Delhi District Court
State vs . Ashu @Vinod on 7 November, 2012
IN THE COURT OF MS. NEHA: METROPOLITAN
MAGISTRATE10 : (SOUTH EAST) DELHI
STATE Vs. Ashu @Vinod
FIR No: 135/12
P. S. Jaitpur
Date of Institution of Case : 25.05.2012
Date on which case reserved : 16.10.2012
for Judgment
Date of Judgment : 07.11.2012
JUDGEMENT:
a) Date of offence : 26.04.2012 b) Offence complained of : 33/10/10 Delhi Excise Act c) Name of complainant : HC Kishan d) Name of accused & his parentage : 1) Ashu@ Vinod S/o Sh. Om Prakash 2) Balwant @ Bittoo S/o Late Laab Singh e) Plea of accused : Not Guilty g) Final order : Acquitted Present: Sh. Nischal Singh, Ld. APP for the State
Sh. Sandeep Verma, Counsel from DLSA for accused. FIR no.135/12 State vs. Ashu & Anr.
PS Jaitpur 1 of 15 BRIEF FACTS AND REASONS FOR DECISION:
1. The case of the prosecution in brief is that on 26.04.2012 at about 9:00 p.m. Near Kalindi Kunj Picket, Jaitpur, New Delhi within the jurisdiction of PS Jaitpur, accused Ashu and Balwant were found in possession of 150 quarter bottles of liquor in a TSR bearing no. DL 1RF 0201 without any permit or license. It is alleged that accused Ashu @ Vinod was driving the TSR without any driving license. The TSR was a stolen one and was wanted in case FIR no. 94/12 PS Sangam Vihar under Section 379 IPC. Accordingly FIR no. 135/12 PS Jaitpur under section 33 Delhi Excise Act, 3/181 MV Act and 411 IPC was registered against the accused person.
2. After the completion of the investigation, charge sheet for offence u/s 33 Delhi Excise Act, 3/181 MV Act and 411 IPC was filed against the accused. Cognizance of the offence was taken. Copy of charge sheet was supplied to the accused. After hearing the parties, charge for the offence u/s 33/10/10 IPC was framed against both the accused person and a FIR no.135/12 State vs. Ashu & Anr.
PS Jaitpur 2 of 15 separate notice under Section 3/181 M V Act was framed against accused Ashu @ Vinod which was read over and explained to the accused, to which they pleaded not guilty and claimed trial.
3. In support of its case the prosecution has examined four witnesses. Prosecution has examined Ct. Balvinder as PW1. PW1 has stated that on 27.04.2012, he alongwith HC Kishan, Ct. Sanjeev Kumar were on picket duty at Kalindi Kunj between 8.00 PM to 8.00 AM. At about 9.00 PM, while they were checking the vehicles, one TSR bearing No. DL 1RF 0201 was coming at the spot and on seeing them in police uniform, the driver of the TSR accelerated the speed of TSR. Some how, they managed to stop the TSR.
4. He has further stated that TSR was being driven by accused Ashu @ Vinod and a person was sitting in the TSR namely Balwant Singh. A plastic bag was kept in the TSR and after checking, it is found that plastic bag was containing quarter bottles of liquor. After counting, 150 quarter bottles of illicit liquor having label of Masti Malta Masaledar Desi Sarab for sale in Haryana only. Then IO took out two bottles as sample FIR no.135/12 State vs. Ashu & Anr.
PS Jaitpur 3 of 15 and sealed with the seal of ID. Remaining case property was also sealed with the seal of ID in the plastic katta. The case property was taken into police possession vide memo already Ex.PW1/A. IO prepared the rukka and handed over to Ct. Sheikh Riyaz and sent him to PS for registration of FIR. Thereafter IO prepared the site plan and arrested the accused vide memos Ex.PW1/B and Ex.PW1/C and conducted their personal search vide memos Ex.PW1/D and Ex.PW1/E. He also seized the TSR U/s 102 Cr.PC vide seizure memo already ExPW1/F bearing my signature at point B. The case property i.e. Liquor bottles are Ex.P1 to Ex.P148.
5. Ct. Sanjeev has been examined as PW2. PW2 has also deposed on the lines of PW1.
6. HC Kishan has been examined as PW3. He has deposed that on 26.04.2012, he alongwith Ct. Balvinder and Ct. Sanjeev were on picket duty at Kalindi Kunj between 8.00 PM to 8.00 AM. At about 9.00 PM, they were checking the vehicles, one TSR bearing No. DL 1RF 0201 was coming at the spot and on seeing them in police uniform, the driver of FIR no.135/12 State vs. Ashu & Anr.
PS Jaitpur 4 of 15 the TSR accelerated the speed of TSR. But some how, they managed to stop the TSR. TSR was being driven by accused Ashu @ Vinod and accused Balwant was sitting in the TSR. A plastic bag was kept in the TSR and after checking, it is found that plastic bag was containing quarter bottles of illicit liquor.
