Delhi District Court
State vs . Maina on 2 April, 2013
IN THE COURT OF SH. SUNIL KUMAR, METROPOLITAN
MAGISTRATE, ROHINI DISTRICT COURTS, DELHI
State Vs. Maina
FIR No.179/09
PS Jahangirpuri
The date of institution of case: 10.03.2010
The date of reserving the order: 02.04.2013
The date on which Judgment pronounced: 02.04.2013
JUDGMENT
Unique Identification No. : 02404R0101812010 Date of commission of offence : 24.03.2009 Name of the complainant : Ct. Narender Singh Name & address of accused : Maina, W/o Sh. Pramod Kumar R/o H. No. J 91920, Jahangirpuri, Delhi.
Offence complained of : Section 61/1/14 of Punjab
Excise Act, 1914
Final order : Acquitted
Date of order : 02.04.2013
BRIEF REASONS FOR DECISION:
1 Briefly stated, the prosecution case is that on 24.03.009, at
about 9:45 pm at T Point, Sanjay Enclave, Ramgarh Service Road, Jahangirpuri, Delhi, the accused was found in possession of three paties containing 12 bottles of illicit liquor in each petti i.e. total 36 bottles of illicit liquor without any license or permit and the accused has been charged for the offence punishable U/s 61/1/14 of the State vs. Maina, FIR No. 179/09, PS Jahangirpuri Page no.1/10 Punjab Excise Act, 1914.
2 After investigation, charge sheet was filed against the accused. Copies of charge sheet were supplied to the accused in compliance to the section 207 Code of Criminal Procedure (hereinafter mentioned as Cr.PC) and charge for the offence punishable U/s 61 of Punjab Excise Act, 1914 was framed by the then ld. Predecessor of this court against the accused on dated 20.07.2010 to which, she has pleaded not guilty and claimed trial.
3 In support of the version, the prosecution has examined two witnesses, out of seven witnesses as cited in the list of witnesses.
4 On careful scrutiny of the testimony of the witnesses reveals that PW1 Ct Narender Singh No. 941 NW has deposed that on 24.03.2009, he was posted at PS Jahangir Puri and on that day, he was on patrolling duty at T point, Sanjay Enclave, Ramgarh Service Road and at about 7.45 pm, he saw that accused was standing by the side of the road and was having a loaded plastic bag and when he asked to the accused for what purpose she was standing there on which she replied that she was waiting for her husband who went to bring a rickshaw. He further deposed that he entertained suspicion and checked the bag and upon checking of the bag, it was found containing three cartoons which were containing illicit liquor. He further deposed that afterthat he sent the information about the same at PS through telephone and thereafter HC Narender Kumar IO along with Lady HC Rakesh reached on the spot and he handed over the custody of accused and State vs. Maina, FIR No. 179/09, PS Jahangirpuri Page no.2/10 of bag to IO who recorded his statement Ex.PW1/A. He further deposed that the cartoons were checked and found that each cartoon containing 12 bottles of Metro Masaledar Desi Sharab. He further deposed that 45 passersby were requested to join the investigation but none agreed. He further deposed that one bottle from each cartoon was separated towards sample and the remaining bottles were again put into the respective cartoons. He further deposed that an excise form M29 was filled up by the IO and the samples, bag and excise form were sealed with the seal of NK and same were seized vide memo Ex. PW1/B. He further deposed that seal after use was handed over to him and IO prepared the rukka and handed over the same to him for getting the case registered. He further deposed that he after having got the case registered, returned back with rukka and copy of FIR and handed over the same to the IO who prepared site plan at his instance. He further deposed that the accused was arrested and her personal search was conducted by Lady HC Rakesh vide memos Ex.PW1/C and Ex PW1/D respectively. He further deposed that the case property was deposited in the malkhana. He has correctly identified the case property as Ex P1 collectively.
