Delhi District Court
Criminal Case/322/2014 on 1 October, 2015
IN THE COURT OF METROPOLITAN MAGISTRATE- 05,
SOUTH-WEST DISTRICT, DWARKA COURTS, NEW DELHI
Presided by: Ms. Manika
State v. Kaptan @ Rakesh and another
FIR No. 322/14
Police Station : Chhawla
Under Section: 33 Delhi Excise Act r/w 177/419 Indian Penal Code
Unique Case ID Number: 02405R0206182014
Date of institution : 07.08.2014
Date of reserving : 09.09.2015
Date of pronouncement: 01.10.2015
JUDGMENT
a) Serial number of the case : 142/1/14
b) Date of commission of : 07.06.2014 offence
c) Name of the complainant : Constable Mahender, Police Station Chhawla
d) Name, parentage and : 1. Kaptan @ Rakesh, address of the accused S/o Sh. Rajender, R/o RZ-40 A, Gangotri Enclave, Goipal Nagar, Najafgarh, New Delhi.
2. Vijay @ Banti, S/o Sh. Rajbir, R/o Village Matan, Police Station Bahadurgarh, Haryana.
e) Offence complained of : Section 33 Delhi Excise Act, 2009 State v. Kaptan @ Rakesh and another FIR No. 322/14 P.S.: Chhawla Page 1 of 22 and Section 177 read with Section 419 Indian Penal Code
f) Plea of the accused : Both accused persons pleaded not guilty
g) Final order : Both accused persons stand convicted for the offences punishable under Section 33(f) of the Delhi Excise Act, 2009and Section 177 of the Indian Penal Code and acquitted of the offence punishable under Section 419 of the Indian Penal Code
h) Date of final order : 01.10.2015 BRIEF FACTS AND REASONS FOR DECISION OF THE CASE
1. Vide this judgment, the accused persons Kaptan @ Rakesh and Vijay @ Banti are being convicted for the offences punishable under Section 33 (f) of the Delhi Excise Act, 2009 (hereinafter referred to as 'Act') and Section 177 of the Indian Penal Code (hereinafter referred to as 'I.P.C.') and acquitted of the offence punishable under Section 419 I.P.C. in this case FIR No. 322/14 police station Chhawla for the reasons mentioned below.
CASE OF PROSECUTION
2. The case of the prosecution as unfolded by the police report under Section 173 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C.') is that on 07.06.2014 at about 11:50 a.m. at Kikar bus stand, Goyala Dairy main road, New Delhi, State v. Kaptan @ Rakesh and another FIR No. 322/14 P.S.: Chhawla Page 2 of 22 while Constable Mahender was on patrolling duty in Qutub Vihar, Phase I in his beat No.3, he stopped the accused persons Kaptan @ Rakesh and Vijay @ Banti, who were carrying a big bag. The prosecution has alleged that, on checking, the bag was found to be containing bottles of illicit country-made liquor. As per the prosecution case, upon being asked, the names and addresses of the said persons were came to be known as Rakesh s/o Rajkumar r/o 40A Gangotri Enclave, Gopal Nagar, Najafgarh, New Delhi and Banti s/o Ramphal r/o Village Matan, Police station Bahadurgarh, District Jhajjar, Haryana. It is alleged that information regarding the same was telephonically transmitted to the duty officer at the police station whereupon the investigating officer Head Constable Narender Kumar came to the spot where the said persons along with the bag containing bottles of liquor were handed over to him by Constable Mahender. As per the prosecution, upon opening and checking the chocolate coloured bag, the investigating officer found 33 plastic bottles of of liquor each labelled "Asli Santra Masaledar Deshi Sharab For Sale in Haryana only" and "750 ML". Head Constable Narender took out one bottle as a sample and gave serial No.1 to the same and sealed the sample and the remaining bottles in the same bag with the seal of RS and filled form M-29 at the spot. The seal after use was handed over to Constable Mahender. The case property i.e. illicit liquor was seized vide memo Ex. PW1/B. Head Constable Narender Kumar prepared the tehrir and got the case registered, and conducted further investigation in the present