Gurdev Singh, J. - (1.) THIS revision has been filed by the State of Punjab, against the order dated 29.4.2003 passed by SDJM, Gidderbaha, discharging the Respondents of the offences under Sections 217, 218 and 120 IPC.
(2.) BRIEFLY stated, the facts are that FIR No. 26 dated 4.2.1999 under Sections 302, 307/149, 148 and 120 -B IPC and Section 25 of the Arms Act, 1959 was registered against Krishan Lal -Respondent No. 1 and others in Police Station Sadar Dabwali, regarding murder of Baldev Singh and, as per the contents of that FIR, the murder was committed on 4.2.1999 at 5 p.m. in village Abub. Krishan Lal -Respondent No. 1, in connivance with other Respondents, managed to get registered against him FIR No. 12 dated 4.2.1999 under Section 61 of the Punjab Excise Act, 1914. As per the contents of that FIR, 12 bottles of Indian made foreign whisky, make 'Red Night' were recovered from the possession of that Respondent on 4.2.1999 at 3.30 p.m. in the limits of Killianwali. On verification, it transpired that the FIR under the Excise Act was got registered by Respondent No. 1 under a deep rooted conspiracy in connivance with the other Respondents, in order to get the benefit in the murder case. Detailed letter dated 18.4.1999 was written by DSP, Malout, to SSP, Muktsar, containing the facts, which transpired during the inquiry conducted by him and on the basis thereof FIR No. 103 dated 24.5.2002 was registered in Police Station, Lambi, District Muktsar, under Sections 217, 218 and 120 IPC. In the course of investigation, statements of the witnesses were recorded and relevant documents were taken into possession. The accused were arrested. After completion of the investigation, the challan was put in before the SDJM, Gidderbaha, who, vide aforesaid order, discharged the accused on the ground that Krishan Lal -Respondent No. 1 had been convicted for the offence under Section 61(1)(a) of the Punjab Excise Act, 1914 in FIR No. 12 dated 4.2.1999 and that no appeal or revision was filed against that conviction and, as such, there was no prima facie case against the Respondents, having committed the offences under Sections 217, 218 and 120 IPC. This revision was ordered to be heard alongwith Crl. Misc. No. 18698 M of 2003. It has been brought to my notice that said Crl. Misc. has already been decided by this Court, while taking into account detailed facts, including the facts, which are relevant for the disposal of the present revision, vide order dated 13.1.2006, passed by Hon'ble Mr. Justice Surya Kant. It is to be noted that the said Crl. Misc. was filed under Section 482 of Code of Criminal Procedure for quashing the judgment passed by SDJM, Malout, vide which Respondent No. 1 was convicted in the case arising out of FIR No. 12 dated 4.2.1999, registered at Police Station, Lambi. Copy of the order has been placed on record. This petition is to be disposed of, in view of the observations made and findings recorded, while deciding the said Crl. Misc. petition. The relevant extract of that order are re -produced below: [4] It appears that during the course of investigation of the above mentioned murder case, it transpired that in order to take the plea of alibi, the Respondent in connivance with ASI Ravail Singh of Punjab Police got registered FIR No. 12 dated 4.2.1999 under the Excise Act in which he was allegedly rounded up at 2.15 PM and a report was sent to the PS Lambi at 3.30 PM though the case was allegedly registered between 4.30 PM to 5.20 PM and the Respondent was lodged in the police lock -up at 6.30 PM only. At this stage, it may be mentioned here that the place from where the Respondent was allegedly intercepted while 'carrying 12 bottles of whisky without any permit/licence' is at a distance of 5 kilometers from the Haryana -Punjab border, in the territory of Punjab State, and the place where the murder of Baldev Singh took place, is also quite adjacent to the boundary of both the States (in Haryana State). Xx Xx Xx Xx Xx xx (11) The investigating agency in the murder case, after satisfying itself that the Respondent Krishan Lal who is the main accused in the murder case had conspired with ASI Ravail Singh and HC Kashmiri Lal in order to