Delhi District Court
State vs . Rati Ram on 8 June, 2012
IN THE COURT OF SHRI SUSHIL ANUJ TYAGI,
METROPOLITAN MAGISTRATE: ROHINI COURTS, DELHI
State Vs. Rati Ram
FIR No. 160 of 2001
P.S. Kanjhawala
Unique ID No. 02404RO350372010
Date of institution of case: 01.12.2001
Date of reserving the judgment: 01.6.2012
Date of pronouncement of judgment: 08.6.2012
J U D G M E N T
1. S. No. of the Case : 22/3/1 2. Date of Commission of Offence : 14.7.2001 3. Date of institution of the case : 01.12.2001 4. Name of the complainant : HC Mahavir Singh
5. Name of the accused, parentage & address: Rati Ram S/o Bhagwana, R/o B740, Man Vihar Sultanpuri., Delhi
6. Offence complained or proved : 61 Punjab Excise Act
7. Plea of Accused : "Not Guilty"
8. Final Order : Acquitted
9. Date of Final Order : 08.6.2012 BRIEF FACTS AND REASONS FOR DECISION OF THE CASE
1. The case of prosecution as unfolded by report U/s 173 Cr.PC is that on 14.7.2001 at about 3:00am, at Main Road, near near Kanjhawala Senior Secondary School, Delhi within the jurisdiction of PS Kanjhawala accused Rati Ram was apprehended by HC Mahavir Singh, in possession of 200 pouches of illicit liquor with any permit or licence. Accused was arrested, case property FIR No. 160/01 PS Kanjhawala 1 was deposited in malkhana and upon completion of investigation challan was prepared and filed in court for trial.
2. The copies of chargesheet and annexed documents were supplied to accused in due compliance of Section 207 Cr.P.C.
3. Prima facie case having been made out, charge for offence U/s 61 Punjab Excise Act was framed against the accused on 08.9.2006 to which accused pleaded not guilty and claimed trial.
4. In order to prove its case, prosecution has examined following witnesses:
5. PW 1 HC Harnam Singh was posted as duty officer in PS Kanjhawala who registered the FIR Ex. PW 1/A in the present case.
6. PW 2 HC Rajender was posted as MHC(M) at PS Kanjhawala with whom the case property was deposited by the IO HC Mahavir. He proved the relevant entry of register No. 19 as Ex. PW 2/A.
7. PW 3 Ct. Rajvir deposited the samples with excise laboratory, ITO and handed over the receipt to the MHC(M).
8. PW 4 D. K. Punj, Dy. Chemical Examiner proved the chemical analysis report as Ex. PW 4/A.
9. PW 5 HC Hari Chand is the investigating officer of the case. He deposed that on 17.7.2001 investigation of this case was handed over to him and he alongwith Ct. Shambhu Dayal reached at the spot where HC Mahavir Singh FIR No. 160/01 PS Kanjhawala 2 produced the accused Rati Ram alongwith case property and also handed over the prepared documents. He further deposed that thereafter he prepared the site plan Ex. PW 5/A, arrested accused vide memo Ex. PW 5/B and conducted his personal search vide memo Ex. PW 5/C. He further deposed that on 18.7.2001 samples were sent to excise laboratory through Ct. Rajbeer vide RC No. 44/21. Later on he recorded statements of witnesses and upon completion of investigation prepared challan and filed the same in court.
10. PW 6 HC Shambhu Dayal deposed that on 17.7.01 he alongwith HC Mahavir Singh was on patrolling duty on a government motorcycle No. DL 1 SK 1812 and at about 3.00am night when we reached at main road Karala near Sr. Sec. School, they noticed that accused was going towards Rama Vihar with a plastic katta upon his head. On suspicion they stopped him and checked the plastic katta and it was found to contain pouches of liquor. Name of the accused was revealed as Rati Ram. He further deposed that upon counting 200 pouches printed with Sofi Spl. Masaledar desi Sharab were found in the plastic katta. 5 pouches were separated as samples. Sample and the plastic katta were sealed with the seal of MSK and seized vide memo Ex. PW 6/A. He further deposed that IO prepared rukka and got the FIR registered through him. Investigation was handed over to HC Hari Chand who reached the spot alongwith him. IO arrested accused vide memo already Ex.PW 5/B and his personal search was conducted vide memo already Ex.PW 5/C. He further deposed that after that they FIR No. 160/01 PS Kanjhawala 3 went to the PS alongwith the case property and accused. Case property was deposited in malkhana. IO recorded his statement in this case. He proved the case property Ex. P1.
11. Thereafter accused was examined U/s 313 Cr.PC on 19.5.2012. He claimed innocence and false implication. He did not wish to lead defence evidence.
12. I have carefully perused the case record and have heard arguments advanced by ld APP for the state as well as by ld defence counsel.