case. Head Constable Narender Kumar prepared the site plan, recorded the disclosure statements of State v. Kaptan @ Rakesh and another FIR No. 322/14 P.S.: Chhawla Page 3 of 22 the accused persons and arrested them in the present case. The case property was deposited in the malkhana. During further investigation, the sample of the illicit liquor was sent to the Excise Laboratory for expert analysis. Head Constable Narender sent the parcha 12 of the accused persons for verification, however, the same could not be verified. It is further the case of prosecution that on 22.06.2014, Assistant Sub Inspector Shamsher Singh, CIA Staff Dadri made his arrival entry in police station Chhawla and informed that the accused persons of the present case are wanted in case FIR no. 46 dated 17.02.2014 under Section 392/397/307/216 A IPC, PS Badhda, District Bhiwani, Haryana and that they have got themselves arrested in the present case by disclosing their wrong particulars. It is further the case of prosecution that thereafter the investigating officer investigated and found that the correct particulars of accused persons were Kaptan @ Rakesh, S/o Rajender Singh, R/o RZ-40 A, Gopal Nagar, Gangotri Enclave, Najafgarh and Vijay @ Banti S/o Rajbir R/o Village Matan, District, Jhajjar, Haryana. Accordingly, Section 419/177 IPC were added in the present case. After completion of the further investigation, charge-sheet was filed in the court.
CHARGE
3. Vide order dated 11.11.2014, charge for the offences punishable under Section 33 of the Act and Section 177 read with Section 419 of the IPC was framed against accused Kaptan @ Rakesh and Vijay @ Banti, who pleaded not guilty and claimed trial.
State v. Kaptan @ Rakesh and another FIR No. 322/14 P.S.: Chhawla Page 4 of 22 ADMISSION/DENIAL OF DOCUMENTS
4. Vide order dated 06.02.2015, in compliance with the provisions of Section 294 of the Cr.P.C., the accused persons were called upon to admit or deny the genuineness of FIR No. 322/14 and complaint under Section 195 Cr.P.C. dated 10.11.2014, which were admitted by the accused persons and were accordingly exhibited as Ex.P/A/1 and Ex. P/A/2 respectively. In view of the admissions made, the evidence of the duty officer lady Constable Anita and Sh. Jagjeet Sangwan, Assistant Commissioner of Police, Sub Division, Najafgarh, New Delhi was dispensed with.
EVIDENCE OF THE PROSECUTION
5. To prove its case, the prosecution in all examined four witnesses. PW-1 Constable Mahender Kumar is the complainant and the sole witness to the alleged recovery in the present case. PW-2 Constable Ravinder is the official who had taken the exhibits from the malkhana of the police station and deposited them at the Excise Laboratory for examination. PW-3 Sh. Brijender Singh, Deputy Chemical Examiner, Excise Laboratory identified the signatures of Sh. Ravi Karan, Chemical Assistant on the report Ex. PW3/A and deposed that Sh. Ravi Karan had analysed the samples under his supervision and submitted the report dated 14.07.2014. PW-4 Head Constable Narender Kumar is the investigating officer in the present case.
STATEMENT / DEFENCE OF THE ACCUSED
6. In their examination under Section 313 Cr.P.C., the accused State v. Kaptan @ Rakesh and another FIR No. 322/14 P.S.: Chhawla Page 5 of 22 persons denied the entire evidence put to them. They categorically stated that they are innocent and have been falsely implicated in the present case. They stated that nothing as alleged had been recovered from their possession and the entire recovery had been planted upon them. They denied having furnished wrong names and particulars to the investigating officer. They asserted that they had disclosed their correct names to the police officials, who had, however, recorded their wrong names and other particulars of their own. They did not lead any evidence in their defence.
