Delhi District Court
State vs . Rakesh Kumar on 20 May, 2013
IN THE COURT OF MM06(SOUTH)
SAKET COURTS COMPLEX, NEW DELHI
Presided by : Ms. Manisha Tripathy
State Vs. Rakesh Kumar
FIR No. 189/09
P.S. Neb Sarai
Date of institution of case: 31.03.2010
Date of reserving the judgment: 20.05.2013
Date of pronouncement of judgment: 20.05.2013
J U D G M E N T
1.Serial No. of the Case: 11/3/10
2.Date of the Commission of offence: 12.08.2009
3.Date of Institution of the case: 31.03.2010
4.Name of the complainant: HC Ajeet Singh
5.Name of the accused, Rakesh Kumar @ Naga
Parentage & Address: S/o Inder
R/o B74/7,Vikas Nagar
New Delhi
6.Offence complained or proved: U/s 61/1/14 Excise Act
FIR No. 189/09 PS Neb Sarai State Vs. Rakesh Page No. 1/13
7.Plea of accused: Not Guilty
8.Final order: Acquitted
9.Date of final order: 20.05.2013
BRIEF FACTS AND REASONS FOR DECISION OF THE CASE
1. 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 12.08.2009 at about 01.25 am at Devli Mode, Near PNB Bank, Khanpur, New Delhi, within the jurisdiction of PS Neb Sarai, accused Rakesh was found in possession of 25 petties containing 12 bottles of illicit liquor in each petti branded as Kinnu Masaledar, for Sale in Haryana only without any permit or license. Accused was arrested, case property was seized and deposited in malkhana.
2. After investigation, chargesheet under section 173 Cr.P.C was filed on 31.03.2010. On the basis of the chargesheet and material on record, prima facie case was made out, therefore, charge for the offence punishable under section 61/1/14 Excise Act were framed against the accused by Ld. Predecessor on 17.02.2012 to which he pleaded not guilty and claimed trial.
3. Vide order dated 18.04.2013, in compliance of the provisions of Section FIR No. 189/09 PS Neb Sarai State Vs. Rakesh Page No. 2/13 294 Cr.P.C., the accused was called upon to admit/deny the registration of FIR which he admitted and the same was accordingly exhibited as Ex. A1. In view of the admission made, the evidence of the Duty Officer HC Ramphal was dispensed with.
4. To prove it case, prosecution examined following witnesses.
5. PW1 HC Rajesh Kumar is the MHCM. He deposed that on the direction of IO, he handed over the sample of the present case to Ct Bijender vide RC NO.65/21 and Ct Bijender had handed over back to him the RC from the ITO Excise Laboratory. He further deposed that no alteration was made with the case property while the same remains in his possession.
In his cross examination, he failed to depose regarding the number of samples which was handed over to Ct Bijender.
6. PW2 Ct Ravi Kaushik, is the recovery witness. He deposed that on 12.08.2009 while he was on patrolling along with HC Ajit and on reaching at Devli Road, near PNB, they received a secret information that a person is carrying illicit liquor. Thereafter, they stopped the Maruti vehicle bearing no. DL 4CA 0374 and searched and found 25 petties of Kinu Masaledar liquor for sale in Haryana. Thereafter, they shifted the said illicit liquor in 8 plastic kattas after taking one bottle as sample and the said plastic katta was sealed with the seal of AS and seal after use was handed over to him. Thereafter, IO prepared Form FIR No. 189/09 PS Neb Sarai State Vs. Rakesh Page No. 3/13 M29. IO had prepared the rukka and got the case FIR registered through him who returned on the spot with copy of FIR and original rukka. Thereafter, IO seized the said Maruti car and illicit liquor vide memo Ex PW2/A. He also deposed regarding arrest and personal search of the accused conducted by IO in his presence vide Ex.PW2/C & PW2/D respectively. He identified his signatures on seizure memo Ex.PW2/A, arrest memo and personal search memos Ex.PW2/C and Ex.PW2/D respectively. He also identified the accused. He also identified the case property which was produced in unsealed condition as the same which was recovered from the accused.
In his cross examination, he claimed that he had made departure entry but the same is not record. He failed to state that IO had not given the information to senior officers at PS. He further admitted that public persons were present at the spot who refused to join the investigation. They were not served with the legal notice. He failed to depose regarding what was recovered from personal search of accused. He further stated that seal handing over memo was not prepared.
