sadar Bazar
U. ID No. 02401R5558082004
Date of Institution : 09.03.04
Date of commission of offence : 24.10.03
Name of the complainant : ASI Om Pal Singh
Name and address of accused : (1) Fida Hussain s/o Noor Mohd.
r/o Village Sakli, Distt. Bulland
Shahar, UP
(2) Mohd. Sibtain s/o Mohd. Husnain,
r/o H. NO. 970, Kishangunj,
Teliwara, Azad Market, Delhi.
Offence complaint off : U/S 286 IPC r/w/s 9(B) Explosive
Act.
Plea of guilt : Pleaded not guilty
Final Order : Acquitted.
Date of reserve for order : 04.02.2012
Date for announcing the order : 04.02.2012.
BRIEF FACTS AND PRE TRIAL PROCEEDINGS :-
1. The case of the prosecution, as disclosed in the charge-sheet is that 24.10.2003 at about 12.30 pm at the roof of property no. 116, Mata Sherawali Market, qutub Chowk, Sadar Bazar, both the accused U. ID NO. 02401R5558082004 Page No. 1 FIR No. 363/03 S/v Fida Hussain & Anr U/s 286 IPC PS: Sadar Bazar were handling fire crackers and combustible material in a manner so rash or negligent as to endanger human life and public safety of others and also were storing the fire crackers combustible material in dangerous manner without valid license.
2. Both the accused persons were charge-sheeted and sent up to face trial u/s 286 IPC r/w/s 9(B) Explosive Act. After necessary compliances charge u/s 286 IPC r/w/s 9(B) Explosive Act was framed against both the accused persons to which they pleaded not guilty and claimed trial.
TRIAL :-
3. To prove the charge, prosecution examined seven witnesses in total whose the depositions are being discussed in brief as follows :
4. PW1 HC Birbal and PW-4 ASI Om Pal Singh deposed similar except their presence where PW4 received phone call from PS about unauthorised fire crackers kept on the roof of shop No. 116, Sherawali Market. They deposed that they along with Ct. dilbagh reached the spot and checked the roof of shop no. 116, Sherawali Market where borries were found on the roof which were containing crackers. Accused Fida Hussain and Sibtain were arranging the fire cracker. PW4 asked both the accused regarding their negligent storing of fire crackers. PW 4 put sl. Nos. 1 to 65 on the borries containing fire crackers and removed some fire crackers at random of different marks from 10 borries as sample. They proved the seizure memo of recovered U. ID NO. 02401R5558082004 Page No. 2 FIR No. 363/03 S/v Fida Hussain & Anr U/s 286 IPC PS: Sadar Bazar borrires of fire crackers as Ex.PW1/A. PW-4 proved the rukka as Ex.PW4/A. FIR was got registered. PW4 recorded the statement of witnesses. They proved the arrest and personal search memos of the accused as Ex.PW1/B, PW1/C, PW1/D & PW1/E. Accused was released on bail and case property was deposited in malkhana along with sample and CFSL form. They correctly identified the case property.
5. PW-2 Ct. Mukesh Kumar is a formal witness who deposited the pullanda with seal of OPS at CFSL Hyderabad vide RC no. 162/21.
6. PW-3 HC Nag Singh deposed that on 24.10.03 he was posted as MHC(M) at PS Sadar Bazar and on that day ASI Om Pal singh deposited 65 borries bearing Sl. Nos. 1 to 65 without seal filled with fire crackers along with one sealed pullanda cloth with the seal of OPS and CFSL form with the seal of OPS . He further deposed that on 15.01.2004 vide RC No. 162/21 sealed cloth sample pullanda with CFSL form was sent through Ct. Mukesh Kumar to Hyderabad for analysis. He proved the photocopy of entry in malkhana register as Ex.PW3/A and photocopy of entry in R/C register is Ex.PW3/B.
7. PW-5 W/ASI Rajni is the duty officer who proved the FIR as Ex.PW5/A.
8. PW-6 HC Yogender Singh deposed that on 24.10.03 he was posted in PCR control room and at about 12.00 noon, he received a call regarding the fire crackers kept in premises in Old Cloth Market, Qutab U. ID NO. 02401R5558082004 Page No. 3 FIR No. 363/03 S/v Fida Hussain & Anr U/s 286 IPC PS: Sadar Bazar Road. He entered the call in form available in the office and forwarded the information to wireless operator for conveying the same to PS Sadar Bazar.
