Delhi District Court
State vs . Suresh, Fir No. 494/02, Ps Model Town, ... on 6 June, 2012
State Vs. Suresh, FIR No. 494/02, PS Model Town, U/s 61-1-14 Excise Act. IN THE COURT OF SH. DHEERAJ MOR, METROPOLITAN MAGISTRATEIV, ROHINI COURTS, DELHI. State Vs. Suresh FIR No. 494/02 U/s. : 61/1/14 Excise Act. P.S. : Model Town JUDGMENT
1. Sl. No of the case : 494/02
2. Date of institution of the case : 24.10.2002
3. Date of commission of the offence : 16.08.2002
4. Name of the accused : Suresh Chand
S/o Late Sh. Ram Charan Singh
5. Name of the complainant : HC Rajbir Singh
6. Offence complained of : 61/1/14 Excise Act.
7. Plea of accused : Pleaded not guilty
8. Final order : Acquitted
9. Date of such order : 06.06.2012
BRIEF STATEMENT OF THE REASONS FOR THE DECISION
1. The accused has been sent to face trial under section 61/1/14 Punjab Excise Act, by the SHO, PS Model Town.
2. The brief facts of the case as alleged by the prosecution and as unfolded from the charge sheet are that on 16.08.2002 at about 9:00 pm near Railway Crossing No. 3, Sangam Park, Delhi, the accused was found in possession of one plastic cane containing 21 bottles of illicit liquor without any licence or permit of N.C.T of Delhi. Therefore, the present FIR No. 494/02, under section 61/1/14 Punjab Excise Act was registered at PS. Model Town. After completion of the investigation, charge sheet was Page No. 1 State Vs. Suresh, FIR No. 494/02, PS Model Town, U/s 61-1-14 Excise Act.
prepared and filed in the Court.
3. The accused was summoned by the court for facing trial for the aforesaid offence. In compliance of Section 207 Cr. P. C. the copy of the challan and the documents annexed therewith were supplied to the accused. Prima facie charge U/s. 61/1/14 Punjab Excise Act was made out against the accused Suresh. Accordingly, on 19.02.2003 the charge was framed by the Ld. Predecessor of this court. The accused pleaded not guilty to the same and claimed trial. Thereafter, the case proceeded for prosecution evidence.
4. In order to substantiate its case, the prosecution examined four witnesses.
5. PW1/ASI Dharambir Singh has deposed that on 16.08.2002, he was posted as DO. He has further deposed that on receipt of rukka from Ct. Raj Kumar, he registered the present FIR no. 494/02, and he has proved the same as Ex. PW1/A and endorsement on the rukka as Ex. PW1/B.
6. PW2/HC Raj Kumar is the recovery witness and he has deposed that on 16.08.2002, he alongwith HC Rajbir Singh were on patrolling duty in the area of PS Model Town and at about 8:45 pm when they reached ABlock, Sangam Park, HC Raj Bir Singh received a secret information that one person with illicit liquor will go to Kabir Nagar via Railway Phatak No. 3, Sangam Park. He has further deposed that on receipt of secret information HC Rajbir asked some persons to join the proceedings, but none agreed and after constituting a raiding party, they alongwith the secret informer stood near phatak no. 3, Sangam Park and started waiting for the said person. He has further deposed that on the pointing out by the secret informer they stopped the accused Suresh. He has further deposed that the accused was carrying a plastic cane on his right shoulder containing illicit liquor. He has further deposed that on measuring the illicit liquor, it was found that the cane was containing 21 bottles of 750 ml of illicit liquor. He has proved the seizure Page No. 2 State Vs. Suresh, FIR No. 494/02, PS Model Town, U/s 61-1-14 Excise Act.
memo of the said plastic cane as Ex. PW2/A. He has further deposed that the IO prepared the Rukka and handed over to him for the registration of the FIR. He has further deposed that after getting the case registered he came back alongwith HC Deen Mohd. He has further deposed that HC Raj Bir Singh handed over the custody of the accused, sealed pullanda and other documents to the second IO/HC Deen Mohd. He has further deposed that st the second IO prepared the site plan at the instance of the 1 IO. He has proved the arrest and personal search memos of the accused as Ex. PW2/B and Ex. PW2/C. During his testimony, case property/ one plastic cane containing liquor duly sealed with the seal of HRS was produced in the court and it was shown to him. He had correctly identified that to be the same that was recovered from the possession of the accused and he had also correctly identified the accused. The cane was exhibited as Ex. P1.
7. PW3/Ct. Rakesh has deposed that on 04.09.2002, he took a sealed sample bottle bearing seal of HRS and excise form M29 for depositing the same at Excise Laboratory vide RC No. 139/21 and after depositing the sample bottle with Excise Laboratory, he returned back and deposited the receipt of RC with MHC(M).
8. PW4 HC Kishan Pal, has deposed that on 16.08.2002, he was posted as MHC(M) at PS Model Town. He has further deposed that HC Deen Mohammed deposited the case property i.e. one plastic cane and sample bottle duly sealed with the seal of HRS, bearing the particulars of the present case and excise form. He has further deposed that on 04.09.2002, he handed over the said sample bottle and excise form to Ct. Rakesh vide RC No. 139/21 for depositing the same in the Excise Laboratory. He has further deposed that after depositing the same, Ct. Rakesh handed over him the copy of RC with receipt on the same day. He has proved the entry in register No. 21 as Ex. PW4/A. Thereafter, PE was closed.
