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2005 DIGILAW 1275 (PNJ)

Shiv Lal v. State Of Haryana

2005-12-14

RAJIVE BHALLA

body2005
Judgment Rajive Bhalla, J. 1. The present appeal is directed against the judgment and order of the learned Additional Sessions Judge, Gurgaon, convicting and sentencing the appellant under Section 61(1)(a) of the Punjab Excise Act (for short the Act). Vide the aforementioned judgment and order, the appellant has been convicted under Section 61(1)(a) of the Act and sentenced to undergo rigorous imprisonment for a term of two years and a fine of Rs. 1,000/-. In default of payment of fine, to undergo further rigorous imprisonment of two months. 2. On 6.1.1990, sub Inspector Sis Ram (PW-6) alongwith A.S.I. Anant Ram (PW-5) and other police officials were present within the revenue estate of village Rangala Chati in connection with excise checking. In the meantime, a Maruti Van without registration number approached them from the side of village Khori. The police party signalled the van to stop. However, the driver did not pay any heed to the signal and instead drove the vehicles towards the police party. The police officials saved themselves but the van struck against the stones lying on the road. The driver of the van namely; Shiv Lal son of Chabbil Dass, the appellant was apprehended. Upon search, 25 crates of English liquor and 240 bottles of country made foreign liquor and 120 pints were found. Representative samples of liquor were drawn from the bottles, seals affixed and recovery memos prepared. Two number plates bearing Registration No. INC - 6197 were also recovered and taken into possession vide a recovery memo. FIR Ex. PC/1 was recorded. After investigation, a report under Section 173 of Cr.P.C. was filed before the Magistrate. Charges were framed under Section 307 of the Indian Penal Code and Section 61(1)(a) of the Act. The appellant pleaded not guilty and claimed trial. 3. In evidence, the prosecution examined Dr. R.P. Sharma, PW-1, Head Constable Dhan Singh PW-2, Ram Niwas Constable PW-3, Om Parkash Constable PW-4, ASI Anant Ram PW-5 and S.H.O. Sis Ram PW-6. The prosecution also relied upon Medico Legal Report of Anant Ram Ex. PA. Report of the Chemical Examiner Ex. PG/1 to PG/3, recovery memo of the van Ex. PE and site plan Ex. PF. After the conclusion of prosecution evidence, the appellants statement was recorded under Section 313 of Cr. P.C. and the entire material evidence and circumstances appearing against the appellant put to him. PA. Report of the Chemical Examiner Ex. PG/1 to PG/3, recovery memo of the van Ex. PE and site plan Ex. PF. After the conclusion of prosecution evidence, the appellants statement was recorded under Section 313 of Cr. P.C. and the entire material evidence and circumstances appearing against the appellant put to him. The appellant denied any involvement and pleaded that he was a mere passenger in the van. The driver ran away and the appellant was falsely implicated. On the basis of the evidence adduced and upon an appraisal thereof, the appellant was acquitted of the charges under Section 307 of the Indian Penal Code but convicted and sentenced, as stated herein before under Section 61(1)(a) of the Act. 4. Counsel for the appellant contends that the appellant was apprehended and recovery effected at 11 AM on 6.1.1990, within the revenue estate of Village Rangala Chati. It is surprising that no independent witness was associated at the police. The absence of an independent witness renders the recovery doubtful and, therefore, the entire story, as set up by the prosecution should be discarded. It is further contended that the witnesses to the recovery, being police officials, were interested in the success of the case and, thus, in the absence of any independent corroboration, the deposition of these witnesses should be discarded. 5. It is further contended that the appellant was a casual passenger. When the van was stopped by the police, the driver escaped. The appellant was apprehended and the alleged liquor foisted on him. It is next argued that as a significant part of the case set up by the prosecution namely; the fact that the driver of the van tried to run over the members of the police party, having been disbelieved by the trial Court, the entire evidence should have been discarded. The trial Court erred in accepting the version of the police as regards the recovery of liquor. 6. Counsel for the respondent on the other hand contends that the fact that the witnesses are all police officials, is sufficient to doubt the correctness of the prosecution version. Mere absence of independent witnesses is not necessarily fatal to the prosecution case. As recovery has been established, in all its particulars, the prosecution case cannot be doubted on the ground that no independent witness was associated. Mere absence of independent witnesses is not necessarily fatal to the prosecution case. As recovery has been established, in all its particulars, the prosecution case cannot be doubted on the ground that no independent witness was associated. It is further contended that the van was apprehended accidentally and there was no time to associate an independent witnesses. Furthermore, as no infirmity has been established vis-a-vis, the statement of the police officials, as regards the recovery, the prosecution case cannot be brushed aside on the score that the witnesses were all police officials. 7. It is next argued that there is no evidence to substantiate the plea raised by the counsel for the appellant that the appellant was a casual passenger and that the driver made good his escape. The appellants bald statement, to that effect does not merit acceptance. In so far as the contention that as a part of the prosecution case has been disbelieved, the entire evidence stood tainted, counsel for the respondent contends that where an incident leads to the commission of two or more offences, the Court is at liberty to convict and sentence with regard to the offences established. It is not necessary that if a part of the prosecution case is found to be false, the entire prosecution case must be discarded. The learned trial Court rightly convicted the appellant. 