Delhi District Court
State vs . Rajan Kumar &Ors. on 20 May, 2020
1
IN THE COURT OF SHRI DEEPAK KUMAR-I
MM-02: -WEST: TIS HAZARI COURTS: NEW DELHI
FIR No.06/2006
PS: Rajouri Garden
U/s. 407/411 IPC&U/s 7 of Essential Commodities Act.
State Vs. Rajan Kumar &Ors.
Date of Institution of case : 23.05.2009
Date of Judgment reserved :20.05.2020
Date on which judgment pronounced :21.05.2020
JUDGMENT
1) Unique ID no. of the case : 63416/16
2) Date of commission of offence : 03.01.2006
3) Name of complainant : SI P.C Yadav
4) Name and address of accused : 1.Mohd. Aslam,
S/o-Abdul Hameed,
R/o-H.No- 544-545, Gali No. 9,
Samai Pur Badli, New Delhi
(Proceedings already abated)
2.Rajan Kumar,
S/o- Devender Nath,
R/o- H. No.- F-53,
Moti Nagar, New Delhi.
5) Offence complained of : U/s 407/411 IPC & U/s 7
Of Essential Commodities Act
6) Plea of accused : Pleaded not guilty
7) Final Order : Accused Rajan Kumar acquitted.
8) Date of order : 21.05.2020
FIR No. 06/06 PS. Rajouri Garden State vs. Rajan Kumar & Ors.
2
BRIEF REASONS FOR DECISION
Brief facts
1. Case of the prosecution in brief is that on 03.01.06 at 8:20 p.m at Service Road, ESI Hospital, Rajouri Garden, New Delhi, within the jurisdiction of PS R.G, accused Mohd Aslam being entrusted with tanker bearing registration no. HR 55C 0777, containing aviation turbine fuel, as a carrier committed criminal breach of trust in respect of aviation turbine fuel and thereby committed an offence punishable u/s. 407 IPC.
Secondly, on the above mentioned date, time and place accused was found in possession of 3 boxes of aviation turbine fuel oil without any licence or documents in contravention to DA Notification. F.15 (6)/62 and thereby committed an offence punishable u/s. 7 of Essential Commodities Act, 1955.
Thirdly, on 03.01.06 at 8:20 pm at Service Road, ESI Hospital, Rajouri Garden, New Delhi accused Rajan Kumar was found in possession of three boxes of aviation turbine fuel oil as per seizure memo marked A which accused Rajan Kumar dishonestly received or retained knowing or having reasons to believe the same to be stolen property and without any licence or documents in contravention to DA Notification. F.15(6)/62 and thereby committed an offence punishable u/s. 7 of Essential Commodities Act, 1955 and 411 IPC.
Trial
2. After completion of investigation, charge sheet against the accused persons for offence u/s. 407/411 IPC and u/s 7 of Essential Commodities Act, 1955 was FIR No. 06/06 PS. Rajouri Garden State vs. Rajan Kumar & Ors.
3filed in the court and after complying with the provisions of Sec. 207 Cr. P.C., arguments on charge were heard. Vide order dated 18.01.2011, charge was framed U/s. 407 IPC and u/s 7 of Essential Commodities Act, 1955 Act against the accused Mohd Aslam and u/s 411 IPC and u/s 7 of Essential Commodities Act, 1955 Act against the accused Rajan Kumar to which they pleaded not guilty and claimed trial. During the course of the trial, accused Mohd. Aslam expired and as such proceedings against him was disposed off as abated vide order dated 28.11.2017
3. In support of its case, the prosecution examined fifteen witnesses. Thereafter, statement of accused persons recorded under Section 313 Cr.P.C. Accused opted not to lead any D.E. Appreciation of evidence in the light of settled legal propositions.
4. I have heard the arguments of Ld. APP for State and Ld. Counsel for accused and also perused the record carefully.
5. PW-1 SI P. C. Yadav stated that on 03.01.2006, he was incharge of police post Raghubir Nagar. On that day he was on patrolling duty with Ct. Parvinder and Ct. Kishan Gopal. At about 8.15 PM when they reached near Raja Garden Fly Over, he received a secret information regarding selling of Illicit Aviation Turbian Fuel. After that he requested 4-5 passersby to join the raiding party, but all of them left the place without disclosing their names and addresses. After that he along with above mentioned police officials reached at the spot i.e Service Road infront ESI hospital where one tanker was found in stationery bearing no. HR-55C-0777. Two drums were also lying near the tanker. One person was taking out fuel from the tanker with the help of small plastic container. One person was also found there FIR No. 06/06 PS. Rajouri Garden State vs. Rajan Kumar & Ors.
