DAYA RAM Vs. THE STATE OF HARYANA

JUDGEMENT

(1.) This Revision Petition has been filed by Daya Ram against his conviction under Section 61 (1) (a) of the Punjab Excise Act, for which offence he has been sentenced to six months Rigorous Imprisonment and a fine of Rs. 100, in default to undergo further Rigorous Imprisonment for three months. The conviction was recorded by the Chief Judicial Magistrate, Bhiwani and the same was affirmed in appeal by the learned Sessions Judge, Bhiwani.

(2.) The allegation, in substance is that at about 1 a.m. on January 2, 1982, a patrol party consisting of Assistant Sub -Inspector, Roshan Lai (PW 2), Head Constable Rajinder Singh (PW 5) and Head Constable, Mamam Singh (PW 6) and others found the petitioner and one ether person coming from the direction of village Rampura in Rajasthan. Both of them were carrying a bundle each on their heads. On seeing the police party, they threw their bundles and ran away. They could not be apprehended. The allegation is that the bundle thrown by the petitioner was found to contain a bladder full of illicit liquor which measured 20 £ bottles. The petitioner was subsequently prosecuted, with the result already noticed.

(3.) As rightly argued by the learned Counsel for the petitioner, there is a serious doubt in regard to the identity of the petitioner as being the person who had thrown away the bundle containing illicit liquor and escaped from the spot. This doubt is confirmed from the fact that according to the Assistant Sub -Inspector, the petitioner was seen from a distance of 10 or 15 paces, while Maman Singh, Head Constable mentioned this distance to be only 5 paces. The Courts below have ignored this discrepancy as minor and immaterial. Similarly, there is also a discrepancy in regard to the period spent by the police party at the spot which ranges from 1/4 -1 hour to 3 to 4 hours. It has also been highlighted that the companion of the petitioner was acquitted in respect of this very incident, though in a separate trial. In fact, a copy of the judgment of the Additional Chief Judicial Magistrate, Bhiwani, acquitting the companion named Vidyadin alias Birdu is available on the record of the lower appellate Court. In the said judgment, the trial Court found a grave doubt in respect of the identity of the accused and granted benefit of doubt to him. The case of the peti tioner cannot be discriminated and he too is entitled to the benefit of doubt.