Delhi District Court
Smt. Maya vs The State (N. C. T Of Delhi) on 17 March, 2018
IN THE COURT OF Dr. KAMINI LAU: SPECIAL JUDGE
(P.C. ACT) CBI01 (CENTRAL):TIS HAZARI COURTS: DELHI
Criminal Appeal No. 04/2018
Smt. Maya
W/o Roshan Lal
R/o H. No. 10605, Gali No. 6,
Adha Mughal, Pratap Nagar,
Delhi110 007.
................ Appellant
VERSUS
The State (N. C. T of Delhi)
.............. Respondent
Date of Institution : 31.01.2018
Judgment Reserved on : 17.03.2018
Judgment Pronounced on : 17.03.2018
JUDGMENT:
(1) This criminal appeal has been filed by the appellant Smt. Maya against the impugned Judgment dated 21.12.2017 and Order on Sentence dated 04.01.2018 passed by the Ld. MM in case titled "State vs. Maya" vide FIR No. 76/12 (New Case No. 292484/16) of Police Station Gulabi Bagh under Section 33 Delhi Excise Act, thereby sentencing the appellant simple imprisonment for a period of three years and fine of Rs.50,000/ and in default of payment of fine to undergo further simple imprisonment for a period of two months (with benefit of Section 428 Cr.PC).
Smt. Maya Vs. State (Crl. Appeal No. 4/18) Dated 17.03.2018 Page No. 1/11(2) The brief facts of the case are that on 11.08.2012 at about 07.40. AM, opposite 10605, Gali No. 6, Pratap Nagar, Delhi, the accused Maya was found in possession of 62 quarter bottles of illicit liquor on which "For sale in Haryana only, Jogila Santra 180 ml, Frost Falcon Distilleries Limited, village Johari, Distt. Sonepat, Haryana" was written, without any licence or permit and thus she committed an offence punishable under Section 33/38 of Delhi Excise Act.
(3) On the basis of a complaint, present case was registered and after carrying out the investigation, charge sheet was filed before the Ld. MM. The accused Maya was summoned and after compliance of Section 207 Cr.PC, charge under Section 33 of Delhi Excise Act, was framed against accused Maya on 24.08.2013.
(4) In order to prove its case, the prosecution examined as many as six witnesses i.e. W/Ct. Anjela (PW1), Ct. Shri Kant (PW2), SI Sanjay Kumar (PW3), ASI Naresh Kumar (PW4), ASI Bhim Singh (PW5) and SI Vimal Dutt (PW6).
(5) After completion of the prosecution evidence, statement of accused under Section 313 Cr.PC was recorded wherein all the incriminating evidence was put to the accused which she denied and pleaded innocence but opted not to lead any evidence in her defence.
(6) After considering the evidence which has come on record, vide impugned Judgment dated 21.12.2017 the Ld. MM has convicted the accused under Section 33 of Delhi Excise Act and vide impugned order on sentence dated 04.01.2018 sentenced her simple imprisonment for a period of three years and fine of Rs.50,000/ and in default of payment of fine to undergo further Smt. Maya Vs. State (Crl. Appeal No. 4/18) Dated 17.03.2018 Page No. 2/11 simple imprisonment for a period of two months (with benefit of Section 428 Cr.PC).
(7) Now aggrieved by the impugned judgment and order on sentence, the convict Maya has approached this court by way of this appeal on the following grounds:
That the Ld. Trial Court has failed to consider that facts that no proper opportunity of cross examination of witnesses was granted to the appellant.
That Ld. Trial Court has failed to consider the facts that there are gross contradiction in the statements of witnesses under Section 161 Cr.PC as well as in their examinationinchief. That the prosecution has failed to prove its case against the appellant, at its first instance and there are gross contradictions and improvement even in the statement of witnesses. That the Ld. Trial Court has failed to consider the facts that the place of alleged incident is thickly populated area but the police failed to made any eye witness to the incident. That the Ld. Trial Court has failed to appreciate the facts that the appellant was called to the police station and thereafter roped in this case as she refused to fulfill the illegal gratification of the accused persons.
