State of H.P vs Rachhpal Singh

Sureshwar Thakur, Judge

1.The instant appeal stands directed, against, the judgment rendered, on, 19.06.2009, by the learned Addl. Chief Judicial Magistrate, Dehra, District

Kangra, H.P. in Criminal Case No. 17-i/2006/21-III/2006, whereby, he acquitted, the accused for his allegedly committing, an offence punishable

under Sections 61(i) (a) of the Punjab Excise Act as applicable to the State of H.P (hereinafter referred to as the Act.

The facts relevant to decide the instant case are that on 25.7.2005, ASI Tarsem Lal along with other police personnel was present on patrolling and

Naka duty near Jaur Bar and at around 6.45 p.m., accused came on the spot along with one jute bag on his head, who, on seeing the police party, after

leaving the bag on the spot fled away towards jungle. The gunny bag was checked and two card boxes i.e. on containing 12 plastic bottles of country

liquor “Lal Quila†and another containing 12 bottles of IMFL “Bag Piper†were recovered. Consequently, six nips i.e. three from each card

box were separated for the purpose of chemical test and the nips and lose bottles were sealed with seal “T†and seal after use was entrusted to

witness Pardeep Raj Singh. On inquiry, it was revealed that the person fled away from the spot was Rachhpal Singh alis Pali son of Shri Hans Raj,

resident of Upper Balwal. The case property was taken in possession vide memo Ex.PW1/A in presence of witnesses. A rukka Ex.PW5/B was sent

to police station Dehra through HHC Rukam Deen, on the basis of which, FIR Ex.PW2/A was registered against the accused. Thereafter the police

completed all the codel formalities.

On conclusion of investigations, into the offence, allegedly committed by the accused, a report under Section 173 of the Code of Criminal Procedure

was prepared, and, filed before the learned trial Court.

The accused stood charged by the learned trial Court, for his, committing offences punishable, under Sections 61(i)(a) of the Act. In proof of the

prosecution case, the prosecution examined 5 witnesses. On conclusion of recording of the prosecution evidence, the statement, of the accused under

Section 313, of, the Code of Criminal Procedure was recorded by the learned trial Court, wherein the accused claimed innocence, and, pleaded false

implication.

On an appraisal of the evidence on record, the learned trial Court, returned findings of acquittal in favour of the accused/respondent herein.

The State of H.P. stands aggrieved by the judgment of acquittal recorded in favour of the accused/respondents. The learned Addl. Advocate

General for the State, has concertedly, and, vigorously contended qua the findings of acquittal recorded by the learned trial Court standing not based

on a proper appreciation, by it, of the evidence on record, rather, theirs standing sequelled by gross mis- appreciation, by it, of the material on record.

Hence, he contends qua the findings of acquittal warranting reversal by this Court in the exercise of its appellate jurisdiction, and, theirs standing

replaced by findings of conviction.

On the other hand, the learned counsel appearing for the accused/respondents herein, has, with considerable force and vigour, contended qua the

findings of acquittal recorded, by, the learned trial Court rather standing based on a mature and balanced appreciation, by it, of the evidence on record,

and, theirs not necessitating any interference, rather theirs meriting vindication.

This Court with the able assistance of the learned counsel on either side, has, with studied care and incision, evaluated the entire evidence on

record.

The relevant cache of liquor was recovered under memo, comprised in Ex.PW1/A. (a) All the prosecution witnesses concerned, in their

respectively rendered testifications, echoed, with utmost unanimity and concurrence vis-a-vis the recovery of the apposite cache, of, liquor being made

under Ex.PW1/A. (b) Along therewith each of the prosecution witnesses, in their respectively rendered tesitifcations, make apparent underscorings

vis-a-vis the recovery of cache, of liquor, as, made under Ex.PW1/A, also bearing congruity therewith, at, the apposite stage of its production, in

Court, (c) besides, with, the apt descriptions embodied, in Ex.PW1/A vis-a-vis the English alphabet, of seals embossed on the relevant boxes, also at

the time, of production of case property in court, bearing congruity(s) therewith, (d) also the English alphabet, of, seal impression(s), as recited, in

