CR.A/105/2014 on 14 October 2026

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 105 of 2014 Reserved on: 01.10.2026 Date of Decision: 14.10.2026. State of H.P. ...Appellant Versus Sanjeev Kumar & Ors. ...Respondents

Coram

Hon’ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 No For the Appellant : Mr Ajit Sharma, Deputy Advocate General. For the Respondents : Mr M.L. Sharma, Advocate. Rakesh Kainthla, Judge The present appeal is directed against the judgment dated 24.08.2013 passed by the learned Judicial Magistrate First Class, Rajgarh, District Sirmaur, H.P. (learned Trial Court) vide which the respondents (accused before the learned Trial Court) were acquitted of the commission of an offence punishable under Section 61(1)(a) of the Punjab Excise Act as applicable to the State of HP. (The parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience).

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

2. Briefly stated, the facts giving rise to the present appeal are that the police presented a challan before the learned Trial Court against the accused for the commission of an offence punishable under Section 61(1)(a) of the Punjab Excise Act as applicable to the State of HP. It was asserted that the informant Rajender Prashad (PW16), Sandeep Dhawal (PW17), SI Satto Kumar (PW18), HHC Babu Ram (PW15), and Avinash Chauhan (PW1) were on patrolling duty on 30.12.2009. They reached Neripul at about 02:00 p.m. and received secret information that contractors Subhash and Sonu, who were running the liquor vend at Jaghed and Haban, were also selling liquor at Nehrati Bagot. A huge quantity of liquor could be recovered by searching the shop. The delay in procuring the search warrant would have led to the destruction of the case property. Hence, the police party went to Nehrati Bagot at about 03:30 p.m. They found that a shop was openly displaying the liquor bottles. The police called Ramesh Chand (PW4) and Tara Singh (PW2) to the spot. The salespeople present in the shop identified themselves as Sanjeev Kumar and Om Parkash, and they also disclosed that the liquor shop belonged to contractors Subhash and Sonu. The police demanded a permit for selling the liquor, but no permit was produced. Avinash

Chauhan also disclosed that no liquor vend was sanctioned for Nehrati Bagot. Hence, the shop was searched. Many bottles of IMFL, Country Liquor and Beer of different brands were recovered. The police retained the samples of 2 bottles each of different brands for chemical analysis. The remaining bottles and the boxes were put in different gunny bags. The gunny bags and sample bottles were sealed with seal ‘M’. ₹9,990/-, being sale proceeds of the liquor, was also recovered. These were seized vide (Ext.PW1/B). The currency notes were put in a cloth parcel and were seized vide memo (Ext.PW8/B). The parcel was sealed with 6 impressions of seal ‘M’. Seal impression (Ext.PW18/A) was taken on a separate piece of cloth. Rukka (Ext.PW17/A) was prepared and was sent to the Police Station where FIR (Ext.PW18/B) was registered. The photographs of the spot (Ext.PX1 to Ext. PX 12) were taken. SI Satto Kumar (PW18) investigated the matter. He prepared the site plan (Ext.PW18/D) and recorded the statements of witnesses as per their version. The case property was deposited with Sudhir Chauhan (PW8), who deposited it in the Malkhana and made an entry in the register (Ext.PW8/A). He handed over the samples to HC Bhagat Ram (PW12) with a direction to carry them to the CTL Kandaghat. The result of analysis (Ext.P67) was issued stating that the samples contained different degrees of proof alcohol in them. The statements of witnesses were recorded as per the version, and after the completion of investigation, the challan was prepared and presented before the learned Trial Court.

3. Learned Trial Court found sufficient reasons to summon the accused. When the accused appeared, a notice of accusation was put to them for the commission of offences punishable under Section 61(1)(a) of the Punjab Excise Act as applicable to the State of HP, to which they pleaded not guilty and claimed to be tried.

4. The prosecution examined eighteen witnesses to prove its case. Avinash Chauhan (PW1), Ramesh Kumar (PW5), Constable Charan Singh (PW10), Babu Ram (PW15), Inspector Rajendra Prashad (PW16), and Additional SP Sandeep Dhawal (PW17) witnessed the recoveries. Tara Singh (PW2) and Kishan Singh (PW7) did not support the prosecution case. HC Ashok Kumar (PW3) and Sudhir Chauhan (PW8) were working as MHC. Santram Sharma (PW6) proved the record. Ramesh Chand (PW9) proved the resolution passed by the Panchayat. Bhupender Kumar Mehta (PW11) proved the tour program of Sandeep Dhawal. HC

Bhagat Ram (PW12) carried the samples to CTL Kandaghat. Constable Radha Krishan (PW13) proved that some of the bottles were broken while transporting the liquor. Surat Ram (PW14) and SI Satto Kumar (PW18) investigated the matter.

