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Himachal Pradesh High Court · body

2012 DIGILAW 317 (HP)

Kana Singh v. State of H. P.

2012-05-31

V.K.SHARMA

body2012
JUDGMENT : V.K. Sharma, J. The challenge herein in this criminal revision petition under Section 397/401 of the Code of Criminal Procedure, 1973 (in short Cr.P.C), is against the judgment dated 16.12.2005, passed by the learned Sessions Judge, Shimla, in Criminal Appeal No. 10-S/10 of 2004, whereby the appeal filed by the petitioner, who shall hereinafter be referred to as the convict, has been dismissed and the conviction and consequent sentence of rigorous imprisonment for six months and fine of Rs. 5000/- (Rs. Five Thousand) and in default further simple imprisonment for three months imposed upon him by the learned Judicial Magistrate 1st Class, Chopal, District Shimla, H.P., vide judgment/order dated 19.01.2004, for the offence under Section 16 (1)(a)) of the Punjab Excise Act, 1914 (in short the Act), as applicable to the State of Himachal Pradesh, has been maintained. 2. In brief, the case of the prosecution was that on 08.05.2003, at about 5.00 AM ASI Ramesh Kumar (PW-9) accompanied by other police officials was present at Fadez Pul in connection with patrolling and nakabandi. In the meantime, a vehicle (Mahindra MAXX) bearing registration No. HP-08-0708 was found coming from Gumma side towards Nerwa. It was stopped and on enquiry the driver disclosed his name as Kana Singh (convict). The vehicle was checked in the presence of PW-7 Shri Umardeen and PW-8 HHC Bir Singh. During search the convict was found in possession of 10 boxes of Indian made foreign liquor (IMFL) of bagpiper brand containing 120 bottles and ten bottles of beer of brand 10000 containing 120 bottles without any permit. The recovered contraband was taken into possession by the police vide seizure memo Ex.PW-7/A after taking four samples each from the liquor bottles and beer bottles, which were sealed with seal bearing impression T and the seal was handed over to PW-7 Umardeen. The vehicle along with documents was also taken into possession by the police. The site plan was prepared. A rukka was sent to the police station, on the basis of which FIR Ex.PW-6/A was registered. Samples of the recovered contraband were sent for chemical analysis to CTL Kandaghat and were found to contain Indian made foreign liquor as well as beer having different percentages of proof alcohol strength, vide reports Ex.P-1 and Ex.P-2. On completion of investigation the convict was sent to face trial. 3. Samples of the recovered contraband were sent for chemical analysis to CTL Kandaghat and were found to contain Indian made foreign liquor as well as beer having different percentages of proof alcohol strength, vide reports Ex.P-1 and Ex.P-2. On completion of investigation the convict was sent to face trial. 3. On being charged, he did not plead guilty and claimed trial. The prosecution evidence followed, which examined nine witnesses in all. The convict was examined under Section 313 Cr.P.C, wherein his defence was that of total denial, innocence and false implication. However, he did not lead any evidence in defence. On conclusion of the trial the convict was convicted and sentenced by the learned trial court, which findings were upheld by the learned first appellate court, as already noticed. Being aggrieved, he is in revision before this court. 4. I have heard the learned counsel for the petitioner (convict) and the learned Assistant Advocate General for the respondent-State and gone through the records. 5. The impugned judgments have been challenged on behalf of the convict mainly on the grounds that there is tampering in the seizure memo Ex.PW-7/A with regard to the number of boxes of beer and number of bottles of IMFL and beer, no independent witnesses were joined by the police during the proceedings to lend credence to its case and identity of the convict as an offender does not stand established beyond reasonable doubt. On the other hand, the findings returned by the learned courts below have been supported by the respondent-State. 6. A bare perusal of seizure memo Ex.PW-7/A would go to show that in the body of the memo in lines 5 and 9 there is tampering in the number of boxes of beer and number of bottles of IMFL and beer, which remains totally unexplained and cannot be lightly over looked, in the peculiar facts and circumstances of the present case and this aspect of the matter raises a reasonable doubt in the very genesis and veracity of the prosecution case. 7. Admittedly, no independent witness other than PW-7 Umardeen was joined during the proceedings. Even PW-7 Umardeen cannot be said to be an independent witness, as the police had gone to the place of occurrence to lay naka in his vehicle. Furthermore, he has admitted that he was convicted and sentenced in a case of accident and is acquainted to the police. Even PW-7 Umardeen cannot be said to be an independent witness, as the police had gone to the place of occurrence to lay naka in his vehicle. Furthermore, he has admitted that he was convicted and sentenced in a case of accident and is acquainted to the police. True it is that the alleged occurrence is said to have taken place on 08.05.2003, in the morning at 5.00 AM at Fadez Pul, where presence of independent witnesses at that time was not probable. However, once the vehicle allegedly being driven by the accused was stopped and huge quantity of IMFL and beer was found therein, the police could very well have taken steps to call for some independent witnesses as it is admitted by PW-7 Umardeen that there are 2-3 houses and one hotel at Fadez Pul, where people reside. In this regard, PW-8 HHC Bir Singh and PW-9 ASI Ramesh Chand have contradicted each other. Whereas the former had stated that there is no residential house at Fadez Pul and instead there are 2-3 dharas (temporary structures) at that place, which were closed during night, the latter has denied that there are 6- 7 houses and 2-3 hotels on the spot and has instead stated that there is bus stoppage at that place. 