ANALYSIS AND FINDINGS
7. The record has been thoroughly and carefully perused. The respective submissions of Sh. Brijesh Kumar, learned Assistant Public Prosecutor for the State and Sh. S.N. Verma, learned legal aid counsel for the accused persons have been considered.
I. Charge under Section 33 Delhi Excise Act
8. As regards the aforesaid charge, the case of the prosecution is that on the fateful day the accused persons were found in possession of illicit liquor, which was being carried by them in a big bag, without any permit or licence. In order to bring home the charge against the accused persons, the prosecution was first of all required to prove beyond reasonable doubt the recovery of illicit liquor from the possession of accused persons.
State v. Kaptan @ Rakesh and another FIR No. 322/14 P.S.: Chhawla Page 6 of 22 Re: Recovery and seizure of case property
9. To prove the factum of apprehension of the accused persons in possession of the illicit liquor in question, the prosecution has examined PW-1 Constable Mahender Kumar.
10. As per the prosecution, PW-1 Constable Mahender Kumar had apprehended the accused persons in possession of the alleged illicit liquor while he was on patrolling duty. PW-1 Constable Mahender Kumar has deposed that on 07.06.2014, while he was on patrolling duty at beat no.3, Qutub Vihar Phase I, and had reached at Kikar stand, Goyala Dairy, Main Road, he saw two boys having a big bag standing there. He deposed that on seeing him they started walking speedily towards Dwarka. He further deposed that upon suspicion, he chased and stopped them and inquired about the bag but they could not give any satisfactory reply. He added that he checked the bag and found illicit liquor and on inquiry, one of the said persons disclosed his name as Rakesh and the other disclosed his name as Banti. He further deposed that he gave information to the duty officer and after about 15-20 minutes, Head Constable Narender from the police station reached and he handed over the case property and accused persons to him. He further deposed that Head Constable Narender recorded his statement, Ex.PW1/A and checked the recovered bag and found it containing 33 bottles of illicit liquor make Asali Santra Masaledar (for Sale in Haryana). He further deposed that the investigating officer separated one bottle as a sample and sealed it with the seal of RS and remaining liquor was also sealed with the seal of RS by putting it in the same bag. He further deposed that the State v. Kaptan @ Rakesh and another FIR No. 322/14 P.S.: Chhawla Page 7 of 22 investigating officer filled form 29 and seized the liquor vide memo Ex. PW1/B. He further deposed that thereafter, the investigating officer prepared rukka and handed over the same to him for getting the case registered. He further deposed that after registration of FIR, he returned to the spot along with rukka and copy of FIR and the same were handed over to investigating officer. He added that the investigating officer arrested accused Banti and Rakesh and conducted their personal searches vide memo Ex.PW1/C, Ex.PW1/D, Ex.PW1/E and Ex.PW1/F respectively. He added that after interrogation the investigating officer recorded the disclosure statements of the accused persons and prepared site plan Ex.PW1/G at his instance. PW-1 correctly identified the accused persons as well as the case property recovered from their possession. His entire testimony has remained un-rebutted as despite cross-examination conducted on behalf of the accused, nothing material came out therefrom which could render his testimony unreliable. In fact, while in his examination-in-chief, PW-1 had not stated the time of the alleged apprehension of the accused persons by him and recovery of the illicit liquor from their possession, upon a question being asked in his cross-examination, he specifically stated that he had reached the spot around 12:00 noon. Supporting the case of the prosecution, he admitted the suggestion of the learned defence counsel that there was no public witness on the spot around 12:00 noon who might have seen the recovery of the bag from the accused persons. The learned defence counsel merely gave suggestions to the said witness to the effect that the whole story is cooked up, that all the documentation etc. State v. Kaptan @ Rakesh and another FIR No. 322/14 P.S.: Chhawla Page 8 of 22 regarding the arrest of the accused persons from the spot, impersonation by the accused persons and recovery of the bag containing illicit liquor etc. was prepared sitting at the police station and that recovery as claimed by PW-1 was planted upon the accused persons. The said suggestions were, however, denied by PW-1. There appears nothing in the cross-examination of PW-1 to discredit his testimony.