5. The accused, in their statements recorded under Section 313 of the Code of Criminal Procedure (CrPC), denied the prosecution case in its entirety. They claimed that a false case was made against them. They did not produce any evidence in their defence.

6. Learned Trial Court held that the testimonies of prosecution witnesses contradicted each other in material particulars, which made the prosecution case highly suspect. The case property was not produced before the Court, and the integrity of the case property was also not established. The independent witnesses had not supported the prosecution version. All these circumstances made the prosecution’s case doubtful. Hence, the learned Trial Court acquitted the accused.

7. Being aggrieved by the judgment passed by the learned Trial Court, the State has filed the present appeal asserting that the learned Trial Court erred in acquitting the accused. The statements of prosecution witnesses corroborated each other. The mere fact that independent witnesses had not supported the prosecution case was not sufficient to doubt it. The result of CTL Kandaghat proved that sample seal ‘M’ was enclosed with the sample sent for chemical analysis. Hence, it was prayed that the present appeal be allowed and the judgment passed by the learned Trial Court be set aside.

8. I have heard. Mr Ajit Sharma, learned Deputy Advocate General for the appellant/State, and Mr M.L. Sharma, learned counsel for the respondents/accused.

9. Mr Ajit Sharma, learned Deputy Advocate General for the appellant/State, submitted that the learned Trial Court erred in acquitting the accused. The statements of prosecution witnesses corroborated each other, and there was nothing in their cross-examination to show that they were making false statements. The prosecution case could not have been doubted merely because independent witnesses had not supported the prosecution case. Learned Trial Court had taken a view that could not have been taken by any reasonable person. Hence, he prayed that the present appeal be allowed and the judgment passed by the learned Trial Court be set aside.

10. Mr M.L. Sharma, learned counsel for the respondents/accused, submitted that the learned Trial Court had properly appreciated the evidence. The statements of the prosecution witnesses contradicted each other on material aspects. The Investigating Officer had not complied with the requirement of Section 165 of CrPC, which made the prosecution case suspect. The case property was not produced before the Court, and the integrity of the case property was doubtful. The learned Trial Court had taken a reasonable view that could have been taken based on the evidence produced before the learned Trial Court. No interference is required with the reasonable view of the learned Trial Court while deciding an appeal against acquittal. Hence, he prayed that the present appeal be dismissed.

11. I have given considerable thought to the submissions made at the bar and have gone through the records carefully.

12. The present appeal has been filed against a judgment of acquittal. It was laid down by the Hon’ble Supreme Court in Sanjay Kumar v. State of Bihar, 2026 SCC OnLine SC 1373, that the

Court can interfere with a judgment of acquittal only if it is impossible, perverse, wholly unsustainable, or manifestly illegal. It was observed: Scope of interference with an acquittal:

26. At the outset, it is necessary to remind ourselves of the settled principles governing interference with an order of acquittal. An accused is presumed innocent until proven guilty. When a court of competent jurisdiction acquits the accused, the presumption of innocence is not weakened but reinforced. Where such acquittal is affirmed by the High Court, the caution to be exercised by this Court under Article 136 is even greater.

27. In Kali Ram v. State of Himachal Pradesh (1973) 2 SCC 808: 1973 SCC (Cri) 1048, this Court explained the golden thread running through criminal jurisprudence in the following words: “25. Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. This principle has a special relevance in cases wherein the guilt of the accused is sought to be established by circumstantial evidence. A rule has accordingly been laid down that unless the evidence adduced in the case is consistent only with the hypothesis of the guilt of the accused and is inconsistent with that of his innocence, the Court should refrain from recording a finding of guilt of the accused. It is also an accepted rule that in case the Court entertains reasonable doubt regarding the guilt of the accused, the accused must have the benefit of that doubt. Of course, the doubt regarding the guilt of the accused should be reasonable; it is not the doubt of a mind which is either so vacillating that it is incapable of reaching a firm conclusion or so timid that it is hesitant and afraid to take

