Delhi District Court
State vs . Babita on 7 December, 2011
In the Court of Sh. Sunil Kumar, MM, Rohini District Courts, Delhi
State Vs. Babita
FIR No. 70/00
U/s 61/1/14 Punjab Excise Act
PS Jahangir Puri
The date of institution of case: 28.09.2000
The date of reserving the order: 22.11.2011
The date on which Judgment pronounced: 07.12.2011
JUDGMENT
Unique Identification No. : 02401R0066312000
Date of commission of offence : 11.02.2000
Name of the complainant : HC Jaspal Singh
Name & address of accused : Babita W/o Sh. Sunil
R/o 654, Jahangir Puri, Delhi.
Offence complained of : 61/1/14 of Punjab Excise Act.
Final order : Acquittal
Date of order : 07.12.2011
Brief Reasons for Decision:
1. Briefly stated, the prosecution case is that on 11.02.2000, at about 8.10 pm, at a public way Ram Garh Road, IBlock, Jahangir Puri, Delhi, the accused was found in possession of 44 pouches of illicit liquor without any license or permit. On the basis of said allegations, the present FIR was registered against the accused and the accused has been charged with the offences U/s 61/1/14 of Punjab Excise Act.
2. After investigation, charge sheet was filed against accused. Copies of chargesheet were supplied to accused in compliance to the section 207 Code of Criminal Procedure (hereinafter mentioned as Cr. PC) and notice U/s 251 Cr.PC was given to her to which she has plead not guilty and claimed trial. FIR No. 70/00 Page No. 1/10
3. In support of the version, the prosecution has examined four witnesses out of total seven witnesses as cited in the list of witnesses. It is pertinent to mention here that despite ample opportunities provided to the Prosecution to examine the witnesses, the Prosecution failed to examine all the witnesses and consequently, PE was closed vide order dated 04.11.2011.
4. The accused was examined U/S 281 Cr.PC and all the material evidence against her was put to her and she refuted all the allegations leveled against her and submitted that she is innocent and has been falsely implicated in this case by the police. However, she did not opt for leading evidence in her defence.
5. I have heard Ld. Counsel for the accused, Ld. APP for the State and perused the material on record carefully.
6. Ld. Counsel for the accused has submitted that the accused has been falsely implicated in this case by the police officials. It is further argued that the case of the prosecution rests entirely upon the testimony of police witnesses and there are no independent witnesses to corroborate their testimonies. It is further argued that nothing was recovered from the possession of the accused and the recovery, if any, is the planted one upon the accused. It is further argued that there is material contradictions in the testimony of the witnesses which is fatal to the case of Prosecution. It is further argued that since the Prosecution could not establish the case against the accused for the alleged offence beyond shadow of doubt, it is, therefore, prayed that the accused may be acquitted of the alleged offence.
FIR No. 70/00 Page No. 2/10
7. On the contrary, Ld. APP for the State has submitted that every discrepancy in statements of the witnesses could not be fatal to the Prosecution case. It is further argued that the discrepancies which does not effect the Prosecution case materially does not create infirmity and there is no material discrepancies/ contradictions in the Prosecution case. It is further argued that the prosecution has successfully established its case against the accused. Hence, it is, prayed that the accused may be convicted accordingly.
8. On the careful scrutiny of the testimony of the witnesses reveals that PW1Lady Ct. Sudesh during her examination in chief deposed that on 11.02.2000 on instructions of HC Shamim she had taken personal search of accused Babita vide Ex. PW1/A & she was arrested vide memo Ex. PW1/B. This witness has not been cross examined on behalf of the accused despite opportunity provided to her.
PW2HC Shamim Haider during his examination in chief deposed that on 11.02.2000 after the registration of FIR further investigation of the case was handed over to him and after reaching on the spot he had received the seizure memo, case property and custody of accused Babita present in the Court (Correctly identified). He further deposed that on his instruction Lady Ct. Sudesh took personal search of the accused vide Ex. PW1/A and accused was arrested vide Ex. PW1/B. He further deposed that he prepared site plan Ex. PW2/A, recorded statement of witnesses, deposited the case property in the malkhana. He further deposed that on 23.03.2000, he had got deposited the sample case property in excise lab through Ct. Jitender vide RC No. 37/21. He further deposed FIR No. 70/00 Page No. 3/10 that he recorded statement of Ct. Jitender and MHC(M), collected the excise result Ex. PW2/C and after completion of investigation the challan was filed.