11. The investigating officer, PW-4 Head Constable Narender Kumar, deposed that on 07.06.2014 at about 12.10 pm, he received an information vide DD no. 39B Ex.PW4/1, regarding apprehension of two persons by Constable Mahender with illicit liquor at Teeker stand, Goyla Dairy. He added that on receipt of the said information, he reached at the spot where Constable Mahender met him and produced the accused persons before him and the accused persons disclosed their names as Bunty S/o Ram Phal and Rakesh S/o Rambir. He further deposed that Constable Mahender also produced one bag which was recovered from the accused persons and on checking, the said bag was found to be containing 33 bottles of ''Masaledar Santra Desi Sharab''. He added that he took out one bottle as a sample and separately sealed it with the seal of RS and the remaining 32 bottles were sealed in the same bag with the seal of RS. He further added that the case property i.e. the bag containing illicit liquor and sample bottle were thereafter seized by the investigating officer vide memo Ex. PW1/B. He further deposed that he filled form M-29 at the spot, recorded the statement of Constable Mahender Ex.PW1/A, prepared rukka and handed over the same to Constable State v. Kaptan @ Rakesh and another FIR No. 322/14 P.S.: Chhawla Page 9 of 22 Mahender for getting the case registered. He added that Constable Mahender took the rukka to the police station for getting the case registered and after getting the case registered, Constable Mahender returned to the spot with the copy of the FIR and the rukka and handed over the same to him. He further deposed that he prepared site plan Ex.PW1/G bearing my signatures at point B. He further deposed that the accused persons were arrested vide memos Ex.PW1/C and Ex.PW1/D and their personal search was conducted vide memo Ex.PW1/E and Ex.PW1/F. He added that the accused persons were interrogated and they made disclosure statements Ex.PW4/D and Ex.PW4/E. He further deposed that after medical examination of the accused persons, they returned to the police station and the case property was deposited in the malkhana. He further added that on 07.06.2014 he had sent form 23-17(1) for verification of the parentage of the accused persons and received report that no such persons reside at the given addresses. He further deposed that on 22.06.2014, Assistant Sub Inspector Shamsher Singh, CIA staff Police Station Dadri came to Police Station Chhawla and informed them vide DD No.15B dated 22.06.2014 that the accused persons in the present case have given their wrong names, parentage and address and he also provided the correct particulars of the accused persons and stated that both the accused persons were wanted in case FIR no. 46/2 Police Station Barada. He further deposed that thereafter, he verified the name, parentage and address of the accused persons as per the details given by Assistant Station Inspector Shamsher Singh and found the same to be correct and State v. Kaptan @ Rakesh and another FIR No. 322/14 P.S.: Chhawla Page 10 of 22 accordingly, Section 419/177 IPC were added in the investigation. He further deposed that thereafter, he prepared the charge-sheet and filed the same in the court. PW-4 has also been cross-examined on behalf of the accused. The only facts that surfaced in his cross- examination are that he had reached the spot at about 12.00 noon on 07.06.2014, that Constable Narender did not have any secret information and had apprehended the accused persons on the basis of suspicion, that the place of occurrence is a thickly populated area and that no public person was joined in the investigation as they all refused to participate in the investigation. However, nothing material came out in his cross-examination which could render his testimony unreliable.
12. Both the aforesaid witnesses have supported the case of the prosecution in material particulars. Further, there are no material contradictions in the testimony of the said recovery witness and the investigating officer, who have rather supported each other's testimony in material particulars.
