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2019 DIGILAW 1177 (HP)

State of H. P. v. Baljit Singh

2019-08-16

CHANDER BHUSAN BAROWALIA

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JUDGMENT : Chander Bhusan Barowalia, J. (oral) 1. The present appeal is maintained by the appellant/State, laying challenge to judgment dated 13.11.2007, passed by learned Judicial Magistrate 1st Class, Court No. 1, Shimla, H.P., in Criminal Case No. 19/2 of 2002, whereby the accused persons/respondents (hereinafter referred to as “the accused persons”) were acquitted for the commission of offence punishable under Section 61(1)(a) of the Punjab Excise Act. 2. Succinctly, as per the prosecution story, the facts giving rise to the present case can be summarized thus: During the night of 25.10.2000, police received secret information that a truck, loaded with liquor, bound to Shimla is coming from Chandigarh and a maruti car is escorting it. On receipt of such information, police informed Excise and Taxation Inspector and a police team rushed to Bye-pass road where other police personnel were also present. Police formed a raiding party and laid nakka. As there was no residential area near the place where he nakka was laid, so police personnel were only associated in the raiding party. As per the prosecution, at about 04:45 a.m., a car bearing registration No. HP-15-2110, appeared and it was signaled to stop, however, it did not stop and car went towards B.C.S. side. After 15 minutes a truck came and it has registration No. HP CHW-6194. The truck was made to stop and it was being driven by Baljeet Singh and Ramesh Kumar was found sitting in the truck. During checking of the truck tarpal (plastic cover) was removed and liquor, containing in the bags, was found. There were 63 bags containing liquor. Inside the bags there were puches of country made liquor “Saunfi Special” each pouch containing 180 ml liquor and total pouches were 12600. During the checking it was also found that liquor was for sale in Haryana only. Besides the 12600 pouches of country made liquor, police also recovered 18 bags having 38 carton boxes, each carton box containing 12 bottles of “Bagpiper Whisky”, each bottle 750 ml, and these bottles were also for sale in Haryana only. The police kept the samples of the recovered liquor and samples were sealed. The truck, alongwith its documents, was taken into possession. Accused persons, Baljeet Singh and Ramesh Kumar, on being asked, could not produce any valid permit for transportation of huge quantity of liquor. The police kept the samples of the recovered liquor and samples were sealed. The truck, alongwith its documents, was taken into possession. Accused persons, Baljeet Singh and Ramesh Kumar, on being asked, could not produce any valid permit for transportation of huge quantity of liquor. As per the prosecution story, the car, which fled from the spot, was chased by the police, but unsuccessfully. Police prepared a rukka and sent the same to police station for registration of FIR. Police prepared the spot map and also clicked photographs. On 27.10.2000, during the course of investigation, police seized the documents of vehicle HP-15- 2110 (the car which fled away from the spot). It came in the police investigation that accused persons Tajinder Singh and HawaSingh were associated in loading the said truck at Panchkula. It has also come in the police investigation that car, which fled from the spot, had fake registration number and it original number was found to be DL-6C1983 and it belonged to one Mini Kapal of Delhi. The fake registration No. of the said car, i.e., HP-15-2110, was found to be of a vehicle owned by one Sh. Ashok Aggarwal. The samples of liquor were sent to CTL, Kandaghat, for chemical examination. Police recorded the statements of the witnesses and after completion of investigation, police presented the challan in the learned Trial Court. 3. The prosecution, in order to prove its case, examined as many as fourteen witnesses. Statements of the accused persons were recorded under Section 313 Cr.P.C., wherein they pleaded not guilty. However, in defence, the accused persons did not lead any defence evidence. 4. The learned Trial Court, vide impugned judgment dated 13.11.2007 acquitted the accused persons for the offence punishable under Section 61(1)(a) of the Punjab Excise Act, hence the present appeal preferred by the State. 5. The learned Additional Advocate General has argued the impugned judgment is based on hypothetical reasoning, surmises and conjectures and the learned Trial Court has failed to appreciate the evidence, which has come on record to its right perspective. He has argued that the prosecution has proved the guilt of the accused persons beyond the shadow of reasonable doubt. 