7. PW3 HC Ajit Singh, is another recovery witness and IO of this case. He deposed that on the fateful date, he along with Ct. Ravi Kumar were on patrolling duty and during which they received a secret information that accused who is in possession of illicit liquor will go towards Devli Road FIR No. 189/09 PS Neb Sarai State Vs. Rakesh Page No. 4/13 from Sangam Vihar by a Maruti Car. After about 5 minutes, a Maruti Car bearing no. DL 4CA 0374 came from the side of Sangam Vihar and he signalled the driver to stop but instead of stopping, accused accelerated the speed. They stopped the car by obstructing its way by standing in front of the car. Thereafter, they apprehended the accused and checked the dicky of the car and it was found 25 petties containing 12 bottles each of illicit liquor. He requested 34 public persons to joini the investigation but none agreed and left the spot with justified excuses. He further deposed regarding the seizure of case property vide Ex PW2/B and sealing of sample with the seal of AS. He deposed that he handed over the seal to Ct Ravi Kumar after use. He further deposed regarding seizure of Maruti Car bearing no. DL 4CA 0374 vide Ex PW2/A. He prepared site plan Ex PW3/B. His remaining deposition is on the similar lines as PW2. Therefore, the same is not reproduced for the sake of brevity. His cross examination and his answers were on the similar lines as PW2.
8. After closing of prosecution evidence, all the incriminating evidence was put to the accused and his statement was recorded today under section 313 r/w section 281 Cr.P.C. He claimed innocence and false implication. He did not lead Evidence in his defence.
9. Thereafter, Final arguments were heard. It was argued by Ld. APP for State that the accused as well as the case property have been FIR No. 189/09 PS Neb Sarai State Vs. Rakesh Page No. 5/13 correctly identified by the witnesses and material witnesses have corroborated the testimony of each other, therefore, case has been proved beyond doubt against the accused. He accordingly prayed for conviction of the accused.
10. On the other hand, it was argued by Ld. Counsel for the accused that nothing has been recovered from the possession of the accused and that he has been falsely implicated by the police. Ld. Counsel pointed out certain lacunae in the prosecution case. He argued that the fact that no public witnesses have been joined in the investigation despite availability, departure entry of the recovery witnesses have not been proved, alleged seal was not handed over to independent witness after use, case property was produced in court in unsealed condition and seizure memo mentions FIR number and case details despite having been prepared earlier in point of time shows that the accused has been falsely implicated. He accordingly, prayed for acquittal of the accused.
11. I have carefully perused the record and considered the submissions of learned Assistant Public Prosecutor for the State and Ld. Defence Counsel.
12. The case of the prosecution is that on the fateful day the accused was found in possession of illicit liquor without any permit or license. In order to establish guilt of the accused, the prosecution was required to prove the recovery of illicit liquor from the possession of the accused FIR No. 189/09 PS Neb Sarai State Vs. Rakesh Page No. 6/13 beyond all reasonable doubts.
13. Evidently, there is no public witness to the recovery of the liquor. The place of arrest of accused and recovery was public place. It is not the case of the prosecution that no public person was present near the spot of recovery rather public persons are stated to have been requested to join investigation. No efforts by the IO are seen on the file for joining the public witnesses. A notice in writing to witnesses to join the proceedings or to face action u/s 187 IPC could have been served upon the public persons present on the spot by the IO. IO has failed to even note down the names and addresses of the public persons who were supposedly requested but refused to join investigation. Thus, it can fairly be inferred that no sincere efforts were made by IO to join public witnesses despite their availability. This casts doubts on the fairness of the investigation. Legal position has been reiterated by the Hon'ble High Court of Delhi in Pawan Kumar v. The Delhi Administration, 1989 Cri.L.J. 127. The relevant extract is reproduced hereinbelow:
" ... 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 FIR No. 189/09 PS Neb Sarai State Vs. Rakesh Page No. 7/13 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."
14. While none joining of public witnesses creates doubts as regards fairness of investigation but at the same time the prosecution case cannot be thrown out and accused can't be acquitted on the sole ground of nonjoining 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 instant case, it is not only the absence of public witnesses but there are other circumstances too which raises a doubt FIR No. 189/09 PS Neb Sarai State Vs. Rakesh Page No. 8/13 on the prosecution case.
15. The prosecution case rests entirely on the alleged recovery of illicit liquor from the accused. As already discussed, no public witnesses have been joined in the investigation. In such circumstances, the departure and arrival entries in the register No.II as maintained under chapter 22 Rule 49 of Punjab Police Rules 1934 would have been a vital evidence to to prove the possibility of availability of these witnesses at the relevant time on the spot and to corroborate the deposition of recovery witnesses. Chapter 22 Rule 49 of Punjab Police Rules, 1934, is reproduced herein below for ease of reference "22.49. Matters to be entered in register no. II The following matters shall, amongst others, be entered
(c) The hour of arrival and departure on duty at or from a police station of all enrolled police officers of what ever rank, whether posted at the police station or elsewhere, with a statement of the nature of their duty. This entry shall be made immediately on arrival or prior to the departure of the officer concerned and shall be attested by the latter personally by signature or seal.
Note:The term Police Station will include all places such as Police Lines and Police Posts where Register No.II is maintained.
