Shankar Saw v. The State of Jharkhand

Gautam Kumar, Sriram Paswan, Bhola Nath, Ravindra Thakur and Mahavir Oraon had fully supported prosecution case and recovery of the articles. It is submitted that P.W-6 Sriram Paswan who is informant of this case, had conducted raid in the house of the petitioner and seized 100 liters of Mahua wine and he further proved the seizure list marked as Exhibit-1 and he also proved the Black Jerkin containing 25 Liter Mahua wine marked as Material Exhibit- 1 and has also proved two Blue Jerkin containing 25-25 liter Mahua wine which were marked as Material Exhibit-2 and Material Exhibit-3 respectively. It is submitted that P.W-1 and P.W-5 namely Sharma Ram and Gautam Kumar have also supported prosecution case and the recovery of 100 liters of Mahua wine. It is submitted that P.W-7 and P.W-8 are also the police personnel and they have also supported the prosecution case. It is submitted that P.W-9 is the I.O of this case who has also proved the Chemical Examination Report marked as Exhibit-5 and submitted charge sheet against the petitioner under sections 271, 272 and 290 of the IPC and under section 47(a) of the Excise Act. It is submitted that the I.O had supported and corroborated the evidence of P.W-6 i.e. the informant of this case have also been supported by the several witnesses and hence the judgment passed by the learned trial court is fit and proper and which has rightly been affirmed by the learned Appellate Court and hence this Criminal Revision may be dismissed. 4

5. Perused the Lower Court Records of this case and considered the submissions of both the sides.

6. It transpires that the informant had lodged the F.I.R on 16.11.2009 for recovery of 100 liters of wine from the muddy house where the petitioner was allegedly preparing the wine in different plastic Jerkin of black and blue colour. However, it also appears that the informant learnt the name of the petitioner from the villagers but the name of none of the villagers have been disclosed or mentioned in the F.I.R.

7. It transpires that the police had submitted the charge sheet on 01.09.2011 under sections 271, 272 and 290 of the IPC and under section 47(a) of the Excise Act against the petitioner and learned C.J.M, Chatra had cognizance under sections 271, 272 and 290 of the IPC and under section 47(a) of the Excise Act against the petitioner.

8. After supplying police paper to the petitioner, the charges were framed against the petitioner on 25.04.2012 for the offence under Sections 271, 272 and 290 of the IPC and under section 47(a) of the Excise Act and to which the petitioner pleaded not guilty and claimed to be tried.

9. During trial the prosecution got examined nine (09) witnesses, who are as follows:- (i) P.W-1 is Sharma Ram, Havildar, (ii) P.W-2 is Rajender Prasad, Constable, (iii) P.W-3 is Munajir Hasan, Constable, Police (iv) is Kameshwar Mahto, Constable at D.C Member P.W-4 Residence, P.W-5 is Gautam Kumar, Constable, (v) (vi) P.W-6 is Sriram Paswan i.e. the informant 5 (vii) P.W-7 is Bhola Nath, ASI who had produced the Material Exhibits, (viii) P.W-8 is Ravindra Thakur, Constable at Police Line (ix) P.W-9 is Mahavir Oraon, ASI, i.e. the I.O.

10. The prosecution in support of its case got marked the following documents which are as follows:- Exhibit-1 is the Seizure List, (i) (ii) Exhibit-2 is the Self written statement of informant, (iii) Exhibit-2/1 Endorsement on written report, (iv) Exhibit-3 is Formal FIR, (v) Exhibit-4 is Material Exhibit Challan and (vi) Exhibit-5 is requisition letter dated sent by I.O for Chemical Examination. Although the judgment reveals that the Exhibit-5 is letter sent by the I.O for the chemical examination but the same has not been brought on record.

11. Thereafter the petitioner was examined under section 313 Cr.P.C on 13.02.2014 by the learned Sessions Judge, Chatra and to which the petitioner denied the circumstances put forth before him.

12. Thereafter the court below has convicted petitioner for the offence under section 47(a) of the Excise Act. However, the Court below had acquitted the petitioner for the offence under section 271, 272 and 290 of the IPC. Thereafter the petitioner had preferred the Criminal Appeal and which was dismissed by the learned Sessions Judge and hence this Criminal Revision has been filed.

