IN THE COURT OF SH. [ENTITY], METROPOLITAN MAGISTRATE, ROHINI DISTRICT COURTS, DELHI State Vs. [ENTITY] FIR No. 934/04 U/[SECTION] [ACT] PS Jahangirpuri The date of institution of case: 08.09.2005 The date of reserving the order: 06.03.2013 The date on which Judgment pronounced: 06.03.2013 JUDGMENT
[CASE NUMBER] Date of commission of offence : 12.12.2004 Name of the complainant : [ENTITY] Name & address of accused : [ENTITY], S/o Sh. [ENTITY], R/o D1056, Jahangirpuri, Delhi.
Offence complained of : [SECTION] of [ACT] Final order : Acquitted Date of order : 06.03.2013 BRIEF REASONS FOR DECISION: 1 Briefly stated, the prosecution case is that on 12.12.2004, at
about 5.15 pm at ED Road Corner, in front of BJRM Hospital, Delhi, the accused was found in possession of one plastic can containing 12 bottles of illicit liquor, without any license or permit and the accused has been charged with the offence punishable U/[SECTION] of the [ACT].
State vs. [ENTITY], FIR No.934/04, PS Jahangirpuri Page no.1/8 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, he has pleaded not guilty and claimed trial.
3 In support of the version, the prosecution has examined only two witnesses out of seven witnesses as cited in the list of witnesses.
4 On careful scrutiny of the testimony of the witnesses reveals that PW1HC [ENTITY] was the Duty Officer, who has proved the copy of FIR vide Ex. PW1/A (OSR) and the endorsement made by him on the original rukka vide Ex. PW1/B. This witness was not crossexamined on behalf of the accused despite opportunity granted for the same.
5 PW2ASI [ENTITY] is the first IO of the present case, who has deposed that on 12.12.2004, he alongwith Ct. [ENTITY] were on patrolling duty near BJRM Hospital and there, he received a secret information through an informer that one person would come from the side of ITI carrying a plastic can containing illicit liquor and if raided, he could be apprehended. Fourfive passers by were requested to join the investigation but none agreed. At about 5.15 pm, at the instance of secret informer the accused present in the court was apprehended with a plastic can, which was checked and found that the same was containing illicit liquor. He sent Ct. [ENTITY] to bring an State vs. [ENTITY], FIR No.934/04, PS Jahangirpuri Page no.2/8 empty bucket and an empty bottle of 750 ml, who brought the same. The quantity of the liquor was measured and it found containing 12 bottles of 750 ml each. One bottle was separated towards sample and remaining liquor was again poured into the can and he filled up an excise form M29 Ex. PW2/A. The sample bottle, can and the excise form were sealed with the seal of RM and thereafter same were taken into possession vide Seizure memo Ex. PW2/B. The seal after use was handed over to Ct. [ENTITY]. A rukka was prepared by him vide Ex. PW2/C and the same was handed over to Ct. [ENTITY] for getting the case registered. After having got the case registered, he returned back alongwith ASI [ENTITY]/second IO, to whom he handed over the custody of the accused, case property and relevant documents. A site plan was prepared by second IO at his instance, who recorded his supplementary statement. Thereafter, he was relieved. He further identified the case property as Ex. P1.
This witness was also not crossexamined on behalf of the accused despite opportunity granted for the same. Thereafter, PE was closed.
6 The accused was examined under [SECTION] [ACT] and all the material evidence against him was put to him and he refuted all the allegations leveled against him and submitted that he is innocent and has been falsely implicated in this case by the police. However, he did not opt for leading evidence in his defence.
State vs. [ENTITY], FIR No.934/04, PS Jahangirpuri Page no.3/8 7 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.
8 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.
9 I have heard Ld. Counsel for the accused, ld. APP for the State and perused the material on record carefully.
10 I have given my thoughtful consideration to the testimonies of the witnesses and perused the entire material on record carefully and State vs. [ENTITY], FIR No.934/04, PS Jahangirpuri Page no.4/8 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.
11 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 the IO that public persons were asked to join the investigation but none agreed. Hence, 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.
12 In this regard reliance may be placed on the following case laws: In case reported as as Roop Chand vs. State of Haryana , 1990 CCC 3, the Hon'ble Punjab & Haryana High Court has held that:
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 State vs. [ENTITY], FIR No.934/04, PS Jahangirpuri Page no.5/8 IO did not note down the names and addresses and did not take any action against them .
In case reported as Maluk Singh vs. State 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 .
13 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. A stereotype statement of nonavailability or nonagreement on behalf of the witnesses will not be sufficient to serve the purpose.
14 In such cases in view of [PRECEDENT] and [PRECEDENT] which held that benefit of doubt is to be given to the accused. In this case State vs. [ENTITY], FIR No.934/04, PS Jahangirpuri Page no.6/8 also, it is stated by the IO that the seal after use was handed over to Ct. [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.
15 In case law reported as [PRECEDENT], 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 the case [PRECEDENT] has also ruled that:
"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."
State vs. [ENTITY], FIR No.934/04, PS Jahangirpuri Page no.7/8 16 In this case also as per my observation and analysis, the word Credibility is found missing as there are several discrepancies in the case of the prosecution as mentioned in earlier paras. Therefore, the accused is again entitled to benefit of doubt.
17 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 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 06.03.2013 ([ENTITY]) MM/ROHINI COURTS:DELHI State vs. [ENTITY], FIR No.934/04, PS Jahangirpuri Page no.8/8