IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No. 309 of 2000 Judgment reserved on : 13.12.2010 Date of Decision : March 05, 2011 State of H.P. Appellant Versus Lal Chand Aggarwal and others Respondents Coram: The Hon’ble Mr. Justice R. B. Misra, Judge The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 Yes. For the appellant : Mr. R. K. Sharma, Senior Addl. Advocate General for the appellant-State. For the respondents : Mr. Anup Chitkara, Advocate with Ms. Shikha Thakur, Advocate, for the respondents. Sanjay Karol, J. For an offence, which is alleged to have been committed on 25.6.1992 accused were put to trial. In terms of judgment dated 13.12.1999 passed by the learned Chief Judicial Magistrate, Sirmaur District at Nahan, H.P. in Cr. Case No. 17/2 of 1996/93, titled as State of Himachal Pradesh versus Lal Chand Aggarwal and others, accused stand acquitted of the charged offences. Whether reports of Local Papers may be allowed to see the judgment? 2 2. It is the case of the prosecution that Lal Chand Aggarwal (accused No. 1), Bharat Bhushan Aggarwal (accused No. 2), Gian Chand Goel (accused No. 3) and Dinesh Goel (accused No. 4) were the Managing Director/Directors of M/s International Cylinders Private Limited (hereinafter referred to as the ‘Company’). Kailash Chand Kohli (accused No. 5) was the Manager of the said Company. Harish Chand Batra (accused No. 6), who was based in Ambala, used to illegally purchase cylinders manufactured in the factory premises of the Company situated at Paonta Sahib, District Sirmaur, H.P. Accused hatched a criminal conspiracy of unauthorisedly manufacturing L.P.G. cylinders in an illegal manner and then mark them with fictitious and counterfeit mark. Thus concealing the fact that they were not manufactured as per the specifications of the Indian Standard Institute and dishonestly sell them as genuine cylinders. This was so done with dishonest intention of deriving monetary benefits and causing corresponding monetary loss to the consumers. The cylinders were illegally transported to Ambala (Haryana). 3. Accused No. 5 was working as a Manager in the Company of which accused No. 1 was the Managing Director and accused No. 2, 3 and 4 were the Directors. Company used to manufacture L.P.G. cylinders on behalf of Indian Oil Corporation. Material for manufacturing the cylinders was supplied by Indian Oil Corporation. Company was liable to pay Central Excise Tax on all supplies. Only upon payment of tax, officials would issue 3 authenticated gate pass to enable the manufacturers to take the cylinders out of the factory premises. Sometime in the year 1992 police acquired information about the nefarious activities carried out by the accused. On 25.6.1992 SHO-Hardesh Bisht, Police Station, Paonta Sahib along with Dy. S.P. Brij Mohan Sharma and some other police officials conducted raids on the godowns of the Company at village Nariwala. Police party associated independent witnesses Sh. Harbhajan Singh (PW-1) and Sh. Shanti Ram before carrying out the raid. Sh. Ram Villas (PW-24) was found at the spot alongwith Sh. Vinod Kumar and driver Rajesh Kumar. Premises were taken on rent from Sh. Pritam Chand (PW-2). On the directions of accused No. 4, PW-24 had brought Sh. Vinod Kumar for the purposes of inspecting the cylinders. Raid was conducted and 721 cylinders were recovered from the premises. Some of the cylinders were painted and some were without valves. Some of the cylinders were engraved with the trade mark ‘INCYL’ and the others were engraved with the trade mark ‘ECPL’. Police seized the cylinders vide recovery memos (Ext. PW 1/A and 1/B) which were signed by PW-1 and PW-2. Vinod Kumar and Rajesh Kumar were arrested at the spot and maruti van, which was used for transporting the cylinders was also taken into possession. S.H.O. sent ruka to Police Station, Paonta Sahib on the basis of which F.I.R. No. 133 of 1992 (Ext. PW 21/A), dated 25.6.1992 was registered by SI-Chatter Singh. Statements of the witnesses were recorded at the spot. On 27.6.1992 Sh. Ram Villas (PW-24) made a disclosure statement, in the presence of PW-1 and 4 Sh. Shanti Ram, to the effect that he had also concealed 100 empty cylinders in the rented premises owned by Sh. Ram Kishan. There also police carried out raid and recovered 101 cylinders. On 30.7.1992 premises of the Company were inspected and trucks No. HPN-2388 and HP-17-3288 and one maruti van bearing No. HP-17- 0409, used for transporting the cylinders, alongwith other documents were seized by the police. Investigation was partly conducted by Addl. S.P. Sh. G. D. Bhargav (PW-21) who recorded statements of the parties and also seized the dye used for manufacturing the cylinders. Police got the recovered cylinders examined from Forensic Science Laboratory, Bhararighat and obtained the report. Steel strips lying in the factory premises was also seized. Ram Villas (PW-24) moved an application for making statement in favour of the prosecution. He got his statement recorded before the Sub Divisional Judicial Magistrate, Court No. 1, Paonta Sahib, H.P. on 5.10.1994. Sh. Ram Villas turned as an approver which helped the prosecution in completing the investigation. 