Delhi District Court
1 State vs . Munni Devi on 16 February, 2010
1 State Vs. Munni Devi
FIR No. 134/02
PS Adarsh Nagar
IN THE COURT OF SH. NEERAJ GAUR, METROPOLITAN
MAGISTRATE ROHINI COURTS, DELHI
FIR NO. 134/02
PS Adarsh Nagar
U/S 61-1-14 PUNJAB EXCISE ACT
State V/s Munni Devi
Sl. No. 140/02
Date of Institution: 17-05-03
Date of commission of Offence 08-04-02
Name of the complainant HC Amar Pal PS AN
Name and Address of accused Munni Devi W/O Late Sh.
Yograj, R/O Jhuggi No. 9 / A
- 501, Lal Bagh, Azadpur,
Delhi
Offence complained of 61/1/14 Ex. Act.
Plea of Accused Pleaded not guilty
Final Order Acquitted
Date of reserve for orders 16-02-10
Date for announcing the orders 16-02-10
Brief Reasons for the judgment:
Vide this judgment, I shall dispose off the case FIR No. 134/02
1.Charge U/S 61/1/14 Punjab Excise Act IPC was framed against the accused with the allegations that on 08-04-02 at about 09:40 PM at Main Road Azadpur Bus Terminal, Delhi with in the jurisdiction of PS Adarsh Nagar, accused was found in possession of plastic bag 2 State Vs. Munni Devi FIR No. 134/02 PS Adarsh Nagar containing 102 pouches of illicit without any permit or license. The accused pleaded not guilty and claimed trial.
2. In order to prove charge, prosecution cited 9 witnesses in witness list but has examined only four witnesses in total. PE stood closed on 06- 01-10. Statement of accused U/S 281 CrPC R/W Section 313 CrPC was recorded on 16-02-10 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 / DO ASI Harpal Singh deposed that on relevant date, time and place, he registered FIR (copy of which is Ex. PW1/A ) on receiving a rukka through Ct. Krishan Kumar being a Duty Officer posted at PS.
5. PW2 Lady Ct. Raj Rani deposed about apprehension of accused in possession of alleged case property / illicit liquor on relevant date, time and place on the basis of secret information received by IO as she was on patrolling duty alongwith IO HC Amar Pal, Ct. Krishan Kumar and Ct. H.Gauda. She later on deposed about separation of sample and sealing thereof with the seal of AP. Thereafter, she deposed about seizing of case property vide memo Ex. PW2/A. She then deposed about arrest and personal search of accused vide memos Ex. Pw2/B and Pw2/C respectively. Lastly, she correctly identified the accused and case property Ex. P1 in the open court.
6. PW3/ IO/ Complainant HC Amar Pal deposed in similar lines as PW2 3 State Vs. Munni Devi FIR No. 134/02 PS Adarsh Nagar being on patrolling duty together on relevant date, time and place. He further deposed identically as PW2 about the apprehension of accused and investigation proceedings and then deposed about preparation of rukka Ex. Pw3/A which was handed over to Ct. Krishan Kumar to register the case. Thereafter, he deposed about handing over of investigation to HC Sushil Kumar to whom custody of accused alongwith relevant documents were given as further investigation was marked to him. He further deposed that Second IO prepared the site plan at his instance.
7. PW4 Ct. H.Gauda deposed in an identical manner as Pw2 and PW3 as he was on patrolling duty with them on relevant date, time and place. He deposed similarly as IO and PW2 about apprehension and arrest of accused and then he deposed about handing over of investigation to Second IO.
8. It is noteworthy and cannot be ignored to arrive at any justified decision that prosecution failed to examine material witnesses despite several opportunities such as Second IO HC Sushil Kumar ( who conducted investigation of the case after registration of FIR ), Ct. Krishan Kumar ( who took the rukka to PS and got registered the case), Ct. Jang Bahadur, MHC (M) and HC Kanwal Jeet whose depositions altogether could have certainly supported the prosecution version and their non examination has certainly created a lacuna in the prosecution story.
4 State Vs. Munni Devi FIR No. 134/02 PS Adarsh Nagar
9. Having touched upon the statements of PWs. I shall consider the rival 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.
10.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.
11.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 5 State Vs. Munni Devi FIR No. 134/02 PS Adarsh Nagar of the investigation.
12.It is also noteworthy that the most crucial part of the investigation has been conducted by the complainant / IO HC Amar Pal 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 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.
13.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.
14.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.
6 State Vs. Munni Devi FIR No. 134/02 PS Adarsh Nagar
15.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 him a benefit of doubt. In view of the above said discussion, the prosecution has failed to prove the guilt of the accused beyond reasonable doubt.
16.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 16-02-10 Metropolitan Magistrate
Rohini Courts, Delhi