things to their natural consequences. The rule regarding the benefit of doubt also does not warrant acquittal of the accused by resort to surmises, conjectures or fanciful considerations. As mentioned by us recently in the case of State of Punjab v. Jagir Singh, a criminal trial is not like a fairy tale wherein one is free to give flight to one's imagination and fantasy. It concerns itself with the question as to whether the accused arraigned at the trial is guilty of the offence with which he is charged. Crime is an event in real life and is the product of the interplay of different human emotions. In arriving at the conclusion about the guilt of the accused charged with the commission of a crime, the Court has to judge the evidence by the yardstick of probabilities, intrinsic worth and the animus of witnesses. Every case in the final analysis would have to depend upon its own facts. Although the benefit of every reasonable doubt should be given to the accused, the Courts should not at the same time reject evidence which is ex facie trustworthy on grounds which are fanciful or in the nature of conjectures.”

28. The decision in Kali Ram (supra) further cautions that wrongful acquittal and wrongful conviction do not stand on the same footing, for conviction of an innocent person causes grave injustice and shakes public confidence in the administration of criminal justice. The rule of benefit of doubt, therefore, is not technical; it is a substantive safeguard flowing from the presumption of innocence.

29. In Ghurey Lal v. State of Uttar Pradesh (2008) 10 SCC 450: (2009) 1 SCC (Cri) 60, this Court reiterated the limited scope of interference with acquittals. This Court observed: “75. The Trial Court has the advantage of watching the demeanour of the witnesses who have given evidence; therefore, the appellate court should be slow to interfere with the decisions of the Trial Court. An acquittal by the Trial Court should not be interfered with unless it is totally perverse or wholly unsustainable.”

30. The decision in Ghurey Lal (supra) also crystallised certain propositions: first, there is a double presumption of innocence in favour of an acquitted accused; secondly, if two views are possible, the view favourable to the accused must prevail; thirdly, though the appellate court has the power to reappreciate evidence, it should interfere only when the acquittal is manifestly illegal, perverse or results in miscarriage of justice; and fourthly, due weight must be given to the Trial Court's findings, particularly because the trial judge had the advantage of observing the demeanour of witnesses.

31. In Chandrappa v. State of Karnataka (2007) 4 SCC 415: (2007) 2 SCC (Cri) 325, this Court held that though the appellate court has full power to review and reappreciate the evidence, the presumption of innocence is strengthened by an order of acquittal. It was held that when two reasonable conclusions are possible on the basis of evidence on record, the appellate court should not disturb the finding of acquittal.

32. The same principle was restated in Mrinal Das v. State of Tripura (2011) 9 SCC 479, wherein this Court held that an order of acquittal is to be interfered with only when there are compelling and substantial reasons for doing so. If two reasonable views are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal.

33. Therefore, the question before us is not whether another view on the evidence is possible. The question is whether the view taken by the Trial Court and affirmed by the High Court is impossible, perverse, wholly unsustainable, or manifestly illegal. Having examined the record, we are unable to hold so.

13. The present appeal has to be decided as per the parameters laid down by the Hon’ble Supreme Court.

14. It is the specific case of the prosecution that the police had received secret information during the patrolling that contractors Subhash and Sonu were selling liquor by engaging two salesmen at Nehrati Bagot. The information was credible, and any delay in procuring the search warrant would have led to the destruction of the case property. However, there is no evidence that the information was reduced to writing and was sent to the nearest Magistrate as required under Section 165 of the CrPC.

15. Section 46(2) of the Punjab Excise Act (as applicable to the State of H.P.) provides that an officer empowered under the Act will exercise the same powers in respect of such investigation as an officer in-charge of a Police Station may exercise under Chapter XIV of Cr.P.C. Section 50 of the Punjab Excise Act provides that provisions of the Code of Criminal Procedure 1898 relating to arrest, detention and custody, searches, summons, warrant of arrest, search warrant, and investigation shall apply to all actions taken under the Act.

