Delhi District Court
State vs . Vinod Kumar on 1 August, 2012
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IN THE COURT OF SH. MANISH KHURANA, M. M.(Outer),
Rohini Courts, Delhi
State Vs. Vinod Kumar
P. S. Bawana
JUDGMENT
(a) The FIR no. of the case : 408/2007
(b) Unique identification No. : 02404R0696972007
(c) The date of commission of offence : 23.07.2007
(d) The name of complainant : Ct. Sushil Kumar, 1172/NW
(e) The name and parentage of accused : Vinod Kumar S/o Sh. Mool
Chand, R/o Village & Post
office Jaminkur ghar, P. S.
Nijamabad, District
Ajamgarh, UP.
(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 : 05.11.2007
(i) The date on which : 17.07.2012
judgment was reserved
(j) The final order : Acquitted
(k) The date of such order : 01.08.2012
Brief statement of the reasons for the decision:
FIR No. 408/07 P. S. Bawana
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1. The prosecution story in brief is that on 23.07.2007 at about 7.05 pm at Main Bawana Road, in front of Bus Stand ABlock, Shahbad Dairy, Delhi, within the jurisdiction of PS Bawana, the accused was found driving one scooter bearing No. DL9SD9039 on which one plastic cane was kept which was containing illicit liquor i.e. countrymade liquor equivalent to 24 bottles 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.
3. From the material on record a charge U/s 61/1/14 of Punjab Excise Act was made out against the accused to which he pleaded not guilty and claimed trial.
4. To support its case the prosecution has examined 06 witnesses.
5. PW1 HC Suresh Kumar deposed that on 23.07.07 he was posted at P.S. Bawana as Duty Officer from 4.00 pm to 12.00 am(night). He further deposed that on that day he received a rukka sent by ASI Madan Lal through Ct. Sushil and on the basis of the same he registered the present FIR. The same was proved by him as Ex. PW1/A(OSR). 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 Ld. counsel for the accused but to no avail.
FIR No. 408/07 P. S. Bawana 3
7. PW2 HC Rama Rao deposed that on 23.07.07 he was posted at PS Bawana as Constable and was working as DD Writer from 8.00 am to 8.00 pm. He further deposed that at about 7.15 pm he received a call from Ct. Sushil that one person namely Vinod Kumar S/o Mool Chand was apprehended with the plastic cane containing liquor with scooter bearing No. DL9SD9039 and on the same he recorded DD Entry No. 32 PP which is Ex. PW2/A.
8. During his cross examination by Sh. V P Singh Ld. counsel for the accused, witness stated that he handed over the DD No. 32 to ASI Madan Lal after 23 minutes.
9. PW3 HC Sri Niwas deposed that on 29.09.07 he was posted at P.S. Bawana as Head Constable. He further deposed that on that day MHC(R) handed over the case file to him and further investigation in the present case was marked to him. He further deposed that he collected the result from MHC(M) and prepared the challan and filed in the Court.
10. Opportunity to cross examine the above said witness was given to the Ld. counsel for the accused but to no avail.
11. PW4 HC Naresh Kumar deposed that on 23.07.07 he was posted at EIB Vikas Bhawan Delhi as Constable and he was on patrolling duty alongwith Ct. Sushil Kumar in the area of P. S. Bawana. He further deposed that during patrolling at about 6.30 pm they were present at main Bus Stand, A Block, Shahbad Dairy, Delhi where they saw one person who was coming FIR No. 408/07 P. S. Bawana 4 on a scooter. He further deposed that they found that there was one plastic cane at the foot rest of the scooter and on suspicion the scooter driver was stopped and the plastic cane was checked which was smelling liquor. On interrogation name of the driver of the scooter was revealed as Vinod Kumar. He further deposed that Ct. Sushil Kumar gave the information regarding the same at PP Shahbad Dairy through telephone and ASI Madan Lal reached at the spot to whom they handed over the custody of the accused and the case property i.e. plastic cane containing illicit liquor. He further deposed that IO asked Ct. Sushil Kumar to bring two plastic bucket, one mug and one empty bottle of 750 ml for measurement of liquor which he brought and IO measured the liquor and it was found equivalent to 24 bottles of 750 ml each. He further deposed that 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 ML. IO prepared form M-29 and served with the same seal. He further deposed that the plastic cane containing liquor and the scooter was seized vide memo Ex. PW4/A. He further deposed that IO recorded the statement of Ct. Sushil Kumar and prepared a rukka and handed over the same to Ct. Sushil Kumar for the registration of the FIR and got the FIR registered through him. He further deposed that IO prepared the site plan at his instance and IO arrested the accused and also conducted his personal search vide memos Ex. PW4/B FIR No. 408/07 P. S. Bawana 5 and Ex. PW4/C. He further deposed that accused was released on bail at the spot and the case property was deposited in the Malkhana. He identified the accused. One plastic Cane sealed with the seal of ML was produced by MHC(M). Witness identified the same. The cane is Ex. P1. MHC(M) also produced one Scooter bearing No. DL9SD9039. Witness identified the same. The same is Ex. P2.
