Himachal Pradesh High Court
State Of Himachal Pradesh vs Ashok Kumar @ Halku And Another on 29 March, 2019
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Appeal No. 190 of 2009
Decided on: 29.3.2019
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State of Himachal Pradesh ....Appellant.
Versus
Ashok Kumar @ Halku and another ... Respondents.
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Coram
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge.
Whether approved for reporting?1
r No
For the appellant. : M/s. Dinesh Thakur Additional
Advocate General with M/s
R.P. Singh & Amit Kumar Dhumal, Dy.
Advocate Generals.
For respondents : Mr. Naresh K. Verma, Advocate.
Ajay Mohan Goel, J (Oral)
By way of this appeal, the State has challenged the judgment passed by the Court of learned Judicial Magistrate 1 st Class, Court No.II. Hamirpur in Excise Case No. 36-1-2007/28-III-07 dated 31.1.2009, vide which respondents stand acquitted for commission of offence punishable under Section 61(1)(a) of Punjab Excise Ac as applicable to the State of H.P.
2. Brief facts necessary for adjudication of the appeal are that as per prosecution on 25.9.2006 at around 6:00 a.m. HC 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 01/04/2019 21:59:01 :::HCHP 2Kulwant Kumar No.70 along with HHC Santosh Kumar No.154 and HHC Randeep Singh No.189 were on patrolling duty at Awahdevi .
Bazar. There they saw accused, Subhash Chand, driving motorcycle bearing registration No. HP-28A-0606. Accused was the pillion rider on the said motorcycle, who was holding one bag. The patrolling party checked the bag and found the same containing 09 bottles of country made liquor Una No.1 and 03 bottles of country made liquor Lal Quila Brand. Each bottle was found contianing 750ml liquor.
The accused on demand could not produce any licence or permit for the purpose of transportation of liquor bottles. From the bottles so recovered, sample nips from two bottles of Una No.1 Brand and one bottle of Lal Quila Brand were taken. Samples were sealed with seal "K" and were taken into possession vide recovery memo Ext.PW1/B. The seal was handed over to HHC Santosh Kumar. On the basis of Ruqua Ext. PW6/A, FIR Ext. PW5/B was registered. Samples were sent for chemical examinations at CTL Kandaghat and after analysis the same were found to be containing alcoholic strength in each of them as per chemical report.
3. After the completion of investigation, challan was filed in the Court and as a prima facie case was found against the accused, accordingly they were charged for commission of offence punishable ::: Downloaded on - 01/04/2019 21:59:01 :::HCHP 3 under Section 61(1)(14) of the Punjab Excise Act, 1914 as applicable to the State of Himachal Pradesh, to which they pleaded not guilty and .
claimed trial.
4. In order to prove its case, prosecution examined eight witnesses. Learned trial Court on the basis of evidence on record held that statements of the witnesses examined by prosecution did not inspire confidence. There were material contradictions in the statements of the witnesses which made the alleged recovery doubtful.
It further went on to hold that as the case of the prosecution had become doubtful, therefore, benefit of doubt had to be extended to the accused and accordingly it acquitted the accused of the offence alleged against them.
5. Feeling aggrieved the State has filed this appeal.
6. Learned Additional Advocate General has argued that the judgment passed by learned trial Court is not sustainable in the eyes of law, as the learned trial court has erred in not appreciating that the prosecution had proved its case beyond reasonable doubt. He argued that the evidence on record has not been correctly appreciated by learned trial Court and the findings of acquittal returned are perverse, as they are not borne out from the record of the case.
::: Downloaded on - 01/04/2019 21:59:01 :::HCHP 47. On the other hand, learned counsel for the respondents argued that there is no merit in the appeal, as the judgment passed by .
learned trial Court is a well reasoned judgment. He has submitted that as the prosecution was not able to prove its case beyond reasonable doubt against the accused, therefore, no error stood committed by the learned trial Court while acquitting the accused by giving them benefit of doubt. He has further argued that it is settled law that in appeal the Appellate Court is not to interfere with the findings of acquittal returned in favour of the accused, unless the findings are completely perverse and shock the conscience of the Court.
8. I have heard learned counsel for the parties and have also gone through the impugned judgment as well record of the case.
9. As per record eight witnesses were examined by the prosecution. Out of them as per prosecution PW1 was the independent witness who was associated by the police party at the time of the seizure of the liquor bottles from the accused.
10. Incidentally the so-called sole independent witness of the prosecution happened to be working in the police chowki itself. This witness deposed in the Court with regard to the mode and manner in which the liquor bottles were made by the police party. In his cross examination, this witness clearly admitted that the documents ::: Downloaded on - 01/04/2019 21:59:01 :::HCHP 5 prepared by the police party which bear his signatures were not prepared at the spot but were prepared in the police chowki itself.
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Now it is not the case of the prosecution that alleged liquor was recovered from the possession of accused at an isolated place. That being so, no cogent explanation has come forth from the State as to why no other witness who could really be termed as an independent witness was associated by the police party at the time of the alleged recovery of liquor bottles from the accused. As far as statement of PW1 is concerned, in my considered view, it does not inspires any confidence.
11. HHC Santosh Kumar entered the witness box as PW2 whereas HHC Randeep Singh entered the witness box as PW3. They were members of the patrolling party. In their respective examination-in-chief, they deposed about the mode and manner in which the alleged recovery took place. Cross examination of these two witnesses demonstrates that they had admitted that at the time when the alleged recovery took place there were Tea Stalls open at the Bus Stand and public was having tea. They have also admitted the fact that PW1 Rakesh Kumar was working as a sweeper in the police chowki.
::: Downloaded on - 01/04/2019 21:59:01 :::HCHP 612. HC Kulwant Kumar appeared in the witness box as PW6 has also admitted in the course of his cross-examination that there .
were 40-50 shops at Awahdevi and he had not associated any respectable person of the society in the course of investigation. He also admitted the factum of PW1 Rakesh Kumar being employee in the police department.
13. A perusal of the statement of above mentioned witnesses clearly demonstrates that no cogent explanation has come forth from the prosecution as to why no independent witness was associated during the course of search which was conducted of the accused, which allegedly resulted in the recovery of the liquor bottles. That being so, the case of the prosecution with regard to the mode and manner in which the alleged recovery of liquor bottles was made from the accused becomes highly suspicious. The statement of PW1 to the effect that documents in fact prepared in the police chowki itself further shroud the case of the prosecution with great suspicion.
In these circumstances, learned trial Court has rightly held that as the prosecution was not able to prove its case against accused beyond reasonable doubt, they deserved to be given benefit of doubt. In my considered view also, on the strength of evidence on record, it cannot be said that the prosecution was able to prove its case ::: Downloaded on - 01/04/2019 21:59:01 :::HCHP 7 against the accused beyond all reasonable doubt. That being so, there is no infirmity with the judgment passed by learned trial Court .
whereby accused have been acquitted by giving them benefit of doubt.
Accordingly, as this Court does not finds any merit in the present appeal, the same is dismissed.
(Ajay Mohan Goel) Judge 29th March, 2019.
(Guleria) ::: Downloaded on - 01/04/2019 21:59:01 :::HCHP