Delhi District Court
State vs Rajni on 10 February, 2011
IN THE COURT OF SH. S.P.S. LALER: METROPOLITAN
MAGISTRATE: KARKARDOOMA : SHAHDARA : DELHI
State V/s Rajni
FIR No. 122/02
PS Vivek Vihar
U/s 61 of Punjab Excise Act
J U D G M E N T:
a Unique No. : 02402R0049502002
b FIR No. : 122/02
c Date of Institution : 30.07.02
d Date of Commission of Offence : 31.05.02
e Name of complainant : Ct. Chatter Singh No. 2178/E
f Name of the accused & his : Rajani W/o Dharmender
parantage & address R/o 27/53G, Jawala Nagar,
Shahdara, Delhi
g Offence complained of : U/s 61 of Punjab Excise Act
h Plea of the Accused : Pleaded guilty
i Date of order reserved : 10.02.2011
j Final order : Acquitted
k Date of such order : 10.02.2011
BRIFE STATEMENT FOR THE REASONS FOR DECISION:
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1. The case of the prosecution is that on 31.05.02 at about 1.30 PM at Jwala Nagar, near Ramlila Ground, Delhi accused Rajni was found in possession of one 10 litre plastic can containing country made liquor without having any permit or license and thereby accused committed offence punishable under Excise Act.
On the basis of above facts an FIR No. 122/02 was registered in the PS Vivek Vihar against the accused U/s 61 of Punjab Excise Act.
Statement of witnesses were recorded, site plan was prepared, the accused was arrested and after completion of all necessary investigation charge sheet U/s 173 Cr. P.C was presented in the court for trial on 30.07.03.
2. The accused was summoned by the Court to face the trial so copy of challan as required under section 207 Cr. PC was supplied to her. Thereafter case was fixed for consideration of charge.
3. On hearing arguments and on perusal of record, prima facie charge for the offence under Section 61 of Punjab Excise Act was made out against the accused. Accordingly charge was framed against the accused on 14.11.03. Thereafter case was fixed for prosecution evidence.
4. In order to prove its case the prosecution examined five witnesses namely Ct. Chattar Sen as PW1, Ct. Kanwar Pal as PW2, SI Ram Chhel as PW3, HC Hira Lal as PW4 and Ct. Vijay as PW5.
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5. PW1 Ct. Chattar Sen and PW2 Kanwar Pal are the witnesses of recovery who deposed regarding the steps taken during the investigation. Both these witnesses deposed that on 31.5.02 during patrolling their duty at Jwala Nagar near Rly. Line they apprehended accused Rajni along with one ten litre plastic can containing illicit liquor. PW1 proved his statement as Ex.PW1/A recorded by the IO. PW1 and PW2 also proved seizure memo as Ex.PW1/B.
6. PW3 SI Ram Chhail is the IO of the present case and deposed on the aspects of investigation. This witness also proved statement of Ct. Chattar Sen as Ex.PW1/A, seizure memo as Ex.PW1/B, arrest memo as Ex.PW3/A, rukka as Ex.PW3/B, site plan as Ex.PW3/C
7. PW4 HC Hira Lal is the MHC(M) who deposed regarding depositing of case property and sending of sample along with excise form to Excise Laboratory and proved register No. 19 as Ex.PW4/A.
8. PW5 Ct. Vijay deposed that on 21.6.02 he took sample quarter bottle along with excise form M-29 and deposited the same with Excise Office and handed over the receipt of the same to the MHC(M).
9. On 01.02.2011 statement of the accused was recorded wherein she denied the allegations of prosecution and claimed innocence. Accused did not desire to lead evidence in her defence.
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10. I have heard the Ld.APP for the state and Ld. Defence counsel and have also carefully perused the entire record and the relevant provisions of the law.
11. It is settled proposition of criminal law that prosecution is supposed prove its case on the judicial file by leading cogent, convincing reliable and trustworthy evidence beyond reasonable doubts. The case of prosecution has to fall or stand on its own legs and it cannot drive any benefit from the weakness if any, in the defence of the accused. It is not for the accused to disprove the case of the prosecution and onus to prove the case against the accused beyond reasonable doubts never shifts and it always remains on the prosecution. Further, benefit of doubt in the prosecution story always goes to the accused and it entitles the accused to acquittal.
12. From careful perusal of testimonies of this witnesses, it reveals that the witnesses admitted in examination in chief that several public persons were available at the spot but they were not made witness in the present case and it is a serious lapse on the part of IO/prosecution and there are also several material contradictions in the testimony of the PWs.
13. In the present case, the Investigating Officers have not joined any independent public witness despite availability. Admittedly, several public witnesses were present at the time of apprehension of accused person (as admitted by PW1 and PW2 the only recovery witnesses) and while completing the formalities and as per site plan several residential FIR No. 122/02 State Vs Rajni 4 of 8 houses were located near the place of alleged recovery but none of the occupants from any of the said houses were even requested to become witness.
14. Investigating Agency had sufficient opportunity to join a public witness. Merely stating that they tried to join public witness, but public persons refused to join, is insufficient as they have not obtained even the names of such public persons and have also failed to explain as to why the provisions of section 174 IPC r/w Section 42 of the Cr. P.C. was not brought into action against such public persons.
In the state of Rajasthan Vs. Teja Singh 2001 (II) AD (SC) 125, Hon'ble Supreme Court held:
"The failure of the prosecution to examined 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 FIR No. 122/02 State Vs Rajni 5 of 8 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 memo 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 witnesses. 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) *** (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 FIR No. 122/02 State Vs Rajni 6 of 8 witnesses." (emphasis supplied) In absence of a public witness to the recovery and also in absence of an explanation as to why a public reason was not joined in the investigation, the prosecution has failed to prove the recovery of the liquor from the accused beyond reasonable doubt.
15. Also in this case no efforts were made to hand over the seal after use to any independent public person and in such cases, in view of Saifulla Vs. State 1998(1) CCC 497 (DELHI) & Abdul Gaffar Vs. State 1996 JCC 497 (DELHI), benefit of doubt must be given to the accused persons.
16. In view of my above discussion, I am of the considered opinion that prosecution has miserably failed to prove its case against the accused beyond reasonable doubt. Therefore, in the absence of any cogent evidence against the accused, accused deserves to be acquitted. So, benefit of doubt is given to the accused.
Accordingly, accused Rajni is acquitted of the offence u/s 61 of Excise Act for which he stands charged in the present case.
Bail bond and surety bond each shall remain intact u/s 437A Cr.PC. till six months with further directions to appear before appellate FIR No. 122/02 State Vs Rajni 7 of 8 Court as and when receives notice in this behalf.
File be consigned to Record Room.
Announced in the open Court on 10.02.2011 ( S.P.S. Laler) Metropolitan Magistrate KKD, Delhi Certified that this judgment contains 8 pages and each page bears my signature.
( S.P.S. Laler)
Metropolitan Magistrate
KKD, Delhi
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