Delhi District Court
State vs . Rukmani on 11 February, 2016
IN THE COURT OF SH. GAJENDER SINGH NAGAR, MM-04,
WEST DISTRICT, TIS HAZARI COURT,DELHI
STATE Vs. RUKMANI
FIR No. 113/2014
PS: MIANWALI NAGAR
U/S: 33 DELHI EXCISE ACT
Sr. no. of the case : 69/3/14
Unique Case ID no. : 02401R0352672014
Date of commission of offence : 21.02.2014
Date of institution of the case : 25.07.2014
Name of the complainant : HC Sanjeev Kumar
Name of accused and address : Rukmani
W/o Late Sh. Subhash
R/o R-74, Camp No.5,
Jwala Puri, Delhi
Offence complained of or proved : U/s 33 Delhi Excise Act
Plea of the accused : Pleaded not guilty
Final order : Acquitted
Date on which reserved for judgment : 11.02.2016
Date of judgment : 11.02.2016
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JUDGMENT
1. The story of the prosecution in brief is that on 21.02.2014 Ct.
Rajender was on patrolling duty and when he reached at R-Block, Holi Chowk near Madir, he saw that accused Rukmani was coming from the side of Holi Chowk having a plastic katta on her shoulder. After seeing him, she turned back. On suspicion, she was apprehended and katta was checked. On checking 50 quarter bottles of liquor "Asli Santra Masaledar Desi Sharab" for Sale in Haryana only were found contained in the said katta without any permit or licence in contravention of provisions of Delhi Excise Act. Accordingly, after the investigation, police filed the present charge sheet against the accused.
2. The prima facie case U/s 33 Delhi Excise Act was found to be made out against the accused. Accordingly, charge framed against the accused. The accusation was read over and explained to accused to FIR No. 113/2014, PS Mianwali Nagar Page 1/7 which she pleaded not guilty and claimed trial.
3. The prosecution got examined three witnesses in support of its case i.e. PW1 Ct. Rajender, PW2 W/Ct. Seema and PW3 HC Sanjeev Kumar.
4. Statement of accused U/s 281 of Cr.P.C. was recorded, in which all the incriminating evidences were put to accused. Accused stated that she is innocent and has been falsely implicated in the present case. Accused opted not to lead any evidence in defence.
5. Arguments adduced by Ld. APP for State and Ld. Defence Counsel for the accused have been heard. Evidences and documents on record perused carefully.
Decision and Brief reasons for the same
6. Before giving the findings with respect to present case, this Court will discuss evidence led by prosecution.
7. PW1 Ct. Rajender stated that on 21.02.2014 he was posted at PS Mianwali Nagar as Constable. On that day he was on patrolling duty in the area. At about 01:15 PM, when he was present at R-Block, Holy Chowk near Mandir, the accused present in the Court came from the side of Holi Chowk. It is stated that she was holding one plastic katta on her left shoulder and after seeing him she turned back. On suspicion, she was apprehended. Katta was checked, which found containing quarter bottles of liquor. It is stated by him that he informed to the police station and IO HC Sanjeev came at the spot alongwith L/Ct. Seema. It is stated that he handed over the katta to IO. Katta was checked and it was found containing 50 quarter bottles of Asli Santra Masaledar liquor for sale in Haryana only. One quarter bottle was taken out as sample and remaining bottles were kept in the same katta. It is stated that form M-29 was filled at the spot. Katta, sample bottle, form M-29 were sealed with the seal of 'SK' and seal after use was handed over to him. Katta was taken into possession vide seizure memo Ex.PW1/A. It is stated that IO recorded his statement Ex.PW1/B. It is stated by him that IO prepared the rukka and handed over same to him FIR No. 113/2014, PS Mianwali Nagar Page 2/7 for registration of FIR. He went to the PS and after registration of FIR came back to the spot and handed over copy of FIR and original rukka to IO. It is stated that IO