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Himachal Pradesh High Court · body

2002 DIGILAW 259 (HP)

STATE OF H. P. v. VINOD KUMAR

2002-09-13

M.R.VERMA

body2002
JUDGMENT M.R. Verma, J.—This appeal has been preferred by the State against the judgment dated 11.1.2001, passed by the learned Additional Chief Judicial Magistrate, Dehra, whereby the respondent-accused (hereafter referred to as the accused) has been acquitted of a charge under Section 61(l)(a) of the Punjab Excise Act, 1914, as applicable to Himachal Pradesh (hereafter referred to the Act). 2. The prosecution case against the accused, in brief, is that on 22.4.1994, a police party headed by S.I. Puran Chand (PW-5) was moving towards village Bantungli in connection with patrol duty. When the police party reached near Ghagian bridge, the accused, who was holding a plastic cane in his hand, was noticed coming from the opposite side. On suspicion, he was apprehended and on checking, it was found that the plastic cane being carried by the accused contained liquor, which, on measurement was found worth three bottles of liquor. A sample was separated from the recovered liquor and thereafter the sample and the remaining liquor were sealed with seal impression T and after use the seal was handed over to Constable Gulzar Singh (PW-2), a member of the police party PW-5 prepared the recovery memo Ex. PW-2/A and the ruqua Ex. PA. The ruqua was sent to the police station where formal FIR Ex.PB was recorded. The sample was sent for chemical analysis and on such analysis, Assistant Chemical Examiner, C.T.L., H.P., Kandaghat, vide his report Ex.PC found that the sample was of illicit liquor. A charge sheet was then submitted against the accused, who came to be tried by the learned Additional Chief Judicial Magistrate, Dehra, on a charge under Section 61(l)(a) of the Act. 3. To prove the charge, prosecution-examined 5 witnesses. Statement of the accused under Section 313 Cr.P.C. was recorded, wherein he pleaded to be innocent and denied the prosecution case. He, however, did not lead any defence evidence. On the basis of the material on record, the learned trial Magistrate came to the conclusion that the prosecution had failed to bring home the guilt of the accused beyond reasonable doubts. Therefore, the accused was acquitted of the charge against him. Hence this appeal. . 4. I have heard the learned Deputy Advocate General for the State and M/s. Vijay Bhatia and B.N. Gupta, Advocates, who assisted this Court as Amicus Curiae and have also gone through the records. 5. Therefore, the accused was acquitted of the charge against him. Hence this appeal. . 4. I have heard the learned Deputy Advocate General for the State and M/s. Vijay Bhatia and B.N. Gupta, Advocates, who assisted this Court as Amicus Curiae and have also gone through the records. 5. It was contended by the learned Deputy Advocate General that in view of the cogent and reliable testimony of LHC Gulzar Singh (PW-2), LHC Resham Singh (PW-3) and S.I. Puran Chand (PW-5), it is fully established that the accused was found in conscious possession of the cane containing liquor and that this being a chance recovery, there is no question of joining any independent witness and the case of the prosecution cannot be disbelieved simply for the reason that all the witnesses examined by the prosecution are police officials. It was further contended that on analysis, the contents of the cane were found illicit liquor vide report Ex. PC of the Assistant Chemical Examiner and the charge was fully proved and the acquittal order is, thus, not sustainable and accused deserves to be convicted and sentenced for the commission of an offence punishable under Section 61(l)(a) of the Act. 6. On the other hand, it was argued for the accused that the statements of the witnesses examined by the prosecution are not reliable for the reason that all of them are official witnesses and it is more-so, because of the major contradictions in the statements of the prosecution witnesses. Therefore, while supporting the reasoning in the impugned judgment, it was urged that the impugned order of acquittal does not call for any interference. 7. The entire case of the prosecution is based on the statements of police officials and there is no independent witness. However, it cannot be said to be a case of deliberate and intentional non-joining of the independent witnesses because it is a case of chance recovery on the way. There is no rule of law that statements of police officials must be disbelieved simply for the reason that they are police officials. In law, they are as good witnesses as any independent witness. It is, however, a rule of caution that the statements of the official witnesses must be read with due care and caution. There is no rule of law that statements of police officials must be disbelieved simply for the reason that they are police officials. In law, they are as good witnesses as any independent witness. It is, however, a rule of caution that the statements of the official witnesses must be read with due care and caution. The statements of the witnesses in the case, therefore, are required to be examined with care and caution and if found to be cogent and reliable, a conviction can be based on their statements, but if there is any doubt about their veracity or if any other legal lapse is found to have been committed on the basis of the material on record, the acquittal order has to be maintained. 