That the Ld. Trial Court has failed to consider the plea of the appellant that the appellant is old aged lady of and she cannot carry on the weight of such 62 quarters on her body rather she is ill and infirm lady suffering with various old aged deceased.Smt. Maya Vs. State (Crl. Appeal No. 4/18) Dated 17.03.2018 Page No. 3/11
That Ld. Trial Court has failed to appreciate the facts in I. O. intentionally did not lodge the statement of any public witnesses rather the place of incident always remained crowded. That the Ld. Trial Court has failed to appreciate the facts there is nothing on record to suggest that appellant was having the bag with 62 quarters of illicit liquor rather the alleged recovery planted in the police station.
That the Ld. Trial Court has failed to appreciate the facts that the appellant has already suffered a lot by facing the trial for last more than five years.
That the prosecution has failed to prove its case beyond reasonable doubt.
That the impugned judgment has been passed on the basis of general presumption and not going properly through the evidence which has come on record which consist of lots of improvements and contradictions and hence the impugned judgment and order on sentence are liable to the set aside.
That the Ld. Trial Court has failed to appreciate the facts that the appellant is a old aged lady and is looking after the affairs of her family.
(8) A detailed reply to the appeal has been filed on behalf of the respondent State wherein all the grounds raised by the appellant are denied and it is submitted that the impugned judgment and order on sentence suffer from no illegality and have been passed by the Ld. MM after due application of mind and taking in to consideration all the available material on record and relevant Smt. Maya Vs. State (Crl. Appeal No. 4/18) Dated 17.03.2018 Page No. 4/11 case law. It is submitted that proper opportunity had been granted to the appellant to cross examine the prosecution witnesses and hence the plea of the appellant that proper opportunity of cross examination was not granted, is not sustainable. It is submitted that there are sufficient evidence on record for conviction of the appellant / accused. Ld. Add. PP has placed his reliance upon the following judgments :
"Sukhdev Yadav & Ors. Vs. State of Bihar" reported in (2001) 8 SCC 86, "Leelaram Vs. State of Haryana" reported in (1999) 9 SCC 525 Ramani Vs. State of M. P." reported in (1999) 8 SCC 649.
"V. K. Mishra & Anr. Vs. State of Uttarakhand & Anr." (Cril.
Appeal No. 1247/2012).
Ambika Prasad & Anr. Vs. State (2002) 2 SCC 646.
(9) I have considered the rival contentions and at the very Outset I may note that the appellant / accused is not only a habitual offender as per the report submitted by the Prosecution but has also been declared a Bad Character (BC) of the area being involved in 41 cases relating to Delhi Excise Act, NDPS and even Indian Penal Code. She has already been convicted in 18 cases. The details of her involvement are as under:
S. No FIR No. Date Under Section Police Station Present Status
1. 126/90 22.11.90 61/1/14 Excise Act Partap Nagar Acquitted on 29.01.98
2. 134/94 02.09.94 61/1/14 Excise Act Partap Nagar Acquitted on 13.08.96
3. 207/94 22.12.94 61/1/14 Excise Act Partap Nagar Acquitted on 10.06.03
4. 32/95 16.03.95 61/1/14 Excise Act Partap Nagar Acquitted on 05.05.04
5. 69/95 13.06.95 61/1/14 Excise Act Partap Nagar Acquitted on 08.07.97 Smt. Maya Vs. State (Crl. Appeal No. 4/18) Dated 17.03.2018 Page No. 5/11
6. 107/96 09.06.96 61/1/14 Excise Act Partap Nagar Acquitted on 06.07.97
7. 202/96 10.10.96 61/1/14 Excise Act Partap Nagar Acquitted on 28.04.06
8. 51/97 27.01.97 61/1/14 Excise Act Partap Nagar Convicted on 03.06.08 (Fine 1000 Rs. & 1 days S.I.