4. With the completion of investigation challan was presented in the Court for trial and all the accused were charged for having committed offences punishable under Sections 420, 482, 483, 486 read with Section 120-B I.P.C., to which they did not plead guilty and claimed trial. 5. In order to prove its case prosecution examined 28 witnesses. Statements of the accused under Section 313 Cr.P.C. 5 were also recorded. Defence taken was of false implication. The accused tendered in evidence copy of judgment (Ext. D-1) dated 28.4.1999 delivered by Special Judge, Sirmaur District at Nahan, H.P. in Sessions Trial No. 24-N/7 of 1993 whereby they stand acquitted. 6. The Court below acquitted the accused of the charged offences. Hence the present appeal. 7. It is a matter of record that in relation to the very same offence police had split the F.I.R. and tried all the accused under different penal statutes. One case was registered under the Essential Commodities Act, 1955 and in the instant case accused were tried under the Indian Penal Code. Different prosecutions were launched against the very same accused persons. Evidence led in both the cases was exactly the same. In relation to a case under the Essential Commodities Act, 1955, accused stand acquitted of the charged offence. State has accepted the findings and the judgment has attained finality. Ext. D-1 is the judgment dated 28.4.1999 delivered by the Special Judge, Sirmaur District at Nahan, H.P. We have perused the same. The incident, the facts, the evidence and the basis are identical. 8. The Apex Court in Piara Singh versus The State of Punjab, (1969) 1 SCC 379, in almost identical circumstances, in a subsequent prosecution initiated against the parties, acquitted them. The Court held that:- 6 “6. … It should be stated that the principle of issue- estoppel is different from the principle of double jeopardy or autrefois acquit as embodied in Section 403 of the Criminal Procedure Code. The principle of issue- estoppel is a different principle, viz., where an issue of fact has been tried by a competent Court on a former occasion and a finding has been reached in favour of an accused, such a finding would constitute an estoppel or res judicata against the prosecution not as a bar to the trial and conviction of the accused for a different or distinct offence but as precluding the reception of evidence to disturb that finding of fact when the accused is tried subsequently even for a different offence which might be permitted by the terms of Section 403 (2), Cr. P.C. Speaking on the principle of estoppel Dixon, J., said in King v. Wilkes, 77 CLR 511 at pp. 518, 519: "Whilst there is not a great deal of authority upon the subject, it appears to me that there is nothing wrong in the view that there is an issue-estoppel, if it appears by record of itself or as explained by proper evidence, that the same point was determined in favour of a prisoner in a previous criminal trial which is brought in view on a second criminal trial of the same prisoner. That seems to be implied in the language used by Wright, J., in R. v. Ollis (1900-2 QB 758) which in effect I have adopted in the foregoing statement. . . ... .. . There must be a prior proceeding determined against the Crown necessarily involving an issue which again arises in a subsequent proceeding by the Crown against the same prisoner. The allegation of the Crown in the subsequent proceeding must itself be inconsistent with the acquittal of the prisoner in the previous proceeding. But if such a condition of affairs arises I see no reason why the ordinary rules of issue- estoppel should not apply. Such rules are not to be confused with those of res judicata, which in 7 criminal proceedings are expressed in the pleas of autrefois acquit and autrefois convict. They are pleas which are concerned with the judicial determination of an alleged criminal liability and in the case of conviction with the substitution of a new liability. Issue-estoppel is concerned with the judicial establishment of a proposition of law or fact between parties. It depends upon well known doctrines which control the relitigation of issues which are settled by prior litigation." In