This witness has not been cross examined on behalf of the accused despite opportunity provided to her.
PW3HC Jagdish during his examination in chief deposed that on 11.02.2000, he recorded the FIR of the present case on the basis of rukka brought by Ct. Yogender sent by HC JAspal. Copy of the FIR is Ex. PW3/A. This witness has not been cross examined on behalf of the accused despite opportunity provided to her.
PW4Ct. Yogender during his examination in chief deposed that on 11.02.2000, he along with HC Jaspal were on patrolling duty in the area of Jahangir Puri. He further deposed that around 8.10 pm, when they reached to 600 wali gali, IBlock, they saw that the accused present in the Court (correctly identified) was going towards the gate of LIG Flats and on seeing them, she turned back. He further deposed that on suspicion HC Jaspal stopped her, she was carrying a white colour plastic katta in her right hand and on checking it was found containing 44 pouches of Angoori Country made liquor, out of which four pouches were taken as sample and kept in a plastic box and remaining 40 were kept in the same katta and both were sealed with the seal of JS. He further deposed that seal after use was handed over to him and the recovered liquor and sample were seized vide memo Ex. PW4/A, form M29 was filled up. He further deposed that IO prepared rukka and got the case registered through him. He further deposed that further investigation of the case was handed over to HC Shamim Ahmed and HC Jaspal handed over the accused, case property and FIR No. 70/00 Page No. 4/10 documents prepared by him to the IO HC Shamim Ahmed. He further deposed that IO prepared site plan on the instance of HC Jaspal, accused was arrested vide memo Ex. PW1/B and personal search of the accused was taken by Lady Ct. Sudesh vide memo Ex. PW1/A. He further deposed that his statement was recorded by the IO. He identified the case property in the Court i.e. 40 pouches as Ex. P1 and plastic katta as Ex. P2.
In his cross examination by Ld. Counsel for the accused he deposed that Ex. PW4/A i.e. seizure memo & Ex. PW1/B i.e. arrest memo of the accused bears his signatures, but the style of signing are different, but both are his signatures. He further deposed that he does not know as to whether the writing at circled at point B on the seizure memo Ex. PW4/A is his or not. He further deposed that he signed the papers after going through the same. He further deposed that they left the police station at about 56 pm. He further deposed that HC Jaspal had asked 1015 persons to join the investigation but none agreed.
9. I have given my thoughtful consideration to the testimonies of the witnesses and perused the entire material on record carefully and observed that as per the prosecution story the accused Babita was found in possession of illicit liquor without any licence or permit, but the prosecution could not prove the said allegations upon the accused, as the IO of the case has not joined any public persons during the proceedings despite opportunities to him. PW4Ct Yogender during his cross examination by Ld. Counsel for the accused has deposed that HC Jaspal had requested the public persons to join the investigation but none agreed to the same but he remained silent on the aspect as to why the said public persons FIR No. 70/00 Page No. 5/10 were not served any notice in writing for non joining the proceedings. Hence, his testimony in this context is not convincing to the Court, as it is highly unnatural that they could not get even a single person to join in the proceeding despite the fact that the place of arrest is a through fair area. The police officials failed to give reasonable excuse as to why no public person was joined in the police proceedings with notice in writing or why they failed to take legal action u/s 187 IPC on refusal of the public persons. This failure on the part of the prosecution creates reasonable doubts in the prosecution story.
In this regard reliance may be placed on the following case laws: In case reported as ''1990 CCC 3'', titled as ''Roop Chand Vs. State of Haryana'' the Hon'ble Punjab & Haryana High Court has held that:
''When some witness from the public was available then the explanation furnished by the prosecution that they refused to join the investigation,the same is wholly unsatisfactory, particularly when the IO did not note down the names and addresses and did not take any action against them''.
In case reported as ''1990 CCC 20'' titled as ''Maluk Singh Vs. State of Punjab'', the Hon'ble Punjab & Haryana High Court has further held that:
''Joining of witnesses in the case of excise is not a mere formality, although there is no bar in taking into account the testimony of police witnesses, as they are also good witnesses, but to restore the confidence of general public in the investigating agency it is always desirable FIR No. 70/00 Page No. 6/10 that whenever any witness from the public is available, he should be joined to rule out the possibility of plantation''.
