Delhi District Court
State vs . Radhey on 21 December, 2010
FIR No. 576/01
PS: Model Town
S/v Radhey
IN THE COURT OF SH. NEERAJ GAUR, METROPOLITAN
MAGISTRATE: ROHINI COURTS: DELHI
State Vs. Radhey
FIR No. 576/01
PS: Model Town.
C. No. : 40/02
U. ID No. : 02404R0515302002
Name of the complainant HC Laxman Singh
Name and address of the accused : Radhey s/o Jangli Ram,
r/o H. No. 161, Rajpura,
Delhi.
Offence complained of : 61/1/14 Excise Act
Plea of accused : Pleaded not guilty
Final order : Acquittal
Date of institution : 06/03/02
Date of reserve of order : 21/12/10
Date for announcing the orders : 21/12/10
Brief Reasons for the judgment :
Vide this Judgment, I shall dispose off the case FIR No. 576/01.
1.Charge U/S 61/1/14 Punjab Excise Act IPC was framed against the accused with the allegations that on 19.02.2001 at about 06.30 PM opposite Sarvodaya Senior Secondary School, C.C. Colony, Rajpura, Delhi, accused was found in possession C/N. 40/02 Page No. 1 of 9 Unique ID No. 02404R0515302002 FIR No. 576/01 PS: Model Town S/v Radhey of 100 pouches of Murthal No. 1 Deshi Masaledar Sharab without any permit or licence. The accused pleaded not guilty and claimed trial.
2. In order to prove the charge, prosecution examined six witnesses in total. PE stood closed on 03.11.2010 Statement of accused U/S 313 CrPC R/W Section 281 CrPC was thereafter recorded wherein accused claimed his innocence and did not prefer to lead any DE. Final arguments have been heard. Record has been carefully perused.
3. I shall briefly touch upon the statement of PWs.
4. PW1 HC Kishan Pal proved the registration of FIR by him and copy of FIR is Ex.PW1/A.
5. PW-2, Ct. Trash Pal supported the prosecution case qua his investigation part and deposed that during the patrolling duty on seeing the accused, accused turned back and moved with fast steps and on suspicion he along with the IO HC Laxman Singh overpowered the accused. On checking C/N. 40/02 Page No. 2 of 9 Unique ID No. 02404R0515302002 FIR No. 576/01 PS: Model Town S/v Radhey thee found 100 pouches of 180 ml liquor and Murthal Masaledar No. 1 Haryana etc. was written on each pouch. Form M 29 filled up. He deposed about seizure memo ExPW2/A, arrest memo and personal search memos Ex.PW2/B and PW2/C. He identified the case property as Ex.P1 to Ex.P98 and bag is Ex.P99. He was cross-examined by the Ld. Defence Counsel .
6. PW-3 ASI Laxman Singh who is the IO in the present case, deposed about apprehension of accused, in possession of alleged case property / illicit liquor on relevant date, time and place as on the basis of suspicion he along with Constable Tarash Pal apprehended the accused. He then deposed about rukka Ex.PW3/A. He handed over the custody of the accused, case property, Form -29, relevant documents to SI Ashish Kumar who prepared the site plan at his instance. He identified the case property.
7. PW-4 HC Jagat Singh is a formal witness who C/N. 40/02 Page No. 3 of 9 Unique ID No. 02404R0515302002 FIR No. 576/01 PS: Model Town S/v Radhey deposited the sealed sample bottle, excise form M-29 through RC no. 93/21 and deposited the receiving copy of the RC with MHC(M).
8. PW-5 SI Ashish Kumar is the second IO in the pr esent case, deposed that on 19.09.2001 he was posted at PS Model Town. On that day at about 08.00 PM he received a copy of FIR of the present case and rukka through Ct. Tiras Pal and thereafter he along with Ct. Tarash went to the spot i.e. opposite Sarvodaya Secondary School, C.C. Colony at Rajpura Gurmandi where HC Laxman handed over him the custody of accused, sealed case property and relevant documents. He prepared a site plan at the instance of HC Laxman Singh whose supplementary statement was recorded by him and thereafter HC Laxman Singh was relieved. He correctly identified the accused who was present in the court. He deposed that the accused was arrested and personally searched vide memos which have already been marked as Ex.PW2/C & C/N. 40/02 Page No. 4 of 9 Unique ID No. 02404R0515302002 FIR No. 576/01 PS: Model Town S/v Radhey PW2/B respectively. The accused was released on bail at the spot and the case property was deposited in Malkhana. On 26.09.01 the sample was sent to Excise Laboratory through Ct. Jagat. He also recorded the statement of Ct. Jagat in this regard. He deposed that the charge-sheet was prepared under the supervision of SHO.