16. It was laid down by the Hon’ble Supreme Court in ITC Ltd. v. State of Karnataka, 2025 SCC OnLine SC 1971, that every search must be preceded by a warrant, but if it is not possible to do so, the search can be conducted by complying with the requirements of Section 165 of Cr.P.C. It was observed: -

“17. Section 165Cr. P.C. deals with circumstances and prerequisites for searches without a warrant. As a general rule, every search must be preceded by a warrant, and reasons to believe must be recorded. Section 165 applies where, due to exigent circumstances, it is not possible to obtain a search warrant. In such cases, the officer may, after recording his reasons in writing and specifying, as far as possible, the thing for which the search is to be made, conduct or cause a search of the place. Section 165(4) provides that the general provisions relating to searches contained in Section 100 also apply to searches under Section 165. It is therefore clear that even under Section 165, the existence of reasons to believe that an imminent search is necessary must be recorded, with as much detail as possible. The mandate of Section 100(4) must also be satisfied even in searches under Section 165. Xxx

19.2. In every search conducted under a special enactment without a warrant, the requirement of recording reasons to believe is mandatory. The reasons necessitating the search must be relevant and must reflect application of mind based on some information - either from a third party or personal knowledge - and cannot be based on mere presumption or extraneous considerations. Such reasons cannot rest on mere suspicion or subjective satisfaction; something more substantial is required for a prudent person to conclude that a search and/or seizure is necessary.”

17. In the present case, the police had not complied with the requirement of Section 165 of the CrPC, which made the prosecution case highly doubtful.

18. HC Ashok Kumar (PW3) stated that the case property was sent to the CTL Kandaghat through HC Bhagat Ram and an entry (Ext.PW3/D) was recorded in the police station. HC Bhagat

Ram (PW12) stated that different types of bottles were handed over to him along with Form No. M29, with a direction to carry them to CTL Kandaghat via RC No. 9/10. He deposited all the bottles at CTL Kandaghat on the same day. Both of these witnesses have not stated that any sample seal was sent to the CTL Kandaghat. The entry (Ext.PW3/D) mentions that one bottle of McDowell and one bottle of original choice had leaked. These were handed over to HC Bhagat Ram. The Road Certificate (Ext.PW3/A) mentions different types of bottles and that 179 samples duly sealed and relevant documents were being sent to the CTL Kandaghat. These entries do not mention that any sample seal was sent to the CTL, Kandaghat.

19. It was laid down by this Court in Kishan Chand & Another Vs. State 2009 (2) HLJ 925 that where the person carrying the case property did not say anything about the carrying of the sample seal, link evidence is missing. The endorsement made by CTL Kandaghat in these circumstances that seal impressions were compared with the sample seal will lose their significance. It was observed: - “6. It is incumbent on the prosecution to prove that the accused were in possession of an incriminating article or an offensive material before they are convicted for keeping in possession the contraband or the offensive material. From its recovery and taking samples, the chain of evidence until the samples are analysed in the laboratory should be complete. In case of breach of the chain of evidence, it gives rise to a reasonable doubt that the samples were tampered with, to the benefit of which goes to the accused.

7. In the instant case, PW-6 A.S.I. Churamani, however, did not state about the deposit of the case property in the Malkhana. But PW-5 MHC Hukam Singh stated that on 19.6.2000 A.S.I. Churamani had deposited the case property sealed with seal impression 'N' in the Malkhana with him. But he nowhere stated that the sample of the seal was also deposited with him in the Malkhana. Even the extract of the Malkhana Register was not placed and proved on record. Thus, it cannot be said that the sample of the seal was also deposited in the Malkhana with him along with the case property. Even PW-2 constable Rajinder Kumar also did not say anything about handing over the sample of the seal to him when he had taken the samples for examination to C.T.L. Kandaghat. The copy of R.C. No.55/2000, vide which he took the sample for analysis, has also not been placed and proved on record. Had it been there, it could have thrown some light on this aspect of the matter, whether the sample of the seal was also entrusted to him, which was further handed over by him to the person who received the samples in the laboratory, for its comparison with the seal found on samples sent for analysis.

8. The lithographic impression on the report Ext. PW-4/A, of course, shows that seals on the samples were found intact and unbroken and tallied with the impression seal sent separately, but it loses its importance in view of the fact that no witness has stated to have either deposited the sample seal along with case property in the Malkhana or sent it separately to the Laboratory when the samples were taken for analysis. Then how the sample of the seal could be

available in the Laboratory for its comparison? The lithographic stamp is mechanically put on the report.