13. From perusal of the FIR, it transpires that the name of the petitioner has been surfaced in this case only on the basis of statement of villagers but the name of such villagers have not been disclosed and mentioned in the F.I.R by the informant and as also brought on record even during the 6 deposition of the prosecution witnesses.

14. It transpires that P.W-1 to P.W-5 namely Sharma Ram, Rajendra Prasad, Munajir Hasan, Kameshwar Mahto and Gautam Kumar are the police personnels.

15. P.W-1 Sharma Ram is Constable and has tried to support the prosecution case by submitting that they had arrived near the house of petitioner Shankar Saw who had fled away. Thereafter the house was inspected and 100 Liters of Mahua Wine was recovered and for which a seizure list was prepared. However, during cross-examination he failed to state the boundary of the place of occurrence. He has also admitted that he has given the statement on the basis of the statement of the villagers but he has not disclosed the name of any villagers. Hence the evidence of P.W-1 is not reliable.

16. P.W-2 is namely Rajender Prasad who is also Constable and who stated about the recovery of 100 Liters of wine from the house of the petitioner. However, during cross-examination he stated that he also could not say about the boundary of the place of occurrence and stated that he is giving evidence for the first time before the Court and he is giving statement on the basis of the statements of the villagers but he had also not disclosed the name of the villagers and thus, the evidence of P.W-2 is not reliable.

17. P.W-3 is Munajir Hasan, who has also stated the same fact as has been stated by P.W-1 and P.W-2 and could not say about the boundary of the place of occurrence and also could not say the house belonged to whom and thus, the evidence of P.W-3 is also not reliable. 7 He also could not tell the name of any person from whom he learnt the name of the petitioner Shankar Saw and hence the evidence of the P.W-3 is not reliable.

18. P.W-4 namely Kameshwar Saw also stated the same facts as has been stated by P.W-1 to P.W-3 on the point of recovery of 100 Liters of wine from one Shankar Saw. However, during cross examination he stated that the Hut was prepared near the river side and there was no person and the Hut was made of earth/soil and he claimed to identify the petitioner on the basis of presumption. Thus, the evidence of P.W-4 is also not reliable.

19. P.W-5 is Gautam Kumar who is also a Constable and has stated about the recovery of 100 Liters of Mahua Wine from one Hut. Although, he was not declared hostile by the prosecution but he also could not identify the petitioner before the Court below, hence the evidence of P.W-5 is not reliable.

20. P.W-6 is the Informant of this case and he has tried to support the prosecution case as has been made out in the FIR and has stated about recovery of 100 Liters of wine and also stated that he had prepared seizure list in presence of the independent witnesses namely Vikash Kumar Yadav and Kailash Kumar Yadav and proved the seizure list marked as Exhibit-1. He has further proved the three plastic Jerkins containing 50 Liters, 25 Liters and 25 Liters of Mahua Wine which have been marked as Material Exhibit-1, Material Exhibit-2 and Material Exhibit-3 respectively. He has further proved the written application marked as Exhibit-2 and the endorsement on written application marked as Exhibit-2/1. He has further proved the formal FIR marked as Exhibit-3. During cross-examination, he could not say the 8 number of vehicle from which he had conducted the raid. He also failed to disclose the boundary of the place of occurrence during cross examination. He also failed to explain the distance of the place of occurrence to the alleged house i.e. the Hut fromwhere the wine was recovered. He also admitted that the person seen in the house had fled away after seeing the Police Force. He also admitted that only one Kailash Kumar Yadav of the village was present and he is not aware of the name of any villagers. Thus, from scrutinizing the evidence of P.W-6 i.e. the informant of this case, it is evident that he has failed to disclose the name of the villagers who had disclosed the name of the petitioner before him. He also failed to prove about the house from where the wine was recovered from the petitioner and he has contradicted the evidence of P.W-1 to P.W-4 namely Sharma Ram, Rajendra Prasad, Munajir Hasan, Kameshwar Mahto respectively.

