Delhi District Court
Fir No.193/12 St. vs . Jaswant on 24 May, 2013
FIR No.193/12 St. Vs. Jaswant
IN THE COURT OF SH. SHARAD GUPTA, MM06 SOUTH WEST ,
DWARKA, DELHI
STATE Vs. Jaswant
JUDGEMENT
(a) The FIR No. of the case : 193/12
(b) The date of commission of : 21.06.2012.
offence
(c) The name of complainant : ASI Dharambir
(d) The name, parentage etc. of : Jaswant s/o Late Leela Ram,
accused R/o G59, Nand Ram Park,New
Delhi.
(e) The offence complained of/ : 33 Delhi Excise Act
proved
(f) The plea of accused : Pleaded not guilty
(g) The date of institution : 18.08.2012.
(h) The final order : Convicted u/s33 Delhi Excise
Act.
(i) The date on which order was : 23.5.2013
reserved
(j) The date of such order : 24.5.2013
k) Brief statement of the reasons
for the decision
FIR No. 193/12 St. Vs. Jaswant
FIR No.193/12 St. Vs. Jaswant
1. Accused has been sent up to face trial for the offence punishable under Section 33 of Delhi Excise Act, on the allegations that on 21.06.2012 at about 6.00 p.m at corner of Matiala Bindapur Road, Nand Ram Park, Uttam Nagar, New Delhi, within jurisdiction of PS Bindapur accused was found in possession of one plastic katta having 48 quarter bottles of liquor of Distilled & Blended & bottled by NY Ambala Haryana without any license or permit of NCT Delhi. For the said offence FIR No. 193/12 was registered. After usual investigation, charge sheet for offence u/s 33 of Delhi Excise Act was filed against the accused.
2. Copies were supplied to the accused in compliance with the provision of section 207 CrPC and thereafter charge for the offence punishable under Section 33 of Delhi Excise Act was framed against the accused on 30.11.2012 to which he pleaded not guilty and claimed trial.
3. Matter was thereafter posted for prosecution evidence. The prosecution has examined as many as six witnesses in support of its case. PW1 Constable Brij Mohan assisted in arrest of the accused FIR No. 193/12 St. Vs. Jaswant FIR No.193/12 St. Vs. Jaswant from the spot. PW2 SI Dharambir is the first IO of the case and arrested the accused from the spot with illicit liquor. PW3 Ct. Prehlad got the sample deposited in the Excise office at ITO. PW4 SI Rakesh Kumar, duty officer registered FIR no. 193/12. PW5 H C Om Parkash is the second IO of the case and filed charge sheet against the accused in the court. PW6 HC Karan Singh, MHCM produced register No. 19 in Court.
4. The prosecution version as adduced in its evidence is that on 21.06.2012 PW Ct. Brij Mohan and PW2 SI Dharambir were on patrolling duty. They reached near Matiala Bindapur Corner, Nand Ram Park at around 5.40 pm where secret informer met them and informed them that one person would be coming from side of Bindapur Village with illicit liquor and if raid is conducted then such person can be apprehended. Two three public persons were asked to join the investigation but they refused. At around 6.00 pm, PW1 and PW2 saw the accused coming from side of Bindapur village with a plastic katta on his right shoulder. The accused was stopped on pointing of secret informer. On checking 48 quarter bottles of illicit liquor labeled Vesto Whiskey were found the said katta. Two bottles FIR No. 193/12 St. Vs. Jaswant FIR No.193/12 St. Vs. Jaswant were separated as sample. Remaining 46 quarter bottles were given separate sl. numbers and were put inside the same katta which was tied with a white cloth at the top and sealed with the seal of DS. Sample bottles were sealed sealed separately with the same seal. Seal after use was handed over to Ct. Brij Mohan. Form M29 Ex. PW1/B was filled up at the spot. Illicit liquor was seized vide memo Ex. PW1/A. IO prepared tehrir and send the same for registration of FIR through PW1 Ct. Brij Mohan. On the basis of tehrir PW4 SI Rakesh Kumar registered FIR No. 193/12 vide Ex. PW4/A. Further investigation was handed over to PW5 HC Om Parkash. PW5 HC Om Parkash accompanied PW1 Ct. Brij Mohan to the spot. Ilicit liquor, seizure memo, form M29 and relevant documents were handed over to HC Om Parkash, who prepared site plan Ex. PW2/A. The accused was arrested vide memo Ex. PW1/C and personally searched vide memo Ex. PW1/D. Case property has been identified in the court with the katta being identified as Ex. P1 and bottles as Ex. P2. Case property was deposited in Malkhana, PS. Bindapur vide entry No. 1077/12 Ex. PW6/A. On 28.06.2012, the samples were sent to Excise Lab through PW3 Ct Prahlad vide RC No. 104/21/12. IO obtained result from FIR No. 193/12 St. Vs. Jaswant FIR No.193/12 St. Vs. Jaswant Excise Lab and after completion of investigation charge sheet was filed against the accused in the court.
