IN THE COURT OF SH. SUNIL KUMAR, METROPOLITAN MAGISTRATE, ROHINI DISTRICT COURTS, DELHI State Vs. [ENTITY] FIR No.183/05 PS Jahangirpuri The date of institution of case: 09.09.2005 The date of reserving the order: 12.04.2013 The date on which Judgment pronounced: 12.04.2013 JUDGMENT
[CASE NUMBER] Date of commission of offence : 02.03.2005 Name of the complainant : [ENTITY] Name & address of accused : [ENTITY], W/o Sh. [ENTITY] R/o H. No. D 1435, Jahangirpuri, Delhi.
Offence complained of : [SECTION] of [ACT] Final order : Acquitted Date of order : 12.04.2013 BRIEF REASONS FOR DECISION: 1 Briefly stated, the prosecution case is that on 12.04.2013, at
about 4:45 pm at ED Road Corner, near Main Road, Jahangirpuri, Delhi, the accused was found in possession of one plastic can containing 12 bottles 750 ML each of illicit liquor without any license or permit and the accused has been charged for the offence punishable U/[SECTION] of the [ACT].
State vs. [ENTITY], FIR No. 183/05, PS Jahangirpuri Page no.1/11 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 on dated 08.05.2007 to which, she has pleaded not guilty and claimed trial.
3 In support of the version, the prosecution has examined three witnesses, out of six witnesses as cited in the list of witnesses.
4 On careful scrutiny of the testimony of the witnesses reveals that PW1 [ENTITY] has deposed in his deposition that on 07.03.2005, he received one bottle of illicit liquor duly sealed with the seal of RM and form 29 from MHC (M) on the instruction of the IO to deposit the same in Excise Office. He further deposed that he went to the Excise Office vide [CASE NUMBER] and deposited the same and thereafter receipt of the same was handed over to MHC (M) by him. He further deposed that the case property was not tampered by anybody till it remained in his custody.
This witness was not cross examined on behalf of the accused despite the opportunity given to her.
5. PW 2 [ENTITY] has deposed that on 02.03.2005, he was on patrolling duty alongwith [ENTITY] and at about 4:30 pm when they reached in front of BJRM Hospital, a secret informer informed the IO that a lady was coming from ITI Side having illicit State vs. [ENTITY], FIR No. 183/05, PS Jahangirpuri Page no.2/11 liquor and if raided, she could be apprehended. He further deposed that on the basis of information, IO prepared a raiding party, including secret informer. He further deposed that IO asked four five persons to join the investigation but none of them joined. He further deposed that at about 4:45 pm, at the instance of secret informer, the accused was apprehended and name was revealed at Sulochna with a white colouor plastic can having illicit liqour. He further deposed that IO took the plastic can and found the smell of liquor. He further deposed that he had brought a bucket and empty bottle from a junk shop and IO measured the liquor and found 12 bottles of 750 Ml each. He further deposed that IO took out one bottle as sample and duly sealed with the seal of RM. He further deposed that seal after use was handed over to him by the IO and IO prepared from M 29 i.e Mark A and IO seized the case property vide memo Ex PW2/A and prepared rukka vide memo Ex PW2/B and handed over the rukka to him for registration of FIR. He further deposed that after getting the case FIR registered, he alongwithASI [ENTITY] and Lady [ENTITY] came back alongwith copy of FIR and original rukka and handed over the same to the IO. HE further deposed that IO [ENTITY] handed over the the case property, documents of the present case and accused to ASI [ENTITY] and thereafter ASI [ENTITY] prepared site plan at the instance of first IO which is Ex PW2/C. He further deposed that second IO ASI [ENTITY] arrested the accused vide Ex PW2/D and personal search was conducted by W Ct. [ENTITY] vide memo Ex PW2/E. This witness has correctly identified the accused and case property vide Ex P1.
State vs. [ENTITY], FIR No. 183/05, PS Jahangirpuri Page no.3/11 This witness was not cross examined on behalf of the accused despite the opportunity given to her.