8. I have heard learned counsel for the parties and perused the record. 9. The first contention, raised by counsel for the appellant namely; that in the absence of any independent witness, the entire prosecution case must be discarded, in my considered opinion, does not merit acceptance. There is no absolute rule of law, that the absence of independent witnesses, must result in the prosecution case being discarded. Each case has to be examined its own peculiar facts. In the facts of the present case, the prosecution has to establish the unavailability of an independent witnesses at the site of the recovery. PW-6, in his deposition has clearly and categorically deposed that there was no independent witness available at the place of occurrence. Even otherwise, the van transporting the liquor approached the police party suddenly and, therefore, in these circumstances, to expect the police to associate an independent witness, in my considered opinion, would be stretching the desirability of independent corroboration to an illogical extent. Even otherwise, the van transporting the liquor approached the police party suddenly and, therefore, in these circumstances, to expect the police to associate an independent witness, in my considered opinion, would be stretching the desirability of independent corroboration to an illogical extent. The recovery of liquor had been fully established by statements of PW-5 and PW-6. These statements cannot be discarded on the plea that no independent person from the public was associated with the recovery. 10. Another contention raised by counsel for the appellant that he was a casual passenger in the van and when the van was apprehended by the police, the driver ran away, is apparently incorrect. Anant Ram PW-5 has categorically deposed that the driver of the van, upon enquiry, disclosed that his name was Shiv Lal S/o Chhabil Dass, namely; the present appellant. There is no reason to doubt the correctness of the aforementioned statement. There is no evidence on record, apart from the bald statement of the appellant made during his statement under Section 313 Cr. P.C., to the effect that he was falsely implicated and was not the driver of the van. In this view of the matter, the above contention does not merit acceptance. 11. The last point pressed into service by the counsel for the appellant that as the learned trial Court had discarded a part of the prosecution story, the entire prosecution case was liable to be discarded, does not merit acceptance. The learned trial Court, while examining the prosecution evidence, arrived at a conclusion that there was no evidence, to hold that the appellant was in any manner guilty of commission of an offence under Section 307 of the Indian Penal Code. The learned trial Court rightly held that the evidence adduced by the prosecution did not inspire confidence, as to the commission of an offence under Section 307 of the Indian Penal Code. As the allegations were severable, the learned trial Court, proceeded to examine the allegations, as regards the recovery of liquor. Upon perusal of the evidence, it arrived at a conclusion that the evidence as regards the recovery of liquor was established against the appellant. I find no illegality or infirmity in the course adopted by the learned trial Court. As the allegations were severable, the learned trial Court, proceeded to examine the allegations, as regards the recovery of liquor. Upon perusal of the evidence, it arrived at a conclusion that the evidence as regards the recovery of liquor was established against the appellant. I find no illegality or infirmity in the course adopted by the learned trial Court. In case, an accused is arraigned qua two offences and evidence as regards these offences is severable, the Court, while appraising the evidence, is at liberty to acquit an accused for some offences and convict and sentence him qua other offences. In the present case, the trial Court found as a matter of fact that the prosecution had failed to prove the allegations regarding the commission of an offence under 307 of the Indian Penal Code. It, however, arrived at a conclusion that the allegations regarding the commission of an offence under Section 61 of the Punjab Excise Act stood established. The learned trial Court did not commit any illegality in adopting this course. 12. A perusal of the facts of the present case shows that the statements of Anant Ram PW-5 and Sis Ram PW-6 that the van was being driven by the accused, was stopped and searched and the search revealed a huge cache of liquor, which the appellant had no legal right to possess. He was apprehended at the site, the liquor and the number plates were taken into possession by the police party vide recovery memo Ex. PD. Samples of liquor were drawn and sent for chemical examination. The Chemical Examiner submitted his report Ex. PG/1 to Ex. PG/13 and supported the case of the prosecution. Two other witnesses namely; Dhan Singh Head Constable PW-2 and Ram Niwas Constable PW-3 have further supported the prosecution version. There is no such infirmity in the deposition of the prosecution witnesses, despite intensive cross-examination, that would detract from the veracity of their depositions. There is no allegation of mala fide or any such evidence to establish a case of false implication. The appellant has not denied his presence in the van. The prosecution adduced sufficient evidence to bring home the appellants guilt. 13. In view of what has been stated above, I find no illegality or infirmity legal or factual, in the judgment and order of the learned trial Court. 14. Consequently, the present appeal is dismissed.