5. Thereafter, prosecution evidence was closed as all witnesses had been examined and the accused was examined U/s 281/313 CrPC and all the incriminating evidence coming on record was put to the accused. The accused submitted that he has been falsely implicated in this case but he did not chose to lead any DE. Later on an application u/s 311 cr.pc alongwith application u/s 315 cr.pc was moved by the accused. The applications were allowed and the accused was allowed to be examine as his own witness. The accused has examined himself as DW1 and thereafter DE was closed. Matter was post ed for final arguments as accused had already been examined u/s 281/313 cr.p.c
6. I have heard the arguments at bar and perused the records of the case.
7. In the present case, the prosecution was required to prove beyond reasonable doubt that on 21.06.2012 at about 6.00 p.m at corner of Matiala Bindapur Road, Nand Ram Park, Uttam Nagar, New Delhi, within jurisdiction of PS Bindapur accused was found in possession of FIR No. 193/12 St. Vs. Jaswant FIR No.193/12 St. Vs. Jaswant one plastic katta having 48 quarter bottles of liquor of Distilled & Blended & bottled by NY Ambala Haryana without any license or permit of NCT Delhi .
8. Before proceeding any further it would germane to refer to Section 52 of the Delhi Excise Act 2009 which inter alia provides that in case of a prosecution u/s 33 Delhi Excise Act, it shall be presumed until the contrary is proved that the accused has committed the offence punishable under that section in respect of any intoxicant etc for the possession of which he is unable to satisfactorily account for. Thus, section 52 of the Delhi Excise Act shifts the onus of proving his innocence on the accused and mandates that a presumption be drawn that the accused has committed the offence contemplated u/s 33 of the Delhi Excise Act, 2009. This being the statutory position now it is proposed to discuss the evidence on record after drawing the requisite presumption u/s 52 of the Act supra.
