Delhi District Court
State vs . Vijay Kumar on 22 June, 2018
IN THE COURT OF SH. KISHOR KUMAR, MM-03, SOUTH WEST DISTRICT, ROOM NO.11, DWARKA COURTS, DELHI. FIR No. : 254/15 U/s : 33 Delhi Excise Act P.S. : Bindapur State Vs. Vijay Kumar JUDGMENT:
a) Sl. No. of the Case : 161/8 & 433987/16
b) Name & address of the : Ct. Mahesh Kumar, No. 1572/SW complainant. PS: Bindapur
c) Name & address of : Vijay S/o Late Sh. Amarjeet Singh accused R/o V-11, Bhagwati Vihar, Sec-C, Uttam Nagar, New Delhi.
d) Date of Commission of : 17.02.2015 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 : 22.06.2018 Date of Institution : 06.12.2016 Final arguments heard on : 21.06.2018 Judgment Pronounced on : 22.06.2018
BRIEF STATEMENT OF REASONS FOR DECISION: -
1. Briefly stated, case of the prosecution is that on FIR No: 254/15 state v. vijay kumar Page No.1/8 17.02.2015 at about 12:30 pm, at Bindapur Matiala Road, Near Kaushik Property, Uttam Nagar, Delhi, accused was apprehended with one plastic katta containing 62 quarter bottles of Impact Grain Whiskey on the basis of secret information by Ct. Praveen Kumar and Ct. Harpawanjeet.
The Illicit liquor was seized. Consequently, FIR was registered against the accused and investigation was carried out.
2. After investigation, challan for offence U/s 33 Delhi Excise Act was filed. Compliance of Section 207 Cr.P.C was done.
3. Charge for committing the offence punishable under Section 33 Delhi Excise Act was framed against the accused on 20.03.2017, to which he pleaded not guilty and claimed trial.
4. In support of its case, prosecution examined as many FIR No: 254/15 state v. vijay kumar Page No.2/8 as six witnesses.
5. PW1 Ct. Praveen Kumar and PW2 Ct. Harpawan Jeet apprehended the accused with illicit liquor on the basis of secret information. Thereafter, they informed the PS from where PW6 SI Shakti Singh came at the spot who seized the illicit liquor vide memo Ex. PW1/A, filled Form M-29 Ex. PW6/A, recorded statement of Ct. Mahesh Ex. PW6/B and prepared the site plan Ex. PW6/C thereafter the accused was relieved after furnishing notice under section 41A Cr.P.C. Ex. PW6/D. Witnesses have also proved the case property Ex. P-1.
6. PW3 ASI Omvir Singh is the Duty Officer who registered the present FIR Ex. PW3/A and made endorsement Ex. PW3/B.
7. PW4 Ct. Anu Yadav took the sample liquor to the Excise Office.
FIR No: 254/15 state v. vijay kumar Page No.3/8
8. PW5 ASI Jagbir Singh prepared the charge sheet in the present case and filed it in the Court.
9. After completion of prosecution evidence, all the incriminating evidence was put to accused U/s 313 Cr.P.C and his explanation was recorded, wherein he denied all the incriminating evidence against him.
10. I have heard Ld. APP for the State, Ld. Counsel for accused and have carefully gone through the material on record.
11. It is submitted by Ld. counsel for the accused that the testimonies of the witnesses examined on record do suffer from material contradictions and inconsistencies which go to the very root of case of the prosecution making it unbelievable and testimonies of the prosecution witnesses untrustworthy.
FIR No: 254/15 state v. vijay kumar Page No.4/8
12. PW1 Ct. Praveen Kumar deposed in his cross examination that he along with PW2 Ct. Har Pawan Jeet departed from the Excise Office at about 10:00 AM in the private car of Ct. Har Pawan Jeet, make Santro and that the secret information was given by the secret informer on 16.02.2015 whereas PW2 Har Pawan Jeet deposed in his cross examination that he along with PW1 Ct. Praveen Kumar came at the spot at about 11:30 am on his private motorcycle and that the said information was given by the secret informer on 17.02.2015. Further, PW1 deposed that Ct. Mahesh went to PS with rukka at about 1:40 PM on foot in his presence and he came back at the spot at about 2:20 PM on foot whereas PW2 deposed that Ct. Mahesh went to PS on motorcycle in his presence and came back at the spot on the said motorcycle. PW1 deposed that they had gone their Excise Office after completion of investigation from the spot whereas PW2 deposed that they had gone to PS Bindapur after completion of investigation from the spot. Further, PW6 FIR No: 254/15 state v. vijay kumar Page No.5/8 SI Shakti Singh deposed in his cross examination that he prepared seizure memo, notice u/s 41A Cr.P.C in his handwriting and site plan and Form M-29 were prepared by Ct. Mahesh on his instructions whereas PW1 Ct. Praveen Kumar deposed that all documents were prepared by the IO in his own handwriting. It is further pertinent to mention here that as per PW6 SI Shakti Singh accused was relieved from the spot at about 5/5:30 pm whereas time in the notice u/s 41A Cr.P.C Ex. PW6/D was mentined as 3:00 PM. In view of above material contradictions, the fact that IO knew the accused prior to the date of incident, false implication of the accused cannot be ruled out. In a case titled as State of UP Vs. Vallabdas, AIR 1985 SC 1384, it was observed that -
If there are any material discrepancy and if the discrepancy go to the root of the case/matter, they will have some bearing on the prosecution case.
13. The case of the prosecution is further seen with doubt for the reason that though the accused has been FIR No: 254/15 state v. vijay kumar Page No.6/8 apprehended with the case property from a place where there were residential houses and public persons were passing through 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 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.
14. In view of the above discussion, it is held that prosecution miserably failed to prove its case against the FIR No: 254/15 state v. vijay kumar Page No.7/8 accused beyond reasonable doubt. Resultantly, accused is acquitted of the charged offences. Digitally signed by KISHOR KISHOR KUMAR KUMAR Date:
2018.06.22 15:46:15 +0530 Dictated & Announced in Open Court (Kishor Kumar) On the 22nd day of June, 2018 MM-03/South-West/Delhi 22.06.2018 FIR No: 254/15 state v. vijay kumar Page No.8/8