a subsequent case Marz v. The Queen, 1956-96 CLR 62, Dixon, C. J., stated as follows:- "The law which gives effect to issue-estoppels is not concerned with the correctness or incorrectness of the finding which amounts to an estoppel still less with the processes of reasoning by which the finding was reached in fact. . .. . . . .. It is enough that an issue or issues have been directly raised and found. Once that is done, then, so long as the finding stands, if there be any subsequent litigation between the same parties, no allegations legally inconsistent with the finding may be made by one of them against the other. Res judicata pro veritate accipitur. . . . . . . . . And . . . . . , this applies in pleas of the Crown." Again in Brown ,,. Robinson, (1960) SR (NSW) 297, 301 Herron and Maguire, JJ. said: "Before issue-estoppel can succeed in a case such as this there must be a prior proceeding determined against the Crown necessarily involving an issue which again arises in a subsequent proceeding by the Crown against the same prisoner. .. .. . . . . It depends upon an issue or issues having been distinctly raised and found in the former proceeding". The principle of issue-estoppel has received the approval of this Court in AIR 1956 SC 415 and AIR 1965 SC 87 (supra) and several later decisions. But the principle cannot be invoked in the present case because the parties are different and the decision upon any 8 issue as between State and Nand Lal Sehgal in the same litigation cannot operate as binding upon the State with regard to the present appellant. For issue- estoppel to arise, there must have been distinctly raised and inevitably decided the same issue in the earlier proceedings between the same parties. In our opinion, Mr. Mitter is unable to make good his argument on this aspect of the case.” “7. It was then contended on behalf of the appellant that there was no corroboration of the approver's evidence so far as he was concerned. An accomplice is undoubtedly a competent witness under the Indian Evidence Act. There can be, however, no doubt that the very fact that he has participated in the commission of the offence introduces a serious taint in his evidence and Courts are naturally reluctant to act on such tainted evidence unless it is corroborated in material particulars by other independent evidence. It would not, however, be right to expect that such independent corroboration should cover the whole of the prosecution case or even all the material particulars of the prosecution case. If such a view is adopted it will render the evidence of the accomplice wholly superfluous. On the other hand, it will not be safe to act upon such evidence merely because it is corroborated in minor particulars or incidental details because, in such a case, corroboration does not afford the necessary assurance that the main story disclosed by the approver can be reasonably and safely accepted as true. It is well settled that the appreciation of approver's evidence has to satisfy a double test. His evidence must show that he is a reliable witness and that is a test which is common to all the witnesses. If 9 this test is satisfied the second test which still remains to be applied is that the approver's evidence must receive sufficient corroboration. (See Sarwan Singh v. State of Punjab, AIR 1957 SC 637). …” 9. Applying the aforesaid principle we are of the considered view that since the offences alleged in the instant challan also arise out of the same transaction and on the same set of evidence already there is acquittal, therefore, in law accused need to be acquitted. 10. In any event even on merits, we feel prosecution has no case. We may notice that out of twenty eight witnesses, eleven witnesses have turned hostile. Sh. Harbhajan Singh (PW-1), Sh. Pritam Chand (PW-2), Sh. Kushhal Singh (PW-3), Sh. Kabil Singh (PW-4), Sh. Avtar singh (PW-5), Sh. Chotte Lal (PW-6), Sh. Sarwan Singh (PW-7), Sh. Jagdish Chand (PW-10), Sh. Balbir Singh (PW- 13), Sh. Ravinder Singh (PW-14), Sh. Malkiat Singh (PW-15) are all witnesses to the recovery of cylinders, disclosure statements, seizure of vehicles and documents belonging to the Company. All of them, after being declared hostile were extensively cross examined by the Public Prosecutor. Nothing fruitful could come out from their testimonies. We have no reason to believe that they have falsely deposed in favour of the accused. 