21. P.W-7 is one ASI namely Bhola Nath who has proved the Exhibit-4, the Chalan of Malkhana. During cross-examination he stated that he has proved the Material Exhibit as per instruction of the Officer- in-Charge of Malkahana. Thus, P.W-7 is a formal witness and his evidence cannot be relied upon.

22. P.W-8 is Rabinder Thakur who also stated about the recovery of 100 Liters of wine from the small house situated near the river side which is allegedly belonged to this petitioner. However, during cross-examination, he admitted that no one was present at the place of occurrence and one person was called later on but he could not say the name of that 9 person. He also could not say the boundary of the place of occurrence. Thus, the evidence of P.W-8 is also not reliable.

23. P.W-9 is the part I.O of this case, who has submitted charge sheet against the petitioner and stated that he had not recorded the statement of any witness. He has further stated that he had added sections 271, 272 and 290 of the I.P.C on the instruction of superior officer and had submitted charge sheet accordingly. He further proved the report of chemical examination marked as Exhibit-5. However, during cross-examination he has stated and admitted that he had not recorded the statement of the informant. He further admitted that he had also not recorded the statement of the witnesses. He also admitted that the seized articles were kept without Seal and Mohar. He further admitted that earlier the I.O i.e. Jaleshwar Singh had taken out the sample from the seized articles which were sealed. Thus, from the evidence of P.W-9, it is evident that he is the part I.O of this case and the main I.O. i.e. Jaleshwar Singh has not been examined by the prosecution and he has merely submitted charge sheet against this petitioner and has brought no evidence against him.

24. Although Exhibit-5 does not find place in the Lower Court Records. However, this Court is not calling for the said Exhibit-5 as the same is not applicable in this case because the said Exhibit-5 has been issued by the Excise Inspector. However, the said Excise Inspector has not been examined rather P.W-9 who is the I.O of this case has proved and as such the I.O. was not competent to approve the test report submitted by the Excise Inspector.

25. It further transpires that even Exhibit-5 was not 10 brought to the notice of this petitioner while he was examined under section 313 Cr.P.C.

26. It is well settled in the light of the judgment reported in (1984) SCC 116 (Sharad Birdhichand Sarda) and also from the judgment reported in 2022 (5) SCC 438 (Satye Singh and Anr. vs. State of Uttarakhand) that the circumstances if not put forth to the accused persons, then the same cannot be used against him.

27. It is evident from the FIR that the petitioner has been named by villagers but the prosecution has been failed to point out as to who has disclose the name of the petitioner. It is further evident that the Hut from where the articles i.e. Mahua Wine were seized do not prove that the same belonged to the petitioner.

28. It further transpires that the petitioner has been named in the FIR merely on suspicion by the Informant.

29. It further transpires that the independent witnesses namely Vikash Kumar Yadav and Kailash Kumar Yadav had not been examined by the prosecution during trial and thus the recovery has not been validly proved.

30. It is evident that all the witnesses P.W-1 to P.W-9 are the police personnels and have failed to prove the case against the petitioner.

31. It further transpires that no independent witness had been examined by the prosecution.

32. Under the circumstances, judgment dated

05.06.2018 passed by Mrs. Rita Mishra, learned Sessions Judge, Chatra in Cr. Appeal No.33 of 2014 and the judgment of conviction and order of sentence passed by Sri Bishwanath Bhagat, J.M., Ist Class, Chatra in connection with Rajpur P.S. Case No.27 of 2009, corresponding to G.R. Case No.946 of 11 2009 by which the petitioner has been convicted for the offence under section 47(a) of the Excise Act and sentenced to undergo R.I for one year and pay fine of Rs.1,000/-, are set aside and the petitioner namely Shankar Saw is acquitted.

33. It further transpires that no independent witnesses were examined by the prosecution and even the seizure list witnesses namely Vikash Kumar Yadav and Rameshwar Yadav were not examined by the prosecution.

34. Thus, the instant Cr. Revision No.990 of 2018 is allowed. Saket/ N.A.F.R. (Sanjay Prasad, J.)