5. The learned Additional Advocate General has argued the impugned judgment is based on hypothetical reasoning, surmises and conjectures and the learned Trial Court has failed to appreciate the evidence, which has come on record to its right perspective. He has argued that the prosecution has proved the guilt of the accused persons beyond the shadow of reasonable doubt. Conversely, the learned counsel for the respondents has argued that the judgment of acquittal has been passed by the learned Trial Court after appreciating the evidence, which has come on record, to its true perspective, thus the judgment of acquittal, needs no interference. 7. In rebuttal, the learned Additional Advocate General has argued that after re-appreciating the evidence the accused be convicted, as the learned Trial Court has failed to appreciate the evidence correctly. 8. At the very outset, it would be apt to mention that during the pendency of the instant appeal accused No. 4, Tajinder Sethi, expired on 21.01.2011, so vide order dated 04.05.2019, passed by this Court, the appeal against the said accused was ordered to be abated. 9. In order to appreciate the rival contentions of the parties we have gone through the record carefully. 10. In the case in hand, as also noticed by the learned Trial Court, the important prosecution witnesses are Shri Satish Gupta, ETI, Shimla (PW-2), Shri Suresh Kumar (PW-3), independent witness and member of the raiding party, Shri Arvind Digvijay Negi, Dy.S.P., Headquarter Shimla (PW-4), HC Naresh Kumar (PW-5) and HC Jai Lal (PW-12). The depositions of the rest of the prosecution witnesses are not worth discussing as these are formal witnesses and their depositions have no effect on the case. 11. After carefully examining the testimonies of PWs-2, 3, 4, 5 and 12, it is seen that these prosecution witnesses have fully supported the prosecution case to that extent that during the intervening night of 25.10.2000 police received a secret information qua a truck coming from Chandigarh to Shimla and loaded with liquor and the same is being escorted by a maruti car. The depositions of these witnesses are also on same line that PW- 4, Shri Arvind Negi, Dy.S.P., contacted Shri Satish Gupta, ETI (PW-2) and they had rushed alongwith HC Sant Singh, Constable Beli Ram to byepass road, where police personnel of Chhota Shimla, Police Station East were present. The depositions of these witnesses are also on same line that PW- 4, Shri Arvind Negi, Dy.S.P., contacted Shri Satish Gupta, ETI (PW-2) and they had rushed alongwith HC Sant Singh, Constable Beli Ram to byepass road, where police personnel of Chhota Shimla, Police Station East were present. The depositions of these prosecution witnesses further goes unstained to the effect that police officials, amongst themselves, formed a raiding party, as there was no residential area. At about 04:45 a.m. on 25.10.2000, police spotted car, having registration No. HP-15- 2110, and it was signaled to stop, but the driver of the car did not stop and drove it towards B.C.S. side. After 15 minutes, a truck, having registration No. CHW-6194 appeared and on being stopped accused Baljeet Singh was found to be driving the same and accused Ramesh was found sitting in the truck. When the tarpal of the said truck was removed, police found 63 bags containing pouches of country made liquor “Saunfi Special”, each pouch 180 ml. In total 12600 pouches of liquor, each 180 ml, was found in 63 bags and besides this18 more bags were found, which were having 38 carton boxes, each containing 12 bottles of “Bagpiper Whisky” each 750 ml. The liquor was for sale in Haryana only. One bottle each from the carton boxes were separately sealed with seal having impression ‘H’ in a bag and the bag was handed over to Sh. Satish Gupta (PW-2) and rest of the case property, i.e., liquor and the truck was taken into possession. Accused Baljeet and Ramesh could not produce any valid permit/licence for transporting such huge quantity of liquor. Police chased maruti car, having registration No. HP-15-2110, in vehicle No. HP-03- 2516, unsuccessfully. Rukka was sent to police station, whereupon FIR, Ex. PW-9/C, was registered. Spot map, Ex. PW- 12/B, was prepared and spot was photographed. Police also took into possession the documents of car, having registration No. HP- 15-2110, vide memo, Ex. PW-12/C. During the investigation it was unearthed that accused Tajinder Singh and Hawa Singh were associated in loading the said truck at Panchkula. Police found the registration number of the car fake. The testimonies of PWs-2 to 5 and 12 are also same to the extent that samples were sent to CTL Kandaghat, which were found to be of alcohol. PW-12/C. During the investigation it was unearthed that accused Tajinder Singh and Hawa Singh were associated in loading the said truck at Panchkula. Police found the registration number of the car fake. The testimonies of PWs-2 to 5 and 12 are also same to the extent that samples were sent to CTL Kandaghat, which were found to be of alcohol. Thus, the depositions of these witnesses support the prosecution case, however, their testimonies do suffer from lacunae. 