IN THE COURT OF SH [ENTITY] METROPOLITAN MAGISTRATEI(NORTH WEST) ROHINI COURTS, DELHI [CASE NUMBER]4211/3 [CASE NUMBER] 3.Title of the case: :State Vs [ENTITY] FIR No. 1264/02, PS Sultan Puri. 4.Date of institution :23.05.03 5.Date of reserving Judgment :20.04.15 6.Date of pronouncement :20.04.15 J U D G M E N T :
(a)The date of commission 26.10.02 (b)The name of complainant [ENTITY] (c)The name of accused [ENTITY] S/o Sh. [ENTITY] R/o H. No. 2/636, Sultan Puri, Delhi. (a)The offence complained of 61/1/14 [ACT] (b)The plea of the accused Not guilty (c)The final order Acquitted (d)The date of such order 20.04.15 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 26.10.02 at about 11:20 PM at Police Station Road, Near Nirmal Nursing home, Sultan Puri, Delhi, accused was apprehended on suspicion and from his possession one plastic cane containing illicit liquor equivalent to 10 bottles of 750 ml each was recovered without any permit or license.
After the usual investigation, the charge sheet for the offence U/[SECTION] [ACT] was prepared against the accused.
2. The aforesaid charge sheet was filed before the court on 23.05.03, whereupon the cognizance of the offence was taken against the accused.
The provisions of [SECTION] [ACT] was complied on 29.05.04.
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. In order to prove its case the prosecution examined 4 witnesses PW1 [ENTITY], PW2 [ENTITY], PW3 ASI [ENTITY] and PW4 [ENTITY].
Complainant/ [ENTITY] was on patrolling duty and when he was present at P1P2 block, Sultan Puri, Delhi he noticed the accused with a plastic cane in his hand. On suspicion he apprehended the accused and on checking he found that plastic cane was containing illicit liquor. Complainant called the PS, telephonically, from where PW4/ IO HC [ENTITY] and Ct. [ENTITY] came there. IO asked 45 persons to join the investigation but nonagreed and left without telling their name and addresses. PW4 IO/HC [ENTITY] asked complainant to bring one bucket and empty bottle of 750 ml which complainant complied with. On measuring plastic cane found containing illicit liquor equivalent to 10 bottles of 750 ml. Out of which one bottle was taken out a sample and remaining liquor was poured into the recovered plastic cane. Both sample bottle and plastic cane was sealed with seal of "SS" and form 29 was filed at the spot. Seal after use was handed over to Ct. [ENTITY] by PW4/ IO/HC [ENTITY]. Case property was seized vide seizure memo Ex. PW1/B. Case property is Ex. as P1. PW4 prepared the rukka and got the FIR Ex. PW2/A registered through PW1/complainant. PW4 prepared the site plan and arrested the accused vide memo as Ex. PW1/C. His personal search was conducted vide memo as Ex. PW1/D.
5. Thereafter, on 20.04.2015 Prosecution evidence was closed as even after given sufficient opportunities to lead and complete evidence, prosecution failed to examine any other witness. Thereafter, matter was fixed for Statement of Accused.
6. The Statement of Accused was recorded U/[SECTION]/[SECTION] [ACT] on 20.04.2015 and all the incriminating circumstances came in evidence were put to the accused to which the accused replied that he was falsely implicated and he does 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.
As per prosecution story, the PW1/Complainant was on petrolling duty and at about 11:20 PM at Police Station Road, Near Nirmal Nursing Home, Sultan Puri, Delhi on suspicion he apprehended accused and recovered from his possession one plastic cane containing illicit liquor equivalent to 10 bottles of 750 ml each was recovered without any permit or license.
As per prosecution story, the Liquor was recovered from the possession of accused at about 11:20 PM at Police Station Road, Near Nirmal Nursing home, Sultan Puri, Delhi. However, in spite of it IO had failed to join any public witness in the investigation of present case. IO deposed that he asked 45 persons to join the proceedings but none agreed and left the place without giving their name and address.
At this stage, reference can also be made to a case titled as [PRECEDENT] 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.
It is pertinent to mention that as per prosecution version the seal after use was handed over by PW4 IO/HC [ENTITY] 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. 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 complainant regarding their departure from the police station for patrolling duty. Complainant 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 20.04.15 MMI/NW/DELHI