Delhi District Court
State vs . Kamla Devi on 20 May, 2013
IN THE COURT OF SH. SACHIN GUPTA
METROPOLITAN MAGISTRATE, ROHINI COURTS,DELHI
State Vs. Kamla Devi
FIR No. 300/07
PS. Bawana
U/s. 61/1/14 Punjab Excise Act
Case ID No. 02404RO830172007
JUDGMENT
1) SI No. of the case : 313/A/12
2) The date of commission : 01.06.07
of offence
3) The name of the complainant : Ct. Joginder Singh
4) The name & address of accused : Kamla Devi
W/o Rampal
R/o Jhuggi No. E158,
Shahbad Dairy, Delhi.
5) Offence complained of : U/s 61 of Punjab Excise Act,
1914
6) The plea of accused : Pleaded not guilty
7) Final order : Acquitted
8) The date of such order : 20.05.2013
Date of Institution : 23.11.2007
Judgment reserved on : 20.05.2013
Judgment announced on : 20.05.2013
FIR No. 300/07 1/13
THE BRIEF REASONS FOR THE JUDGMENT:
1. Case of the prosecution in brief is that on 01.06.07 at about 6:30 pm near St. Xavier School, Main Bawana Road, Shahbad Daulatpur, Delhi within the jurisdiction of PS. Bawana, accused was found in possession of one plastic cane containing illicit liquor which when measured came out be equivalent to 10 bottles of 750ml, without any valid permit or licence and thus, she thereby committed an offence punishable u/s. 61/1/14 Punjab Excise Act.
2. After completion of investigation, charge sheet against the accused for offence u/s. 61/1/14 of Excise Act was filed in the court and after complying with the provisions of Sec. 207 Cr. P.C., arguments on charge were heard. Vide order dated 24.10.09, charge was framed u/s. 61/1/14 of Punjab Excise Act against the accused to which she pleaded not guilty and claimed trial.
3. In support of its case, the prosecution examined four witnesses i.e., PW1 HC Suresh Kumar, PW2 HC Ramarao, PW3 Ct. Jogender Singh and PW4 ASI Rajinder Singh.
4. Statement of accused recorded under section 281 Cr.P.C in which the stand of the accused is of general denial. Accused has stated that she is innocent and has been falsely implicated in this case by the police officials. However, the accused has chosen not to lead any DE.
5. I have heard the arguments of Ld. APP for State and Ld. Counsel for accused. I have also perused the record carefully.
6. In the present case, PW1 HC Suresh Kumar stated that on 01.06.07 a FIR No. 300/07 2/13 rukka was sent by HC Rajender Singh through Ct. Joginder Singh and on receipt of which he registered the present FIR and computerized/carbon copy of the same is Ex. PW1/A.
7. PW2 HC Ramarao stated that on 01.06.07 at about 6:35 pm, he received a telephonic call from Ct. Jogender and informed him that one woman has been apprehended along with illicit liquor at St. Xavier School upon which he made the entry in roznamcha vide DD No. 32PP Ex. PW2/A.
8. PW3 Ct. Jogender Singh stated that on 01.06.07, he was on patrolling duty and at about 6:00 pm when he was present at St. Xavier School, Shahbad Daulatpur Main Bawana road, he saw one lady having possession of white colour plastic cane was going towards Shahbad Dairy from village Shahbad. He further stated that having seen him she got frightened and started going towards Shahbad Dairy hurriedly. He stated that on suspicion she was stopped after chasing her for 10 to 15 steps and plastic cane was checked and it was smelling liquor. He further stated that thereafter he informed at PP Shahbad Dairy regarding the same. He further stated that she revealed her name as Kamla, W/o Sh. Rampal. He further stated that thereafter, IO HC Rajender reached at the spot and he handed over the custody of accused and the case property to him. He further stated that thereafter, IO asked him to bring one empty bucket, one empty bottle of 750 ml, one keep and one mug for measurement. He further stated that IO measured the liquor and it was found equivalent to 10 bottles of 750 ml each. He further stated that one bottle was taken out as sample and remaining liquor was poured into the cane. He further FIR No. 300/07 3/13 stated that the cane was sealed with the seal of RSC. He further stated that IO prepared Form No. M29 and served with the same seal. He further stated that the sample bottle was also sealed with the seal of RSC and seal after use was handed over to him. He further stated that the liquor was taken into police possession vide memo Ex. PW3/A. He further stated that IO recorded his statement Ex. PW3/B. He further stated that IO prepared a rukka and handed over the same to him for the registration of FIR and he accordingly went to the PS and got the FIR registered. He further stated that he came back at the spot along with copy of FIR and original rukka. He further stated that IO prepared the site plan at his instance, arrested the accused vide memo Ex. PW3/D and accused got personally searched vide search memo Ex. PW3/E by public witness. He further stated that thereafter, case property was deposited in the malkhana and IO recorded his statement.