9. Coming to the factual matrix of the case, to discharge its onus, the prosecution has examined as many as six witnesses including PW1 Constable Brij Mohan and PW2 SI ( then ASI ) Dharamvir who FIR No. 193/12 St. Vs. Jaswant FIR No.193/12 St. Vs. Jaswant arrested the accused from the spot and recovered the illicit liquor from his possession. PW2 SI Dharamvir has deposed that on 21.06.2012 he and PW Ct. Brij Mohan were on patrolling duty. They reached near Matiala Bindapur Corner, Nand Ram Park at around 5.40 pm where secret informer met them and informed them that one person would be coming from side of Bindapur Village with illicit liquor and if raid is conducted then such person can be apprehended. Two three public persons were asked to join the investigation but they refused. At around 6.00 pm, PW1 and PW2 saw the accused coming from side of Bindapur village with a plastic katta on his right shoulder. The accused was stopped on pointing of secret informer. On checking 48 quarter bottles of illicit liquor labeled Vesto Whiskey were found the said katta. Two bottles were separated as sample. Remaining 46 quarter bottles were given separate sl. numbers and were put inside the same katta which was tied with a white cloth at the top and sealed with the seal of DS. Sample bottles were sealed sealed separately with the same seal. Seal after use was handed over to Ct. Brij Mohan. Form M29 Ex. PW1/B was filled up at the spot. Illicit liquor was seized vide memo Ex. PW1/A. IO prepared tehrir and send the same for registration of FIR through PW1 Ct. Brij Mohan. On the basis of FIR No. 193/12 St. Vs. Jaswant FIR No.193/12 St. Vs. Jaswant tehrir PW4 SI Rakesh Kumar registered FIR No. 193/12 vide Ex. PW4/A. Further investigation was handed over to PW5 HC Om Parkash. PW5 HC Om Parkash accompanied PW1 Ct. Brij Mohan to the spot. The testimony of PW2 SI Dharamvir has been corroborated in material particulars by testimony of PW1 Ct. Brij Mohan who has deposed along the same lines. The testimonies of PW1 Ct. Brij Mohan and PW2 Ct. Dharamvir have been corroborated in material particulars by testimonies of PW5 H C Om Prakash who has also deposed that he accompanied PW1 Ct. Brij Mohan to the spot. Ilicit liquor, seizure memo, form M29 and relevant documents were handed over to him. He prepared site plan Ex. PW2/A. The accused was arrested vide memo Ex. PW1/C and personally searched vide memo Ex. PW1/D. The spot arrest of the accused has also been duly established and also corroborates the version of the prosecution. The prosecution witnesses have been cross examined at length but nothing materially damaging prosecution version could be elicited on record. The version of prosecution witnesses has remained credit worthy and believable and inspires confidence.
FIR No. 193/12 St. Vs. Jaswant
FIR No.193/12 St. Vs. Jaswant
10.It has been urged on behalf of the accused that there are
contradictions in the testimony of prosecution witnesses. Before
proceeding any further, it would be germane to refer to the settled law on the point It has been held in Shahbuddin Abdul Kahlik Shaikh v. State of Gujarat, 1995(3) R.C.R.(Criminal) 531 (SC) that where there are contradictions in statement of P.W., then before acting on evidence of such a witness court is required to first consider whether the contradiction was apparent or real, inconsequential or material, explainable or irreconcilable and acceptance of the claim of the witness was to depend on the answer thereon. It has similarly been held in Hardeep v. State of Haryana, 2002 Cri.L.J. 3939 (SC) as follows:
In the background of what has been indicated above, we may now proceed to consider the submissions made by learned counsel for the appellant Mrs. Avinish Ahlwant on merit. In this connection it may be observed, in the criminal cases the Court cannot proceed to consider the evidence of the prosecution witnesses in a mechanical way. The broad features of the FIR No. 193/12 St. Vs. Jaswant FIR No.193/12 St. Vs. Jaswant prosecution case, the probabilities and normal course of human conduct of a prudent person are some of the factors which are always kept in mind while evaluating the merit of the case. ...It is true, as observed by the Trial Court every contradiction or discrepancy may not necessarily be fatal to the prosecution case but it all depends on the facts and circumstances of the case, such discrepancies and contradictions have to be seen in the background of probabilities of the prosecution story and veracity of the prosecution witnesses. In case evidence of prosecution witnesses is above board and unimpeachable and inspires confidence, in that event discrepancies and contradictions here and there may have no value at all. (emphasis supplied)
11.Thus appears to be the settled proposition of law that every discrepancy occurring in prosecution evidence is not a contradiction and cannot be considered apart from the broad features of the prosecution case, the background of probabilities of the prosecution FIR No. 193/12 St. Vs. Jaswant FIR No.193/12 St. Vs. Jaswant story and veracity of the prosecution witnesses. In case evidence of prosecution witnesses is above board and unimpeachable and inspires confidence, in that event discrepancies and contradictions here and there may have no value at all.