Re: Sufficient link evidence
13. In order to prove that the case property was throughout in safe custody and had not been tampered with, the prosecution had cited Constable Ravinder and malkhana moharrir (case property) as witnesses. The prosecution has examined Constable Ravinder as PW-2. He deposed that on 24.06.2014, he collected the samples duly sealed with the seal of RS vide RC No. 90/21/14 Ex. PW2/A from the MHC(M) and deposited the same at the Excise laboratory, Vikas State v. Kaptan @ Rakesh and another FIR No. 322/14 P.S.: Chhawla Page 11 of 22 Bhawan, ITO. He deposed that thereafter he handed over the received copy of the RC to the MHC(M). He further deposed that so long as the case property remained in his custody, the seal on them remained intact and were not tampered with. The said witness has not been cross-examined on behalf of the accused persons despite opportunity having been granted for the purpose. Accordingly, the testimony of PW-2 has remained unchallenged. The prosecution has produced sufficient link evidence to prove that the case property was in safe custody and had not been tampered with even during transport to the Excise laboratory for examination.
Re: Case property
14. As per the report of chemical examiner dated 14.07.2014 Ex. PW3/A, sample of case property was found positive for ethyl alcohol containing 28.33% of ethyl alcohol and was found to have the smell of country liquor. The said report was tendered in evidence by PW-3 Sh. Brijender Singh, Deputy Chemical Examiner under whose supervision it had been prepared by Sh. Ravi Karan, Chemical Assistant and who identified the signatures of Sh. Ravi Karan thereon. The testimony of PW-3 has remained unrebutted, as he was not cross-examined on behalf of the accused persons despite opportunity having been granted. The said report Ex. PW3/A accordingly stands proved. Consequently, it stands proved that the sample was country liqour and accordingly the bottles recovered from the possession of the accused persons contained country liquor.
15. Further, when the case property was produced in the court State v. Kaptan @ Rakesh and another FIR No. 322/14 P.S.: Chhawla Page 12 of 22 during the examination of prosecution witnesses, the seal was found to be intact. The same rules out the possibility of the case property having been tampered with.
Re: Absence of independent witnesses
16. It had been argued by the learned defence counsel that the prosecution has not proved the recovery of the illicit liqour in question from the possession of the accused persons inasmuch as it has not cited or examined any independent public witness to the alleged recovery. Admittedly, no public witness to the recovery of the liquor has been either cited in the list of witnesses or examined by the prosecution. However, although no public witness has been joined in the investigation, the said fact by itself cannot be a ground for rejecting the unimpeached testimony of the prosecution witnesses.
17. The provisions of Section 100 (4) Cr.P.C. are only directory and failure to comply with the said provisions is not invariably fatal to the case of the prosecution. It has been held by the Hon'ble Supreme Court in State of Punjab v. Balbir Singh, AIR 1994 SC 1872:
"7. At this juncture we may also dispose of one of the contentions that failure to comply with the provisions of Cr.P.C. in respect of search and seizure even up to that stage would also vitiate the trial. This aspect has been considered in a number of cases and it has been held that the violation of the provisions particularly that of S.100, 102, 103 or 165, Cr.P.C. strictly per se does not vitiate the prosecution case. If there is such violation, what the courts have to see is whether any prejudice was caused to the accused and in appreciating the evidence and other relevant factors, the courts should bear in mind that there was such a violation and from that point of view evaluate the State v. Kaptan @ Rakesh and another FIR No. 322/14 P.S.: Chhawla Page 13 of 22 evidence on record. ...
