Delhi District Court
State vs . Rajpal @ Raju on 7 March, 2012
IN THE COURT OF SHRI SUSHIL ANUJ TYAGI,
METROPOLITAN MAGISTRATE: ROHINI COURTS, DELHI
State Vs. Rajpal @ Raju
FIR No. : 11/03
P.S. : Kanjhawala
U/s.: 61/1/14 Punjab Excise Act
Unique ID no. 02401RO243422010
Date of institution of the case : Before 25.8.05
Date of reserving judgment: 07.3.2012
Date of Judgment: 07.3.2012
JUDGMENT
1. S. No. of the Case : 28/0/3/03
2. Date of Commission of Offence : 12.1.2003
3. Date of institution of the case : Before 28.5.05
4. Name of the complainant : Ct. Ranbir Singh
5. Name, parentage & address of accused: Rajpal @ Raju S/o Tialk Singh
R/o T1095, Mangolpuri, Delhi
6. Offence complained or proved : U/s 61/1/14 Punjab Excise Act
7. Plea of Accused : "Not Guilty"
8. Final Order : Acquitted
9. Date of Final Order : 07.3.2012
BRIEF FACTS AND REASONS FOR THE DECISION:
1. The case of prosecution as unfolded by report U/s 173 Cr.PC is that on 12.1.2003 at about 6:30pm, constable Ranbir Singh alongwith Ct. Nasib was on patrolling duty at Ghevra Railway crossing. Meanwhile, one scooter bearing FIR No. 11/2003 PS Kanjhawala 1 registration No. DL DW 4S W 2146 being driven by accused Rajpal @ Raju came from the side of Ghevra Mor and on suspicion same was stopped. On checking same, it found to contain 87 quarter bottles of illicit liquor. Information to this effect was given to PS Kanjhawala and HC Rajender Singh reached the spot to whom the accused alongwith the recovered liquor and the scooter was handed over. Accused was arrested, case property was deposited in malkhana and upon completion of further necessary 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 61/1/14, Punjab Excise Act was framed against the accused on 09.9.2005 to which accused pleaded not guilty and claimed trial.
4. In order to prove its case, prosecution has examined following witnesses: PW 1 HC Nafe Singh was posted as duty officer in PS Kanjhawala who registered the FIR Ex. PW 1/A in the present case. He also proved the endorsement on rukka as Ex. PW 1/B.
5. PW 2 HC Sahib Singh deposited the samples in excise laboratory.
6. PW 3 Ct. Ranbir Singh deposed that on 12.1.2003 he alongwith Ct. Nasib was on patrolling duty and present at Ghevra Phatak and at about 6:30pm FIR No. 11/2003 PS Kanjhawala 2 one scooter No. DL 4S W 2146 being driven by accused Rajpal @ Raju came from the side of Ghevra More and on suspicion they stopped the same. On checking the scooter, it was found that quarters of illicit liquor were kept in the dikki of the scooter. He immediately informed PS Kanjhawala and IO HC Rajender Singh reached at the spot and they handed over the accused alongwith the scooter and illicit liquor to him. IO/HC Rajender Singh recorded his statement, Ex. PW 3/A. IO counted the quarters. 44 quarters printed with Rock Feller Malt Whiskey, 180 ml each were recovered from front dikki and 43 quarters printed with Magic Touch Fine Whiskey, 180ml each were recovered from back side dikki. One sample each from both kind of whiskey was separated and rest of the quarters were kept in a plastic katta. Form M 29 was filled on the spot. Sample and the katta were sealed with the seal of RS. Scooter, samples and katta were seized vide memo Ex. PW 3/B. IO also prepared the site plan upon his instance which is Ex. PW 3/C. Thereafter IO prepared the rukka and got registered the FIR through Ct. Nasib. Thereafter IO arrested accused Rajpal vide memo Ex. PW 3/D and personal search of accused was also conducted vide memo Ex. PW 3/E. After that accused was released on bail and case property alongwith the scooter was deposited in malkhana. He proved the quarter bottles are collectively Ex. P1.
7. PW 4 H. Ct. Nasib Singh deposed on the same lines as deposed by PW 3 Ct. Ranvir Singh and corroborated the same in material particulars. He also FIR No. 11/2003 PS Kanjhawala 3 proved the impugned scooter as Ex. P2.
