Delhi District Court
Join Independent Witnesses. In Roop ... vs . State Of on 20 April, 2011
IN THE COURT OF SHRI RAJESH MALIK : MM (WEST) 05
TIS HAZARI COURTS : DELHI
1.FIR No. :271/03
2.Unique Case ID No. :02401RO826032003
3.Title
3(A).Name of complainant :Ct. Harpinder Singh
3(B).Name of accused :Smt. Lalita Devi W/o Amar
Singh @ Bharat R/o D53,
Dharm Puri, Khyala, Delhi.
4.Date of institution of challan :23.08.2003
5.Date of Reserving judgment :20.04.11
6.Date of pronouncement :20.04.11
7.Date of commission of offence :06.05.2003
8.Offence complained of :Under Section 61 of Punjab
Excise Act,1914
9.Offence charged with :Under Section 61 of Punjab
Excise Act,1914
10.Plea of the accused :Pleaded not guilty
11.Final order :Acquitted.
BRIEF REASONS FOR THE DECISION OF THE CASE:
1. The case of the prosecution in brief is that on 06.05.03 at about 9.15 pm at Patel Chowk, J.J.Colony, Khyala, Delhi, she was found in possession of plastic can which was equivalent to 22 bottles of 750 ml each seized vide seizure memo Ex.PW1/B without any permit or licence and thereby committed an offence punishable u/s 61.1.14 Excise Act. FIR No. 1/9
2. Accordingly, charge sheet was filed, copies were supplied to the accused in compliance of section 207 Cr.P.C and charge sheet u/s 61/1/14, Excise Act was framed against the accused to which she pleaded not guilty and claimed trial.
3. The prosecution in support of its case examined Four witnesses.
PW1 Ct. Harpinder deposed that on 06.05.03, he was posted PP Khyala PS Tilak Nagar. On that day, he was on patrolling duty and while patrolling when he reached at J J Colony near Patel Chowk, there at about 9.15 pm, he saw accused Lalita Devi present in court correctly identified coming from the side of J J Colony having on her right shoulder one plastic can of white colour containing some liquid contents in it. Accused upon seeing him in police uniform turned back and tried to escape. Upon suspicion, he chased and apprehended the accused and the plastic can recovered from the possession of the accused was checked and upon checking, it found contained country made liquor in it. Upon recovery, he made a call PP Khyala. Upon his call, HC Inder Singh reached at the spot and he produced the recovered can containing liquor and accused to IO. IO recorded his statement Ex.PW 1/A. IO requested 4/5 public persons to join the investigation but non agreed and left the place without disclosing their names and addresses. Thereafter, upon the instruction of IO, he got one bucket, mug and bottle of 750 Ml from the nearby Kabari. IO measured the liquor and upon measuring, it came to 22 bottles of 750 ml each. From the recovered liquor, one bottle of 750 ml was taken as sample. IO filled form excise and thereafter, the plastic can and Form Excise and sample bottles were sealed with the seal of ISD and seal after use was handed over to him FIR No. 2/9 and the case property was seized vide seizure memo Ex.PW1/B. IO prepared rukka and rukka was handed over to him. Accordingly, he went to PS and got the FIR registered and handed over copy of FIR and rukka to IO HC Inder Singh. IO arrested accused vide memo Ex.PW1/C and prepared site plan. Accused was admitted to police bail . Case property was deposited at Malkhana. The witness identified the case property .
PW2 HC Inder Singh deposed that on 06.05.03, he was posted at PP Khyala PS Tilak Nagar as HC. On that day, on receipt of DD No.25, PP Khyala, he went to Petal Chowk, J J Colony, Khyala Delhi where he met Ct. Harpinder who produced the recovered can containing liquor and accused Lalita Devi present in court (correctly identified)to him. He recorded statement of Ct. Harpinder. He requested 4/5 public persons to join the investigation but non agreed and left the place without disclosing their names and addresses. Thereafter, upon his instruction, Ct.Harpinder brought one bucket, mug and bottle of 750 Ml from the nearby Kabari. He measured the liquor and upon measuring, it came to 22 bottles of 750 ml each. From the recovered liquor, one bottle of 750 ml was taken as sample. He filled form excise and thereafter, the plastic can and Form Excise and sample bottles were sealed with the seal of ISD and seal after use was handed over to Ct. Harpinder and the case property was seized vide seizure memo Ex.PW1/B. I prepared rukka Ex.PW2/A and rukka was handed over to Ct. Harpinder. Accordingly, he went to PS and got the FIR registered and handed over copy of FIR and rukka to him. He arrested accused vide memo Ex.PW1/C and prepared site plan Ex.PW2/B. Accused was admitted to police bail. I recorded the statement of witnesses. Case property was deposited at FIR No. 3/9 Malkhana.During investigation, on 30.05.05 upon his instructions Ct.Viju collected a sample bottle and form excise from MHCM vide RC No.25/21 and deposited the same in Excise Lab and he recorded the statement of Ct. Viju and MHCM and he collected excised result Ex.PX and Form Excise filled by him was Ex.PY. He identified the case property as Ex.P1.
PW3 HC Ashok Kumar deposed that on 06.05.2003 at around 11 p.m, he received a rukka which was produced by Ct. Harvinder sent by HC Inder Singh. On the basis of the same, he registered the case FIR No. 271/03. Carbon Copy of the FIR is Ex. PW 3/A. He made an endorsement on rukka Ex.PW3/B. PW4 Ct. Viju P K deposed that on 30.05.03, he was posted at PS Tilak Nagar. On that day, on the instructions of the IO, he collected sample bottle sealed with the seal of ISD along with FormM29 vide RC No. 25/21 from MCHM and deposited the same at Excise Office, ITO. After deposit, he returned the receipt to MHCM and IO recorded his statement. So far as the samples remained with him, the same was not tempered with.