12. During his cross examination by Sh. V P Singh, Ld. Counsel for the accused, witness admitted that the spot was a public place but no public person was made to join the investigation and no notice was given to any passersby to join investigation who refused to join investigation. Witness admitted that cane produced was empty and the particulars of the case are not mentioned thereupon. He further deposed that Ct. Sushil Kumar took the rukka at about 7.30 pm and returned at the spot 9.00 pm. He further deposed that accused was arrested at about 9.30 pm. He denied the suggestion that the 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 or that the case property was planted upon the accused.
13. PW5 Ct. Sushil Kumar deposed that on 23.07.07 he was posted at PP Shahbad Dairy, P.S. Bawana and he was on patrolling duty alongwith Ct.
FIR No. 408/07 P. S. Bawana 6 Naresh Kumar in the area of P. S. Bawana. He further deposed that during patrolling at about 6.30 pm they were present at main Bus Stand, ABlock, Shahbad Dairy, Delhi where they saw one person was coming on a scooter bearing No. DL9SD9039 and they found that there was one plastic cane at the foot rest of the scooter and on suspicion the scooter driver was stopped and the plastic cane was checked which was smelling liquor. He further deposed that on interrogation name of the driver of the scooter was revealed as Vinod Kumar. He further deposed that he gave information regarding the same at PP Shahbad Dairy through telephone and ASI Madan Lal reached at the spot to whom they handed over the custody of the accused and the case property i.e. plastic cane having illicit liquor. Thereafter IO asked him to bring one plastic bucket, one mug and one empty bottle of 750 ml for measurement of liquor and he brought the same and IO measured the liquor and it was found equivalent to 24 bottles of 750 ml each. He further deposed that 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 ML. He further deposed that IO prepared Form M-29 and served with the same seal and the plastic cane containing liquor and the scooter was seized vide memo Ex. PW4/A. He further deposed that IO recorded his statement Ex. PW5/A and prepared a rukka and handed over the same to him for the registration of the FIR. He accordingly went to PS and got FIR No. 408/07 P. S. Bawana 7 registered the FIR and returned at the spot alongwith copy of FIR and original rukka and handed over the same to IO who prepared the site plan. He further deposed that IO arrested the accused and also conducted his personal search vide memos already Ex. PW4/B and Ex. PW4/C. He further deposed that accused was released on bail and the case property was deposited in the Malkhana. He further deposed that on 23.08.07 on the instruction of the IO, he took the sample from MHC(M) in sealed condition and deposited the same at Excise Lab. vide RC No. 156/21/07. He identified the accused. One plastic Cane sealed with the seal of ML was produced by MHC(M) but the same was empty. Witness identified the same. The plastic cane is already Ex. P1. Witness also identified the scooter bearing No. DL9SD9039. The same is Ex. P2.