7. PW3 has further stated that he intimated PS regarding the apprehension of accused persons with the illicit liquor. HC Islamuddin and Ct. Riyaz came to the spot. IO HC Islamuddin counted the quarter bottles. After counting, 150 quarter bottles of illicit liquor having label of Masti Malta Masaledar Desi Sarab for sale in Haryana only. Then IO took out two bottles as sample and sealed with the seal of ID. Remaining case property was also sealed with the seal of ID in the plastic katta. The case property was taken into police possession vide memo Ex. PW1/A. Seal after use was handed over to Ct. Sheikh Riyaz. Then IO recorded his statement vide memo Ex.PW3/A and prepared the rukka and handed over to Ct. Sheikh Riyaz and sent him to PS for registration of FIR.
FIR no.135/12 State vs. Ashu & Anr. PS Jaitpur 5 of 15
8. He has further stated that thereafter IO prepared the site plan and arrested the accused vide memo Ex.PW1/B and Ex.PW1/C and conducted their personal search vide memos Ex.PW1/D and Ex.PW1/E. He also seized the TSR U/s 102 Cr.PC vide seizure memo ExPW1/F.
9. HC Islamuddin has been examined as PW4. He has deposed that on 26.04.2012, he received DD Entry No. 37A sent by Duty Officer through Ct. Sheikh Riyaz regarding apprehension of two persons with illicit liquor and one TSR. Then, he alongwith Ct. Sheikh Riyaz went at the spot i.e. Kalandi Kunj, Border Picket, where HC Kishan Kumar produced accused persons alongwith case property. Then he requested some public persons to join the investigation, but no one agreed and left the place without disclosing their names and addresses. He open the plastic katta in the presence of available police officers. Plastic katta was containing 150 quarter bottles of illicit liquor having label of alta Santarewali Desi Sarab for sale in Haryana only. He has further deposed on the lines of PW3.
10. Thereafter no other material witness was left to be FIR no.135/12 State vs. Ashu & Anr.
PS Jaitpur 6 of 15 examined and PE was closed vide order dated 27.09.2012.
11. Separate statement of accused were recorded under Section 313 Cr.P.C. in which they denied all the incriminating evidence against them and claimed themselves to be innocent. However accused Balwant denied to lead any evidence in defence. Accused Ashu @ Vinod examined his mother Smt. Bimla Devi as DW1, his sister Pooja as DW2 and himself as DW3.
12. DW1 Smt. Bimal Devi has deposed that on 25.04.2012, his son Ashu @ Vinod came to house after consuming liquor. He beat her and her daughter Pooja came to save her. While daughter was trying to save her, Ashu hit her on her left eye. Thereafter, Ashu fled away from the house. She dialed number 100. Thereafter at about 6.00 PM, police officials called her. She asked the police to get her medically examined. They said that injuries are simple in nature and there is no requirement of medical examination.
13. She has further stated that on 26.04.2012, she went to PS at about 4.30 PM. Police officials had come to her house and HC Islammudin asked that whenever Ashu comes to the FIR no.135/12 State vs. Ashu & Anr.
PS Jaitpur 7 of 15 house, he should call them and inform. After 15 minutes, when the police officials left her house, Ashu came to the house. He was under influence of liquor. She came inside the house and called HC Islamuddin. When police officials came to her house, Ashu left the house and went in the nearby gali, the police officials apprehended him from gali No. 7. Thereafter, police officials took Ashu to PS.
14. She has also stated that after Ashu was apprehended, all came to PS and police asked her to go and thereafter Ashu was apprehended in false case. Copy of MLC is marked X.
15. Ms. Pooja, sister of accused Ashu has been examined as DW2. DW2 has also deposed on the lines of DW1.
16. Accused Ashu has also examined himself as DW3. He has stated that on 25.04.2012 at about 6.00 PM, he had quarrel with his mother. He ran away from the house after the quarrel. He returned back home on 26.04.2012 at about 7.00 PM, the police officials arrested him from gali no. 7, Jaitpur, on 26.04.2012. Thereafter, police officials brought to him to PS Jaitpur and falsely implicated him in the liquor case.
17. Thereafter no other witness was left to be examined and DE FIR no.135/12 State vs. Ashu & Anr.
PS Jaitpur 8 of 15 was closed. Final arguments were addressed on behalf of prosecution as well as defence.
18. I have heard final arguments and perused the record very carefully.
19. It is submitted by Ld. APP for the State that all the witnesses have corroborated the testimony of each other and proved the story of the prosecution beyond reasonable doubt, therefore, accused is liable to be convicted. On the other hand it is submitted by Ld. Counsel for accused that in the present case no public persons was joined in the recovery/investigation, therefore it creates the shadow of the doubt upon the story of the prosecution. It is also argued that accused Ashu was apprehended from nearby gali of his house and was falsely implicated in the present case.
20. I have perused the entire material on record and carefully considered the submissions of Ld. APP and Ld. Defence Counsel.
21. It has been held in case of Sadhu Singh V/s State of Punjab 1997(3) Crime 55 the Hon'ble Punjab & Haryana High Court : FIR no.135/12 State vs. Ashu & Anr.
PS Jaitpur 9 of 15 "In a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubts. It is for the prosecution to travel the entire distance from may have to must have. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused."
