IN THE COURT OF SH [ENTITY] METROPOLITAN MAGISTRATEIV NORTH WEST ROHINI COURTS, DELHI 1.Case No :105/03 2.Unique I.D. No. :02401R0394962003 3.Title of the case: :[ENTITY] Vs [ENTITY] FIR No. 867/02, PS [ENTITY] 4.Date of institution :07.06.2003 5.Date of reserving Judgment :15.05.2013 6.Date of pronouncement :15.05.2013 J U D G M E N T :
(a)The date of commission 27/12/02 (b)The name of complainant [ENTITY] (c)The name of accused [ENTITY] W/o Sh. Rattan Singh R/o H. No S96, [ENTITY]. (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 15.05.2013 Brief facts for the decision of the case:
1. In the present case, accused [ENTITY] was put to the trial for the offence U/[SECTION] [ACT] on the allegations that on 27.12.02 at 08:00 PM at S96, [ENTITY], Delhi, accused was found selling illicit liquor without any permit or license and from her possession 6 quarters bottles were recovered.
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 07.06.2003, whereupon the cognizance of the offence was taken against the accused.
The provisions of [SECTION] [ACT] was complied on 07.06.2003.
3. After hearing the arguments, the accused was charged for the alleged commission of the offence U/[SECTION] [ACT] to which the accused pleaded "Not Guilty" and instead claimed trial and accordingly the case was fixed for prosecution evidence.
4. During the course of the trial prosecution has examined 5 witnesses PW1 [ENTITY], PW2 [ENTITY], PW3 Lady/ [ENTITY], PW4 [ENTITY] and PW5 ASI [ENTITY] to substantiate the accusation made against the accused.
5. [ENTITY] and [ENTITY] were on patrolling duty when they received secret information that one person is selling liquor in front of S96, [ENTITY]. [ENTITY] asked passerby to join investigation but none joined the investigation and left without telling their whereabouts. [ENTITY] asked [ENTITY] to act as decoy customer, who went to the accused and purchased liquor from her and after purchasing liquor signaled [ENTITY], who arrested accused. From possession of accused 6 quarter bottles of illicit liquor were recovered. Case property was sealed with seal of `RS` and seal after use was handed over to [ENTITY]. Illicit liquor was taken into possession vide seizure memo. Form 29 was filed at the spot. [ENTITY] prepared rukka and got the FIR i.e. Ex. PW2/A registered through [ENTITY], who returned to the spot alongwith ASI [ENTITY] and L/[ENTITY]. The accused was arrested by PW5 IO/ASI [ENTITY] vide memo Ex PW3/A and her personal search was conducted vide memo EX PW3/B. PW5 prepared site plan the same is Ex. PW5/B. Case property was deposited in the malkhana and same is Ex. PX.
6. Thereafter, PE was closed as even after given sufficient opportunities to lead and complete PE, prosecution failed to examine any other PW. Thereafter, matter was fixed for SA on 15.05.13.
7. The [ENTITY]ment of Accused was recorded U/[SECTION]/[SECTION] [ACT] on 15.05.13 and all the incriminating circumstances came in evidence were put to the accused to which the accused replied was he was falsely implicated and he does not want to lead defense evidence. Now let us examine the prosecution evidence brought on record against the accused.
8. In the present case, prosecution has produced and examined 4 witnesses. The testimony of all the witnesses is of formal nature. Prosecution failed to examine recovery witness i.e. [ENTITY] and [ENTITY] despite opportunities. As per prosecution story, the [ENTITY] and [ENTITY] were on patrolling duty when they received secret information regarding selling of illicit liquor and accused persons was apprehended and illicit liquor was allegedly recovered from the possession of accused.
9. As per prosecution story, the Liquor was recovered from the possession of accused at 08.00 PM in front of S96, [ENTITY] which is public Place. However, in spite of it IO had failed to join any public witness in the investigation of present case.
At this stage, reference can also be made to a case titled as Nanak Chand vs. [ENTITY] of Delhi reported as 1992 Cr.L.J 55 wherein it was held that the recovery was from a street with houses on both sides and shops nearby. And, yet no witness from the public has been produced. Not that in every case the police officials are to be treated as unworthy of reliance but their failure to join witnesses from the public especially when they are available at their elbow, may cast doubt.
It is well settled principal of law that the investigating agency should join independent witnesses at the time of recovery of contraband articles, if they are available and their failure to do so in such a situation casts a shadow of doubt on the prosecution case. In the present case also admittedly, the independent witnesses were available at the time of recovery but they refused to associate themselves in the investigation. This explanation does not inspire confidence because the police officials who are the only witnesses examined in the case have not given the names and addresses of the persons contacted to join. It is a very common excuse that the witnesses from the public refused to join the investigation. A police officer conducting investigation of a crime is entitled to ask anybody to join the investigation and on refusal by a person from the public the investigating officer can take action against such a person under the law. Had it been a fact that the witnesses from the public had refused to join the investigation, the investigating officer must have proceeded against them under the relevant provisions of law. The failure to do so by the police officer is suggestive of the fact that the explanation for nonjoining the witnesses from the public is an after thought and is not worthy of credence. All these facts taken together makes the prosecution case highly doubtful
10.It is pertinent to mention that as per prosecution version the seal after use was handed over by Complainant [ENTITY] to [ENTITY]. Both of them were posted in the same police station on the relevant date and time. Seal was not handed over to any independent witness. In such a situation the possibility of tampering with the case property cannot be ruled out.
11. In the judgment titled as "S. L. Goswami v. [ENTITY] of M.P."
reported as 1972 CRI. L. J. 511 (SC) 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. "
12. 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].
13. 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 15.05.13 MM(IV) N/W DELHI FIR No 867/02 St Vs [ENTITY] Page 10 of