8. Insofar as the identity of the accused being the offender is concerned, the evidence on record is not sufficient in content to come to a definite conclusion that it was he who was apprehended while transporting the contraband in question. Though, PW-7 Umardeen has stated in chief examination that the convict was driving the aforesaid vehicle when it was stopped by the police and was found to contain the contraband items, yet during cross examination he has admitted that owing to darkness he could not recognise anyone including the convict. However, even despite that the witness has not been re-examined by the prosecution on this material aspect of the case and the convict can rely on the admission made by PW-7 Umardeen that he could not identity him, as has been held by the Honble Supreme Court in Mukhtiar Ahmed Ansari v. State (NCT of Delhi), (2005) 5 Supreme Court cases 258, wherein, it has been held as under vide paras 29 to 31 of the report:- "29. The learned counsel for the appellant also urged that it was the case of the prosecution that the police had requisitioned a Maruti car from Ved Prakash Goel. Ved Prakash Goel had been examined as a prosecution witness in this case as PW-1. He, however, did not support the prosecution. The prosecution never declared PW-1 "hostile". His evidence did not support the prosecution. Instead, it supported the defence. The accused hence can rely on that evidence. 30. A similar question came up for consideration before this Court in Raja Ram v. State of Rajasthan. In that case, the evidence of the Doctor who was examined as a prosecution witness showed that the deceased was being told by one K that she should implicate the accused or else she might have to face prosecution. The Doctor was not declared "hostile". The High Court, however, convicted the accused. This Court held that it was open to the defence to rely on the evidence of the Doctor and it was binding on the prosecution. 31. In the present case, evidence of PW-1 Ved Prakash Goel destroyed the genesis of the prosecution that he had given his Maruti car to police in which police had gone to Bahai Temple and apprehended the accused. When Goel did not support the case, accused can rely on that evidence." 9. On a combined and harmonious reading of the statement of PW-8 HHC Bir Singh, it is manifest that it is nowhere stated by him during chief examination that it was the convict who was driving the aforesaid vehicle, wherein the contraband IMFL and beer were found being transported without permission. In cross examination though he has denied that the accused does not know driving and has instead stated that he had seen him driving, yet this part of the testimony of the witness cannot be said to be conclusive to pinpoint the identity of the convict being the offender. 10. The identity of the convict as the offender also becomes suspect when the deposition of PW-9 ASI Ramesh Chand, the Investigating Officer is taken into consideration. He has admitted during cross examination that the convict was not having driving licence. He has also admitted that the vehicle allegedly being driven by the convict was not challaned on this count. 10. The identity of the convict as the offender also becomes suspect when the deposition of PW-9 ASI Ramesh Chand, the Investigating Officer is taken into consideration. He has admitted during cross examination that the convict was not having driving licence. He has also admitted that the vehicle allegedly being driven by the convict was not challaned on this count. However, the explanation in this regard submitted by him to the effect that the vehicle could not be challaned, as they had not taken challan book along with them, cannot be taken without a pinch of salt. 11. For the foregoing reasons, even if in the facts and circumstances of the case, no fault is found with the prosecution case for non-joining of independent witnesses, it cannot be concluded beyond reasonable doubt that it was the convict, who was driving the aforesaid vehicle, wherein the contraband IMFL and beer were being transported without licence. 12. Resultantly, the petition is allowed and consequently the impugned judgment/order of conviction/sentence dated 19.1.2004, passed by the learned trial Magistrate, as affirmed by the learned Sessions Judge vide the impugned judgment dated 16.12.2005, are set aside and the convict is acquitted of the charge. The amount of fine if already deposited by him shall be liable to be refunded to him after the time for filing appeal against this judgment is over, in which event orders of the Honble appellate court shall prevail.