Delhi District Court
State vs . Lakhi Chand & Ram Pal on 19 April, 2008
1
IN THE COURT OF RAJ KUMAR:
METROPOLITAN MAGISTRATE: KARKARDOOMA COURTS:
DELHI
FIR NO. : 339/97
P.S. : Krishna Nagar
U/s. : 61 Punjab Excise
State Vs. Lakhi Chand & Ram Pal
1. Sl. No. of the case : 36/3
2. Date of institution : 17.8.1997
3. Name of the complainant : state
4. Date of commission of offence: 17.08.1997
5. Name of accused : i) Lakhi Chand
S/o.Sh.Raja Ram,
R/o.H.No.3911,
Gali No.13,
Shanti Mohalla,
Seelampur, Delhi.
6. Offence complained of or proved: 61 Punjab Excise
Act
7. Plea of guilt : Accused pleaded
not guilty
8. Final order :
9. Date of reserving the Order : 02.04.2008
10. Date of such order : 19.04.2008
State vs. Lakhi Chand & Ram Pal FIR No.339/97
2
JUDGEMENT
1. The brief resume of the prosecution case against the accused Lakhi Chand S/o Sh. Raja Ram & Ram Pal S/o. Sh.Chajju Singh is that on 17.08.1997 at 1.00p.m. in the night on road no.57, Kanti Nagar Check Post, Delhi within the jurisdiction of PS Krishna Nagar they were found in possession of a drum containing 220k.g. of illicit liquor which they were carrying in a Maruti Van bearing no.DL-6C-4025 and subsequently they got recovered 1870 empty pouches for filling illicit liquor, a machine for sealing the pouches, a tube and another drum container of 5 ½ k.g. of illicit liquor from a room situated in 1st floor of the house of accused Lakhi Chand and thereby committed an offence punishable U/s 61 Punjab Excise Act within the cognizance of this Court.
2. On the above stated story as per the allegations of the prosecution, on finding prima facie case against the accused both the accused persons vide orders dt. 08.05.2000, the charges were framed against both the accused persons for the offence punishable u/s.61 of Punjab Excise Act. To the charges both the accused persons pleaded not guilty and claimed trial and thus the trial has commenced.
State vs. Lakhi Chand & Ram Pal FIR No.339/97 3
3. In support of its case, the prosecution examined total five prosecution witnesses.
Out of these five prosecution witnesses PW1 HC Ishwar Singh, PW3 constable Inder Kumar & PW5 HC Surti Ram were the alleged recovery witnesses of the prosecution and testified that on the date of alleged incident IO SI Manohar Lal informed them about one secret information regarding the accused persons and they accompanied the accused to the spot where both the accused persons were apprehended and on search, allegedly 220 kg./ltr illicit liquor was recovered from their possession. Thus to the extent of recovery from the possession of the accused persons all these three witnesses are material. However examination-in-chief of one witness constable Inder Kumar remained in complete so his testimony cannot be read into evidence.
Rest of the two witnesses i.e. PW1 HC Ishwar Singh & PW5 HC Surti Ram further submitted that at the instance of the accused persons they alongwith SI Manohar Lal went at the house of Lakhi Chand from where one jute bag containing 1870 empty pouches and one plastic drum of black colour containing 5 ½ ltr. illicit liquor were got recovered. Thus, both these witnesses are the material witnesses for State vs. Lakhi Chand & Ram Pal FIR No.339/97 4 proving the guilt of the accused as they were among the recovery witnesses in whose presence the case property i.e. one drum of 220 kg. Illicit liquor was recovered from the possession of the accused persons and further when other articles & liquor were recovered at the instance of accused persons.
Whereas, PW2 ASI Dharampal was a formal witness who came to the witness box to authenticate the registration of the case and deposed that on receiving rukka sent by SI Manohar Lal through constable Inder Pal he recorded the FIR no.339/97 with PS Krishna Nagar and proved the same as Ex.PW2/A. Whereas, PW4 Sh. D. K. Punj being the Chemical Examiner was also formal witness who proved the examination report of the case property as Ex.PW4/A. This witness was necessary link witness to prove the nature of liquid contained by the case property.