4having funnel. The person who was taking out the fuel from tanker, keeping the same fuel in the drum with the help of above mentioned funnel. The funnel was carrying by second person. He noticed that three times the fuel were taken out from the tanker and were kept in the drum. The person who was taking out the fuel from the tanker started closing the pipe of the tanker. Both the above mentioned persons were apprehended by them. One drum was fully filled and the second drum was half filled. The name of person disclosed as Aslam and Rajan. Accused Aslam was taking out the fuel from the tanker and accused Rajan was holding the funnel. Accused Aslam was the driver of the above mentioned tanker and he disclosed that the same fuel was got from the sakur basti depot and he was selling some of the fuel to the accused Rajan. One bottle (750 ML) of fuel from each above mentioned drums were separated for sample purposes and both sample bottles and drums were seized and sealed with the seal of PY vide seizure memo Ex. PW1/A bearing his signatures at point A. The above mentioned small plastic container and funnel were also seized vide seizure memo Ex. PW1/B bearing his signatures at point A. The above mentioned tanker was also seized vide seizure memo Ex. PW1/C bearing his signatures at point A. Thereafter he prepared rukka. The same is Ex. PW1/D and handed over the same to Ct. Kishan Gopal for registration of FIR. Ct. Kishan Gopal went to PS and got the FIR registered. After registration of FIR, investigation of the case was handed over to ASI Suresh. After sometime both Ct. Kishan Gopal and ASI Suresh reached at the spot. He handed over the accused persons and the case property to the IO. IO prepared the site plan at his instance. The same is Ex. PW1/A. Both accused persons were correctly identified in the court.
On that day, MHC(M) produced one plastic katta. Katta was opened. One plastic keep and one yellow plastic dabba was taken out and the same was shown to the witness and the same were correctly identified by the witness. The keep and FIR No. 06/06 PS. Rajouri Garden State vs. Rajan Kumar & Ors.
5plastic dabba are already EX P4 and Ex. P5. One more white pullanda duly sealed with the seal of ASS was also taken out from the said plastic katta. The seal was broken and pullanda was opened and found containing one plastic bottle having one fourth transparent liquid. The witness stated that the said pullanda was not prepared in his presence.
MHC(M) brought one photograph showing two drum. As per the MHC(M) the liquid inside the said drums has already leaked and the said drums were empty. The photograph of the said drums was shown to the witness, to which the witness identified the drums shown in the photograph as the same drums which were seized on the date of incident. The photograph of drums is Ex. P-6 (objected to by Ld. Defence counsel).
6. PW-2 Sh. Bharat Bhushan stated that he was the registered owner of the oil Tanker bearing registration No, HR-55C-0777. On 18.01.06 his above said Tanker was got released on superdari vide superdiginama which is Ex. PW2/A which bears his Signature at point A. The above said vehicle was taken from P. S. by the attorney holder Sh, Kamal Sareen. That day he brought two photographs of the above said Oil Tanker as directed by the Court. Both the photographs are Ex. P1 and P2.
7. PW-3 HC Praveen stated that on 03.01.2006 he was posted at PS Rajouri Garden as duty officer. His duty was from 5 pm to 1 am. On that day, at about 9.40 pm Ct. Krishan Gopal handed over to him rukka sent by SI PC Yadav. On the basis of rúkka he had registered the present FIR, the copy of the same is Ex. PW3/A bearing his signature at point A (OSR). He made endorsement on the rukka and same is Ex.PW 3/B bearing his signature at point.
FIR No. 06/06 PS. Rajouri Garden State vs. Rajan Kumar & Ors.
