Ram Avtar vs State of Haryana

R.L. Anand, J. (Oral)

This is a criminal appeal and has been directed against the judgment and order dated 10.9.1987 passed by the court of Additional Sessions Judge, Faridabad who convicted the appellant Shri Ram Avtar under section 9B of the Explosive Act and sentenced him to undergo rigorous imprisonment for one year and to pay a fine of Rs. 500/. In default of payment of fine, he was sentenced to undergo further rigorous imprisonment for a period of two months.

The brief facts of the case are that on 10.6.1986, ASI Raj Pal alongwith Ishwar Singh and Roshan Lal Constables were present near Ashram Green Field Colony in connection with the patrolling duty and at that time Ram Lal son of Murli, resident of Dayal Nagar met them by chance. When the police party was talking with Shri Ram Lal son of Murli, appellant came there on bicycle from the side of S.O.S. Nagar towards Green Field Colony and on seeing the police party from a distance of 20/25 yards, the appellant stopped his bicycle by applying brakes and tried to take turn. On the basis of the suspicion he was apprehended by the thanedar in the presence of other members of the police party. A gunny bag was hanging on the handle of the bicycle of the appellant. The bag was searched and explosive substance in the shape of 20 detonators and two cords were recovered. The appellant could not produce any licence or permit. The recovered barud (explosive) was weighed and it came to be 20 kilograms. The thanedar separated 1/2 kilograms of Barud/explosive and made sealed parcel thereof. Out of the two cords a length of one foot was cut as a sample and two separate parcels were prepared. Remaining explosive and the cards were separately sealed with the seal of the Investigating Officer bearing inscription RD and the articles were taken into possession vide recovery memo Ex.PA. Memo Ex.PB with regard to the bicycle was prepared. Intimation Ex.PC was sent to the basis of which formal F.I.R. was recorded by ASI Azad Singh. Investigating Officer also prepared rough site plan Ex.PD of the place of the recovery. On completion of the investigation of the case, the appellant was challaned in the Court of Area Magistrate who supplied copies of the documents to the accused and vide order dated 9.3.1987 committed the accused to the Court of Sessions. Vide order dated 4.5.1987 the appellant was chargesheeted under sections 4, 5 and 9B of the Explosives Substances Act. The charges were read and explained to the accused to which he pleaded not guilty and claimed to be tried.

In order to prove the charges, prosecution examined Shri Ram Lal an independent witness, Head Constable Ram Avtar (PW.2), Ran Singh (PW.3), ASI Raj Pal (PW.4) and ASI Azad Singh as PW.5. Prosecution also tendered in evidence report of the Forensic Science Laboratory.

On closure of the prosecution evidence, statement of the accused was recorded under section 313 Cr.P.C and all the incriminating circumstances appearing in the prosecution evidence were put to him. Accused denied those circumstances and his stand was that he has been falsely implicated in this case at the instance of one Pardhan contractor.

In defence, the accused did not lead any evidence and closed the case.

Learned Trial Court acquitted the appellant of the charges No. 1 and 2 but convicted him under section 9B of the Explosive Act and sentenced him in the manner stated above and aggrieved by his conviction and sentence, the present appeal.

I have heard Shri Ashok Aggarwal Senior Advocate assisted by Shri Harmandeep Singh Advocate on behalf of the appellant and Shri Shailender Singh, D.A.G. Haryana appearing on behalf of the State and with their assistance have gone through the record of this case.

Learned counsel for the appellant has submitted that the place of recovery of the alleged Explosive Substance has not been proved by the prosecution in a satisfactory manner and to this extent there are serious vital discrepancies going to the roots of the case and the same are fatal to the prosecution case. On the contrary, learned counsel for the respondent submitted that the discrepancy pointed out by the learned counsel for the appellant is only trivial in nature. I do not subscribed to the arguments raised by the learned counsel for the respondent because in the opinion of this Court the prosecution has not been able to prove recovery of the explosive substance in a satisfactory manner. The story of the prosecution is that the police party was going to patrol when Ram Lal PW.1 met it per chance. When police party was talking with Ram Lal, the appellant came on bicycle from the opposite side and on the basis of the suspicion he was apprehended. At the trial the story of the prosecution has taken total somersault. Ram Lal appeared as PW.1 and stated that the police officials were having tea and some persons were siting in the tea shop and in the meanwhile the appellant crossed the shop and was apprehended. As against this statement of Ram Lal, the stand of ASI Raj Pal (PW.4) is different. He stated that on the date of the recovery he alongwith other members of the police party was present at about 7.00 p.m. in the Green Field Colony and he was talking with Ram Lal and in the meantime the appellant came there on bicycle from the side of S.O.S. Nagar. On seeing the police party he tried to turn back but on the basis of the suspicion he was apprehended. These contradictory statement of Ram Lal (PW.1) and ASI Raj Pal (PW.4) establish that one of them is not speaking the truth. As per statement of Ram Lal (PW.1) appellant was apprehended when he was crossing the Tea Stall where police party was enjoying tea whereas as per statement of ASI Raj Pal (PW.4) the recovery has been effected from the public road. Even on the point of sample there is again a total discrepancy. As per statement of Ram Lal (PW.1) 2 Kgs/11/2 Kgs. substance was separated by way of two samples whereas the case of the prosecution is that only 1/2 kilogram of the explosive substance (barud) was separated by the Investigating Officer by way of sample. It is even doubtful whether Ram Lal is an independent witness or not because according to the statement of ASI Raj Pal Investigating Officer, Ram Lal was associated being a suspect. The case of the appellant is that Ram Lal is servant of one Pardhan who was inimical to him. The possibility cannot be ruled out that Ram Lal might have been supplied as a witness to the police by Mr. Pardhan. The Investigating Officer has not associated any person from the nearby locality or even the tea stall holder in front of whose shop the alleged recovery has been made. In these circumstances, there is no proper corroboration to the bald statement of ASI Raj Pal (PW.4). The benefit of doubt in these circumstances reasonably will go to the appellant.

Resultantly, I accept this appeal and set aside the judgment and order of the Trial Court and acquit the appellant of the charge framed against him. The case property stands confiscated to the State and shall be destroyed according to the rules. The appeal stands allowed.