IN THE COURT OF SH. SUNIL KUMAR, METROPOLITAN MAGISTRATE, ROHINI DISTRICT COURTS, DELHI [ENTITY] Vs. [ENTITY] FIR No.589/2001 PS Jahangirpuri The date of institution of case: 01.07.2002 The date of reserving the order: 23.01.2013 The date on which Judgment pronounced: 23.01.2013 JUDGMENT
Unique Identification No. : 02401R0323402003 Date of commission of offence : 01.09.2001 Name of the complainant : Ct. [ENTITY] Name & address of accused : [ENTITY], W/o Sh. Sushil, R/o H. No. J1653, Jahangirpuri, Delhi.
Offence complained of : [SECTION] of [ACT] Final order : Acquitted Date of order : 23.01.2013 BRIEF REASONS FOR DECISION: 1 Briefly stated, the prosecution case is that on 01.09.2001, at
about 2.55 pm at Lakhi Park Jhuggi, Near MCD Primary School wali Gali, Jahangirpuri, Delhi, the accused was found in possession of 12 bottles of illicit liquor kept in a can without any license or permit and the accused has been charged with the offence punishable U/[SECTION] of the [ACT].
[ENTITY] vs. [ENTITY], FIR No.589/01, PS Jahangirpuri Page no.1/10 2 After investigation, charge sheet was filed against the accused. Copies of charge sheet were supplied to the accused in compliance to the [SECTION] [ACT] (hereinafter mentioned as [ACT]) and charge for the offence punishable U/[SECTION] of [ACT] was framed by the then ld. Predecessor of this court against the accused, to which, she has pleaded not guilty and claimed trial.
3 In support of the version, the prosecution has examined four witnesses as cited in the list of witnesses.
4 On careful scrutiny of the testimony of the witnesses reveals that PW1Ct. [ENTITY] has deposed that on 01.09.2001, he along with Ct. [ENTITY] were on patrolling duty in the area of IJ Block, Jahangirpuri. At about 2.45 pm, when they reached near MCD School, 1000wali Gali, they noticed one female coming towards Lakhi Park side from the Main Road carrying one plastic can of white colour in her hand. On seeing the police party, she suddenly turned back and started walking fastly. On suspicion, they stopped her near corner of MCD School at a distance of 1520 steps. The can was checked after opening its cap and found containing country made liquor. Thereafter, they informed about the same at PS through telephone. After sometime, [ENTITY]/IO alongwith Lady HC [ENTITY] came at the spot. They handed over the accused alongshore can of illicit liquor to the IO. Passersby were requested by the IO to join the investigation but none agreed and left the spot without disclosing their name and address. He was sent to collect an empty bucket and a bottle to measure the liquor, which were brought by him. The quantity [ENTITY] vs. [ENTITY], FIR No.589/01, PS Jahangirpuri Page no.2/10 of liquor was measured with the help of bottle and found that the total quantity was 12 bottles of 750 ml in all. One bottle was separated as sample and the remaining liquor was again poured into the can. An excise form M29 was filled up by the IO. The sample bottle and the can were sealed with the seal of VST and same were seized vide memo Ex. PW1/A. The seal after use was handed over to him. IO prepared rukka and at about 4.15 pm, he left the spot alongwith rukka for PS for getting the case registered. After having got the case registered, he returned back to the spot alongwith copy of FIR and original rukka. The accused was arrested vide memo Ex. PW1/B and her personal search was conducted by W/HC [ENTITY]. The accused was released on bail at the spot and the case property was deposited in the Malkhana. IO recorded his statement at the spot vide Ex. PW1/C. He also pointed the spot to the IO. He also proved the case property i.e. an empty can as Ex. P1.
This witness was not crossexamined on behalf of the accused despite opportunity granted to him.
5 PW2Retd. SI [ENTITY] was the Duty Officer, who has deposed that on 01.09.2001 at about 4.30 pm, Ct. [ENTITY] brought a rukka sent by [ENTITY] and on the basis of the same, he registered the present case FIR, copy of which is Ex. PW2/A. After the registration of the FIR, he handed over the copy of FIR and original rukka to [ENTITY].
