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2017 DIGILAW 1257 (HP)

State Of Himachal Pradesh v. Ranjit Singh

2017-11-14

SURESHWAR THAKUR

body2017
JUDGMENT Sureshwar Thakur, J. (Oral) - The instant appeal is directed against the judgment rendered by the learned Additional Chief Judicial Magistrate, Dehra, District Kangra, wherein he recorded findings of acquittal upon the accused. 2. The brief facts of the case are that the on 16.9.2006, at around 6:30 a.m., HC Sukhdev Singh along-with C. Sanjay Kumar and HHGs Raj Kumar was on Naka duty at Swan Bridge barrier and during checking one scooter Bajaj Chetak bearing No. PB-10 P-4161 came at the spot and scooter was checked and one plastic bag containing 36 bottles of IMFL Josh XXX Rum was recovered from the exclusive and conscious possession of the accused. On inquiry scooterist disclosed his name as Ranjit Singh s/o Pushpdev Singh. The accused was asked to produce the license or permit of liquor in the presence of witnesses Yashpal Singh and Balbir Singh, but accused failed to produce the permit or license. The Investigating Officer had taken out three nips for the purpose of Chemical test and nips and three bottles were packed in a bag and and was also sealed with seal "K" and specimen of seal Ext. PW8/A was taken on a piece of cloth and case property along-with scooter was taken in possession vide memo Ext. PW8/B in the presence of aforesaid witnesses. During the course of investigation, Investigating Officer also sent ruqua Ext. PW8/C to the Police Station, Dehra, on the basis of which FIR Ext. PW9/A for an offence punishable under Section 61(1)(a) of the Punjab Excise Act was registered against the accused. During the course of investigation, the Investigating Officer also prepared site plan of spot of recovery Ext. PW8/D. Three nips were sent to CTL Kandaghat for chemical examination. Report was received, whereby it was found that samples of IMFL contained alcoholic strength. The statements of witnesses under Section 161 Cr. P.C., 1973 were recorded by the Investigating Officer. After completion of investigation, the police found prima facie case against the accused for offence punishable under Section 61(1)(a) of the Punjab Excise Act, as also applicable to the State of H.P. Challan was prepared and filed in the Court. 3. A charge stood put to the accused by the learned trial Court for his committing offences punishable under Sections 61(1)(a) of the Punjab Excise Act, as applicable to the State of H.P. to which he pleaded not guilty and claimed trial. 3. A charge stood put to the accused by the learned trial Court for his committing offences punishable under Sections 61(1)(a) of the Punjab Excise Act, as applicable to the State of H.P. to which he pleaded not guilty and claimed trial. 4. In order to prove its case, the prosecution examined 9 witnesses. On closure of prosecution evidence, the statement of the accused under section 313 of the C.P.C., was recorded in which he pleaded innocence and claimed false implication. However, he did not lead any evidence in defence. 5. On an appraisal of the evidence on record, the learned trial Court returned findings of acquittal upon the accused. 6. The learned Additional Advocate General has concertedly and vigorously contended qua the findings of acquittal recorded by the learned trial Court standing not based on a proper appreciation of the evidence on record, rather, theirs standing sequelled by gross mis-appreciation by him of the material on record. 7. The learned counsel appearing for the respondent has with considerable force and vigour contended qua the findings of acquittal recorded by the learned trial Court standing based on a mature and balanced appreciation of evidence on record and theirs not necessitating interference, rather theirs meriting vindication. 8. This Court with the able assistance of the learned counsel on either side has with studied care and incision, evaluated the entire evidence on record. 9. The learned trial Court, in recording findings of acquittal upon the accused, had anvilled, its reasoning (i) upon the factum of there occurring intra se contradictions inter se the testimonies of PW- 1 and PW-8, with respect to the time of laying of naka (ii) thereupon the learned trial judge proceeded to countervail, the effect of the apposite recovery memo borne in Ext.PW-8/B, (iii) where-under recovery(s) of the relevant bottles, stood effectuated from the scooter, scooter whereof at the relevant time, stood evidently occupied by the accused. The aforesaid reason assigned by the learned trial Court, for his hence countervailing the probative worth of Ext.PW- 8/B, the relevant recovery memo, is per se valid. The aforesaid reason assigned by the learned trial Court, for his hence countervailing the probative worth of Ext.PW- 8/B, the relevant recovery memo, is per se valid. (i) Given, at this stage, upon an apparent reading of the deposition, of PW-8, to whom the gunny bag, containing the cache of liquor, on its production, in Court stood shown, it being noticed (ii) that on its production in Court, the