create a false defence of alibi by showing himself to have been arrested in that excise Crl. Revision No. 1622 of 2003 case, presented challan against the above named police officials also and pursuant thereto, the learned Sessions Judge, Sirsa passed a self -speaking order dated August 9, 2000 (Annexure P -10) whereby charges under Section 302 read with Section 120 -B IPC and 193 IPC were ordered to be framed against ASI Ravail Singh and HC Kashmiri Lal. (12) The records further reveal that having been caught in the net, ASI Ravail Singh (who meanwhile was presumably promoted as Sub -inspector) got expedite the trial in the excise case and produced HC Kashmiri Lal (PW1) -a recovery witness, PW2 to PW5 -some formal witnesses and thereafter deposed himself as PW6. (13) In addition and with their common object, to make the excise case lacuna -free, the Respondent Krishan Lal also moved an application on 20.5.2002 that he may be allowed to 'confess' his guilt as he is a first offender. The learned Judicial Magistrate recorded his statement under Section 313 Code of Criminal Procedure on 31.1.2003 itself, in which the Respondent 'confessed' his guilt and admitted that the occurrence had taken place due to his fault. (14) After recording the aforesaid statement, the learned Judicial Magistrate passed two orders on the same day. Vide first order Annexure P -11/A, he turned down the request of the prosecution to permit it to re -investigate the case under Section 173(8) Code of Criminal Procedure and vide another judgment and order, he held the Respondent 'guilty of the offence', convicted and sentenced him to undergo simple imprisonment for a period of one year along with a fine of Rs. 2,000/ -in default whereof the Respondent was required to undergo simple imprisonment for a period of two months. The petition was disposed of with the following directions: 1. The learned Sessions Court at Sirsa before whom the trial arising out of FIR No. 26 dated 4.2.1999, under Sections 302, 307, 148, 149, 120 -B IPC and Section 25/54/59 of the Arms Act registered at Police Station Sadar Dabwali, is pending, is directed to completely over -look and ignore the findings of fact and/or observations made by the learned Sub Divisional Judicial Magistrate, Malout in the judgment and order dated 31.3.2003 (Annexure P -14) rendered in the excise case. The learned Sessions Court shall decide the aforesaid trial in accordance with law and on the basis of evidence led before it by the prosecution and/or the accused persons, however, no reliance shall be placed upon either the contents of FIR No. 12 dated 4.2.1999, registered under Section 61/1/14 of the Punjab Excise Act, 1914 at P.S. Lambi, District Muktsar and/or the judgment and order dated 31.1.2003 (Annexure P -14) arising therefrom if the same are produced, referred or relied upon by the Respondent in his defence. Similarly, no adverse inference shall be drawn against the Respondent by the learned Sessions court on the basis of above referred excise matter. (2) The learned trial/Sessions court in the murder case shall independently consider and determine the issue of alleged conspiracy between the Respondent and ASI Ravail Singh etc. in accordance with law and irrespective of the acceptance of their version/stand by learned Sub Divisional Judicial Magistrate in his judgment and order dated 31.3.2003 (Annexure P -14). (3) The Respondent, if he so chooses and if so permissible in law, may challenge the judgment and order dated 31.1.2003 (Annexure P -14) arising out of the FIR No. 12 dated 4.2.1999, P.S. Lambi.
(3.) IN view of the above findings and directions, recording of conviction of Krishan Lal -Respondent No. 1 in the excise case and non -filing of appeal/revision against that conviction could not have been made ground for discharging the accused. In fact, the State could not have filed appeal or revision against that conviction. The trial court was to look into all the evidence collected during the investigation before making up its mind, whether there was sufficient grounds for presuming that the Respondents/accused committed the offences, so mentioned in the challan. Therefore, the impugned order cannot be sustained.;