Crl. Revision No. 1976 of 2005 -1- In the High Court of Punjab and Haryana at Chandigarh Crl. Revision No. 1976 of 2005 (O&M) Date of Decision: April 20, 2011 Krishan Kumar ---Petitioner versus State of Haryana ---Respondent Coram: HON'BLE MR. JUSTICE GURDEV SINGH *** Present: Mr.Ajit Sihag, Advocate, for the petitioner Mr.Shekhar Mudgal, Asstt. Advocate General, Haryana *** GURDEV SINGH, J. The petitioner-accused, Krishan Kumar, having been convicted and sentenced for the offence under Section 61(1)(a) of the Punjab Excise Act, 1914(hereinafter referred to as “the Act”) by SDJM. Loharu, vide judgment dated 1.4.2002, which was maintained in the appeal by the Additional Sessions Judge, (Ad hoc) Fast Track Court, Bhiwani, vide judgment dated 3.10.2005, has preferred the present revision against that conviction and sentence. On 5.3.1997, Mehar Singh SI, PW-4, along with Jai Singh, Constable, PW-2, and other police officials, was present in the area of Town Crl. Revision No. 1976 of 2005 -2- Loharu, when he received a secret information that the accused was selling the liquor in pouches by keeping the same in a Khudi (a small room meant for keeping hens and birds etc.) of his house and in case, a raid was conducted those pouches of liquor could be recovered from his possession. The SI tried to join witnesses from the public for constituting the raiding party but failed to do so. Thereafter, he along with other police officials, conducted a raid, at the Khudi, abutting the house of the accused. The accused was seen coming out of the same holding one plastic bag in his hand. On seeing the police party, he left that bag at the gate of the Khudi and tried to run away from the spot. He was apprehended by this police party. When the search was taken, three such bags were found lying at the gate of the Khudi. Two of the bags were found to contain 100 pouches whereas the third bag was found to contain 85 pouches of country made liquor make 50 UP 200 ml. One pouch each was taken out of each of those bags as samples and were sealed by the SI with his seal “MS”. The remaining pouches were sealed in the same bags with the help of the same seal. The case property was taken into possession, vide memo Ex. PC. The SI sent his ruqa, Ex. PA, to the police station and on the basis thereof, formal FIR, Ex. PB, was recorded against the accused by Shri Bhagwan, MHC. On coming back to the police station, the SI deposited the case property with the said MHC. Out of that case property, the sample pouches were sent to the Chemical Examiner on 11.3.1997 through Sajjan Singh, Constable, PW-3 and were delivered at that place with seals intact. After analysis, it was reported by the Chemical Examiner, vide his report, Ex. PX, that the same contained liquor. After completion of the investigation, the challan was put in before SDJM, Loharu, who found sufficient grounds for presuming that the accused committed offence punishable under Section 61(1) of the Act. He was charged accordingly, to which he pleaded not guilty and claimed trial. To prove the Crl. Revision No. 1976 of 2005 -3- guilt of the accused, prosecution examined Shri Bhagwan HC, PW-1, Jai Singh, Constable, PW-2,Sajjan Singh, Constable, PW-3 and Mehar Singh, PW-4. After the close of the prosecution evidence, the accused was examined and his statement was recorded under Section 313 Cr.P.C. The incriminating circumstances appearing against him in the prosecution evidence were put to him in order to enable him to explain the same. He denied all those circumstances and pleaded his innocence and false implication. He was called upon to enter on his defence but he did not produce any evidence in his defence. After hearing the Assistant Public Prosecutor for the State and learned defence counsel for the accused, learned SDJM, Loharu, convicted him for the offence under Section 61(1) of the Act and sentenced him to undergo rigorous imprisonment for a period of 1 ½ years and to pay a fine of ` 1000/- and in default of payment of fine to further undergo imprisonment for a period of two months. In the appeal preferred by the accused, the conviction was maintained but the sentence of imprisonment was reduced to six months. I have heard learned counsel for both the sides. Learned counsel for the petitioner-accused assailed the conviction of the accused on the ground that the same could not have been recorded on the basis of the statements of the police officials, in the absence of independent corroboration, as those statements are full of discrepancies. He also submitted that against the sentence of imprisonment of six months, the accused has already undergone the sentence of imprisonment of 1 ½ months and he is the first offender and be released on probation. There is no rule of law that reliance is not to be placed on the statements of the police officials in the absence of independent corroboration. It depends upon the facts and circumstances of each case as to what is the effect of non-joining and non-examination of an independent witness. It is only when Crl. Revision No. 1976 of 2005 -4- there was an opportunity with the Investigating Officer to joint independent witnesses from the public and he failed to do so, that the statements of the police officials are liable to criticism on that ground. If there was no such opportunity and there was no omission on the part of the Investigating Officer to join such a witness, the same has no effect on the statements of the police officials, who command the same respect as any other witness. Nothing could be elicited during the cross examination of the recovery witnesses; namely, Mehar Singh, PW-4, and Jai Singh, Constable, PW-2, on the basis of which it may be held that in spite of the fact that independent witnesses could have been joined in the investigation before effecting the search, the same was not done. Therefore, no adverse inference or adverse comment can be made against the prosecution merely on the ground that the statements of the police officials have not been corroborated by some independent evidence. At the time of making the submissions, learned counsel for the accused pointed out some discrepancies in the statements of the said recovery witnesses. The discrepancies, so pointed out, are very minor and bound to occur even in the case of most truthful witnesses, when they were examined in the court after the expiry of some time of the recovery itself. Only tutored witnesses can make perfect statements in the Court. There is no ground for coming to the conclusion that the statements made by these police officials are not credible. For proving the guilt of the accused, the prosecution was required to prove that the samples, which were so taken at the spot, were sent to the Chemical Examiner and were found to contain liquor. According to Mehar Singh SI, PW-4, after coming back to the police station, he had deposited the case property with Shri Bhagwan, MHC, and that the report of the Chemical Examiner is Ex. PX. According to Shri Bhagwan, MHC, PW-1, he had sent the Crl. Revision No. 1976 of 2005 -5- samples to the Chemical Examiner on 16.3.1998, vide RD No. 78 dated 16.3.1998, through Sajjan Singh, Constable. He stands contradicted by Sajjan Singh, Constable, PW-3, as according to him, these samples were given to him by the MHC on 11.3.1997 and he had delivered the same in the office of the Chemical Examiner on the same day. As per the endorsement of the report, Ex. PX, which is also admissible as part of the report itself, these samples were received in the office of the Chemical Examiner on 3.4.1997 through one Varinder Saini, Therefore, it cannot be said that the samples, which were so analyzed and were found to contain liquor, were the same samples which were taken at the spot by Mehar Singh, SI, PW-4. In view of that, it cannot be held that any such liquor was recovered from the possession of the accused. In the result, this revision is hereby accepted. The conviction and sentence of the accused is set aside. Fine, if already deposited, be refunded to him. Records of the trial court be returned forthwith. (GURDEV SINGH) JUDGE April 20, 2011 PARAMJIT Whether referred to the Reporter? Yes