It therefore emerges that non-compliance of these provisions i.e. Sections 100 and 165, Cr.P.C. would amount to an irregularity and the effect of the same on the main case depends upon the facts and circumstances of each case. Of course, in such a situation, the court has to consider whether any prejudice has been caused to the accused and also examine the evidence in respect of search in the light of the fact that these provisions have not been complied with and further consider whether the weight of evidence is in any manner affected because of the non-compliance. It is well settled that the testimony of a witness is not to be doubted or discarded merely on the ground that he happens to be an official but as a rule of caution and depending upon the circumstances of the case, the courts look for independent corroboration. ... In Sunil Kumar v. The State, 1990 Cri LJ 414 again a case arising under the NDPS Act, the Delhi High Court while considering the scope of S. 42 of the NDPS Act and S. 100(4) of Cr.P.C. observed that failure to associate independent persons in the search in a given situation would not affect the prosecution case in toto and the same cannot be thrown out or doubted on that ground alone. ... It thus emerges that when the police, while acting under the provisions of Cr.P.C. as empowered therein and while exercising surveillance or investigating into other offences, had to carry out the arrests or searches they would be acting under the provisions of Cr.P.C. At this stage if there is any non-compliance of the provisions of S.100 or 165, Cr.P.C. that by itself cannot be a ground to reject the prosecution case outright. The effect of such non-compliance will have a bearing on the appreciation of evidence of the official witness and other material depending upon the facts and circumstances of each case."
18. In the instant case, while PW-1 Constable Mahender admitted State v. Kaptan @ Rakesh and another FIR No. 322/14 P.S.: Chhawla Page 14 of 22 the suggestion of the learned defence counsel that there was no public witness at the spot who may have seen the recovery of bag from the accused persons by him, PW-4 Head Constable Narender Kumar maintained in his cross-examination that public persons could not be joined in the investigation as they had refused to join the investigation. Thus, the present is not a case where no effort at all was made by the police officials to join public witnesses in the investigation. It has been held in Appabhai and another v. State of Gujarat, AIR 1988 SC 696, that the prosecution case cannot be thrown out or doubted on the sole ground of non-joining of public witnesses as public witnesses keep themselves away from the Court unless it is inevitable. In paragraph 11 of the said decision, the Hon'ble High Court of Delhi had observed as under:
"...It is no doubt true that the prosecution has not been able to produce any independent witness to the incident that took place at the bus stand. There must have been several of such witnesses. But the prosecution case cannot be thrown out or doubted on that ground alone. Experience reminds us that civilized people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilante. They keep themselves away from the Court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate, but it is there everywhere whether-in village life, towns or cities. One cannot ignore this handicap with which the investigating agency has to discharge its duties. The court, therefore, instead of doubting the prosecution case for want of independent witness must consider the broad spectrum of the prosecution version and then search State v. Kaptan @ Rakesh and another FIR No. 322/14 P.S.: Chhawla Page 15 of 22 for the nugget of truth with due regard to probability, if any, suggested by the accused. ..."
19. Further, it is trite that there is no reason to doubt the testimony of prosecution witnesses merely because they are police personnel. It has been held by the Hon'ble Supreme Court in paragraph 8 of the decision in Karamjit Singh v. State (Delhi Administration), AIR 2003 SC 1311:
"...The testimony of police personnel should be treated in the same manner as testimony of any other witness and there is no principle of law that without corroboration by independent witnesses their testimony cannot be relied upon. The presumption that a person acts honestly applies as much in favour of police personnel as of other persons and it is not a proper judicial approach to distrust and suspect them without good grounds. It will all depend upon the facts and circumstances of each case and no principle of general application can be laid down..."
20. In the instant case, the testimony of the prosecution witnesses, who are police officials, is found to be without blemish. There is absolutely no material or evidence on record to show that the prosecution witnesses had any reason to falsely implicate the accused. Therefore, there is found to be no ground to disbelieve their testimony. In view of the aforesaid, the mere fact that there is no public witness to the recovery of the illicit liquor from the possession of the accused persons is not sufficient to throw out the case of the prosecution.
