Delhi District Court
State vs . Anju on 15 April, 2011
State vs. Anju
IN THE COURT OF SH DHARMENDER RANA : MM: DELHI
State Vs. Anju
FIR NO. : 03/2000
U/S : 61/1/14 Ex. Act
PS : Rajouri Garden
JUDGMENT
a) Sl. No. of the case : 973/3
b) Date of commission of offence: 31.12.1999
c) Date of institution of the case : 15.11.2000
d) Name of the complainant : Ct. Tej Singh
e) Name & address of the : Anju W/o.
accused Sh. Sanjay
R/o BIII/36, 15 yards
Raghubir Nagar, Delhi.
f) Offence complained off : 61 Excise Act
g) Plea of the accused : Pleaded not guilty.
h) Arguments heard on : 15.04.2011
i) Final order : Acquitted
j) Date of Judgment : 15.04.2011
FIR No. 03/00 1
State vs. Anju
BRIEF STATEMENT OF REASONS FOR DECISION:
1. Briefly stated, accused Anju has been sent to face trial for offence U/s 61/1/14 of Excise Act with the allegations that on 31.12.1999 at about 10:45 p.m at Kblock bus stand, Raghubir Nagar, Delhi accused was found in possession of one plastic cane containing 20 bottles of illicit liquor. Investigation was carried out.
2. Upon completion of investigation charge sheet U/s 173 Cr.P.C. was filed on behalf of the IO and the accused person was consequently summoned. A formal charge U/s 61/1/14 Excise Act was framed against the accused to which she pleaded not guilty and claimed trial.
3. In order to substantiate the allegations, only one witness has been examined on behalf of the prosecution.
4. PW1; HC Tej Singh is the complainant who allegedly apprehended the accused with illicit liquor. He has deposed that IO carried out all the proceedings of this case in his presence. He has proved Seizure memo Ex. PW1/A, his statement Ex.PW1/B, Arrest FIR No. 03/00 2 State vs. Anju memo Ex. PW1/C, Site plan Ex. PW1/D and duly identified that case property Ex. P1.
5. PE was closed by the order of the Court dated 15.04.2011 and statement of accused U/s 313 Cr.P.C was recorded wherein she has refuted the allegations levelled against her in toto. Accused chose not to lead any defence evidence in her favour.
6. I have heard the rival submissions and carefully perused the record.
7. It has been held in case of Sadhu Singh V/s State of Punjab 1997(3) Crime 55 the Hon'ble Punjab & Haryana High Court : "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."
FIR No. 03/00 3
8. As per chapter 22 rule 49 of the Punjab Police Rules, which is reproduced herein for ready reference: 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 personally by signature or seal.
Note : The term Police Station will include all places such as Police Lines and Police Posts where Register No. II is maintained.
9. In the present case, the above said provision appears to have not been complied with by prosecution. The relevant entries regarding the arrival and departure of the police official has not been proved on record. At this juncture, it would be relevant to FIR No. 03/00 4 State vs. Anju refer to a case law reported as Rattan Lal V/s State, 1987 (2) Crimes 29 the Hon'ble Delhi High Court "wherein it has been observed that if the investigating agency deliberately ignores to comply with the provisions of the Act the courts will have to approach their action with reservations. The matter has to be viewed with suspicion if the provisions of law are not strictly complied with and the least that can be said is that it is so done with an oblique motive. This failure to bring on record, the DD entries creates a reasonable doubt in the prosecution version and attributes oblique motive on the part of the prosecution."
10. Furthermore when the case property was produced before the court, it was observed that case property did not bear any case particulars and lid of the cane could be opened without tampering the seal. In a case of Excise Act, the identity of the case property forms the bedrock of the indictment. Once the same is shrouded in serious suspicion, conviction of the accused cannot be sustained upon the testimony of police officials uncorroborated by any FIR No. 03/00 5 State vs. Anju independent/ public witnesses.
11. In the present case, as per complainant, at the time apprehension of accused with illicit liquor, he had requested 45 passersby to join the police proceedings but they have all left the spot without telling their names and addresses after giving reasonable excuses for not joining the police proceedings. It is note worthy that I.O has not made a note of the excuses given by the passersby in the rukka. This failure on his part goes to suggest that he did not make sincere efforts to join the passersby in the police proceedings. Also as per rukka IO did not serve written notice to the passersby who refused to join the police proceedings. At least in the facts and circumstances of the present case, IO could have very well served the passersby with notice in writing requiring them to join the police proceedings or to face action u/s 187 IPC in as much as in the present case there was no possibility of accused escaping his apprehension / arrest or crime going undetected in as much as by the said time, accused stood already apprehended by the police. Failure on the part of prosecution to make sincere efforts FIR No. 03/00 6 State vs. Anju for joining independent public witnesses in the proceedings when they are available creates reasonable doubt in the prosecution in view of the following case laws.