68. PW-4 Tapan Kumar, Deputy Director, DDA, Vikas Sadan, INA stated that in the month of January, 2006, he was posted as Zonal Officer Calibration Unit Weights and Measure Department, GNCTD. He received the direction from the HQ to visit police post Raghubir Nagar on 10.01.2006 as police officials had already seized one tanker number HR55C 0777 for measurement of the product in the tanker. He along with Pawan Kumar, ZO, South West Zone visited Police Post and contacted the Incharge. Since the surface where tanker was stationed was not plain, so it was not possible to do the measurement there. Finally, it was decided to do the measurement on 12.01.2006 in the calibration unit situated at HPCL Installation at Shakur Basti.
On 12.01.2006 at 11 am, the measurement was done in the presence of IO Sh. Suresh Kumar, representative of BPCL and IOCL and Sh. Pawan Kumar, ZO. The detailed instruction report has been placed in the case file and the same is Ex.PW4/A bearing his signature at point A1, A2 and A3. The report is running into two pages.
He identified the signature of Sh. Pawan Kumar on the report Ex.PW4/A. His signatures are at point B1, B2 and B3. It is a joint report and Sh. Pawan Kumar signed the report in his presence.
9. PW-5 Ct Pavinder Singh stated that on 03.01.2006, he was posted at PP Raghubir Nagar at PS Rajouri Garden as Constable. On that day, he along with SI PC.Yadav, and Ct. Krishan Gopal were patrolling and they were present at under Rajouri Garden Flyover. There one secret informer met SI P.C.Yadav and informed him that tankers containing fuel used to come on the side road near ESI Hospital and fuel was being stolen from the said tankers. He also informed that one tanker was present there and fuel would be stolen from it. SI P.C.Yadav apprised them about information and also requested 4-5 passersby to join investigation but none FIR No. 06/06 PS. Rajouri Garden State vs. Rajan Kumar & Ors.
7agreed. Without wasting time, they rushed to the place of information and took their position hiding themselves. Two big drums were kept there along with tanker. Two persons were removing fuel from the tanker and filling the same in drum with the help of dabba and kip. They put three dabbas of fuel in drum and thereafter, they were closing the seal of tanker. SI P.C. Yadav with their assistance apprehended the said two persons and their names were later revealed as Aslam and Rajan. Both the accused persons were correctly identified by the witness present in the court. Drums were checked and the drum which was being filled by the accused persons was half-filled with fuel. On interrogation, accused Aslam revealed that he removed only three dabbas approximately 60 to 70 litres of fuel from the tanker present there and remaining fuel was stolen from other tanker. The tanker which was present there bears the registration no, HR55 0777. IO SI PC.Yadav filled one bottle of 750 ml each from each drum as sample. Drums were given serial no A (fully filled) and B (half filled) and sample bottles were given serial no. Al and B1. The drums and sample bottles were sealed with the seal of PY and same were seized vide seizure memo already EX.PW1/A bearing his signature at point A. Dabba and Kip were seized vide seizure memo already Ex.PW1/B bearing his signature at point B. Tanker was taken into possession vide seizure memo already Ex.PW1/C bearing his signature at point B. SI P.C.Yadav prepared rukka and gave the same to Ct. Krishan Gopal who went to PS for getting FIR registered. After getting FIR registered, Ct. Krishan along with ASI Suresh Kumar came to the spot along with copy of FIR and original rukka. Further investigation was conducted by ASI Suresh Kumar. SI P.C.Yadav produced the accused persons and case property to him and also gave him documents. IO ASI Suresh Chand prepared site plan and arrested the accused persons vide memo Ex.PW5/A and Ex.PW5/B both bearing his signature at point A. Personal search of the accused was carried out vide memos Ex.PW5/C and PW5/D both bearing his signature at FIR No. 06/06 PS. Rajouri Garden State vs. Rajan Kumar & Ors.
8point A. Accused persons were interrogated and their disclosure statements were recorded which are Ex.PW5/E and PW5/F both bearing his signature at point A. Medical examination of the accused persons was got conducted.
Witness correctly identified the tanker shown in the photographs already Ex.P1 and P2.
The second IO ASI Suresh Kumar had also seized the certificate and forms produced by accused Mohd. Aslam vide seizure memo Ex, PW5/G bearing his signature at point A. The documents are collectively Mark PW5/1 (colly) which are four in numbers.