6. PW 3 ASI [ENTITY] who is the IO in the present case has deposed in his prosecution evidence that on 02.03.05, he was posted at Jahangir Puri as HC and on that day he was on patrolling duty along with Ct. [ENTITY] at BJRM hospital. And during patrolling they met one secret informer who informed them that one lady would come from the side of ITI Chowk and would go towards the side of D Block, Jahangir Puri who was having in possession of plastic cane containing liquor. He further deposed that on this information he prepared the raiding party consisting of Ct. [ENTITY] and secret informer. He further deposed that thereafter he requested 45 public persons to join the raiding party, but none agreed and left the spot. He further deposed that at about 4.45 pm they made a nakabandi at ED Road and after sometime they noticed one lady who was coming from the side of ITI Chowk who was having plastic cane in her possession and on seeing the police party she started moving back and at the instance of secret informer the accused was apprehended with plastic can. He further deposed that the name of the accused was revealed as [ENTITY]. He further deposed that thereafter he checked the plastic can by opening the cap of the can and found liquor on smelling and Ct. [ENTITY] also checked and found liquor on smelling. He further deposed that thereafter on his direction Ct. [ENTITY] brought the empty bottle of 750 ml and empty bucket and thereafter the liquor of the said can was poured into the empty bucket and measured with the help of above mentioned articles. He State vs. [ENTITY], FIR No. 183/05, PS Jahangirpuri Page no.4/11 further deposed that on measuring it came out to be 12 bottles and thereafter out of which one bottle was separated as a sample. He further deposed that thereafter he sealed the sample with the seal of RM and remaining liquor was poured back into the plastic can and same was sealed with the seal of RM. He further deposed that Form M29 was also filled by him at the spot vide Ex. PW3/A. He further deposed that the case property along with Form M 29 was taken into police possession vide seizure memo vide Ex. PW2/A. He further deposed that seal after use was handed over to Ct. [ENTITY] and thereafter he prepared the rukka Ex. PW2/B and same was handed over to Ct. [ENTITY] for the registration of the case. He further deposed that Ct. [ENTITY] left the spot for the registration of the case and after registration of the case Ct. [ENTITY] came back at the spot along with ASI [ENTITY]. He further deposed that he handed over the custody of the accused, case property and other documents prepared by him to the second IOASI [ENTITY] who prepared site plan at his instance and recorded his statement. He further deposed that thereafter he was relived from the spot. This witness has correctly identified the accused and the case property Ex. P1.
This witness was also not crossexamined on behalf of the accused despite opportunity given to her. Thereafter, on dated 24.11.2012, PE was closed as despite giving several opportunities, the prosecution has failed to complete its remaining prosecution evidence and also considering the fact that the case pertains to the year 2005.
State vs. [ENTITY], FIR No. 183/05, PS Jahangirpuri Page no.5/11 7 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.
8 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.
9 On the contrary, Ld. APP for the State 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.
State vs. [ENTITY], FIR No. 183/05, PS Jahangirpuri Page no.6/11 10 I have heard Ld. Counsel for the accused, ld. APP for the State and perused the material on record carefully.
11 I have given my thoughtful consideration to the testimonies of the witnesses and perused the entire material on record carefully and 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.
12 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, IO states that he asked four five passers by to join the investigation, but none agreed and he has also not given any notice to them upon their refusal. The said police official failed to give any reasonable excuse as to why he has not given any notice to the public persons who refused to join the investigation. This failure on the part of the prosecution creates reasonable doubts in the prosecution story.
13 In this regard reliance may be placed on the following case laws: In case reported as [PRECEDENT], the Hon'ble Punjab & Haryana High Court has held that:
State vs. [ENTITY], FIR No. 183/05, PS Jahangirpuri Page no.7/11 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 [PRECEDENT], 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 .
14 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 made to join public witnesses or that they were not available. But in State vs. [ENTITY], FIR No. 183/05, PS Jahangirpuri Page no.8/11 the instant case, IO has not made sincere efforts to join the public persons in the investigation.
15 In such cases in view of [PRECEDENT] and [PRECEDENT] State 1996 [CASE NUMBER] 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 [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.
16 In case law reported as [PRECEDENT], 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 [PRECEDENT] has also ruled that:
State vs. [ENTITY], FIR No. 183/05, PS Jahangirpuri Page no.9/11 "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."
17 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.
18 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 State vs. [ENTITY], FIR No. 183/05, PS Jahangirpuri Page no.10/11 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]. The file be consigned to record room.
Announced and dictated in the open court today i.e. on 12.04.2013 (SUNIL KUMAR) MM/ROHINI COURTS:DELHI State vs. [ENTITY], FIR No. 183/05, PS Jahangirpuri Page no.11/11