9. Having touched upon the statements of PWs. I shall consider the rival contention of parties. Accused has highlighted several infirmities in investigation which are being discussed hereunder along with the explanation therefore advanced by Ld. APP for the State.
10. It is firstly highlighted by accused that the IO has not joined any independent public witness despite availability. Admittedly, several public witnesses were present at the time of apprehension of accused and while completing the formalities at the spot but none of the public witnesses was even requested to become witness. This casts doubt about C/N. 40/02 Page No. 5 of 9 Unique ID No. 02404R0515302002 FIR No. 576/01 PS: Model Town S/v Radhey sincere efforts made by the IO to join independent witnesses. In Roop Chand Vs. State of Haryana reported in 1990 (1) CLR 69, it was observed that such explanation that the public persons refused to join the proceedings are unreliable and in Pradeep Narayan V/S State of Maharashtra reported in AIR 1995 S.C. 1930 held that failure of police to join witness from locality during search created doubt about fairness of the investigation benefit of which has to go to the accused.
11. It is settled proposition of law that Sub Section 4 of Section 100 Cr.P.C. is directory provision, however, explanation of non-joining of independent witnesses should be plausible. The explanation put forward by the prosecution for non joining of independent witness appears to be implausible for reason that there was ample time with the IO at least to note down the particulars of the persons who refused to join the investigation. The same creates doubt regarding the fairness of the investigation.
C/N. 40/02 Page No. 6 of 9 Unique ID No. 02404R0515302002 FIR No. 576/01 PS: Model Town S/v Radhey
12. It is also noteworthy that the most crucial part of the investigation has been conducted by the complainant / IO HC Laxman Singh even before registration of FIR. Since, he was present at the spot no explanation has been put forth by the prosecution as to why despite availability, the investigation was not handed over to some other senior officer. In such case, as observed by Hon'ble Supreme Court in the case titled as Megha Singh Vs. State of Haryana reported in 1995 Crl. L.J. 3988 and as held in the case titled as Sunil V/S State reported in 1999 (1) JCC 85 (Delhi) benefit of doubt is to be given to the accused.
13. It is also highlighted by accused that on the recovery Memo, the FIR number finds mentioned and it has not been explained by the prosecution. Admittedly, these documents were prepared before registration of FIR and it contains the FIR number, then interference has to be drawn that either FIR was recorded prior in time or the documents were prepared C/N. 40/02 Page No. 7 of 9 Unique ID No. 02404R0515302002 FIR No. 576/01 PS: Model Town S/v Radhey later on and in such cases, benefit of doubt is to be given to the accused.
14. It is next pointed out by accused that the seal was kept by the police officials themselves and was not handed over to any independent person and prosecution has also failed to prove that the case property remained intact and was not tempered 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.
15. All the lapses in investigation, discussed herein above creates a doubt on the very recovery of 100 pouches Murthal No. 1 Deshi Masaledar Sharab 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 and the safer course available is C/N. 40/02 Page No. 8 of 9 Unique ID No. 02404R0515302002 FIR No. 576/01 PS: Model Town S/v Radhey to acquit the accused giving him a benefit of doubt. In view of the above said discussion, the prosecution has failed to prove the guilt of the accused beyond reasonable doubt.
16. Accordingly, I acquit the accused Radhey for the offence U/S 61/1/14 Punjab Excise Act. The Bail Bond stands cancelled and surety for the accused stands discharged. Any endorsement placed on the documents of the surety may accordingly, be cancelled. The original documents of the surety, if retained on record be returned against acknowledgment. File be consigned to Record Room. Announced in the Open Court (Neeraj Gaur) today i.e. 21.12.2010 Metropolitan Magistrate-IV/NW Rohini Courts, Delhi C/N. 40/02 Page No. 9 of 9 Unique ID No. 02404R0515302002