One plastic katta containing one plastic keep, one yellow plastic dabba are already Ex.P4 and P5.
One photograph showing two drums about which MHCM stated that the drum shown in photograph contained liquid and due to leakage said drum were empty now. Photographs already Ex.P6 shown to the witness and witness correctly identified the same. (Objected to by Ld.Defence counsel).
10. PW-6 SI Krishan Gopal stated that on 03.01.2006, he was posted at PP- Raghubir Nagar, PS- Rajouri Garden, as a constable. On that day he along with SI P.C. Yadav and Ct. Pavinder were patrolling in the area of Raja Garden Flyover. At about 08:00PM one secret informer met with SI P.C. Yadav and passed information that one oil Tinker is stationed at service road, near ESI Hospital and they were removing the oil from the tanker illegally for purpose of sale. IO asked 3-4 persons to join the racing party but they refused to join without disclosing their names and addresses. Thereafter, they constituted the raiding party and reached at Service Road, near ESI Hospital. They kept hiding themselves on the Service Road near ESI Hospital. They saw that one oil tanker was stationed and two persons were FIR No. 06/06 PS. Rajouri Garden State vs. Rajan Kumar & Ors.
9taking out the oil from the tanker into a drum with the help of Kip and Dabba. Thereafter they reached there and after seeing them one of the persons namely Aslam tried to seal the tanker from where they were taking out oil. Another person namely Rajan was present there who was purchasing the oil. Both the persons were apprehended. Accused Rajan was correctly identified by the witness in the court. There were two drums found at the spot. He asked 3-4 persons to join the proceedings but none agreed and left the spot without disclosing their names and addresses. Both the drum were checked and one of the drum of Blue Colour was fully filled and another drum was half filled with oil. Thereafter, he had taken out one bottle of oil from each of the drum as sample. The drum were given as Serial No. A and B and sample were given as Serial no. Al and B1. Both the drum and sample were duly sealed with seal of 'PY. He did not remember to whom the seal was handed over after use. The drum were taken into possession vide seizure memo already exhibited as EX. PWI/A bearing his signature at point C. Dabba and Kip were taken into possession vide seizure memo already exhibited as EX.PW1/C bearing his signature at point C. Tanker bearing registration No. HR-55C-0777 was taken into possession vide seizure memo already exhibited as Ex.PW1/C bearing his signature at point C. IO prepared the rukka and handed over the same to him for registration of FIR from PS. Accordingly, he went to PS and got the FIR registered and thereafter he came to the spot along with ASI Suresh who conducted the further investigation of the case. SI PC. Yadav handed over the accused persons and documents prepared by him to ASI Suresh. ASI Suresh interrogated the accused persons and they made disclosure vide disclosure statements. Disclosure statement of Aslam already exhibited as Ex.PW5/E and Rajan as Ex.PW5/F both bearing his signature at point B respectively. Both the accused were arrested vide arrest memo of accused Aslam already PW5/A and Rajan already EX.PW5/B both bearing his signature at point B respectively. Both the accused were personally FIR No. 06/06 PS. Rajouri Garden State vs. Rajan Kumar & Ors.
10searched vide personal search memo of accused Aslam already Ex.PW5/C and Rajan already Ex.PW5/D both bearing his signature at point B respectively. IO had taken documents i.e, Quality Control Certificate is already Ex. PW5/1 and Form No. AC 99, bearing No. 2444915 is Ex.PW6/A from accused Aslam and the same were taken in possession vide seizure memo already Ex.PW5/G bearing his signature at point B. IO prepared the site plan at the spot which is already Ex.PW1/E. His statement was recorded by IO. Both the accused were taken at DDU hospital for medical examination and after their medical they came back to PS Rajouri Garden.
Two photographs of oil tanker already Ex.P1 and P2 were shown to the witness and he identified the photographs of the same tanker from which the oil was taken out by the accused persons and taken in possession.
MHCM produced one white Katta tied with the rope. Katta was opened. One plastic pouch having blue seal bearing no. 556026 was shown to the witness and witness stated that the same was seized by the IO at the time of raid. The seal now is Ex. P3. One yellow plastic dabba and one Keep were taken out from Katta and the same was shown to the witness and the witness identified the same and both now are Ex. P4 and P5.