13. In the present case, it is the case of the prosecution that the accused were found in possession of illicit liquor without any licence or permission on the fateful day. To substantiate the case, the prosecution was required to prove that the accused was found in possession of illicit liquor and was to prove recovery beyond reasonable doubts.
14. Evidently, no public witness to the recovery of the liquor has been cited in the list of witnesses. The place of arrest of accused and recovery was Main Road, near Kanjhawala Senior Secondary School, Delhi. It is not the case of the prosecution that no public was present at or near the spot of arrest and recovery. Testimony of all the witnesses examined by the prosecution is silent to the effect whether any efforts were made to join public witness or not. Thus, no public witness jointed the investigation which raises doubt over the prosecution story. The police officer is entrusted with ample power under the provisions of FIR No. 160/01 PS Kanjhawala 4 Cr.PC to initiate proceedings u/s 187 IPC if any person does not cooperate with him despite giving notice. No efforts by the IO are seen on the file for joining the public witnesses. The testimony of all the witnesses examined by the prosecution is silent to the effect that any efforts were made by the investigating officer to join public witnesses. It is well settled proposition that non joining of public witness shrouds doubt over the fairness of the investigation by police. Even Section 100 (4) casts statutory duty upon the official conducting search to join two respectable persons of the society, which is not done in the present case. In the case of Pawan Kumar Vs. The Delhi Administration, 1989 Crl LJ 127 Delhi, it has been held as under :
"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."
15. Ld APP for state has argued that mere non joining of public witnesses FIR No. 160/01 PS Kanjhawala 5 is not fatal for the prosecution case and has relied upon the judgment of Appabhai and another v State of Gujrat, AIR 1988 SC 696, wherein it was held that the prosecution case cannot be thrown out or doubted on the sole ground of non production of public witnesses, as the public witnesses keep themselves away from the court unless it is inevitable. The contention of ld APP is acceptable to that extent the mere non joining of public witness is not sufficient for acquitting the accused. However, every case has to be dealt with in accordance with the material available on record. In the present case, it is not only the absence of public witnesses which only raises doubt on the prosecution but there are other circumstances also which are discussed in the later part of the dicta, which raises suspicion over the prosecution version and it is well settled dogma that every accused is presumed to be innocent and is entitled to benefit of any doubt in prosecution story. Ld APP has also argued that no notice can be given by the police officials to the public witnesses u/s 187 IPC as it only relates to Section 37 Cr.P.C, where only the persons specified are bound to assist the police. This court does not agree with the said contention of Ld APP, the police official can ask any public person to assist him and can give notice to him and on unreasonable omission, the person can be prosecuted. There is no bar that such notice cannot be given by police officials to the public persons. S. 187 IPC provides for punishment of persons who are bound by law to assist public servant, intentionally omits to do so. The contention of Ld APP is that only persons u/s 37 FIR No. 160/01 PS Kanjhawala 6 Cr.P.C are bound by law to assist police officials and no other. This contention is in my view totally meritless. All public persons are bound to assist police officials in discharge of their duties. S. 65 of Delhi Police Act, 1978 reads as follows:
"65.Persons bound to comply with the reasonable directions of police officer. "All persons shall be bound to comply with the reasonable directions given by a police officer in the discharge of his duties under this Act. Where any person resists, refuses or fails to comply with any direction referred to in subsection (1), a police officer may, without prejudice to any other action that he may take under any other provision of this Act or any other law for the time being in force remove such person and either produce him before a Metropolitan Magistrate or, in trivial cases, release him when the occasion which necessitated the removal has ceased to exist: Provided that the person so removed shall in all cases be produced before the Metropolitan Magistrate or released, as the case may be, within a period of twentyfour hours of such removal."
The contravention of Section 65 also entails a punishment as prescribed for in S. 119 of Delhi Police Act, 1978. Thus, this court is unable to accept that the ambit of S.187 is limited to S.37 Cr.P.C and no more.
16. The present case totally rests upon the alleged recovery of the case property from the possession of the accused at the relevant time. When the public persons were not joined in the investigation, then in such case the arrival and departure entries of PW 6 HC Shambhu Dayal and HC Mahavir Singh who were allegedly present at the spot and apprehended the accused with case property is a vital piece of evidence have also not been proved on record. The police officials FIR No. 160/01 PS Kanjhawala 7 are under the statutory duty to mark their departure and arrival in the register kept for the purpose as per the PPR rules. It is apposite at this juncture to reproduce Chapter 22 Rule 49 of Punjab Police Rules, 1934, provides as under:
"22.49 Matters to be entered in Register No.II - The following matters shall, amongst others, be entered:
(c) The hour of arrival and departure on duty at or from a police station of all enrolled police officers of whatever rank, whether posted at the police station or elsewhere, with a statement of the nature of their duty.