This witness was crossexamined on behalf of the accused by her counsel in which he deposed that some passers by were asked to join the investigation but none agreed and upon which no notice was given to them. He further deposed in his cross examination, that all the writing work was done at the spot and that his statement was recorded in the PS. He denied the suggestion that he was deposing falsely or nothing was recovered from the accused.
State vs. Maina, FIR No. 179/09, PS Jahangirpuri Page no.3/10 5 PW2 HC Narender/IO has deposed that on 24.03.2009 the copy of DD no.45A was handed over to him by Duty Officer and thereafter, he along with W.HC. Rakesh reached on the spot where Ct. Narender handed over the custody of accused and of bag to him. He further deposed that recorded the statement of Ct. Narender Ex.PW1/A and checked the cartoons and found that each cartoon were containing 12 bottles of Metro Masaledar Desi Sharab. He further deposed that 45 passersby were requested to join the investigation but none agreed. Rest of the deposition made by PW 2 HC Narender is almost on the same lines as deposed by PW1 Ct Narender in the present case and thus, his remaining testimonies are not being discussed for the sake of brevity. He also proved the excise form M29 as Ex. PW 2/A, seizure memo as Ex. PW1/B, rukka as Ex. PW2/B, site plan as Ex PW 2/C, arrest memo as Ex PW1/C, personal search memo Ex PW1/D and case property Ex P1 collectively. However, he has further deposed that accused was released on bail on furnishing surety bonds. He further deposed that on 16.06.2009, the samples were sent to Excise Laboratory through Ct. Satbir and thereafter, he collected the result vide Ex PW2/D and recorded the statement of the witnesses and prepared the charge sheet under the supervision of SHO.
This witness was also cross examined on behalf of the accused by her counsel in which he deposed that some passers by were asked to join the investigation but none agreed and upon which no notice was given to them. He further deposed in his cross examination, that statement of Ct. Narender was recorded in the PS. He denied the State vs. Maina, FIR No. 179/09, PS Jahangirpuri Page no.4/10 suggestion that he was deposing falsely or nothing was recovered from the accused. Thereafter, on dated 06.03.2006, PE was closed as despite giving several opportunities, the prosecution has failed to complete its evidence and also considering the fact that the case pertains to the year 2006.
7 The accused was examined under Section 281 Cr.PC and all the material evidence against her was put to her and she refuted all the allegations leveled against her and submitted that she is innocent and has been falsely implicated in this case by the police. However, she did not opt for leading evidence in her defence.
8 Ld. counsel for the accused has submitted that the accused has been falsely implicated in this case by the police officials. It is further argued that the case of the prosecution rests entirely upon the testimony of police witnesses and there are no independent witnesses to corroborate their testimonies. It is further argued that nothing was recovered from the possession of the accused and the recovery, if any, is the planted one upon the accused. It is further argued that there is material contradictions in the testimony of the witnesses, which is fatal to the case of Prosecution. It is further argued that since the Prosecution could not establish the case against the accused for the alleged offence beyond shadow of doubt, it is, therefore, prayed that the accused may be acquitted of the alleged offence.
9 On the contrary, Ld. APP for the State has submitted that every discrepancy in statements of the witnesses could not be fatal to the State vs. Maina, FIR No. 179/09, PS Jahangirpuri Page no.5/10 Prosecution case. It is further argued that the discrepancies which does not effect the Prosecution case materially does not create infirmity and there is no material discrepancies/contradictions in the Prosecution case. It is further argued that the prosecution has successfully established its case against the accused. Hence, it is, prayed that the accused may be convicted accordingly.
10 I have heard Ld. Counsel for the accused, ld. APP for the State and perused the material on record carefully.
11 I have given my thoughtful consideration to the testimonies of the witnesses and perused the entire material on record carefully and observed that as per the prosecution story the accused was found in possession of illicit liquor without any license or permit, but the prosecution could not prove the said allegations upon the accused.