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:
''18. 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 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''.
Roop Chand V/s The State of Haryana,1999 (1) C.L.R 69, the Hon'ble Punjab & Haryana High Court held as under: It is well settled principle of the law that the Investigating Agency should join independent witnesses at the time of recovery of contraband articles, if they are available and their failure to do so in such a situation casts a shadow of doubt on the prosecution case. In the present case also admittedly the independent witnesses were available at FIR No. 03/00 7 State vs. Anju the time of recovery but they refused to associate themselves in the investigation. This explanation does not inspire confidence because the police officials who are the only witnesses examined in the case have not given the names and addresses of the persons contacted to join. It is a very common excuse that the witnesses from the public refused to join the investigation. A police officer conducting investigation of a crime is entitled to ask anybody to join the investigation and on refusal by a person from the public the Investigating Officer can take action against such a person under the law. Had it been a fact that he witnesses from the public had refused to to join the investigation, the Investigating Officer must have proceeded against them under the relevant provisions of law. The failure to do so by the police officer is suggestive of the fact that the explanation for nonjoining the witnesses from the public is an after thought and is not worthy of credence. All these facts taken together make the prosecution case highly doubtful''.
12. Furthermore, in the case at hand, seal after use on the case property was given to Ct. Tej Singh who also happens to be the complainant in the present case. To my mind, in such circumstances, chances of fabrication with the case property cannot be ruled out, in as much as, complainant is invariably interested in the conviction of the accused.
13. Furthermore, HC Tej Singh (PW1) claims that he went to the police station for getting the FIR registered in the instant matter FIR No. 03/00 8 State vs. Anju and came back to the spot alone. However, during his cross examination, HC Tej Singh (PW1) has feigned ignorance as to if any lady police official also accompanied him. However, as per the prosecution version, Lady Ct. Darshana has also joined the investigations. The contention of the Ld. Defence counsel appears to be correct that all the documents in the instant matter were prepared in the police station.
14. A very serious infirmity has been highlighted in the instant case which goes to the root of the prosecution version. The complainant HC Tej Singh (PW1) has deposed in his cross examination that the first document prepared by IO was Seizure memo Ex. PW1/A and the same was prepared at one go. The prosecution is silent as to how come the FIR number finds a mention upon the Seizure memo. Reliance is placed upon the judgments of the Hon'ble High Court in the matter of Kalu Ram Vs. State IV (1999) CCR 240 and Mewa Ram vs. State 2000 Cri L.J. 114 wherein the Hon'ble High Court has observed that FIR No. 03/00 9 State vs. Anju " This circumstance give rise to two inferences; firstly the FIR (Ex. PW2/B) was recorded prior to the alleged recovery of the contraband and secondly, number of FIR (Ex. PW2/B) was inserted in these documents after registration of the FIR. In both the situations, it seriously reflects upon the main version of the prosecution regarding the alleged recovery of contraband from the accused. In other words, the aforesaid infirmity has shaken the foundation of the prosecution case to an irreparable extent. Principles of criminal jurisprudence which govern the trial of criminal cases do not permit the ignoring or brushing aside such a big jerk given to the prosecution. In this view of the matter, it would not be safe to act upon the testimony of ASI Hari Prakash (PW3) and Constable Salam Mohammed (PW6). Learned Additional Sessions Judge has obviously not kept the aforesaid infirmities in view while dealing with the evidence of FIR No. 03/00 10 State vs. Anju the said witnesses. Eliminating the evidence of ASI Hari Prakash (PW3) and Constable Salam Mohammed (PW6) there remains nothing on record to connect the accused with the alleged crime. Consequently, the conviction and sentence of the accused cannot be sustained in law."
15. The facts of the aforementioned case are squarely applicable to the instant case. The prosecution has failed to explain the mention of the FIR number at Seizure memo Ex. PW1/A. The aforesaid lacuna in light of the judgment of Hon'ble High Court is Kalu Ram vs. State (Supra) and Mewa Ram vs. State(Supra) is fatal to the case of prosecution. Accused is accordingly acquitted for the charges U/s 61/1/14 Excise Act levelled against her.
Announced in the open court
on 15.04.2011 (Dharmender Rana)
MM/Delhi / 15.04.2011
FIR No. 03/00 11