This entry shall be made immediately on arrival or prior to the departure of the officer concerned and shall be attested by the latter personality by signature or seal.
Note: The term Police Station will include all places such as Police Lines & Police Posts where Register No. II is maintained.
17. Ld. APP has asserted that the ld. counsel of the accused has not asked any questions relating to the non production of arrival and departure entries and as such the prosecution is not obliged to prove the said entries. In the present case, admittedly, no public witness has joined the investigation and thus it becomes more important and incumbent in the present case that the arrival and departure entries be proved to corroborate the fact of presence of the police personnel on the spot. More specifically, proving of the arrival and departure entry of police personnel who apprehended the accused persons with case property appears indispensable, as the instant case rests completely on the alleged recovery.
18. It is also pertinent to observe that the case property was allegedly FIR No. 160/01 PS Kanjhawala 8 sealed by the IO with the seal of MSK. In the present case, the seal was not handed over to any public independent witness/person nor it was deposited in Malkhana to assail the possibility of its misuse.
19. Most importantly in the present case, PW 6 HC Shambhu Dayal has deposed that the liquor was seized vide seizure memo Ex. PW 6/A and after that IO prepared the rukka and got the FIR registered. It means that the seizure memo was prepared at the spot before the registration of FIR. Interestingly, the seizure memo Ex. PW 6/A bears the FIR number and case details in the same ink in which the documents is prepared which indicates that the FIR number was inserted while preparing the documents. The FIR is admittedly registered later after the preparation of this document. No explanation has been furnished on record as to how the FIR registration number has appeared on this document. It leads to only one inference either the document is prepared later or the FIR has been registered earlier in point of time. Both the situations create dents and leave unexplained holes in the prosecution story, the benefit of which must accrue to the accused. This court finds force from the following judgments on the same point of law:
Zofar v. State, 2000 II AD (DELHI) 137 Prithvi Pal Singh @ Munna v. State 2000 [1] JCC [Delhi] 274 Md. Hashim v. State 1999 VI AD (Delhi) 569 Ashok Kumar v. State 2000 I AD (Delhi) 10 Kailash @ Kuddu v. State of Delhi 2000 [1] JCC [Delhi] 162 It would be appropriate to reproduce the relevant extract from the judgment titled FIR No. 160/01 PS Kanjhawala 9 as Zofar v. State, 2000 II AD (DELHI) 137, as follows:
"Surprisingly, the secret information (Ex. P.W.7/B), the notice under Section 50 of the Act (Ex. P.W. 4/A) and the Seizure Memo (Ex. P.W. 4/C) bear the number of the FIR (Ex. P.W.1/B). The number of the FIR (Ex. P.W.1/B) given on the top of the aforesaid documents is in the same ink and in the same handwriting which clearly indicates that these documents were prepared at the same time. The prosecution has not offered any explanation whatsoever as to under what circumstances number of FIR (Ex. P.W.1/B) has appeared on the top of the aforesaid documents, which are allegedly prepared on the spot before the registration of the FIR. This gives rise to two inferences that either the FIR (Ex. P.W.1/B) was recorded prior to the alleged recovery of contraband or number of the said FIR was inserted in these documents after its registration. In both the situations it seriously reflects upon the veracity of the prosecution version given by the aforesaid witnesses and creates a good deal of doubt about recovery of the contraband in the manner alleged by the prosecution."
20. It is dogmatic in criminal jurisprudence that the prosecution is under the obligation to prove the case against accused beyond reasonable doubt. The standard of proof is not preponderance of probabilities but proof beyond reasonable doubt on the basis of cogent, convincing and reliable evidence. It is well settled legal proposition that the benefit of doubt goes in favour of the accused.
21. Considering the facts that no independent witness was cited or examined, DD entries not proved, appearance of FIR & case particulars on the seizure memo and non examination of material witnesses when kept in juxtaposition to each other, shrouds clouds of suspicion over the prosecution FIR No. 160/01 PS Kanjhawala 10 version. The possibility of tempering with the case property cannot be discarded in these facts and circumstances.
22. Thus, this court is of the considered view that the benefit of doubt in the present case be given to the accused and he is entitled to be exonerated of the charges against him in the present case. The accused Rati Ram is hereby acquitted for the offence U/s 61/1/14, Punjab Excise Act. Bail bonds are cancelled. Surety is discharged. Documents, if any be returned after cancellation of endorsement on the same. Case property be confiscated to State as per Rules.
23. File after necessary compliance be consigned to record room.
Announced in open court ( Sushil Anuj Tyagi )
8th day of June, 2012 Metropolitan Magistrate,
Rohini Courts: Delhi
cr
FIR No. 160/01 PS Kanjhawala 11