Delhi District Court
State vs . Brij Kishore on 28 April, 2014
IN THE COURT OF MS CHETNA SINGH METROPOLITAN
MAGISTRATE-02 (SOUTH) NEW DELHI
STATE Vs. Brij Kishore
FIR NO. 20/05
U/s : 61/1/14 Punjab Excise Act
P.S. : Malviya Nagar
Date of Institution : 31.03.2005
Date on which case reserved for Judgment : 28.04.2014
Date of judgment : 28.04.2014
JUDGMENT
1.FIR No. of the case : 20/05
2.Date of the Commission : 08.01.2005
of the offence
3.Name of the accused : Brij Kishore S/o Sh. Jagdish Roy
: R/o H. No. C-132, Muslim Camp,
: Chungi No. 2, Lal Kuan, Pul
: Prahladpur, New Delhi.
4.Name of the complainant : Ct. Sumer Singh, No. 3137/SD,
: PP Saket, PS Malviya Nagar, New
: Delhi.
5.Offence complained of : 61/1/14 Excise Act
6.Plea of accused : Pleaded not guilty
7.Final order : Acquitted
FIR No. 20/05 State Vs. Brij Kishore 1/8
BRIEF FACTS
The story of the prosecution is that on 08.01.05 at about 3.15 PM at M.B. road, D Block, Saket in front of CISF Camp, New Delhi within the jurisdiction of PS Malviya Nagar, New Delhi accused Brij Kishore was found in possession of one plastic can containing liquor measuring 24 bottles (as per seizure memo) and same were kept in a scooter bearing no. DL-3SH-7635 without any valid licence or permit for the same and thereby accused committed an offence punishable u/s 61/1/14 Panjab Excise Act.
On the basis of the said statement of the complainant, an FIR bearing number 20/05 was lodged at Police Station Malviya Nagar.
After investigation, charge sheet under section 173 Cr.P.C was filed on 31.03.2005.
On the basis of the charge sheet, a charge for the offence punishable under section 61 Excise Act was framed against the accused person namely Brij Kishore and read out to the said accused, to which he pleaded not guilty and claimed trial on 15.07.2006.
Appreciation of Evidence In order to prove the above said allegations against the accused, the prosecution has examined following witnesses.
PW-1 HC Suresh Kumar was examined on 09.04.2007 and proved the FIR vide Ex. PW-1/B and endorsement on the basis of Rukka vide Ex. PW-1/A. He further deposed that the investigation of this case was assigned to HC Jalbir Singh thereafter.
This witness was not cross examined by Ld. Defence counsel for the accused despite opportunity given.
FIR No. 20/05 State Vs. Brij Kishore 2/8 PW-2 HC Sumer Singh was examined on 04.01.2011 and deposed that on 08.01.05 while patrolling duty he reached at D Block, CISF Camp where he met Ct. Brij Mohan who told that one person wearing yellow sweater would come on scooter with illicit liquor. Thereafter, accused present in the court was apprehended on a scooter and one plastic cane of illicit liquor was found. Thereafter, information was sent to PS by phone on which HC Jalbir reached at the spot to whom the accused along with recovered cane was handed over. He further deposed that IO recorded his statement vide Ex PW-2/A and one bottle was taken out as sample, cane was carrying 24 bottles on measuring and the case property was sealed with the seal of JSY and seized vide Ex. PW-2/B. Scooter was also seized vide Ex. PW-2/C. Tehrir was prepared vide Ex. PW-2/D and got the case registered. Thereafter, accused was arrested and his personal search was conducted vide memos Ex. PW-2/E and F respectively. He further identified the case property which is Ex. P-1. He further deposed that the identity of the scooter has not been disputed by Ld. Defence counsel.
This witness was cross examined by Ld. Defence counsel for the accused wherein he stated that number of the scooter was DL-3SH-7635. He further deposed that the accused was wearing yellow sweater at the time of his apprehension however, what were the other clothes, he does not remember.
PW-3 HC Hari Singh was examined on 18.03.2011 and deposed that on 08.01.2005 he was posted as MHC(M) of PS Malviya Nagar and on that day he had received one sealed plastic cane duly sealed with the seal of JSY and made entry in this regard in register no. 19. He had brought the original register no. 19 and photocopy of the concerned FIR No. 20/05 State Vs. Brij Kishore 3/8 entry which is Ex. PW-3/A (OSR).
This witness was not cross examined by Ld. Defence counsel for the accused despite opportunity given.
PW-4 HC Mohan Lal was examined on 19.04.2011 and deposed that on 10.01.2005 he was posted at PS Malviya Nagar as HC and on that day he had received a sample from Malkhana Moharrar and deposited in Excise Department vide RC No. 124/20. He further deposed that after depositing the same, receipt of the same was deposited in malkhana. No alteration or addition has been made.
This witness was not cross examined by Ld. Defence counsel for the accused despite opportunity given.
PW-5 HC Jalbir Singh Singh was examined on 19.10.2011 and deposed that on 08.01.05 on receipt of DD no. 18, he reached D Block, CISF Camp, M.B. Road where Ct. Sumer and Brij Mohan met who handed over the accused Birj Kishor along with case property. The katta containing the cane of liquor was taken out and same was measured which found total 24 bottles, one bottle was taken as sample, remaining liquor poured back into cane, same was sealed with JSY seal and handed over to Brij Mohan after use. Seizure memo is Ex. PW-2/B. Scooter was also taken into possession vide Ex. PW-2/C. He further deposed that he recorded the statement of Ct. Sumer and prepared tehrir Ex. PW-5/A and got the case FIR registered through Ct. Sumer. Site plan was prepared vide Ex. PW-5/B at the instance of Brij Mohan. Form no. 29 Ex. PW-5/C was also filled up before preparing tehrir. Accused was arrested and his personal search was conducted vide memos Ex. PW-2/E and F respectively. Sample were sent to Excise Lab and result was collected. He further deposed that he recorded the statement of witnesses and after completion of investigation FIR No. 20/05 State Vs. Brij Kishore 4/8 challan was filed in the court through SHO. He further identified the case property Ex. P-1. He further deposed that the identity of the scooter has not been disputed by Ld. Defence counsel as the scooter has been released on superdari by the wife of the friend of the accused.