11. PW-7 ASI Sunil Kumar stated that on 21.03.2009 he was posted PS Rajouri Garden as MHC(M). On that day he handed over the sample seal Exhibit to Ct. Ram Phool. He made an entry in register no.21 vide RC no. 177/21 which is Ex.PW7/A(OSR) bearing his signature at point A and same was sent to the FSL Gandhi Nagar Gujrat. On 27.03.2009, Ct. Ram Phool handed over to him receipt of deposit acknowledgement FSL Gandhi Nagar Gujrat which is Ex.PW7/B(OSR).
12. PW-8 HC Ram Phool stated that on 21.03.2009 he was posted at PS FIR No. 06/06 PS. Rajouri Garden State vs. Rajan Kumar & Ors.
11Rajouri Garden as constable. On that day he received the sample from MHCM vide RC no. 177/21 which is already EXPW7/A bearing his signature at point B. He took the same to FSL, Gandhi Nagar Gujrat. On 24.03.2009 he reached at FSL Gandhi Nagar Gujrat and deposited the sealed samples in the FSL. On 27.03.2009 he returned back to Delhi and handed over the receipt of deposit acknowledgement, FSL Gandhi Nagar Gujrat which is already Ex. PW7/B. Samples were in his safe custody.
13. PW-9 Jai Pal Singh Rawat stated that he was posted as LMO (Calibration). Tikri Kalan, Delhi-41 and on that day he was deputed by his senior to depose on behalf of Sh Lalit Jain the then ILM Inspector who was transferred in other Department. As per their record, the summoned record i.e. Verification certificate 026/5348 in respect of M/s Chabra Roadlines was weeded out vide order no. ZO/W & M (W)/2015/390 dated 19.03.2015.
14. PW-10 HC Parmal Singh stated that on 03.01.2006, he was posted at PS Rajouri Garden as HC/ DD writer from 8.00am to 8.00pm. On that day, SI P.C. Yadav had departed from PS alongwith Ct. Pavinder and Ct. Krishan Gopal for patrolling in the area vide DD no. 24 PP dated 03.01.2006. The same was reduced by him in the DD register. Attested copy of the same is already placed on record which is Ex PW-10/A. The original DD register is not available as the same has been destroyed by the order of Asstt. Commissioner of Police, HQ West vide order no. 4000-4070/HAR/West dated 22.06.2018. The photocopy of the said order is marked as mark X (running into three pages).
15. PW-11 Lalit Kumar Jain stated that on 01.03.2005, he was posted in the Department of Weights and Measurement of GNCTD of Delhi as Inspector ILM FIR No. 06/06 PS. Rajouri Garden State vs. Rajan Kumar & Ors.
1222. On that day, he had calibrated the vehicle no. HR-55C-0777 of M/s Chhabra Roadlines. He issued certificate of verification, photocopy of the same is marked as Mark A-1. The original of said certificate was retained in the office. The original record has been weeded out as per record. The photocopy of the said order is marked as Mark A-2.
16. PW-12 Kulbir Singh stated that he had been deputed by Asstt. Commissioner (West) Food and Supply to produce the required record i.e. original notification of Kerosine oil vide no F.15 (2) 67DCS (P) dated 29.08.1968. As per the letter dated 07.03.2019 issued by Sh. Virender Pal Singh, FSO (Fuel) addressed to The Assistant Commissioner West, GNCTD, Food Supply and Consumer Affairs, New Delhi, the said original notification is not available with the department. The photocopy of said letter is marked as mark Y (running into two pages).
17. PW-13 Inspector Ram Kishore stated that on 16.09.2008, he was posted at PS Rajouri Garden as SI. On that day, the present case file was marked to him for further investigation. On 21.03.2009, he had sent the exhibit which is already collected by previous IO, to FSL Gandhi Nagar, Gujarat through Ct Ram Phool. On 27.03.2009, He had recorded the statement of Ct Ram Phool and MHC (M). Thereafter, he prepared the charge-sheet and filed before the court without obtaining result of FSL
18. PW-14 ASI Suresh Kumar stated that on 03.01.2006, he was posted at PS Rajouri Garden as ASI. On that day, the present case file was marked to him for further investigation. He had collected the copy of FIR and original Rukka from Ct. Krishan Gopal. He visited the spot where he met with SI P. C. Yadav who FIR No. 06/06 PS. Rajouri Garden State vs. Rajan Kumar & Ors.