14. During his cross examination by the accused, witness admitted that the spot was a public place but no legal notice was given to the public persons who refused to join investigation. He further stated that no handing over memo of the seal was prepared. He further deposed that he took the rukka at about 8.15 pm and he returned at the spot 9.30 pm. He further deposed that accused was arrested at about 9.45 pm. He denied the suggestion that accused was falsely implicated in this case. He denied the suggestion that all the documents were fabricated to implicate the accused or that all the documents were prepared in P. S. FIR No. 408/07 P. S. Bawana 8
15. PW6 ASI Madan Lal deposed that on 23.07.07 he was posted at PP Shahbad Dairy, P. S. Bawana as ASI. He further deposed that on that day he received DD No. 32PP and thereafter he reached at the spot i.e. Bus Stand, ABlock, Shahbad Dairy, Delhi where he met Ct. Sushil and Ct. Naresh Kumar(from EIB) who handed him over the custody of accused Vinod Kumar alongwith one white coloured plastic cane containing illicit liquor and one scooter bearing No. DL9SD9039. He further deposed that he recorded the statement of Ct. Sushil which is Ex. PW5/A. He further deposed that he requested 34 passersby to join investigation but none agreed and left the spot without disclosing their names and addresses. Thereafter he asked Ct. Sushil to bring one plastic bucket, one mug and one empty bottle of 750 ml for measurement of liquor which he brought and he measured the liquor and it was found equivalent to 24 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 ML. He further deposed that he prepared Form M-29 Ex. PW6/A and served with the same seal and the seal after use was handed over to Ct. Naresh. The plastic cane having liquor and the scooter was seized vide memo Ex. PW4/A. He further deposed that he prepared a rukka Ex. PW6/B and handed over the same to Sushil for the registration of the FIR and got the FIR registered in P. S. through him who returned at the spot alongwith FIR No. 408/07 P. S. Bawana 9 copy of FIR and original rukka and handed over the same to him. He further deposed that he prepared the site plan Ex. PW6/C at the instance of Ct. Naresh Kumar. He further deposed that he arrested the accused and also conducted his personal search vide memos already Ex. PW4/B and Ex. PW4/C and thereafter he released the accused on bail after producing sufficient surety. Case property i.e. plastic cane and scooter was deposited in the Malkhana. He further deposed that on 23.08.07 he instructed Ct. Sushil to take the sample from MHC(M) and to deposit the same at Excise Lab which he deposited. He identified the accused. One plastic Cane sealed with the seal of ML was produced by MHC(M) but the same was empty. Witness identified the same. The plastic cane is already Ex. P1. Witness also identified the scooter bearing No. DL9SD9039. The same is Ex. P2.
16. During his cross examination by accused, witness stated that he sent the rukka to P. S. at about 8.15 pm and the Constable returned at the spot 9.45 pm. He further stated that accused was arrested at about 9.50 pm. He admitted that the spot was a public place but no legal notice was given to the public persons who refused to join investigation. He further stated that no handing over memo of the seal was prepared and they finally left the spot at about 11.30 pm. He denied the suggestion that all the documents were fabricated to implicate the accused or that all the documents were FIR No. 408/07 P. S. Bawana 10 prepared in P. S. He further denied the suggestion that he did not join the investigation or that the case property was planted upon the accused.
17. Thereafter PE was closed and accused was examined U/s 313 Cr.P.C. and all the incriminating evidence coming on record was put to the accused.
18. The accused submitted that he is innocent and has been falsely implicated in this case and he denied for leading DE.
19. I have heard Ld. APP for State and the accused and perused the record.
20. 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.
21. 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.
22. As per the deposition of PWs the IO requested some public persons to join FIR No. 408/07 P. S. Bawana 11 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 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 FIR No. 408/07 P. S. Bawana 12 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 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''.
23. 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 FIR No. 408/07 P. S. Bawana 13 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 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''.
24. The prosecution has failed to prove beyond 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.
25. Story of the prosecution witness is also doubtful as there are contradiction as PW4 HC Naresh stated in cross examination that Ct. Sushil took the rukka to P. S. for registration of FIR at 7.30 pm whereas PW5 Ct. Sushil stated the time of taking the rukka as 8.15 pm. According to PW4 accused was arrested at 9.30 pm whereas PW5 stated the time of arrest of accused as 9.45 pm but arrest memo of the accused shows the time of arrest as 9.50 pm. Further the case property i.e. alleged liquor could not be produced in FIR No. 408/07 P. S. Bawana 14 the Court and at the time of production of case property an empty plastic cane was produced by the MHC(M). Therefore in the absence of the case property the case cannot be said to have been proved against the accused.
26. 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 who are police officials and are required to make their arrival or departure entry. 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.
27. Hence in these circumstances prosecution having failed to prove its case beyond reasonable doubts, the accused Vinod Kumar is acquitted for the offence u/s 61/1/14 Ex. Act.
ANNOUNCED IN THE OPEN COURT
TODAY ON 01.08.2012 (MANISH KHURANA )
METROPOLITAN MAGISTRATE
ROHINI DELHI
FIR No. 408/07 P. S. Bawana