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2002 DIGILAW 1255 (PNJ)

Krishan Chander v. State Of Haryana

2002-11-20

AMARBIR SINGH GILL

body2002
Judgment Amar Bir Singh Gill, J. 1. Petitioner Krishan Chander was convicted for the offence under Section 9 of the Opium Act, 1878 and sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs. 500/- in default of payment of fine to further undergo rigorous imprisonment for two months. His appeal against the judgment of the trial Court was dismissed. 2. The petitioner was prosecuted before the trial Court on the allegations that on 3.5.1984 at about 2.30 p.m. Sub Inspector Phool Chand along with his police party was present near railway crossing, Karnal. In the meantime, Hari Chand also came there. Meanwhile, the petitioner alighted from a bus and noticing the presence of the police, he started running which raised suspicion against him and the police party apprehended him. His personal search revealed that he was having in his possession opium which on weighing came to be 1100 grams. 10 grams out of it was separated as a sample and made into a sealed parcel. The remaining bulk was taken into possession in a sealed parcel. Intimation was sent to the police station on the basis of which case was registered against the petitioner under the Opium Act. The prosecution produced PW1 Sub Inspector Sewa Singh, PW2 Hari Chand, PW3 Sub Inspector Phool Chand and PW4 Sub Inspector Narpat Singh. 3. Learned counsel for the parties have been heard. 4. It is mainly contended that the case of the prosecution was not free from doubt and the trial Court as well as the first appellate Court had drawn wrong conclusion on the evidence adduced by the prosecution. Firstly, it was highlighted that PW Hari Chand, the sole independent witness, did not support the prosecution case and turned hostile. Despite cross- examination by the Public Prosecution, he did not support the case of the prosecution at all. Secondly, the recovery said to have been effected on 3.5.1984 whereas PW 1 Sub Inspector Sewa Singh stated that on 03.08.1984 the petitioner was apprehended. Besides, the affidavit of formal witnesses cannot be read into evidence as these are not in accordance with section 297 of the Code of Criminal Procedure. 5. Secondly, the recovery said to have been effected on 3.5.1984 whereas PW 1 Sub Inspector Sewa Singh stated that on 03.08.1984 the petitioner was apprehended. Besides, the affidavit of formal witnesses cannot be read into evidence as these are not in accordance with section 297 of the Code of Criminal Procedure. 5. After considering the contentions so raised, this Court is of the opinion that in cases where the conviction is sought entirely on the basis of the testimony of official witnesses, every discrepancy which can be considered as contradiction assumes importance, more so when the public witness stated to have witnessed the recovery do not support the official witnesses. The case of the prosecution is that the recovery of opium was effected on 03.05.1984 whereas PW 1 Sub Inspector Sewa Singh has stated that it was on 03.08.1984. He was examined 26.10.1987 and cannot be expected that he made the statement just from memory. He must have gone through the police file and had made statement after refreshing his memory before coming to the witnessbox. It totally contradicts the prosecution case that recovery of opium was effected on 3.5.1984. It cannot be termed as mere slip of tongue. Not only this, there is other legal flaw in the prosecution case. This link evidence has gone against the case of the prosecution. Head Constable Surat Singh posted in the Police Station City Karnal with whom in case property was deposited by the Investigating Officer i.e. the sealed sample as well as the sealed remainder opium, in his affidavit Exhibit PA had stated that on 3.5.1984 Sub Inspector Phool Chand had handed over the sealed sample of poppy straw relating to the FIR of this case which, according to him, he subsequently entrusted to Constable Chander Mohan. Constable Chander Mohan in his affidavit Exhibit PB has stated that he had taken the sample of opium. Head Constable Surat Singh was the first person with whom the case property was deposited entrusted to. He has categorically stated in his affidavit Exhibit PA that it was parcel of poppy husk. Besides, these two affidavits Exhibits PA and PB of Head Constable Surat Singh and Constable Chander Mohan respectively are not sworn in accordance with the requirements of section 297 of the Code of Criminal Procedure. It simply mentions that he had sworn the affidavit on his knowledge and belief. Besides, these two affidavits Exhibits PA and PB of Head Constable Surat Singh and Constable Chander Mohan respectively are not sworn in accordance with the requirements of section 297 of the Code of Criminal Procedure. It simply mentions that he had sworn the affidavit on his knowledge and belief. It does not refer to any part of the affidavit which he had sworn on the basis of his personal knowledge or any other part he had sworn on his belief. Thus, these two affidavits cannot be given any evidenciary value in view of the law laid down by this Court in the case of State of Punjab v. Leela Singh, 1991 (3) Recent Criminal Reports 306. A Division Bench of this Court held as under "We have gone through the record of the case and we find that the necessary link evidence is other defective in law. Exhibit PE is the affidavit of MHC Darbara Singh and Exhibit PF is the affidavit of Constable Sukhdev Singh. Both these affidavits bear the verification that the contents of the affidavits were correct. It is not mentioned therein which part of the affidavit was correct according to the knowledge and which part belief. Thus the affidavits being ignored from consideration, the prosecution has failed to bring home the guilt of the accused by connecting the incriminating article with him. Thus we find no ground to interfere with the order of acquittal recorded by the Magistrate." Similar was the view expressed by this Court in the case of Kewal Singh alias Keba v. State of Punjab, 1994(1) Recent Criminal Reports, 243. Therein, it was held as under :- "In the instant case the affidavits of formal witnesses are not properly verified and as such this evidence is to be discarded from consideration. In the absence of link evidence, it cannot be said that the sample taken from the alleged recovered substance remained intact and was not tampered with till it was deposited in the office of the Chemical Examiner. The case of the petitioner is thus rendered suspicious and conviction of the petitioner cannot be maintained." After the prosecution closes its case, the incriminating piece of evidence appearing in the prosecution evidence is required to be put to the accused for his explanation under section 313 of the Code of Criminal Procedure. The case of the petitioner is thus rendered suspicious and conviction of the petitioner cannot be maintained." After the prosecution closes its case, the incriminating piece of evidence appearing in the prosecution evidence is required to be put to the accused for his explanation under section 313 of the Code of Criminal Procedure. Any such incriminating circumstance which is not put to the accused for his explanation cannot be used against him as a piece of evidence. Interestingly, besides that, affidavits Exhibits PA and PB and defects on the face of it, affidavit Exhibit PA refers to the parcel of poppy husk instead of opium, this evidence although has been considered for passing conviction of the accused-petitioner was not put to him for his explanation when he was examined under section 313 of the Code of Criminal Procedure. Such evidence has to be excluded from the evidence in view of the law laid down by the Supreme Court in the case of Sharad Birdhichand v. State of Maharashtra, AIR 1984 SC 1622, wherein it has been ruled that the circumstances appearing on record against an accused which were not put to him in his examination under section 313 of the Code of Criminal Procedure are to be completely excluded from consideration. Keeping in view the settled proposition in respect of the evidence of formal character on affidavit and its acceptance in evidence, firstly, the affidavit has to be sworn as per the requirement of section 297 of the Code of Criminal Procedure and such affidavit containing incriminating circumstance is required to be put to the accused person for his explanation under section 313 of the Code of Criminal Procedure. Both these requirements are lacking in this case. The link evidence in respect of the custody of opium and sample till it reached the hands of the Chemical Examiner is not part of the evidence in this case and the case of the prosecution against the petitioner was not proved beyond every shadow of doubt. He is entitled to acquittal on this score alone. This revision petition is accordingly allowed. The conviction and sentence of the petitioner under section 9 of the Opium Act, 1878 , is set aside. He shall stand discharged from the bail bonds in this case.