In the above mentioned cases, there were no public witnesses who had been joined in the proceedings. It is not necessary in such recovery that public witnesses must be joined but sincere attempt must be made to join the public witnesses. There can be cases when public witnesses are reluctant to join or are not available. All the same, the prosecution must show a genuine attempt having been made to join public witnesses or that they were not available. A stereotype statement of nonavailability or nonagreement on behalf of the witnesses will not be sufficient to serve the purpose.
10. The Hon'ble High Court of Delhi in case reported as ''1994 Drugs cases page 154'', titled as '' Ghanshyam Vs. State'', wherein Hon'ble Court has held that:
''If Road Certificate (RC) vide which the the sample was taken to laboratory for examination is not produced in court, then that causes sufficient doubt to the prosecution story and it breaks the important link in the prosecution case''.
In this case also the IO failed to produce the road certificate in the Court which creates doubt to the prosecution story. However, PW2HC Shamim who is the IO of the case has deposed about the road certificate during his examination in chief but the said road certificate has not been produced before the FIR No. 70/00 Page No. 7/10 Court and during the trial it remained unexhibited. Even the said constable who had got deposited the sample case property in the excise lab has never been produced before the Court for his deposition. Failure in this respect on part of the Prosecution has broken the important link in the prosecution case as cited in the above mentioned case law.
11. Even, there is nothing on the record to suggest that the IO had made any efforts to hand over the seal after use to any independent witness as it is very much clear that the seal after use was handed over to Ct. Yogender by the IO. In such cases in view of Saifulla Vs. State 1998 (1) CCC 497(Delhi) and Abdul Gaffar Vs. State 1996 JCC 497 (Delhi) which held that benefit of doubt is to be given to the accused. In this case also the seal after use was handed over to Ct.Yogender by the IO, meaning thereby the seal was kept by the police officials themselves and was not handed over to any independent person. Hence, the possibility of tempering with the case property also can not be ruled out in this case as the seal remained with the police official of the same police station. Even the MHC(M) has never been produced before the Court for his deposition to whom the case property was deposited by the IO.
In case law reported as Sadhu Singh Vs. State of Punjab, 1997 (3) Crimes 55, Hon'ble Punjab & Haryana High Court observed as under: " In a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubts. It is for the prosecution to travel the entire distance from may have to must have. If the FIR No. 70/00 Page No. 8/10 prosecution appears to be improbably or lacks "credibility, the benefits of doubt necessarily has to go to the accused".
The Hon'ble High Court of Delhi in 2005 (1) LRC 294 (Del) (DB), Narain Singh @ Lala Vs. State of Delhi has also ruled that:
"There must be a chain of evidence so complete as to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."
The Hon'ble Supreme Court of India in 2008 (2) Crimes 314 (SC) has also ruled that:
"Criminal trial benefit of doubt when on the basis of the evidence appearing on record, two views are possible, accused is entitled to benefit of doubt."
In this case also as per my observation and analysis, the words Credibility is found missing as there are several discrepancies in the case of the prosecution as mentioned in earlier paras. Even the Prosecution could not conclude entire prosecution evidence despite ample opportunities provided and ultimately the PE was closed.
12. In view of the facts and circumstances of the case it is crystal clear that the Prosecution has failed to prove its case beyond the shadow of reasonable doubt. There is no convincing evidence on the record which could substantiate FIR No. 70/00 Page No. 9/10 any charge upon the accused and it can safely be concluded that in the present case the evidence on the record is not at all sufficient to hold the accused guilty of the alleged offence, as the Prosecution story is highly doubtful and the benefit of doubt is the right of the accused. It is also an established law of the land that the accused should not be convicted in doubtful circumstances. Even, if there are two views possible, the view favourable to the accused has to be accepted. Since, the Prosecution has failed to establish a case against the accused Babita for the alleged offences beyond reasonable doubt, I am also not inclined to convict the accused in doubtful circumstances. Consequently, by giving benefit of doubt, I hereby acquit the accused Babita for the offence punishable U/s 61/1/14 of Punjab Excise Act.
13. Case property, if any, be destroyed in accordance with rules on expiry of period of Appeal/Revision, if none is preferred or subject to decision thereof.
14. The file be consigned to record room.
Announced and dictated in the open court today i.e. on 07.12.2011 Sunil Kumar MM/Rohini Courts Delhi/07.12.2011 FIR No. 70/00 Page No. 10/10