13handed over to him both the accused persons and case property. He prepared the site plan at the instance of SI P.C. Yadav already Ex. PW-1/E bearing his signature at point A. after interrogation, he arrested the accused persons vide arrest memo already Ex. PW-5/A and Ex. PW-5/B bearing his signature at point X respectively. He also conducted the personal search of both the accused persons already Ex. PW-5/C and EX. PW-5/D and also recorded the disclosure statement of both the accused persons already Ex. PW-5/E and PW-5/F bearing his signature at point X respectively. He had seized the original quality control release certificate already mark PW-5/1 from the accused Mohd. Aslam vide memo already Ex. PW-5/G bearing his signature at point X. Form No. 2444915 already Ex. PW-6/A. He had also collected the duplicate form No. 2444916 and duplicate copy of form no. 2444915 which are Ex. PW-14/A and Ex. PW-14/B bearing his signature at point A respectively.
Thereafter, case property was deposited in Malkhana and accused persons were sent to lock up. On the next day, both the accused persons were produced before the court and sent to JC.
On 12.01.2006, he had got measurement of oil tanker at shakarpur Depot, Punjabi Bagh. Delhi. Thereafter, the case property was produced before the committee and the said committee had broken the seal of the case property and thereafter, handed over the same to him and same was seized by him vide seizure memo Ex. PW-14/C bearing his signature at point A. After measurement by the member of committee, they again sealed the case property. He collected the report of measurement which is now Ex. PW-14/D. On 18.01.2006, the oil tanker was released on superdari vide superdarinama Ex. PW-14/E. Thereafter, file was transferred to another IO for further investigation.
Two photographs of the truck was shown to the witness and witness correctly identified the same which are already ex. P1 and P-2 FIR No. 06/06 PS. Rajouri Garden State vs. Rajan Kumar & Ors.
14Accused Rajan Kumar was correctly identified by the witness present in the court.
19. PW-15 Naveen Kumar stated that he had been deputed to depose on receiving two summons regarding the challan no. 610630163 dated 03.01.2006 and seal no. 556026 x 1 and 556052 x 1 both dated 03.01.2006 on form no. AC-99 3444915 and 2444916 both dated 03.01.2006. The said documents pertains to Shakur Basti Terminal. The Shakur Basti Terminal has been closed since the year 2008 and the new terminal has been opened at Tikri Kalan since the year 2015, therefore, the old records pertaining to Shakur Basti Terminal are not available in their Terminal. As on date. Shakur Basti Terminal does not exist and the records have been destroyed/ disposed as weeded out.
20. I have carefully considered the above testimonies. It is fundamental principle of criminal jurisprudence that an accused is presumed to be innocent and therefore, the burden lies on the prosecution to prove the guilt of the accused beyond reasonable doubt. The general burden of establishing the guilt of accused is always on the prosecution and it never shifts.
21. From the testimony of PW1, PW5 and PW6 who were stated to be on patrolling duty on the relevant date i.e. 03.01.2006, it is crystal clear that there was complete lack of genuine and sincere effort on part of police officials to join public witness to the proceedings despite the fact that place of alleged incident was a public place and public persons were available at the relevant point of time. Prosecution witnesses deposed that public persons were asked to join the investigation but none agreed and left the spot without telling their whereabouts. It FIR No. 06/06 PS. Rajouri Garden State vs. Rajan Kumar & Ors.
15is well settled that the prosecution must show a genuine attempt having been made to join a public witness or that they were not available. At least in the facts and circumstances of the case, in my opinion, IO could very well have served the passersby with notice in writing to join the police proceedings. However, no notice was served upon the public persons who allegedly refused to join the investigation, which creates a reasonable doubt on the prosecution version. At this juncture, it would be pertinent to refer to some case laws.
22. In a case law reported as "Anoop Joshi Vs. State", 1992(2) C.C. Cases 314(HC), Hon'ble High Court of Delhi has observed as under:
"18. It is repeatedly laid down by this court that 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 evident that no such sincere efforts have been made, particularly when we find that shops were open and one or two shopkeepers 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 rigours 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.
