Delhi District Court
State vs . Vinod Kumar on 18 August, 2018
IN THE COURT OF SH. KISHOR KUMAR, MM-03,
SOUTH WEST DISTRICT, ROOM NO.11, DWARKA
COURTS, DELHI.
FIR No. : 546/16
U/s : 33 Delhi Excise Act
P.S. : Bindapur
State Vs. Vinod Kumar
JUDGMENT:
a) Sl. No. of the Case : 3113/6 & 2343/17
b) Name & address of the : Ct. Kailash Chand, No. complainant 765/SW PS: Bindapur
c) Name & address of : Vinod Kumar @ Monu accused S/o Sh. Makhan Singh R/o H. No. D-69, Bhagwati Vihar, Uttam Nagar, New Delhi
d) Date of Commission of : 17.08.2016 offence
e) Offence complained off : U/s 33 Delhi Excise Act
f) Plea of the accused : Pleaded not guilty.
g) Final Order : Acquitted
h) Date of such order : 18.08.2018
Date of Institution : 27.03.2017
FIR No: 546/16 state v. Vinod Kumar Page No.1/10
Final arguments heard on : 18.08.2018 Judgment Pronounced on : 18.08.2018 BRIEF STATEMENT OF REASONS FOR DECISION: -
1. According to the case of the prosecution on 17.08.2016 at about 10.15 PM, at Bhagwati Vihar Road, Near Mother Dairy, C-Block, DDA Flats, Bindapur, New Delhi accused was found in possession of illicit liquor without any permit or license.
2. With these allegations, accused was summoned. He appeared. Copy of charge sheet was supplied to him. On the basis of material on record, charge for the offence punishable under section 33 Excise Act was framed against the accused on dated 20.07.2017 to which he pleaded not guilty and claimed trial.
3. To prove its case, prosecution has examined five FIR No: 546/16 state v. Vinod Kumar Page No.2/10 witnesses.
4. PW1 Ct. Sunil and PW3 HC Kailash were together patrolling in beat no. 4 on 17.08.2016. They were patrolling the area, where secret informer came and disclosed to Ct. Kailash that one person would come from the side of DDA Flats and go towards Bhagwati Vihar. Thereafter, they requested few passers bye to join the investigation but none of them joined and left without disclosing their names and addresses. Without wasting further time they constituted a raiding party including PW1, Ct. Kailash and secret informer and reached at C Block, near mother dairy, DDA Flats and started waiting for aforesaid person. Thereafter, after some time, one person having one plastic katta on his shoulder came there on which secret informer identified him and he was apprehended. On checking, plastic katta was found containing illicit liquor. DO in the PS was informed on which HC Jagbir Singh came at the spot to whom case FIR No: 546/16 state v. Vinod Kumar Page No.3/10 property and accused were handed over. On checking the plastic katta 72 quarter bottles of Episode Classic Whiskey, for sale in Haryana were found. One quarter bottle was taken as sample from the quarter bottles and 71 quarter bottles were put in the same plastic and was sealed with the seal of JBS, one quarter bottle's mouth was covered with white cloth and sealed with the seal of JBS. Form 29 was prepared. The name of the accused was found to be Vinod Kumar. Seal was handed over to Ct. Kailash. Thereafter, HC Jagbir Singh recorded statement of Ct. Kailash and prepared the rukka and handed over the same to PW1 which he took to PS, got the case registered and came back with copy of FIR and original rukka. The seizure memo of case property is Ex. PW1/A. IO arrested the accused and conducted his personal search vide Ex. PW1/B and PW1/C respectively. He recorded disclosure of the accused Ex. PW1/D. Case property and accused brought to the PS. The case property is Ex. P-1(colly).