12.Coming to the factual matrix of the case, it has been urged that while PW1 Ct. Brij Mohan stated that he alongwith PW5 SI Dharamvir and PW5 H C Om Prakash took the case property to P .S on motorcycle, PW2 has deposed that he could not say how the case property was taken to P S while PW5 H C Om Prakash has deposed that the case property was deposited to P S on motorcycles but that PW2 SI Dharamvir went back on foot. In this context , it appears that merely because PW2 could not depose about the manner in which the case property was taken to the police station , the same would not constitute a contradiction . Further more, even PW5 has stated that the case property was taken to the police station on motorcycle.
Thus, he has corroborated the testimony of PW1 Constable Brij Mohan in this regard. Further more, his statement that SI Dharamvir went back on foot does not ipso facto appear to be contradiction as even PW1 has deposed that he did not remember who went on which motorcycle. Even otherwise, the mere contradiction that PW2 FIR No. 193/12 St. Vs. Jaswant FIR No.193/12 St. Vs. Jaswant SI Dharamvir had left the spot on foot or on motorcycle is not a major contradiction and does not falsify the version of the prosecution.
13.It has been urged that while PW1 Ct. Brij Mohan has deposed that he went with rukka to P S on foot, PW2 SI Dharamvir has deposed that PW1 Ct. Brij Mohan had gone to the P S on motorcycle. It appears that even the said inconsistency is not a major contradiction having regard to the factual matrix of the case and keeping in regard the broad feature of the prosecution version. There is thus no merit in this arguments of the accused.
14. It has been urged on behalf of the accused that the case property has been tampered with and that when the case property was produced in court, one bottle was empty and two bottles were half filled. In this context, it has been observed that when the case property was produced in court, one bottle was empty and two bottles were half filled while the remaining bottles were completely filled. In this context, it has been observed that the prosecution has for one thing proved that the case property was duly sealed at the spot on 21.06.2012 itself in the presence of PW1 Ct, Brij Mohan and PW2 SI FIR No. 193/12 St. Vs. Jaswant FIR No.193/12 St. Vs. Jaswant Dharamvir and was seized vide memo Ex.PW1/A. The prosecution has further established that form M 29 Ex.PW1/B was also duly filled in at the spot. It appears that the case property was thereafter deposited in mal khana P S Binda Pur on the same day vide entry Ex. PW6/A. It appears that PW1 Ct. Brij Mohan was cross examined in court and the case property was produced in court on 10.01.2013 i.e about 6 months after the incident. In these circumstances, some wear and tear with respect to the case property can be reasonably expected. Further more, the prosecution has been sufficiently able to establish seizure and safe custody of the case property and it can be stated with certainty that the case property produced in court was the same which was recovered from possession of the accused. Thus there is no merit in this argument of the accused.
15. Now, the defence of the accused can be considered. Accused examined himself as DW1 and deposed that on 21.6. 2009 one Ct. Brij Mohan who knew him 45 years came to his house and told him that Sahib was calling him. That the accused was taken to P S Binda Pur where he was made to sit in a room and his signatures were in a file after which he was implicated in the present false FIR No. 193/12 St. Vs. Jaswant FIR No.193/12 St. Vs. Jaswant case. In his cross examination by ld. APP for the State, DW1 has stated that there were 23 cases of excise Act against him in which he has been acquitted and one or two cases of excise Act are still pending against him. That he did not make any written complaint to the SHO P S concerned or to any other higher official regarding his false implication. It appears for one thing that the accused even as per his own submission is involved in one or two other cases of excise Act which are still pending against him and the testimony of the accused is to be treated with caution. Further more, it appears that the accused did not make any complaint to any Superior police official regarding his false implication. The said conduct of the accused does not appear to be believable when viewed from stand point of a reasonably prudent man similarly situated specially when even as per the accused himself , he is not a complete novice and has some experience of workings of police officials. Further more, other than the bald assertion of the accused, no material to substantiate his defence has been brought on record by the accused and the bald assertion of the accused without any material to corroborate it, to my mind is not sufficient to establish the defence FIR No. 193/12 St. Vs. Jaswant FIR No.193/12 St. Vs. Jaswant of the accused. The defence of the accused thus does not inspire confidence and does not appear to be believable.
