Krishan Kumar vs State of Haryana

Gurdev Singh, J.—The petitioner-accused, Krishan Kumar, having been convicted and sentenced for the offence u/s 61(1)(a) of the Punjab

Excise Act, 1914(hereinafter referred to as ""the Act"") by SDJM. Loharu, vide judgment dated 1.4.2002, which was maintained in the appeal by

the Additional Sessions Judge, (Ad hoc) Fast Track Court, Bhiwani, vide judgment dated 3.10.2005, has preferred the present revision against

that conviction and sentence.

On 5.3.1997, Mehar Singh SI, PW-4, along with Jai Singh, Constable, PW-2, and other police officials, was present in the area of Town

Loharu, when he received a secret information that the accused was selling the liquor in pouches by keeping the same in a Khudi (a small room

meant for keeping hens and birds etc.) of his house and in case, a raid was conducted those pouches of liquor could be recovered from his

possession. The SI tried to join witnesses from the public for constituting the raiding party but failed to do so. Thereafter, he along with other police

officials, conducted a raid, at the Khudi, abutting the house of the accused. The accused was seen coming out of the same holding one plastic bag

in his hand. On seeing the police party, he left that bag at the gate of the Khudi and tried to run away from the spot. He was apprehended by this

police party. When the search was taken, three such bags were found lying at the gate of the Khudi. Two of the bags were found to contain 100

pouches whereas the third bag was found to contain 85 pouches of country made liquor make 50 UP 200 ml. One pouch each was taken out of

each of those bags as samples and were sealed by the SI with his seal ""MS"". The remaining pouches were sealed in the same bags with the help of

the same seal. The case property was taken into possession, vide memo Ex. PC. The SI sent his ruqa, Ex. PA, to the police station and on the

basis thereof, formal FIR, Ex. PB, was recorded against the accused by Shri Bhagwan, MHC. On coming back to the police station, the SI

deposited the case property with the said MHC. Out of that case property, the sample pouches were sent to the Chemical Examiner on 11.3.1997

through Sajjan Singh, Constable, PW-3 and were delivered at that place with seals intact. After analysis, it was reported by the Chemical

Examiner, vide his report, Ex. PX, that the same contained liquor. After completion of the investigation, the challan was put in before SDJM,

Loharu, who found sufficient grounds for presuming that the accused committed offence punishable u/s 61(1) of the Act. He was charged

accordingly, to which he pleaded not guilty and claimed trial. To prove the guilt of the accused, prosecution examined Shri Bhagwan HC, PW 1,

Jai Singh, Constable, PW-2, Sajjan Singh, Constable, PW-3 and Mehar Singh, PW-4. After the close of the prosecution evidence, the accused

was examined and his statement was recorded u/s 313 Cr.P.C. The incriminating circumstances appearing against him in the prosecution evidence

were put to him in order to enable him to explain the same. He denied all those circumstances and pleaded his innocence and false implication. He

was called upon to enter on his defence but he did not produce any evidence in his defence. After hearing the Assistant Public Prosecutor for the

State and learned defence counsel for the accused, learned SDJM, Loharu, convicted him for the offence u/s 61(1) of the Act and sentenced him

to undergo rigorous imprisonment for a period of 1 = years and to pay a fine of Rs. 1000/- and in default of payment of fine to further undergo

imprisonment for a period of two months. In the appeal preferred by the accused, the conviction was maintained but the sentence of imprisonment

was reduced to six months.

I have heard learned counsel for both the sides.

Learned counsel for the petitioner-accused assailed the conviction of the accused on the ground that the same could not have been recorded on

the basis of the statements of the police officials, in the absence of independent corroboration, as those statements are full of discrepancies. He also

submitted that against the sentence of imprisonment of six months, the accused has already undergone the sentence of imprisonment of 1 = months

and he is the first offender and be released on probation.

There is no rule of law that reliance is not to be placed on the statements of the police officials in the absence of independent corroboration. It

depends upon the facts and circumstances of each case as to what is the effect of non-joining and non-examination of an independent witness. It is

only when there was an opportunity with the Investigating Officer to joint independent witnesses from the public and he failed to do so, that the

statements of the police officials are liable to criticism on that ground. If there was no such opportunity and there was no omission on the part of the

Investigating Officer to join such a witness, the same has no effect on the statements of the police officials, who command the same respect as any

other witness. Nothing could be elicited during the cross examination of the recovery witnesses; namely, Mehar Singh, PW-4, and Jai Singh,

Constable, PW-2, on the basis of which it may be held that in spite of the fact that independent witnesses could have been joined in the

investigation before effecting the search, the same was not done. Therefore, no adverse inference or adverse comment can be made against the

prosecution merely on the ground that the statements of the police officials have not been corroborated by some independent evidence.

At the time of making the submissions, learned counsel for the accused pointed out some discrepancies in the statements of the said recovery

witnesses. The discrepancies, so pointed out, are very minor and bound to occur even in the case of most truthful witnesses, when they were

examined in the court after the expiry of some time of the recovery itself. Only tutored witnesses can make perfect statements in the Court. There is

no ground for coming to the conclusion that the statements made by these police officials are not credible.

For proving the guilt of the accused, the prosecution was required to prove that the samples, which were so taken at the spot, were sent to the

Chemical Examiner and were found to contain liquor. According to Mehar Singh SI, PW-4, after coming back to the police station, he had

deposited the case property with Shri Bhagwan, MHC, and that the report of the Chemical Examiner is Ex. PX. According to Shri Bhagwan,

MHC, PW-1, he had sent the samples to the Chemical Examiner on 16.3.1998, vide RD No. 78 dated 16.3.1998, through Sajjan Singh,

Constable. He stands contradicted by Sajjan Singh, Constable, PW-3, as according to him, these samples were given to him by the MHC on

11.3.1997 and he had delivered the same in the office of the Chemical Examiner on the same day. As per the endorsement of the report, Ex. PX,

which is also admissible as part of the report itself, these samples were received in the office of the Chemical Examiner on 3.4.1997 through one

Varinder Saini, Therefore, it cannot be said that the samples, which were so analyzed and were found to contain liquor, were the same samples

which were taken at the spot by Mehar Singh, SI, PW-4. In view of that, it cannot be held that any such liquor was recovered from the possession

of the accused.

In the result, this revision is hereby accepted. The conviction and sentence of the accused is set aside. Fine, if already deposited, be refunded to

him.

Records of the trial court be returned forthwith.