IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 433 of 2003 Date of decision: 20.05.2010 State of H.P. ... Appellant Versus Nirdosh Kumar @ Pawan and another … Respondents Coram : The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 No. For the appellant: Mr. Vikas Rathore, Deputy Advocate General. For the respondents: Mr. Ajay Sharma, Advocate. V.K. Ahuja , J. (Oral): This is an appeal filed by the State of H.P. under Section 378 Cr.P.C. against the judgment of the Court of learned Additional Chief Judicial Magistrate, Dehra, dated 30.8.2000, vide which the respondents were acquitted of the charge framed against them under Section 61(1)(a) of the Punjab Excise Act, 1914, as applicable to the State of H.P. 2. Briefly stated, the facts of the case are that on 3.3.1993 PW-8 S.I. Bidhi Singh alongwith other police officials was present at Mangla Mor near Dhaliara. A motor cycle came there, at about 10.15 P.M., which was signaled to stop, but the Motor Cyclist did not stop and ran away with the pillion rider leaving the motor cycle at the spot. From the spot, the police recovered a bag containing 14 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 bottles of rum and six broken bottles, which were taken into possession. Two samples were taken out of those bottles and these were sent to the expert and on receipt of the report of the expert, the challan was filed as against the respondent after investigation of the case. The respondents were tried by the learned trial Court, leading to their acquittal. 3. I have heard learned counsel for the parties and have gone through the record of the case. 4. On appraisal of the evidence led by the prosecution, it is very much clear from the statement of PW-8 Bidhi Singh, S.I./Incharge of the raiding party and other official witnesses accused persons ran away from the spot after leaving the Motor Cycle. The main question remains in regard to the identity of the respondents who were going on motor cycle. PW-6 Desh Raj, a member of the raiding party, has clearly stated that both the accused persons ran away from the spot after leaving the Motor Cycle. He further stated that ASI Sahib may have identified them, meaning thereby that he could not identify them as to who were the two persons going on the Motor School. Therefore, he does not prove the identity of the Motor Cyclist or the pillion rider. 5. PW-7 Ashok Kumar, next member of the raiding party, has stated that the Motor Cyclist left the motor cycle on the road and ran away from the spot. He further stated that the motor cycle was being drawn by Pawan Kumar and other person was Sher Singh. He did not state as to how he had identified that the motor cycle was being driven by Pawan Kumar and the pillion rider was Sher Singh and they were previously known to him. Therefore, it is difficult 3 to hold that this witness had identified both the respondents at the spot. The third witness was PW-8 S.I. Bidhi Singh, who stated that he was knowing the accused persons previously and he saw that the motor cycle was being driven by Pawan Kumar and the pillion rider was Sher Singh. He further stated that he was knowing the accused persons prior to that date, but how he could identify at night time in the torch light itself is difficult to believe. He also admitted about some dispute with the respondents, though he denied that he intended to purchase gun from the respondent, for which the FIR was registered. He further stated in cross-examination that he was knowing Sher Singh since he used to take meal at the Dhaba in which he was working. He further stated that he identified the accused persons. The police officer had not apprehended the accused persons immediately after the occurrence or their presence at the spot was not established that they have gone on the motor cycle or the motor cycle belonged to them and was being driven by one of the respondents at the relevant time. 6. Apart from the above, the police had taken into possession two samples out of the bottles recovered at that time, which were got analysed and according to the report of the Chemical Examiner, these were found containing rum. However, the only two samples were analysed and it cannot be said that the remaining bottles were also of rum or whisky or were of liquor, which they were not permitted to export at that time. Until and unless, samples were taken from each of the bottles, it cannot be said that the accused persons were found in possession of the bottles wherefrom two samples only were taken out of the bottles recovered. One another 4 fact which had weighed with the learned trial Court that the copy of FIR was sent after 15 hours, which also have heavily weighed with the learned trial Court in disbelieving the prosecution story. The net conclusion drawn by the learned trial Court on the basis of the evidence led by the prosecution, cannot be said to be perverse calling for an interference by this Court. 7. In view of the above discussion, I accordingly hold that there is no merit in the appeal filed by the appellant, which is dismissed accordingly. The bail bonds furnished by the respondents shall stand discharged. ( V.K. Ahuja ), May 20, 2010 Judge (BSS) 5