prepared the site plan Ex.PW1/C at his instance. It is stated that before starting the proceedings, IO asked 4-5 passersby to join the proceedings but they refused. Accused was arrested vide arrest memo Ex.PW1/D and her personal search was conducted by L/Ct. Seema vide memo Ex.PW1/E. It is stated that his statement was recorded by the IO. After completion of proceedings, they returned to the PS. He exhibited on record photocopy of report dated 18.10.2014, by which the case property was destroyed in pursuance of order no.Con2708/2014/07-08 dated 07.08.2014 issued by the Deputy Commissioner Excise and one certificate dated 18.10.2014 given by the SHO, PS Mianwali Nagar in this regard as Ex.PW1/F and PW1/G (OSR). He correctly identified the sample bottle of Asli Santra Masaledar Desi Sharab as Ex.P1. In his cross- examination it is stated by him that there is no mark of identification on the bottle Ex.P1. It is stated by him that he went to the police station with rukka on his private motorcycle. It is stated by him that he took case property to police station on his own motorcycle. It is stated by him that on the same day he returned the seal to the IO on reaching police station, however, no memo or case diary was prepared in this regard. It is stated by him that nobody was called from nearby temple or dispensary. It is stated that 10 public persons collected at the spot when he apprehended the accused. It is accepted by him that IO had not taken any action against any passerby who refused to join the investigation. It is stated by him that proceedings were conducted by the IO while sitting on a chair taken from nearby shop.
8. PW2 W/Ct. Seema stated that on 21.02.2014 she was posted at PS Mianwali Nagar as W/Constable. On that day, on receipt of one DD, she alongwith HC Sanjeev reached at Holy Chowk near Mandir, Jwala Puri, where they found that Ct. Rajender was present alongwith the accused and one katta containing liquor. Apart from this, she also deposed on the same lines as PW1. In her cross-examination, it is stated by her FIR No. 113/2014, PS Mianwali Nagar Page 3/7 that the case property was taken to the police station in an auto. It is stated by her that none was called from nearby houses and shops to join the investigation. It is stated by her that written proceedings were conducted by the IO while sitting on his bike.
9. PW3 HC Sanjeev Kumar also deposed on the same lines as PW1 and PW2. Apart from that he exhibited on record rukka prepared by him as Ex.PW3/B and marked DD No.20A as Mark X. It is further stated by him that on 28.02.2014 one sample bottle and excise form were handed over to Ct. Yogender by MHC(M) for depositing the same at Excise Office vide RC No.28/21/14 and after depositing the same he handed over copy of receipt to MHC(M). It is stated that he recorded the statement of witnesses and obtained the excise results. Thereafter he filed the present charge sheet. In his cross-examination, it is stated by him that he reached the spot with W/Ct. Seema on his motorcycle. It is stated by him that the case property was brought to the police station in a TSR. It is stated by him that he prepared the seizure memo prior to sending the rukka. It is further stated by him that seal was returned to him on the next day in the evening but no writing work was done in respect of the same. It is stated by him that proceedings were conducted while sitting on chabutara of the temple.
10. It is a settled proposition of criminal law that prosecution is supposed to prove its case on judicial file beyond reasonable doubt 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, of 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 on to the accused. Also it is a settled proposition of criminal law that accused is entitled to the benefit of reasonable doubt in the prosecution story and such reasonable doubt entitles the accused to acquittal.
