IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. Cr. Appeal No.253 of 2001 Date of Decision : 12.3.2008 State of H.P. …Appellant. Versus: Roop Lal …Respondent. Coram: The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for reporting?1 No For the appellant: Mr. Vivek Thakur, Additional A. G. with Ms. Shubh Mahajan, Dy. A.G.. For the respondent : Mr. B. K. Malhotra, Advocate. Sanjay Karol, J. (Oral). The present appeal arises out of the judgment dated 22.11.2000 passed by the Judicial Magistrate Ist Class, Court No. III, Mandi, Distt. Mandi, H. P. in Cr. case No. 229-II1/99/98, acquitting the accused of the charged offence. As per the case of the prosecution, on 22.1.1998 at about 9.30 a.m. HC Santosh Kumari (PW-6) along with HC Yashwant Singh (PW-2), were on patrolling duty at Hospital Road, Mandi. They saw the accused carrying a plastic bag containing a plastic Can. On seeing the police party, the accused tried to flee but was apprehended and searched. During search, it was found that the 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 Can being carried by the accused was containing 5 ltrs. of illicit liquor. Sample nip was taken and the contraband was seized vide recovery memo Ext.PW-2/A in the presence of the independent witnesses Shri Tilak Raj (PW-3) and HC Yashwant Singh (PW-2). Rukka Ext.PW-6/A was sent to the police station on the basis of which FIR No.36/98 (Ext.PW-1/A) was registered with the Police Station, Sadar, Mandi, H.P. under Section 61(1)(14) of the Punjab Excise Act as applicable to the State of H.P. During investigation, the sample was sent for chemical examination to the CFL, Laboratory at Kandaghat and report Ext.PW-6/D was also obtained. As per the report the alcoholic strength of the liquor was found to be 54.3%. With the completion of the investigation, the challan was presented in the Court for trial. The accused was charged for an offence under Section 61(1)(a) of the Punjab Excise Act as applicable to the State of H.P. to which the accused did not plead guilty and claimed trial. In order to prove its case, the prosecution examined six witnesses and the statement of the accused under Section 313 Cr.PC was also recorded. The Court below, after considering the material on record acquitted the accused of the charged offence for the reasons that the independent witnesses who were examined had not supported the prosecution case and no independent person was associated by the Investigating Agency from the vicinity of the place of occurrence of the offence. I have heard the learned counsel for the parties and perused the record. 3 HC Hem Raj (PW-1) has deposed to the effect that he received the rukka and registered the FIR Ext.PW-1/A. He also received the case property seized by the police party. SI Bishambar Dutt (PW-4) has prepared the challan and presented the same in the Court for trial. LHC Dalip Singh (PW-5) took the sample to the CFL, Laboratory at Kandaghat, H.P. obtained report. From the statements of these witnesses, it is clear that the FIR was registered and the seized sample was sent for chemical analysis. This, however, would not prove the guilt of the accused. In order to ascertain as to whether the prosecution has been able to prove its case beyond reasonable doubt, the statements of the remaining witnesses HC Yashwant Singh (PW-2), Shri Tilak Raj (PW-3) and HC Santosh Kumari (PW-6) need to be examined. From the version of PW-3, it is clear that he has brought out a version which would lead to the innocence of the accused. According to him, he was working as a Salesman with the liquor Contractor and the accused was not apprehended by the police in his presence and the contraband (Ext.P-1) seized vide seizure memo Ext.PW-2/A was not recovered in his presence. According to him, he had signed the seizure memo only on the asking of the liquor Contractor. He has denied the contents of Ext.PW-2/A and has specifically stated that no proceedings/investigation took place in his presence. From his statement, therefore, what emerges is that the accused has been falsely implicated by the prosecution as no recovery took place in the presence of independent witnesses and 4 the documents were signed by him on the asking of a third party i.e. the liquor Contactor. Statements of the remaining two witnesses who are police officials being PW-1 and PW-6 need to be examined with circumspection in the absence of any independent witness. Undoubtedly these two witnesses have supported the case of the prosecution but their statements do not appear to be reliable and trustworthy. It is the case of the prosecution that PW-2 and PW-3 were together on patrolling duty at the time when the accused was seen, apprehended and caught with the contraband. The proceedings took place in a broad day light and in busy market place. These two witnesses had initiated the proceedings in the presence of each other. PW-2 has categorically admitted that there were passer byes present at the spot but when questioned, he has shown ignorance of the fact as to whether any passer bye was asked to associate with the investigation. When asked as to whether any notices, in writing, were issued to independent persons or not he has simply stated that it would be in the knowledge of the Investigating Officer. Since the proceedings had taken place in his presence he ought to have known these facts. Obviously, the witness has not deposed the complete truth. These witnesses are police officials and are interested in the success of the prosecution even if a person is falsely implicated. Why no independent witnesses were associated by the Investigating Agency at the time of the occurrence of the incident has not been explained either. 5 In fact, PW-6 has stated that she had not summoned any of the independent witness in writing and also could not state as to why the same was not done. She also could not specify whom she had asked to associate as an independent witness at the time of the recovery of the contraband. In my view, the statements of the witnesses are evasive and cannot be relied upon to prove the guilt of the accused beyond reasonable doubt particularly when another version showing the innocence of the accused of having been falsely implicated by the prosecution on the asking of the liquor Contractor has come on record. To my mind, the accused has been falsely implicated and the prosecution has not been able to prove the guilt of the accused for the charged offence. There is yet another aspect of the matter. The version of PW-6 that the rukka was sent by him through PW-2 to the police station has not been corroborated by PW-2 himself. The accused has had the advantage of having been acquitted by the court below. The trial court has examined the matter in its entirety and there is no perversity in the same. I see no reason to interfere with the same. The appeal is accordingly, dismissed. The bail bonds are discharged. (Sanjay Karol), Judge. March 12, 2008 (rana).