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Himachal Pradesh High Court · body

2013 DIGILAW 817 (HP)

STATE OF H. P. v. Bichitter Singh

2013-09-17

SURINDER SINGH

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JUDGEMENT SURINDER SINGH, J. - 1. THE State has felt aggrieved by the judgment of acquittal passed by the learned trial Court in Case respondent, hereinafter to be referred as 'the accused', for the offence punishable under Section 61(1(c) of the Punjab Excise Act, as applicable to the State of Himachal Pradesh. 2. HEARD and gone through the record. Precisely the case of the prosecution is that during the intervening night of 29/30.5.2001, PW5 SI Kamal Kishore was heading police-party and was on patrolling in the area of Majri-Khad. At about 12.05 a.m. The police- party noticed smoke emanating from a nearby place. On Whether the reporters of Local Papers may be allowed to see the judgment? reaching there, they noticed that the accused was present and busy on working-still whereby illicit liquor was being distilled from one drum of 180 Kgs. of 'lahan'. Further, the case of the prosecution is that about 7 liters of illicit liquor was found to have been distilled in a 35 liter can. The police took a sample of nip from the recovered liquor and other can of 5 liters of 'lahan' was also taken as sample from the aforesaid drum. The can was sealed and taken into possession alongwith remaining illicit liquor which was also sealed with the same seal producing the impression of English letter 'A'. The rest of 'lahan' was destroyed. The working-still was cooled down. Charred fire-woods were also taken into possession alongwith others articles. The case property was taken into possession vide memo Ext.PW1/B. 3. RUQA Ext.PW2/A was sent for the registration of the case, which culminated into FIR Ext.PW4/A. Jeri-can Ext.P-1, can Ext.P-2, Patila Ext.P-3, Chapani Ext.P-4, Pipe Ext.P-5, char-woods Exts.P-6 and 7 and tin Ext.P-8 were also taken into possession. The nip of the illicit liquor was sent for the chemical examination. It contained the sample of illicit liquor. 'Lahan' was also got examined from the ETI. He issued the certificate dated 11.6.2001 Ext.PW3/A. After completing the investigation, Challan was presented in the Court for the trial of the accused. 4. TO prove its case, the prosecution examined its witnesses. The accused was also examined under Section 313 of the Code of Criminal Procedure. His case was denial simplicitor and maintained his innocence. He did not lead any evidence in defence. 4. TO prove its case, the prosecution examined its witnesses. The accused was also examined under Section 313 of the Code of Criminal Procedure. His case was denial simplicitor and maintained his innocence. He did not lead any evidence in defence. After the complete trial, the accused was acquitted on the ground that the prosecution case suffers from material contradictions and also the independent witnesses were available as stated by PW1 Constable Daulat Ram, whereas the Investigating Officer PW5 SI Kamal Kishore has denied about their presence. Further that there was delay in sending the sample of illicit liquor for test-examination thus its tampering was not ruled out. 5. THE contention of the State in appeal is that the learned trial Court did not appreciate the evidence of the prosecution in the right perspective. For that I have reassessed the evidence on record, but I do not find any ground to convert the acquittal into conviction. 6. PW 5 SI Kamal Kishore, Investigating Officer, did not make any mention of the presence of any of the independent witnesses on the spot or otherwise having called, but PW1 Constable Daulat Ram, who was one of the members of the patrolling-party categorically admitted that the father of the accused called Sarpanch, Jarnail Singh and Bhag Singh on the spot. When they had asked the police as to where they were taking, they told them that they were taking to the spot alongwith them in the vehicle. If the father of the accused had been present or for that matter he came across the police when the accused was being taken, Sarpanch and the aforesaid witnesses Jarnail Singh and Bhag Singh also happened to be present and had asked the police about the above . fact, it was incumbent upon the Investigating Officer not to have hidden these facts which otherwise were disclosed by him in his statement. But by non-inclusion of the independent witnesses will not seriously affect the case of the prosecution, but however, in my opinion, it was necessary for the Investigating Officer to have recorded the statements of Jarnail Singh and Bhag Singh to lend strength to the case of the prosecution. But by non-inclusion of the independent witnesses will not seriously affect the case of the prosecution, but however, in my opinion, it was necessary for the Investigating Officer to have recorded the statements of Jarnail Singh and Bhag Singh to lend strength to the case of the prosecution. Further PW5 SI Kamal Kishore stated having covered the distance of 18 kilometers within half an hour, but thereafter he stated that he did not remember whether they had used the vehicle to reach the spot and further it is also there in the evidence as to how the case property was removed from the spot to the Police Station, except a taxi was hired from the bus- stand. It is not made out from the evidence as to who has brought the case property in the taxi whereas against the aforesaid statement PW1 Daulat Ram stated that they had covered the distance partly on foot and partly in the vehicle, whereas PW2 Dev Raj stated that they had gone to the spot from the Police Station on foot. 7. IT is also evident from the statement of PW4 MHC Surinder Pal that SI Kamal Kishore had deposited the case property with him on 30.5.2001, whereas the nip of illicit liquor was sent for its examination on 29.6.2001 vide RC No.63/03 through Constable Dev Raj (PW2) for chemical test in CTL, Kandaghat and on return he had deposited its receipt and on 8. 6.2001 HE sent tHE sample of 'lahan' for its test to tHE office of ETI. He has not stated that tHE sample of seal 'A' was also . deposited in tHE Malkhana wing of tHE Police Station nor Dev Raj had stated about having taken tHE sample of seal alongwith nip for its depositing in tHE laboratory and also did not state about having taken tHE sample of seal to tHE office of ETI. THE Road Certificate was not produced and proved in accordance with law against which tHE case property was sent to tHE CTL, Kandaghat and also to tHE office of ETI. THErefore, in my opinion, tHE link evidence is also not complete. FurtHEr tHEre is also nothing on record to show that Exts.P-1 to P- 8 alleged to have been used for tHE purpose in question could only be used for tHE working-still and none-else. 11. THErefore, in my opinion, tHE link evidence is also not complete. FurtHEr tHEre is also nothing on record to show that Exts.P-1 to P- 8 alleged to have been used for tHE purpose in question could only be used for tHE working-still and none-else. 11. For tHE afore-stated reasons, in my considered opinion, tHE prosecution has failed to prove its case beyond reasonable doubt. As such, tHE acquittal recorded by tHE learned trial Court cannot be interfered with. THE appeal sans merit and is accordingly dismissed. THE accused is HEreby discharged of tHE bail bonds entered upon by him at any time of tHE proceedings.