11. Statements of eight other witnesses is of formal nature. Sh. Raj Kumar (PW-8) is a photographer, Sh. Amarjit singh (PW-18) 10 is just a witness to the recovery of trucks, HC-Kundan Singh (PW- 16), HC-Rghubir Chand (PW-22), constable Ishwar Singh (PW-23) have registered the F.I.R. and carried out part of the investigation. ASI-Chaman Lal (PW-19) and Sh. K. D. Gupta (PW-20) produced the registers/record of the Excise Barrier and Sh. S. K. Bhatia (PW-25) has produced the specifications of the Bureau of Indian Standards. From their statements complicity of the accused cannot be inferred even remotely. 12. The statements of remaining witnesses i.e. Sh. Krishan Chand (PW-9), Sh. Satya Singh (PW-11), Sh. A. K. Vasudeva (PW- 12), Sh. Tulsi Dass (PW-17), Sh. G. D. Bhargav (PW-21), Sh. Maya Ram (PW-26), Sh. Sajjan Singh (PW-27), Sh. Nand Lal, Dy.S.P.(PW- 28) and approver Sh. Ram Villas (PW-24) needs to be examined. 13. PW-17 is the person who used to issue gate pass. His testimony does not implicate the accused. PW-26 and PW-27 have simply produced the record of the telecom department. Even their testimonies do not implicate the accused. 14. Sh. Krishan Chand (PW-9) is the land lord of the premises from where stocks allegedly belonging to the company were recovered. In fact he has falsified the version of the prosecution. According to him premises were taken on rent by approver Ram Villas and not the Company or any of its Directors. 15. PW-11 simply states that cylinders were being manufactured in the factory premises but however he nowhere 11 states that the accused used to illegally and unauthorisedly manufacture the cylinders in the premises of the company. 16. PW-12 in fact gives a version other than the prosecution case. According to him scrap recovered by the police vide recovery memo (Ext. PW 12/A), was out of the material cut during the gas welding. He does not state anything incriminating against the accused. 17. Law of appreciation of the statement made by an approver has been succinctly enunciated by the Apex Court in Dagdu and others etc. versus State of Maharashtra, AIR 1977 SC 1579 = (1977) 3 SCC 68 wherein it has been held that:- “21. There is no antithesis between Sec. 133 and Illustration (b) of Section 114 of the Evidence Act because the Illustration only says that the Court 'may' presume a certain state of affairs. It does not seek to raise a conclusive and irrebuttable presumption. Reading the two together the position which emerges is that though an accomplice is a competent witnesses and though a conviction may lawfully rest upon his uncorroborated testimony, yet the Court is entitled to presume and may indeed be justified in presuming in the generality of cases that no reliance can be placed on the evidence of an accomplice unless that evidence is corroborated in material particulars, by which is meant that there has to be some independent evidence tending to incriminate the particular accused in the commission of the crime. It is hazardous, as a matter of prudence, to proceed upon the evidence of a self- confessed criminal, who, in so far as an approver is 12 concerned, has to testify in terms of the pardon tendered to him. The risk involved in convicting an accused on the testimony of an accomplice, unless it is corroborated in material particulars, is so real and potent that what during the early development of law was felt to be a matter of prudence has been elevated by judicial experience into a requirement or rule of law All the same, it is necessary to understand that what has hardened into a rule of law is not that the conviction is illegal if it proceeds upon the uncorroborated testimony of an accomplice but that the rule of corroboration must be present to the mind of the Judge and that corroboration may be dispensed with only if the peculiar circumstances of a case make it safe to dispense with it.” “28. Ganpat is an utterly worthless witness whose evidence has been rightly discarded by the High Court. His entire story is incredible and abounds in contradictions of the gravest kind. Accused No. 2 is a man of some means and was for some time the President of the Manwat Municipality. It is hardly likely that a person in his position would readily gulp the fantastic process prescribed by Ganpat for discovering the treasure trove. Ganpat was interrogated by the police for nearly a month and a half after his arrest at Baramati and it was only at the end of that trying period that he trotted out some story to save his skin. It is common ground, and we see much more in that episode, that Ganpat struck his head against a wall while in police custody and sustained a head injury for which he was charge-sheeted for attempting to commit suicide. He admits in his evidence that he was driven to break his head as a result of the torture inflicted upon 13 him by the police. Though he implicated both accused Nos. 1 and 2 in the search for treasure trove, he admitted later that accused No. 