Ajay Mohan Goel, J.—The present appeal has been filed against judgment dated 07.04.2008 passed by learned Additional Sessions Judge, Fast Track Court, Kangra at Dharamshala in S.C. No. 16-P/VII/2007, S.T. No. 18/08, vide which the accused have been acquitted of offences under Sections 147, 148, 149, 307, 353, 332, 341, 395, 397 and 120-B I.P.C.
2. The case of the prosecution was that on the intervening night of 09/10.09.2005 an information was provided by liquor contractors to the police that accused will be carrying 50 cartons of country liquor Lal Kila brand in a jeep. On the basis of this information, police laid a Naka at a place known as Pudva near Palampur. At the said Naka at about 01.00/1.300 A.M., a Mohindra Jeep bearing registration No. HP-37-0226 came which was stopped by the police personnel. However, 2-3 persons who were inside the said jeep fled away. Thereafter, another jeep with applied for number reached the spot. 2-3 persons came out of this jeep but they also ran away. When this jeep was searched by the police, it was found loaded with cartons of country liquor. Thereafter, a jeep being plied by one of the accused persons also reached the spot. The occupants of the said jeep attacked the police officials with stones. In these circumstances, the police tried to drive away the jeep loaded with liquor with the help of the driver of the liquor contractor and in the said process, the police party In-charge suffered injuries. Further, as per the prosecution one of the accused also fired shot in air. The police continued to proceed with the vehicle in which the liquor was there but when they reached near Manja one of the accused brought his jeep in front of said jeep and stopped the same by obstructing the passage. They forced the driver of the said vehicle out of it and thereafter, took the jeep in which the liquor was, with them away from that place. Police party In-charge sent a telephonic information to the Police Station and thereafter, reached the Police Station and got the FIR lodged. The accused were arrested and at their instance, bottles of liquor were recovered in carton boxes. The jeep involved in this incident was recovered and one sword with which one of the accused was found armed was also recovered.
3. Thus, the case made out by the prosecution was that the accused were apprehended by the police while transporting country liquor without any valid permit and in this process, the accused clashed with the police officials and caused injury to one of the police officials. They obstructed the police and also took away the liquor along with the vehicle. On these basis, investigation was carried out and a challan was prepared. The case was committed for trial. The accused appeared in the Court, pleaded not guilty and claimed to be tried.
4. The learned trial Court after hearing the parties has acquitted the accused of the offences alleged against them by concluding that there were doubts in the prosecution case.
5. Feeling aggrieved by the said judgment, State has filed the present appeal. Learned Additional Advocate General has vehemently argued that the judgment passed by the learned trial Court is perverse and not sustainable at all. He has argued that the learned trial Court has appreciated the evidence on record in a slipshod manner and has acquitted the accused persons on flimsy grounds. It is further the case of the State that the judgment under challenge is based on hypothetical reasoning, surmises and conjectures. As per the appellant, the learned trial Court has failed to correctly appreciate the prosecution evidence. The reasonings of the learned trial Court are manifestly unreasonable and unsustainable and rather no reasons whatsoever has been assigned for discarding the reliable version of the official witnesses. The learned Additional Advocate General has strenuously argued that the learned trial Court had erred in discarding the testimony of the prosecution witnesses in the absence of any proof of animosity and enmity.
6. Mr. K.B. Khajuria, learned counsel for the respondents has supported the judgment passed by the learned trial Court. According to Mr. Khajuria, findings returned by the learned trial Court are based on the material which was available before the learned trial Court. According to him, the prosecution had failed to prove its case beyond reasonable doubt against the accused. He also argued that the case of the prosecution was full of contradictions and the prosecution had miserably failed to bring home the guilt of the accused.
7. We have heard learned counsel for the parties and have also gone through the records of the case as well as the judgment passed by the learned trial Court.
