State of Punjab vs Surinder Kumar alias Chhinda

S.D. Bajaj, J.

Nearly 60 Karams away from the bus stand in village Mohar Singh Wala Police Station Bikhi in the newly created district of Mansa of Punjab State, at 2.30 p.m. on October 15, 1982, S.I./S.H.O. Swaran Singh recovered from conscious, actual and physical possession of accused Surinder Kumar 15000 intoxicating tablets. On being prosecuted for it under Section 13 of the East Punjab Drugs (Control) Act, 1949, the accused pleaded `not guilty'' thereto and claimed to be tried. Vide its impugned judgment dated December 19, 1987 learned trial court acquitted the accused. Feeling aggrieved therefrom, the State of Punjab has filed Criminal Appeal No. 266 DBA of 1988 in this Court.

We have heard Shri Randhir Singh, AAG Punjab for the appellant State, nemo for the respondent inspite of due service and have persued the entire relevant material on record very carefully.

The three grounds assigned by the learned trial court for acquitting the accused are :

i) failure of the investigating agency to join independent witnesses of the locality at the time of the search of the accused;

ii) refusal of the investigating officer to refresh his memory from case diary; and

iii) the police party having abandoned its scheduled visit to village Dhepai after apprehension of the accused.

Legal validity of these grounds is being discussed hereinafter adseriatum :

3(i) As held in Swarna v. State of Punjab, 1987(2) Recent Criminal Reports 117 , the law is, of course, well settled that the testimony of a witness is not to be doubted or looked upon with suspicion merely because he happens to be a police official, but it is, at the same time, a very well recognized rule of caution, adopted by the Courts, to look for corroboration to the testimony of such witnesses by independent witnesses, particularly, when the time, place and circumstances are such that independent witnesses are easily available. In the present case as mentioned earlier, the place of apprehension and search of the respondent was a thoroughfare. Failure of the investigating agency to make the search in the presence of two independent witnesses of the locality also renders the prosecution case against the accused doubtful.

3(ii) In Deodhari Pandey v. King Emperor, AIR 1925 Patna 131 it was observed that the accused must get the benefit of refusal of the police officer to refer to case diary. The refusal of the investigating officer to refer to the case diary would show that there must have been apprehension in the mind of the investigating officer regarding disclosure of true facts of the case on reference to the case diary and therefore, such refusal creates a suspicion about the truthfulness of the prosecution version. The accused, therefore, earns an acquittal on this score as well.

3(iii) It has come in evidence that the police party was to go to village Dhepai after the arrest of the accused. Without giving any explanation, for its decision to abandon the visit, the police party admittedly did not go there. It was observed in State of Punjab v. Ram Prakash, (Vol. LXXXIX 1977) Punjab Law Reporter 571 :

"When no explanation was given as to why the raiding party did not go to the scheduled village for intended raid it was considered one of the circumstances for acquittal of the accused."

The facts of the above referred case and the instant case are more or less same because in the referred case police party was to go for the raid but in the instant case the police party was to go for patrolling but the police party failed to give cogent reasons why their visit to village Dhepai was abandoned.

In result we affirm the trial court finding of `not guilty'' returned by it in favour of the respondent and dismiss the appeal filed by the State against his acquittal.