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Himachal Pradesh High Court · body

2025 DAILYLAW 3725 (HP)

State of H. P. v. Balbir Singh alias Billu

2025-09-04

Rakesh Kainthla

body2025
JUDGMENT : RAKESH KAINTHLA, J. 1. The present appeal is directed against the judgment dated 15.06.2012, passed by learned Additional Sessions Judge, Sirmaur District at Nahan (HP) (learned Appellate Court), vide which the judgment of conviction dated 24.05.2010 and order of sentence dated 26.05.2010, passed by learned Judicial Magistrate, First Class, Court No. 1, Paonta Sahib, District Sirmour (HP), were set aside. (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience). 2. Briefly stated, the facts giving rise to the present appeal are that the police presented a challan against the accused before the learned Trial Court for the commission of an offence punishable under Section 61(1) (a) of the Punjab Excise Act, 1914, as applicable to the State of HP. It was asserted that HC Yash Pal (PW8), HHC Karun Kumar (PW2) and Constable Rambhaj (not examined) were on patrolling duty on 17.02.2007. They received secret information at about 05.00 PM, that the accused, Balbir Singh, was selling illicit liquor from his tea shop, and in case of search huge quantity of illicit liquor could be recovered. The information was credible; hence, it was reduced into writing (Ex.PW8/A) and sent to the Police Station, where FIR (Ex.PW2/A) was registered. Mohan Singh (PW1) and Khatri Ram (not examined) were associated as witnesses, and the police party reached the tea shop of the accused, where the accused was present. The police searched the shop and recovered one plastic container (Ex.P1) containing illicit liquor. The police measured the liquor and found seven bottles of illicit liquor. One nip was taken out as a sample. The plastic container containing the remaining liquor was sealed with seal ‘A’, seal impression (Ex.PW8/B) was taken on a separate piece of cloth, and the seal was handed over to Mohan Singh (PW1) after use. The liquor was seized vide memo (Ex.PW1/A). HC Yash Pal (PW8) conducted the investigation. He prepared the site plan (Ex.PW8/C) and recorded the statements of prosecution witnesses as per their version. The case property was deposited with Jamal Khan (PW6), who sent it to malkhana on 14.03.2007 vide RC No. 4/07 through Constable Inder Singh (PW4). Constable Inder Singh (PW4) deposited the case property with ASI Raghubir Singh (PW3), who deposited it in the malkhana and made an entry in the malkhana register. The case property was deposited with Jamal Khan (PW6), who sent it to malkhana on 14.03.2007 vide RC No. 4/07 through Constable Inder Singh (PW4). Constable Inder Singh (PW4) deposited the case property with ASI Raghubir Singh (PW3), who deposited it in the malkhana and made an entry in the malkhana register. He sent the sample to CTL Kandaghat, vide RC No. 1/07, through Constable Vijay Pal (PW7), who deposited the sample in CTL Kandaghat and handed over the receipt to MHC on his return. The result of the analysis (Ex.PW8/E) was issued, in which it was shown that the sample was of illicit liquor which contained 42.9% proof alcohol. The statements of remaining prosecution witnesses were recorded as per their version, and after the completion of the investigation, the challan was prepared and presented before the learned Trial Court. 3. Learned Trial Court found sufficient reasons to summon the accused. When the accused appeared, he was charged with the commission of an offence punishable under Section 61(1) (a) of the Punjab Excise Act as applicable to the State of Himachal Pradesh, to which he pleaded not guilty and claimed to be tried. 4. The prosecution examined eight witnesses to prove its case. Mohan Singh (PW1) did not support the prosecution's case. HHC Karun Kumar (PW2) carried the rukka to the police station. ASI Raghubir Singh (PW3) was working as In charge of the malkhana, where the case property was deposited. Constable Jamal Khan (PW6) was working as MC in PP Rajban, with whom the case property was initially deposited. Constable Inder Singh (PW4) carried the case property from Police Post Rajban to Police Station Paonta Sahib. HC Gopal Singh (PW5) signed the FIR. Constable Vijay Pal (PW7) carried the sample to CTL Kandaghat. HC Yash Pal (PW8) conducted the investigation. 5. Accused in his statement under Section 313 of Cr.P.C., denied the prosecution’s case in its entirety. He stated that he was innocent. He examined Raju (DW1) in his defence. 6. Learned Trial Court held that the testimonies of prosecution witnesses corroborated each other in material particulars. Minor discrepancies in the statements were bound to come with time and could not be used to discard the prosecution's evidence. The identity of the case property was duly established. He stated that he was innocent. He examined Raju (DW1) in his defence. 