4. During the trial, a large number of documents were exhibited for producing them as documentary evidence; this list includes the seizure memo Ex.PW1/A & EX.PW1/F, disclosure statement Ex.PW1/B & State vs. Lakhi Chand & Ram Pal FIR No.339/97 5 Ex.PW1/C, personal search memo Ex.PW1/D & Ex.PW1/E, jute bag Ex.P_1, empty pouches Ex.P2/1 to Ex.P2-1870, machine for sealing the pouches Ex.P-3, plastic cane Ex.P-4, drum Ex.P-5 & another drum of black colour Ex.P-6.
That is all for prosecution evidence.
5. Statement of both the accused persons was recorded U/s 281 Cr.P.C. wherein, when all the incriminating evidence and documents put to them, they denied all as incorrect submitting that they were lifted by the police officials from their house and stated that they were falsely implicated in this case by planting liquor on them but in support of their case they did not lead any defence evidence.
6. I have heard the Ld. APP for the state who has submitted that the case of the prosecution against the accused is proved through the testimony of all the three recovery witnesses PW1, PW3 & PW5 in corroboration of other prosecution witnesses and the documents exhibited in the court and that they supported the prosecution case on the point of identification and recovery from the possession of the State vs. Lakhi Chand & Ram Pal FIR No.339/97 6 accused.
Whereas, Ld. defence counsel has countered the prosecution case vehemently on many counts particularly on the ground that PW1 & PW5 are the main recovery witnesses and there are material contradictions in the testimonies of these two witnesses. It has been further argued that no public witness was joined at the time of recovery, thus, making the recovery itself doubtful and as such the prosecution has been unable to prove the guilt of the accused persons beyond any reasonable doubt.
7. On appreciation of evidence and on careful perusal of the records consisting of ocular evidence as well as documentary evidence on record, in the light of the contentions of both the parties, it is observed that the testimonies of PW1 & PW5 who are the main recovery witnesses has to be scrutinized carefully. PW1 in the cross-examination has stated that no FIR no. or identification mark was written on the jute bag by the IO. PW1 has further admitted it to be correct that no identification mark was written on the machine and that no chit was affixed on the big drum which was recovered from the Maruti Van and State vs. Lakhi Chand & Ram Pal FIR No.339/97 7 further that no identification mark was put on that drum by the IO. PW1 has further admitted that the plastic drum and the jute bag can be purchased by anyone from the market. PW1 is unable to tell as to who bought the bottle for sample purpose. PW1 is unable to tell as to who put the signatures on the memos besides him. Similarly, PW5 has submitted that no identification mark was put by the IO except the seal. PW5 has further stated in his cross-examination that the IO had written the FIR number on the blue colour drum but now the FIR number is not mentioned there. PW5 has further admitted it to be correct that no other identification mark/chit were contained on the machine and bag and further that such type of drum and jute bags are easily available in the market.
8. Availability of public persons at the spot at the time of recovery is an admitted case of the prosecution and non-joining of public persons at the time of recovery is clear from the evidence. PW1 has clearly admitted that the place of incident is a commercial area and the distance between the place of incident and PP is about ½ k.mtr. PW1 has further admitted that the distance between the place of incident and the PP is State vs. Lakhi Chand & Ram Pal FIR No.339/97 8 covered by residential houses as well as shops and further that just opposite the place of incident DVB office is situated which remains open for 24 hours. PW1 has categorically submitted that IO did not call anyone to join the investigation from that office. In the same fashion PW5 has stated that there were several shops but by way of volunteer he has stated that the shops were closed at that time. PW5 has further admitted that the locality is a thickly populated area. It has been held in Harjit Singh & Ors. Vs. State of Punjab 2001(3) JCC 1601. Appreciation of evidence : In recovery of contravened item '...that in the absence of independent witnesses and the alleged place of concealment being accessible to public, the evidence of disclosure statement and the consequent recovery of arms do not at all inspire confidence...' And, it has been further held in Pritam Singh Vs. State cited as 1998(1) JCC (Delhi) 94 The commentaries of Sh. Batuk Lal on the code of Criminal Procedure, 1973 on section 100 of Cr. P. C. comments that :
State vs. Lakhi Chand & Ram Pal FIR No.339/97 9 "the recovery should be made in presence of independent witnesses if available and the search and seizure in compliance of section 100(4) of Cr. P. C., would vitiate the trial"
9. In these circumstances, it is inevitable that the recovery relied upon by the prosecution cannot be relied upon by the court. It has already come on record despite the availability of the public witnesses the IO of the case failed to join any public witness at the time of recovery and as such the recovery itself is doubtful. Further more no identification mark except the seal and no chit extra was put by IO of the case on the recovery effected and as such the recovery becomes doubtful. It has to be further seen whether the seal which had been put by the IO was found to be illegible in the court as stated by PW5 HC Surti Ram in his examination-in-chief.