During cross examination, PW3 stated that he sealed the sample bottles and seal was with him. He admitted that no notice was served upon the public persons who refused to join the investigation. He denied to the suggestion that since no recovery made from the accused so no public person joined the investigation. He further denied to the suggestion that case property was planted upon the accused or paper work was done while sitting at PS.
9. PW4 ASI Rajinder Singh stated that on 01.06.07, he was posted at PS. Bawana as HC and on that day, he received DD No. 32PP and thereafter, went to the spot of incident at St. Xavier School, Shahbad Daulatpur, Main Bawana Road, Delhi. He further stated that after reaching there he met with Ct. Joginder who FIR No. 300/07 4/13 produced to him accused Kamla along with one white plastic cane containing illicit liquor. He further stated that he asked 45 public persons to join the investigation but none agreed and left the spot without disclosing their names and addresses. He further stated that thereafter, he sent Ct. Joginder to brought the empty bucket and mug for measurement of liquor. He further stated that he counted the bottles which was recovered by Ct. Joginder and found that there were 10 bottles of 750 ml each. He further stated that he took bottle of 750 ml as a sample and poured the remaining 9 bottles in the plastic cane. He further stated that he also seized the case property. He further stated that he sealed the sample as well as plastic cane with the seal of RSC. He further stated that he also filled the form no. M29 and recorded the statement of Ct. Joginder. . He further stated that he prepared a rukka Ex. PW4/A and handed over the rukka to Ct. Joginder for registration of FIR who accordingly went to the PS and got the FIR registered and returned back to the spot and handed over the original rukka and copy of FIR to him. He further stated that he prepared the site plan at the instance of Ct. Joginder, arrested the accused and personally searched the accused. He further stated that he deposited the case property in malkhana.
During cross examination, PW4 admitted that the place of incident was a public place an public persons were present there. He further stated that he asked 45 public persons to join the investigation but none agreed and left the spot. He further stated that he did not give any notice to the public person who refused to join the investigation. He further stated that he did not make any note of the FIR No. 300/07 5/13 excuses given by the public persons. He further stated that empty bucket and mug were brought from PS. S.B. Dairy. He further admitted that recovery memo, seizure memo and other documents were prepared at the spot did not bear signature of any public persons. He denied to the suggestion that since nothing was recovered from the accused so no public persons were joined as a witness or the signatures of public persons were taken on those documents. He further stated that no handing over memo of the seal was prepared by him. He denied to the suggestion that case property has been planted upon the accused.
10. It is fundamental principle of criminal jurisprudence that an accused is presumed to be innocent and therefore, the burden lies on the prosecution to prove the guilt of the accused beyond reasonable doubt. The general burden of establishing the guilt of accused is always on the prosecution and it never shifts.
11. In the present case, from the testimonies of prosecution witnesses, it is crystal clear that there was complete lack of any efforts much less genuine and sincere effort on part of police officials to join public witness to the proceedings despite the fact that admittedly place of alleged incident was a public place and public persons were available at the relevant point of time. PW3 Ct Joginder Singh who was stated to be on patrolling duty on 0106.2007 admitted in his cross examination that no notice was served upon the public persons who refused to join the investigation. Moreover, during cross examination, PW4 IO ASI Rajinder Singh admitted that the place of incident was a public place an public persons were present there. He stated that he asked 45 public persons to join the investigation FIR No. 300/07 6/13 but none agreed and left the spot. He further stated that he did not give any notice to the public person who refused to join the investigation. He also stated that he did not make any note of the excuses given by the public persons. He further admitted that recovery memo, seizure memo and other documents did not bear signature of any public persons. He further stated that empty bucket and mug were brought from PS. S.B. Dairy. However no DD entry in support of same is proved on record. Hence, there is complete absence of genuine and sincere efforts on the part of police officials to join public witness to the proceedings. It is well settled that 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 non availability will not be sufficient particularly when at the relevant time, it was not difficult to procure the service of public witness. At least in the facts and circumstances of the case, in my opinion, IO could very well have served the passersby with notice in writing to join the police proceedings which was not even done by the IO. The above referred mechanical excuse given by the prosecution for not joining the public witnesses in the police proceedings/investigation creates a reasonable doubt in the prosecution version. It is pertinent to note that IO has not even made a note of the excuses given by the above said passersby for not joining the proceedings. Also there is no explanation from the side of IO as to why he did not record the excuses given by the passersby who were requested to join the police proceedings. At this juncture, it would be pertinent to refer to some case laws.
12. In a case law reported as "Anoop Joshi Vs. State", 1992(2) C.C. Cases FIR No. 300/07 7/13 314(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 he 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.