FIR No: 546/16 state v. Vinod Kumar Page No.4/10
5. PW2 Ct. Raj Singh is the DO has proved FIR Ex. PW2/A.
6. PW4 ASI Rajesh Kadian is the second IO who filed the charge-sheet before the court.
7. PW-5 ASI Jagbir Singh deposed (u/s 311 Cr.PC) that on 17.08.2016 on receipt of DD No.63A Ex. PW5/A, he went to the spot where he met Ct. Sunil and Ct. Kailash along with accused and one plastic katta. On checking the plastic katta 72 quarter bottles of Episode Classic Whiskey, for sale in Haryana were found. One quarter bottle was taken as sample from the quarter bottles and 71 quarter bottles were put in the same plastic and was sealed with the seal of JBS, one quarter bottle's mouth was covered with white cloth and sealed with the seal of JBS. He recorded statement of Ct. Kailash and prepared FIR No: 546/16 state v. Vinod Kumar Page No.5/10 the rukka Ex. PW5/C and handed over the same to Ct. Sunil which he took to PS, got the case registered and came back with copy of FIR and original rukka. The seizure memo of case property is Ex. PW1/A. PW5 arrested the accused and conducted his personal search vide Ex. PW1/B and PW1/C respectively. PW5 recorded disclosure of the accused Ex. PW1/D. PW5 also prepared the site plan Ex. PW5/D. Case property and accused brought to the PS. On 17.08.2017, PW5 sent the sample liquor to Excise Office and obtained the report thereof.
8. After closure of prosecution evidence, statement of accused u/s 313 Cr.PC was recorded in which he stated himself to be innocent and nothing was recovered from his possession. The case property was planted upon him. He did not lead any DE.
9. I have heard. Ld. APP for the State, Ld. Counsel for the accused and have carefully gone through the FIR No: 546/16 state v. Vinod Kumar Page No.6/10 record.
10. It is seen that the testimony of witnesses do suffer major contradictions and inconsistencies which go to the very root of the case of the prosecution making it unbelievable.
11. PW1 Ct. Sunil in his cross-examination has deposed that there were no shops on the place of information. The distance between the spot and the place of information was about 50 mtrs and that they were on foot. He further deposed in his cross-examination that he went to PS with rukka at about 11.00 PM on foot and came back at the spot at about 11.50 PM on foot alone. IO took the case property to PS on his motorcycle alone. Mother of accused came to the spot who was called by the IO by phone.
12. PW3 HC in complete contradiction to PW1 who was also with him has deposed that at the place of information, there were residential houses, shops and many public persons FIR No: 546/16 state v. Vinod Kumar Page No.7/10 were passing by. The distance between the spot and place of information was about 500 mtrs. They went to the spot on the motorcycle of PW3. Ct. Sunil/PW1 went to PS with rukka at about 11.00 PM on his motorcycle and came back at the spot at about 11.30 PM on motorcycle. IO took the case property to PS on cycle rickshaw. Mother of accused did not come to the spot.
13. Interestingly PW3 has also deposed in contradiction to PW1 and PW3 in his cross-examination that he went back to PS on e.Rickshaw along-with case property and accused and other constables went to PS on one govt. motorcycle. This one govt. motorcycle has come on record here first time. PW5 further deposed that accused was taken for his medical examination after reaching the PS. One public person was sent to call mother of accused at the spot. PW1 and PW3 have categorically deposed that they knew the accused prior to the incident.
14. Therefore, in view of the aforesaid material and FIR No: 546/16 state v. Vinod Kumar Page No.8/10 major contradictions and the fact that PW1 and PW3 knew the accused prior to the incident, his false implication in the present case cannot be ruled out particularly when no public persons were joined to the investigation despite availability.
15. The case of the prosecution is further seen with doubt for the reason that though the accused has been apprehended with the case property from a place where there were residential houses, shops and public persons were passing as per prosecution witnesses, however no public witness was joined to the proceedings at all. The prosecution witnesses deposed that public persons were asked to join the investigation but they refused. However, upon this, the IO did not issue any notice to them nor noted down their names and particulars. In a case titled as Avdhesh etc. Vs. State of MP, AIR 1998 SC 1158, it was observed that-
Place of occurrence is a busy public FIR No: 546/16 state v. Vinod Kumar Page No.9/10 place, no independent witness examined by the prosecution. The case of the prosecution is doubtful and the conviction is improper.
In AIR 1978 SC 59 in the case titled as Bir Singh V. State of U.P., it has been observed that -
Examination of witnesses - Duty of prosecution - Independent witnesses available - Examination of only interested witnesses - Adverse inference - Justified.
16. It is found that there are also major contradictions in the testimonies of witnesses which shakes the story of prosecution. In view of the above discussion it is held that prosecution has miserably failed to prove its case against the accused beyond reasonable doubt that on the relevant date, time and place he was found in possession of illicit liquor. Resultantly, accused is Digitally signed by acquitted of the charged offences. KISHOR KISHOR KUMAR KUMAR Date: 2018.08.23 16:28:50 +0530 Dictated & Announced in Open Court (Kishor Kumar) On the 18 day of August ,2018 th MM-03/South-West/Delhi 18.08.2018 FIR No: 546/16 state v. Vinod Kumar Page No.10/10