6. Learned Trial Court held that the testimonies of prosecution witnesses corroborated each other in material particulars. Minor discrepancies in the statements were bound to come with time and could not be used to discard the prosecution's evidence. The identity of the case property was duly established. There was no reason to disbelieve the statements of the prosecution witnesses, hence, the accused was convicted of the commission of an offence punishable under Section 61(1) (a) of Punjab Excise Act as applicable to State of HP and was sentenced to undergo simple imprisonment for three months, pay a fine of Rs.3000/- and in default of payment of fine to undergo further simple imprisonment for one month. 7. Being aggrieved by the judgment and order passed by the learned Trial Court, the accused filed an appeal, which was decided by the learned Additional Sessions Judge, Sirmaur District at Nahan (HP) (learned Appellate Court). The learned Appellate Court held that the prosecution did not examine Khatri Ram, and an adverse inference had to be drawn against the prosecution. Mohan Singh (PW1) did not support the prosecution's case, and there was no corroboration of the testimonies of the police officials from independent sources. The case property produced in the Court did not bear the identification slip. The plastic container (Ex.P1) was empty, for which no explanation was provided. The accused was entitled to the benefit of doubt, which was extended to him, and he was acquitted of the commission of an offence punishable under Section 61(1)(a) of the Punjab Excise Act as applicable to the State of HP. 8. Being aggrieved by the judgment passed by the learned Appellate Court, the State has filed the present appeal asserting that the learned Appellate Court erred in acquitting the accused. The testimonies of prosecution witnesses were discarded without any cogent reason. The learned Trial Court had rightly held that the case property was properly identified, and the absence of the identification slip in the same would not be material. Learned Appellate Court failed to dispel this reasoning; therefore, it was prayed that the present appeal be allowed and the judgment passed by the learned Appellate Court be set aside, while the judgment and order passed by the learned Trial Court be restored. 9. I have heard Mr. Learned Appellate Court failed to dispel this reasoning; therefore, it was prayed that the present appeal be allowed and the judgment passed by the learned Appellate Court be set aside, while the judgment and order passed by the learned Trial Court be restored. 9. I have heard Mr. Lokinder Kutlehria, learned Additional Advocate General, for the appellant/State and Mr. Bimal Gupta, learned Senior Advocate, assisted by Mr. Trigun Negi, Advocate, for the respondent/accused. 10. Mr. Lokinder Kutlehria, learned Additional Advocate General for the appellant/ State, submitted that the learned Trial Court had rightly convicted and sentenced the accused; however, the learned Appellate Court erred in reversing the well-reasoned judgment passed by the learned Trial Court. It was wrongly held that the case property was not produced before the Court. The Investigating Officer identified the plastic container as the one which was recovered by him. Learned Trial Court had rightly held that the possibility of leakage of liquor from the container due to the passage of time could not be ruled out. Therefore, he prayed that the present appeal be allowed, the judgment passed by the learned Appellate Court be set aside, and the judgment and order passed by the learned Trial Court be restored. 11. Mr. Bimal Gupta, learned Senior Advocate for the respondent/accused, submitted that the learned Appellate Court had rightly held that the case property produced in the Court could not be connected to the case property recovered by the prosecution. The learned Appellate Court had taken a reasonable view, while acquitting the accused, and this Court should not interfere with the reasonable view of the learned Appellate Court. Hence, he prayed that the present appeal be dismissed. 12. I have given considerable thought to the submissions made at the bar and have gone through the records carefully. 13. The present appeal has been filed against a judgment of acquittal. It was laid down by the Hon’ble Supreme Court in Surendra Singh v. State of Uttarakhand, 2025 SCC OnLine SC 176 that the Court can interfere with a judgment of acquittal if it is patently perverse, is based on misreading of evidence, omission to consider the material evidence and no reasonable person could have recorded the acquittal based on the evidence led before the learned Trial Court. It was observed: “11. It was observed: “11. Recently, in the case of Babu Sahebagouda Rudragoudar v. State of Karnataka 2024 SCC OnLine SC 4035, a Bench of this Court to which one of us was a Member (B.R. Gavai, J.) had an occasion to consider the legal position with regard to the scope of interference in an appeal against acquittal. It was observed thus: “38. First of all, we would like to reiterate the principles laid down by this Court governing the scope of interference by the High Court in an appeal filed by the State for challenging the acquittal of the accused recorded by the trial court. 