Delhi District Court
State vs . Sunita on 1 May, 2012
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IN THE COURT OF SH. MANISH KHURANA, M. M.(Outer),
Rohini Courts, Delhi
State Vs. Sunita
P. S. Bawana
JUDGEMENT
(a) The FIR no. of the case : 202/2007
(b) Unique identification No. : 02404R0863992007
(c) The date of commission of offence : 26.04.2007
(d) The name of complainant : Ct. Rajender Singh, 1122/NW
(e) The name and parentage of accused : Sunita W/o Sh. Dharmender
Kumar, R/o Kailash Vihar,
Pansali, Khan Chowk,
Prahladpur, Delhi, Presently at
H. No. 9, Vishnu Garden
Khala, Delhi.
(f) The offence complained or proved : U/s 61/1/14 Excise Act.
(g) The plea of accused : Pleaded not guilty and
claimed trial.
(h) Date of Institution : 30.11.2007
(i) The date on which : 01.05.2012
judgment was reserved
(j) The final order : Acquitted
(k) The date of such order : 01.05.2012
Brief statement of the reasons for the decision:
FIR No. 202/07 P. S. Bawana
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1. The prosecution story in brief is that on 26.04.2007 at about 9.25 pm at main road Theka Sharab, Kailash Vihar Pansali, Delhi, within the jurisdiction of PS Bawana, the accused lady was found in possession of one plastic cane containing countrymade liquor equivalent to 10 bottles of 750 ml each, without any permit or license for the same and hence committed an offence u/s 61/1/14 of Excise Act.
2. The matter was investigated by the police and a charge sheet U/s 61/1/14 Excise Act was filed against the accused lady.
3. From the material on record a charge U/s 61/1/14 of Punjab Excise Act was made out against the accused lady to which she pleaded not guilty and claimed trial.
4. To support its case the prosecution has examined 04 witnesses.
5. PW1 HC Vijay Pal deposed that on 26.04.2007 he was posted at P.S. Bawana and was working as Duty Officer. He further deposed that on that day he received a rukka through Ct. Rajesh which was sent by HC Rajender and on the basis of the same he registered the present FIR. Computerized copy of the same is Ex. PW1/A (O.S.R.). He further deposed that he also made endorsement on rukka Ex. PW1/B.
6. Opportunity to cross examine the above said witness was given to the accused but to no avail.
7. PW2 HC Rajesh deposed that on 26.04.07 he was posted at PP Shahbad Dairy, P. S. Bawana as Constable and he was present in the PP alongwith FIR No. 202/07 P. S. Bawana 3 HC Rajender. He further deposed that on receiving the information regarding the apprehension of one lady he alongwith HC Rajender left the PP for the spot. When they reached the spot they met Ct. Rajender who produced the accused alongwith case property i.e. illicit liquor. He further deposed that IO HC Rajender requested 45 passersby to join the investigation but none agreed and left the spot without disclosing their names and address. Accused disclosed her name as Sunita. He further deposed that on search it was found total 10 bottles of illicit liquor of 750 ml. He further deposed that one bottle was taken out as sample and remaining liquor was poured into the same plastic cane. The cane was sealed with the seal of RSC. He further deposed that IO prepared Form M29 and served with the same seal. The sample bottle was also sealed with the seal of RSC. He further deposed that the seal after use was handed over to Ct. Rajender. The liquor was taken into possession vide memo Ex. PW2/A. He further deposed that IO prepared a rukka and handed over the same to him for the registration of the FIR. He went to P. S. and got registered the FIR and returned at the spot alongwith the copy of FIR and original rukka. He further deposed that IO prepared the Site plan at the instance of the Ct. Rajender. IO arrested the accused vide memo Ex. PW2/B and her personal search was conducted with the help of one public lady Vimla vide memo Ex. PW2/C. Thereafter accused was released on bail on the spot and the case property was deposited in the Malkhana. He FIR No. 202/07 P. S. Bawana 4 identified the accused. MHC(M) produced one sealed plastic cane which was filled more than half of the cane with the illicit liquor. Witness identified the same. The plastic cane is Ex. P1.
