A statement under Section 313 of Cr.P.C. is not evidence but an explanation: High Court of Jharkhand

IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Rev. No. 9712 1. Bhushan Mahto S o Arjun Mahto 2. Santosh Rajwar S o Late Raghunath Rajwar Both resident of Korambey P.O. & P.S. Gola District The State of Jharkhand … … Opposite Party … … CORAM :HON BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY Mr. Rahul Dev Advocate Mr. Bishwambhar Shastri A.P.P. For the Petitioner s For the State Through Video Conferencing Heard Mr. Rahul Dev learned counsel appearing on behalf of the petitioners. 2. Heard Mr. Bishwambhar Shastri learned A.P.P. appearing on behalf of the opposite party State. This criminal revision petition is directed against the judgement dated 15.09.2012 passed by the learned Sessions Judge Bokaro Camp at Tenughat in Cr. Appeal No. 111 whereby the conviction of the petitioners for offence under Section 47(a) of Excise Act has been sustained but the sentence has been modified and reduced to three months simple imprisonment and fine of Rs. 500 with default clause. The petitioners were convicted vide judgement of conviction and order of sentence both dated 10.02.2011 passed by learned A.C.J.M. Bermo at Tenughat in G.R. case No. 554 of 2007 corresponding to T.R. Case No. 145 of 2011 for offence under Section 47(a) of Excise Act. The learned counsel for the petitioners has submitted that the impugned judgements passed by the learned courts below are perverse and cannot be sustained in the eyes of law. He further submits that out of 11 charge sheeted witnesses only five have deposed before the learned court below and out of them two seizure witnesses i.e. P.W. 1 and P.W. 3 have turned hostile although they have identified their signature on the seizure list which were marked as Exhibit 1 and 1 1. P.W 2 was also declared hostile. The learned counsel also submitted that P.W. 4 was the informant of the case and was a police officer. He submits that neither the seized articles have been produced exhibited nor the chemical examination report has been produced exhibited before the learned court below. He submits that in such circumstances neither the seizure has been proved nor the contents of the seized articles have been proved to be wine. The entire case rests on the evidence of two police officers i.e. P.W. 4 and P.W. 5. He submits that although the investigating officer has stated that the seized wine was tested after investigation but the test report has not been exhibited. The learned counsel for the petitioners submits that in such circumstances the conviction and sentence of the petitioners be set aside. The learned counsel appearing on behalf of the opposite party State on the other hand has opposed the prayer and has submitted that the learned courts below have scrutinized the materials on record and have recorded concurrent findings regarding the offence committed by the petitioners. He submits that the seizure witnesses who turned hostile have not disputed their signature on the seizure list and the learned court below has considered this aspect of the matter and has recorded that generally the seizure witnesses become hostile because they do not want to take enmity with the accused persons of the locality and there is no evidence on record that the accused persons had any inimical relation with the informant and the police officers examined in the case as P.W. 4 and P.W. 5 who have fully supported the prosecution case regarding seizure of 10 cartoons of wine from the Maruti van in which they were travelling during the date and time of occurrence. The learned counsel submits that in absence of any perversity and there being no material irregularity the impugned judgements do not call for any interference in revisional jurisdiction. After hearing the learned counsel for the parties this Court finds that as per the prosecution case on 10.07.2007 at about 8 pm on the basis of secret information the informant sub inspector of police along with armed forces went to NH 23 at Petarbar and checked a Maruti van and found total 10 cartoons of wine. There were two persons in the van who are the petitioners before this Court. Upon asking they disclosed their name and on demanding paper they could not show any document justifying the possession of 10 cartoons of wine. Wine was seized by the informant in presence of independent witnesses namely P.W. 1 and P.W. 3. After investigation charge sheet was submitted against the petitioners for offence under Section 414 IPC and 47(a) of the Excise Act and cognizance of offence was also taken under the same sections. During trial altogether five witnesses were examined. P.Ws. 1 2 and 3 were declared hostile by the prosecution. However P.W. 1 and 3 identified their signature on the seizure list which were marked as Exhibit 1 and 1 1 respectively. So far as P.W. 4 the informant of the case is concerned he has fully supported the prosecution case. He exhibited his written report as Exhibit 2. He also exhibited his signature and writing of the seizure list which were marked as Exhibit 3. During his cross examination he had stated that at the time of seizure he handed over the seized material to the officer in charge and had not inspected the materials kept inside the cartoons. He also stated that the seized materials were sealed at the time of their seizure. P.W. 5 is the investigating officer of the case. He has also supported the prosecution case. He had submitted charge sheet on 31.08.2007 under Section 414 of Indian Penal Code and under Section 47(a) of the Excise Act. He has identified the place of occurrence and has also stated that he had recorded the statement of the seizure witnesses who had supported the prosecution case. He has also deposed that upon seeing the police the petitioners jumped and tried to run away from the vehicle and were arrested by the police and upon checking 10 cartoons of wine were recovered. He has also stated that there were other witnesses who were police officials and who had given the statement in support of the prosecution case. However these witnesses have not been examined by the prosecution before the learned court below. Although the investigating officer of the case has recorded that the seized wines were got tested and after investigation he submitted the charge sheet but admittedly neither the test report nor the seized materials have been exhibited before the learned court below. 