seal(s) embossed thereon, being not intact, besides theirs being not legible, (iii) for hence making their apposite interse comparison(s) with the sample seal impression(s) embossed, on a piece of cloth. Consequently, the factum of seals affixed upon the gunny bags remaining unintact, upon production of the gunny bag in Court, (iv) thereupon with the Court being precluded, to, make in-terse comparison(s) therewith vis-a-vis the sample seals taken, on a piece of cloth, for its hence making a firm conclusion (v) that "the bag" containing liquor bottles, appertained vis-a-vis "the one" purportedly recovered at the site of occurrence, (vi) contrarily, constrains a conclusion, that the case property, as stood produced in Court, not, containing the cache of liquor, recovered, at the site of occurrence, from the conscious and exclusive possession of the accused. In sequel, benefit of the aforesaid breaking(s) of seals embossed upon the "gunny bags", is to be accorded to the accused. 10. The learned counsel for the respondent has contended with vigour that the non production in Court, of, the seal with user whereof the case property, was sealed, at the relevant site of occurrence hence vitiating in its entirety the investigation conducted by the I.O. concerned (i) yet the aforesaid submission also does not hold any vigour, given there being no mandate of law that any non production in Court, of the relevant seal, by the official concerned or by the Investigating Officer, per se rendering vitiated the entire genesis of the prosecution witnesses. Contrarily, when the production of the apposite seal in the Court concerned, is merely a directory edict hence its non production in Court, does not, at all vitiate the genesis of the prosecution version. 11. Contrarily, when the production of the apposite seal in the Court concerned, is merely a directory edict hence its non production in Court, does not, at all vitiate the genesis of the prosecution version. 11. Nowat, the effect of independent witnesses, to recovery memo Ext.PW-8/B, reneging from their previous statements recorded in writing, is to stand construed along-with the factum of, theirs in their respective cross-examination(s) to which they stood subjected, to by the learned PP upon theirs standing declared hostile, (i) hence admitting the factum of their signatures occurring thereon. Consequently, when they admit the occurrence of their signatures, on, the relevant memo, (ii) thereupon the mandate of section 91 and 92 of the Indian Evidence Act whereupon, they, on admitting the occurrence of their signatures thereon, hence stand statutorily estopped, to renege from the recitals borne thereon, (iii) thereupon the effect of their orally deposing in variance or in detraction to the recitals occurring therein, gets statutorily belittled (iv) rather when their naturally emphatically hence statutorily prove the recitals comprised in the apposite memo, theirs orally reneging from the recitals borne thereon, holds no evidentiary clout (iv) nor it is legally apt to outweigh the creditworthiness of the testimony(s) of official witnesses qua the recovery of liquor under recovery memo Ext.PW-8/B hence standing effectuated, from the conscious and exclusive possession of the accused, (v) contrarily the uncontroverted factum qua their signatures occurring in the relevant exhibits, concomitantly renders the apposite recitals borne thereon, to hold grave probative worth, more so when they do not testify, of theirs appending their signatures thereon under duress or undue influence being exerted upon them by the I.O. concerned. The ensuing sequel thereof, is (vi) qua with the statutory estoppel constituted in sections 91 and 92 of the Indian Evidence Act, AGAINST PWs concerned, hence orally resiling from the scribed contents of Ext.PW-8/B, especially when they admit the signatures occurring thereon, to belong to them, thereupon renders un-worthwhile besides insignificant the factum qua theirs orally deposing in variance of its recorded recitals, (vii) thereupon per se an inference stands enhanced qua dehors theirs reneging from their previous statement(s) recorded in writing, a deduction standing capitalized qua thereupon their proving the genesis of the prosecution case. Moreover, the reason assigned by the learned Addl. Sessions Judge for falsifying the recitals occurring in the Ext.PW-8/B , hence gets countervailed. 12. Moreover, the reason assigned by the learned Addl. Sessions Judge for falsifying the recitals occurring in the Ext.PW-8/B , hence gets countervailed. 12. Even though, independent witnesses'', to recovery memo turned hostile, also cannot constrain the Court, to un-befittingly conclude, as untenably done by the learned trial Judge, that it arousing an inference of the contents of Ext.PW-8/B hence remaining unproved. Significantly, when the entire effect of PWs-3 and 4, independent witnesses to Ext.PW-8/B deposing in contradiction to the apposite recitals borne in F.I.R., is for reasons aforestated un-worth-while. 