Delhi District Court
State vs . Rajman, Fir No. 244/04, Ps. Model Town, ... on 23 July, 2013
STATE VS. RAJMAN, FIR NO. 244/04, PS. MODEL TOWN, U/S 61114 EXCISE ACT.
IN THE COURT OF SH. DHEERAJ MOR, METROPOLITAN MAGISTRATEIV,
(DISTRICT NORTH), ROHINI COURTS, DELHI.
FIR NO. 244/04
U/S. : 61/1/14 EXCISE ACT.
P.S. : MODEL TOWN.
STATE VS. RAJMAN
JUDGMENT
1. Sl. No of the case : 85/07/04 2. Date of commission of the offence : 15.04.2004 3. Date of institution of the case : 13.04.2005 4. Name of the accused : Rajman S/o Sh. Kalpu Yadav 5. Name of the complainant : HC Chander Bhushan 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 : 23.07.2013 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, Delhi.
2. The brief facts of the case as alleged by the prosecution and as unfolded from the charge sheet are that on 15.04.2004, at about 8:20 p.m, at service road, MCD Colony, GTK Road, near Ring Road, Delhi, the accused Rajman was found in possession of one plastic cane containing 18 bottles of illicit liquor, without any licence or permit of N.C.T of Delhi. Therefore, the present FIR No. 244/04, under section 61/1/14 Punjab Excise Act, at PS. Model Town, was registered. After completion of the investigation, charge sheet was prepared and filed in the Court.
3. In compliance of Section 207 Cr.P.C. the copy of the challan and Page No. 1 STATE VS. RAJMAN, FIR NO. 244/04, PS. MODEL TOWN, U/S 61114 EXCISE ACT.
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 Rajman. Accordingly, on 09.10.2006 the charge was framed by the Ld. Predecessor of this court. The accused pleaded not guilty to the said charge and claimed trial. Thereafter, the case proceeded for prosecution evidence.
4. In order to substantiate its case, the prosecution examined only three witnesses.
5. HC Raj Kumar (PW1) has deposed that on 15.04.2004, he was posted as DO at PS Model Town, Delhi. He has further deposed that on that day, on receipt of rukka from Ct. Brij Mohan sent by HC Chander Bhushan, he registered the present FIR no. 244/04. He has proved the copy of this FIR as Ex. PW1/A
6. HC Chander Bhushan (PW2) is the complainant and the recovery witness of the illicit liquor. He has deposed that on 15.04.2004, he alongwith Ct. Brij Mohan were on patrolling at Azadpur, Delhi. He has further deposed that at about 8:20 pm, one secret informer informed him that one person would come from the side of MCD Colony and would go towards Lal Bagh, who is having illicit liquor. He has further testified that 4/5 passersby were requested to join the investigation, but none agreed and left without disclosing their names and addresses. He has further testified that at about 8:30 pm, they saw accused coming from the side of MCD Colony carrying a plastic cane in his right hand and at the instance of the secret informer, they apprehended the accused. He has further testified that on checking the said plastic cane it was found to be containing 18 bottles of illicit liquor. He has further deposed that one bottle was separated as sample and remaining illicit liquor was again poured into the same plastic cane. He has proved the Excise form M29 as Ex. PW2/A, seizure memo of illicit liquor as Ex. PW2/B, rukka as Ex. PW2/C. He has further testified that further investigation was marked to second IO/HC Uttam Chand. He correctly identified the accused and the case property i.e. plastic cane containing illicit liquor. The plastic cane containing illicit liquor is exhibited as Ex. P1.
Page No. 2STATE VS. RAJMAN, FIR NO. 244/04, PS. MODEL TOWN, U/S 61114 EXCISE ACT.
7. HC Bhuvan Chand (PW3) has deposed that on 17.05.2004, on the instructions of IO he collected the sample from MHC(M) sealed with the seal of CB and deposited the same at Excise Lab at ITO vide RC No. 15/21/04. Thereafter, PE was closed.