8. In order to prove its case, the prosecution examined 17 witnesses.
9. PW-1 ASI Gambhir Chand stated that on 10.09.2005 he was posted at Police Station Palampur and he along with HHC Parmeshwari and other police officials were on patrol at Pudva. At about 1.10 A.M. Onkar and Surinder came and told him that they had received information that liquor was being brought in a vehicle from Khundian side and that Sampuran @ Fina, Ajay Guleria and Shiv Karan Sanju etc. were coming in that vehicle. In the meanwhile, one Mohindra Jeep reached there. In the said jeep, one person was sitting along with driver. When the said vehicle was stopped, its driver made a phone call informing someone that they should not come ahead. Thereafter, the said driver and the person sitting along with him fled away in the dark. When the vehicle was searched, it was found to be empty. After sometime, another Mohindra vehicle with "A/F" also reached the spot. Three persons were sitting in the said vehicle. Its driver disclosed his name as Ajay. These persons ran away when the police started checking the vehicle. This vehicle was found loaded with country liquor. When the police was conducting codal formalities, one Indica Car also reached on spot, in which 5-6 persons were sitting. When this car was stopped, the persons in the car started pelting stones on the police officials. He suffered injuries on his left eye and right hand finger. He has further deposed that when the police tried to drive the jeep with the help of the driver of the liquor contractor Onkar, Ajay and Shiv Kumar came, who were armed with gun, shot at them. Fina was armed with sword. He has further deposed that the police was proceeding towards Palampur and these persons chased them and when the police reached near Mehnja link road near Paror, the accused stopped their Indica car ahead of the police team and blocked the road. Thereafter, they dragged out the driver from the jeep and at gun point took away the jeep which was loaded with liquor. He sent information from his mobile Cell to Police Station Palampur and returned to the Police Station along with other police officials. He also stated that FIR Ext. PW1/A was registered, which bears his signatures and he was got medically examined at SDH Palampur.
10. PW-2 Suinder Singh Rana has deposed that he was working as liquor contractor for the last 10-15 years and on 11.09.2005 he received telephonic message that liquor was being carried from Jawalamukhi side via Khundia. He was accompanied by Onkar Rana, who made a telephonic call at Police Station on which he was informed that the police had already laid Naka at Pudva. They reached at Pudva at around 12/12.30 A.M. informed the police official that liquor was being carried by Ajay and Sampuran, who had been accompanied by 3-4 boys. He has further deposed that they were also accompanied by 2-3 other boys. At about 1.00/1.30A.M. a jeep came from the side of Khundian i.e. Mohindra jeep bearing registration number HP-37-B-226, which was stopped by the police. As soon as the vehicle stopped, the occupants of the same who were 2-3 in number ran away. The said vehicle was empty. Thereafter, another jeep reached there which was A/F from which also 2-3 persons came out who ran away. He has further deposed that thereafter someone started throwing stones and nothing else happened in his presence. He was declared as a hostile witness.
11. PW-3 HHC Piar Chand has deposed that on 20.11.2005 MHC Kehar Singh gave six bottles of country liquor Lal Kila duly sealed to be taken to CTL, Kandaghat, which he had deposited on 21.11.2005 at CTL Kandaghat.
12. PW-4 Ramesh Chand has deposed that he was running Amar Studio at Pudva Bazar and at the instance of the police, he had taken the photographs, which were Ext. PW4/A to Ext. PW4/C.
13. PW-5 Dr. S. Chakerverty has deposed that on the application moved by Investigating Officer he had examined Gambhir Chand son of Harida Ram with alleged history of assault. On examination, a lacerated wound over left eye brow measuring 2x1x1 cms was found. The wound was bleeding. Besides there was bruise over tip of right index finger. According to him, nature of injuries was simple caused within probable duration of 1-2 hours and the same were caused with blunt weapon.
14. PW-6 Randhir Singh has deposed that about two years back he was working as sales man at liquor vend at Palampur. He was called by the police officials from the liquor vend and was told that liquor had been recovered. He was made to affix his signatures on one paper. He was also declared as a hostile witness.
