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Himachal Pradesh High Court · body

2016 DIGILAW 2163 (HP)

Girdhari Lal v. State of H. P.

2016-10-04

VIVEK SINGH THAKUR

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JUDGMENT : Vivek Singh Thakur, J. Petitioner has assailed his conviction and sentence imposed upon him by trial Court affirmed by learned Sessions Judge in appeal. 2. I have heard learned counsel for parties and have also gone through material placed on record. 3. Prosecution case is that on 5.1.2007 at about 10 PM police party headed by SI Gurdeep Singh consisting of PW-2 HHC Rajender Singh and PW-4 HC Sehdev departed police station after recording DD entry report No. 13 dated 5th January 2007. At about 11.30 PM, on reaching near village Byass, they saw fire light on Dober Khala side. They reached on the spot to inquire the matter and found that respondent had set up apparatus for production of illicit liquor. Police party recovered 10 Ltrs illicit liquor and 100 Ltr drum containing Lahan. After taking one bottle from drum as sample, remaining Lahan was destroyed. One bottle as sample was also taken from illicit liquor. Entire case property was sealed vide memo Ex. PW-2/A. Rukka Ex. PW-5/A was sent to Police Station through PW-2 Rajender Singh for registration of FIR and in pursuance to same, FIR Ex. PW-2/A was registered. After completion of investigation and obtaining report of Chemical Examiner Ex. PW-5/D, challan was presented in the Court against the accused. 4. After conclusion of trial, petitioner was convicted and sentenced by Judicial Magistrate First Class to undergo simple imprisonment for six months and to pay fine of Rs. 3000/- and in case of default to further undergo simple imprisonment for two months. 5. Appeal filed by the petitioner, assailing his conviction and sentence was dismissed by learned Sessions Judge. 6. In present case, no independent witness was associated by the police party and it was explained satisfactorily that keeping in view mid night time and place of commission of offence, it was not possible to associate independent witness at that time. PW-2, PW-4 and PW-5 are spot official witnesses of recovery. It is well settled law that conviction can be based upon statements of official witnesses only, but subject to careful and cautious scrutiny of their statements and on finding their statements cogent, reliable, trustworthy and confidence inspiring. In the light of this settled Law, veracity of PW-2, PW-4 and PW-5 is to be assessed. It is well settled law that conviction can be based upon statements of official witnesses only, but subject to careful and cautious scrutiny of their statements and on finding their statements cogent, reliable, trustworthy and confidence inspiring. In the light of this settled Law, veracity of PW-2, PW-4 and PW-5 is to be assessed. Learned counsel for petitioner submits that there are material and major contradictions and discrepancies in statements as well as documents of prosecution evidence which create doubt about the genesis of the story of the prosecution and therefore, impugned judgments are liable to be quashed and conviction and sentence imposed upon petitioner is liable to be set aside. 7. Learned counsel for petitioner submits that there is overwriting in DD entry report No. 13 Ex. PW-1/A with regard to date of report. As in the said document, in all two places, where date has been mentioned, there is over writing which cast doubt on actual time and date of recording/preparation of the said DD report. He alleges that the said DD report is anti dated because it is not a simple overwriting mistake at one place, but there is over writing at all places wherever the said date was to be mentioned and this overwriting was also admitted by PW- 1 HHC Rajender Singh. It is further pointed out by counsel for petitioner that rukka was prepared on spot at 1.30 PM and was handed over to PW-2 HHC Rajender Singh for registration of FIR in police station Paonta Sahib whereupon FIR Ext. PW2/A was registered. In FIR time of receiving information in Police Station has been mentioned as 0305 hours and regarding General Diary reference entry No. 45 was also stated to be made at 305 hours indicating that FIR was lodged after 305 hours. He submitted that PW-5 Inspector Gurdeep Singh stated that statement of PW-4 Sahdev reached in Police Station prior to 3.30 a.m. which indicated that before leaving Police Station by PW-2 after registration of FIR, PW-4 and PW-5 had reached there, but PW-4 stated that PW-2 Rajinder Singh met him and PW-5 in Police Post Mazra. He submitted that PW-5 Inspector Gurdeep Singh stated that statement of PW-4 Sahdev reached in Police Station prior to 3.30 a.m. which indicated that before leaving Police Station by PW-2 after registration of FIR, PW-4 and PW-5 had reached there, but PW-4 stated