8. During his cross examination by Sh. V P Singh, Ld. counsel for the accused, witness admitted that the lid of the cane could easily be removed without disturbing the seal. He further admitted that the accused was arrested from a residential area and IO did not asked any residential person to join the raiding party. He further stated that IO asked only passersby to join the raiding party. He further stated that no legal notice was served upon the person who refused to join the raiding party. He further stated that the accused was arrested at 10.30 pm. He did not remember as to who conveyed the message to the relatives of the accused. He further stated that IO pasted the particulars of the case on the cane when the cane was produced no particulars of the case were found thereupon. He could not tell the time as to when he left the spot. He denied the suggestion that the accused was lifted from her house and planted in this case. He further denied the suggestion that all the papers were prepared in the Police Station.
9. PW3 Ct. Rajender deposed that on 26.04.07 he was posted at PP Shahbad Dairy P S Bawana as Constable. He further deposed that on that day he was on patrolling duty. At about 9:25 pm he was coming from the Kailash Vihar Pansali to Police Post and when he reached Desi Sharab Theka he FIR No. 202/07 P. S. Bawana 5 saw one lady coming from the Prahladpur side who was going towards Kailash Vihar Pansali having one plastic cane in her right hand. After seeing him in uniform she turned back and started walking with a pace and on suspicion she was stopped and plastic cane was checked. It was smelling liquor. He further deposed that he informed regarding the same at PP Shahbad Dairy and after sometime HC Rajender and Ct. Rajesh reached at the spot and he handed over the custody of the accused lady alongwith the recovered cane to the IO HC Rajender. Thereafter IO requested 45 passersby to join the investigation but none agreed and left the spot without disclosing their names and addresses. On interrogation name of the accused was revealed as Sunita. He further deposed that IO asked Ct. Rajesh to bring an empty bucket and an empty bottle of 750 ml from the Police Post for measurement of liquor which he brought. IO measured the liquor and it was found equivalent to 10 bottles of 750 ml each. One bottle was taken out as sample and remaining liquor was poured in respective Cane. The Cane and the sample were sealed with the seal of RSC. He further deposed that IO prepared form M-29 and served with the same seal and the seal after use was handed over to him. The liquor was taken into police possession vide memo already Ex. PW2/A. He further deposed that IO recorded his statement and prepared a rukka and handed over the same to Ct. Rajesh for registration of the FIR who accordingly went to PS and got registered the FIR and came back at the spot alongwith copy of FIR and FIR No. 202/07 P. S. Bawana 6 original rukka and handed over the same to IO. He further deposed that IO prepared site plan at his instance. IO arrested the accused and also conducted the personal search of the accused vide memos already Ex. PW2/B and Ex. PW2/C respectively. Accused was released on bail after producing sufficient surety and the case property was deposited in the Malkhana. He further deposed that on 06.06.07 on the instruction of the IO he took the sample from MHC(M) and deposited the same at Excise Lab vide RC No. 111/21/07 and receipt on RC alongwith Form M29 was handed over to MHC(M). He identified the accused. He identified the case property i.e. plastic cane, already Ex. P1.
10. During his cross examination by accused witness admitted that the spot was a public place but no written notice was served to any passersby who refused to join the investigation. He further admitted that no handing over memo of the seal was prepared. He further stated that accused was arrested at about 11.30 pm and he finally left the spot at about 12.30 pm. He denied the suggestion that accused was falsely implicated in this case or that all the documents were fabricated to implicate the accused. He further denied the suggestion that all documents were prepared in P. S. or that the case property was planted upon the accused.