9. Further, the case of the prosecution is that the seal, after its use, was given to PW-1 Ravinder Kumar, but he did not say that the seal was ever entrusted to him. Thus, where the seal used on the samples is not known, in these circumstances a substantial doubt has arisen, and the prosecution could not exclude the possibility of tampering with the samples. Thus, the link evidence in the instant case is found missing. There is no evidence on record regarding the entrustment of seal and no entry in the R.C. and Malkhana register; therefore, reasonable doubt is cast on the probity of the prosecution case, which fact was lost sight of by the courts below. Therefore, in these circumstances, the benefit of the doubt should have been given to the petitioners.”

20. This position was reiterated in State of H.P. Vs. Rakesh Kumar 2018 (1) HLJ 73wherein it was held: - “7. Interestingly, there is no mention, if any, regarding the handing over of the seal by this witness to CTL Kandaghat, for comparison. It has come in his statement that he had taken samples, but he has not stated that a specimen seal was also given to him for depositing in CTL Kandaghat. Samples were sent to CTL Kandaghat through Jai Singh (PW- 6), who simply deposed that he had sent samples through PW-5 DurgaDutt. Interestingly, he nowhere stated that the specimen seal impression was also sent separately for chemical analysis.

18. True it is that reports of CTL, Ext. PW-7/G to Ext. PW- 7/K show that the specimen seal impression allegedly separately sent, tallied with the seal impressions on the samples; however, link evidence is missing as to how the specimen seal impression reached the chemical analyst. Similarly, it emerges from the record that there is no mention, if any, in the Challan with regard to sending of specimen seal to CTL Kandaghat. This certainly creates doubt with regard to the genuineness of the prosecution case.

19. This Court, in a case titled State of H.P. vs. Pankaj Sood, Latest HLJ 2009 (HP) 727, has held that in such a case, by no stretch of the imagination, it can be presumed that the samples were sent along with the sample seal for comparison, and it was held that the prosecution case was doubtful on this count. It was further held by this Court in the aforesaid case that the prosecution is obliged to prove that the article recovered from the possession of the accused is contraband within the meaning of the Act. For that, from the time of recovery till the examination of the samples, the link is required to be completely proved. Seals used on the samples must be intact and unbroken, and the said seals should tally with the sample of the seal taken separately at the time of sampling by the Investigating Officer to overrule every possibility of tampering with the contents of the samples.”

21. Similar is the judgment in Jagdev Singh v. State of H.P., 2015 SCC OnLine HP 2520 wherein it was observed:

36. Thus, there is no link evidence establishing the factum of receipt of the sample from the doctor till such time it was handed over to the police official who got it deposited in the laboratory. Whether it was kept in safe custody and not tampered with remains unproven on record.

37. The SHO/Investigating Officer has not deposed that the sample was deposited in the police station. Where the sample was kept between the 13th and 17th June 2009 remains unexplained on record. Also, seal-H with which the alleged sample was sealed has not been produced in Court. Crucially and significantly, even the Road Certificate has not been produced on record, which would have only thrown light as to with whom and where the sample was kept at the police station.

38. No doubt MLC (Ext.PW-6/G) records the sample to be that of Jagdev (accused), but then the Doctor does not specifically state that the sample was sealed. All that he states is that the sample was handed over to the police in a sealed bag. But then who sealed the same and with which seal, he does not state, and Constable Roshan Lal (PW-5) is also silent about the same. In fact, he is silent about the seal impression. As already observed, ASI Om Prakash and HC Nup Ram are silent with regard to the sample, much less sealing thereof. It is in this backdrop that it was necessary for the prosecution to have produced the original seal or impression thereof, with which the sample was sealed, for it cannot be said with certainty that the sample was not tampered with.

22. Therefore, the report of analysis is not connected to the bottles stated to have been recovered at the spot.

23. Tara Singh (PW2) stated that he was called by the police to the road. The liquor was loaded in the vehicle, and nothing had happened in his presence. He was permitted to be cross-examined. He denied that the liquor was found in a shop where Sandeep Kumar and Om Parkash were present as the salespeople. He denied that the search of the shop was conducted during which the recovery was effected. He denied the previous statement recorded by the police. Therefore, the testimony of this witness does not support the prosecution case.

24. Ramesh Chand (PW4) stated that he was present in the ration depot. A vehicle stopped near the depot, and the persons identified themselves as police officials from the Vigilance Department. They disclosed that they had recovered some articles. Nothing was recovered in his presence. He was permitted to be cross-examined. He denied that the police had visited the liquor vend and recovered the liquor bottle from the liquor vend. He denied that police had seized the bottles on the spot and carried out investigations. He denied the previous statement recorded by the police. It is apparent that the testimony of this witness also does not establish the prosecution version.

