Delhi District Court
State vs . Sonia on 18 April, 2018
IN THE COURT OF SH. KISHOR KUMAR, MM-03,
SOUTH WEST DISTRICT, ROOM NO.11, DWARKA
COURTS, DELHI.
FIR No. : 84/15
U/s : 33 Delhi Ex. Act
P.S. : Bindapur
State Vs. Sonia
JUDGMENT:
a) Sl. No. of the Case : 86/8 & 425656/16
b) Name & address of the :Ct. Kamal complainant No. 522/SW, P.S. Bindapur, New Delhi
c) Name & address of :Sonia W/o Sh. Sunny accused R/o H. No. A-46, Vishu Vihar, Uttam Nagar, New Delhi.
d) Date of Commission of :14.01.2015 offence e) Offence complained off :33 Delhi Excise Act f) Plea of accused :Pleaded not guilty g) Final Order :Acquitted h) Date of such order : 18.04.2018 Date of Institution : 17.12.2015
Final arguments heard on : 18.04.2018 Judgment Pronounced on : 18.04.2018 FIR No. 84/15 State vs. Sonia 1/12 BRIEF STATEMENT OF REASONS FOR DECISION: -
1. The case of the prosecution is that on 14.01.2015 at about 7.55 PM at Main Road, Pratap Garden, in front of Nirvachan Kendra, Delhi, accused was found in possession of illicit liquor in a plastic bag without any permit or license.
2. After filing of the charge-sheet, cognizance was taken. Accused was summoned. Copy of charge-sheet was supplied to her. On the basis of material on record, charge for the offence punishable u/s 33 Delhi Excise Act was framed against the accused on 29.02.2016 to which she pleaded not guilty and claimed trial.
3. In support of its case, prosecution has examined six witnesses.
FIR No. 84/15 State vs. Sonia 2/12
4. PW-1 Ct. Kamal Singh has deposed that on 14.01.2015, when he was present at beat no. 5, Bhagwati Vihar, DDA Flats, A-Block, one secret informer came to him and told that one lady along with illicit liquor will come from the side of DDA Flats Seh-Shiksha Vidyalay and will go towards Vishu vihar and if raid is conducted she could be apprehended. At this, he asked 3-4 passerby to join the investigation but none agreed and left the spot without disclosing their names and addresses. At this, without waisting any time, he took his position opposite A Block DDA Flats behind the wall of Nirvachan Kendra Office. At about 7.55 PM, he saw accused carrying a white katta wrapped with a white cloth on her head, coming from the side of school and came in front of Nirvachan Kendra. PW1 inquired her about the said katta but she failed to give any satisfactory reply. He checked the said katta and it was found containing illicit liquor. He informed the duty officer at PS Bindapur. At this, HC FIR No. 84/15 State vs. Sonia 3/12 Babu Lal along with Wct. Neeraj came to the spot. He handed over the said katta along with accused to HC Babu Lal. HC Babu Lal recorded his statement Ex. PW1/A. HC Babu Lal opened the said katta and it was containing one gatta peti and on opening the said peti, it was found containing 48 bottles printed with "Impact for sale in Haryana only". He separated one quarter bottle as sample and kept the remaining 47 in the same gatta peti and thereafter, kept the said peti into the same katta and wrapped the neck of the katta with white cloth and also wrapped the neck of the sample bottle with white cloth. He sealed both of them with the seal of BL and gave serial no. 1 to katta and serial no. 1-A to the sample. He also prepared form M-29. Seal after use was handed over to PW1. He seized the said illicit liquor along with sample vide seizure memo Ex. PW1/B. Thereafter, he prepared the rukka and handed over the same to PW1 for registration of FIR, he left the spot at about 9:20 pm and FIR No. 84/15 State vs. Sonia 4/12 got registered the present case. Thereafter, HC Babu Lal gave notice U/s 41(A) Cr.PC to the accused and they went back to the PS and case property was deposited in the Malkhana. Before releasing the accused, HC Babu Lal also recorded her disclosure statement Ex. PW1/C. Case property is Ex. P-1(Colly).
5. PW2 W/Ct. Neeraj and PW4 HC Babu Lal deposed that on 14.01.2015, on receipt of DD No.40A, they went to Election Center, Partap Garden Road, A Block, DDA Flats where they met Ct. Kamal who had apprehended accused Sonia along with illicit liquor. IO checked the katta and the same was found containing 48 quarter bottles of Impact whiskey. Out of the said bottles 1 quarter bottle was taken as sample and remaining 47 quarter bottles were placed in the same plastic katta sealed with the seal of BL. Seal was handed over to Ct. Kamal. Form M-29 was prepared. IO prepared the rukka FIR No. 84/15 State vs. Sonia 5/12 and got the FIR registered through Ct. Kamal. He prepared the site plan Ex. PW4/B. Accused was relieved after serving notice u/s 41A Cr.PC Ex. PW4/C. Seizure memo of illicit liquor is Ex. PW1/B, disclosure statement of accused is Ex. PW1/C. He recorded statement of witnesses u/s 161 Cr.PC.