8. PW 5 HC Rajender is the investigating officer of the case. He deposed that on 12.1.2003 he was posted in PS Kanjhawala and on receipt of DD No. 38B, Ex. PW 5/A he reached the spot where Ct. Ranbir Singh and Ct. Nasib were found present and they handed over to him the accused Rajpal @ Raju with his scooter No. DL 4S W 2146 as the recovery of 87 quarter bottles and illicit liquor was effected from his possession. He recorded statement of Ct. Ranvir which is already Ex. PW 3/A. Thereafter he counted the quarter bottles. 44 quarters printed with Rock Feller Malt Whiskey, were recovered from front dikki and 43 quarters printed with Magic Touch Fine Whiskey, were recovered from back side dikki. One sample each from both kind of whiskey was separated and were sealed with the seal of RS and remaining quarters were kept in a plastic katta which was sealed with the same seal. Form M 29 was filled on the spot which is Ex. PW 5/B. On the basis of the same, he prepared rukka Ex. PW 5/C and it was handed over to Ct. Nasib who went to PS and got registered the FIR and returned back at the spot and handed over to him the copy of FIR and original rukka. Thereafter place of incident was inspected and a site plan already Ex PW 3/C was prepared at the instance of Ct. Ranbir and Ct. Nasib. Thereafter he arrested accused Rajpal vide memo already Ex. PW 3/D and personal search of accused was also conducted vide memo already Ex. PW 3/E. After that accused was released on bail and case property alongwith the scooter was deposited in FIR No. 11/2003 PS Kanjhawala 4 malkhana. He also proved the quarter bottles Ex. P1 and the scooter Ex. P2.
9. Statement of accused was recorded U/s 281 R/W Sec. 313 Cr. PC on 08.2.2012. He claimed innocence and false implication. He did not wish to lead defence evidence.
10. 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.
11. In the present case, it is the case of the prosecution that the accused was found in possession of country made 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.
12. Evidently, no public witness to the recovery of the liquor has been cited in the list of witnesses. The place of arrest of accused persons was Railway Crossing, Ghevra which is a populated area and the time of arrest was 9:50p.m. It is admitted by PW 5 HC Rajender Singh, IO that place of recovery was a public place. It is not the case of the prosecution that no public witness was present at or near the spot of arrest and recovery. No names of the public witness who were requested to join the proceedings are available on record. It is not proved on record that public witness were given notice to join the proceedings. The police officer is entrusted with ample power under the provisions of Cr.PC to initiate proceedings u/s 187 FIR No. 11/2003 PS Kanjhawala 5 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 FIR No. 11/2003 PS Kanjhawala 6 throwing doubt on the arrest or the recovery of the knife from the person of the accused."
13. The present case totally rests upon the alleged recovery of the case property from the possession of the accused at the relevant time. The arrival and departure entries of the police officials who apprehended the accused with case property is a vital piece of evidence have also not been proved on record. The police officials 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.
14. It is also pertinent to observe that the case property was allegedly FIR No. 11/2003 PS Kanjhawala 7 sealed by the IO with the seal of RS. The testimony of all the witnesses examined by the prosecution is silent to the effect whether after use the IO kept the seal with him or handed over the same to anyone. The seal in the present case was not handed over to any independent witness nor it was deposited in Malkhana to assail the possibility of its misuse. To add, when the case property was produced before the court for the first time during examination of PW 3 Ct. Ranvir Singh, it was without any seal and most of the quarter bottles were completely empty and some were partially filled. No DD entry with respect to leakage or destruction of case property is proved on record. No explanation is rendered for production of the case property in such a condition and it leads to only one inference that the case property was tampered and its false implication on accused cannot be discarded.
15. Most importantly in the present case, PW 3 Ct. Ranvir Singh, PW 4 H. Ct. Nasib Singh and PW 5 HC Rajender Singh deposed that IO seized the case property vide seizure memo Ex PW 3/B and thereafter prepared the rukka and got the FIR registered through Ct. Nasib Singh. It means that the seizure memo was prepared at the spot before the registration of FIR. Interestingly, the seizure memo Ex. PW 3/B 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 FIR No. 11/2003 PS Kanjhawala 8 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 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 FIR No. 11/2003 PS Kanjhawala 9 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."
16. 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.
17. Considering the facts that no independent witness was cited or examined, DD entries not proved, case property not produced in intact condition and the appearance of case particulars on the seizure memo, when kept in juxtaposition to each other, shrouds clouds of suspicion over the prosecution version. The possibility of tempering with the case property cannot be discarded in these facts and circumstances.
18. 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 FIR No. 11/2003 PS Kanjhawala 10 charges against him in the present case. The accused Rajpal @ Raju 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.
19. File after necessary compliance be consigned to record room.
Announced in open court ( Sushil Anuj Tyagi )
7th day of March, 2012 Metropolitan Magistrate,
Rohini Courts: Delhi
cr
FIR No. 11/2003 PS Kanjhawala
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