39. This Court in Rajesh Prasad v. State of Bihar [Rajesh Prasad v. State of Bihar, (2022) 3 SCC 471 : (2022) 2 SCC (Cri) 31] encapsulated the legal position covering the field after considering various earlier judgments and held as below: (SCC pp. 482-83, para 29) “29. After referring to a catena of judgments, this Court culled out the following general principles regarding the powers of the appellate court while dealing with an appeal against an order of acquittal in the following words: (Chandrappa case [Chandrappa v. State of Karnataka, (2007) 4 SCC 415 : (2007) 2 SCC (Cri) 325], SCC p. 432, para 42) ‘42. From the above decisions, in our considered view, the following general principles regarding the powers of the appellate court while dealing with an appeal against an order of acquittal emerge: (1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. (2) The Criminal Procedure Code, 1973, puts no limitation, restriction or condition on the exercise of such power and an appellate court, on the evidence before it, may reach its own conclusion, both on questions of fact and law. (3) Various expressions, such as “substantial and compelling reasons”, “good and sufficient grounds”, “very strong circumstances”, “distorted conclusions”, “glaring mistakes”, etc., are not intended to curtail the extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of “flourishes of language” to emphasise the reluctance of an appellate court to interfere with an acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion. Such phraseologies are more in the nature of “flourishes of language” to emphasise the reluctance of an appellate court to interfere with an acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion. (4) An appellate court, however, must bear in mind that in the case of acquittal, there is a double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused, having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.” 40. Further, in H.D. Sundara v. State of Karnataka [H.D. Sundara v. State of Karnataka, (2023) 9 SCC 581 : (2023) 3 SCC (Cri) 748], this Court summarised the principles governing the exercise of appellate jurisdiction while dealing with an appeal against acquittal under Section 378 CrPC as follows: (SCC p. 584, para 8) 8. … 8.1. The acquittal of the accused further strengthens the presumption of innocence. 8.2. The appellate court, while hearing an appeal against acquittal, is entitled to reappreciate the oral and documentary evidence. 8.3. The appellate court, while deciding an appeal against acquittal, after reappreciating the evidence, is required to consider whether the view taken by the trial court is a possible view which could have been taken on the basis of the evidence on record. 8.4. If the view taken is a possible view, the appellate court cannot overturn the order of acquittal on the ground that another view was also possible; and 8.5. The appellate court can interfere with the order of acquittal only if it comes to a finding that the only conclusion which can be recorded on the basis of the evidence on record was that the guilt of the accused was proved beyond a reasonable doubt and no other conclusion was possible.” 41. The appellate court can interfere with the order of acquittal only if it comes to a finding that the only conclusion which can be recorded on the basis of the evidence on record was that the guilt of the accused was proved beyond a reasonable doubt and no other conclusion was possible.” 41. Thus, it is beyond the pale of doubt that the scope of interference by an appellate court for reversing the judgment of acquittal recorded by the trial court in favour of the accused has to be exercised within the four corners of the following principles: 41.1. That the judgment of acquittal suffers from patent perversity. 41.2. That the same is based on a misreading/omission to consider material evidence on record; and 41.3. That no two reasonable views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on record.” 12. It could thus be seen that it is a settled legal position that the interference with the finding of acquittal recorded by the learned trial judge would be warranted by the High Court only if the judgment of acquittal suffers from patent perversity; that the same is based on a misreading/omission to consider material evidence on record; and that no two reasonable views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on record.” 14. The present appeal has to be decided as per the parameters laid down by the Hon’ble Supreme Court. 