IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No.427 of 2008.

Decided on : 19th September, 2017.

State of Himachal Pradesh .......Appellant.

Versus Diwan Chand and anr. ……Respondents.

Coram The Hon’ble Mr. Justice Chander Bhusan Barowalia, Judge.

For the appellant : Mr. Pushpinder Singh Jaswal, Dy. Advocate General and Mr. Rajat Chauhan, Law Officer.

For t he respondents : Mr. O.C. Sharma, Advocate. Chander Bhusan Barowalia, Judge (oral)

Assailing the impugned judgment dated 11.3.2008, passed by the learned Additional Sessions Judge, Fast Track Court, Solan, District Solan, (H.P), in Case No.31FTC/10 of 2007, whereby accused persons stand acquitted, State of Himachal Pradesh, has maintained the present appeal.

2. The key facts, giving rise to the present appeal, as per the prosecution story, are that on 31.3.2005, at about 4:00 PM, ASI Prakash Chand (PW-8) alongwith HHC Ujjagar Singh (PW-1) and Constable Hardev Singh (PW-5) were on patrolling duty, at village Chabal, where accused persons carrying a bag, came on a motorcycle bearing No.HP-15-4674 from Jubbar side. On seeing the police party, accused persons threw bag from the motorcycle on the road and tried to fled away from the spot. They also left the motorcycle and ran towards forest. The police party chased them, one of the accused, namely,

1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.

Diwan Chand, was nabbed by the police party, whereas another accused ran away from the spot. On search of the bag thrown by the accused persons from the motorcycle, it was found to have contained 09 bottles of country liquor marka ‘Lal Kila’. One bottle was broken. Accused persons could not produce any licence or permit for carrying 09 bottles. Out of the recovered bottles, three bottles were opened and one sample was separated from each, so opened bottle. The recovered bottles were also sealed with seal impression ‘A’ and taken into possession by the police. Specimen of seal impressions was separately taken and the seal after its use was handed over to HHC Ujjagar Singh (PW-1). Ruqua was prepared on the spot and sent to Police Station, on the basis of which, FIR was registered against the accused persons. The samples, on chemical examination, were found to be of country liquor. Police thoroughly investigated the matter and after conclusion of investigation challan was presented in the Court.

3. The prosecution, in order to prove its case, examined as many as eight witnesses. Statements of the accused persons were recorded under Section 313 of the Code of Criminal Procedure, wherein they have denied the prosecution case and claimed innocence. However, they did not lead any defence evidence.

4. Learned Deputy Advocate General appearing on behalf of the appellant has argued that the learned lower Appellate Court without appreciating the facts to its true perspective and also without appreciating the law correctly has acquitted the accused. He has further argued that the present is a fit case, where the accused is required to be convicted. On the other hand, Mr. O.C. Sharma, learned counsel appearing on behalf of the respondents has argued that the prosecution has miserably failed to prove the guilt of the accused. No independent witness was associated by the prosecution, however the independent witnesses were available. The case property was deposited after three days of the alleged occurrence in the ‘Malkhana’ and there is no explanation of the delay. In these circumstances, the judgment of acquittal passed by the learned lower Appellate Court is just, reasoned and no interference is called for.

5. To appreciate the arguments of learned Deputy Advocate General and learned counsel for the accused, this Court has gone through the record in detail and minutely scrutinized the statements of the witnesses.

6. It has come on record that as far as the presence of accused persons are concerned, case of the prosecution is that they had fled away from the spot, after throw