that PW-2 Rajinder Singh met him and PW-5 in Police Post Mazra. This discrepancy is irreconcilable as it was not possible for PW-2 Rajender Singh to leave Police Station with or without case file before registration of FIR which, as per prosecution, was lodged after 0305 hours and as per prosecution evidence case property was deposited in the Malkahana at 03: 30 hours establishing that PW-4 and PW-5 definitely arrived in Police Station before 3.30 a.m. completely ruling out possibility of meeting PW-2 Rajinder Singh, with PW-4 and PW-5 in Police Post Mazra and further in case PW-2 Rajinder Singh actually met them in Police Post Mazra then the timings mentioned in the FIR are manipulated which cast doubt on fair investigation by the police. 8. It is further pointed out by learned counsel for petitioner that in Ex. PW1/A after timing, date mentioned is 5.1.2007 and PW-5 also stated date of leaving Police Station as 5.1.2007. However, PW-2 and PW-4 stated that they left Police Station on 6.1.2007 at 11.30 P.M. and it was not clarified by prosecution nor Public Prosecutor sought any permission to crossexamine either of witness for deviating from prosecution story. 9. Another discrepancy pointed out by learned counsel for petitioner is that as per Ex. PW1/A police party left the Police Post at 10 PM whereas PW-4 stated that they left Police Post at 8-9 O' Clock. PW-4 stated that they reached near Dobber Khala at 9.30 PM, but PW-2 stated that they reached Dobber Khala at 11.30 PM. 10. Learned counsel for petitioner also argued that as per memo Ext. PW2/A recovered illicit liquor was 10 Ltrs whereas PW-2 deposed the said quantity about 18 Ltrs and PW-4 and PW-5 stated that recovered liquor was 9-10 Ltrs. Further, this recovered illicit liquor was never produced in the Court. PW-2 admitted that tin container produced in the Court was empty, there was no chit on the said tin and there was no seal on the said tin produced in the Court. Further, this recovered illicit liquor was never produced in the Court. PW-2 admitted that tin container produced in the Court was empty, there was no chit on the said tin and there was no seal on the said tin produced in the Court. PW-5 also admitted that liquor was not shown to him in the Court and the tin shown to him in the court was empty. 11. In the beginning in impugned judgments date of leaving Police Station by police party has been mentioned as 6.1.2007 whereas in letter part of judgments that has been discussed as 5.1.2007. PW-2 and PW-4 referred the said date as 6.1.2007 whereas in the statement of PW-5 and in Ex. PW1/A, this date has been stated to be as 5.1.2007. 12. Learned Deputy Advocate General submitted that contradictions and discrepancies pointed out by counsel for petitioner have no significance as the recovery of illicit liquor and Lahan on the spot has been duly corroborated in the statements of PW-2, PW-4 and PW-5 and the commission of the offence by petitioner is duly proved on record. 13. In present case, all witnesses are official witnesses who are dealing with criminal cases hearing experience of proceedings in Courts. They are not common men and for that reason discrepancy and contradictions in their statements particularly like present case which are irreconcilable qua the date and time of occurrence gains significance. Non production of recovered illicit liquor also render case of the prosecution doubtful. As per prosecution, iron drum having capacity of 100 ltrs was also seized and brought to police post along with other case property i.e. tin, stones, fire wood and empty earthen pot. Three police officials went on spot, one of them left the spot with Rukka. There were two police officials and one petitioner on the spot. It is unbelievable that all these articles were brought by them during night to the police post by covering distance through forest on foot. 14. Courts below have considered and referred only part of statement of prosecution witnesses whereas statements as a whole were to be considered. The aforesaid contradictions and discrepancies have not been discussed at all. Courts below have ignored the material and major contradictions and irreconcilable discrepancies` referred supra. Therefore, impugned judgments are set aside and conviction and sentence imposed upon petitioner is quashed. The aforesaid contradictions and discrepancies have not been discussed at all. Courts below have ignored the material and major contradictions and irreconcilable discrepancies` referred supra. Therefore, impugned judgments are set aside and conviction and sentence imposed upon petitioner is quashed. Petitioner-accused is acquitted of the charges framed against him and bail bonds, if any, furnished by him are cancelled and fine amount deposited by him, if any, shall be refunded to him. Records of the Courts below be sent back immediately.