1 had never talked to him in that behalf. He made several significant statements for the first time in the Court and though we agree that an approver has real incentive to speak out his mind after tender of pardon, it is impossible to reconcile his earlier statements with his later assertions. It is one thing to say as was said in Madan Mohan Lal v. State of Punjab, (1970) 2 SCC 733 : (AIR 1970 SC 1006) that an approver's statement cannot be discarded for the mere reason that he did not disclose the entire story in his police statement and quite another to accept an approver in spite of contradiction which cast a veil of doubt over his involvement of others. Conceding the ratio of Tahsildar's case (1959) Supp (2) SCR 875 : (AIR 1959 SC 1012) on which Mr. Desai for the State Government relies, the conclusion seems to us inescapable that Ganpat has mixed a ton of falsehood with an ounce of truth. His evidence has therefore to be left out of consideration.” “50. Learned counsel appearing for the State is right that the failure to comply with S. 164 (3), Cr. P.C., or with the High Court Circulars will not render the confessions inadmissible in evidence. Relevancy and admissibility of evidence have to be determined in accordance with the provisions of the Evidence Act. Section 29 of that Act lays down that if a confession is otherwise relevant it does not become irrelevant merely because, inter alia, the accused was not warned that he was not bound to make it and the evidence of it might be given against him. If, therefore, a confession does not violate any one of the conditions operative under 14 Secs. 24 to 28 of the Evidence Act, it will be admissible in evidence. But as in respect of any other admissible evidence, oral or documentary, so in the case of confessional statements which are otherwise admissible, the Court has still to consider whether they can be accepted as true. If the facts and circumstances surrounding the making of a confession appear to cast a doubt on the veracity or voluntariness of the confession, the Court may refuse to act upon the confession even if it is admissible in evidence. That shows how important it is for the Magistrate who records the confession to satisfy himself by appropriate questioning of the confessing accused, that the confession is true and voluntary. A strict and faithful compliance with S. 164 of the Code and with the instructions issued by the High Court affords in a large measure the guarantee that the confession is voluntary. The failure to observe the safeguards prescribed therein are in practice calculated to impair the evidentiary value of the confessional statements.” 18. The Apex Court in Rampal Pithwa Rahidas versus State of Maharashtra, 1994 SCC (Cri) 851 = (1994) Suppl 2 SCC 73 has held as under:- “9. Section 133 of the Evidence Act expressly provides that an accomplice is a competent witness against his co-accused and it renders admissible the testimony of an accomplice against his co-accused. It has, however, been a long settled practice of law that Section 133 of the Evidence Act must be read along with the provisions of Illustration (b) to Section 114 of the Evidence Act. Section 114 of the Evidence Act 15 empowers the court to presume the existence of certain facts and Illustration (b) in express terms says that an accomplice is unworthy of credit unless he is corroborated in material particulars. Thus, it follows, that whereas law permits the conviction of an accused person on the basis of the uncorroborated testimony of an accomplice by virtue of the provisions of Section 133 who is treated as a competent witness, the rule of prudence which has rightly been always accepted by the courts, embodied in Illustration (b) of Section 114 of the Evidence Act, strikes a note of warning/caution to the courts that an accomplice does not generally deserve to be relied upon, unless his testimony is corroborated in material particulars. Thus, as a matter of practice and prudence the courts have held that the testimony of an approver may be accepted in evidence for recording conviction of an accused person provided it receives corroboration from direct or circumstantial evidence in material particulars. The courts have generally looked upon with suspicion the statement of an approver because he is considered to be a person of low morals and not a wholly trustworthy person who for the sake of earning pardon for himself is willing to let down his erstwhile accomplices and therefore before recording conviction courts insist upon independent corroboration of his testimony. In Ram Narain v. State of Rajasthan [(1973) 3 SCC 805, 811: 1973 SCC (Cri) 545] Dua, J. while speaking for the court