Hoshiar Singh vs State of Haryana

Harbans Singh Rai, J.

Hoshiar Singh petitioner was convicted by Judicial Magistrate Ist Class, Bhiwani vide his judgment and order dated 5th July, 1983 for the offence punishable under Section 61(1)(c) of the Punjab Excise Act and was sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs. 500/ and in default of payment of fine to further undergo rigorous imprisonment for one month. His appeal against his conviction and sentence was dismissed by Additional Sessions Judge, Bhiwani, vide judgment dated 21.2.1986.

The prosecution case, in brief, is that on receipt of secret information, Dule Ram A.S.I. along with other police officials and one Ram Kumar, a person from the public conducted a raid on the fields of the petitioner on 8th September, 1980 at 12.10 p.m. in the area of village Kumar where the petitioner was found distilling illicit liquor by means of a working still. The working still was dismantled and samples from the illicit liquor and lahan contained in a pitcher were taken which alongwith other components of the working still were taken into possession vide memo Exhibit PD. After completion of investigation, the petitioner was challaned, tried convicted and sentenced as stated above.

To prove its allegations, the prosecution examined Hari Hanker, Excise Inspector as PW1, Dule Ram S.I. as PW2 and Mohinder Singh Head Constable as PW3, all the witnesses of recovery. However, the only person from the public namely Ram Kumar was not examined by the prosecution and it was reported that he was not available.

I have heard the learned Counsel for the parties and gone through the evidence with their help.

Mr. D.S. Bali, learned Counsel for the petitioner has brought to my notice a number of discrepancies and contradictions in the testimony of the prosecution witnesses. He also contended that the only independent witness namely Ram Kumar who was admittedly present at the time of recovery has not been examined and no explanation is forthcoming why he was not produced in the witness box by the prosecution.

I have considered the arguments of the learned Counsel for the petitioner. The discrepancies and contradictions brought to my notice now, were pointed before the first appellate Court but the same were not given any weight or importance saying that such discrepancies are bound to occur in the testimony of official witnesses because they are to conduct such raids often and they are not expected to remember all the minute details of such recoveries especially when they are examined after a sufficiently long time. But when a prosecution case rests upon the testimony of official witnesses alone, even minor discrepancies or contradictions in their statements assume significance. If the prosecution had examined the independent witness, it could be said that minor contradictions are to be ignored as the statements of officials witnesses are corroborated by the statement of a public witness, but in case where the only public witness has not been examined and no worthwhile explanation has been forthcoming for his nonexamination, even the minor contradictions have to be looked into. If in such a situation, the discrepancies or contradictions have to be looked into. If in such a situation, the discrepancies or contradictions are to be ignored, there is no other test left to satisfy whether the official witnesses are telling truth or not. It is not in every case that the contradictions have to be ignored. It depends on the facts and circumstances of each case.

In the case in hand, Ram Kumar the only witness from the public, has not been examined by the prosecution without any justifiable excuse and there are discrepancies in the statements of the official witnesses. The learned lower Courts were not justified in ignoring the same merely by saying that though they do exist but are not sufficient to discard the testimony of the prosecution witnesses. The nonexamination of Ram Kumar, the only person from the public when seen in the light of the contradictions in the testimony of the official witnesses becomes more important and the prosecution cannot take advantage of its own act.

For the foregoing reasons and discussion, the judgments and orders of the Courts below awarding conviction and sentence to the petitioner are set aside and after giving the benefit of doubt, the petitioner is acquitted of the charge. The amount of fine, if paid, be refunded to the petitioner. The revision petition is allowed accordingly.