Shangara Singh vs State of Punjab

Harmohinder Kaur Sandhu, J.

Shangara Singh, the present revision petitioner, was tried for an offence under section 9 of the Opium Act by Shri R.C. Sharma, Judicial Magistrate Ist Class, Ludhiana and was convicted and sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs. 2000/. Against the judgment recording his conviction Shangara Singh preferred an appeal which was dismissed, by the Additional Sessions Judge, Ludhiana, as per judgment dated 15.5.1986 and conviction and sentence of the petitioner were maintained. That judgment is assailed by way of present revision petition.

Briefly stated the case against the petitioner was that on the intervening night of 13/14th May, 1983 a police party of police station, Dehlon was holding a picket on a canal bridge in the area of village Kaind. Jaswant Singh PW was also a member of that party. At about 2.45 midnight Shangara Singh petitioner came from the side of village Bhool on a motor cycle bearing registeration No. PUM 7983. He was stopped and searched. Opium weighing 61/2 kilograms was recovered from his possession. 10 grams of opium was separated as sample and the remaining opium was sealed separately in a bag. Seal after use was handed over to Jaswant Singh PW. Case was got registered against the petitioner and sample was sent to the Chemical Examiner. On receipt of the report of the Chemical Examiner, a charge sheet was drawn against the petitioner which led to his conviction.

To prove the charge against the petitioner the prosecution examined ASI Harbhajan Singh PW 1, ASI Sansar Chand PW 2 and Constable Kewal Krishan. Affidavits of the formal witness and report of the Chemical Examiner were also tendered in evidence.

The contention of the petitioner when examined under section 313 Cr.P.C. was that on 13.5.1983 police of Police Station Dehlon took him to the police station from his house along with his motor cycle, in the presence of Niranjan Singh Chowkidar, Bahadur Singh Lambardar, Bachan Singh Member Panchayat and Sadhu Singh Sarpanch and falsely implicated him in the case. His wife submitted an application to that effect to the village Panchayat on the same day and also sent telegrams to the Illaqa Magistrate and some other senior officers. In order to substantiate his defence, he examined three witnesses and produced some documents.

Wife of the petitioner namely Rajinder Kaur appeared as DW 2 and she duly proved the application Ex. DA which she addressed to the village Sarpanch. She stated that on the basis of her applicationn the panchayat passed a resolution on 15th May and since no action was to be taken on her application by the panchayat the same was returned to her after an endorsement was made thereon. She also submitted application under postal certificate to the Illaqa Magistrate. She produced the postal receipt Ex. DB. DW 3 Baljit Singh proved copy of the resolution Ex. DD which was passed by the panchayat.

The learned counsel for the petitioner contended that the only evidence against the petitioner consisted of the statements of police officials who were quite interested in the result of the case and the fruits of their investigative efforts. Their evidence required corroboration especially when the petitioner was charged for keeping in his possession a large quantity of opium. In the instant case the investigating officer was holding a picket and had joined one Jaswant Singh with the party. Jaswant Singh was alleged to be a witness of the recovery and even seal was stated to have been entrusted to him after use. He was the most material witness in the case but was given up on the pretext that he had been won over by the petitioner. There was nothing on record to show that Jaswant Singh was in fact colluding with the petitioner. It was asserted that Jaswant Singh was rather a person under the influence of the police who could be cited as a witness irrespective of the fact that he was present with the party or not. Reference was made to copy of the judgment Ex. DB in a case under Section 302/120B IPC where same Jaswant Singh was cited as a witness of extra judicial confession and recovery of an article from the possession of the accused in that case. But Jaswant Singh did not support the case of the prosecution on the ground that in fact no confession was made before him nor he was a witness of any recovery and the police had cited him as a witness of its own accord. I find merit in the contention of the learned counsel and in view of the earlier conduct of Jaswant Singh have no hesitation to hold that he was cited as a witness simply on the presumption that he will support the case of the prosecution Balbir Singh but when he refused to toe the line adopted by the prosecution, he was given up as having been wonever by the petitioner. The witness did not belong to the village of the petitioner. Mere assertion by the prosecution that the petitioner had prevailed upon the witness is not enough and the prosecution should have examined the witness is not enough and the prosecution should have examined the witness and tested his evidence by getting him declared hostile in case he actually resiled from his statement under Section 161 Cr.P.C. The case of the prosecution was rendered doubtful on the ground that only non official witness in whose presence the alleged recovery was made was withheld.

The evidence led in defence is quit plausible. Immediately after the petitioner was involved in the case the wife of the petitioner approached the panchayat and other authorities. The village panchayat pased a resolution corroborating the fact that the police of Police Station Dehlon conducted raids in village Jassowal at about 5.00 A.M. on 13.5.1983 and took along petitioner and some other persons to the police station. There are two important factors in every criminal trial that weigh heavily in favour of accused person; one is that the accused is entitled to the benefit of every reasonable doubt and the other an offshoot of the same principle, that when an accused person offers a reasonable explanation of his conduct, then even though he cannot prove his assertions they should ordinarily be accepted unless circumstances indicate that they are false. Aher Raja Khima v. State of Saurashtra, AIR 1956 Supreme Court 217 is an authority on this point. The case of the prosecution is rendered doubtful for not examining any independent witness to prove recovery of the opium from the petitioner and the petitioner has led evidence in defence which is quite plausible. In these circumstances the conviction and sentence of the petitioner, cannot be maintained.

For the reasons recorded above, I accept this revision petition, set aside the conviction and sentence of the petitioner and acquit him of the charge by giving him benefit of doubt. Fine, if deposited, be refunded.