Delhi District Court
State vs . Kishan Singh Etc. on 5 March, 2022
IN THE COURT OF ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, SOUTH DISTRICT,
SAKET COURTS, NEW DELHI
Presided by: Ms. Manika
DLST020043272018
CR CASES/1234/2018
STATE Vs. KISHAN SINGH ETC.
State v. Kishan Singh & Anr.
FIR No. 396/2017
Police Station : Mehrauli
Under Section: 33 Delhi Excise Act
CNR Number: DLST020043272018
Date of institution : 15.02.2018
Date of reserving : Oral
Date of pronouncement: 05.03.2022
JUDGEMENT
a) Serial number of the case : 1234/2018
b) Date of commission of : 21.06.2017 offence
c) Name of the complainant : Constable Rajpal No.1008/SD, Police Station Mehrauli, New Delhi
d) Name, parentage and : 1. Kishan Singh, s/o Munna Lal, r/o address of the accused H.No.529, Kalu Ka Makan, Near State v. Kishan Singh & Anr.
FIR No. 396/2017 PS Mehrauli Page 1 of 12Mother Dairy, village Saidullajab, New Delhi Permanent Address: Village Aruraa, PS Maut, District Mathura, Uttar Pradesh.
2. Shyam Bahadur, s/o Kushal Pal Singh, r/o House No.309, K-II, Gali No.3, Sangam Vihar, New Delhi.
e) Offence complained of : Section 33 Delhi Excise Act, 2009 f) Plea of the accused : Both accused persons pleaded not guilty g) Final order : Both accused persons acquitted h) Date of final order : 05.03.2022
BRIEF FACTS AND REASONS FOR DECISION OF THE CASE
1. Vide this judgment, the accused Kishan Singh and Shyam Bahadur are being acquitted of the offence punishable under Section 33 of Delhi Excise Act, 2009 (hereinafter referred to as 'Act') in this case FIR No. 396/2017 police station Mehrauli by giving benefit of doubt 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 21.06.2017 at about 01.00 AM, Constable Rajpal and Assistant Sub-Inspector Deshraj, who were on ERV duty, received a PCR call. Thereupon, they both reached at House No.37, Village State v. Kishan Singh & Anr.
FIR No. 396/2017 PS Mehrauli Page 2 of 12Saidullajab, New Delhi where Constable Krishan from the beat staff was already present. There were small jhuggies situated in a plot at the spot. On left side of the plot, there were six jhuggies. Upon getting opened the jhuggi which was fifth from the left and second from the right, the abovenamed police official found the accused Shyam Bahadur Singh therein. The accused Shyam Bahadur Singh was informed about the call and thereafter the jhuggi was checked. Upon checking, one more person i.e. accused Kishan Singh was found present in the said jhuggi. There were two white kattas with tied mouth placed at a corner in the jhuggi. The said kattas contained illicit liquor. Thereafter, FIR was registered on the complaint of Constable Rajpal.
CHARGE
3. Vide order dated 07.01.2019 passed by learned predecessor of this Court, charge for the offence punishable under Section 33 of the Act was framed against the accused persons who pleaded not guilty and claimed trial.
ADMISSION/DENIAL OF DOCUMENTS
4. Vide order dated 05.03.2020 passed by learned Predecessor of this court, in compliance of the provisions of Section 294 Cr.P.C., the accused persons were called upon to admit or deny the genuineness of documents i.e. (i) FIR No.396/2017 dated 21.06.2017, (ii) Certificate under Section 65B Evidence Act regarding FIR No.396/2017, (iii) DD No.7A dated 21.06.2017 and (iv) Excise laboratory report dated 30.11.2017, which they admitted and the same were accordingly exhibited as Ex.A-1, Ex.A-2, Ex.A-3 and Ex.A-4 respectively. In view of the State v. Kishan Singh & Anr.
FIR No. 396/2017 PS Mehrauli Page 3 of 12admission made, evidence of prosecution witnesses namely Constable Shiv Dayal, PSI Navneet, duty officer Assistant Sub- Inspector Kishan Chand and Mr. Brijender Singh, Deputy Chemical Examiner was dispensed with.
EVIDENCE OF THE PROSECUTION
5. To prove its case, the prosecution in all examined three witnesses. PW-1 Constable Rajpal is the complainant and one of the recovery witnesses in the present case. PW-2 Head Constable Krishan Kumar is one of the recovery witnesses in the present case. PW-3 Head Constable Deshraj is the second investigating officer in the present case.
STATEMENT / DEFENCE OF THE ACCUSED
6. In their examination under Section 313 Cr.P.C., both the accused persons denied the entire evidence put to them. They categorically stated that they are innocent and a false case has been registered against them by the police. The accused persons did not lead any evidence in their defence.
ANALYSIS AND FINDINGS
7. The record has been thoroughly and carefully perused. The respective submissions of Mr. Rajat Bansal, learned Assistant Public Prosecutor for the State and Mr. Arvind Kasana, learned counsel for the accused persons, have been considered.
8. The case of the prosecution is that on the fateful day the accused persons were found in possession of illicit liquor without any permit or licence. In order to bring home the charge against the accused persons, the prosecution was required to prove State v. Kishan Singh & Anr.