13. At this stage, the learned counsel for the accused has contended with vigour qua with the Investigating Officer concerned, not, collecting samples from each, of the liquor bottles carried in all the bags/gunny bags, borne in the relevant vehicle nor his dispatching to the CTL concerned, the samples collected from each of the liquor bottles carried in all the bags, borne on the relevant vehicle, for their respective examination by it, (i) whereas with the CTL affirmatively opining qua only samples of liquor extracted from some of the bottles, amongst, the entire cache of liquor, carried in bags or gunny bags, bags whereof were borne in the relevant vehicle, (ii) hence entailing a sequel of the prosecution succeeding in proving the opinion recorded by the CTL concerned with respect to the samples sent to it for analyzes, (iii) contrarily he contends qua the prosecution not succeeding in proving the factum of all "bags" carried in the relevant vehicle "all" there within holding liquor. However, the aforesaid submission warrants its standing discountenanced. A thorough circumspect reading of the evidence on record, unravels, qua the accused respondent, in his defence embodied in his statement recorded under Section 313 Cr.P.C., 1973 "not" unravelling therein (i) the factum of "except" three samples extracted by the I.O. from the bottles borne in the relevant vehicle, all other bottles held, in the "bags" carried in the relevant vehicle "not" there within holding liquor nor also his counsel while holding the prosecution witnesses to cross-examination, purveyed apposite suggestions qua the facet aforesaid. The effect of the aforesaid omission(s), is of the accused acquiescing, to the factum of all the bottles held in all the "bags" borne in the relevant vehicle, holding therein liquor, dehors the factum of the Investigating Officer concerned, not, extracting samples from all the bottles held in all "bags" borne in the relevant vehicle. The effect of the aforesaid omission(s), is of the accused acquiescing, to the factum of all the bottles held in all the "bags" borne in the relevant vehicle, holding therein liquor, dehors the factum of the Investigating Officer concerned, not, extracting samples from all the bottles held in all "bags" borne in the relevant vehicle. 14. The learned counsel for the accused has also contended with vigour, that with intra-se contradictions occurring inter se the testifications of the material prosecution witnesses, with respect to the storage of the relevant bottles of liquor, hence per se begetting an inference, of tampering(s) with the relevant case property, by the Investigating Officer, (i) whereupon hence it is befitting to conclude that there was a concomitant enjoined necessity upon the Investigating Officer, to send to the CTL concerned "samples" extracted from all the bottles carried in all the gunny bags or in the bags borne, on the relevant vehicle (ii) whereupon alone, upon an affirmative opinion being pronounced by the CTL, upon all the samples, would constrain a conclusion that the entire cache of liquor "bottles " carried in the vehicle, holding, liquor there-within. However, the aforesaid submission is rejected, as (a) the learned defence counsel while holding each of the prosecution witnesses, to cross examination has neither put suggestions apposite thereto, comprised in the factum, of, the bottles held in the bag(s) and in the gunny bag(s), not, holding therein contents of liquor, (b) contrarily theirs holding milk, juice or water besides the defence counsel omitted to adduce in defence, the best documentary evidence, comprised in bills appertaining to purchase by him of bottles of juice, milk or water (c) whereupon alone a vivid display would occur that the relevant bottles held therein contents of water, juice or milk. In absence of the aforesaid suggestion(s) besides want of the aforesaid best evidence, begets an inference of the defence acquiescing (d) of all the relevant bags/gunny bags were holding bottles wherein liquor was carried, (e) thereupon there was no necessity for the Investigating Officer, to either extract samples from all the bottles or to send them for analyses to the CTL concerned. It appears that the learned counsel for the accused has made an idle submission, of the case property being hence tampered, without their occurring any apposite suggestions in respect thereto. 15. It appears that the learned counsel for the accused has made an idle submission, of the case property being hence tampered, without their occurring any apposite suggestions in respect thereto. 15. For the reasons which have been recorded herein-above, this Court holds that the learned appellate Court has appraised the entire evidence on record in a wholesome and harmonious manner apart therefrom the analysis of the material on record by the learned appellate Court does not suffer from perversity or absurdity of mis-appreciation and non-appreciation of evidence on record. 16. Consequently, there is no merit in the instant appeal which is accordingly dismissed. The Judgment impugned before this Court is maintained and affirmed. Records be sent back forthwith.