22.In the instant matter, IO and other police official have submitted that IO had requested some passersby/residents to join the investigation. It is note worthy that I.O. had not made any serious endeavour to join the passersby in the investigation of the case. Further there are certain contradictions which are noticed in the testimonies of prosecution witnesses.
23. PW1 Ct. Balvinder has stated in his crossexamination, "We requested public persons but none of them stopped.....I was not present at the spot and Ct. Sheikh Riyaz not went to PS for registration of FIR in my presence....I do not know what documents were prepared by the IO in the present case and I signed the same on the instructions of the IO.....My statement was recorded by the IO in this case on FIR no.135/12 State vs. Ashu & Anr.
PS Jaitpur 10 of 15
26.04.2012."
24. On the other hand, PW2 Ct. Sanjeev Kumar has stated in his crossexamination, "The traffic is very heavy on the said road. Approximately, 23 public persons were present at the spot. No notice was served to public persons on their refusal. ..No document was prepared in my presence. I did not sign any document/memo in the present case. I signed only my statement under Section 161 Cr.P.C.....I had gone to my picket after the accused were apprehended." PW2 has also voluntarily stated that all the documents were prepared by the IO at the picket.
25. PW3 HC Kishan had stated, "IO had asked 34 public persons to join the investigation. None of them agreed to join the investigation. No notice was served to them who refused to join the investigation."
26. PW4 HC Islamuddin has stated, "It is correct that case property was not recovered in my presence. I do no remember what documents were prepared by me in the morning. ...It is correct that Ex. PW1/A does not bear my signature. It is correct that the same is not in my FIR no.135/12 State vs. Ashu & Anr.
PS Jaitpur 11 of 15 handwriting. The Ex. PW1/F is also not in my handwriting."
27. In the present matter, there are certain contradictions which are noticed in the testimony of prosecution witnesses. PW2 has stated that all the documents were prepared by the IO by sitting at the picket. He has also stated that no document was prepared in his presence and he had gone to the picket after the accused were apprehended. PW1 has on the other hand stated that he does not know what documents were prepared by the IO and that he signed the documents on the instructions of the IO. IO has stated that he prepared all the documents at the spot.
28. DWs examined by the accused Ashu @ Vinod have stated that accused Ashu was apprehended from gali near their house. No suggestion has been given by Ld. APP for the State to DW1 and DW2 that accused was not apprehended from near his house and that he was apprehended along with bottles of liquor.
29.PWs have admitted that no notice was served by the IO to the public persons present at the spot. In the facts and circumstances of the present case, IO could have very well FIR no.135/12 State vs. Ashu & Anr.
PS Jaitpur 12 of 15 served the passersby with notice in writing requiring them to join the police proceedings or to face action u/s 187 IPC in as much as in the present case there was no possibility of accused escaping his apprehension / arrest or crime going undetected in as much as by the said time, accused stood already apprehended by the police. Failure on the part of prosecution to make sincere efforts for joining independent public witnesses in the proceedings when they are available creates reasonable doubt in the story of the prosecution.
30. IO/PW4 has stated that seal after use was handed over to Ct. Sheikh Riyaz. No efforts were made to handover the seal to independent public persons after use and seals remained with the junior police official only. Since the handing over of the seal to public witness has not been proved and hence it cannot be ruled out that police had the opportunity to tamper with the case property as the seals were in their possession. This also creates a doubt upon the prosecution story. Reference may be made to the judgment of Hon'ble Court in case titled as "Prem Singh Vs. State" reported as 1996 CRI. L. J/ 3604 in this respect.
FIR no.135/12 State vs. Ashu & Anr. PS Jaitpur 13 of 15
31. Charge sheet against accused Ashu has also been filed under Section 3/181 Motor Vehicle Act. Notice under Section 3/181 M.V. Act was framed against accused Ashu @ Vinod. However, none of the prosecution witnesses have stated that when accused Ashu was allegedly apprehended while driving TSR with the bottles of liquor, he could not produce valid driving license to the IO. In the absence of any evidence in support of the allegation that accused Ashu was driving TSR without any valid license, I hold that prosecution has failed to prove that accused Ashu was driving TSR without any valid license.
32. In view of the above discussion, I am of the opinion that prosecution has also failed to prove its case beyond reasonable doubt that accused were found in possession of bottles of liquor in TSR and that TSR was driven by accused Ashu and accused Balwant was sitting on the TSR.
33. In view of the discussion hereinabove, this court is of the view that prosecution has failed to bring such material on record which would have gone to establish the guilt of accused Ashu and Balwant beyond reasonable doubt holding FIR no.135/12 State vs. Ashu & Anr.
PS Jaitpur 14 of 15 them guilty for the offence under section 33 Delhi Excise Act. The accused stand acquitted for the offence U/s 33 Delhi Excise Act.
Pronounced in the open Court (Neha)
th
today on 07 November, 2012 MM10 (South East)
Saket, New Delhi
FIR no.135/12 State vs. Ashu & Anr.
PS Jaitpur 15 of 15