Delhi District Court
State vs . Santosh @ Rani on 16 January, 2015
IN THE COURT OF SH. HARUN PRATAP
METROPOLITAN MEGISTRATE01 (CENTRAL),
TIS HAZARI COURTS, DELHI - 110054
FIR No. 74/10
PS - Pd Nagar
State Vs. Santosh @ Rani
Case ID No. 02401R0107532011
JUDGMENT
(a) Sr. No. of the Case 02401R0107532011
(b) Date of offence 13.05.2010
(c) Complainant ASI Puran Chand, PS Prasad Nagar
(d) Accused Santosh @ Rani, W/o Sh. Prabhu Dayal,
R/o 7029/2, Mata Rameshwari Nehru
Nagar, Delhi.
(e) Offence 61/1/14 Excise Act
(f ) Plea of accused Pleaded Not guilty
(g) Final Order Acquitted.
(h) Date of Institution 25.02.2011
(i) Date when judgment 09.01.2015
was reserved
(j) Date of judgment 16.01.2015
1. Briefly stated, the allegations against the accused are that on 13.05.10 at about 10:30 P.M, at H. No. 7029, Gali No. 2, Mata Rameshwari Nehru Nagar, Delhi, within the jurisdiction of PS Prasad Nagar, she was found in possession of illicit liquor beyond the prescribed quantity and without any valid permit or license in contravention of the provisions of Excise Act. As per the version of the prosecution, the accused thus FIR No. 74/10 Page no. 11 of 11 committed an offence U/s 61/1/14 Excise Act.
2. After completion of the investigation, chargesheet was filed by the police in the Court on 25.02.11 and the copy of the challan was supplied to the accused on her appearance thereafter in compliance of provision u/s 207 Cr.P.C. Notice of the accusation for the offence u/s 61/1/14 Exicse Act was put to the accused vide order dated 16.08.11, to which she pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE In order to prove its case against the accused, prosecution has examined 3 witnesses:
3. Ct. Hari Singh has been examined as PW1 who deposed that on 13.05.10, he was posted at PS Prasad Nagar; that on that day, he alongwith ASI Puran Chand and W/ASI Kiran Sethi were on patrolling in the area. He deposed that at about 10:30 p.m, when they reached at Mata Rameshwari Nehru Nagar, one secret informer came and informed ASI Puran Chand that one woman namely Santosh @ Rani was selling illicit liquor outside her house at Gali no. 2, Mata Rameshwari Nehru Nagar. He deposed that on receiving the said information ASI Puran Chand asked 34 passersby to join the raiding party disclosing facts of the information FIR No. 74/10 Page no. 11 of 11 but none agreed and left without disclosing their names and addresses. He further deposed that ASI Puran Chand prepared a raiding party comprising the above said police officials and reached at the above said place. He further deposed that on pointing out of secret informer, one woman was found present outside her house selling liquor and from her possession one cartoon and two plastic bags containing illicit liquor were recovered. He further deposed that on inquiry the said woman disclosed her name as Santosh @ Rani and on checking the said cartoon, 44 quarter bottles having the label of Stud whisky were found. He further deposed that on checking one plastic bag, it was found containing 22 quarter bottles and 15 half bottles make of Rum Murthal and the another plastic bag was containing 36 beer bottles. He further deposed that thereafter IO got arranged three plastic canes from the nearby shop and put the content of the recovered case property in the said plastic canes after taking sample bottles. He deposed that IO seized the recovered case property and samples with the seal of PC and the empty bottles/half /quarter bottles were put in their respective box/ bags vide seizure memo as Ex PW2/A. He further deposed that IO handed over him the rukka for registration of FIR and he alongwith W/ASI Kiran Sethi came back at the spot after registration of case. He also proved the arrest memo and personal search memo of accused as Ex.PW1/A1 and FIR No. 74/10 Page no. 11 of 11 Ex.PW1/A2 respectively. He also identified the case property as Ex.P1 to P3, P4, P5, P6. He was cross examined and discharged.
