Jagdish Chand vs State of Punjab

A.S. Nehra, J.

The petitioner was convicted under Section 9 of the Opium Act and was sentenced to undergo rigorous imprisonment for a period of one year and six months and to pay a fine of Rs. 300/ and, in default of payment of fine, to undergo further rigorous imprisonment for two months by the Judicial Magistrate 1st Class, Patiala. The appeal filed by the petitioner was dismissed by the Additional Sessions Judge, Patiala, on 7.2.1986. Hence, this revision petition.

The brief facts of the prosecution case are as under :

On 5.10.1979, ASI Hardeep Singh along with Head Constable Sarup Singh, Head Constable Shamsher Singh, constable Avtar Singh and other officials, was on excise and opium detection raid and, when the police party reached near new Moti Bagh, Patiala on the road the accused was also seen coming on foot from the side of village Sular. On suspicion he was apprehended and, prior to this, the police also joined Sadhu Ram as an independent witness while they were going for the detention of opium and excise. The personal search of the accused was conducted under the rules. On personal search, the accused was found having a jhola in his right hand, in which opium wrapped in a glazed paper was recovered. On weighing the opium, it came to 5 Kgs., out of which 20 grams was taken as sample and then two separate parcels were prepared and they were sealed with the seal of "H.S." along with the thumbimpression chit of Sadhu Ram PW. The remaining opium then was put in a tin box and taken into possession, vid recovery memo Ex. PA attested by the P.Ws. The specimen seal ex. P1 was also prepared. The jhola is Exhibit P2 and Exhibit P3 is opium. After that, ruqa Ex. PB was sent to the police station through Constable Avtar Singh for the registration of the case, on the basis of which formal FIR Ex. PB/1 was recorded. On further search of the accused, Rs. 5/ were recovered from him, which were also taken into possession, vide recovery memo Ex. PA. The site plan Ex. PC of the place of recovery was prepared with correct marginal notes.

In order to prove the guilt against the accused, the prosecution examined Sarup Singh, ASI (PW1) and Hardeep Singh, ASI, Investigating Officer (PW2) and the report of the Chemical Examiner, Ex. PB, and affidavits of formal witnesses, Exhibits PE and PF, were tendered in evidence and closed the prosecution evidence. After the close of the prosecution evidence, the statement of the accused under Section 313, Code of Criminal Procedure, was recorded. The accused denied all the prosecution allegations levelled against him and pleaded innocence and false implication. He, however, examined Harjinder Singh (DW1), Darshan Singh constable (DW2), Indresh Khanna, Draftsman (DW3) and Sadhu Ram (DW4).

The learned counsel for the petitioner has contended that the prosecution has not been able to bring home the guilt against the petitioner beyond reasonable doubt and the prosecution version is not free from infirmities and contradictions. It was further submitted by the learned counsel for the petitioner that the prosecution has not examined independent witnesses in this case; that only official witnesses have been examined, who are highly interested persons and thus they should not be believed; that Sadhu Ram PW, who is alleged to have been joined by the police in the investigation of this case, is not an independent witness and that Sadhu Ram PW has been examined by the petitioner in his defence and he has not supported the case of the prosecution. It is also argued by the learned counsel for the petitioner that the petitioner was not provided an opportunity to crossexamine Durga Singh, PW, whose affidavit was tendered by the prosecution in evidence.

Mr. N.S. Boparai, Assistant Advocate General, Punjab has submitted that Sadhu Ram who was joined by the police in the investigation as independent witness, had not supported the prosecution case because he was won over by the petitioner and his statement in defence does not make the case of the prosecution, in any way, doubtful. He has submitted that the contradictions pointed out by the learned counsel for the petitioner are minor contradictions and such minor contradictions are bound to occur when the evidence is recorded after a long period.

After giving careful thought to the argument advanced by the learned counsel for the petitioner and the learned counsel for the State, I am of the considered opinion that there is no merit in the argument advanced by the learned counsel for the petitioner.

