Delhi District Court
Fir No. 139/15, Ps-Sarita Vihar State vs . Gurpat Barman. Page No. 1 Of 13 on 2 November, 2018
IN THE COURT OF MS. SHIVANI CHAUHAN,
METROPOLITAN MAGISTRATE-05, SOUTH EAST DISTRICT
SAKET DISTRICT COURTS, NEW DELHI
STATE
VS
GURPAT BARMAN
FIR No. : 139/15
U/s. 33 Delhi Excise Act
PS : Sarita Vihar
A. Cr No. : 95182/16
B. Date of Institution : 19.01.2016
C. Date of Commission of Offence : 26.02.2015
D. Name of the complainant : HC Kamal
E. Name of the Accused : Gurpat Burman,
S/o Marmohan Varman,
R/o B-38,
Aali Extension,
Delhi.
F. Offences complained of : U/s 33 Delhi Excise Act
G. Plea of the Accused : Pleaded not guilty
H. Order reserved on : Not reserved.
I. Final order : Acquitted.
J. Date of such order : 02.11.2018
FIR No. 139/15, PS-Sarita Vihar State Vs. Gurpat Barman. Page no. 1 of 13
JUDGMENT
Brief Facts :-
1. It is the case of prosecution that on 26.02.2015 at about 01:45 AM at Aali Red Light Near Temple, Mathura Road, Delhi within the jurisdiction of PS Sarita Vihar, accused was found in possession of illicit liquor in violation of Rule 20 of Delhi Excise Rules 2010. He was accused of having committed offence punishable U/s 33 Delhi Excise Act within the cognizance of this Court. On written complaint of Head Constable Kamal, the present FIR was recorded at PS Sarita Vihar. Matter was investigated and chargesheet was filed.
2. The accused was supplied with the copy of challan and documents in compliance of section 207 Cr.P.C and thereafter, the matter was listed for arguments on charge. After scrutiny of documents, parties were heard on charge.
3. Prima facie an offence punishable U/s 33 of Delhi Excise Act was found to made out against the accused. Notice u/s 251 CrPC was framed and explained to accused to which he pleaded FIR No. 139/15, PS-Sarita Vihar State Vs. Gurpat Barman. Page no. 2 of 13 not guilty and claimed trial.
4. To bring home the guilt of accused, prosecution examined five witnesses. Vide statement of accused U/s 294 Cr.P.C r/w S. 313(1)(a) Cr.P.C, he had admitted the genuineness of Chemical Examiner Report No. SZD021870-021874 dated 29.04.2015 prepared by Sh. Brijender Singh Dy. Chemical Examiner and Sh.
Sunil Kumar Dy. Chemical Examiner with result positive for Ethyl- alcohol which is Ex.C1. Thereafter, PE was closed and matter was listed for examination of accused U/s 313 CrPC.
5. In his statement U/s 313 Cr.PC, accused denied the prosecution case and pleaded innocence. He stated that he was innocent and Police has falsely implicated him in the present case at the instance of one Dilip Kumar and Mahender Singh who are attempting to grab his property. However, the accused did not produce any independent witness in his defence nor did he file certified copy of any Suit filed by or against these persons. Accordingly, matter was listed for final arguments.
6. I have heard Ld. APP for the State and Ld. Defence Counsel as well as gone through case file very carefully. The FIR No. 139/15, PS-Sarita Vihar State Vs. Gurpat Barman. Page no. 3 of 13 argument of Ld. APP is that there is enough evidence on record to prove the case against the accused. Ld. Defence counsel on the other hand has argued that the accused has been wrongly associated with the offence in question and as such the accused is entitled to acquittal in the present case.
7. I have perused the case file very carefully and have duly considered the respective arguments.
Relevant Law:-
8. It is settled proposition of criminal law that prosecution is supposed to prove its case on judicial file beyond reasonable doubts by leading reliable, cogent and convincing evidence. Further, it is a settled proposition of criminal law that in order to prove its case on judicial file, prosecution is supposed to stand on its own legs and it cannot derive any benefit whatsoever from the weaknesses, if any, in the defence of the accused. Further, it is a settled proposition of criminal law that burden of proof of the version of the prosecution in a criminal trial throughout the trial is on the prosecution and it never shifts to the accused. Also it is a settled proposition of criminal law that the accused is entitled to FIR No. 139/15, PS-Sarita Vihar State Vs. Gurpat Barman. Page no. 4 of 13 the benefit of every reasonable doubt in the prosecution story and such doubt entitles the accused to acquittal.
