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State vs . Rani @ Rano, Fir No. 716/04, Ps Model ... on 6 December, 2012

State Vs. Rani @ Rano, FIR No. 716/04, PS Model Town, U/s 61­1­14 Excise Act.  



                 IN THE COURT OF SH. DHEERAJ MOR, METROPOLITAN 
                             MAGISTRATE­IV, ROHINI COURTS, DELHI. 


FIR No. 716/04
PS  Model Town
U/s 61/1/14 Excise Act.
State Vs  Rani @ Rano


                                                 JUDGMENT

1. Sl. No of the case                                    :     59/06
2. Date of institution of the case                       :     30.11.2005
3. Date of the commission of the offence  :                    08.12.2004
4. Name of the accused                                   :     Rani @ Rano
                                                               W/o Sh. Rajender Singh
5. Name of the complainant                               :     Ct. Rakesh Kumar 
6. Offence complained of                                 :     61/1/14 Excise Act.  
7. Plea of accused                                       :     Pleaded not guilty
8. Final order                                           :     Acquitted
9. Date of such order                                    :     06.12.2012


   BRIEF STATEMENT OF THE REASONS FOR THE DECISION

1. The accused has been sent to face trial under section 61/1/14 Punjab Excise Act, by the SHO PS . Model Town, Delhi.

2. The brief facts of the case as alleged by the prosecution and as unfolded from the charge sheet are that, on 08.12.2004 at about 5:30 pm, near railway gate No. 3, Sangam Park, Delhi, the accused was found in possession of one plastic cane containing illicit liquor (12 bottles of 750 ml each), without any licence or permit of N.C.T of Delhi. Therefore, the present FIR No. 716/04, u/s 61/1/14 Punjab Excise Act, was registered at PS. Model Town, Delhi. After completion of the investigation, charge sheet was prepared and filed in the Court.

State Vs. Rani @ Rano, FIR No. 716/04, PS Model Town, U/s 61­1­14 Excise Act.

3. The accused was summoned by the court for facing trial for the aforesaid offence. The copy of the challan and documents annexed therewith were supplied to the accused in compliance of Section 207 Cr. P. C. Prima facie charge U/s. 61/1/14 Punjab Excise Act was made out against the accused Rani @ Rano. Accordingly, on 18.09.2006 the charge was framed by the Ld. Predecessor of this court. The accused pleaded not guilty to the same and claimed trial. Thereafter, the case proceeded for prosecution evidence.

4. In order to substantiate its case, the prosecution examined only one witness.

5. Ct. Rakesh Kumar (PW1) is the only recovery witnesses of the case property i.e. illicit liquor. He has testified that on 08.12.2004 he was on patrolling duty. He has further testified that at about 5:30, when he reached near railway gate no. 3, Sangam Park, Delhi, he saw a lady coming from the side of Ashok Vihar carrying a white colour plastic cane in her right hand. He has further deposed that on seeing him, accused tried to fled away. Thereafter, on suspicion he apprehended the accused. He has further deposed that the cane was checked and found it to be containing illicit liquor. He has further testified that on measuring, it was found to be contained 12 bottles of illicit liquor of 750 ml each. He has further deposed that on inquiry the accused disclosed her name as Rani @ Ranno. He has further deposed that he gave the information to PP Sangam Park. He has further deposed that HC Narender came at the spot. He has further testified that he handed over the custody of the accused and illicit liquor to him. He has further deposed that HC Narender asked 2/3 public persons to join the investigation but none agreed and left the spot without disclosing their names and addresses. He has further deposed that one bottle out of the said liquor was separated as sample and the said sample bottle and plastic cane were sealed with the seal of NS and excise form M 29 was filled up at the spot. He has proved the seizure memo of said plastic cane containing illicit liquor as Ex. PW­1/B. During his testimony one empty plastic cane duly sealed with the seal of NS was produced by MHC(M) and it was shown to the witness. He has correctly identified the same and the same is marked as mark Ex.P­1. He has also identified the accused.

6. The entire case of the prosecution is based upon the alleged recovery of State Vs. Rani @ Rano, FIR No. 716/04, PS Model Town, U/s 61­1­14 Excise Act.

illicit liquor from the possession of the accused. However, the prosecution has failed to produce the said illicit liquor that was recovered from the accused. The prosecution cannot substantiate its case without production of the said liquor in the court. The alleged cane that was recovered from the possession of the accused was produced in the court by MHC(M) during the testimony of Ct. Rakesh Kumar (PW1). However, the said cane was empty. Therefore, there was no probability of production of the said liquor in the court in future. Thus, examination of the remaining PWs would have been a futile exercise. Hence, PE was closed.

7. Thereafter, statement of the accused U/s. 313/281 Cr.P.C was recorded. All the incriminating evidence were put to the accused. In the said statement the accused has stated that she has been falsely implicated in the present case and she has further stated that she is innocent. However, she chose not to lead evidence in defence. Accordingly, the matter was listed for final arguments.

8. I have heard the Ld. APP for the state and Ld. Counsel for the accused. I have carefully perused the case record.

9. The cardinal principle of the criminal law is that the accused is presumed to be innocent till she is proved guilty beyond any reasonable doubt. The burden of proving the guilt of the accused lies on the prosecution and the prosecution is required to stands on its own legs to establish the culpability of the accused. The benefit of doubt if any, must go in favour of the accused.

10. In order to sustain conviction U/s.61/1/14 Punjab Excise Act the prosecution is required to prove the following ingredients:­.

i. The accused was found in the possession of the illicit liquor. ii. He/She was carrying the same without any licence/permit.

