IN THE COURT OF SH [ENTITY] METROPOLITAN MAGISTRATEI(NORTH WEST) ROHINI COURTS, DELHI [CASE NUMBER][CASE NUMBER] 2.Unique [CASE NUMBER][CASE NUMBER] 3.Title of the case: :State Vs [ENTITY] etc. FIR No. 113/99, PS Sultan Puri 4.Date of institution :06.12.99 5.Date of reserving Judgment :11.07.14 6.Date of pronouncement :11.07.14 J U D G M E N T :
(a)The date of commission 10.02.99 (b)The name of complainant [ENTITY] (c)The name of accused 1) [ENTITY] S/o Sh. [ENTITY] R/o J567, Mangol Puri. 2) [ENTITY] S/o Sh. [ENTITY] R/o J567, Mangol Puri. (a)The offence complained of 61/1/14 [ACT] (b)The plea of the accused Pleaded not guilty (c)The final order Acquitted (d)The date of such order 11.07.2014 Brief facts for the decision of the case:
1. In the present case, accused [ENTITY] and [ENTITY] were put to the trial for the offence U/[SECTION] [ACT] on the allegations that at about 12:40 AM at Rithala Road, Near Ration Office, Delhi, accused [ENTITY] and [ENTITY] were apprehended alongwith TSR on suspicion and from TSR 5 plastic bags containing 1000 pouches of illicit liquor without any permit or license.
After the usual investigation, the charge sheet for the offence U/[SECTION] [ACT] was prepared against the accused persons.
2. The aforesaid charge sheet was filed before the court on 06.12.99, whereupon the cognizance of the offence was taken against the accused.
The provision of [SECTION] [ACT] was complied on 25.04.00.
3. After hearing the arguments, the accused was charged for the alleged commission of the offence U/[SECTION] [ACT] to which the accused persons pleaded "Not Guilty" and instead claimed trial and accordingly the case was fixed for prosecution evidence.
4. In order to prove its case the prosecution examined 5 witnesses PW1 [ENTITY], PW2 [ENTITY], PW3 [ENTITY], PW4 SI [ENTITY], PW5 ASI [ENTITY] and PW [ENTITY].
PW2/Complainant along with PW1 and Ct. [ENTITY] were on patrolling duty at Rithala Road, Near Ration Office, Delhi. On suspicion they stopped [CASE NUMBER] and on checking they found 5 plastic bags each containing 200 pouches (total 1000 pouches) of illicit liquor in the TSR and apprehended the accused persons. Out of each plastic bag 5 pouches (total 25 pouches) were taken out as sample and kept in box and remaining pouches were kept in the same plastic bags. Both sample and plastic bags were sealed with seal of "SK" and form 29 was filed at the spot. Seal after use was handed over to PW1/complainant to Ct. [ENTITY]. Case property and TSR were seized vide seizure memo Ex. PW1/A and Ex. PW1/B respectively. Case property is Ex. as P1. PW2/Complainant prepared the rukka and got the FIR Ex. PW4/A registered through Ct. [ENTITY]. Ct. [ENTITY] returned to the spot alongwith 2nd IO/HC [ENTITY]. PW5 prepared the site plan as Ex. PW5/A and arrested the accused persons and recorded the disclosure statement of accused [ENTITY] i.e. Ex. PW5/B and conducted the personal search of accused [ENTITY] vide memo Ex. PW5/C and personal search of accused [ENTITY] vide memo Ex. PW5/D.
5. Thereafter, on 09.07.2013 prosecution evidence was closed as even after given sufficient opportunities to lead and complete evidence, prosecution failed to examine any other witnesses. Thereafter, matter was fixed for Statement of Accused persons.
6. The Statement of Accused was recorded U/[SECTION]/[SECTION] [ACT] on 11.12.2013 and all the incriminating circumstances came in evidence were put to the accused persons to which the accused persons replied that they were falsely implicated and they do not want to lead defense evidence.
7. I have heard the arguments advanced by the Ld. APP for the State and Ld. Counsel for the accused and have perused the records of the case.
Now let us examine the prosecution evidence brought on record against the accused.
Perusal of testimony of PW1 and PW2 shows that the seizure memo is Ex. PW1/A. PW1 and PW2 has stated in his testimony recorded in court that the aforesaid document was prepared by prior to the registration of the present case. However, perusal of above said document i.e. Ex. PW1/A clearly shows that the FIR Number and other particulars of the present case are mentioned on the said documents. No explanation has come from the prosecution as to how the FIR Number surfaced on those documents which were prepared prior to the registration of the case. This fact casts a doubt upon the testimony of PW1 and PW2 because if the said documents were prepared prior to the registration of the present case, then how the FIR Number as well as other particulars of the present case surfaced on the said documents. At this stage, reference can also be made of a case titled as [PRECEDENT] wherein Hon'ble High Court of Delhi had held that the mention of FIR Number on recovery memo etc. which were prepared prior to lodging the FIR creates doubt and benefit should go to the accused.
It is pertinent to mention that as per prosecution version the seal after use was handed over by PW2 to Ct. [ENTITY]. Both are police officials and were posted in the same police station on the relevant date and time. Seal was not handed over to any independent witness. When case property i.e. 5 plastic bags Ex. P1 collectively was produced in the court they contained empty pouches. Further, the [CASE NUMBER] was never produced in the court. In such a situation the possibility of tampering with the case property cannot be ruled out.
It is also pertinent to mention that the prosecution has failed to produce any documentary evidence or the DD entries made by PW2 and PW1 regarding their departure from the police station for patrolling duty. PW1 and PW2 has not even given the DD Number vide which they left the police station for patrolling duty. This fact also creates a doubt in the prosecution version.
In the judgment titled as "[PRECEDENT] the Hon'ble Supreme Court held :
" In our view, the onus of proving all the ingredients of an offence is always upon the prosecution and at no stage does it shift to the accused. It is no part of the prosecution duty to somehow hook the crook. Even in cases where the defence of the accused does not appear to be credible or is palpably false that burden does not become any the less. It is only when this burden is discharged that it will be for the accused to explain or controvert the essential elements in the prosecution case, which would negative it. It is not however for the accused even at the initial stage to prove something which has to be eliminated by the prosecution to establish the ingredients of the offence with which he is charged, and even if the onus shifts upon the accused and the accused has to establish his plea, the standard of proof is not the same as that which rests upon the prosecution. "
The onus and duty to prove the case against the accused is upon the prosecution and the prosecution must establish the charge beyond reasonable doubt. It is also a cardinal principle of criminal jurisprudence that if there is a reasonable doubt with regard to the guilt of the accused the accused is entitled to benefit of doubt resulting in acquittal of the accused. Reference may also be made to the judgment titled as [PRECEDENT].
For the forgoing reasons, I hold that the prosecution has failed to prove its case against the accused beyond reasonable doubt. Benefit of doubt is given to the accused. The accused is accordingly acquitted for the offence punishable U/[SECTION] of [ACT].
Announced in the open court ( [ENTITY]) on 11.07.2014 MMI/NW/DELHI