Research › Search › Judgment

Himachal Pradesh High Court · body

2017 DIGILAW 628 (HP)

State of Himachal Pradesh v. Rajesh Kumar

2017-06-01

CHANDER BHUSAN BAROWALIA

body2017
JUDGMENT : Chander Bhusan Barowalia, J. The present criminal appeal, under Section 378 of the Code of Criminal Procedure has been maintained by the appellant-State, against the judgment of acquittal, dated 07.04.2008, passed by the learned Additional Chief Judicial Magistrate, Dehra, District Kangra, H.P., in Criminal Case No. 167-III/2005. 2. The key facts, giving rise to the present appeal as per the prosecution story are that on 01.06.2005, SI/SHO Prem Chand alongwith HHC Pushap Arun, HHC Jarnail Singh and Constable Gurmeet Singh was on naka at Tatahan, at about 12.30 am, a vehicle, bearing registration No. HP-19A-5373 came from Bankhandi side and when the vehicle was stopped and checked, five cardboard boxes, containing 60 bottles of country made liquor, Lal Quila (each containing 750 Mls) were recovered from the vehicle driven by Rajesh Kumar, without any license and permit, out of which, thee bottles were separated for chemical examination and sealed with seal “P”. The other cardboard boxes, containing liquor, were also sealed with Seal “P” and taken into possession alongwith vehicle and its documents, vide memo, Ex. PW-5/A. Ruka, Ex. PW-2/A, was sent to the Police Station through HHC Jarnail Singh, on the basis of which, FIR, Ex. PW-2/B, under Section 61 (1) (a) of the Punjab Excise Act, as applicable to the State of H.P. was registered against the accused. During the course of investigation, Investigating Officer prepared the spot map of recovery Ex. PW-7/B and three bottles were sent to Laboratory at Kandaghat, for chemical examination and when report was received, it was found that samples of country made liquor contained alcoholic strength. The statements of the witnesses were recorded under Section 161 Cr.P.C. and after completion of investigation challan was presented. 3. Prosecution, in order to prove its case, examined as many as 7 witnesses. Statement of accused was recorded under Section 313 Cr.P.C, wherein he denied the prosecution case and claimed innocence. Accused did not lead any defence evidence. The learned trial Court, vide impugned judgment dated 07.04.2008, acquitted the accused for the commission of offence punishable under Section 61 (1) (a) of the Punjab Excise Act, as applicable to the State of H.P., hence the present appeal. 4. I have heard the learned counsel for the parties and gone the record carefully. 5. The learned trial Court, vide impugned judgment dated 07.04.2008, acquitted the accused for the commission of offence punishable under Section 61 (1) (a) of the Punjab Excise Act, as applicable to the State of H.P., hence the present appeal. 4. I have heard the learned counsel for the parties and gone the record carefully. 5. Learned Additional Advocate General has argued that PW-3, PW-5 and PW-6 have fully proved the case of the prosecution and the prosecution has proved the guilt of the accused beyond the shadow of reasonable doubt. He has further argued that the accused was apprehended with 60 bottles of country made liquor, Lal Quila and he could not produce any permit. He has argued that as the prosecution has proved the guilt of the accused beyond the shadow of reasonable doubt, accused is liable to be convicted for the offence, he was charged with. On the other hand, learned counsel for the accused respondent has argued that the link evidence is missing and there are lot of contradictions in the statements of the witnesses, which makes their statements unreliable. He has further argued that no independent witness was examined by the prosecution. 6. To appreciate the arguments of learned Additional Advocate General and learned defence counsel, this Court has gone through the record in detail and minutely scrutinized the statements of the witnesses. 7. PW-1, HHC Jarnail Singh, has deposed that on 13.06.2005, MHC, Yudhvir Singh, has given him three sample bottles of country made liquor, Lal quila to deposit them to CTL Kandaghat and the same were deposited by him there, on 14.06.2005. He further deposed that when sample bottles of liquor were with him, no tampering was made by anyone. 8. PW-2 ASI Vinod Kumar, has deposed that in the year, 2005, he was posted at Haripur as Investigating Officer and on 01.06.2005 after receiving Rukka, Ext. PW-2/A, FIR, Ext. PW-2/B, was registered, which bears his signature. In his cross-examination, he deposed that at night there was no facility of night bus at Haripur road. He feigned ignorance about the fact that by whom Rukka was brought to Police Station. He denied that on the basis of Ext. PW-2/A, FIR, Ext. PW-2/B, was falsely registered. 9. PW-2/A, FIR, Ext. PW-2/B, was registered, which bears his signature. In his cross-examination, he deposed that at night there was no facility of night bus at Haripur road. He feigned ignorance about the fact that by whom Rukka was brought to Police Station. He denied that on the basis of Ext. PW-2/A, FIR, Ext. PW-2/B, was falsely registered. 9. PW-3, Constable Gurmeet Singh, who was also posted at Haripur, deposed that on 01.06.2005, he alongwith HHC Arun Kumar, HHC Jarnail Singh and driver, Narender Kumar, was present at Tatahan on Naka, in the night at about 12.30 am, one vehicle bearing No. HP-19A-5373, came to the spot and stopped by the Police for checking. On inquiry, the driver of the vehicle disclosed his name as Rajesh Kumar. When the vehicle was checked, five cardboard boxes, containing 60 bottles of country made liquor Lal quila (each bottle containing 750 Mls) were recovered from the possession of the accused. He further deposed that out of total recovered bottles of liquor, three bottles were separated for chemical examination and sealed on the spot by Investigating Officer with seal “P”. Thereafter, Rukka was prepared and sent to Police Station. He admitted his signature on fard. He stated that the accused was carrying the liquor without any permit. In his cross-examination, he stated that he alongwith SHO Prem Chand and HHC Jarnail Singh, proceeded from the Police Station in Government vehicle, at around 12.00 midnight. He further stated that they have put the stones on road to stop the vehicle and thereafter recovered the country made liquor Lal quila, which was in cardboard boxes, from the vehicle. He deposed that the vehicle was checked by SHO and they remained there till 1.30 am. He further deposed that the seal handed over to him by SHO. He admitted his signature on fard. 10. PW-4, HHC Yudhvir Singh, has deposed that on 01.06.2005, three sample bottles of liquor (each containing 750 Mls), with seal “P” were sent through HHC, Jarnail Singh, to CTL Kandaghat, for chemical examination. In his cross-examination, he denied that he has not sent the samples of liquor to CTL Kandaghat. 