FIR No. 396/2017 PS Mehrauli Page 4 of 12beyond reasonable doubt the recovery of illicit liquor from the possession of the accused persons. However, for the reasons mentioned hereinafter the prosecution has failed to establish beyond reasonable doubt that the accused persons were found in possession of the alleged illicit liquor.
Re: Absence of independent witnesses
9. Evidently, no public witness to the recovery of the liquor has been either cited in the list of witnesses or examined by the prosecution. The alleged recovery in the instant case is stated to have been effected from inside a jhuggi situated on a plot of land in village Saidullajab, New Delhi. The place of occurrence was admittedly located in a residential area. Further, as per the tehreer Ex.PW-1/A itself, there were other jhuggies too situated on the plot in question. The said fact has been admitted by PW-2 in his cross-examination. At the alleged time, residents of the neighbouring jhuggies would certainly have been available at the spot. However, despite availability, no public person was joined as a witness to the investigation.
10. From a perusal of the record, no serious effort for joining public witnesses appears to have been made by the recovery witnesses or by the investigating officer. It is a well settled proposition that non-joining of public witness shrouds doubt over the fairness of the investigation by police. Section 100 (4) of the Cr.P.C. also casts a statutory duty on an official conducting search to join two respectable persons of the society. Same has not been done in the present case. This casts a doubt on the fairness of the investigation. Reliance is placed on paragraph 6 of State v. Kishan Singh & Anr.
FIR No. 396/2017 PS Mehrauli Page 5 of 12the judgment in Pawan Kumar v. The Delhi Administration, 1989 Cri.L.J. 127, wherein the Hon'ble High Court of Delhi had observed as under:
" ... 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 Subhas Bazar, there would be no person present at a crucial time like 07.30 p.m. 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 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 explanation from the side of the prosecution is forthcoming for not joining the independent witnesses in a case of 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 I.O. 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."
11. In paragraph 18 of the decision in Anoop Joshi v. State, 1992 (2) C.C. Cases 314 (HC), the Hon'ble High Court of Delhi had observed as under:-
"It is repeatedly laid down by this Court in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evidence that no such sincere efforts have been made, particularly when we find that shops were open and one or two shop-keepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the shopkeepers had declined to join the raiding party, the police State v. Kishan Singh & Anr.FIR No. 396/2017 PS Mehrauli Page 6 of 12
could have later on taken legal action against such shopkeepers because they could not have escaped the rigours of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC ".
12. This Court is, however, conscious 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, as has been held in Appabhai and another v. State of Gujarat , AIR 1988 SC 696. However, in the present case, it is not only the absence of public witnesses which raises a doubt on the prosecution but there are other circumstances too, as discussed hereinafter, which raise suspicion over the prosecution version.
Re: Absence of departure entries
13. The present case rests entirely on the alleged recovery of case property, i.e. illicit liquor, from the possession of the accused persons at the relevant time by police officials namely Constable Rajpal and Assistant Sub-Inspector Deshraj, who were on ERV duty and had received a PCR call, as well as Constable Krishan Kumar, who was the beat official. As per Chapter 22 Rule 49 of the Punjab Police Rules, 1934, police officials are under a statutory duty to mark their departure and arrival in the register kept in the police station for the purpose. PW-1 Constable Rajpal stated in his cross-examination that he did not remember the DD entry regarding departure of the ERV. While PW-1 stated in his cross-examination that his duty hours were from 08.00 PM to 08.00 AM and PW-2 stated that his duty hours were from 11.00 PM to 5.00 AM, no document i.e. entry of duty State v. Kishan Singh & Anr.
FIR No. 396/2017 PS Mehrauli Page 7 of 12roster or entry of roznamcha regarding the duty hours of either of the said recovery witnesses has been filed, let alone proved. It was suggested to PW-1 during cross-examination on behalf of the accused persons that he was not on ERV duty as alleged. No DD entry vide which any of the recovery witnesses had left the police station for performing their respective duties on the relevant day has been filed, let alone proved, on record.
14. Since public persons were not joined in the investigation, the departure entries of the said police officials, i.e. Constable Rajpal, Assistant Sub-Inspector Deshraj and Constable Krishan Kumar become vital pieces of evidence. However, no such daily diary entry has been proved or even filed on record. Proof of the said entry/entries is, however, indispensable as the present case rests solely on the alleged recovery made by police officials.
Re: Sealing of case property not proved
15. As per the seizure memo Ex.PW-1/B, the sample of liquor and case property were sealed by PSI Navneet with the seal of 'NS'. However, the first investigating officer PSI Navneet, who had allegedly sealed the case property with his seal, has not been examined by the prosecution in the present case. Further, the aforesaid fact regarding sealing of case property with the seal of NS has not been deposed by PW-1 or PW-2 in their examination in chief. Moreover, in their cross-examination, the two recovery witnesses examined by the prosecution have given inconsistent statements with regard to the seal used to seal the case property. While, PW-1 stated that the case property was sealed with the seal of NS, PW-2 stated that it had been sealed with the seal of State v. Kishan Singh & Anr.