16. As per prosecution case, Ct Ravi Kaushik and HC Ajit Singh were on patrolling duty in the area at the relevant time. The DD entries in register No II showing departure for patrolling in the area could have FIR No. 189/09 PS Neb Sarai State Vs. Rakesh Page No. 9/13 been proved by the prosecution. However, neither the said DD entries have been proved nor the DD number of the departure entry has been brought on record. When the provisions of law are not strictly complied with the same can be said to be done with oblique motive and are to be seen with reservation as has been held by Hon'ble High Court of Delhi in Rattan Lal v State, 1987(2) Crimes 29. In the instant case also, failure of prosecution to bring on record the DD entries casts shadow on the prosecution case as whole case rests on the alleged recovery from the accused.
17. Another lacuna in the prosecution case relates to seal. Prosecution case is that the case property was sealed by IO with the seal of AS and handed over to Ct Ravi Kaushik. No seal handing over memo was prepared. Further seal was neither handed over to independent witness nor deposited in malkhana. No explanation has come on record as to why handing over memo was not made or seal was not handed over to independent witness or deposited in malkhana. In the circumstances, the possibility of tampering of case property can't be ruled out.
18. Moreover, the case property was produced in the court during examination of PW2 in unsealed condition and it is quite possible that the sacks were never sealed at all. Thus, the possibility of tempering of case property and its false implication on the accused can't be ruled out.
19. Lastly, as per prosecution case the accused was apprehended with the FIR No. 189/09 PS Neb Sarai State Vs. Rakesh Page No. 10/13 case property and same was seized by the IO vide seizure memo Ex.PW2/A in presence of Ct Ravi Kaushik. Subsequently, rukka was prepared by IO and handed over to Ct Ravi Kaushik for registration of FIR. Ct Ravi Kaushik got the FIR registered and then again returned to the spot with original rukka and copy of FIR. It means that seizure memo was prepared before registration of FIR. Ld. Defence Counsel has doubted the prosecution version arguing that the seizure memo Ex.PW2/A bears FIR number and case details in the same ink and handwriting in which document is prepared implying that FIR number was inserted while preparing the document. Reliance has been placed on Mohd. Hashim v. State, 1999 VI AD (Delhi) 569.. Relevant para of the relied judgment is reproduced herein below:
"... Surprisingly, the secret information (Ex.PW7/A) received by the SubInspector Narender Kumar Tyagi (PW7), the notice under Section 50 of the Act (Ex. PW5/A) alleged to have been served on the appellant, the seizure memo (Ex. PW1/A) and the report submitted under Section 57 of the Act (Ex. PW7/D) bear the number of the FIR (Ex. PW4/B). The number of the FIR (Ex.
PW4/B) given on the top of the aforesaid documents is in the same ink and in the same handwriting, which clearly indicates that these documents were prepared at the same time. The prosecution has not offered any explanation as to under what circumstance number of the FIR (Ex.
PW4/B) had appeared on the top of the aforesaid FIR No. 189/09 PS Neb Sarai State Vs. Rakesh Page No. 11/13 documents, which were allegedly prepared on the spot. This gives rise to two inferences that either the FIR (Ex. PW4/B) was recorded prior to the alleged recovery of the contraband or number of the said FIR was inserted in these documents after its registration. In both the situations, it seriously reflects upon the veracity of the prosecution version and creates a good deal of doubt about recovery of the contraband in the manner alleged by the prosecution."
20. In the instant case as well, no explanation has been offered on record as to how the FIR number and case details have appeared on the seizure memo Ex. PW2/A. The same leads one to only one inference that either the said document was prepared later or that the FIR had been registered earlier in point of time. In both the aforesaid cases a dent is created and unexplained holes are left in the prosecution story, the benefit of which must accrue to the accused.
21. Considering the facts that no independent witness was joined, Daily Diary entries regarding arrival and departure of Ct. Ravi Kaushik and HC Ajit Singh have not been proved, case property was not produced in an intact condition, and the appearance of FIR number and case particulars on the seizure memo, 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 in the present case cannot be ruled out.
FIR No. 189/09 PS Neb Sarai State Vs. Rakesh Page No. 12/13
22. 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.
23. Thus, this Court is of the considered opinion that the benefit of doubt ought to be granted to the accused, who is entitled to be exonerated of the charges against him in the present case. The accused Rakesh Kumar @ Naga is hereby acquitted of the offence punishable under Section 61/1/14 Punjab Excise Act. Case property be confiscated to State as per rules, subject to limitation period for revision/appeal and orders of the Appellate Court, if any.
24. File be consigned to record room after necessary compliance.
Announced in open court
on 20.05.2013 Manisha Tripathy
MM06(South)/20.05.2013
Certified that this judgment contains 13 pages and each page bears my signatures.
Manisha Tripathy MM06(South)/20.05.2013 FIR No. 189/09 PS Neb Sarai State Vs. Rakesh Page No. 13/13