11. PW4 ASI Rajender Singh deposed that on 26.04.07 he was posted at PP Shahbad Dairy P S Bawana as Head Constable. He further deposed that on that day he received DD No. 32PP and the investigation in the present case FIR No. 202/07 P. S. Bawana 7 was marked to him. Thereafter he alongwith Ct. Rajesh reached at the spot i.e. near Desi Sharab Theka(old), Pansali road, Delhi where he met Ct. Rajender who handed over him the custody of the accused lady Sunita alongwith recovered plastic cane. He further deposed that he checked the plastic cane and the same was smelling liquor. Thereafter he requested 45 passersby to join the investigation but none agreed and left the spot without disclosing their names and addresses. He further deposed that on interrogation name of the accused was revealed as Sunita. He asked Ct. Rajesh to bring an empty bucket and an empty bottle of 750 ml from the Police Post for measurement of liquor which he brought. He measured the liquor and it was found equivalent to 10 bottles of 750 ml each. One bottle was taken out as sample and remaining liquor was poured in respective Cane. The Cane and the sample were sealed with the seal of RSC. He further deposed that IO prepared form M-29 Ex. PW4/A and served with the same seal and seal after use was handed over to Ct. Rajender. He further deposed that liquor was taken into police possession vide memo already Ex. PW2/A. Thereafter he recorded the statement of Ct. Rajender already Ex. PW3/A. He further deposed that he prepared a rukka Ex. PW4/B and handed over the same to Ct. Rajesh for the registration of the FIR. Who accordingly went to PS and got registered the FIR and came back at the spot alongwith copy of FIR and original rukka and handed over the same to him. He further deposed that he prepared site plan at the FIR No. 202/07 P. S. Bawana 8 instance of Ct. Rajender. He arrested the accused and also conducted the personal search of the accused by one Vimla W/o Roshan vide memos already Ex. PW2/B and Ex. PW2/C respectively. Accused was released on bail after producing sufficient surety and the case property was deposited in the Malkhana. He recorded the statement of witnesses. He further deposed that on 06.06.07 he instructed Ct. Rajender to take the sample from MHC(M) and to deposit the same at Excise Lab vide RC No. 111/21/07. He further deposed that on 24.07.07 he collected the result of Excise Lab. from MHC(R). He identified the accused. He identified the case property i.e. plastic cane already Ex. P1.
12. During his cross examination by the accused, witness admitted that the spot was a public place but no written notice was served to any passersby who refused to join investigation. He further admitted that no handing over memo of the seal was prepared. He further stated that he sent rukka to P. S. for registration of FIR through Ct. Rajesh at 10.30 pm and he returned at 11.30 pm. Accused was arrested at about 11.45 pm and they finally left the spot at about 12.15 pm. He denied the suggestion that accused was falsely implicated in this case or that all the documents were fabricated to implicate the accused. He further denied the suggestion that all the documents were prepared in P. S. or that he did not join the investigation.
13. Thereafter Prosecution Evidence was closed.
14. Accused lady was examined U/s 281 Cr.P.C. and all the incriminating FIR No. 202/07 P. S. Bawana 9 evidence coming on record was put to the accused.
15. The accused lady submitted that she is innocent and has been falsely implicated in this case and she denied for leading DE.
16. I have heard Ld. APP for State and the accused and perused the record.
17. I have given a considered thought to the rival submissions made by Ld. APP for the state and the accused keeping in view the material available on the judicial file.
18. It is a settled proposition of criminal law that prosecution is supposed to prove its case on judicial file beyond reasonable doubts by leading reliable, cogent and convincing evidence. Further it is a settled proposition of the criminal law that in order to prove its case on judicial files prosecution is supposed to stand on its own legs and it cannot drive any benefit whatsoever from the weakness if any in the defence of the accused. The burden of proof of the version of the prosecution in a criminal trial through out the trial is on the prosecution and its never shifts to the accused and the accused is entitled to the benefit of every reasonable doubt in the prosecution story and such doubts entitles the accused to acquittal.