Law relating to requirement of independent witness
9. Further Sec. 100 Clause 4 & 5 CrPC talk about requirement of independent witnesses only when search is made on the person of the accused or at some place from where the incriminating articles is recovered and not when corroboration of happening of event in which accused is alleged to be involved is concerned. Regarding the non-joining of independent witnesses it has been stated in judgment titled as Appabhai v. State of Gujrat, 1988 Supp 241 : AIR 1988 SC 696 that "11...... Experience reminds us that civilized people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilante. They keep themselves away from the court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate, but it is there everywhere whether in village life, towns or cities. One can not FIR No. 139/15, PS-Sarita Vihar State Vs. Gurpat Barman. Page no. 5 of 13 ignore this handicap with which the investigating agency has to discharge its duties. The court, therefore, instead of doubting the prosecution case for want of independent witness must consider the broad spectrum of the prosecution version and then search for the nugget of truth with due regard to probability if any, suggested by the accused. This has also been relied upon in judgment titled as Kathi Bharat Vasjur v. State of Gujarat in AIR 2012 SC 2163 (Para 22).
Minor contradictions do not effect the credibility of the prosecution case.
10. It was held in the judgment titled as Ravi Kapoor V. State of Rajasthan, 2012 VIII AD (S.C) 73 that "Minor variations are bound to occur in the statements of the witnesses when their statements are recorded after a considerable lapse from the date of occurrence".
Overall context of the case is to be seen.
11. It also the settled law laid down in Sardul Singh Vs. State of Haryana AIR 2002 SC 3462 that courts have a duty to undertake a complete and comprehensive appreciation of all the FIR No. 139/15, PS-Sarita Vihar State Vs. Gurpat Barman. Page no. 6 of 13 vital features of the case and entire evidence with reference to broad and reasonable probabilities of the case in their attempt to find out proof beyond reasonable doubt.
Evidence on record :
12. PW-1 HC Kamal Singh deposed that on 25/26.02.2015, he was posted at PS Sarita Vihar as HC. On that day, he and Ct. Shankar Lal were on night patrolling duty on their government motorcycle bearing no. DL-1SS-2509 in the area of Aali Gaon. At about 01.45 am, when they reached near Aali Red Light, they found that one person was standing along with two loaded plastic kattas. On seeing them, he started running away, but Ct. Shankar Lal started chasing him immediately and apprehended him. On checking the kattas, they found three cartons of illicit liquor in one plastic katta and two cartons in another plastic katta. He revealed his name as Gurpat Burman. He immediately informed the Police Station through wireless set. IO/SI Shailender alongwith Ct. Jag Mohan reached the spot. IO checked the cartons and found 50 quarter bottles each of illicit liquor of brand 'Rasila Santra Masaledar Desi Sharab for sale in Haryana only' in all the five FIR No. 139/15, PS-Sarita Vihar State Vs. Gurpat Barman. Page no. 7 of 13 cartons. IO took out one quarter bottle from each carton as sample. All cartons were numbered P1 to P5. Three cartons were kept in one plastic katta and two cartons were kept in another katta and were numbered as A1 and A2. Samples and case property were sealed with the seal of 'SS' and samples were numbered as S1 to S5. Seal after use was handed over to him. IO prepared seizure memo of recovered illicit liquor/case property vide memo Ex. P1/A1. IO left the column of FIR number blank on the seizure memo. IO filled up form M-29. IO recorded his statement Ex.PW1/A. IO prepared rukka and sent to police station for registration of FIR through Ct. Jag Mohan. He went to PS, got FIR registered and returned to spot and handed over copy of FIR and original rukka to IO/SI Shailender. SI Shailender filled up FIR number in column of seizure memo. IO arrested and personally searched the accused vide memo Ex. PW1/B and Ex. PW1/C. IO recorded disclosure statement of accused. IO prepared site plan at his instance and recorded his statement u/s 161 CrPC.