21. For the offence punishable under Section 33 (f) of the Act, the prosecution is required to prove that the accused persons were found in possession of an intoxicant beyond the prescribed quantity. As per State v. Kaptan @ Rakesh and another FIR No. 322/14 P.S.: Chhawla Page 16 of 22 Rule 20 of the Delhi Excise Rules, 2010 (hereinafter referred to as 'Rules'), the maximum quantity which may be possessed by an individual is nine litres in case of whisky and three litres in case of country liqour. As discussed above, the prosecution has successfully established that at the relevant time the accused persons were standing with a big bag containing the case property. Thus, it stands established that the accused persons were in possession of the case property. The word "intoxicant" is defined in Section 2 (40) of the Act to mean and include "(a) any liqour, (b) any spirit, (c) any intoxicating drug, (d) any other article, which the Government may from time to time declare to be intoxicant, except the substances covered under the Narcotic Drugs and Psychotropic Substances Act, 1985, for the purpose of this Act". The term "liquor" is defined in Section 2 (46) of the Act to include inter alia 'whisky' and 'country liquor'. As per the report of the chemical examiner Ex.PW3/A, the analysis indicated that the sample had the composition of country liquor. Thus, it stands established by the prosecution that the case property recovered from the accused persons contained intoxicant namely country liquor. What remains to be considered is whether the intoxicant recovered from the possession of the accused persons was beyond the prescribed quantity. From the testimony of the recovery witness PW-1 and the investigating officer PW-4, it stands established that the case property recovered from the possession of the accused persons consisted of 33 bottles of 750 ml each (24.75 litres) of Asli Santra Masaledar Deshi Sharab. Thus, the quantity of the intoxicants which were recovered from the possession of the accused persons was beyond the State v. Kaptan @ Rakesh and another FIR No. 322/14 P.S.: Chhawla Page 17 of 22 maximum limit for individual possession of liquor as specified under Rule 20 of the Rules.
22. The prosecution has accordingly proved the charge in respect of the offence punishable under Section 33 (f) of the Act read with Rule 20 of the Rules against the accused persons.
II. Charge under Section 177 Indian Penal Code
23. As regards the offence punishable under Section 177 IPC, the prosecution has alleged that pursuant to their apprehension in possession of illicit liquor by Constable Mahender Kumar, on being asked by PW-1 Constable Mahender, the accused persons disclosed their names and parentage, giving false particulars, as Rakesh s/o Raj Kumar and Banti s/o Ramphal respectively, however, upon form 23-17 (1) being sent for verification of the parentage of the accused persons, it was found that no such persons reside at the addresses furnished by the accused persons. As per the prosecution, it was later on found that the correct names and parentage of the accused persons were Kaptan s/o Rajender and Vijay s/o Rajbir respectively and they had furnished false particulars in order to shield their true identity so as to evade arrest in FIR No. 46/14 police station Barada District Bhiwandi, Haryana under Section 392/397/307/216 IPC wherein they were wanted. The complaint under Section 195 Cr.P.C. was admitted by the accused persons vide their statements dated 04.02.2015 recorded under Section 294 Cr.P.C. and accordingly exhibited as Ex.P/A/2. PW-1 Constable Mahender Kumar has specifically deposed that upon inquiry, one of the accused persons disclosed his name as 'Rakesh' State v. Kaptan @ Rakesh and another FIR No. 322/14 P.S.: Chhawla Page 18 of 22 while the other disclosed his name as 'Banti'. He correctly identified the accused persons in the court. Except for a suggestion to the effect that the story of the prosecution regarding impersonation by the accused persons is cooked up and all the documentation regarding the same having been prepared sitting at the police station, not even a single question challenging the testimony of PW-1 on the aforesaid aspect has been asked to the witness. Thus, there is nothing in the cross-examination of PW-1 Constable Mahender Kumar to impeach his testimony.
24. PW-4 Head Constable Narender Kumar deposed that after he reached the spot, Constable Mahender met him and produced the accused persons, who disclosed their names as Bunty s/o Ram Phal and Rakesh s/o Rambir. He correctly identified the accused persons in the court. He further deposed that on 07.06.2014 he had sent form 23-17(1) for verification of the parentage of the accused persons and received report that no such persons reside at the given addresses. He further deposed that on 22.06.2014, Assistant Sub Inspector Shamsher Singh, CIA staff Police Station Dadri came to Police Station Chhawla and informed them vide DD No.15B dated 22.06.2014 that the accused persons in the present case have given their wrong names, parentage and address and he also provided the correct particulars of the accused persons and stated that both the accused persons were wanted in case FIR no. 46/2 Police Station Barada. He further deposed that thereafter, he verified the name, parentage and address of the accused persons as per the details given by Assistant Station Inspector Shamsher Singh and found the same to be correct.