10. The learned trial court considered the materials on record and recorded that the seizure list shows that wine was recovered from the vehicle and was seized. The learned trial court also noted that the seizure list contains the signature of the accused persons and the seizure witnesses have identified their signature. It further recorded that P.W. 3 had also stated that Maruti van was taken to the police station by the police. The trial court also recorded that generally in a case brought by police witnesses become hostile because they do not want to take enmity of the accused persons of the locality and there is no evidence on record regarding any inimical relationship of the accused persons with the informant and police officers examined as P.W. 4 and 5. The learned trial court also recorded that there was no doubt that although the seized materials were not produced before the learned court but the same per se is not fatal to the prosecution case as there was no occasion for the police official witnesses to bring false case against the accused persons. So far as the offence under Section 414 of Indian Penal Code was concerned the learned trial court found that there was no material on record to show that the seized wine was stolen material and accordingly offence under Section 414 of Indian Penal Code was not made out. The learned trial court convicted the petitioners only under Section 47(a) of the Excise Act. So far as the learned appellate court is concerned the appellate court also upheld the conviction for offence under Section 47(a) of the Excise Act and rejected the argument of the petitioners on the point that liquors seized were not chemically examined and accordingly it was not proved to be wine on the ground that P.Ws. 4 and 5 have consistently stated that the seized material was wine and the brand of the wine was also stated by them and that the accused persons have not denied in their statement under Section 313 that the seized material was liquor. 13. This Court is of the considered view that the reasoning given by the learned appellate court to uphold the conviction even when neither the chemical examination report of the liquor was proved nor the seized articles were exhibited cannot be sustained merely on the oral evidence of P.Ws. 4and 5 and also on the ground that the petitioners have not denied in their statement under Section 313 of Code of Criminal Procedure that the seized material was liquor. This Court is of the considered view that it is for the prosecution to prove the seizure and also that the seized material was wine. Admittedly the chemical examination report has not been exhibited in the present case. This Court has also gone through the lower court records and found that the chemical examination report is not even available in the record except that the investigating officer of the case has recorded in the case diary that the chemical examination report was received. 14. Considering the totality of the facts and circumstances of this case this Court is of the considered view that the prosecution has not been able to prove the case beyond all reasonable doubt and merely because the accused have not stated in their statement under Section 313 of Code of Criminal Procedure that the seized material was something else the same could not have been a ground to sustain the conviction of the petitioners as has been done by the learned lower appellate court. The statement recorded under Section 313 of Code of Criminal Procedure is not evidence but is an explanation by the accused when the incriminating materials are put before him by the court and it is for the prosecution to prove the case beyond shadow of all reasonable doubts. This Court also finds that when the petitioners were produced before the learned court below on 11.07.2007 after their arrest they were remanded on the basis of forwarding report memo of arrest and seizure list and a prayer for sending the seized articles for verification by the Excise Inspector was made only on 23.08.2007 and the examination report is neither exhibited nor available in the record. In view of the aforesaid facts and circumstances the judgements call for in revisional jurisdiction of this court in order to secure the ends of justice as the impugned judgements are perverse and suffer from material irregularity. Accordingly the petitioners are entitled to benefit of doubt. 16. As a cumulative effect of the aforesaid findings the judgement of conviction and sentence dated 10.02.2011 passed by learned A.C.J.M. Bermo at Tenughat in G.R. case No. 5507 corresponding to T.R. Case No. 145 of 2011 as also the judgement dated 15.09.2012 passed by the learned Sessions Judge Bokaro Camp at Tenughat in Cr. Appeal No. 111 are hereby set aside. 17. This Criminal revision petition is accordingly allowed. 18. The bailors are discharged of their liability under the bail 19. Pending interlocutory applications if any are closed. 20. Let the lower court records be immediately sent back to the court concerned. 21. Let a copy of this order be communicated to the learned court below through ‘FAX Email’. Anubha Rawat Choudhary J.) 

Summary: The Court was of the considered view that the prosecution was not able to prove the case beyond all reasonable doubt. Such an opinion was held by The Hon’ble High Court of Jharkhand before The Hon’ble Mrs. Justice Anubha Rawat Choudhary in the matter of Bhushan Mahto S/o Arjun Mahto and Anr Vs. The State of Jharkhand [Cr. Rev. No. 979 of 2012].  The facts of the case were associated with a criminal revision petition against a judgment passed by the learned Sessions Judge, Bokaro Camp at Tenughat dated 15.09.2012, wherein the petitioners were convicted for the charges under Section 47(a) of Excise Act. The counsel representing the petitioners contended that the impugned judgments were irrational and were unsustainable under the eyes of the law. It was also stated that five witnesses had deposed before the court out of 11 charge-sheeted witnesses. The counsel submitted that during such situations conviction of the petitioners must be set-aside. The trial court opined that even if the seized materials were not produced in the court, the same was not fatal to the prosecution case. The counsel also contended that the whole case rested upon the evidence of two police officers.  The counsel representing the State opposed the prayer and contended that the seizure witnesses who turned hostile, have not disputed their signature on the seizure list. The counsel stated that the impugned judgements did not call for any interference in revisional jurisdiction in the absence of any perversity and material irregularity. It was reported that upon checking a Maruti Van, the officers found a total of 10 cartons of wine. After investigation, a charge sheet was submitted against the petitioners for an offence under Section 414 IPC and 47(a) of the Excise Act. There was no material on record to show that the seized wine was stolen material as found out by the Trial Court, therefore offence under Section 414 of the Indian Penal Code was not made out.  Considering all submissions and facts The Hon’ble Court ruled out that “In view of the aforesaid facts and circumstances, the impugned judgements call for interference in revisional jurisdiction of this court in order to secure the ends of justice as the impugned judgements are perverse and suffer from material irregularity. Accordingly, the petitioners are entitled to benefit of doubt… This Criminal revision petition is accordingly allowed… The bailors are discharged of their liability under the bail bond.”