25. It was rightly submitted on behalf of the State that the mere fact that independent witnesses had not supported the prosecution case is not sufficient to discard it. However, when the independent witnesses have not supported the prosecution version, the prosecution version is required to be seen with due care and caution.

26. Avinash Chauhan (PW1) stated that the bottles were counted inside the shop. The boxes which were sealed were not opened, and they were counted as a unit. He could not say the number of the boxes which were found sealed and the bottles which were found loose. Constable Charan Singh (PW10) stated in his cross-examination that the bottles were counted inside the liquor vend. The bottles were counted by each official. The boxes were counted differently. He could not say whether the boxes were opened or not. HHC Babu Ram (PW15) stated in his cross- examination that bottles were counted by all the officials. He could not say whether these were counted inside the liquor vend or outside the liquor vend. Sandeep Dhawal (PW17) stated in his cross-examination that the bottles were counted by Inspector Satto Kumar (PW18) and other police officials. They had assumed that a box contained 12 bottles. Some of the bottles were open, and some were sealed. Inspector Satto Kumar (PW18) stated in his cross-examination that the bottles were counted by Dy.SP and Avinash. He was preparing the documents and Dy.SP was dictating the contents to him. Thus, the witnesses have given different descriptions regarding the counting of bottles and the officials who had counted them.

27. Constable Charan Singh (PW10) stated in his cross- examination that the process of sealing was carried out by all the members of the team because everybody was having a different seal. It took about 40 minutes to carry out the sealing process. This statement is contrary to the prosecution version, in which it was stated that the bottles, the liquors and the boxes were sealed with seal ‘M’, which means that only one seal was used.

28. Avinash Chauhan (PW1) stated in his cross- examination that they returned in two vehicles; one was the official vehicle, and the other was the utility from which the recovery was effected. He was not re-examined. It is not the case of the prosecution that any recovery was effected from the utility, and his testimony makes the prosecution case highly suspect that recovery was effected from the shop being run by the accused.

29. It was laid down by the Hon’ble Supreme Court in Krishnan v. State, (2003) 7 SCC 56: 2003 SCC (Cri) 1577: 2003 SCC OnLine SC 756 that the evidence of the prosecution must be tested for its inherent consistency: consistency with the account of other witnesses and consistency with undisputed facts. It was observed: “21. …. Witnesses, as Bentham said, are the eyes and ears of justice. Hence, the importance and primacy of the quality of the trial process. Eyewitnesses' accounts would require a careful, independent assessment and evaluation for their credibility, which should not be adversely prejudged, making any other evidence, including the medical evidence, the sole touchstone for the test of such credibility. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be creditworthy; consistency with the undisputed facts, the “credit” of the witnesses; their performance in the witness box; their power of observation, etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation.”

30. It was held in David Piper vs Mark Hales 2013 EWHC B1 (QB) that the Court has to see whether the statement of the witness is consistent or not. It was observed: -

34. The guidance about how courts approach this is given in the extra-judicial writing of the late Lord Bingham of Cornhill, approved by the courts, and is apposite. In "The Judge as Juror: The Judicial Determination of Factual Issues", published in "The Business of Judging", Oxford 2000, reprinted from Current Legal Problems, vol 38, 1985, p 1-27, he wrote: ". . . Faced with a conflict of evidence on an issue substantially affecting the outcome of an action, often knowing that a decision this way or that will have momentous consequences on the parties' lives or fortunes, how can and should the judge set about his task of resolving it? How is he to resolve which witness is honest and which dishonest, which reliable and which unreliable? The normal first step in resolving issues of primary fact is, I feel sure, to add to what is common ground between the parties (which the pleadings in the action should have identified but often do not) such facts as are shown to be incontrovertible. In many cases, letters or minutes written well before there was any breath of dispute between the parties may throw a very clear light on their knowledge and intentions at a particular time. In other cases, evidence of tyre marks, debris or where vehicles ended up may be crucial. To attach importance to matters such as these, which are independent of human recollection, is so obvious and standard a