This witness was cross examined by Ld. Defence counsel for the accused wherein he stated that he reached the spot at about 3.25pm. He further deposed that he was already carrying bucket wherein he poured illicit liquor. Accused was arrested at about 5.30pm. He denied the suggestion that nothing was recovered from the possession of the accused or that he was deposing falsely. He further denied the suggestion that the recovery has been planted upon the accused or that all the documents have been prepared at PS. PW-6 HC Brij Mohan was examined on 31.03.2014 and deposed that on 08.01.2005 he was posted as Ct. in Excise Department and on that day he met with HC Sumer Singh at D Block, CISF Camp. He further deposed that he along with HC apprehended one suspected person wearing yellow sweater with illicit liquor on a scooter. He further deposed that when they checked, they found one Katta carrying one plastic cane of illicit liquor. In this regard, information was given to SHO and HC Jaivir reached there. IO requested 4-5 public persons to join the investigation but none of them agreed. IO seized illicit liquor vide seizure memo already Ex. PW-2/B bearing his signatures at point B. IO had also seized the scooter bearing registration no. DL-3SH-7635 vide seizure memo Ex. PW-2/C bearing his signatures at point B. IO had arrested accused Brij Kishor and conducted his personal search vide already Ex. PW-2/A and E both bearing his signatures at point B respectively. He further identified the accused present in the court today. IO recorded his statement u/s 161 Cr.P.C.
FIR No. 20/05 State Vs. Brij Kishore 5/8 This witness was cross examined by Ld. Defence counsel for the accused wherein he stated that he had not given any intimation to senior officer about recovery of illicit liquor. He further deposed that IO had not given any written notice to the public persons. He further deposed that Ct. Sumer went to lodge FIR with rukka at about 4.20pm and returned back at the spot after about 1 hour. IO had not prepared handing over memo of the seal. He further deposed that he had signed arrest memo and personal search memo before registration of the case. He further deposed that he left the spot finally at about 5.30 to 6.00pm. He denied the suggestion that nothing has been recovered from the possession of the accused or that the accused has been falsely implicated or that he was deposing falsely.
As all the witnesses have been examined by the prosecution in this matter, PE was ordered to be closed vide order dated 31.03.2014. SA was recorded on 28.04.2014. Thereafter, matter was listed for arguments.
Final arguments were advanced by Ld. APP for state and Ld. Defence Counsel. Heard. Considered.
REASONS FOR DECISION The major lacunae in the case of the prosecution is non- examination of public witnesses.
There is no public witness to the recovery, which is essential in such cases where recovery in itself forms the sole ground for conviction of the accused.
The IO had sufficient opportunity to join a public witness. It is settled law that failure to join the public witnesses can prove fatal to the case of prosecution. My this view is further fortified by the case titled State FIR No. 20/05 State Vs. Brij Kishore 6/8 of Rajasthan Vs. Teja Singh 2001 (II) AD (SC) 125, wherein Hon'ble Supreme Court held:
The failure of the prosecution to examine independent witnesses though available is fatal for their case.
In the case titled State of Punjab Vs. Gurdyal Singh 1992 (1) RCR (DB) 646, Roop Chand Vs. State of Haryana 1989 (2) RCR 504 and State of Punjab Vs. Sukhdev Singh 1992 (3) RCR 311, it was held by the Hon'ble Court that:-
Where the IO has failed to even note down the names and addresses of the persons, who have refused to join a public witnesses, couple with the fact that no action was taken against them, the case is rendered doubtful.
The court would also like to refer to the judgment titled Ritesh Chakarvarti Vs. State of Madhya Pradesh, (SC) 2006 (4) R.C.R (Criminal) 480 the division bench of Honorable Justices Sh. S.B.Sinha and Sh. Dalveer Bhandari observed:
"If it was a busy place, the officers would expectedly ask those to be witnesses to the seizure who were present at the time in the place of occurrence. But, not only no such attempt was made, even nobody else who had witnessed the occurrence was made a witness. Even their names and addresses had not been taken.
Illustration (g) appended to Section 114 of the Indian Evidence Act reads thus:
"The court may presume-
(a)***
(b)***
FIR No. 20/05 State Vs. Brij Kishore 7/8
(c)***
(d)***
(e)***
(f)***
(g) that evidence which could be and is
not produced would, if produced, be
unfavourable to the person who holds
its."
An adverse inference, therefore, could
be drawn for non-examination of material
witnesses." (emphasis supplied)
In absence of a public witness to the recovery and also in absence of an explanation as to why a public person was not joined in the raiding party, the prosecution has failed to prove the recovery of the illicit liquor from the accused beyond reasonable doubt.
In the light of the above discussion, accused Brij Kishore is acquitted for offence u/s 61/1/14 Excise Act.
Previous bail bond in compliance of section 437-A Cr.P.C. to remain in force for a period of 6 month from today. File be consigned to record room.
ANNOUNCED IN OPEN COURT (CHETNA SINGH) ON 28.04.2014 MM-02(South)/28.04.2014
Certified that this judgment contains 8 pages and each page bears my signatures.
(CHETNA SINGH)
MM-02(South)/28.04.2014
FIR No. 20/05 State Vs. Brij Kishore 8/8