FIR No. 06/06 PS. Rajouri Garden State vs. Rajan Kumar & Ors.16
23. Further, there is no evidence in the form of DD entry about PW1, PW5, and PW6 who were stated to be on patrolling duty on 03.01.2006 as to when they left the police station for patrolling duty. It casts doubt over the presence of the above PWs on the spot as police officials are required to make their arrival and departure entry in Daily Diary as per Punjab Police Rules.
24. Not only this, the case property and accused remained in control of police officials till the case property was deposited in the malkhana. Hence tampering with the case property cannot be ruled out as the seal remained all along with the police officials. As per the case of the prosecution, the case property was sealed with the seal of PY. However, neither any handing over memo nor returning memo of the seal was prepared by IO. Thus, tampering can not be ruled out as sealed case property and accused were with the police officials till the time case property was deposited in Malkhana. No efforts were made to hand over the seal after use in the presence of independent public persons. In such circumstances, the possibility of tampering the case property cannot be ruled out. This again creates sufficient doubt over the prosecution version, benefit of which must go to the accused.
25. Moreover, the allegedly seized fuel were never produced in the court. There has been inordinate delay in sending the case property to the FSL for its inspection. It has prominently come into the depositions of PW8 HC Ramphool that the case property was taken to the FSL, Gandhi Nagar, Gujarat on 21.03.2009 which is almost the delay of around three long years. There has been no justification from the investigating authority for such long delay so as to inspire the confidence of the FIR No. 06/06 PS. Rajouri Garden State vs. Rajan Kumar & Ors.
17court. The quality of findings cannot be expected in such circumstances as the material changes in the seized articles cannot be ruled out during the course of such long period of time. The entire exercise appears to be just a farcical exercise to fill the lacuna into the investigation.
26. It is be noted that during his crossexamination, PW4 Sh. Tapan Kumar, Deputy Director, DDA has significantly conceded that no cross weight of the vehicle was done to ascertain whether any evaporation has been done and it could not be ascertained whether there is any loss of fuel. The witness further admitted the suggestion of Ld. Defense Counsel that due to high temperature, the fuel can be evaporated. It is relevant to note that as per the version of this witness, the measurement was done on 12.01.2006 which is 9 days after the date of alleged recovery. Again, there has been hardly any justification for such unwarranted delay and as such adverse inference becomes necessary to be drawn against the case of the prosecution. It has been further conceded by the prosecution witnesses that allegedly seized drums, keep and dabba are easily available in the market and as such their manipulation cannot been entirely ruled out. In view of the aforesaid facts and circumstances, the recovery itself is doubtful and as such benefit of doubt goes to the accused.
27. The general principles of criminal jurisprudence, namely, that the prosecution has to prove its case beyond reasonable doubt and that the accused is entitled to the benefit of a reasonable doubt, are to be borne in mind. All the lapses in investigation, discussed herein above create a doubt on the very recovery of fuel without permit or legal license from the possession of accused. The lapses are FIR No. 06/06 PS. Rajouri Garden State vs. Rajan Kumar & Ors.
18material one and cannot be ignored. It is settled proposition of law that if the investigation suffers from taint then the entire prosecution case becomes open to serious doubts and challenges. The material is insufficient to record a finding of guilt of the accused.
Order
28. In view of the above discussion, I hold that the prosecution has failed to prove the guilt of the accused Rajan Kumar beyond reasonable doubt. Accordingly, I acquit the accused Rajan Kumar for all the offences charged against him. Case property be confiscated to the State.
29. Bail bond in terms of Section 437A Cr.P.C has already been obtained from the accused (since acquitted) in compliance of the judgment of the Hon'ble High Court in State Vs. Virender Yadav & Anr. 2014 I.A.D (Del.) 389.
Digitally
signed by
DEEPAK
DEEPAK KUMAR
KUMAR Date:
2020.05.26
16:36:03
+0530
Announced through Video Conferencing
(In the presence of both the parties) on (DEEPAK KUMARI)
21.05.2020 (18 pages) M.M2(West)/THC,
Delhi/21.05.2020
FIR No. 06/06 PS. Rajouri Garden State vs. Rajan Kumar & Ors.