practice, and in some cases so inevitable, that no prolonged discussion is called for. It is nonetheless worth bearing in mind, when vexatious conflicts of oral testimony arise, that these fall to be judged against the background not only of what the parties agree to have happened but also of what plainly did happen, even though the parties do not agree. The most compendious statement known to me of the judicial process involved in assessing the credibility of an oral witness is to be found in the dissenting speech of Lord Pearce in the House of Lords in Onassis v Vergottis [1968] 2 Lloyd's Rep 403at p 431. In this, he touches on so many of the matters which I wish to mention that I may perhaps be forgiven for citing the relevant passage in full: ''Credibility' involves wider problems than mere 'demeanour', which is mostly concerned with whether the witness appears to be telling the truth as he now believes it to be. Credibility covers the following problems. First, is the witness a truthful or untruthful person? Secondly, is he, though a truthful person, telling something less than the truth on this issue, or though an untruthful person, telling the truth on this issue? Thirdly, though he is a truthful person telling the truth as he sees it, did he register the intentions of the conversation correctly and, if so, has his memory correctly retained them? Also, has his recollection been subsequently altered by unconscious bias, wishful thinking or by too much discussion of it with others? Witnesses, especially those who are emotional and who think that they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes, the memory becomes fainter, and the imagination becomes more active. For that reason, a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance. And lastly, although the honest witness believes he heard or saw this or that, is it so improbable that it is on balance more likely that he was mistaken? On this point, it is essential that the balance of probability is put correctly into the scales in weighing the credibility of a witness. And motive is one aspect of probability. All these problems are entailed when a Judge assesses the credibility of a witness; they are all part of one judicial process. And in the process, contemporary documents and admitted or incontrovertible facts and probabilities must play their proper part." Every judge is familiar with cases in which the conflict between the accounts of different witnesses is so gross as to be inexplicable save on the basis that one or some of the witnesses are deliberately giving evidence which they know to be untrue . .. more often dishonest evidence is likely to be prompted by the hope of gain, the desire to avert blame or criticism, or misplaced loyalty to one or other of the parties. The main tests needed to determine whether a witness is lying or not are, I think, the following, although their relative importance will vary widely from case to case:

(1) the consistency of the witness's evidence with what is agreed, or clearly shown by other evidence, to have occurred;

(2) the internal consistency of the witness's evidence;

(3) consistency with what the witness has said or deposed on other occasions;

(4) the credit of the witness in relation to matters not germane to the litigation;

(5) the demeanour of the witness. The first three of these tests may, in general, be regarded as giving a useful pointer to where the truth lies. If a witness's evidence conflicts with what is clearly shown to have occurred or is internally self- contradictory, or conflicts with what the witness has previously said, it may usually be regarded as suspect. It may only be unreliable and not dishonest, but the nature of the case may effectively rule out that possibility. The fourth test is perhaps more arguable. . . ."

35. The following guidance of Lord Goff in Grace Shipping v. Sharp & Co [1987] 1 Lloyd's Law Rep. 207 at 215-6 is also helpful. "And it is not to be forgotten that, in the present case, the Judge was faced with the task of assessing the evidence of witnesses about telephone conversations which had taken place over five years before. In such a case, memories may very well be unreliable, and it is of crucial importance for the Judge to have regard to the contemporary documents and the overall probabilities. In this connection, their Lordships wish to endorse a passage from a judgment of one of their number in Armagas Ltd v. Mundogas S.A. (The Ocean Frost), [1985] 1 Lloyd's Rep. 1, when he said at p. 57: - "Speaking from my own experience, I have found it essential in cases of fraud, when considering the credibility of witnesses, always to test their veracity by reference to the objective facts proved independently of their testimony, in particular by reference to the documents in the case, and also to pay particular regard to their motives and the overall probabilities. It is frequently very difficult to tell whether a witness is telling the truth or not, and where there is a conflict of evidence, such as there was in the present case, reference to the objective facts and documents, to the witnesses' motives, and the overall probabilities, can be of very great assistance to a Judge in ascertaining the truth." [emphases added]. That observation is, in their Lordships' opinion, equally apposite in a case where the evidence of the witnesses is likely to be unreliable, and it is to be remembered that in commercial cases, such as the present, there is usually a substantial body of contemporary documentary evidence." In that context, he was impressed by a witness described in the following terms. "Although, like the other main witnesses, his evidence was a mixture of reconstruction and original recollection, he took considerable trouble to distinguish precisely between the two, to an extent which I found convincing and reliable." That is so important and so infrequently done."