15. PW-7 ASI Kehar Singh has deposed that on 11.09.2005 Inspector Sanjay Sharma handed over one parcel which was sealed with seal-A and another parcel sealed with seal-A, the entries of which were made in the Malkhana Register. On 18.09.2005 he had sent both the parcels through constable Raj Kumar to FSL Junga. On 22.09.2005 ASI Ashok Kumar had deposited 31 boxes of country liquor Lal Kila out of which three bottles were sealed with seal-A. On 25.09.2005 ASI Ashok Kumar had deposited 19 boxes of country liquor Lal Kila excluding three bottles which were sealed with seal-K and he had made entries in Register No. 19. All the aforesaid six bottles were sent through HHC Piar Chand to CTL, Kandaghat. On receipt of the said parcels at FSL Junga and Kandaghat, receipts were given by constable Raj Kumar and Piar Chand respectively. He has further deposed that on 25.09.2005 sword Ext. P-4 was deposited with him by ASI Ashok Kumar.
16. PW-8 S.I. Gurbachan Singh has deposed that in the year 2005 he was posted at Police Station Palampur as Investigating Officer. At 2.25 A.M. on 11.09.2005 ASI Gambhir Chand came to the Police Station and registered FIR, which was signed by him. He has further deposed that FIR was written by MHC.
17. PW-9 S.I. Ashok Kumar has stated that in between 2003 to 2007 he was posted at Police Station Palampur as Sub Inspector. According to him, on 22.09.2005 he received the file of the case and partly investigated the same.
18. PW-10 Inspector Sanjay Sharma has deposed that in the year 2005 he was posted as S.H.O. Police Station Palampur and on 11.09.2005 he had conducted partly investigation of the case.
19. PW-11 Inspector Sanjeev Chouhan had prepared the challan and presented it in the Court.
20. PW11/A Yogesh Jaswal has deposed that he was posted as Additional Chief Judicial Magistrate, Palampur, in the year 2006. On 23.06.2006 an application Ext. PW11/A for recording the statements of witnesses Onkar Singh Rana and Surinder Singh Rana under Section 164 Cr.P.C. was moved by the S.H.O. Police Station, Palampur. These witnesses were identified by Ajit Kumar Baghla, who was President of Municipal Council, Palampur. Thereafter, he recorded the statement of Ajit Kumar Baghla to the effect that he knows and identifies the above named witnesses. According to him, these witnesses were made aware of the fact that they were not bound to make any statement. The application was passed over for sometime and thereafter when the case was called again, the witnesses were again asked to express their free will and volition without any fear or threat from any corner, and after he was satisfied that these witnesses were ready and willing to give their statements on their own free will and volition without any fear or threat or undue influence upon them he recorded the statements of Suridner Rana and Onkar Singh Rana.
21. PW-12 Onkar Singh has deposed that he was proprietor of Onkar Wine Agency at Palampur. On 11.09.2005 at 1.00 A.M. he received a telephonic call from Jawali that a jeep loaded with liquor was coming via Khundian and he passed on this information to the police. He has further stated that he was not told who was bringing the vehicle. He has further stated that he along with Surinder and 3-4 other persons accompanied by police personnel reached at Pudva. The police team was headed by ASI Gambhir Chand. The vehicle was stopped and on checking it was found empty. Then another vehicle came from the side of Khundian which was Mohindra jeep having applied for written and the first vehicle was having two occupants but he did not know them. The first vehicle left and thereafter they proceeded ahead. He has further stated that he has not mentioned the names of any persons who were bringing alleged liquor without permit. He was also declared as a hostile witness.
22. PW-13 Rakesh Kumar has stated that he was working on a liquor vend of Surinder Rana and Onkar Rana. He had not participated in any investigation nor anything happened in his presence. He was declared as a hostile witness.
