JUDGMENT - C.T. DIGHE, J.:---This is an application in revision presented by original accused Shankar Sayaba Bole against the order of the Sessions Judge, Nanded, dated 5-12-1975 confirming his conviction under section 85(1) of the Bombay Prohibition Act, 1949. Originally the learned trial Magistrate had convicted him to suffer rigorous imprisonment for one month and to pay a fine of Rs. 100/-. in default to undergo 15 days rigorous imprisonment. This sentence was reduced to imprisonment till rising of the Court and a fine of Rs. 50/- in default 15 days simple imprisonment. 2. According to the case for the prosecution, on 13th February, 1975, at about 18.00 hours the revision petitioner Shankar, who happened to be a Police Constable under suspension was found in a public place in front of the Police Headquarters at Nanded behaving in a disorderly manner under the influence of drink. It is alleged that the petitioner was abusing the Home Inspector and Magistrate Gaikwad. On behalf of the prosecution three witnesses were examined. There was also complaint, Exhibit 5, report of the Medical Officer, Exhibit 6, and the report of the Chemical analyser, Exhibit 7. The petitioner was acquitted under section 66(1)(b) of the Bombay Prohibition Act, as the report of the Chemical Analyser was found to be defective. However, relying on the oral evidence, the accused was convicted under section 85(1) of the Prohibition Act. 3. Gulabsing (P.W. 1), is Reserve Sub-Inspector, who stated that on 13-2-1975 at about 6.10 p.m. while he was seated in front of his office, Shankarrao and Narayanrao, Head Constables, were also there. He says that he saw the accused on the road in front of the office abusing Home Inspector Deshmukh and Magistrate Gaikwad. Therefore, the accused was apprehended and was sent to Vazirabad Police Station, from there to the Medical Officer and ultimately was charge-sheeted. The witness says that he saw the accused in drunken condition. He proved the complaint at Exhibit 5. In that Exhibit 5, Shankarrao has been referred to as the person listening to the abuses. Exhibit 5 is not mentioning that Shankarrao and Narayanrao were together with the complainant. 4. In cross-examination the witness suggested that he was on enmical terms with the accused because his application for leave given on 1-10-1974 was rejected. In that Exhibit 5, Shankarrao has been referred to as the person listening to the abuses. Exhibit 5 is not mentioning that Shankarrao and Narayanrao were together with the complainant. 4. In cross-examination the witness suggested that he was on enmical terms with the accused because his application for leave given on 1-10-1974 was rejected. The fact of rejection of the application is admitted, but the witness says that due to Emergency he was only the forwarding officer, and as such not concerned with the rejection proper. In cross-examination he says that he was busy doing the work and the two persons Shankarrao and Narayanrao gave him the intimation so that thereafter from that very place he saw the accused misbehaving. 5. Witness No. 2 is Shankarrao. According to him, he was on guard duty, along with other constables on duty, and Gulabsing was sitting in his office. He does not say that he, Narayanrao and Gulabsing were seated together. He further says that it was constable No. 60, who gave the information about the accused having been found drunk and abusing. Thus the version slightly differs from the version given by Gulabsing as to how the accused was initially spotted out. The witness has a case that thereafter Head Constable No. 511, probably thereby meaning Head Constable Narayanrao, himself and Gulabsing went to the gate of the compound and had a look at the accused. There again his story is slightly varying. They found that the accused was drunk. According to him, therefore, 2-3 recruits caught hold of the accused and brought him to the office. This last part is not stated by Gulabsing. 6. Now, an important development appears in the case of this witness, who is the only other witness examined in the case to speak of the occurrence. Narayanrao is not examined. No independent witness is examined and it appears that the prosecution was unable to produce any person other than the police personnel. Although the prosecution version is that the incident took place on 13-2-1975, the statement of this witness recorded in investigation is intriguing. The opening lines of this statement show that the incident took place on the day previous to the day on which the statement was recorded and the date of happening was 12-2-1975. Although the prosecution version is that the incident took place on 13-2-1975, the statement of this witness recorded in investigation is intriguing. The opening lines of this statement show that the incident took place on the day previous to the day on which the statement was recorded and the date of happening was 12-2-1975. This would give an impression that the incident took place on 12-2-1975 and the statement was recorded on 13-2-1975. At the top of the statement date 13-2-1975 appears, but is changed to 14-2-1975. Now, if the date is read as 14-2-1975, then the body of the statement speaking of the incident having happened on the previous day of the recording of the statement and on 12-2-1975 cannot be reconciled. This-will have to be understood on the background of the suggestion that the accused was under suspension and he had probably some ill-will towards Gulabsing. If this line of reasoning is appreciated, the absence of any witness other than the police personnel and the witnesses working under Gulabsing alone coming forward would be of tremendous significance. 7. Investigating Sub-Inspector Laxman Athawale speaks of the accused found drunk and under the influence of liquor on 13-2-1975 at about 6.15 p.m. He was taken to the Hospital in a police van, but he has a further story, which is not the case of any one, and not proved satisfactorily by the prosecution. According to him, while in the jeep, the accused was throughout abusing and he also happened to kick the witness. He adds that he had shown the part of the body where he suffered the assault to the Medical Officer. There is no whisper of such an incident having taken place during the investigation. It is not unlikely, therefore, that for some reason or the other, persons, working with Gulabsing may be supporting him in seeing that the accused is somehow trapped. If that type of doubt arises, the accused should be entitled to an acquittal. 8. In spite of the fact, therefore, that the finding of the Medical Officer is an favour of the prosecution and the certificate is dated 13-2-1975, I feel the accused ought to be given the benefit of doubt. The entire evidence read in this light would show miscarriage of justice. Interference in revision would, therefore, be justified. As such the following order is passed. 9. Rule is made absolute. The entire evidence read in this light would show miscarriage of justice. Interference in revision would, therefore, be justified. As such the following order is passed. 9. Rule is made absolute. The conviction of the accused-petitioner under section 85(1) is set aside. He be set at liberty. Bail bond cancelled. Fine, if paid, to be refunded. -----