9. PW-9 K.P. Sudhakaran Kartha from Central Forensic Science Laboratory, Hyderabad deposed that one sealed parcel was received in their office on 9.01.04. The case was marked to him for chemical examination and report. Report has been sent through messenger Sh. Satya Prakash, ASI to the forwarding authority. He proved the report as Ex.PW7/A. Thereafter, the PE was closed.
STATEMENT OF ACCUSED AND DEFENCE :
6. After concluding prosecution evidence, both the accused have been examined u/s 313 CRPC during which they claimed their innocence. They further stated that they had been falsely implicated in the instant case. They further stated that they were not arrested at the shop No. 116. They preferred to lead evidence in defence.
7. In support of their case, they examined two witnesses. DW-1 Zahid Ali deposed that accused Fida Hussain was his nephew and he called accused Fida Hussain on 24.10.03 to his house on the occasion of Akika Ceremony. He further stated that when accused did not reach at his house, he tried to find out the whereabouts of the accused and came to know that he was falsely implicated in some case of crackers.
8. PW-8 Md. Iliyas deposed that on 24.10.03 when he was present at his STD shop and at about 10 to 11 am, two police officials took the U. ID NO. 02401R5558082004 Page No. 4 FIR No. 363/03 S/v Fida Hussain & Anr U/s 286 IPC PS: Sadar Bazar accused Mohd. Sibtain on inquiry. He further deposed that when accused did not return till evening, he along with other mohalla people went to PS Sadar Bazar where police told that he has been arrested and can only be released on bail and thereafter, B/B was furnished before the IO and he was released.
ARGUMENTS AND APPRECIATION OF EVIDENCE IN THE LIGHT OF LEGAL PROPOSITIONS:
9. Ld. Defence counsel argued that the possibility of tampering with the case property cannot be ruled out in view of the fact that the property was kept in unsealed condition. To support this contention, my attention is drawn to the statement of PW-3 HC Nag Singh and to the document Ex.PW3/A. PW-3 deposed and document Ex.PW3/A shows that the 65 sacks were deposited in the malkhana in unsealed condition.
In this case, the prosecution was under the burden of proving the possession of the fire crackers by the accused persons. The police was supposed to seal the recovered case property as soon as it was recovered and at least before depositing it in the Malkhana. This precaution was necessary to rule out the possibility of any tampering. The absence of this precaution has certainly accrued a benefit in favour of both the accused, thereby weakening the prosecution case. This lapse left by the investigating agency has gone to the root of the case. The possibility of tampering with the case property cannot be ruled out. A serious shadow of doubt is casted in the prosecution case and both the accused U. ID NO. 02401R5558082004 Page No. 5 FIR No. 363/03 S/v Fida Hussain & Anr U/s 286 IPC PS: Sadar Bazar are entitled to be given the benefit of doubt.
CONCLUSION
8. In view of the above said discussion, the prosecution has failed to prove the guilt of both the accused beyond reasonable doubt. Accordingly, I acquit both the accused Fida Hussain and Mohd. Sibtain U/S 286 IPC r/w/s 9(B) Explosive Act. File be consigned to record room.
Announced in open court (Neeraj Gaur)
today i.e. 04.02.2012 Metropolitan Magistrate-III/N
Tis Hazari Courts, Delhi
U. ID NO. 02401R5558082004 Page No. 6
FIR No. 363/03
S/v Fida Hussain & Anr
U/s 286 IPC
PS: Sadar Bazar
01.02.2012
Pr: Ld. APP for the State.
Both accused on bail with Ld. Counsel.
Final arguments heard.
Vide my separate Judgment announced in the open court today, accused Fida Hussain and accused Mohd. Sibtain have been acquitted for the offences u/s 286 IPC r/w/s 9(B) Explosive Act.
Both the accused pray for extension of their Bail Bonds for six months for the purpose of Section 437-A CrPC. Request is allowed and B/Bs and surety Bonds of both the accused are extended for six months.
File be consigned to record room.
(Neeraj Gaur) MM-III/N/THC 04.02.2012 U. ID NO. 02401R5558082004 Page No. 7