13. PW-5 SI Shailender Sharma is the IO of the case. He has deposed that on 26.02.2015, he was posted as Sub Inspector FIR No. 139/15, PS-Sarita Vihar State Vs. Gurpat Barman. Page no. 8 of 13 at PS Sarita Vihar. On that day, on receipt of DD No. 5A, he alongwith Ct. Jag Mohan went near Aali Red light. They met HC Kamal and Ct. Shankar Lal there. HC Kamal and Ct. Shankar Lal handed over accused alongwith case property i.e two plastic kattas containing illicit liquor. HC Kamal got his statement recorded as Ex.PW1/A. The name of the accused was revealed as Gurpat Burman. No public person was stated to be present at the spot. Thereafter, IO checked the abovesaid kattas which were found to be containing five cartons of illicit liquor of NV group Grain based country liquor. One katta was found containing three cartons and other was containing two cartons. Each carton was found containing 50 quarter bottles of " Rashila santra masaledar deshi sharab for sale in Haryana only". He separated one quarter bottle from each carton as sample. Case property was again put in abovesaid kattas in the abovesaid manner after given serial numbers to all the five cartons as P1 to P5. Thereafter, neck of plastic kattas were tied with the cloth and sealed with the seal of 'SS' and both kattas were given serial as A-1 and A2. The neck of sample quarter bottles were also tied with the help of cloth piece and thereafter sealed with the seal of SS. The sample quarter FIR No. 139/15, PS-Sarita Vihar State Vs. Gurpat Barman. Page no. 9 of 13 bottles were given serial as S1 to S5. Thereafter, he filled form M- 29 at the spot Ex-PW5/A. Seal after use was handed over to HC Kamal. Thereafter, abovesaid case property was seized vide seizure memo Ex-PW1/AA. Thereafter, he prepared rukka as Ex- PW5/B. The said rukka was sent to PS through Ct. Jag Mohan for registration of FIR. Thereafter, he prepared site plan Ex-PW5/C. Thereafter, he arrested and personally searched the accused person vide memo Ex-PW1B and Ex.PW1/C. After sometime Ct. Jag Mohan returned back to the spot and handed over the copy of FIR alongwith original rukka to him. Thereafter, case property alongwith the accused was taken to PS. Thereafter, he recorded disclosure statement of the accused Ex.PW5/D. Case property was deposited in malkhana PS Sarita Vihar. He recorded statement of witnesses u/s 161 CrPC. During investigation,he sent intimation to Excise department vide his application Ex.PW5/E. During investigation, sample bottles were deposited at Excise Lab vide RC No. 22/21/15. Copy of which Ex-PW5/F. During investigation, he collected result of Excise Lab and after completion of investigation, he prepared challan and submitted the same before Court. He identified the case property through FIR No. 139/15, PS-Sarita Vihar State Vs. Gurpat Barman. Page no. 10 of 13 Photographs P3 & P4.
Discussion on merits :
14. IO and ASI Kamal Singh (the then Head Constable) identified the case property through two photographs which are Ex-P3 and P4. Photographs have been perused. In one photograph Ex.P4, there are two kattas. One of these katta is Mark A1 whereas the other katta does not bear mark A2 as deposed by the witness in his testimony. This second katta is also otherwise torn. Thus, the case property cannot said to be intact even before its destruction as per procedure.
15. Destruction Order Mark A has been carefully perused. As per the Order, even after destruction, two bottles of illicit liquor were preserved as samples. However, these samples were not produced before the Court by the Prosecution.
16. In the instant case, the case property was seized with seal of 'SS'. During cross examination, the IO admitted that after affixation of seal, he handed it over to Head Constable Kamal Singh. However, no seal handing over memo was prepared.
The seal was also not deposited with the MHC (M). When the FIR No. 139/15, PS-Sarita Vihar State Vs. Gurpat Barman. Page no. 11 of 13 case property was produced before the Court, Katta no. 2 was observed to be torn from top as per photograph P4. Thus, the case property cannot said to be intact even before its destruction. Once the case property is not intact, the recovery of illicit liquor cannot be said to have been proved from the possession of the accused. In the case of Dhanpat Vs. State of Punjab 2000 (1) CC Cases HC 52, it has been held that in the absence of any link evidence that the property was deposited in the malkhana intact, accused is entitled to benefit of doubt.
17. The prosecution evidence also reveals that the samples and seizure memo both were prepared before the registration of the FIR. The witness has deposed about inserting the FIR Number in the seizure memo. However, no such explanation has been offered with respect to Form No. M-29 which was prepared prior to registration of FIR and bears the FIR number. The prosecution has not offered any explanation whatsoever as to under what circumstances number of the FIR has appeared on the top of the aforesaid document, which was allegedly prepared on the spot before registration of the FIR. This gives rise to two FIR No. 139/15, PS-Sarita Vihar State Vs. Gurpat Barman. Page no. 12 of 13 inferences that either the FIR was recorded prior to the alleged recovery or number of the said FIR was inserted in this document after its registration. In both the situations, it seriously reflects upon the veracity of the prosecution version given by the aforesaid witnesses and creates a good deal of doubt about recovery in the manner alleged by the prosecution. Similar view has been held in Zohra vs State 2000 (83) DLT 177 (Del).
18. All these infirmities in the prosecution evidence seriously reflects on the veracity of prosecution case the benefit whereof must go to the accused. Hence, the accused Gurpat Burman is acquitted of the offence U/s 33 Delhi Excise Act by giving them benefit of doubt. Case property be confiscated to the State and be destroyed after expiry of period of appeal.
Now to come up for compliance of Section 437A CrPC.
Digitally signed by SHIVANI SHIVANI CHAUHAN Announced in the open CHAUHAN Date: 2018.11.05 Court on 02.11.2018 10:01:10 +0530 (SHIVANI CHAUHAN) METROPOLITAN MAGISTRATE-05 SOUTH EAST DISTRICT SAKET COURTS NEW DELHI FIR No. 139/15, PS-Sarita Vihar State Vs. Gurpat Barman. Page no. 13 of 13