4. ASI Puran Chand has been examined as PW2 who deposed that on 13.05.10, he was posted at PS Prasad Nagar; that on that day, he alongwith Ct Hari Singh and W/ASI Kiran Sethi were on patrolling in the area. He deposed that at about 10:30 p.m, when they all reached at Mata Rameshwari Nehru Nagar, one secret informer came and informed ASI Puran Chand that one woman namely Santosh @ Rani was selling illicit liquor outside her house at Gali no. 2, Mata Rameshwari Nehru Nagar. He deposed that on receiving the said information ASI Puran Chand asked 34 passersby to join the raiding party disclosing facts of the information but none agreed and left without disclosing their names and addresses. He further deposed on the similar lines as deposed by PW1 and proved the seizure memo of the case property as Ex PW2/A. He also proved the tehrir as Ex PW2/B and copy of the Form M29 as Ex PW2/C. He was cross examined and discharged.
5. Ct. Dhara Singh has been examined as PW3 who deposed that on 25.05.10 he was posted at PS Pd Nagar as Ct. He deposed that he collected the samples from MHC(M) vide RC No. 65/12 and deposited the same at FIR No. 74/10 Page no. 11 of 11 FSL Rohini. He also deposed that the seal was not tampered while it remained in his custody. He was cross examined and discharged.
STATEMENT OF ACCUSED
6. PE was thereon closed by the Court vide order dt. 03.01.15 and statement of accused was recorded u/s 281/313 CrPC vide order dt. 09.01.15, wherein the accused denied all the incriminating evidence against her and stated that she has been falsely implicated in this case. Since, the accused did not wish to lead any defence, hence, matter was fixed for final arguments straightaway.
7. Final arguments heard. File perused.
APPRECIATION OF FACTS/CONTENTIONS/ANALYSIS & FINDINGS
8. In the present case, it has been alleged against the accused that she was found in possession of illicit liquor without any license and hence she committed the offence u/s 61/1/14 Excise Act. Herein, PW1 has deposed that information was received by ASI Puran Chand through secret informer that the accused was selling illicit liquor in front of her house. A raiding party was thereafter constitued by ASI Puran Chand and it has been deposed that effort was made to join public persons as members of the raiding party but none agreed. However, it is pertinent to FIR No. 74/10 Page no. 11 of 11 note that the information specifically stated about sale of liquor by the accused outside her house but no efforts were made to join the neighbors or the members of the locality by the police as witnesses of either the raiding party or as witness of the alleged recovery. No written notice was served by the police upon any public witness to join the investigation despite their availability and no explanation has been given regarding such failure.
9. In view of the opinion of this Court, the nonjoining of public witness is fatal to the prosecution case, particularly when no reasonable explanation has been given by prosecution for not joining public witnesses.
10. The absence of service of any written notice by the IO upon such public persons who could have been served at that point of time in normal course of events thus raises credible doubts on the testimonies of the prosecution witness. The nonjoining of public witness is fatal to the prosecution case, particularly when no reasonable explanation has been given by prosecution for not joining public witnesses and no efforts seem to have been made for joining independent witnesses.
11. The Law in this regard has also been enunciated clearly in case titled as "Roop Chand Vs. State of Haryana" reported as CC Cases 3 FIR No. 74/10 Page no. 11 of 11 (HC), wherein it was held that where the police has failed to join independent witnesses in the investigation despite their availability and further failed to take action against those who refused to take part in investigation nor their names were noted down by the police, the explanation of the police for not joining independent witnesses is an afterthought and liable to be rejected.
In the case of "Hem Raj v. State of Haryana" AIR 2005 SC 2110, it has been observed that : "The fact that no independent witness though available, was examined and not even an explanation was sought to be given for not examining such witness is a serious infirmity in the prosecution case. Amongst the independent witnesses one who was very much in the know of things from the beginning was not examined by the prosecution. Non examination of independent witness by itself may not give rise to adverse inference against the prosecution. However, when the evidence of the alleged eyewitnesses raise serious doubts on the point of their presence at the time of actual occurrence, the unexplained omission to examine the independent witness would assume significance."
In the case of "Sahib Singh v. Sate of Punjab" AIR 1997 SC 2417, it has been held as under : "Having gone through the record we find much substance in each of the above contentions. Before conducting a search the concerned police officer is required to call upon some independent and respectable people of the locality to witness the search. In a given case it may so happen that no such person is available or, even if available, is not willing to be a party to such search. It may also be that after joining the search, such persons later on turn hostile. In any of these eventualities the evidence of the police officers who conducted the search cannot be disbelieved solely on the ground that no independent and respectable witness was examined to prove the search but if it is found as in the present case that no attempt was even made by the concerned police officer to join with him some persons of the locality who were admittedly FIR No. 74/10 Page no. 11 of 11 available to witness the recovery, it would affect the weight of evidence of the Police Officer, though not its admissibility."