11. PW-5, HC, Pushp Arun, has deposed that in the year, 2005 he was posted at Haripur. In his cross-examination, he deposed that place of Naka is at a distance of 6-7 Kms. from the Police Station. In his cross-examination, he denied that he has not sent the samples of liquor to CTL Kandaghat. 11. PW-5, HC, Pushp Arun, has deposed that in the year, 2005 he was posted at Haripur. In his cross-examination, he deposed that place of Naka is at a distance of 6-7 Kms. from the Police Station. He admitted that they have not put anything on the spot for closing the road. He further admitted that on the spot, there was no light and the entire proceedings were conducted with the headlight of vehicle. He deposed that some liquor bottles were without label and in some bottles the quantity of liquor was lesser. He further deposed that the vehicle of the accused was driven by SHO to the Police Station and during the investigation 1-2 vehicles crossed through the spot, which were checked by us. 12. PW-6, Constable Narender Kumar, has deposed that they proceeded from the Police Station at about 10.30 pm and during the investigation, no vehicle was crossed through the spot. He has further deposed that all proceedings were completed with the help of torchlight and he drove the vehicle of the accused to the Police Station. 13. PW-7, SI/SHO Prem Chand, has deposed that on 01.06.2005 at about 12.30 am (night), he alongwith other Police officials was on Naka at Tatahan and at the same time, a vehicle bearing Registration No. HP-19A-5373, coming towards Bankhandi side, was stopped by them and on checking the vehicle, five cardboard boxes, containing 60 bottles of country made liquor, Lal quila, were recovered from the possession of the driver, Rajesh Kumar and the vehicle alongwith its documents, was taken into possession vide memo Ext. PW-5/A and three bottles as sample, were separated for chemical examination. Rukka, Ext. PW-2/A was sent to Police Station through HHC Jarnail Singh. In his cross-examination, he stated that during the proceedings, they used emergency light, which was with them. He further stated that no other vehicle crossed through the spot during the investigation. He further stated that they have proceeded from the Police Station at about 11.00 pm and the accused himself drove the vehicle to the Police Station. 14. In the present case, there are material contradictions in the statements of the witnesses. He further stated that no other vehicle crossed through the spot during the investigation. He further stated that they have proceeded from the Police Station at about 11.00 pm and the accused himself drove the vehicle to the Police Station. 14. In the present case, there are material contradictions in the statements of the witnesses. It has come in the statement of PW-3 that they proceeded from the Police Station at about 12.00 pm, but as per the version of PW-7, SHO, Prem Chand, they went to the spot at about 11.00 pm. Similarly, PW-3, has deposed that the road was closed by them by putting stones, whereas PW-5, Pushp Arun, has deposed that they have not put anything on the road. As per PW-6 and 7, during investigation, no other vehicle has crossed through the spot, however PW-5, has stated that during the investigation, 1-2 vehicles crossed from there, which were checked by them. It is also come in the statement of PW-5 that entire proceedings were conducted by them with the help of headlight of the vehicle, but as per the version of PW-6, entire proceedings were completed with torchlight. Further there is also contradiction qua the fact that by whom the vehicle was driven. 15. So, there are major contradictions in the statement of the witnesses, further there is no independent witness available and statements of official witnesses, do not inspire confidence. It has been held by this Hon’ble Court in State of H.P. vs. Madan Lal and State of H.P. vs. Malkiat Singh and another, that in case, link evidence is missing, the acquittal of the accused cannot be interfered with. 16. Thus, in the absence of any reasonable and plausible explanation, an adverse inference has to be drawn against the prosecution story, as the contradictory statements of the witnesses create suspicion. 17. It has been held in K. Prakashan vs. P.K. Surenderan (2008) 1 SCC 258 , that when two views are possible, appellate Court should not reverse the judgment of acquittal merely because the other view was possible. When judgment of trial Court was neither perverse, nor suffered from any legal infirmity or non consideration/mis-appreciation of evidence on record, reversal thereof by High Court was not justified. 18. When judgment of trial Court was neither perverse, nor suffered from any legal infirmity or non consideration/mis-appreciation of evidence on record, reversal thereof by High Court was not justified. 18. The Hon’ble Supreme Court in T. Subramanian vs. State of Tamil Nadu (2006) 1 SCC 401 , has held that where two views are reasonably possible from the very same evidence, prosecution cannot be said to have proved its case beyond reasonable doubt. 19. So, in the opinion of this Court, the findings of the learned Court below cannot be said to be perverse and against the law, as the prosecution has failed to prove the guilt of the accused beyond reasonable doubt. 20. In view of the aforesaid decisions of the Hon’ble Supreme Court and the discussion made hereinabove, I find no merit in this appeal and the same deserves dismissal and is accordingly dismissed. Pending applications, if any, shall also stands disposed of.