The first point urged by the learned counsel for the petitioner is that the police did not join independent witness in the investigation of this case although independent witnesses were available to the police and that Sadhu Ram who is alleged to have been joined by the police in the investigation of this case, was not an independent witness and was under the influence of the Investigator of the case and his name has been mentioned as a witness in order to show that independent witness was joined. He further stated that even Sadhu Ram who is alleged to have been joined by the police in the investigation of this case has not been examined by the prosecution, rather he has been examined by the defence. Therefore, the case of the prosecution is falsified from its own witnesses. In this regards the learned counsel for the petitioner has drawn my attention towards the judgment, copy of which is Ex. DY. The learned counsel for the petitioner has further submitted that the other witnesses examined by the prosecution are police officials who are highly interested persons and it is natural for them to support the case of the prosecution. Sadhu Ram was joined by the police in the investigation of this case and he had been given up as having been won over by the petitioner. It cannot be said that Sadhu Ram is not an independent witness. Sadhu Ram belongs to Patiala and his meeting with the police is not, in any way, doubtful. Judgment Ex. DY does not, in any way, help to prove that Sadhu Ram is not independent witness. Firstly, the identity of Sadhu Ram, who appeared in the present case, is not established with Sadhu Ram who was examined in the case in which judgment was delivered, copy of which is Ex. DY. No evidence has been led by the petitioner to show that Sadhu Ram mentioned in the judgment, is the same person who appeared in the present case. However, if the witness appeared once or twice in any case for the prosecution, it does not make him partial witness or he cannot be said to be under the influence of the police. There is no doubt that Sadhu Ram was not examined by the prosecution. He was given up being won over by the petitioner. It is a matter of common experience that no person from the public was prepared to give evidence against the accused because he did not want to spoil his relations with the petitioner while appearing as a witness. In case of heavy recovery, it is not impossible for the petitioner to win over an independent witness. The allegation of the prosecution that the witness has been won over by the accused finds corroboration from the fact that Sadhu Ram has been examined by the petitioner as a defence witness and he has supported the defence version. Thus, in view of the abovementioned circumstances, non examination of Sadhu Ram by the prosecution does not make the case of the prosecution in any way doubtful.

The other witnesses examined by the prosecution, although they belong to the police department, cannot be disbelieved merely because of their official status. It is now an established law that police officials are as good witnesses as the other independent witnesses are. The only precaution to be taken regarding the evidence of police officials is that their evidence is to be carefully scrutinized. If there is nothing on the record which would make the evidence of the police officials in any way unreliable, they cannot be disbelieved merely because they belong to the police department. In the present case, there is nothing on the record which would make the evidence of the police officials in any way unreliable. They have no enmity, illwill or motive to depose falsely against the petitioner nor is there any material contradiction in their statements.

The next point urged by the learned counsel for the petitioner is that the prosecution tendered the affidavit of Durga Singh, Constable, which is Ex. PP, but the petitioner was not given opportunity to crossexamine this witness although an application was moved by the petitioner in this regard; that the petitioner was entitled to crossexamine the witnesses whose affidavits were tendered by the prosecution; that, thus, the petitioner has been deprived of his valuable right to crossexamine the witness who appeared against him and that his case has been prejudiced. Here, again I am of the view that there is no force in this point also, which has been put forward by the learned counsel for the petitioner. It is correct that affidavits Ex. PE and Ex. PF were tendered in evidence. Affidavit Ex. PE relates to Balbir Singh, Head Constable while affidavit Ex. PF relates to Durga Singh, Constable. Balbir Singh, Head Constable, was crossexamined by the petitioner but Durga Singh, constable, as not crossexamined by the petitioner. It is quite clear that the affidavits Ex. PE and Ex. PF were tendered on 22.10.1984 and, at that time, no request was made by the petitioner that he wanted to crossexamine these witnesses. Thus, no opportunity was required to be given to the petitioner for crossexamination of these witnesses when it was not so demanded by the petitioner. From the record, it is quite clear that the application was moved by the petitioner for crossexamination of these witnesses after the statement of the accusedpetitioner was recorded by the trial Court allowed that application, as a result of which Balbir Singh, Head Constable, was crossexamined. Thereafter, the case was being adjourned for evidence but the petitioner himself closed his defence. No objection was raised by the petitioner that he still wanted to crossexamine Durga Singh, Constable. As the petitioner himself closed the defence evidence, the presumption would be that he did not want to crossexamine the constable. Had he wanted to crossexamine him, he must have asked the Court to direct the prosecution to produce Durga Singh, Constable, for that purposes of cross examination of Durga Singh, Constable, after his statement was recorded and the petitioner himself closed the defence evidence when the case was fixed for defence evidence, shows that the petitioner was not interested in cross examining Durga Singh, Constable. Thus, no prejudice has been caused to the petitioner on this account.