FIR No. 396/2017 PS Mehrauli Page 8 of 12Navneet. Thus, the factum of sealing of the case property with the seal of 'NS' has not been proved by the prosecution.
Re: Possibility of misuse of seal used for sealing case property not ruled out
16. As per the police report, after use, the seal of 'NS' was handed over to Constable Shiv Dayal. However, the said fact has not been deposed by either of the recovery witnesses (PW-1 and PW-2) examined by the prosecution. Further, the first investigating officer PSI Navneet to whom the alleged seal belong and Constable Shiv Dayal, to whom the seal was allegedly handed over after use, have not been examined by the prosecution in the present case.
17. Further, no handing over memo in respect of the seal has been filed, let alone proved. In fact, both the recovery witnesses examined by the prosecution namely PW-1 Constable Rajpal and PW-2 Head Constable Krishan Kumar have stated in their cross examination that no handing over memo in respect of the seal in question was prepared in their presence.
18. Thus, the fact of handing over of the seal of 'NS' to Constable Shiv Dayal as stated in the police report has not been proved by the prosecution.
19. Further, admittedly, the seal in the present case was not handed over to any independent witness nor was it was deposited in the malkhana to assail the possibility of its misuse. Accordingly, the possibility that the case property may have been tampered with cannot be ruled out.
FIR No. 396/2017 PS Mehrauli Page 9 of 12Re: Case property not proved
20. During the examination of PW-1 Constable Rajpal on 22.10.2019, the MHCM produced copy of order No. F.conf./2017/4838-39 dated 22.03.2018 and F.conf./2015/2609 dated 25.01.2016 of the Deputy Commissioner (Excise) Ex.PW- 1/J vide which the case property was destroyed and one sample was preserved. The MHC(M) also produced the sample of destroyed case property i.e. quarter bottles of illicit liquor alongwith photographs of the case property. However, the photograph Ex.PW-1/K merely shows two filled white sacks/kattas tied at the neck bearing particulars of the present FIR. There is nothing to ascertain the contents of the said white sacks/kattas seen in the photograph Ex.PW-1/K. The only means of proving the case property was the sample which was allegedly retained in the malkhana for evidence. However, there is nothing in the testimony of PW-1 dated 22.10.2019 to show that the said sample of case property was produced in a sealed condition. Thus, the possibility of the sample of case property having been tampered with and its false implication on the accused cannot be ruled out. Accordingly, the prosecution has failed to prove that the alleged sample Ex.S-1 is a sample of the alleged case property/illicit liquor recovered from the accused.
Re: Contradictions in the testimony of prosecution witnesses
21. While as per the testimony of PW-1, the case property was sealed with the seal of NS, according to the version of PW-2, it was sealed with the seal of Navneet.
22. While PW-1 and PW-2 have deposed that illicit liquor was State v. Kishan Singh & Anr.
FIR No. 396/2017 PS Mehrauli Page 10 of 12recovered from the jhuggi wherein the accused persons were found present, in his cross-examination, PW-3 Head Constable Deshraj admitted the suggestion that no case property was recovered from the possession of the accused persons.
23. The aforesaid contradictions in the testimony of the prosecution witnesses are material in nature and raise doubt as to the truth of the prosecution story.
CONCLUSION
24. The facts that no independent witness was cited or examined, no daily diary entry regarding departure of the recovery witnesses has been filed, possibility of misuse of the seal of the complainant used to seal the case property has not been ruled out, the case property has not been proved and there are several other infirmities in the prosecution case, when kept in juxtaposition to each other, cast a cloud of suspicion over the prosecution version. In view of the aforesaid, the possibility of false implication of the accused persons in the present case cannot be ruled out.
25. It is trite in criminal jurisprudence that the prosecution is under an obligation to prove its case against the accused beyond reasonable doubt. The standard of proof to be adopted in criminal cases is not merely of preponderance of probabilities but proof beyond reasonable doubt on the basis of cogent, convincing and reliable evidence. It is also well settled that in case of doubt, the benefit must necessarily be allowed to the accused.
26. Thus, in view of the foregoing analysis, this Court is of the State v. Kishan Singh & Anr.
FIR No. 396/2017 PS Mehrauli Page 11 of 12considered opinion that the benefit of doubt ought to be granted to the accused persons, who are entitled to be exonerated of the charges against them in the present case. The accused Kishan Singh and Shyam Bahadur are hereby acquitted of the offence punishable under Section 33 of the Act.
27. Necessary bail bonds under Section 437A Cr.P.C. with surety along with passport size photographs and proofs of residence of the accused persons as well as sureties and proof of soundness of the sureties have been furnished by the accused Kishan Singh and Shyam Bahadur and accepted.
28. File be consigned to record room.
Announced in open Court on 05.03.2022 MANIKA Digitally signed by (MANIKA) MANIKA Date: 2022.03.05 Additional Chief Metropolitan 18:16:10 +0530 Magistrate, South District, Saket Courts, New Delhi 05.03.2022 State v. Kishan Singh & Anr.
FIR No. 396/2017 PS Mehrauli Page 12 of 12