12. PW-2, Shri Satish Gupta, in his cross-examination, has deposed that at about 03:00 a.m. PW-4, Shri Arvind Negi, telephoned him. He went to Tutikandi chowk and met Sh. Arvind Negi and other police personnel. He has further deposed that at about 04:15 a.m. car, having registration No. HP-15-2110, appeared, which was signaled to stop, however, it did not stop. He has deposed that after 5-7 minutes a truck appeared and it was stopped by the police. PW-3 is also one of the important prosecution witnesses, but in the Court he did not identify accused Baljeet and Ramesh to be persons sitting in the said truck. PW-3 categorically deposed that when he was present on the spot PW-2 ETI Satish Gupta was not present there. This witness went a step ahead by deposing that he met Satish Gupta in the Police Station, Chhota Shimnla. Though, PW-2 and 3 supported the prosecution case, but they denied the presence of each other. PW-2 did not depose qua the presence of PW-3 on the spot, as he simply deposed that he alongwith police officials was present on the spot. Likewise, PW-4 Sh. Arvind Digvijay Negi, also did not state qua the presence of PW-3, Shri Suresh Kumar, on the spot. PW-4, specifically deposed that lot of effort was made to associate independent witnesses, as the area was non-residential area. In the wake of the fact that as per the prosecution story PW-3, Shri Suresh Kumar, was independent witness, but the very presence of this independent witness is not proved. Further the presence of PW-3 is dubious, as PW-5, HC Naresh Kumar, specifically deposed that there was only one independent witness, viz., Rajinder, who was from Bilaspur. In the wake of the fact that as per the prosecution story PW-3, Shri Suresh Kumar, was independent witness, but the very presence of this independent witness is not proved. Further the presence of PW-3 is dubious, as PW-5, HC Naresh Kumar, specifically deposed that there was only one independent witness, viz., Rajinder, who was from Bilaspur. The story of the prosecution is further rendered doubtful by the testimony of Investigating Officer (PW-12), as he categorically deposed that at the time when the raiding party was formed they associated no independent witness, as there were no residential houses. Now, the association of only independent witness, i.e., PW-3 Suresh Kumar, becomes highly improbable. The prosecution witnesses, who are key prosecution witnesses, creates doubts qua the identity of the independent witness, his association and presence on the spot. If we go by the statement of PW-5, HC Naresh Kumar, one independent witness, namely Rajinder, was already with them, but the name of this witness did not figure in the list of prosecution witnesses. In the wake of contradictory portrayal of association of independent witness in the raiding party, this Court cannot shut its eyes to the fact that the prosecution could not offer any acceptable and plausible explanation to the fact that why another independent witness was not associated in the raiding party, especially when, as per PW-5, he was already with them. 13. This Court also meticulously noticed the contents of the documents. Recovery memo, Ex.PW-2/A, contains the signatures of PW-2, Sh. Satish Gupta, but if the statement of PW- 3, Shri Suresh Kumar (independent witness) is to be believed, then PW-2 was not present on the spot. In that case, it becomes doubtful that how the signatures of PW-2 were procured on recovery memo, Ex. PW-2/A. Recovery memo, Ex. PW-2/A, depicts the presence of PW-3 on the spot, as he signed the same, but as per the testimonies of PWs-2, 4 and 12, there was no independent witness present on the spot. Thus, there is a doubt qua the presence of PW-3 on the spot and the prosecution did not offer any explanation how the signatures of PW-3 were procured on recovery memo, Ex. Thus, there is a doubt qua the presence of PW-3 on the spot and the prosecution did not offer any explanation how the signatures of PW-3 were procured on recovery memo, Ex. PW-2/A. Leaving aside, for a moment, absence or presence of PW-3 on the spot, this witness (PW-3) did not identify accused Baljeet and Ramesh in the Court, thus the prosecution, in no way, can be said to be benefited from the deposition of PW-3. 