State v. Kaptan @ Rakesh and another FIR No. 322/14 P.S.: Chhawla Page 19 of 22 Thus, he supported the case of the prosecution in respect of the charge for the offence punishable under Section 177 IPC. Nothing material came out from his cross-examination which could render his testimony unreliable. The mere suggestion of the learned counsel for the accused persons to the effect that the allegations regarding giving of wrong name, parentage and address by the accused persons are unfounded and concocted, is not sufficient to disbelieve the testimony of PW-4 in the above regard.
III. Charge under Section 419 Indian Penal Code
25. As regards the charge for the offence punishable under Section 419 IPC, the prosecution has alleged that pursuant to their apprehension in possession of illicit liquor by Constable Mahender Kumar, on being asked by Constable Mahender, the accused persons disclosed their names and parentage, giving false particulars, as Rakesh s/o Raj Kumar and Banti s/o Ramphal, instead of Kaptan S/o Rajender Singh and Vijay S/o Rajbir respectively, in order to shield their true identity so as to evade arrest in FIR No. 46/14 police station Barada District Bhiwandi, Haryana under Section 392/397/307/216 IPC wherein they were wanted.
26. Section 419 IPC makes punishable cheating by personation. The offence of cheating is defined in Section 415 IPC. For constituting 'cheating', the following must be proved:
(A) that a person was deceived;
(B) that the person deceived was:
(i) fraudulently/dishonestly induced to State v. Kaptan @ Rakesh and another FIR No. 322/14 P.S.: Chhawla Page 20 of 22
(a) deliver any property to any person; or
(b) consent that any person shall retain any property;
OR
(ii) intentionally induced to
(a) do or omit to do anything which he would not do or omit if he were not so deceived; and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property.
27. In the instant case, as discussed above, the accused persons had furnished their names and parentage falsely to the complainant as well as the investigating officer and, thus, concealed their correct names and parentage. Accordingly, the accused persons deceived the above-named persons as, according to the Explanation to Section 415 IPC, dishonest concealment of facts is deception within the meaning of the said section. However, the ingredient (B) as stated above is not satisfied in the instant case since there is no evidence to show that the complainant and/or investigating officer induced either (i) to deliver any property to any person or (ii) to consent that any person shall retain any property or (iii) to do or omit to do anything which he/they would not do or omit if he/they were not so deceived, where such act or omission caused or was likely to cause damage or harm to him/them in body, mind, reputation or property. Thus, the offence of cheating cannot be said to have been committed in the instant case. The accused persons cannot, therefore, be said to have committed State v. Kaptan @ Rakesh and another FIR No. 322/14 P.S.: Chhawla Page 21 of 22 the offence punishable under Section 419 IPC either. The accused persons are accordingly entitled to be acquitted of the offence punishable under Section 419 IPC.
CONCLUSION
28. In light of the above discussion and the evidence on record, this Court is of the considered opinion that while the prosecution has successfully proved its case against the accused persons beyond reasonable doubt qua the offence punishable under Section 33 Delhi Excise Act, it has failed to prove the charge qua the offences punishable under Section 177 and Section 419 IPC against the accused persons. The accused Kaptan @ Rakesh and Vijay @ Banti are accordingly hereby convicted for the offences punishable under Section 33(f) of the Act and Section 177 IPC and acquitted of the offence punishable under Section 419 IPC.
Announced in open Court on 01.10.2015.
(MANIKA) Metropolitan Magistrate- 05 (South-West), Dwarka Courts, New Delhi 01.10.2015 State v. Kaptan @ Rakesh and another FIR No. 322/14 P.S.: Chhawla Page 22 of 22