23. PW-14 HHC Parmeshwsari Lal has deposed that he was posted at Police Station Palampur. On 10.09.2005 he accompanied ASI Gambhir along with other police officials to Dheera Naura on patrol. At about 1.10 A.M. when they were present on road Pudva to Khundian, Surinder and Onkar Rana informed that liquor was being transported in a vehicle. In the meantime, a Mohindra Jeep HP-37A-0226 came and this vehicle was checked and two persons were sitting in it. Nothing incriminating was found in the jeep. However, driver and other persons ran away. Thereafter, a Maxi Cab white colour also reached in which one driver and two persons were sitting. One was Ajay Guleria and other Sampuran. This vehicle was found loaded with country liquor Lal Kila brand. Driver disclosed his name as Ajay. In the meantime, a Indica car came in which 3-4 persons were sitting and they all started pelting stones on the police. Three persons in the vehicle, which was loaded with liquor ran away. One person from Indica car took out gun whose name was Ajay Guleria and accused Sampuran was armed with sword. Gun was fired. Driver of liquor contractor was asked to drive the vehicle loaded with liquor at Paraur and the police stopped their Indica car but they parked their Indica car in front of their vehicle. The driver was taken out of the vehicle and beaten and thus took away the vehicle towards Paraur at gun point. Thereafter, ASI made report at Police Station through his mobile and they proceeded to the Police Station Palampur. At Pudva ASI Gambhir had suffered injuries while stones were thrown by the accused and after registration of the FIR, he accompanied the police party to Pudva etc. i.e. Paraur
24. PW-15 HC Ramesh Chand has stated that in the year 2006 he was posted in the office of S.P. Kangra at Dharamshala as Assistant and on 01.05.2006 ASI Gambhir Chand was ordered to be posted at Police Station Palampur from P.L. Dharamshala.
25. PW-16 Constable Raj Kumar has deposed that on 18.09.2005 MHC Kehar Singh had given two parcels which were duly sealed with seal-A along with impression of seal to be handed over at FSL Junga along with envelope which he deposited at FSL Junga and on return receipt was handed over to the MHC.
26. PW-17 Vikash has deposed that he was working as Salesman with Onkar Wine Agency at Palampur. He has further stated that he accompanied nobody and he knew nothing about the case in hand. He was declared as a hostile witness.
27. According to the prosecution, liquor contractors had provided an information on the intervening night of 9th/10th September, 2005 with regard to the illicit transportation of country liquor by the accused. The complainant in the present case is ASI Gambhir Chand. The mode and manner in which the case of the prosecution unfolds itself is very interesting. As per the complainant, the police party was having information which was provided by liquor contractors that the accused will be carrying 50 cartons of country Lal Kila in a jeep and on the basis of said information they laid a Naka at a place known as Pudva near Palampur. At about 01.00/1.30 A.M., a Mohindra Jeep bearing registration No. HP-37- 0226 came which was stopped by the police personnel. 2-3 persons who were inside the jeep fled away. Thereafter, another jeep comes which had no registration number and on which �applied for� was written and from this jeep also 2-3 persons jumped out and ran away. According to the police, the search of this jeep revealed that the same was loaded with cartons of country liquor. Further, as per the prosecution, thereafter, another jeep comes to the spot, which was being plied by one of the accused person. The occupants of this jeep i.e. third jeep attacked the police personnel with stones. Thereafter, there case is that with the help of the driver of the contractor, they tied to take the jeep in which the liquor was loaded towards the Police Station. However, one of the accused fired in air and near Manja, they over took the vehicle of the police party as well as the jeep in which the police party was taking liquor to the Police Station and they forced the driver of the said vehicle out of the jeep and drove away with the jeep in which the liquor was there. When PW-1 has been confronted with his statement made under Section 154 Cr.P.C., it is revealed that he has made major improvements while deposing in the Court and what he has stated in the Court was not recorded in his statement under Section 154 Cr.P.C. The entire incident has taken place in the intervening night between 09/10.09.2005.
