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2019 DIGILAW 372 (HP)

STATE OF HIMACHAL PRADESH v. AMAR SINGH

2019-04-04

CHANDER BHUSAN BAROWALIA

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JUDGMENT : Chander Bhusan Barowalia, J. The present appeal is maintained by the appellant-State of Himachal Pradesh against the judgment of acquittal of accused in a case, under Section 61 (1) (a) of Punjab Excise Act, as applicable to the State of Himachal Pradesh, passed by the learned Judicial Magistrate 1st Class, Barsar, District, Hamirpur (H.P) dated 20.12.2008, in Excise Case No.3-III of 2008. 2. Briefly stating facts giving rise to the present appeal are that on 27.7.2007, at about 6:05 p.m., at place Samtana, Inspector/SHO alongwith HC Bidhi Chand No.278, Constable Kewal Singh No.166, was on patrolling duty, in official vehicle bearing registration No.HP-22-4642 alongwith driver Constable Karam Singh No.297, where they have received a secret information that the accused run the business of selling illicit liquor at his house. On this, police prepared rukka and sent the same through Constable Kewal Singh No.166 to Police Station, on the basis of which, FIR was registered. Thereafter, the police formed a raiding party by associating two independent witnesses, namely, Karam Singh and Rajesh Kumar and conducted search of the house and recovered eight cartons of country liquor 'Lal Quila' brand, for which, the accused could not produce any permit/licence. Thereafter, police extracted out three bottles separately out of the recovered liquor and sealed the same having seal impression 'X' and also taken into possession the samples alongwith remaining liquor. Police also obtained separate seal impression of seal 'X', on a piece of cloth. During the course of investigation, statement of the witnesses recorded and site plan was prepared. Thereafter, codal formalities were completed and challan was presented in the Court. 3. The prosecution, in order to prove its case, examined as many as five witnesses. Statement of accused was recorded, under Section 313 of the Code of Criminal Procedure, wherein he has denied the prosecution case and claimed innocence. No defence evidence was led by the accused. 4. Learned Additional Advocate General appearing on behalf of the appellant has argued that the learned Court below without appreciating the facts, which have come on record to its true perspective and without applying the law correctly and has acquitted the accused ignoring the fact that the prosecution has proved the guilt of the accused beyond the shadow of reasonable doubt. 5. On the other hand, Mr. K.S. Banyal, Senior Counsel with Ms. 5. On the other hand, Mr. K.S. Banyal, Senior Counsel with Ms. Bharti Thakur, learned counsel appearing on behalf of the accused has argued that no independent witness supported the prosecution case, the witnesses, as per the prosecution, who were present on the spot were neither associated nor produced in the Court. He has further argued that statement of the police witnesses also full of contradictions and in these circumstances, the findings recorded by the learned Court below were just reasoned. 6. To appreciate the arguments of learned Additional Advocate General and learned counsel for the accused, this Court has gone through the record in detail and minutely scrutinized the statements of the witnesses. 7. In order to prove its case, the prosecution has examined independent witness, PW-1, Karam Singh, deposed that the police party visited the house of accused and took his signatures. This witness declared hostile and while cross-examination, he has specifically denied that any liquor has been recovered from the house of accused in his presence and in presence of Rajesh Kumar (PW-2). PW-2, Rajesh Kumar, deposed that on 22.7.2007, police obtained his signatures, but he has not disclosed for what his signatures were obtained. This witness also declared hostile and while cross-examination, he has specifically denied that police conducted search of the house of accused in his presence and recovered the alleged liquor from the accused. He has stated no search of the house of accused was conducted in his presence nor any liquor was recovered from him. PW-5, Investigating Officer, Bakshi Ram, deposed that he had recorded the statements of witnesses, Karam Singh and Rajesh Kumar, Ex.PW5/D and Ex.PW5/E, respectively. In his cross-examination, he has stated that he does not remember the time, when they reached at Samtana. He has denied the suggestion that he recorded the statement of independent witnesses, at his own. 8. Beside the aforesaid material prosecution witnesses, PW-3, Desh Raj and PW-4, Baryam Singh, who are formal and marginal witnesses. 9. In the present case, SHO alongwith HC Bidhi Chand No.278, Constable Kewal Singh No.166 alongwith driver Constable Karam Chand No.297, were on patrolling duty, in official vehicle at place Samtana and they received a secret information. 8. Beside the aforesaid material prosecution witnesses, PW-3, Desh Raj and PW-4, Baryam Singh, who are formal and marginal witnesses. 9. In the present case, SHO alongwith HC Bidhi Chand No.278, Constable Kewal Singh No.166 alongwith driver Constable Karam Chand No.297, were on patrolling duty, in official vehicle at place Samtana and they received a secret information. Thereafter, they associated two independent witnesses, Karam Singh and Rajesh Kumar and formed a raiding party and conducted search of the house of accused in the presence of aforesaid independent witnesses and recovered eight cartons of country liquor 'Lal Quila' brand. However, the alleged independent witnesses, while appearing in the witness as PWs1 and 2 have not supported the prosecution story and declared hostile. Moreover, they have specifically stated that in their cross-examination that no search of the house of accused was conducted in their presence nor any liquor has been recovered from him. As per the prosecution case, HC Bidhi Chand, Constable Kewal Singh and driver of Constable Karam Chand, were also present with the Investigating Officer on the spot and they were also present at the time of raid of the house of accused, however, none of the aforesaid official witnesses has either been cited or examined by the prosecution, which cast serious doubt in the prosecution story. The prosecution has withheld the material witnesses, which makes the prosecution story highly doubtful, which is fatal to the prosecution case. This Court finds that even statements of police officials does not inspire confidence and independent witness has not supported the prosecution story. So, the prosecution has failed to prove the guilt of the accused beyond the shadow of reasonable doubt. 10. 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/misappreciation of evidence on record, reversal thereof by High Court was not justified. 11. 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. 12. 11. 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. 12. 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) 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." 13. The net result of the above discussion is that the prosecution has failed to prove the guilt of the accused conclusively and beyond reasonable doubt. (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." 13. The net result of the above discussion is that the prosecution has failed to prove the guilt of the accused conclusively and beyond reasonable doubt. There is no illegality and infirmity in the findings, so recorded by the learned trial Court. 14. Accordingly, in view of the observations and analysis, made hereinabove, there is no merit in the appeal and the same is dismissed. Record of the learned trial Court be sent back forthwith.