15. Mohan Singh (PW1) did not support the prosecution's case. He stated that the police called and told him that they had recovered liquor; however, no liquor was recovered in his presence. The police also obtained his signature on some documents. He was permitted to be cross-examined. He denied that police recovered a plastic container of five litres, containing seven bottles of illicit liquor, from the khokha of the accused. He denied the previous statement recorded by the police. Thus, the witness has not supported the prosecution's case, and his testimony does not provide any corroboration of the statements of the police officials. 16. Another independent witness, Khatri Ram, was given up as having been won over. Learned Appellate Court held that an adverse inference has to be drawn against the prosecution, which is not acceptable. Thus, the witness has not supported the prosecution's case, and his testimony does not provide any corroboration of the statements of the police officials. 16. Another independent witness, Khatri Ram, was given up as having been won over. Learned Appellate Court held that an adverse inference has to be drawn against the prosecution, which is not acceptable. It was held in Hukam Singh v. State of Rajasthan, (2000) 7 SCC 490 : 2000 SCC (Cri) 1416 : 2000 SCC OnLine SC 1311 that the Public Prosecutor is not obliged to examine a witness who will not support the prosecution. It was observed at page 495: “14. ………….But if the Public Prosecutor got reliable information that anyone among that category would not support the prosecution's version, he is free to state in court about that fact and skip that witness from being examined as a prosecution witness. It is open to the defence to cite him and examine him as a defence witness. The decision in this regard has to be taken by the Public Prosecutor fairly. He can interview the witness beforehand to enable him to know well in advance the stand that particular person would be adopting when examined as a witness in court.” 17. In the present case, Khatri Ram was given up as having been won over, and the learned Appellate Court was not justified in drawing an adverse inference against the prosecution for his non-examination. 18. It was laid down by the Hon’ble Supreme Court in Pohlu v. State of Haryana, (2005) 10 SCC 196 , that the intrinsic worth of the testimony of witnesses has to be assessed by the Court, and if the testimony of the witnesses appears to be truthful, the non-examination of other witnesses will not make the testimony doubtful. It was observed:- “[10] It was then submitted that some of the material witnesses were not examined and, in this connection, it was argued that two of the eye-witnesses named in the FIR, namely, Chander and Sita Ram, were not examined by the prosecution. Dharamvir, son of Sukhdei, was also not examined by the prosecution, though he was a material witness, being an injured eyewitness, having witnessed the assault that took place in the house of Sukhdei, PW 2. Dharamvir, son of Sukhdei, was also not examined by the prosecution, though he was a material witness, being an injured eyewitness, having witnessed the assault that took place in the house of Sukhdei, PW 2. It is true that it is not necessary for the prosecution to multiply witnesses if it prefers to rely upon the evidence of eyewitnesses examined by it, which it considers sufficient to prove the case of the prosecution. However, the intrinsic worth of the testimony of the witnesses examined by the prosecution has to be assessed by the Court. If their evidence appears to be truthful, reliable and acceptable, the mere fact that some other witnesses have not been examined will not adversely affect the case of the prosecution. We have, therefore, to examine the evidence of the two eye witnesses, namely, PW 1 and PW 2, and to find whether their evidence is true, on the basis of which the conviction of the appellants can be sustained.” 19. HHC Karun Kumar (PW2) accompanied the Investigating Officer; however, he was not associated with the recovery, and he was sent to the police station with the rukka. He stated that the Investigating Officer received secret information at the bus stand Satoun that the accused was selling illicit liquor, and a huge quantity of liquor could be recovered by the search of his khokha. He carried the rukka to the police station. Since he had not witnessed the recovery, therefore, his testimony does not prove the recovery of the illicit liquor from the possession of the accused. 20. Thus, this Court left with the testimony of HC Yash Pal (PW8). There is no rule of caution or of law that the testimony of a police official cannot be relied upon. However, when the same is not corroborated by any witnesses, the Court should look into his testimony with due care and caution. 21. HC Yashpal admitted that the plastic container shown to him did not bear any identification slip. He also admitted that the plastic container did not have any liquor in it. Learned Trial Court held that the liquor could have been leaked from the container during the process of transportation from the Court to the Police Station. 