13. In a case law reported as "Roop Chand Vs. The State of Haryana", 1999(1) C.L.R 69, the Hon'ble Punjab & Haryana High Court held as under:
3. I have heard the learned counsel for the parties and gone through the evidence with their help.
The recovery of illicit liquor was effected from the possession of the petitioner during noon time and it is in the evidence of the petitioner witnesses that some witnesses from public were available and they were asked to join the investigation. The explanation furnished by the prosecution is that the independent witnesses were asked to join the investigation but they refused to do so on the ground that their joining will result into enmity FIR No. 300/07 8/13 between them and the petitioner.
4. 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 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 name 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 the witnesses from the public had refused to join the investigation, the investigating officer must have proceeded against them under relevant provisions of law. The failure to do so by the police officer is suggestive of the fact that the explanation for non joining 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."
14. In case law reported as "Sadhu Singh Vs. State of Punjab", 1997(3) FIR No. 300/07 9/13 Crimes 55 of the Hon'ble Punjab & Haryana High Court observed as under:
5.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.
6. In the present case, the State examined two witnesses namely, Harbans Singh ASI who appeared as PW1 and Kartar Singh 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 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.
15. In the facts and circumstances and settled preposition of law as discussed herein before, it is crystal clear that there was complete lack of any sincere and FIR No. 300/07 10/13 genuine efforts to join any public witnesses before starting initial investigation of the present case and this failure on the part of the IO creates a very serious doubt over the prosecution version. Further there is no evidence in the form of DD entry vide which PW3 Ct Joginder who is stated to be on petroling duty on 01.06.07, have left the police station for patrolling duty is proved on record. It casts doubt over the presence of the said PW who is police officials and who is required to make his arrival or departure entry as per Punjab Police rules.
16. Moreover, as per the version of the prosecution, accused was in possession of liquor without any licence/permit for the same. Very surprisingly, no efforts whatsoever have been made by the prosecution to have clue about the source from where the case property was arranged by the accused. At least some efforts must have been made by the police to interrogate the accused and conduct requisite investigation to know as to from where accused arranged the same. This further makes the story of prosecution doubtful.
17. Not only this, the case property and accused remained in control of police officials till the case property was deposited in the malkhana. Hence tampering with the case property cannot be ruled out as the seal remained all along with the police officials. As per the case of the prosecution, the case property was sealed with the seal of RSC. However, admittedly neither any handing over memo nor returning memo of the seal was prepared by IO. Thus, tampering may not be ruled out as sealed case property and accused were with the police officials till the time case property was deposited in Malkhana. No efforts were made to FIR No. 300/07 11/13 hand over the seal after use in the presence of independent public persons. In such circumstances, the possibility of tampering the case property cannot be ruled out. Moreover when the plastic cane produced in the court during the trial, it was filled only approximately 6½ ltr. Hence, Prosecution has completely failed to prove that the case property remained intact and was not tampered with till the time it was produced in the Court which was more important when the seal remained with the police official of the same police station. This again creates sufficient doubt over the prosecution story, benefit of which must go to the accused.
18. Further, it is an admitted fact that seizure memo was prepared before the registration of the FIR . But the perusal of seizure memo shows that FIR number is mentioned at the top of it. It is a surprising fact that how the FIR number finds the mention at the top of seizure memo when the FIR was not registered at that time even as per the version of prosecution itself. No explanation of any kind whatsoever has been given on this point. These facts casts a very serious doubt in the prosecution story and in such cases, benefit of doubt is to be given to the accused.
19. In a case titled "State of Himachal Pradesh v/s Dharam Dass", 1992(1) C.L.R, it has been ruled that the prosecution has to prove the guilt against beyond all reasonable doubt and that too by leading independent, reliable and unimpeachable evidence. There is no controversy to the proposition that the accused is entitled to the benefit of every doubt occurring in the prosecution case.
20. In "Thakorbhi Viribhai Vasava & others V/s The State of Gujrat" Crime, FIR No. 300/07 12/13 Vol (1) 1987/37 Gujrat High Court (D.B), it has been ruled down that in criminal trials even a slightest doubt raised in favour of accused ordinarily entitle the accused to get acquittal.
21. The general principles of criminal jurisprudence, namely, that the prosecution has to prove its case beyond reasonable doubt and that the accused is entitled to the benefit of a reasonable doubt, are to be borne in mind. All the lapses in investigation, discussed herein above creates a doubt on the very recovery of illicit liquor without permit or legal license from the possession of accused. The lapses are material one and cannot be ignored. It is settled proposition of law that if the investigation suffers from taint then the entire prosecution case becomes open to serious doubts and challenges. The material is insufficient to record a finding of guilt of the accused.
22. In view of the above said discussion, the prosecution has failed to prove the guilt of the accused beyond reasonable doubt. Accordingly, I acquit the accused Kamla Devi for the offence u/s 61 of Punjab Excise Act. Case property be confiscated to the State. File be consigned to record room after due compliance.
Announced in open court (SACHIN GUPTA)
th
on 20 May, 2013 MM:ROHINI COURTS
DELHI, 20.05.2013
FIR No. 300/07 13/13