11. The entire case of the prosecution is solely dependent upon the recovery of illicit liquor from the accused. However, the alleged liquor has not been produced in the court. The plastic cane that was produced in the court in the testimony of Ct. Rakesh Kumar (PW1) was empty. If, for sake of the arguments, it is presumed that cane was filled with liquor at the time of its deposition at the malkhana and subsequently, it leaked, then also no DD entry has been placed on record to manifest that illicit liquor had leaked from the said cane. Hence, an important/material substantive piece of evidence is missing. The non production of State Vs. Rani @ Rano, FIR No. 716/04, PS Model Town, U/s 61­1­14 Excise Act.

illicit liquor in the court has proved fatal to the prosecution case.

12. The prosecution is required to prove that the alleged illicit liquor was recovered from the possession of the accused. Ct. Rakesh Kumar (PW1) is the material witnesses, as he is the alleged recovery witness. PW1 in his examination in chief has deposed that he was on patrolling duty at the time of the recovery of illicit liquor. However, the prosecution has failed to place and prove on record the departure entry of the said witness vide which he left the PS for the purpose of patrolling, to establish his presence at the spot of alleged recovery. Therefore, the presence of the said witness at the alleged place, time and date of recovery of the illicit liquor from the possession of the accused is doubtful.

13. The alleged incident pertains to have occurred at about 5:30 pm near railway gate no. 3, Sangam Park, Delhi. The aforesaid place of recovery is admittedly a crowded area. Moreover, the Ct. Rakesh Kumar (PW1) has also admitted the presence of public persons at the spot. Hence, it is convincingly established that there were many public persons available at the spot of alleged recovery. The criminal law has duly empowered the investigating officer/police officials to initiate action against the persons, who refuse to participate in the investigation. But still, IO neither made any efforts to join public/independent witnesses nor advanced any plausible explanation as to why no independent witnesses were examined by him. Hence, story of the prosecution is further shrouded in suspicion.

14. The prosecution has failed to cite any public witness in the list of witnesses, therefore, the version of the prosecution has remained uncorroborated by an independent material witness. The witnesses that are examined by the prosecution in the present case or the witnesses that the prosecution proposed to examine are police witnesses, who are interested in the success of the prosecution case and therefore, the probability of them being guided by the extraneous factors, other than truth, cannot be ruled out. The police witnesses cannot be straightaway termed as unreliable witnesses, however, when there is a possibility of joining any public witness in the investigation and still no genuine efforts are made to join the independent person as witness, then the testimony of the police witness does not lend sufficient credence/reliability, unless it is corroborated by independent material State Vs. Rani @ Rano, FIR No. 716/04, PS Model Town, U/s 61­1­14 Excise Act.

witness. In view of above discussion it is duly established that genuine efforts were not made by the IO of the case to join the public witness. The non joining of the public witness creates doubt in the story of the prosecution as held in PAWAN KUMAR Vs. DELHI ADMINISTRATION 1987 CC 585 DELHI HC.

Keeping in view the fact that the version of PWs have remained uncorroborated by any other independent witness regarding the alleged recovery of illicit liquor, it will be highly unsafe to rely upon their version to pass the order of conviction against the accused. It has been held in 1975 CAR 309 (SC) that "Prosecution case resting solely on the testimony of head constable and no independent witness examined­prosecution story appearing improbable and unnatural' held that the prosecution case can not be said to be free from reasonable doubt and the accused is liable to be acquitted".

15. Therefore the prosecution has failed to discharge the onus placed upon it and so have failed to prove its case beyond any reasonable doubt. Accordingly, benefit of doubt is given to the accused Rani @ Ranno and she is acquitted of the charge U/s. 61­1­14 Punjab Excise Act. She is directed to furnish fresh personal bond in a sum of Rs.12,000/­ with one surety in like amount, in accordance with Section 437A Cr.P.C. She has submitted that her previous bail bonds and surety bonds be extended for next six months. The said request is allowed and they are accepted for next six months. The case property be confiscated to the state. File be consigned to record room after due compliance.

File be consigned to record room after due compliance.

Announced in the open court today i.e. 06.12.2012.

(DHEERAJ MOR) METROPOLITAN MAGISTRATE­IV ROHINI/DELHI State Vs. Rani @ Rano, FIR No. 716/04, PS Model Town, U/s 61­1­14 Excise Act.

PS Model Town U/s 61/1/14 Excise Act.

State Vs  Rani @ Rano


06.12.2012

Present:          Ld. APP for the State. 
                       Accused Rani @ Rano on bail alongwith counsel. 

                       No PW is present.

Present case of the prosecution is solely based on the alleged recovery of illicit liquor from the accused. However, the plastic cane allegedly containing illicit liquor /case property produced by the MHC(M) during the testimony of Ct. Rakesh Kumar (PW1), was empty. Hence, it is apparent that the alleged illicit liquor recovered from the possession of the accused cannot be produced in the court. The production of the said alleged illicit liquor is essential and indispensable for proving the guilt of the accused.

Therefore, no fruitful purpose will be served by examining the remaining witnesses, as, in the absence of the said liquor, they are not likely to substantiate the prosecution version. Hence, PE stands closed. Therefore, the statement of the accused U/s 313/281 Cr. P. C. is separately recorded. The accused submits that he does not want to lead defence evidence.

Final arguments heard. Case file perused.

Vide separate judgment of even date announced in the open Court the accused Rani @ Rano stands acquitted for offence punishable U/s 61­1­14 Ex. Act. She is directed to furnish fresh personal bond in a sum of Rs.12,000/­ with one surety in like amount, in accordance with Section 437A Cr.P.C. She has submitted that her previous bail bonds and surety bonds be extended for next six months. The said request is allowed and they are accepted for next six months. The case property be confiscated to the state.

File be consigned to record room after due compliance.

(Dheeraj Mor) MM/Delhi/06.12.2012