This witness was crossexamined on behalf of the accused.
[ENTITY] vs. [ENTITY], FIR No.589/01, PS Jahangirpuri Page no.3/10 6 PW3HC [ENTITY] has deposed almost on the same lines as deposed by PW1Ct. [ENTITY] discussed hereinabove in the present case and hence, her testimony is not being discussed for the sake of brevity. She further proved personal search memo of the accused as Ex. PW3/A. IO recorded his statement.
This witness was crossexamined on behalf of the accused.
7 PW4[ENTITY] is the IO of the present case, who has deposed almost on the same lines as deposed by PW1Ct. [ENTITY] discussed hereinabove in the present case and hence, his testimony is not being discussed for the sake of brevity. He further proved the statement of [ENTITY] as Ex. PW1/C, excise form M29 as Ex. PW4/A, seizure memo Ex. PW1/A, rukka Ex. PW4/B, site plan Ex. PW4/C, arrest and personal search memos of the accused as Ex. PW1/B and PW3/A respectively, the case property as Ex. P1 and excise result as Ex. P2.
This witness was crossexamined on behalf of the accused. Thereafter, PE was closed.
8 The accused was examined under [SECTION] [ACT] and all the material evidence against her was put to her and she refuted all the allegations leveled against her and submitted that she is innocent and has been falsely implicated in this case by the police. However, she did not opt for leading evidence in her defence.
[ENTITY] vs. [ENTITY], FIR No.589/01, PS Jahangirpuri Page no.4/10 9 Ld. Counsel for the accused has submitted that the accused has been falsely implicated in this case by the police officials. It is further argued that the case of the prosecution rests entirely upon the testimony of police witnesses and there are no independent witnesses to corroborate their testimonies. It is further argued that nothing was recovered from the possession of the accused and the recovery, if any, is the planted one upon the accused. It is further argued that there is material contradictions in the testimony of the witnesses, which is fatal to the case of Prosecution. It is further argued that since the Prosecution could not establish the case against the accused for the alleged offence beyond shadow of doubt, it is, therefore, prayed that the accused may be acquitted of the alleged offence.
10 On the contrary, Ld. APP for the [ENTITY] has submitted that every discrepancy in statements of the witnesses could not be fatal to the Prosecution case. It is further argued that the discrepancies which does not effect the Prosecution case materially does not create infirmity and there is no material discrepancies/contradictions in the Prosecution case. It is further argued that the prosecution has successfully established its case against the accused. Hence, it is, prayed that the accused may be convicted accordingly.
11 I have heard Ld. Counsel for the accused, ld. APP for the [ENTITY] and perused the material on record carefully.
12 I have given my thoughtful consideration to the testimonies of the witnesses and perused the entire material on record carefully and [ENTITY] vs. [ENTITY], FIR No.589/01, PS Jahangirpuri Page no.5/10 observed that as per the prosecution story the accused was found in possession of illicit liquor without any license or permit, but the prosecution could not prove the said allegations upon the accused.
13 In the present case, the prosecution has not been able to prove the present case against the accused. Further, in this case, the Chemical Examiner and MHC(M) to whom the case property had been deposited have not been examined by the prosecution. Further, in the present case, it is stated by PW1Ct. [ENTITY] that IO had asked some passersby to join the raiding party but none agreed and left without disclosing their name and address. This testimony of the IO is not convincing to the Court, as it is highly unnatural that IO could not get even a single person to join in the proceeding despite the fact that the place of arrest is a populated area. The said police official failed to give any reasonable excuse as to why no public person was joined in the police proceedings with notice in writing or why he failed to take legal action u/[SECTION] [ACT] on refusal of the public persons. This failure on the part of the prosecution creates reasonable doubts in the prosecution story.
14 In this regard reliance may be placed on the following case laws: In case reported as Roop Chand vs. [ENTITY] of Haryana 1990 CCC 3, the Hon'ble Punjab & Haryana High Court has held that:
[ENTITY] vs. [ENTITY], FIR No.589/01, PS Jahangirpuri Page no.6/10 When some witness from the public was available then the explanation furnished by the prosecution that they refused to join the investigation,the same is wholly unsatisfactory, particularly when the IO did not note down the names and addresses and did not take any action against them .
