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2000 DIGILAW 310 (PNJ)

Jaswant Singh @ Jassa Singh v. State of Punjab

2000-03-16

M.L.SINGHAL

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ORDER M.L. Singhal, J. - The prosecution case, in brief, is that on 19.7.85, police party comprising HC Baldev Singh and Constable Nirmal Singh etc. headed by HC Lajpat Singh was going from village Kamboh Dahewala towards village Chamba Kalan on cycles. It was about 7 A.M. When they reached near river Beas, Jaswant Singh alias Jassa accused was seen going at a distance of 50 yards carrying something in a gunny bag on his head. At the sight of the police party, he threw away that gunny bag and himself jumped into river Beas and succeeded in making good escape. HC Lajpat Singh and other members of the police party comprising it had identified him that he was Jaswant Singh alias Jassa son of Puran Singh, Jat of Village Ruriwala. They had known him since before. HC Lajpat Singh found that gunny bag containing rubber tube which was found containing illicit liquor. Out of recovered liquor, one nip measuring 100 MLs was taken out as sample. Remaining liquor was transferred in a tub. Liquor was measured with a bottle. It measured 69 bottles, which became filled with liquor to the brim. 70th bottle became filled with liquor to the extend of 570 MLs. After measuring liquor, the same was transferred in the same tube. Nip and the tube were sealed with seal of HC Lajpat Singh bearing impression LS. Nip and tube were taken into possession vide recovery memo Ex. PA attested by HC Lajpat Singh, HC Baldev Singh and Constable Nirmal Singh. Visual site plan Ex.PC was prepared at the spot with correct marginal notes. Ruqa Ex.PB was sent to Police Station, Harike for the registration of case against the accused, on the basis of which, case FIR No. 169 was registered at Police Station, Harike against the accused on 19.7.85. On return to the Police Station the same day, HC Lajpat Singh deposited the nip and the tube containing illicit liquor with seals intact with MHC Dhir Singh. Sample was sent to the Chemical Examiner for chemical examination per Constable Daljit Singh on 22.7.85. Chemical Examiner vide report Ex.PD reported that the sample was containing illicit liquor. After investigation, Jaswant Singh alias Jassa accused was challaned. 2. Jaswant Singh alias Jassa accused was charged under Section 61(1)(a) of the Punjab Excise Act by Judicial Magistrate Ist Class, Patti vide order dated 12.3.86. Chemical Examiner vide report Ex.PD reported that the sample was containing illicit liquor. After investigation, Jaswant Singh alias Jassa accused was challaned. 2. Jaswant Singh alias Jassa accused was charged under Section 61(1)(a) of the Punjab Excise Act by Judicial Magistrate Ist Class, Patti vide order dated 12.3.86. He pleaded not guilty to the charge and claimed trial. 3. At the conclusion of the trial, charge was found proved against him vide order dated 1.6.87 by Judicial Magistrate Ist Class, Patti, who convicted him thereunder and sentenced him to undergo rigorous imprisonment for one year and to pay fine of Rs. 1000/-. In default of payment of fine, he was ordered to further undergo rigorous imprisonment for 4 months. Jaswant Singh alias Jassa accused went in appeal to the Court of Session. Additional Sessions Judge, Amritsar found conviction and sentence in order. He, accordingly, affirmed the conviction and also the sentence vide order dated 28.4.88. 4. Still not satisfied, Jaswant Singh alias Jassa accused was knocked the door of this Court through this revision. I have gone through the record. 5. Accused was not apprehended at the spot. As per HC Lajpat Singh and HC Baldev Singh PWs, they sighted him when they were at a distance of 50 yards with gunny bag containing something being carried by him on his head when he was near river Beas and at their sight, he threw away that gunny bag and himself jumped into river Beas and succeeded in making good escape. Now the question arises whether it was Jaswant Singh alias Jassa accused, who had run away from the spot at the sight of HC Lajpat Singh etc. or it could be some body else and HC Lajpat Singh etc. labouring under mistaken identity became around the accused and challaned him. In my opinion, the possibility that HC Lajpat Singh etc. labouring under mistaken identity became around the accused and challaned him cannot be ruled out. HC Lajpat Singh had not known the accused much earlier. He has simply stated that he had raided the house of the brother of the accused, who was an absconder where he had seen him the accused. labouring under mistaken identity became around the accused and challaned him cannot be ruled out. HC Lajpat Singh had not known the accused much earlier. He has simply stated that he had raided the house of the brother of the accused, who was an absconder where he had seen him the accused. There is no evidence that HC Lajpat Singh had ever raided the house of the brother of the accused and assuming that he had raided the house of the brother of the accused, there is no evidence that accused was residing with him or that he was incidently in his house at that moment. If HC Lajpat Singh had a casual look for 2/4 minutes at the accused during the course of those raids, it cannot be said with certainty that he had clear imprint of his identity and he could have retained that imprint in his memory thereafter. HC Lajpat Singh stated that brother of the accused was an absconder and he raided his house 2/4 times with a view to apprehend him. He was also required in connection with a liquor case. No wonder, liquor was planted on the accused, so that his brother felt coerced into appearing before the police, who was absconder. There is touch of improbability so far as the prosecution case is concerned. If the accused had seen the police party, in my opinion, there could be no hitch in his jumping into the river with the said gunny bag. HC Baldev Singh PW has simply stated that he had seen the accused once or twice earlier. He had no acquaintance with him. He had never talked to him. He had never arrested the accused. HC Baldev Singh has thus not given any cogent explanation about the fact that it was the accused and none else but the accused who had run away and jumped into the river with a gunny bag on his head that day. Learned Courts below should not have accepted such a feeble evidence produced by the prosecution as to identity of the accused. 6. Prosecution case was not free from doubt. Benefit of doubt should have been given to the accused. Learned Courts below should not have accepted such a feeble evidence produced by the prosecution as to identity of the accused. 6. Prosecution case was not free from doubt. Benefit of doubt should have been given to the accused. It lay upon the prosecution to prove that it was the accused and none else but the accused ran away at their sight and jumped into the river with a gunny bag carrying liquor on his head and this fact the prosecution has failed to prove to the hilt on the mere ipse dixit of the PWs. who are police officials interested in the success of the case detected by them. Court cannot play with the liberty of an individual. 7. For the reasons given above, this revision succeeds and is accepted and the petitioner is acquitted of the charge levelled against him. Fine, if paid, shall be refunded to him. Revision allowed.