16. It has been urged on behalf of the accused that he has been falsely implicated in this case. However no material to show any cause or reason for the alleged false implication has been brought on record. There is no hint of any acrimony past or present between the prosecution witnesses and the accused and in these circumstances, even from the standpoint of a reasonably prudent man, there is no reason to disbelieve the testimony of the prosecution witnesses.
17.It has been urged on behalf of the accused that no public witness was joined in this case by the IO and as such the prosecution version is unbelievable. It appears to be the settled law that merely because public witnesses have not been joined in investigation does not falsify the case of the prosecution. Reference might be had here to the pronouncement of the Hon'ble Apex Court in Tahir Vs State 1996 SCC 515 wherein the Hon'ble Apex Court has considered the value of the evidence of police officials and has observed as follows:
FIR No. 193/12 St. Vs. Jaswant FIR No.193/12 St. Vs. Jaswant
"No infirmity attaches to the testimony of police officials merely because they belong to police force and there is no rule of evidence which lays down that conviction cannot be recorded on the evidence of police officials, if found reliable, unless corroborated by some independent evidence. The rule of evidence however, only requires a more careful scrutiny of their evidence, since they can be said to be interested in the result of the case projected by them.
Where the evidence of the police officials after careful scrutiny inspires confidence and is found to be trustworthy and reliable, it can form the basis of a conviction and the absence of some independent witness of the locality to lend corroboration to their evidence does not in any way affect the credit worthiness of the prosecution witnesses."
18.When the test laid down in Tahir Supra is applied to the facts of the present case, it appears that the testimonies of the prosecution FIR No. 193/12 St. Vs. Jaswant FIR No.193/12 St. Vs. Jaswant witnesses have remained credit worthy and believable. The version of the prosecution witnesses inspires confidence and the witnesses have corroborated each other in material particulars and the version of the prosecution has also been corroborated by the documentary evidence on record. It appears that the ratio of Tahir supra is fully applicable to the facts and circumstances of the case and the non joining of public witnesses does not make the prosecution case unbelievable.
19.It has been urged on behalf of the accused that the version of the prosecution cannot be trusted in as much as the complainant is also the IO in the present case. Reliance has been placed by the accused on pronouncement of our own Hon'ble High Court in Munesh Kumar Vs. State decided on 01.06.2011. It however, appears that in that case , the author of the rukka had been entrusted with the investigation even after registration of FIR. However, in the present case after registration of FIR, investigation was handed over to PW5 H C Om Prakash who conducted further investigation. Thus, it appears that it cannot be said in the present case that the IO was also the complainant. In my humble opinion, the ratio of Munesh Kumar supra is not applicable to the peculiar facts of the present case.
FIR No. 193/12 St. Vs. Jaswant FIR No.193/12 St. Vs. Jaswant
20.It thus appears that there are no material contradictions in the statements of the PWs of such a nature as to discredit the version of the prosecution. The testimonies of the PWs have remained credit worthy and the PWs have corroborated each other in material particulars. The accused has not been able to rebut the presumption u/s 52 of the Delhi Excise Act 2009.
21.In the light of above discussion, all the ingredients of section 33 of Delhi Excise Act have been proved beyond reasonable doubt by the prosecution. Accordingly, the accused Jaswant is convicted for the offence punishable u/s 33 of Delhi Excise Act. Copy of this judgment be provided to the accused free of cost. Let the convict be heard on the point of sentence separately.
ANNOUNCED IN THE OPEN COURT (SHARAD GUPTA)
th
TODAY on 24 May, 2013 MM06/DWARKA/DELHI
FIR No. 193/12 St. Vs. Jaswant
FIR No.193/12 St. Vs. Jaswant
FIR No. 193/12 St. Vs. Jaswant