Research › Search › Judgment

Punjab High Court · body

2002 DIGILAW 1275 (PNJ)

Puran Singh v. State Of Punjab

2002-11-21

AMARBIR SINGH GILL

body2002
Judgment Amar Bir Singh Gill, J. 1. Petitioner in this revision petition assails judgment dated 21.01.1988 passed by Sub Divisional Judicial Magistrate, Zira, convicting him of offence punishable under section 9 of the Opium Act, 1878 for his having been found in possession of 20 Kgs. of opium in the area of Aminwala on 13.02.1983 and was sentenced to rigorous imprisonment for 2.1/2 years and to pay a fine of Rs. 2000/-; in default of payment of fine to further undergo rigorous imprisonment for six months. The appeal against the aforesaid judgment was dismissed by Additional Sessions Judge, Ferozepur, vide judgment dated 01.07.1988. 2. In this revision petition, the learned counsel for the petitioner has highlighted the illegality in the procedure which adversely affected and prejudiced the defence of the petitioner. Besides that, recovery is not supported by any independent witness although there was sufficient opportunity with the police party to join some independent witness. The case property when produced in the trial Court could not be related to the alleged recovered constraband from the accused because the tin produced did not have any seal neither any case or FIR number besides the plea of the petitioner that he was detained by the police in the police station 2-3 days earlier to the alleged recovery and was tortured as well as given injuries on his person. When the petitioner was produced before the Magistrate, he moved an application upon which he was got medically examined under the orders of the Court and the doctor proved the injuries on his person received within 72 hours of the examination which covers the date of production of the petitioner before the Magistrate. 3. The first and the foremost contention of the counsel for the petitioner is that link evidence i.e. statements of Head Constable Tara Singh and Constable Hazara Singh who were entrusted with the case property in the police station and was taken to the Chemical Examiner, was initially adduced through affidavits but after defence evidence was recorded, in order to fill up the lacuna in the affidavits, prosecution moved an application for summoning of formal witnesses for their examination under section 296 of the Code of Criminal Procedure. The learned counsel contended that allowing the recording of statements of these two witnesses at late stage served the cause of the prosecution otherwise their testimony on affidavits was to be discarded as their affidavits were not in accordance with the provisions of section 297 of the Code of Criminal Procedure. The contention appears to be well merited. The prosecution closed its case on 24.02.1987, after tendering the affidavits of two witnesses, namely, Head Constable Tara Singh and Constable Hazara Singh. Thereafter the statement of the accused was recorded under section 313 of the Code of Criminal Procedure. But strange enough, these affidavits were not put to the petitioner in his statement under section 313 of the Code of Criminal Procedure as link evidence appearing on record against him. Thereafter, statement of DW1 Dr. J.S. Gujral was recorded who proved the medico-legal report Exhibit DA wherein he observed five blunt weapon injuries on the person of the petitioner though simple in nature. A reading of medico-legal report Exhibit DA shows that the injuries were on the left pinna, right side of fore-head, right side of cheek as well as on right and left buttocks. On 15.12.1987, an application was moved for examination of formal witnesses as aforesaid and they were so examined as subsequently another statement of the petitioner under section 313 of the Code of Criminal Procedure was recorded on 14.01.1988 but again link evidence produced through these two officials was not put to the petitioner for his explanation. It is well settled that any incriminting evidence which is not put to the accused under section 313 of the Code of Criminal Procedure for his explanation cannot be considered a part of the evidence and cannot be used against the accused person. Such evidence has to be excluded from the evidence in view of the law laid down by the Supreme Court in the case of Shard 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. 4. Admittedly, in this case link evidence is missing. 4. Admittedly, in this case link evidence is missing. It is not proved on the record if the opium allegedly recovered from the possession of the petitioner and sample taken out of it remained with seals intact till it reached the hands of the Chemical Examiner in the absence of which it cannot be safely accepted that the prosecution has proved its case beyond reasonable shadow of doubt. A Division Bench of this Court in the case of State of Punjab v. Leela Singh, 1991 (3) Recent Criminal Reports, 306, has 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 tamperd 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." 5. As aforesaid, the trial Court fell in error in allowing examination of formal witnesses after the close of prosecution case although it was on application under section 311 of the Code of Criminal Procedure for recalling or re-examination of the witnesses though their affidavits were already tendered and part of the record. As aforesaid, the trial Court fell in error in allowing examination of formal witnesses after the close of prosecution case although it was on application under section 311 of the Code of Criminal Procedure for recalling or re-examination of the witnesses though their affidavits were already tendered and part of the record. It is not disputed that the affidavits of these witnesses lack necessary verification as required under section 297 of the Code of Criminal Procedure and could not have been read in evidence. It was to remove that lacuna that re-examination of two police officials was asked for and the trial Court readily allowed. Be that as it may, even though such evidence has been brought on record, the same was not put to the petitioner in his statement under section 313 of the Code of Criminal Procedure as observed above. The accused person is to lead evidence in support of his plea which probablises his defence and is not required to prove the same beyond every shadow of doubt. According to the plea taken by the petitioner, he was detained by the police in the police station for 2-3 days prior to his production and was falsely involved in the case. He was tortured and caused injuries which injuries coincide according to the medical evidence with his plea as these could be received by him within 72 hours of the examination i.e. within three days. It is not the case of the prosecution that at the time of arrest and recovery, the petitioner was already having these injuries. No such note was given in the arrest memo or recovery memo. The observation of the trial Court that such injuries could have been received by the petitioner during scuffle at the time of arrest is entirely filling in the blanks of the prosecution case when there is no such evidence if the petitioner at the time of arrest has offered any resistance and he was overpowered and in that scuffle he had received the injuries. 6. Yet there is another lacuna in the case of the prosecution. As per its case, the police party was returning from village Rehrwan. According to the evidence, after the arrest of the accused, a Constable was sent to the village to bring tin etc., for reducing the opium into a sealed parcel. 6. Yet there is another lacuna in the case of the prosecution. As per its case, the police party was returning from village Rehrwan. According to the evidence, after the arrest of the accused, a Constable was sent to the village to bring tin etc., for reducing the opium into a sealed parcel. Strange enough, the policy party waited for the arrival of the Constable on the road side with the accused and did nothing to join any person to witness the recovery nor the Constable was asked to bring any witness from the village to attest the panchnama. It appears that since the case made out was of recovery of 20 Kgs., the Courts below fell in error to find out if the recovery of contraband has been squarely proved from the evidence on the record of if it was above board. Quantity of a contraband cannot substitute the requirement of formal proof of recovery beyond every shadow of doubt. 7. Lastly, the case property which, according to the prosecution, was sealed and kept in a tin did not carry any seal and the material was pouring out of the tin as has been observed by the trial Court. If due to any outside agency the sealed parcel was tampered with, the blame cannot be shifted to the petitioner and the proecution cannot be given the benefit of it. The prosecution witnesses could not by any certainty say if the material produced before the Court was the same which was recovered from the petitioner. The case of the prosecution, in the circumstances, is not free from any doubt and benefit of the same is available to the petitioner. The petitioner is given the benefit of doubt and is acquitted of the charge under section 9 of the Opium Act, 1878 , and his conviction and sentence accordingly is set aside. The bail bonds furnished by the petitioner during the pendency of the revision petition stand discharged.