Delhi District Court
State vs Munni Devi on 17 July, 2010
FIR No. 211/01
PS: Adarsh Nagar
S/v. Munni Devi
IN THE COURT OF SH. NEERAJ GAUR, METROPOLITAN
MAGISTRATE ROHINI COURTS, DELHI
FIR NO. 211/01
PS: ADARSH NAGAR
U/S 61-1-14 PUNJAB EXCISE ACT
Case No. 25/02
U ID No. 02401R0425392002
State V/s Munni Devi
Date of commission of Offence 18.05.2001
Name of the complainant HC Tej Ram PS Adarsh Nagar.
Name and Address of accused Munni Devi w/o Bhograj
r/o N-9A Jhuggi, Lal Bagh,
Azad Pur, Delhi.
Offence complained of 61/1/14 Ex. Act.
Plea of Accused Pleaded not guilty
Final Order Acquitted
Date of Institution: : 04.02.2002
Date of reserve for orders : 17.07.2010
Date for announcing the orders : 17.07.2010
Brief Reasons for the judgment:
Vide this judgment, I shall dispose off the case FIR No. 211/2001
1.Charge U/S 61/1/14 Punjab Excise Act IPC was framed against the accused with the allegations that on 18.05.2001 at about 07:55 PM at Main Chowk, C/N. 25/02 U ID No. 02401R0425392002 Page No. 1 of 6 FIR No. 211/01 PS: Adarsh Nagar S/v. Munni Devi Jhuggi Lal Bagh, Azad Pur, Delhi within the jurisdiction of PS Adarsh Nagar, accused was found in possession of 200 poly pouches of illicit liquor in a plastic katta without any permit or license. The accused pleaded not guilty and claimed trial.
2. In order to prove the charge, prosecution examined four witnesses in total. PE stood closed on 28-05-2010. Statement of accused U/S 313 CrPC R/W Section 281 CrPC was recorded on 17.07.2010 wherein accused claimed her innocence and did not prefer to lead any DE. Final arguments have been heard. Record has been carefully perused.
3. I shall briefly touch upon the statement of PWs.
4. PW1 HC Jagpal Singh is the DO who proved the FIR No. 211/01 as Ex.PW1/A.
5. PW 2 HC Balram is the second IO who deposed that Constable Ashok Kumar came to the Police Station with one Tehrir which was sent by HC Tej Ram/first IO. He was assigned further investigation of the case. The custody of the accused and case property was given to him by the first IO and he prepared site plan at the instance of HC Tej Ram which is Ex.PW2/A. He arrested and personally searched the accused vide memos Ex.PW2/B & PW2/C. After recording the statement of accused u/s 166 CrPC, he released the accused on police bail.
6. PW-3 Constable Ashok Kumar deposed about apprehension of accused in possession of alleged case property / illicit liquor on relevant date, time and place as he was on patrolling duty alongwith IO HC Tej Ram. He later on deposed about separation of sample and sealing thereof with the seal of BR. M-29 Form was also filled up at the spot vide memo Ex.PW3/A. He then C/N. 25/02 U ID No. 02401R0425392002 Page No. 2 of 6 FIR No. 211/01 PS: Adarsh Nagar S/v. Munni Devi deposed about case registration as rukka was prepared and was handed over to him for getting the case registered. Thereafter, he deposed that custody of the accused and case property was handed over to HC Balram/second IO by HC Tej Ram/First IO for further investigation. He then deposed about arrest and personal search of accused conducted by Second IO HC Balram through a lady Constable Rajrani vide memos Ex. PW2/B and PW2/C respectively. Lastly, he correctly identified the accused and case property Ex.P1 in the open court.
7. PW -4 HC Tejram deposed in an identical manner as deposed by PW-3. He supported the prosecution case and deposed in detail about the proceedings conducted by him being the IO and being on patrolling duty on relevant date, time and place. He further deposed that a secret informer informed that a lady would come from the side of Azadpur and would go towards Jhuggi Lal Bagh with illicit liquor. After this he prepared a raiding party and went to the spot and deposed about the apprehension of the accused as she was carrying a Katta on her head( which after checking was found to be containing 200 pouches of Santra No. 1 Masaledar Desi Sharab) and deposed about investigation proceedings and then he prepared a rukka Ex.PW4/A. He handed over the same to Ct. Ashok for getting the case registered and after having got the case registered, Ct. Ashok came back at the spot along with HC Balram/second IO. He then handed over the custody of accused, case property and relevant documents to second IO/HC Balram. He further deposed that his supplementary statement was recorded by second IO/ HC Balram and he was relieved. He also identified the case property as Ex.P1.