8. A perusal of the statements of PW-2, PW-3 and PW-5, who are the witnesses of the apprehension of the accused and the recovery of the liquor from the accused, reveals that there are contradictions in their statements. 9. The first contradiction is about the exact place where the accused was apprehended. According to PW-2, a person could be seen coming on the path only when he reached at a place at a distance of 100 meters from the place where the police party was and that the accused was noticed by the police party at a distance of 100 meters. However, according to PW-3, the person coming from the side, the accused was coming towards the police party could be seen when he had reached at a place at a distance of 2 or 3 yards from the place where the police party was present. According to PW-5, accused was noticed coming towards the police party when he was at a distance of 11/2 during from the place where the police party had reached at that time. 10. The other contradiction is that according to PW-2, the accused was apprehended by the Havildar (PW-3) whereas according to PW-3, the accused was apprehended by PW-2. Further more, according to ruqua Ex. PA, the accused, after seeing the police party, tried to run away whereas none of the PWs have stated so. 11. There is yet another contradiction in the version of the witnesses about the procurement of the nip and empty bottles on the spot. Further more, according to ruqua Ex. PA, the accused, after seeing the police party, tried to run away whereas none of the PWs have stated so. 11. There is yet another contradiction in the version of the witnesses about the procurement of the nip and empty bottles on the spot. According to PW-2, empty bottles and the nip were brought by PW-3 from the village which had 15 to 20 houses. Contrary to this, version of PW-3 is that empty bottles and the nip were brought by PW-2 from a nearby house. PW-5 has a different version. According to him, the nip was available with him. 12. Lastly, the statements of the witnesses are contradictory regarding possession of the seal used for sealing the case property. According to the contents of recovery memo Ex. PW-2/A, the seal used for sealing the case property, after use, was handed over to PW-2. So is stated by PW-3 and PW-5. However, PW-2 has stated that he could not produce the seal used for sealing the case property because it was with the investigating officer (PW-5) and remained with the investigating officer throughout. 13. It is true that minor contradictions, attributable to perception and conception of human being, have to be ignored while appreciating the statements of the witnesses. However, when a certain process in accordance with law is going on and is being witnessed by the witnesses, the contradictions in their statements about the execution of the process, are bound to create doubt about their veracity. It is more so, when there is not only one or two minor contradictions, but is a bundle of contradictions. The contradictions in the statements of the witnesses, as pointed out hereinabove, when read as a whole, are of the nature which create grave doubts about the version of the prosecution regarding recovery and seizure of the liquor in question from the possession of the accused. 14. As already pointed out hereinabove, though as per the contents of recovery memo Ex. PW-2/A, the seal after sealing the case property, was handed over to PW-2 and it is so stated by the investigating officer (PW-5) and PW-4, but this version is denied by PW-2, who himself is a police official and has stated that the seal used for sealing the case property remained with the investigating officer (PW-5) throughout and did not remain in his possession. Thus, there is no reliable evidence on record that the seal after having been used for sealing the case property, did not remain in possession of the investigating officer and he had no occasion to misuse the seal for tampering with the case property/sample thereof. 15. In view of the above discussion, it can safely be concluded that there is no cogent and reliable evidence on record to prove the charge against the accused. Therefore, the learned trial Magistrate has rightly concluded that the prosecution had failed to bring home the guilt of the accused. The impugned order of acquittal, therefore, does not call for any interference. 16. As a result, this appeal merits dismissal and is accordingly dismissed. The accused is presently in judicial custody because of his non-appearance, after service through bailable warrants and consequential apprehension in execution of non-bailable warrants, in Judicial Lockup, Kaithu, Shimla. He be set at liberty forthwith. 17. Before parting with the case, I would place on record my appreciation for the assistance rendered to this Court by S/Sh. Vijay Bhatia and B.N. Gupta, who appeared as Amicus Curiae to assist the Court in disposing of this appeal.