11. After considering respective arguments and evidence led by FIR No. 113/2014, PS Mianwali Nagar Page 4/7 prosecution, this Court is of the opinion that prosecution has not been able to prove guilt of accused beyond reasonable doubt. The reasons as to why this Court has arrived at such a conclusion are as follows:
i. Firstly, no DD entry has been proved on record by prosecution in order to show that PW1 Ct. Rajender was indeed on patrolling duty on the day of alleged recovery of liquor from accused. It is an important missing link in the version of prosecution. ii. Further, from prosecution version, it does not appear that before checking the belongings of the accused, recovery witnesses made any sincere efforts to join any public person to witness search. The place at which accused was allegedly apprehended appears to be a public place and it is not the case of prosecution that public witnesses were not available at that place. PW1 Ct. Rajender in his examination has stated that HC Sanjeev asked 4-5 public persons to join the proceedings but none agreed, however, name of such public persons or their refusal has not been noted down in writing. Further no action has been taken against any of such public person. Non joining of public witnesses also causes a dent in credibility of prosecution version and had public witnesses witnessed search of accused, prosecution version would have been more authentic. This is not to say that testimony of police officials is not reliable but addition of public witnesses before search of accused would have made prosecution version more reliable. As it is established principle of law that where a number of public persons would be available, but no public witness has been engaged in this case nor any sufficient explanation given for non- joining the public witness at the time of apprehension of accused. In the case where the public witness are easily available and they are not being joined without any justified reason, the statement of police witnesses only cannot be relied. In this regard reliance is being placed on the case law reported as "Anoop Joshi Vs. State" 1992(2) C.C. Cases 314(HC) in which High Court of Delhi had observed as under:FIR No. 113/2014, PS Mianwali Nagar Page 5/7
"18. It is repeatedly laid down by this Court in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evidence that no such sincere efforts have been made, particularly when we find that shops were open and one or two shop-keepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the shopkeepers had declined to join the raiding party, the police could have later on taken legal action against such shopkeepers because they could not have escaped the rigors of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC".
iii. Further as per the statement of all the witnesses, the seal after use on the pullinda containing the illicit liquor allegedly recovered from the accused was given to none else but to PW1 Ct. Rajender only, who was himself the recovery witness and such police official himself is a material prosecution witness being one of the witnesses to the alleged recovery of illicit liquor from the possession of the accused. Such material witness of a case is always interested in the success of the case of the prosecution and keeping in view this fact, the chances of fabrication and planting of the case property cannot be ruled out beyond reasonable doubt. It is stated by PW1 Ct. Rajender in his cross-examination that he returned the seal to the IO on the same day in the police station, on the other hand it is stated by PW-3 IO HC Sanjeev Kumar that seal was returned to him on the next day. However, no handing over or returning memo of the seal of the case property in question was prepared.
iv. There are material contradiction in the testimony of the prosecution witnesses as it is stated by PW1 Ct. Rajender that case property was taken to the police station by him on his motorcycle. On the other hand, it is stated by PW-2 and PW-3 that case property was taken to the police station in a three wheeler. Further, the three prosecution witnesses have three different versions regarding the FIR No. 113/2014, PS Mianwali Nagar Page 6/7 written proceedings been conducted at the spot as it is stated by PW-1 that written proceedings were conducted by the IO while sitting on a chair brought from a nearby shop, the second version is given by PW-2 who stated that IO conducted the written proceedings while sitting on the motorcycle and PW-3 that is the IO has all together different version as it is stated by him that he conducted the proceedings while sitting on the chabutra of the nearby temple. These contradictions raise a doubt if the accused was actually arrested and liquor was actually recovered from her from the spot as alleged by the prosecution. All it makes the recovery of illicit liquor from the possession of accused doubtful. These are material missing link in version of prosecution and tampering of case property in these circumstances cannot be ruled out.
12. In these circumstances when tampering in case property cannot be ruled out and version of prosecution is not trustworthy as discussed in various earlier paras of this judgment, this Court is of the opinion that prosecution has failed to prove guilt of accused beyond reasonable doubt and recovery of illicit liquor from the accused is doubtful. Accordingly it is a fit case in which benefit of doubt must be given to accused, which is accordingly given. Accused Rukmani W/o Late Sh. Subhash is acquitted of offence U/s 33 Delhi Excise Act.
13. Accused has furnished the fresh bail/surety bond in terms of Section 437-A Cr.P.C. in sum of Rs.10,000/- each. The same has been accepted. File be consigned to Record Room after due compliance.
ANNOUNCED IN THE OPEN (GAJENDER SINGH NAGAR) COURT ON 11.02.2016 MM-04 (WEST)/DELHI
Containing 7 pages all signed by the presiding officer.
(GAJENDER SINGH NAGAR) MM-04 (WEST)/DELHI FIR No. 113/2014, PS Mianwali Nagar Page 7/7