21. HC Yashpal admitted that the plastic container shown to him did not bear any identification slip. He also admitted that the plastic container did not have any liquor in it. Learned Trial Court held that the liquor could have been leaked from the container during the process of transportation from the Court to the Police Station. However, ASI Raghubir Singh (PW3), with whom the case property was deposited, did not state that the liquor had leaked during the transportation; rather, he stated that the case property remained intact till it remained with him. Thus, the finding recorded by the learned Trial Court that the liquor could have leaked from the container in the malkhana during the transportation is without any evidence. Once it was found that the plastic container did not have the identification slip and it was empty, the identification made by HC Yash Pal could have been relied upon, and the learned Trial Court was justified in holding that the case property was not produced before the Court. It was laid down by this Court in Amandeep Singh & Ors. Vs. State of H.P. 2010 (3) Shim. LC 39, that when the case property was not produced before the Court, the conviction of the accused cannot be recorded. It was observed as under:- 9…So far as the statement of PW1 Chaman Lal is concerned, no sample of liquor or any seal of the seized liquor has been produced and proved in Court. The bottles from which the samples were taken have also not been proved in Court. Learned trial Court, as also the Appellate Court, had presumed as a matter of fact that what the witnesses had stated was the correct state of affairs without considering that facts were to be proved from documents which admittedly existed but were not produced in Court. There is no presumption in law that oral evidence can override documentary proof. The existence of a seal can be proved by its production. The Court cannot presume that the sample was kept in safe custody, more especially when such fact is established by a written document, namely register (s) and certificate in Register No. 21, which is not produced. What the prosecution tried to prove remains unclear. Merely saying that liquor was seized is insufficient without establishing its quantity and safekeeping.” 22. The Court cannot presume that the sample was kept in safe custody, more especially when such fact is established by a written document, namely register (s) and certificate in Register No. 21, which is not produced. What the prosecution tried to prove remains unclear. Merely saying that liquor was seized is insufficient without establishing its quantity and safekeeping.” 22. While dealing with the case of non-production of case property in forest case, it was laid down by the Hon’ble Supreme Court in Pawan Kumar v. State of H.P., (2019) 4 SCC 182 : (2019) 2 SCC (Cri) 39 : 2019 SCC OnLine SC 359 that when the seized wood and the vehicle were not produced, and only one sample was produced, the accused could not have been convicted of the commission of offences punishable under Section 379 of the IPC and Section 42 of the Forest Act. It was observed at page 183:- “4. We have heard the learned counsel for the respondent in opposition to the appeal and considered the nature of the evidence available. Non-production of the seized wood and the vehicle, the primary evidence of the offence, renders the prosecution's case fragile and unsustainable. Mere production of the seizure memo does not tantamount to the production of the seized woods and the lorry. Unless the seized wood was produced, mere production of a sample, and there is no material in support that the sample was out of the same 22 logs, we are unable to sustain the conviction of the appellants.” 23. In view of these judgments, the learned Appellate Court was justified in doubting the prosecution's case because of the non-production of the case property and no fault can be found with the judgment of the learned Appellate Court. Therefore, the judgment passed by the learned Appellate Court is fully sustainable. Hence, the present appeal fails, and the same is dismissed. 24. Therefore, the judgment passed by the learned Appellate Court is fully sustainable. Hence, the present appeal fails, and the same is dismissed. 24. In view of the provisions of Section 437-A of the Code of Criminal Procedure (Section 481 of Bhartiya Nagarik Suraksha Sanhita, 2023) the respondent/accused is directed to furnish bail bonds in the sum of Rs.25,000/- with one surety each in the like amount to the satisfaction of the learned Trial Court within four weeks, which shall be effective for six months with stipulation that in the event of Special Leave Petition being filed against this judgment, or on grant of the leave, the respondent/accused on receipt of notice thereof, shall appear before the Hon’ble Supreme Court. 25. A copy of this judgment, along with the records of the learned Courts below, be sent back forthwith. Pending applications, if any, also stand disposed of.