8. Statement of the accused U/s. 313/281 Cr.P.C was recorded. All the 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 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.
9. I have heard the Ld. APP for the state and Ld. Counsel for the accused. I have carefully perused the case record.
10. The cardinal principle of the criminal law is that the accused is presumed to be innocent till he/she 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.
11. 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; and
(ii) He/She was possessing the same without any licence/permit.
12. The prosecution is required to prove that the illicit liquor Ex. P1, was allegedly recovered from the possession of the accused by HC Chander Bhushan (PW2) and Ct. Brij Mohan. They are the material witnesses as they are the alleged recovery witnesses. HC Chander Bhushan (PW2) has deposed in his examinationinchief, that they were on patrolling duty at the time of recovery of the liquor from the possession of 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 indispensable for establishing their presence at the Page No. 3 STATE VS. RAJMAN, FIR NO. 244/04, PS. MODEL TOWN, U/S 61114 EXCISE ACT.
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.
13. The alleged incident pertains to have occurred at about 8:20 p.m, at service road, GTK Road, near Ring Road, Delhi. Complainant HC Chander Bhushan (PW2) in his examinationinchief has admitted the presence of public persons at the spot. Further, the alleged place of recovery is admittedly a crowded and residential area. Therefore, it is convincingly established that there were many public persons available at the spot of alleged recovery. 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 genuine and sincere 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.
14. The prosecution has failed to examine any public witness therefore, the version of the prosecution has remained uncorroborated by an independent material witness. The witnesses that are examined by the prosecution in the present case are police witnesses, who are interested in the success of the prosecution case and therefore, the probability of them 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 and sincere 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. 4STATE VS. RAJMAN, FIR NO. 244/04, PS. MODEL TOWN, U/S 61114 EXCISE ACT.
15. 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".
16. 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 Rajman and he is acquitted of the charge U/s. 61114 Punjab Excise Act. He is directed to furnish fresh personal bond in the sum of Rs. 10,000/ with one surety in like amount, in accordance with Section 437A Cr.P.C. He has submitted that his previous bail bond and surety bond be extended for next six months. The said request is allowed and they are accepted for next six months. The case property be confiscated to the State.
File be consigned to record room after due compliance.
Announced in the open court on 23.07.2013.
(DHEERAJ MOR) METROPOLITAN MAGISTRATEIV DISTRICT NORTH, ROHINI, DELHI Page No. 5 STATE VS. RAJMAN, FIR NO. 244/04, PS. MODEL TOWN, U/S 61114 EXCISE ACT.
State Vs. Rajman FIR No. 244/04 U/s. : 61/1/14 Excise Act.
P.S. : Model Town
23.07.2013
Present: Ld. APP for the State.
Accused Rajman is on bail with Ld. Counsel.
PW3 examined and discharged. No other PW is present. Present case is pending for trial for last more than 9 years and the prosecution has already availed several sufficient opportunities for concluding entire PE. The right of the accused for expeditious trial cannot be defeated on unjust and unreasonable ground. Thus, no ground is made out for adjourning the present case for remaining PE. Hence, PE stands closed.
The statement of the accused u/s 313/281 Cr.P.C is separately recorded. The accused has submitted that she does not want to lead defence evidence.
Final arguments heard. Case file perused.
Vide my separate judgment announced in the open court today, the accused Rajman stands acquitted for the offence punishable U/s 61/1/14 Excise Act. He is directed to furnish fresh personal bond in the sum of Rs. 10,000/ with one surety in like amount, in accordance with Section 437A Cr.P.C. He has submitted that his previous bail bond and surety bond be extended for next six months. The said request is allowed and they are accepted for next six months. The case property be confiscated to the State.
File be consigned to Record Room after due compliance.
(Dheeraj Mor) MMIV/North, Rohini/Delhi 23.07.2013 Page No. 6