6. PW3 HC Dharamvir was Duty Officer and recorded DD no. 40A.
7. PW5 Ct. Ram Avtar has deposed that on 10.06.2015, he deposited the sample liquor to Excise Office and received the copy of RC which he had handed over to MHC(M).
8. PW6 HC Chet Ram had prepared the challan and filed the same before Ld. MM.
FIR No. 84/15 State vs. Sonia 6/12
9. After closure of the prosecution evidence, statement of accused was recorded u/s 313 Cr.P.C. She has denied the case of the prosecution and that she has been falsely implicated in the present case. He chose not to lead any DE.
10. I have heard Ld. APP for the State, Ld. defence counsel and have carefully gone through the record.
11. Ld. Counsel for accused has argued that there are material contradictions and inconsistencies in the testimonies of the witnesses examined by the prosecution which go to the very root of the case of the prosecution making it unbelievable. The material witnesses examined by prosecution are PW1, PW2 and PW4.
FIR No. 84/15 State vs. Sonia 7/12
12. PW1 in his cross-examination deposed that he informed the PS about recovery at about 7.45 PM. He was acquainted with the accused prior to the incident. He had not informed about the name of accused at that time to the Duty Officer. PW1 Ct. Kamal Singh further deposed in his cross-examination that in his presence only Form M-29 was prepared. IO prepared all the documents in his own handwriting only. In contradiction to PW1, PW4 HC Babu Lal has deposed in his cross-examination that form M-29, site plan and disclosure statement were prepared by him before rukka was sent to PS. No addition or deletion was made on these documents after reregistration of FIR. He further deposed that all documents and memos were par prepared in the presence of HC Kamal.
13. The witnesses examined on record have admitted that they knew the accused prior to the incident. The time mentioned in DD no. 40 A Ex. PW3/A is 8.05 PM FIR No. 84/15 State vs. Sonia 8/12 and that the witness despite knowing the accused, did not name her in DD no. 40A. It is further seen that IO has stated that he prepared all the documents but it is seen that handwriting of the rukka and that of the site plan Ex. PW4/B is different. PW4 HC Babu Lal has stated that no deletion or addition were made however, it is seen that in the disclosure statement of accused Ex. PW1/C, FIR no. is not mentioned. Similarly, the form M-29 bear the signature of the SHO. However, as per prosecution witnesses, form M-29 was filled in at the spot. Since the accused was known to PWs her false implication at their hands cannot be ruled out particularly when accused has been allegedly apprehended from a public place and no public person was joined to proceeding. Apart from contradictions which had been eraped on record, case of the prosecution is unbelievable and testimonies of witnesses is not trustworthy.
FIR No. 84/15 State vs. Sonia 9/12
14. As per case of the prosecution, accused was apprehended and further arrested from a public place in day light. The IO tried to join 4-5 public persons but as per him they refused. On this, IO did not serve any notice upon them nor he noted down their names and particulars. The accused was earlier known to the prosecution witnesses and her false implication cannot be ruled out. Under such circumstances, in the light of such material contradictions, false implication of the accused cannot be ruled out. In a case titled as State of UP Vs. Vallabdas, AIR 1985 SC 1384, it was observed that -
If there are any material discrepancy and if the discrepancy go to the root of the case/matter, they will have some bearing on the prosecution case.
15. The case of the prosecution is further seen with doubt for the reason that though the accused has been apprehended with the case property from a place where there were residential houses, shops and public FIR No. 84/15 State vs. Sonia 10/12 persons were passing as per prosecution witnesses, however no public witness was joined to the proceedings at all. The prosecution witnesses deposed that public persons were asked to join the investigation but they refused. However, upon this, the IO did not issue any notice to them nor noted down their names and particulars. In a case titled as Avdhesh etc. Vs. State of MP, AIR 1998 SC 1158, it was observed that-
Place of occurrence is a busy public place, no independent witness examined by the prosecution. The case of the prosecution is doubtful and the conviction is improper.
In AIR 1978 SC 59 in the case titled as Bir Singh V. State of U.P., it has been observed that -
Examination of witnesses - Duty of prosecution - Independent witnesses available - Examination of only interested witnesses - Adverse inference - Justified.
16. It is found that there are also major FIR No. 84/15 State vs. Sonia 11/12 contradictions in the testimonies of witnesses which shakes the story of prosecution. In view of the above discussion it is held that prosecution has miserably failed to prove its case against the accused beyond reasonable doubt that on the relevant date, time and place she was found in possession of illicit liquor. Resultantly, accused is acquitted of the charged offences. Digitally signed by KISHOR KISHOR KUMAR KUMAR Date:
2018.04.19 16:03:40 +0530 Dictated & Announced in Open Court (Kishor Kumar) On the 18 day of April, 2018 th MM-03/South-West/Delhi 18.04.2018 FIR No. 84/15 State vs. Sonia 12/12