IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No.212 of 2002. Date of decision: 6th January, 2009. State of H.P. .. ..Appellant Versus Hem Raj and others . . ..Respondents Coram: The Hon’ble Mr. Justice Deepak Gupta, J. Whether approved for reporting ? No For the Appellant: Mr.Rajesh Mandhotra, Dy.A.G. For the respondent: Mr.M.L. Brakta, Advocate. _____________________________________________________ Deepak Gupta, J.(oral) This Appeal by the State is directed against the judgment of the learned Judicial Magistrate Ist Class(2), Shimla, H.P. dated 22.12.2001 whereby he acquitted the accused of having committed an offence punishable under Section 61(i)(a) of the Punjab Excise Act as applicable to the State of Himachal Pradesh. The prosecution case, in brief, is that on 12.8.1998, the police received information that some liquor was being transported illegally in a maruti Gypsy bearing No.HP-51-0052. The Investigating Officer thereafter constituted a raiding party and associated two independent witnesses Prem Chand and Vijay Kumar. Thereafter, the vehicle in question was intercepted in the Sanjauli Bazaar and on search of the vehicle 595 pouches of country liquor were recovered from the said vehicle. All the four accused were travelling in the …2… said vehicle. After completing the codal formalities and taking requisite number of samples and completing investigation, challan was filed against the accused. The accused pleaded not guilty and claimed trial. After trial they have been acquitted. Hence, the present appeal by the State. At the outset it may be noticed that this is a case based on prior information. Therefore, in accordance with law the prosecution was bound to associate two independent respectable witnesses. One of the witnesses who has been associated is Vijay Kumar PW- 2. He did not support the prosecution case in his examination-in-chief. He was declared hostile and cross examined by the Public Prosecutor. At this stage he admitted all what was suggested to him by the Public Prosecutor and also stated that the liquor was recovered from the Gypsy in his presence. He also admitted that 595 pouches of liquor were recovered. He admitted his signatures on Ext.PW-2/A and also admitted portion “A” to “A” of his statement Ext.PW-9/F. However, when he was cross examined by the accused he again took a U turn and stated that he is a witness for the police in a number of cases and according to him he saw the whisky for the first time in the Police Station and he was told by the police officials that four persons were in the Gypsy. He could not identify any of the four persons. He states that he signed the documents in the Police Station. He also stated that the four persons were not …3… taken into custody in his presence. He further states that in his presence no liquor was recovered from the accused. PW-3 the other independent witness also turned hostile. He states that he was called to the Police station and made to sign some documents. He was declared hostile and cross examined. He has denied that anything occurred in his presence. He has denied making the statement to the police. PW-4 Rajeev is a Home Guard official. He was allegedly part of the raiding party. He also states that the liquor was not seized in his presence and he was told about the same by the police officials. PW-6 Constable Hari Krishan is also a member of the raiding party. In cross examination he states that the entire documentation was done inside the police station. According to him both the independent witnesses reached the spot of their own. This is also not in accordance with the prosecution case. From the above, it is apparent that the prosecution has miserably failed to prove that any recovery of liquor was made. The independent witnesses have not supported the prosecution version. In fact the Home Guard officials have also not supported the prosecution case. The recovery itself is extremely doubtful. The manner in which the case was investigated shows that the matter was investigated in a very shoddy manner. The learned trial Court rightly acquitted the accused. I …4… find no reason to interfere with the said judgment. Accordingly, the appeal is rejected. Bail bonds furnished by the accused are ordered to be discharged. Before parting with the case, I must observe that the statement of PW-2 Vijay Kumar as made in the Court clearly shows that he is a person who has no respect for legal proceedings or the Courts. In his statement recorded on oath he first stated that on 12.8.1998 at about 9.30 p.m. the police people called him and told him that two sacks of liquor have been recovered from a Gypsy and no recovery was made in his presence. After being declared hostile he accepted every suggestion made by the prosecution and stated that recovery has been made in his presence. He also admitted that portion marked “A” to “A” of his statement which was later exhibited as Ext.PW-9/F was correct. However, when he was cross examined by the accused he again denied that any search was conducted in his presence. It is obvious that some portion of his statement recorded on oath is false. This witness admits that he has also signed the recovery memo Ext.PW- 2/A. This document according to one portion of his statement was fabricated. The signing of such a document without verifying the facts can lead to total mis-carriage of justice. This is an offence against the administration of justice. Giving or fabricating false evidence with intention to procure conviction is an …5… offence falling under Chapter-11 of the I.P.C. Making a false statement in Court is also an offence. I am prima facie of the opinion that Vijay Kumar is liable to be tried for committing an offence either of fabricating a false document or of committing perjury. However, before initiating any action against him, I deem it fit that notice be issued to said witness Vijay Kumar son of Sh.Amar Nath, R/o Shop No.2, Sanjauli, Shimla, H.P. to show cause why action be not initiated against him as aforesaid. The Registry is directed to register the same as a separate petition. 6th January, 2009. ( Deepak Gupta ), PV Judge