28. According to the complainant, he didn''t know the accused. He could not identify them due to darkness in the night. Further, in case, his statement made under Section 154 Cr.P.C., the contents of FIR and his statement made in the Court are seen together, then it is apparent that his subsequent version is not corroborating the contents of the First Information Report. This casts a serious doubt over the trustworthiness of the deposition of the said witness, who also happens to be the complainant. The story which he has narrated in the Court is that the first vehicle which came and whose occupants fled away was found empty on being checked. The second vehicle which came with applied for number was having three occupants including driver, who disclosed his name as Ajay and other two persons were Ajay and Shiv Karan. These persons also fled away when the police started checking the vehicle. This vehicle was loaded with country liquor. Thereafter, a third vehicle came, which was a Indica car in which 5-6 persons were sitting. This car was stopped and the persons sitting in the said car started pelting stones on the police personnel.
29. On the other hand, PW-2 Surinder Singh Rana, who is a liquor contractor, who allegedly provided information to the police about the transportation of the liquor, has stated that pelting of stones took place after the occupants of the second vehicle fled away. He has denied that Indica car came in which 5-6 persons were sitting, who started pelting stones. He has also denied that his driver plied the jeep loaded with liquor or that they were chased in Indica car. He has also denied that Indica car over took them and blocked the road at Paror, took away loaded vehicle at the gunpoint in which the liquor was loaded. Though, this witness was declared as a hostile witness but this Court cannot over look his statement especially in view of the fact that the police were acting on the basis of the alleged complaint of the liquor contractor itself.
30. These major contradictions in the manner in which the incident unfolds in the statements of PW-1 and PW-2 shroud the case of the prosecution with lot of suspicion. PW-6 Randhir Singh who works as a salesman at liquor vend Palampur, has also not supported the story of the prosecution at all. PW-17 Vikash has also not supported the version of the prosecution. PW-9 has deposed that accused Daljit made a disclosure statement in presence of Randhir and Rakesh Kumar to the effect that he can get Max jeep recovered. This statement Ext. PW6/D was recorded in presence of the said witnesses and the accused led the police to the forest and the vehicle in issue was recovered. The said vehicle was taken into consideration in the presence of witnesses and accused Daljit also affixed his signatures on the seizure memo. Randhir and Rakesh Kumar have been examined as PW-6 and PW- 13. PW-6 Randhir Singh has, however, denied that any such disclosure statement was made in his presence or any seizure memo was made on the basis of said disclosure statement in his presence. Similarly, PW-13 Rakesh Kumar has also denied that Daljit gave a disclosure statement or that any recovery of the vehicle was effected on the basis of said disclosure statement of Rakesh Kumar.
31. Further, a perusal of the judgment passed by the learned trial Court will demonstrate that it has elaborately dealt with all the evidence placed on record by the prosecution and after correct appreciation of the same, it has come to the conclusion that the prosecution has not been able to prove its case beyond reasonable doubt. In our considered view, the said conclusion arrived at by the learned trial Court cannot be faulted. There are too many discrepancies in the case of the prosecution. The independent witnesses have not supported the story of the prosecution and the testimony of the police witnesses does not inspire confidence because there are too many contradictions in the same and too many improvements in the statements of the said witnesses. At the best, the story of the prosecution can be a indicator that the things might have happened in the manner which the prosecution have demonstrated, however, the fact still remains that the prosecution has not been able to bring home the guilt of the accused beyond reasonable doubt. The material on record does not directly connect the accused with the commission of the alleged charges levelled against them. �Preponderance of probability� cannot be a substitute for �proof� and the same cannot be made basis for convicting a person. The judgment passed by the learned trial Court is neither cryptic nor it can be said that the conclusions arrived at by the learned trial Court are not borne out from the record of the case. Therefore, we uphold the findings returned by the learned trial Court in view of the fact that there is no merit in the present appeal, the same is dismissed. Bail bonds, if any, furnished by the accused are discharged.