9. Statement of the accused U/s. 313/281 Cr. P. C was recorded. All the Page No. 3 State Vs. Suresh, FIR No. 494/02, PS Model Town, U/s 61-1-14 Excise Act.
incriminating evidence were put to him. In the said statement he has stated that he has been falsely implicated in the present case and he is innocent. He has further stated that he is an auto driver and on that day he was returning back to his house. He has further stated that on the way to his house, he was stopped by the police officials and the case property was falsely planted upon him. However, he preferred not to lead evidence in defence. Accordingly, the matter was listed for final arguments.
10. I have heard the Ld. APP for the state and Ld. Counsel for the accused. I have carefully perused the case record.
11. The cardinal principle of the criminal law is that the accused is presumed to be innocent till he is proved guilty beyond any reasonable doubt. The burden of proving guilt of the accused lies on the prosecution and the prosecution is required to stands on its own legs to establish the culpability of the accused. The benefit of doubt if any, must go in favour of the accused.
12. In order to sustain conviction U/s.61/1/14 Punjab Excise Act the prosecution is required to prove the following ingredients: i. The accused was found in the possession of the illicit liquor. ii. He/She was carrying the same without any licence/permit.
13. The prosecution is required to prove that the alleged illicit liquor was recovered from the possession of the accused. Complainant/PW2 HC Raj Kumar and HC Raj Bir Singh are the material witnesses as they are the alleged recovery witnesses. PW2 HC Raj Kumar i.e. recovery witness, has deposed in his examinationinchief that they were on patrolling duty at the time of recovery of the liquor from the accused. However, the prosecution has failed to place and prove on record the departure entry of the said witnesses vide which they allegedly together left the police station for the purpose of patrolling in the area. The said departure entry was Page No. 4 State Vs. Suresh, FIR No. 494/02, PS Model Town, U/s 61-1-14 Excise Act.
indispensable for establishing their presence at the spot of alleged recovery. Therefore, their presence at the alleged place, time and date of recovery of the illicit liquor from the possession of the accused is doubtful.
14. The alleged incident pertains to have occurred at about 9.00 pm, near Railway Crossing No. 3, Sangam Park, Delhi. Therefore, it can be convincingly presumed that there were many public persons available at the spot of alleged recovery. Moreover, PW2 has admitted in his examination in chief that some public persons were present at the spot. The criminal law has duly empowered the investigating officer/police officials to initiate action against the persons who refuse to participate in the investigation. But still, IO neither made any efforts to join public/independent witnesses nor advanced any plausible explanation as to why no independent witnesses were examined by him. Hence, story of the prosecution is further shrouded in suspicion.
15. The prosecution has failed to examine any public witness therefore, the version of the prosecution has remained uncorroborated by an independent material witness. The witness that is examined by the prosecution in the present case is police witness, who is interested in the success of the prosecution case and therefore, the probability of him being guided by the extraneous factors, other than truth, cannot be ruled out. The police witnesses cannot be straightaway termed as unreliable witnesses, however, when there is a possibility of joining any public witness in the investigation and still no genuine efforts are made to join the independent person as witness, then the testimony of the police witness does not lend sufficient credence/reliability, unless it is corroborated by independent material witness. In view of above discussion it is duly established that genuine efforts were not made by the IO of the case to join the public witness. The non joining of the public witness creates doubt in the story of the prosecution as held in Pawan Kumar Vs. Delhi Administration 1987 CC 585 Delhi High Court.
Page No. 5State Vs. Suresh, FIR No. 494/02, PS Model Town, U/s 61-1-14 Excise Act.
16. Keeping in view the fact that the version of prosecution witness has remained uncorroborated by any other independent witness regarding the alleged recovery of illicit liquor, it will be highly unsafe to rely upon their version to pass the order of conviction against the accused. It has been held in 1975 CAR 309 (SC) that "Prosecution case resting solely on the testimony of head constable and no independent witness examinedprosecution story appearing improbable and unnatural. Held that the prosecution case can not be said to be free from reasonable doubt and the accused is liable to be acquitted".
17. In the light of above facts, the prosecution has failed to discharge the onus placed upon it and so have failed to prove its case beyond any reasonable doubt. Accordingly, benefit of doubt is given to the accused Suresh and he is acquitted of the charge U/s. 61114 Punjab Excise Act. Bail bonds stands canceled. Surety stands discharged. Endorsement on surety's documents, if any, be canceled and original documents if any of surety retained on record be returned to the person legally entitled. The case property be confiscated to the State.
File be consigned to record room after due compliance.
Announced in the open court on 06.06.2012.
(DHEERAJ MOR) METROPOLITAN MAGISTRATE ROHINI/DELHI Page No. 6 State Vs. Suresh, FIR No. 494/02, PS Model Town, U/s 61-1-14 Excise Act.
State Vs. Suresh FIR No. 494/02 U/s. : 61/1/14 Excise Act.
P.S. : Model Town
06.06.2012
Present: Ld. APP for the State.
Accused Suresh on bail.
Statement of the accused U/s 313/281 Cr .P. C recorded. The
accused has stated that he does not want to lead any defence evidence. Put up for final arguments at 2.00 pm. (Dheeraj Mor) MM/Rohini/Delhi/06.06.12.
At. 2.00pm
Present: As above.
Final arguments heard. Case file perused.
Vide my separate judgment announced in the open court today, the accused Suresh stands acquitted for the offence punishable U/s 61/1/14 Excise Act.
The surety is discharged and bail bond stands cancelled. Original documents, if any, be returned to the persons legally entitled after cancellation of endorsement, if any, on the said documents. The case property be confiscated to the State.
File be consigned to Record Room after due compliance.
(Dheeraj Mor) MM/Rohini/Delhi/06.06.12.
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