36. This approach to fact-finding was amplified recently by Lady Justice Arden in the Court of Appeal in Wetton (as Liquidator of Mumtaz Properties) v. Ahmed and others [2011] EWCA Civ 610, in paragraphs 11, 12, & 14:

11. By the end of the judgment, it is clear that what impressed the judge most in his task of fact-finding was the absence, rather than the presence, of contemporary documentation or other independent oral evidence to confirm the oral evidence of the respondents to the proceedings.

12. There are many situations in which the court is asked to assess the credibility of witnesses from their oral evidence, that is to say, to weigh up their evidence to see whether it is reliable. Witness choice is an essential part of the function of a trial judge, and he or she has to decide whose evidence and how much evidence to accept. This task is not to be carried out merely by reference to the impression that a witness made by giving evidence in the witness box. It is not solely a matter of body language or the tone of voice or other factors that might generally be called the 'demeanour' of a witness. The judge should consider what other independent evidence would be available to support the witness. Such evidence would generally be documentary, but it could be other oral evidence; for example, if the issue was whether a defendant was an employee, the judge would naturally consider whether there were any PAYE records or evidence, such as evidence in texts or e- mails, in which the defendant sought or was given instructions as to how he should carry out work. This may be particularly important in cases where the witness is from a culture or way of life with which the judge may not be familiar. These situations can present particular dangers and difficulties to a judge.

14. In my judgment, contemporaneous written documentation is of the very greatest importance in assessing credibility. Moreover, it can be significant not only where it is present, but the oral evidence can then be checked against it. It can also be significant if written documentation is absent. For instance, if the judge is satisfied that certain contemporaneous documentation is likely to have existed were the oral evidence correct, and that the party adducing oral evidence is responsible for its non-production, then the documentation may be conspicuous by its absence, and the judge may be able to draw inferences from its absence.

37. Contemporaneity, consistency, probability and motive are key criteria and more important than demeanour, which can be distorted through the prism of prejudice: how witnesses present themselves in a cramped witness box surrounded for the first time with multiple files can be distorted, particularly elderly ones being asked to remember minute details of what happened and what was said, and unrecorded, nearly 4 years later as here. Lengthy witness statements prepared by the parties' lawyers long after the events also distort the accurate picture, even though they are meant to assist the court.”

31. In the present case, the prosecution’s version was not consistent, and the learned Trial Court was justified in discarding it.

32. The case property was also not produced before the Court. It was laid down by this Court in Amandeep Singh & Ors. Vs State of HP, 2010 (3) Shim LC 39, that when the case property was not produced before the Court, the conviction of the accused cannot be recorded. It was observed:- 9…So far as the statement of PW1 Chaman Lal is concerned, no sample of liquor or any seal of the seized liquor has been produced and proved in Court. The bottles from which the samples were taken have also not been proved in Court. Learned trial Court, as also the Appellate Court, had presumed as a matter of fact that what the witnesses had stated was the correct state of affairs without considering that facts were to be proved from documents which admittedly existed but were not produced in Court. There is no presumption in law that oral evidence can override documentary proof. The existence of a seal can be proved by its production. The Court cannot presume that the sample was kept in safe custody, more especially when such a fact is established by a written document, namely register (s) and certificate in Register No. 21, which is not produced. What the prosecution tried to prove remains unclear.

Merely saying that liquor was seized is insufficient without establishing its quantity and safekeeping.”

33. In view of the above, the learned Trial Court had taken a reasonable view while holding that the prosecution had not proved its case beyond reasonable doubt, and no interference is required with a reasonable view of the learned Trial Court, even if another view is possible.

34. No other point was urged.

35. In view of the above, the present appeal fails, and it is dismissed. Pending miscellaneous application(s), if any, also stand disposed of.

36. In view of the provisions of Section 437-A of the Code of Criminal Procedure (Section 481 of Bhartiya Nagarik Suraksha Sanhita, 2023) the respondents/accused are directed to furnish bail bonds in the sum of ₹25,000/- each with one surety each in the like amount to the satisfaction of the learned Trial Court within four weeks, which shall be effective for six months with stipulation that in the event of Special Leave Petition being filed against this judgment, or on grant of the leave, the respondents/accused on receipt of notice thereof, shall appear before the Hon’ble Supreme Court.

37. Records be sent back to the learned Courts below forthwith, along with a copy of the judgment.

(Rakesh Kainthla)

Judge 14th October, 2026 (Nikita)