4. No other PW was examined . PE was closed vide order dated 07.03.11. Accused was examined u/s 281 Cr.P.C wherein accused submits that she is innocent and has been falsely and wrongly implicated in this case. She further submits that nothing incriminating was recovered from her possession, in fact, she was lifted by the police official and was taken to PS where liquor was planted upon her. However, she denied to lead any evidence in defence.
5. I have heard Ld. APP for the State and Ld. Counsel for the accused. I have gone through the entire record carefully. FIR No. 4/9
6. Now, the stage has been set to examine the case of the prosecution to see whether it inspires confidence and passes the test of probability, credibility and trustworthiness.
7. No independent public witness has been joined either during raid or during investigation despite opportunity. As per the case of the prosecution, the alleged recovery took place at about 9.15 pm and during crossexamination of PW1, he admitted that he did not request the Kabari to join the proceedings. He further admitted that there was shops near the place of occurrence which were open but IO did not request the shopkeepers to join the proceedings. As per the crossexamination of IO HC Inder Singh, he admitted that the place of apprehension is surrounded by residents and shops but he has not requested occupants for joining investigation. He further admitted that he did not examine the kabari from whom Ct. harpinder procured bucket, mug and empty bottle. He further admitted that he did not even ascertain the name and address of the said kabari from Ct. Harpinder. The explanation given that certain public persons were requested but they refused does not appeal to common sense and does not appear plausible as even names and addresses of those requested have not been mentioned. It does not appeal to common sense that police officials even could not obtain the names and addresses of the persons requested. Admittedly no legal action has been taken against any of the persons who refused to join the raid. This casts doubt about sincere efforts made by the investigating officer to join independent witnesses. In ROOP CHAND VS. STATE OF HARYANA 1990 (1) CLR 69 it was observed that such explanations are unreliable.
FIR No. 5/9
8. In the case of PREM SINGH VS. STATE 1996 CRI.L.J.3604 (DELHI) and in the case of PAWAN KUMAR VS. DELHI ADMN.1989 CRLJ 0127 DEL wherein the court observed as under: ''Kalam Singh has to admit that at the time of the arrest and recovery of the knife, there was a lot of rush of public at the bus stop near Subhash Bazar. According to Jagbir Singh, he did not join any public witness in the case while according to Kalam Singh, no public person was present there. It hardly stands to reason that at a place like a bus stop near Subhash Bazar, there would be no person present at a crucial time like 7.30 pm when there is a lot of rush of commuters for boarding the buses to their respective destinations. Admittedly, there is no impediment in believing the version of the police officials but for that the prosecution has to lay a good foundation. At least one of them should have deposed that they tried to contact the public witnesses or that they refused to join the investigation. Here is a case where no effort was made to join any public witness even though number of them were present. No plausible explanation from the side of the prosecution is forthcoming for not joining the Independent witnesses in case of a serious nature like the present one. It may be that there is an apathy on the part of the general public to associate themselves with the police raids or the recoveries but that apart, at least the IO should have made an earnest effort to join the independent witnesses. No attempt in this direction appears to have been made and this, by itself, is a circumstance throwing doubt on the arrest or the recovery of the knife from the person of the accused.''
9. Further, there is also delay of about 24 days in sending the sample property to the excise lab which has not been explained and in such FIR No. 6/9 circumstances especially when the seal was not handed over to independent persons and remained with the police officials of the same police station where the property was lying benefit of doubt must be given to the accused as observed in AJIT SINGH VS. STATE OF PUNJAB 1984 (2) RECENT CRIMINAL REPORTS 95.
10. In this case, the FIR number has been found mentioned on the recovery memo and it has not been explained by the prosecution how the FIR number was mentioned before registration of FIR. It gives inference that FIR was registered before preparation of memo.
In the case of MOHD. HASHIM VS STATE 1999 (6) A.D. (DELHI) 569 it was observed that when documents are prepared before registration of F.I.R and it contains the F.I.R number then inference has to be drawn that either F.I.R was recorded prior in time or the documents were prepared later on and in such cases benefit of doubt is to be given to the accused.
11. In the present case, it is further observed that a lady accused has been involved in the present case and despite opportunity, IO HC Inder Singh has not made any efforts to join any lady police official in the raiding party. Further, even after the registration of FIR, IO HC Inder Singh has not cared to call any lady police official from PS to join proceedings. Thus, the arrest of the accused on the spot is doubtful.
12. Now, since the prosecution has miserably failed to prove its case beyond all shadow of reasonable doubts , the only plausible findings which can be given against the accused are that of not guilty. Accordingly, the accused is acquitted in the present case. Her surety is discharged. Bail FIR No. 7/9 bond cancelled. Case property be forfeited to the state, to be destroyed after the expiry of the period of appeal or revision, if any.
File be consigned to records after due compliance.
Announced in the open (RAJESH MALIK) Court on 20.04.11 MM ( West)05/NEW DELHI FIR No. 8/9 FIR No. 271/03 PS Tilak Nagar 20.04.11 Present: Ld. APP for the State. Accused in person with counsel.
Statement of the accused has been recorded. However she does not want to lead evidence in her defence.
Ld. Counsel for accused requests that arguments be heard today itself. Accordingly, arguments heard.
Vide separate judgment dictated and announced in the open court, accused is acquitted of offences under Section 61.1.14 Excise Act.
Her bail bond is extended till the expiry of period of limitation for appeal. Case property be forfeited to the state, to be destroyed after the expiry of the period of appeal or revision, if any.
File be consigned to records after due compliance.
(RAJESH MALIK) MM( West)05/NEW DELHI FIR No. 9/9