19. As per the deposition of PWs the IO requested some public persons to join the investigation but none obliged. It seems that no attempt has been made by the police to join independent public persons in the proceedings despite availability of such witnesses. After the apprehension of the accused, IO of the case could very well have served the passersby/public witnesses with FIR No. 202/07 P. S. Bawana 10 notice in writing to join the police proceedings inasmuch as at that point of time accused already stood apprehended and there was no possibility of accused escaping his arrest or crime going undetected. At least in the facts and circumstances of the case in my opinion IO must have asked the passersby/persons available at the spot by serving them notice in writing and in case of their refusal IO must have taken action against them U/s 187 IPC. Facts and circumstance of the case suggest that no sincere efforts have been made by police official to join independent public witnesses in the police proceedings. In this regard reliance is being placed on the following judgments: In a case law reported as Anoop Joshi V/s State, 1992 (2) C.C.Cases 314 (HC), Hon'ble High Court of Delhi has observed as under:
''It is repeatedly laid down by this Court that in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evident that no such sincere efforts have been made, particularly when we find that shops were open and one or two shopkeepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the shopkeepers had declined to join the raiding party, the police could have later on taken legal action against such FIR No. 202/07 P. S. Bawana 11 shopkeepers because they could not have escaped the rigours of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC''.
20. Further in case law reported as Sadhu Singh V/s State of Punjab,1997 (3) Crimes 55 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 improbable or lacks credibility the benefit of doubt necessarily has to go to the accused'' ''In the present case, the State examined two witnesses namely, HC Raj Kumar, who appeared as PW1 and HC Harjinder, who appeared as PW2. Both the witnesses supported the prosecution version in terms of the recovery of opium from the person of the petitioner, but there was no public witness who had joined. It is not necessary in such recoveries that public witnesses must be joined, but 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 a public witness or that they FIR No. 202/07 P. S. Bawana 12 were not available. A stereotype statement of nonavailability will not be sufficient particularly when at the relevant time, it was not difficult to procure the service of public witness. This reflects adversely on the prosecution version''.
21. The prosecution has failed to prove beyond reasonable doubts that accused was found in possession of illicit liquor. PWs have admitted in their cross examination that the spot was a public place and public persons were available as passersby were coming and going but IO have not joined any public person in the investigation nor any notice u/s 187 IPC was given to any other person who allegedly refused to join investigation. PWs have admitted that IO did not call any person form the residential area near the spot to join the raiding party.
22. Story of the prosecution witness is also doubtful as no handing over memo of the seal was prepared. PW2 HC Rajesh stated in his cross examination that the accused was arrested at 10.30 pm whereas time of the arrest of the accused on the arrest memo is 11.30 pm. PW2 could not tell as to who conveyed the message of arrest of the accused to his relatives. PW4 ASI Rajender Singh stated in his cross examination that he sent rukka through Ct. Rajesh at 10.30 pm and he returned at 11.30 pm and thereafter the accused was arrested whereas according to Ct. Rajesh accused was arrested at 10.30 pm. These contradictions cast doubt over the story of the prosecution case. Further the IO PW4 ASI Rajender Stated in his FIR No. 202/07 P. S. Bawana 13 examination that the accused was arrested in the presence of one Vimla W/o Roshan and arrest and search memos were also prepared in her presence but the said Vimla has not been sited as a witness by the IO and no explanation for the same has been provided.
23. More over connecting evidence is not placed on record to complete chain of events. No corroborating evidence in the form of DD entry vide which PWs have left the police station for patrolling duty is proved on record. It casts doubt over the presence of the PWs at the spot who are police officials and are required to make DD entry regarding their arrival and departure. Thus evidence which came on the record does not inspire confidence of the court. Also in this case no efforts were made to hand over the seal after use in the presence of independent public persons and in such cases in view of SAIFULLA VS STATE 1998 (1) CCC 497 (DELHI) and ABDUL GAFFAR VS. STATE 1996 JCC 4097 (DELHI) benefit of doubt is to be given to the accused.
24. Hence in these circumstances prosecution having failed to prove its case beyond reasonable doubts, the accused Sunita is acquitted for the offence u/s 61/1/14 Ex. Act.
ANNOUNCED IN THE OPEN COURT
TODAY ON 01.05.2012 (MANISH KHURANA )
METROPOLITAN MAGISTRATE
ROHINI DELHI
FIR No. 202/07 P. S. Bawana