Delhi District Court
State vs . Chanda on 10 January, 2013
IN THE COURT OF SH. SUNIL KUMAR, METROPOLITAN
MAGISTRATE, ROHINI DISTRICT COURTS, DELHI
State Vs. Chanda
FIR No.285/2005
PS Jahangirpuri
The date of institution of case: 24.10.2005
The date of reserving the order: 10.01.2013
The date on which Judgment pronounced: 10.01.2013
JUDGMENT
Unique Identification No. : 02401R0987282005 Date of commission of offence : 11.04.2005 Name of the complainant : Ct. Dharambir Singh Name & address of accused : Chanda, W/o Sh. Tilak Raj, R/o Jhuggi No.110,Gali No.4, R.U. Nagar, Jahangirpuri, Delhi.
Offence complained of : Section 61 of Punjab Excise
Act, 1914
Final order : Acquitted
Date of order : 10.01.2013
BRIEF REASONS FOR DECISION:
1 Briefly stated, the prosecution case is that on 11.04.2005, at
about 9.30 pm at Road No.4, R. U. Nagar, GTK Road, Delhi, the accused was found in possession of one white plastic can containing 8 bottles of 750 ml each of illicit liquor without any license or permit and the accused has been charged with the offence punishable U/s 61 of the Punjab Excise Act, 1914.
State vs. Chanda, FIR No.285/05, PS Jahangirpuri Page no.1/9 2 After investigation, charge sheet was filed against the accused. Copies of charge sheet were supplied to the accused in compliance to the section 207 Code of Criminal Procedure (hereinafter mentioned as Cr.PC) and charge for the offence punishable U/s 61 of Punjab Excise Act, 1914 was framed by the then ld. Predecessor of this court against the accused, to which, she has pleaded not guilty and claimed trial.
3 In support of the version, the prosecution has examined three witnesses as cited in the list of witnesses.
4 On careful scrutiny of the testimony of the witnesses reveals that PW1HC Kishori Lal is the Duty Officer, who has deposed that on 11.04.2005 at about 11.25 pm, Ct. Dharambir brought a rukka sent by HC Rohtash Singh and on the basis of the same, he registered the present case FIR, copy of which is Ex. PW1/A. He also made endorsement on the original rukka.
This witness was not crossexamined on behalf of the accused despite opportunity granted to him.
5 PW3HC Rohtash is the IO of the present case, who deposed that on 11.04.2005, the copy of DD No. 32 was handed over to him. Thereafter, he alongwith Lady Ct. Seema reached to the spot where Ct. Dharambir met him, who handed over to him the custody of the accused present in the court and case property. He recorded the statement of Ct. Dharambir vide Ex. PW2/B. Thereafter, he asked Ct. Dharambir to bring one bottle, bucket and mug for measuring the liquor, which were brought by him. On measuring, the liquor was State vs. Chanda, FIR No.285/05, PS Jahangirpuri Page no.2/9 found to be 08 bottles, out of which one bottle was separated as sample and remaining liquor was again kept in the same can. Form M29 Ex. PW3/A was also filled up at the spot. Sample bottle, form M29 and case property were sealed with the seal of RSH and the seal after use was handed over to Ct. Dharambir. Thereafter, he seized the case property vide memo Ex. PW2/A. He prepared rukka Ex. PW3/B and got the case registered through Ct. Dharambir. After registration of FIR, he came back at the spot and handed over the original rukka and copy of FIR to him. Then, he prepared site plan Ex. PW2/C at the instance of Ct. Dharambir. He formally arrested the accused vide arrest memo Ex. PW2/D and personal search of the accused was conducted by Lady Ct. Seema having regard to the decency of the accused, vide personal search memo Ex. PW2/E. Accused was released on police bail at the spot. Then, they all left the spot along with case property to the PS and case property was deposited in the Malkhana of PS. Ct. Dharambir handed over the seal to him after two days. He further deposed that on 13.07.2005, the sample was sent to Excise Laboratory through Ct. Sunil vide RC No. 213/21/05. Thereafter, he collected the result vide Ex. P2. He further identified the case property as Ex. P1.
This witness was also not crossexamined on behalf of the accused despite opportunity granted to him.
6 PW2Ct. Dharambir has deposed almost on the same lines as deposed by PW3HC Rohtash discussed hereinabove in the present case and hence, his testimony is not being discussed for the sake of brevity. He further proved seizure memo Ex. PW2/A, his statement State vs. Chanda, FIR No.285/05, PS Jahangirpuri Page no.3/9 Ex. PW2/B, site plan Ex. PW2/C, arrest memo Ex. PW2/D and personal search memo Ex. PW2/E. He further identified the case property as Ex. P1.
This witness was also not crossexamined on behalf of the accused despite opportunity granted. Thereafter, PE was closed.
7 The accused was examined under Section 281 Cr.PC 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 State vs. Chanda, FIR No.285/05, PS Jahangirpuri Page no.4/9 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.
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, there is nothing to suggest that whether passers by were requested to join the investigation by the IO or not. Hence, it is not convincing to the Court, as 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 State vs. Chanda, FIR No.285/05, PS Jahangirpuri Page no.5/9 notice in writing or why he failed to take legal action u/s 187 IPC on refusal of the public persons. 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 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 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 State vs. Chanda, FIR No.285/05, PS Jahangirpuri Page no.6/9 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. A stereotype statement of nonavailability or nonagreement on behalf of the witnesses will not be sufficient to serve the purpose.
15 In such cases in view of Saifulla Vs. State 1998 (1) CCC 497(Delhi) and Abdul Gaffar Vs. State 1996 JCC 497 (Delhi) which held that benefit of doubt is to be given to the accused. In this case also it is stated by PW2Ct. Dharambir that the seal after use was handed over to him by the IO, 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.
State vs. Chanda, FIR No.285/05, PS Jahangirpuri Page no.7/9 16 In case law reported as Sadhu Singh vs. 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 improbably or lacks "credibility, the benefits of doubt necessarily has to go to the accused".
The Hon'ble High Court of Delhi in Narain Singh @ Lala vs. State of Delhi 2005 (1) LRC 294 (Del) (DB) 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."
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.
State vs. Chanda, FIR No.285/05, PS Jahangirpuri Page no.8/9 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 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 Chanda for the offence punishable U/s 61 of Punjab Excise Act, 1914. Bail bond of accused stands cancelled. Surety stands discharged. Documents of her surety, if any be returned after cancellation of endorsement on it.
19 Case property, if any, be destroyed in accordance with rules on expiry of period of Appeal/Revision, if none is preferred or subject to decision thereof.
20 The file be consigned to record room.
Announced and dictated in the open court today i.e. on 10.01.2013 (SUNIL KUMAR) MM/ROHINI COURTS:DELHI State vs. Chanda, FIR No.285/05, PS Jahangirpuri Page no.9/9