In the case of "D. V. Shanmugham v. State of A.P.", AIR 1997 SC 2583 it has been observed as under : "It also appeared from the evidence of PW2 and PW8 that there were several other people who witnessed the occurrence and they are not the residents of that locality. If such independent witnesses were available and yet were not examined by the prosecution and only those persons who are related to the deceased were examined then in such a situation the prosecution case has to be scrutinised with more care and caution."
In the case of "Pawan Kumar Vs. The Delhi Administration", 1989 Cr.LJ 127 Delhi, in which it was observed as follows : "Kalam Singh has to admit that at the time of the arrest and recovery of the knife, there was a lot of rush of public at the bus stop near Subhash Bazar. According to Jagbir Singh, he did not join any public witness in the case while according to Kalam Singh, no public person was present there. It hardly stands to reason that at a place like a bus stop near Subhash Bazar, there would be no person present at a crucial time like 7.30 pm when there is a lot of rush of commuters for boarding the buses to their respective destinations. Admittedly, there is no impediment in believing the version of the police officials but for that the prosecution has to lay a good foundation. At least one of them should have deposed that they tried to contact the public witnesses or that they refused to join the investigation. Here is a case where no effort was made to join any public witness even though number of them were present. No plausible from the side of the prosecution is forthcoming for not joining the Independent witnesses in case of a serious nature like the present one. It may be that there is an apathy on the part of the general public to associate themselves with the police raids or the recoveries but that apart, at least the IO should have made an earnest effort to join the independent witnesses. No attempt in this direction appears to have been made and this, by itself, is a circumstance throwing doubt on the arrest or the recovery of the knife from the person of the accused.'' In the case of "Sadhu Singh Vs. State of Haryana" 2000 (2) FIR No. 74/10 Page no. 11 of 11 CC Cases HC 73, the Court took note of the fact that public witnesses were not joined in investigation to acquit the accused.
In the case of "Massa Singh Vs. State of Punjab" 2000 (2) C.C. Cases HC 11, conviction was set aside on the ground that it was obligatory on the part of investigating officer to take assistance of independent witnesses to lend authenticity to the investigation conducted by him. It was observed as under : "The recovery has been effected from a public place. The Investigating Officer could have taken the trouble to associate an independent witness to get the attestation of such independent witness regarding the authenticity of the investigation conducted by him. This aspect of the case has not been properly appreciated by the Court below."
In the case of "Chanan Singh Vs. State" 1986 Crl. Rev. No.720 (P&H) 94, it was held that it was obligatory on the part of the police to join independent witnesses and the statement of official witness that witnesses refused to join investigation was rejected as an afterthought.
In the cases of "Gurbel Singh Vs. State of Punjab" 1991 Crl. Rev. No.504 (P&H) and "Dhanpat Vs. State of Punjab" 2000 (1) CC Cases HC 52, it has been held that nonjoining of independent witnesses is fatal to the prosecution case and accused is entitled to benefit of doubt.
12. Furthermore, it is pertinent to note that the case property was seized vide seizure memo Ex PW2/A and rukka was sent later on resulting FIR No. 74/10 Page no. 11 of 11 in registration of FIR but perusal of the said seizure memo reveals that the same mentions the FIR no. alongwith other material details of the case despite it being apparent that FIR was registered subsequent to the preparation of Ex PW2/A. The said fact apparent on record therefore makes it clear that the documents have been antedated in time and thus serious doubts have been raised on the entire version of the prosecution.
13. Therefore, in view of the abovesaid discussion the Court has no hesitation in hereby arriving at the conclusion that the prosecution has failed to establish its case against the accused persons beyond reasonable doubt.
14. Hence, the accused hereby stands acquitted of the offence u/s 61/1/14 Excise Act accordingly.
15. Bail bonds are cancelled and surety is discharged. Case property be destroyed/disposed off as per rules.
16. Original documents, if any, be returned to the respective parties against receipt after verification and on cancellation of endorsement as per rules.
FIR No. 74/10 Page no. 11 of 11
17. Be heard on the point of bail u/s 437 A CrPC separately.
18. File be consigned to the record room after due compliance.
Announced and Signed in the Open Court
on 16th January, 2015. (Harun Pratap)
MM01(Central)/THC/Delhi
FIR No. 74/10 Page no. 11 of 11