It was also argued by the learned counsel for the petitioner that the affidavit (Exhibits PE and PF) tendered by the prosecution are not admissible in evidence because these have not been prepared in accordance with law. I have gone through these affidavits and I think there is no illegality or irregularity in these affidavits.

It was further submitted by the learned counsel for the petitioner that there are material contradictions in the statements of the witnesses and there is overwriting in the entries of the Register of Malkana. This argument advanced by the learned counsel for the petitioner is also without force. It was pointed out by the learned counsel for the petitioner that Sarup Singh, PW1, stated that the material for the purpose of sealing was already with them in the investigation bag but Hardeep Singh, PW 2, stated that the cloth was got stitched by the Constable from a tailor; that Sarup Singh, PW 1, has stated that they were not having any handcuffs, with them but Hardeep Singh PW 2, stated that the petitioner was in handcuffs after completion of the work; and that Sarup Singh, PW 1 stated that writing work was done for about 1/2 hour with the help of torchlight but Hardeep Singh, PW2, stated that no need arose for light in order to do writing work. The contradictions pointed out by the learned counsel for the petitioner are minor in nature and these contradictions do not make the case of the prosecution in any way doubtful. It must be mentioned here that, in the present case, recovery was effected on October 5, 1979, while statements were recorded on 22.10.1984. It means that the statements of the witnesses were recorded after lapse of five years. After a period of five years, such minor contradictions are bound to occur in the evidence of witnesses.

So far as the overwriting in the Register of Malkana is concerned, it does not make the case of the prosecution in any way doubtful. There is overwriting so far as the quantity of opium is concerned. It shows that initially it was written ''880'' grams but thereafter it was corrects as ''980'' grams, but there is nothing on the record that this overwriting was made afterwards.

Mr. R.K. Sharma, counsel for the petitioner, has further submitted that the petitioner is entitled to be released on probation, under Section 360 of the Code of Criminal Procedure. The counsel for the petitioner has submitted that the petitioner is a first offender, that there is nothing against his character and antecedents and that he is a family man and that the petitioner is on bail. The offence was committed on 5th October, 1979. The legislature by including the provisions of Sections 360 and 361 in the Code of Criminal Procedure, 1973, intended to reform the offenders; where it is possible. It is only by giving special reasons under Section 361 of the Code of Criminal Procedure that the benefit of probation can be denied to the accused. The special reasons are to be given are with regard to the age, character and antecedents of the offender and the circumstances in which the offence was committed.

The counsel for the petitioner has committed that in that instant case the lower Court have not considered this aspect of the matter. It is incumbent upon the Courts to give benefit of probation when the offenders are entitled to it under Section 360 of the Code of Criminal Procedure unless the Courts find that the convicts are incorrigible and cannot be reformed. The object of punishment is not only to the retributive but also to be reformative. Keeping in view the aforesaid principles, the petitioner is given one chance to reform himself. Accordingly, his conviction is maintained but the sentence of imprisonment and fine is set aside and it is directed that he be released on probation on his entering into a bond in the sum of Rs. 5,000/ with one surety in the like amount to the satisfaction of the trial Court and to appear and receive sentence when called upon during the period of two years, and in the meantime, to keep the peace and be of good behaviour.

This revision petition is thus partly allowed as indicated above.