14. Lastly, after examining the testimonies of PWs-2, 3 and 12, it appears that they reached the spot at 12:00 mid night. The official prosecution witnesses further creates a doubt about the veracity of the prosecution story, as PW-12, Investigating Officer, PW-2, ETI, and PW-3, Independent witness deposed that they all reached the spot at about 12:00 mid night and PW-2, ETI, and PW-4, Sh. Digvijay Singh Negi, Dy.S.P. were together and they remained there till the truck was intercepted. Thus, through the depositions of these three above mentioned official prosecution witnesses, it is clear that PW-2 and PW-4 remained on the spot till the truck was intercepted and as per the prosecution story the truck was stopped approximately at 05:00 a.m. The depositions of above three witnesses is belied by PW-4, as he deposed in his statement that he reached the spot at 04:00 a.m. and he contacted PW-2 at 03:00 a.m. and they reached the spot at 04:00 a.m.. Thus, the statement of above three witnesses to extent that PW-2 and PW-4 were present on the spot at 12:00 mid night is doubtful. 15. Besides the above major lacunae, there are other loopholes in the prosecution story. As per PW-2 the truck was DCM Toyota, but as per PW-3 it was Swaraj Mazda, which was apprehended. The prosecution has alleged that the police clicked the photographs of the truck loaded with huge quantity of liquor, but the photographs do not depict liquor inside the truck and they only show front portion of the truck. Now, this fact also creates a dent in the credibility of the prosecution story, as the prosecution has not offered any explanation that what prevented not to click photographs of the truck from back side and from different angles depicting the liquor loaded inside the truck. 15. Now, this fact also creates a dent in the credibility of the prosecution story, as the prosecution has not offered any explanation that what prevented not to click photographs of the truck from back side and from different angles depicting the liquor loaded inside the truck. 15. After exhaustively discussing the material, which has come on record, it is safe to hold that prosecution has failed to prove its case beyond the shadow of reasonable doubts. Thus, there cannot a view other that that the prosecution has failed to establish its case and in case for a moment this Court thinks of taking other view then also this Court cannot adhere to that view, as the Hon’ble Supreme Court in Arun vs. State, (2008) 15 SCC 501 , has held that if there are two reasonable views, then the view favouring the accused be adhered to. 16. 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. 17. In Chandrappa vs. State of Karnataka, (2007) 4 SCC 415 , the Hon’ble Supreme Court has culled out the following principles qua powers of the appellate Courts while dealing with an appeal against an order of acquittal: “42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge: 1. An appellate court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded. 2. The Code of Criminal Procedure, 1873 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law. 3. Various expressions, such as, ‘substantial and compelling reasons’, ‘good and sufficient grounds’, ‘very strong circumstances’, ‘distorted conclusions’, ‘glaring mistakes’, etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of ‘flourishes of language’ to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion. 4. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of ‘flourishes of language’ to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion. 4. An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial Court. 5. If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial Court.” 18. In view of the settled legal position, as aforesaid, and on the basis of material, which has come on record, it is more than safe to hold that the prosecution has failed to prove the guilt of the accused persons and the findings of acquittal, as recorded by the learned Trial Court, needs no interference, as the same are the result of appreciating the facts and law correctly and to their true perspective. Accordingly, the appeal, which sans merits, deserves dismissal and is dismissed. 19. In view of the above, the appeal, so also pending application(s), if any, stand(s) disposed of. Bail bonds are cancelled.