9. 191/97 03.08.97 61/1/14 Excise Act Partap Nagar Acquitted on 23.04.10
10. 232/97 05.10.97 61/1/14 Excise Act Partap Nagar Acquitted on 25.02.10
11. 240/97 19.10.97 61/1/14 Excise Act Partap Nagar Convicted on 03.09.07 (Fine 350 Rs. & 4 days S.I.
12. 99/98 22.06.98 61/1/14 Excise Act Partap Nagar Acquitted on 11.04.07
13. 201/98 14.11.98 61/1/14 Excise Act Partap Nagar Convicted on 13.08.08 (Fine 3500 Rs.)
14. 212/200 28.09.20 61/1/14 Excise Act Kanjhawla 0 00
15. 90/01 18.06.01 160 IPC Partap Nagar Convicted on 13.08.01 (Fine 100 Rs.)
16. 32/02 17.03.02 61,68/1/14 Excise Partap Nagar Convicted on 06.08.08 Act (Fine 1000 Rs.)
17. 52/02 24.04.02 325/34 IPC Partap Nagar Compromised on 30.03.10
18. 102/02 02.08.02 61,68/1/14 Excise Partap Nagar Pending Trial Act
19. 144/02 02.10.02 61/1/14 Excise Act Partap Nagar Convicted on 28.05.10 (Fine 2000 Rs.)
20. 82/03 07.06.03 61,68/1/14 Excise Partap Nagar Convicted on 07.12.07 Act (Fine 300 Rs. & 6 days S.I.)
21. 166/03 30.10.03 61/1/14 Excise Act Partap Nagar Convicted on 12.06.08 (Fine 1000 Rs.)
22. 56/04 07.03.04 61/1/14 Excise Act Partap Nagar Convicted on 22.10.11 (Fine 1000 Rs. & 10 days S.I.)
23. 183/04 22.09.04 61,68/1/14 Excise Partap Nagar Convicted on 12.10.04 Act Smt. Maya Vs. State (Crl. Appeal No. 4/18) Dated 17.03.2018 Page No. 6/11 (Fine 100)
24. 185/05 19.09.05 61/1/14 Excise Act Partap Nagar Convicted on 13.02.08 (Fine 900 Rs. & 18 days S.I.)
25. 198/06 24.10.06 61/1/14 Excise Act Partap Nagar Convicted on 28.01.08 (Fine 900 Rs. 18 days S.I.)
26. 61/07 30.03.07 61/1/14 Excise Act Partap Nagar Convicted on 10.11.09 (Fine 400 Rs.)
27. 98/07 23.05.07 323/341/34 IPC Partap Nagar Acquitted on 20.09.17
28. 20/08 09.03.08 61/1/14 Excise Act Gulabi Bagh Convicted on 09.05.08 (Fine 750 Rs. & 1 day S.I.)
29. 106/08 19.10.08 61/1/14 Excise Act Gulabi Bagh Convicted on 24.10.10 (Fine 400 Rs.)
30. 26/09 23.03.09 61/1/14 Excise Act Gulabi Bagh Convicted on 08.12.09 (Fine 1500 Rs.)
31. 01/10 09.01.10 61/1/14 Excise Act Gulabi Bagh Convicted on 16.11.10 (Fine 1600 Rs.)
32. 43/10 22.06.10 61/1/14 Excise Act Gulabi Bagh Convicted on 25.07.11 (Fine 300 Rs. 3 days S.I.)