12 In the present case, the prosecution has not been able to prove the present case against the accused. Further, in this case, the Chemical Examiner and MHC(M) to whom the case property had been deposited have not been examined by the prosecution. Further, in the present case, IO states that he asked four five passers by to join the investigation, but none agreed and he has also not given any notice to them upon their refusal. The said police official failed to give any reasonable excuse as to why he has not given any notice to the public persons who refused to join the investigation. This failure on the part of the prosecution creates reasonable doubts in the prosecution story.
State vs. Maina, FIR No. 179/09, PS Jahangirpuri Page no.6/10 13 In this regard reliance may be placed on the following case laws: In case reported as Roop Chand vs. State of Haryana 1990 CCC 3, the Hon'ble Punjab & Haryana High Court has held that:
''When some witness from the public was available then the explanation furnished by the prosecution that they refused to join the investigation,the same is wholly unsatisfactory, particularly when the IO did not note down the names and addresses and did not take any action against them''.
In case reported as Maluk Singh vs. State of Punjab 1990 CCC 20, the Hon'ble Punjab & Haryana High Court has further held that:
''Joining of witnesses in the case of excise is not a mere formality, although there is no bar in taking into account the testimony of police witnesses, as they are also good witnesses, but to restore the confidence of general public in the investigating agency it is always desirable that whenever any witness from the public is available, he should be joined to rule out the possibility of plantation''.
14 In the above mentioned cases, there are no public witnesses who had been joined in the proceedings. It is not necessary in such State vs. Maina, FIR No. 179/09, PS Jahangirpuri Page no.7/10 recovery that public witnesses must be joined but sincere 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 public witnesses or that they were not available. But in the instant case, IO has not made sincere efforts to join the public persons in the investigation.
15 In such cases in view of Saifulla Vs. State 1998 (1) CCC 497(Delhi) and Abdul Gaffar Vs. State 1996 JCC 497 (Delhi) which held that benefit of doubt is to be given to the accused. In this case also, it is stated by the IO that the seal after use was handed over Ct. Narender meaning thereby the seal was kept by the police officials themselves and was not handed over to any independent person. Hence, the possibility of tempering with the case property also can not be ruled out in this case as the seal remained with the police official of the same police station.
16 In case law reported as Sadhu Singh vs. 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 improbably or lacks credibility, the benefits of doubt necessarily has to go to the accused".
State vs. Maina, FIR No. 179/09, PS Jahangirpuri Page no.8/10 The Hon'ble High Court of Delhi in Narain Singh @ Lala vs. State of Delhi 2005 (1) LRC 294 (Del) (DB) has also ruled that:
"There must be a chain of evidence so complete as to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."
Further lastly but not the least, the Hon'ble Supreme Court of India in catena of decisions has also held that:
"In Criminal trial benefit of doubt when on the basis of the evidence appearing on record, two views are possible, accused is entitled to benefit of doubt."
17 In this case also as per my observation and analysis, the words Credibility is found missing as there are several discrepancies in the case of the prosecution as mentioned in earlier paras.
18 In view of the facts and circumstances of the case, it is crystal clear that the Prosecution has failed to prove its case beyond the shadow of reasonable doubt. There is no convincing evidence on the record, which could substantiate any charge upon the accused and it can safely be concluded that in the present case the evidence on the record is not at all sufficient to hold the accused guilty of the alleged offence, as the Prosecution story is highly doubtful and the benefit of doubt is the right of the accused. It is also an established law of the State vs. Maina, FIR No. 179/09, PS Jahangirpuri Page no.9/10 land that the accused should not be convicted in doubtful circumstances. Even, if there are two views possible, the view favourable to the accused has to be accepted. Since, the Prosecution has failed to establish a case against the accused for the alleged offence beyond reasonable doubt, I am also not inclined to convict the accused in doubtful circumstances. Consequently, by giving benefit of doubt, I hereby acquit the accused Maina for the offence punishable U/s 61 of Punjab Excise Act, 1914. The file be consigned to record room.
Announced and dictated in the open court today i.e. on 26.03.2013 (SUNIL KUMAR) MM/ROHINI COURTS:DELHI State vs. Maina, FIR No. 179/09, PS Jahangirpuri Page no.10/10