Tehal Singh vs State of Punjab

Harbans Singh Rai, J.

Tehal Singh and Kahan Singh were convicted under Section 61(1)(c) of the Punjab Excise Act by Shri Amar Singh Ghuman, Judicial Magistrate Ist Class, Samrala, vide his order dated November 18, 1985, and were ordered to be released on probation on their furnishing security bonds in the sum of Rs. 10,000/ with one surety in the like amount. Their appeal was dismissed by Shri Dutt, Additional Sessions Judge, Ludhiana, vide his order dated January 15, 1986. Feeling aggrieved, they have filed this revision.

Prosecution case in brief is that A.S.I. Piara Singh accompanied by police officials left Police Station, Khammano on April 25, 1984, at 8.15 A.M. on patrol duty in Government jeep. When they reached Bus Stand, Khammano, A.S.I. received information that the petitioners were distilling illicit liquor in the fields of Tehal Singh and in case raid was conducted they could be apprehended. A raid was organised. Ram Kishan P.W. was joined in the raiding party. The party proceeded to the place disorder by the informant and on reaching there found accused working a still in a Kotha. Tehal Singh was found changing the water and Kahan Singh was feeding the fire. The still was dismantled, and its components taken into possession. After investigation, they were prosecuted and convicted.

I have heard the learned Counsel for the parties and gone through the evidence with their help. Prosecution in support of its case is relying on police officials only as the only nonofficial witness Ram Kishan has not been examined.

Mr. J.S. Wasu, Senior Advocate, learned Counsel for the petitioners has contended that Ram Kishan, the socalled independent witness, in fact, is under the influence of police. He has appeared in a large number of cases and does not satisfy the legal requirement of joining an independent witness. Even Ram Kishan has not been examined by the prosecution. In this situation, when nonofficial witness has not been joined, the evidence of the police officials is not sufficient to maintain the conviction.

I have considered the argument. It is not disputed that Ram Kishan appeared in a large number of cases of Police Station, Khammano, and he cannot be stayled as an independent witness.

The recovery of the working still is from a Kotha, which, according to defence, issued as a residential house. Normally, it is expected that the raiding officer will join some independent witness to participate in the raid. The act of raiding officer in joining Ram Kishan does not satisfy the legal requirement of joining an independent witness. Although, Ram Kishan cannot be termed as an independent witness, but he also has not been examined. He has been given up as won over. Mere giving up of some witness as won over does not absolve the prosecution of the responsibility of producing an independent witness. There is no explanation why no witness from the village was joined at the time of raid. Admittedly, village Bhutta is a big village and large number of people could be available there, but the raiding officer brought Ram Kishan from Khammano Bus Stand with him. The joining of Ram Kishan, who is a semi police witness, doe snot give credit to the raiding officer. It was only a formality just to satisfy the requirement that at the time of raid independent witness should be arranged. Ram Kishan is not of that type of witness, who can be depended upon to tell the truth. Even he has not been examined.

In the circumstances where the raiding officer does not join any independent witness, although many could be available, and the raid is conducted in a Kotha, which, according to defence, is being used as a residential house situated on a well near the village Abadi, the evidence of the official witnesses alone cannot be taken as sufficient to bring home the guilt to the accused. The police officers concerned are of comparatively junior rank and the defence has alleged that the case has been planted at the instance of Karam Singh Sarpanch, with whom the accused has a party faction. Taking all the circumstances of the case into consideration, I am of the view that the evidence of official witnesses, who are of comparatively junior in rank and who have not joined any independent witness in the raid and the premises where raid was conducted is not far off from the village, is not convincing to hold the petitioners guilty of the charge. They are given benefit of doubt. Consequently, the judgments of the lower Courts convicting and sentencing them are set aside. They are acquitted of the charge. This revision petition is allowed.