10. It is further observed that the prosecution could not produce any witness such as malkhana moharar who deposited the case property with the excise lab and to prove the intactness of the case property nor State vs. Lakhi Chand & Ram Pal FIR No.339/97 10 the link evidence who had taken the sample to excise laboratory was examined in the court to depose that any sample were sent for examination to the excise lab.
Thus, connecting link evidence to connect the recovery of case property, depositing it with malkhana from where the sample was examined in excise laboratory, are missing to complete the chain of circumstantial evidence regarding intactness of case property and sample.
11. It has to be further seen that PW5 has stated that they remained at the spot for about ½ an hour whereas PW1 has stated that they remained at the spot for about 5-6 hours, thus, indicating the vital contradiction in time at the spot.
12. It has to be further seen that on 12.7.2004 the part examination- in-chief of PW3 constable Inder Kumar was recorded but thereafter this witness was not examined at all and hence, the testimony of that witness cannot be read into evidence.
It is also pertinent to mention here that Ld. Defence counsel has State vs. Lakhi Chand & Ram Pal FIR No.339/97 11 rightly pointed out that IO of the case has also not been examined.
In this regard the reliance is placed on the observations made in a case cited as AIR 1975 SC 1453 wherein it was observed that :
"It is the duty of the prosecution to examine all the material witnesses and if all the material witnesses are not examined then an adverse inference can be drawn that he was kept aback and presumption can be drawn that on his examination he may not support the prosecution case"
13. In these circumstances non-examination of public witnesses and non-making of any independent public witness to the recovery also affects the prosecution case and non-examination of any malkhana official is also fatal in these particular circumstances when there was a doubt about the quantity and quality of the case property.
14. Thus, in the presence of material discrepancies regarding the procedure adopted by the police officials and the IO, on the spot and regarding measurement of case property & sealing is fatal to the prosecution case, under these peculiar facts and circumstance of the State vs. Lakhi Chand & Ram Pal FIR No.339/97 12 case.
15. Therefore, on the basis of above observations on law and facts, the court is of the considered view that the prosecution could not prove its case for possession of liquor at the relevant date, time and place with the accused persons beyond reasonable doubts through the evidence on record about the offences punishable u/s.61 of Punjab Excise Act and thus, on the basis of principles of criminal justice system, by giving a benefit of doubt to both the accused persons namely Lakhi Chand and Ram Pal, they are acquitted of the charges levied against them for the offences punishable u/s.61 Punjab Excise Act. ANNOUNCED IN THE OPEN COURT ON 19th Day of April 2008 ( RAJ KUMAR ) METROPOLITAN MAGISTRATE KARKARDOOMA COURTS/DELHI State vs. Lakhi Chand & Ram Pal FIR No.339/97 13 FIR NO. : 339/97 P.S. : Krishna Nagar U/s. : 61 Punjab Excise State Vs. Lakhi Chand & Ram Pal 19.04.2008 Present : Ld. APP for the state.
Both the accused persons are on bail with counsel Sh. D. K. Tyagi.
Vide separate order/judgment both the accused persons Lakhi Chand and Ram Pal are acquitted from the charges as levied against them under section 61 Punjab Excise Act. Their bail bonds/surety bonds are discharged.
File be consigned to Record Room.
MM/19.04.2008 State vs. Lakhi Chand & Ram Pal FIR No.339/97 14 State vs. Lakhi Chand & Ram Pal FIR No.339/97