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2019 DIGILAW 605 (HP)

State of Himachal Pradesh v. Joban Dass

2019-05-21

CHANDER BHUSAN BAROWALIA

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JUDGMENT : Chander Bhusan Barowalia, J. The present appeal, under Section 378 of the Code of Criminal Procedure, has been maintained by the appellant-State of Himachal Pradesh, assailing the judgment of acquittal, dated 01.01.2009, passed by learned Sub Divisional Judicial Magistrate, Rampur Bushahr, District Shimla, H.P. in Criminal Case No. 94-3 of 2006, under Section 61-1-14 of Punjab Excise Act (hereinafter to be called as "the Act"), as applicable to State of Himachal Pradesh. 2. Briefly the facts giving rise to the present appeal as per the prosecution story are that on 18.03.2006, at about 7:15 p.m., when HC Kewal Singh, HHC Sunder Singh, No. 304 and Constable Shiv Ram were present at place Labana Sadana in execution of their routine patrolling duty, they found a person carrying a plastic can in his right hand. The person on seeing the police party got perplexed and on suspicion he was arrested. During his personal search, he was found in conscious and exclusive possession of one plastic can, containing three bottles of illicit liquor. After separating one nip as sample, both the nips as well as sample were sealed with seal 'A' and taken into possession. FIR was registered against the accused at Police Station Jhakri. Site plan was prepared and statements of witnesses were recorded. On receipt of chemical examiner report, final police report was prepared and presented before the learned trial Court. 3. Prosecution, in order to prove its case, examined as many as six witnesses. Statement of the 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 01.01.2009, acquitted the accused for the commission of offence, punishable under Section 61-1-14 of the Act, hence the present appeal. 4. Learned Additional Advocate General, has argued that the prosecution has proved the guilt of the accused beyond the shadow of reasonable doubt. On the other hand, learned counsel for the accused-respondent has argued that the alleged quantity of three bottles of illicit liquor stated to be recovered from the respondent is a concocted story, as no independent witness was associated by the police. Even the Investigating Officer in his statement has specifically stated that he does not find it appropriate to associate any independent witness. Even the Investigating Officer in his statement has specifically stated that he does not find it appropriate to associate any independent witness. So, the prosecution has failed to prove the guilt of the accused-respondent beyond the shadow of reasonable doubt and, therefore, the well reasoned judgment of acquittal, passed by the learned trial Court needs no interference. In rebuttal, learned Additional Advocate General has argued that the prosecution has proved the guilt of the accused beyond the shadow of reasonable doubt and as there was no independent witness was available on the spot, after re-appreciating the evidence, the judgment of acquittal passed by learned trial Court be set aside and accused be convicted for the commission of offence, he was charged with. 5. To appreciate the arguments of learned counsel for the parties, this Court has gone through the record in detail and minutely scrutinized the statements of the witnesses. 6. The most incriminating evidence against the accused in the instant case is seizure memo, Ext. PW-2/A, vide which plastic can, Ext. P-1 alongwith nip sample was taken into possession. The seizure memo was signed by the accused, as well two official witnesses. Both these witnesses, i.e. Sunder Singh and Shiv Ram has appeared in the witness box as PW-2 and PW-4. As per the statements of these witnesses on 18.03.2006 at about 7:15 p.m. they found a person carrying a plastic can in his hand. Both these witnesses have admitted that on the spot there were about 30 houses, however, they did not associate any independent witnesses. Similarly, PW-6, Investigating Officer has also admitted that there is close vicinity nearby the spot, but he did not find it proper to associate any independent witness. 7. After going through the evidence of PW-2, PW-4 and PW-6, who are official and material witnesses of this case, this Court finds that when independent witnesses were available on spot the Investigating Officer should have associate them. However, the Investigating Officer simply stated that he does not find it proper to associate independent witnesses. The non joining of the independent prosecution witnesses when they were available, makes the prosecution case doubtful with respect to recovery of three bottles of illicit liquor. However, the Investigating Officer simply stated that he does not find it proper to associate independent witnesses. The non joining of the independent prosecution witnesses when they were available, makes the prosecution case doubtful with respect to recovery of three bottles of illicit liquor. At the same point of time the testimony of official witnesses are required to be scrutinized with care and caution, when their statements are not confidence inspiring and in the case in hand also, the statement of official witnesses are not confidence inspiring. In these circumstance, after taking into consideration the evidence, which has come on record and testimonies of the witnesses, even after re-appreciating the evidence, this Court finds that the prosecution has failed to prove the guilt of the accused beyond the shadow of reasonable doubt and the well reasoned judgment of acquittal, passed by the learned trial Court, needs no interference. 8. 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. 9. 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. 10. 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. (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." 11. 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.