In case reported as Maluk Singh vs. [ENTITY] of Punjab 1990 CCC 20, the Hon'ble Punjab & Haryana High Court has further held that:
Joining of witnesses in the case of excise is not a mere formality, although there is no bar in taking into account the testimony of police witnesses, as they are also good witnesses, but to restore the confidence of general public in the investigating agency it is always desirable that whenever any witness from the public is available, he should be joined to rule out the possibility of plantation .
15 In the above mentioned cases, there are no public witnesses who had been joined in the proceedings. It is not necessary in such recovery that public witnesses must be joined but sincere attempt must be made to join the public witnesses. There can be cases when public witnesses are reluctant to join or are not available. All the same, the prosecution must show a genuine attempt having been [ENTITY] vs. [ENTITY], FIR No.589/01, PS Jahangirpuri Page no.7/10 made to join public witnesses or that they were not available. A stereotype statement of nonavailability or nonagreement on behalf of the witnesses will not be sufficient to serve the purpose.
16 In such cases in view of Saifulla Vs. [ENTITY] 1998 (1) CCC 497(Delhi) and Abdul Gaffar Vs. [ENTITY] 1996 JCC 497 (Delhi) which held that benefit of doubt is to be given to the accused. In this case also it is stated by the IO that the seal after use was handed over to [ENTITY], meaning thereby the seal was kept by the police officials themselves and was not handed over to any independent person. Hence, the possibility of tempering with the case property also can not be ruled out in this case as the seal remained with the police official of the same police station.
17 In case law reported as Sadhu Singh vs. [ENTITY] of Punjab 1997 (3) Crimes 55, the Hon'ble Punjab & Haryana High Court observed as under: "In a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubts. It is for the prosecution to travel the entire distance from may have to must have. If the prosecution appears to be improbably or lacks "credibility, the benefits of doubt necessarily has to go to the accused".
The Hon'ble High Court of Delhi in Narain Singh @ Lala vs. [ENTITY] of Delhi 2005 (1) LRC 294 (Del) (DB) has also ruled that:
[ENTITY] vs. [ENTITY], FIR No.589/01, PS Jahangirpuri Page no.8/10 "There must be a chain of evidence so complete as to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."
Further lastly but not the least, the Hon'ble Supreme Court of India in catena of decisions has also held that:
"In Criminal trial benefit of doubt when on the basis of the evidence appearing on record, two views are possible, accused is entitled to benefit of doubt."
18 In this case also as per my observation and analysis, the words Credibility is found missing as there are several discrepancies in the case of the prosecution as mentioned in earlier paras.
19 In view of the facts and circumstances of the case, it is crystal clear that the Prosecution has failed to prove its case beyond the shadow of reasonable doubt. There is no convincing evidence on the record, which could substantiate any charge upon the accused and it can safely be concluded that in the present case the evidence on the record is not at all sufficient to hold the accused guilty of the alleged offence, as the Prosecution story is highly doubtful and the benefit of doubt is the right of the accused. It is also an established law of the land that the accused should not be convicted in doubtful circumstances. Even, if there are two views possible, the view favourable to the accused has to be accepted. Since, the Prosecution [ENTITY] vs. [ENTITY], FIR No.589/01, PS Jahangirpuri Page no.9/10 has failed to establish a case against the accused for the alleged offence beyond reasonable doubt, I am also not inclined to convict the accused in doubtful circumstances. Consequently, by giving benefit of doubt, I hereby acquit the accused [ENTITY] for the offence punishable U/[SECTION] of [ACT]. Bail bond of accused stands cancelled. Surety stands discharged. Documents of her surety, if any be returned after cancellation of endorsement on it.
20 Case property, if any, be destroyed in accordance with rules on expiry of period of Appeal/Revision, if none is preferred or subject to decision thereof.
21 The file be consigned to record room.
Announced and dictated in the open court today i.e. on 23.01.2013 (SUNIL KUMAR) MM/ROHINI COURTS:DELHI [ENTITY] vs. [ENTITY], FIR No.589/01, PS Jahangirpuri Page no.10/10