33. 03/11 09.01.11 33 Delhi Excise Act Gulabi Bagh Acquitted on 10.11.14
34. 57/12 26.02.12 33 Delhi Excise Act Gulabi Bagh Pending Trial
35. 76/12 11.08.12 33 Delhi Excise Act Gulabi Bagh Pending Trial
36. 128/13 23.10.13 33 Delhi Excise Act Gulabi Bagh Pending Trial
37. 135/14 21.08.14 33 Delhi Excise Act Gulabi Bagh Pending Trial
38. 98/14 19.09.14 21,29 NDPS Act Crime Branch Pending Trial
39. 88/16 07.06.16 33 Delhi Excise Act Gulabi Bagh Pending Trial
40. 33/17 14.04.17 33 Delhi Excise Act Gulabi Bagh Pending Trial
41. 151/17 21.11.17 33 Delhi Excise Act Gulabi Bagh Pending Investigation (10) Secondly, the perusal of the Trial Court record confirms that despite Smt. Maya Vs. State (Crl. Appeal No. 4/18) Dated 17.03.2018 Page No. 7/11 being granted ample opportunity, the appellant / accused did not cross examined DO / ASI Naresh Kumar (PW4), MHCM / ASI Bhim Singh (PW5) and Second IO / SI Vimal Dutt (PW6) and had only cross examined W/Ct.
Anjela (PW1), Ct. Shri Kant (PW2) and SI Sanjay Kumar (PW3). The record further reveals that no application under Section 311 Cr.PC was ever moved by the appellant / accused before the Ld. Trial Court and the testimonies of DO / ASI Naresh Kumar (PW4), MHCM / ASI Bhim Singh (PW5) and Second IO / SI Vimal Dutt (PW6) have gone unrebutted. However, now when the appeal is at the stage of final orders, a vague application under Section 391 Cr.PC was filed on behalf of the appellant / accused seeking permission to examine witnesses in defence details of which witnesses has not been mentioned and this is despite the fact that the appellant / accused in her statement under Section 313 Cr.PC clearly stated that she did not want to examine any witness. This application has been dismissed vide a separate detailed speaking order there being no merits in the same and being an attempt to fill up the lacuna in the case.
(11) Thirdly SI Sanjay Kumar (PW3) has specifically confirmed that on 11.08.2012 at about 07:30 AM he along with Ct. Sri Kant was on Picket and Patrolling Duty at Gali No. 2, Metro Station, Pratap Nagar, when a secret informer met him and informed him that one lady namely Maya was selling illicit liquor in front of her house bearing No. 10605, Gali No. 6, Pratap Nagar. Thereafter, they tried to join public witnesses who refused to join and left without disclosing their names and addresses. He also deposed that thereafter he along with Ct. Sri Kant reached the spot and saw the appellant / accused Maya was sitting on a wooden cot (takhat) in front of her house and was hiding Smt. Maya Vs. State (Crl. Appeal No. 4/18) Dated 17.03.2018 Page No. 8/11 something under the side of her right hand beneath a cloth and when the cloth was removed there was a bag which was found containing 62 quarter bottles containing illicit liquor on which "sale only in Haryana" was written. Thereafter, he (SI Sanjay Kumar) informed the Duty Officer on Wireless message upon which IO SI Vimal Dutt along with W/Ct. Anjela came at the spot and the recovered bottles of illicit liquor were seized vide memo Ex.PW1/DB.
(12) Fourthly the various prosecution witnesses i.e. W/Ct. Anjela (PW1), Ct. Shri Kant (PW2) and SI Sanjay Kumar (PW3) have corroborated each other on material particulars in toto without any material contradiction in their testimonies and the contradictions if any, relating to the time, words written on the liquor bottles, etc., are minor in nature and are not fatal to the prosecution case (Reference in this regard is made to the Judgments in the cases of "Sukhdev Yadav & Ors. Vs. State of Bihar" reported in (2001) 8 SCC 86, "Leelaram Vs. State of Haryana" reported in (1999) 9 SCC 525 and Ramani Vs. State of M. P." reported in (1999) 8 SCC 649) wherein the Hon'ble Supreme Court has observed that there are bound to be certain discrepancies between the narrations of different witnesses when they speak on detail and unless contradictions are of material dimensions, the same should not be used jettison the evidence in its entirety.