8. Having touched upon the statements of PWs. I shall consider the rival C/N. 25/02 U ID No. 02401R0425392002 Page No. 3 of 6 FIR No. 211/01 PS: Adarsh Nagar S/v. Munni Devi contention of parties. Accused has highlighted several infirmities in investigation which are being discussed hereunder alongwith the explanation therefore advanced by Ld. APP for the State.
9. It is firstly highlighted by accused that the IO has not joined any independent public witness despite availability. Admittedly, several public witnesses were present at the time of apprehension of accused and while completing the formalities at the spot but none of the public witnesses was even requested to become witness. This casts doubt about sincere efforts made by the IO to join independent witnesses. In Roop Chand Vs. State of Haryana reported in 1990 (1) CLR 69, it was observed that such explanation that the public persons refused to join the proceedings are unreliable and in Pradeep Narayan V/S State of Maharashtra reported in AIR 1995 S.C. 1930 held that failure of police to join witness from locality during search created doubt about fairness of the investigation benefit of which has to go to the accused.
10.It is settled proposition of law that Sub Section 4 of Section 100 Cr.P.C. is directory provision, however, explanation of non-joining of independent witnesses should be plausible. The explanation put forward by the prosecution for non-joining of independent witness appears to be implausible for reason that there was ample time with the IO at least to note down the particulars of the persons who refused to join the investigation. The same creates doubt regarding the fairness of the investigation.
11.It is also noteworthy that the most crucial part of the investigation has been conducted by the complainant / IO HC Tej Ram even before registration of FIR. Since, he was present at the spot no explanation has been put forth by the prosecution as to why despite availability, the investigation was not handed C/N. 25/02 U ID No. 02401R0425392002 Page No. 4 of 6 FIR No. 211/01 PS: Adarsh Nagar S/v. Munni Devi over to some other senior officer. In such case, as observed by Hon'ble Supreme Court in the case titled as Megha Singh Vs. State of Haryana reported in 1995 Crl. L.J. 3988 and as held in the case titled as Sunil V/S State reported in 1999 (1) JCC 85 (Delhi) benefit of doubt is to be given to the accused.
12.It is also highlighted by accused that on the recovery Memo, the FIR number finds mentioned and it has not been explained by the prosecution. Admittedly, these documents were prepared before registration of FIR and it contains the FIR number, then interference has to be drawn that either FIR was recorded prior in time or the documents were prepared later on and in such cases, benefit of doubt is to be given to the accused.
13.It is next pointed out by accused that the seal was kept by the police officials themselves and was not handed over to any independent person and prosecution has also failed to prove that the case property remained intact and was not tempered with till the time it was produced in the Court which was more important when the seal remained with the police official of the same police station.
14.All the lapses in investigation, discussed herein above creates a doubt on the very recovery of illicit liquor from the possession of accused. The lapses are material 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 and the safer course available is to acquit the accused giving her a benefit of doubt. In view of the above said discussion, the prosecution has failed to prove the guilt of the accused beyond reasonable C/N. 25/02 U ID No. 02401R0425392002 Page No. 5 of 6 FIR No. 211/01 PS: Adarsh Nagar S/v. Munni Devi doubt.
15.Accordingly, I acquit the accused Munni Devi for the offence U/S 61/1/14 Punjab Excise Act. The Bail Bond stands cancelled and surety for the accused person stands discharged. Any endorsement placed on the documents of the surety may accordingly, be cancelled. The original documents of the surety, if retained on record be returned against acknowledgment. File be consigned to Record Room.
Announced in the Open Court (Neeraj Gaur)
Dated 17.07.2010 Metropolitan Magistrate-IV
Rohini Courts, Delhi
C/N. 25/02
U ID No. 02401R0425392002 Page No. 6 of 6