EX.PW1/A, to be embossed on the bags/boxes, apparently remaining unbroken, at the stage, of, production of the case property in Court, (e) AND,

the CTL in its report comprised, in, Ex.PW5/F making, clear unrebutted echoings, vis-a-vis the sample bottles, sent to it, for analysis, containing

therewithin liquor, also remaining uncontrovereted. (f) Preponderantly, the factum of the sample bottles retrieved, from, the entire cache of the liquor

recovered, at the site, comprised in site plan, embodied in Ex.PW5/C, bearing analogity therewith. In aftermath, the prosecution prima facie does

succeed in proving the charge against the accused.

Be that as it may, the paramount link, for conclusively connecting the accused vis-a-vis the recovery of cache of liquor, from, his purported

conscious and exclusive possession, through, memo Ex.PW1/A, rather was comprised, in, a forthright candid evidence, being testified by the

prosecution witnesses vis-a-vis the person from whose conscious and exclusive possession the cache of liquor was recovered, being a person, none

other, than the accused. In establishing the trite factum probandum, the prosecution, was, faced with a uphill task, (a) given the accused being not

apprehended, from, the site of occurrence rather emphatically, with, his purportedly being the person, who at the relevant time, hence was carrying a

gunny bag with him, AND, his purportedly, being one, who, after sighting the police, abandoned the gunny bag and thereafter fled towards jungle, (b)

thereupon, the identity of the accused, for, sustaining the charge vis-a-vis him, was enjoined to be firmly established, by, apt evidence comprised in the

factum, of, the Investigating Officer, on revelations being made to him vis-a-vis the key characteristics features and traits of the accused, his

thereafter holding a valid test identification parade, whereupon, the identity, of, the accused stood clinchingly established, and, thereupon his

identification in Court would be efficacious. However, the Investigating Officer, in his cross-examination, has acquiesced, to a suggestion of his, not

holding, the relevant test identification parade. The omission, of, the Investigating Officer, to hold the test identification parade, constrains an inference,

of no apposite profile vis-a-vis the key characteristics features, and, traits of the accused, being available, with the Investigating Officer concerned. (c)

With a further effect, of, the identification in court, of, the accused being extremely frail besides weak piece, of evidence, for firmly connecting the

accused, with, the relevant factum probandum. Tremendous vigour qua the aforesaid inference, of the, prosecution abysmally failing, to adduce the

most potent evidence, for, linking the accused hence with the charge, is, galvanized by PW-1, making a deposition, of, the identity of the accused,

being revealed by a salesman, working at a liquor vend, (d) thereupon, it was incumbent, upon, the Investigating Officer, to record his previous

statement in writing, with clear communications borne therein vis-a-vis the key characteristic features, and, traits of the accused, and, also the

Investigating Officer concerned, was, in sequel thereto, enjoined to hold, a valid test identification parade, for enabling, the identifier of the accused to

therein, hence identify the accused, whereupon, alone, the identification, of, the accused in Court, by PW-1, would gain vigour. However, neither the

previous statement of the person concerned, who purportedly revealed the identity, of, the accused hence was recorded by the Investigating Officer,

nor hence in sequel thereto, any valid test identification parade was carried by the Investigating Officer, besides, obviously the identifier of the

accused, did not identify, the accused therein, thereupon, it cannot be concluded that the prosecution, has firmly linked the accused, in the commission

of the alleged offence.

For the reasons which have been recorded hereinabove, this Court holds that the learned trial Court has appraised the entire evidence on record in

a wholesome and harmonious manner apart therefrom the analysis of the material on record by the learned trial Court does not suffer from a gross

perversity or absurdity of mis-appreciation and non appreciation of evidence on record.

Consequently, there is no merit in the instant appeal and it is dismissed accordingly. In sequel, the impugned judgment is affirmed and maintained.

All pending applications also stand disposed of. Records be sent back forthwith.