(13) Fifthly I note that the contradictions and improvements which have now being pointed out, have never been specifically put to the witnesses nor they have been confronted with the same in terms of the provisions of Section 145 of Indian Evidence Act and Section 162 of Cr.PC and hence the plea raised Smt. Maya Vs. State (Crl. Appeal No. 4/18) Dated 17.03.2018 Page No. 9/11 by the appellant / accused is unsustainable (Reference in this regard is made to the judgment in the case of "V. K. Mishra & Anr. Vs. State of Uttarakhand & Anr." (Cril. Appeal No. 1247/2012).
(14) Sixthly in so far as the arguments raised by the appellant / accused with regard to the nonjoining of public witnesses, I may observe that there is no illegality since an explanation is forthcoming and it has been specifically confirmed by the prosecution witnesses i.e. Ct. Sri Kant (PW2) and SI Sanjay Kumar (PW3) that they made attempts to join public witness who showed their reluctance to to join the proceedings. I may observe that this reluctance of general public is a matter of common knowledge. The pious cause of justice cannot be abandoned due to the general apathy and callousness of the common men (Reference in this regard is made to the judgment in the case of Ambika Prasad & Anr. Vs. State (2002) 2 SCC 646).
(15) Seventhly in so far as the defence of the appellant / accused that she had been called to the police station and thereafter roped in the present case is concerned, the said defence has never been put to the witnesses during the trial and this defence has been raised by the appellant / accused for the first time. Neither any suggestion has been put to any of the witnesses in their cross examination nor the appellant / accused had led any evidence in her defence to prove the same in the form of any complaint given to any higher authorities and hence I find no merits in the same.
(16) Lastly, I may observe that the case property has been duly produced in the Trial Court and identified by the material witnesses of recovery namely W/Ct. Anjela (PW1) and Ct. Shri Kant (PW2) and no suggestion whatsoever Smt. Maya Vs. State (Crl. Appeal No. 4/18) Dated 17.03.2018 Page No. 10/11 has been made to these witnesses with regard to false implication of accused. In this background, I find no illegality in the impugned judgment dated 21.12.2017 which is hereby upheld.
(17) Next coming to the aspect of sentence. I may observe that the appellant / accused is a habitual offender. She is the Bad Character (BC) of the area and is involved in as many as 41 cases relating to the Delhi Excise Act and has been convicted in 18 such cases. It is submitted by the Ld. Addl. PP for the State that under the given circumstances the sentence so awarded by Ld. Trial Court vide order dated 04.01.2018 cannot be said to be disproportionate in any manner. (18) I have considered the submissions made. The appellant / accused is an old lady of 61 years of age and has already suffered the agony of trial for the last five years. In view of the circumstances placed before me, in the interest of justice, the sentence so awarded by the Ld. Trial Court vide impugned order on sentence dated 04.01.2018, is hereby modified and the appellant / accused Maya is sentenced to Rigorous Imprisonment for a period of Two (02) Years. The fine so imposed by the Ld. Trial Court shall remained the same (i.e. Rs.50,000/) which already stands deposited. Benefit of Section 428 Cr.PC shall be given. The order on sentence dated 04.01.2018 is accordingly modified. The appeal is accordingly disposed off.
(19) The appellant / accused Maya is taken into custody to serve the remaining period of sentence. Trial Court record be sent back along with copy of the order. (20) Appeal file be consigned to Record Room.
Announced in the open Court (Dr. KAMINI LAU)
Dated: 17.03.2018 Spl. Judge (P.C. Act) CBI01
Digitally
signed by
KAMINI KAMINI (Central), Tis Hazari Courts, Delhi
LAU
Date:
LAU 2018.03.17
17:18:23
+0530
Smt. Maya Vs. State (Crl. Appeal No. 4/18) Dated 17.03.2018 Page No. 11/11