State Vs Jaissa Devi

The present appeal is directed against the judgment dated 8.6.2012, passed by learned Additional Sessions Judge, Sirmour at Nahan, District Sirmour, HP, vide which the judgment of conviction dated 20.2.2009 and order of sentence dated 21.2.2009, passed by learned Judicial Magistrate First Class, Court No.1, Paonta Sahib, District Sirmour, H.P. (learned

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

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Trial Court) were set-aside and the respondent (accused before learned Trial Court) was acquitted of the charged offences. (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience.)

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Briefly stated, the facts giving rise to the present appeal are that the police presented a challan 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 H.P.). It was asserted that ASI Raj Kumar (PW7), LC Maya Devi (PW1) and HHC Surat Singh (PW3) were on patrolling duty on 15.10.2006 vide entry No. 47 (Ex.PW4/A). They received secret information at 9.15 AM, near Kripal Shilla Gurudwara and Bangala Colony, that Jassa Devi (accused) was dealing in illicit liquor, and a huge quantity of liquor could be recovered from the search of the house. The information was reduced into writing vide memo (Ex.PW7/A) and was sent to the Police Station, where FIR (Ex.PW3/A) was registered. The police associated Balkis (PW2) and Amar and went to the house of the accused, where she was found alone. The police searched the house and recovered a drum containing 200 litres of lahan. The police retained a sample of lahan in a container of 5 litres and a bottle.

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They sealed the container and the bottle with seal ‘H’. Seal impression (Ex.PW7/B) was taken on a separate piece of cloth, and the seal was handed over to witness Balkis (PW2) after its use. The drum of lahan was destroyed on the spot. The container and the bottle were seized vide seizure memo (Ex.PW1/A). ASI Raj Kumar (PW7) investigated the matter. He prepared the site plan (Ex.PW7/C) and recorded the statements of witnesses as per their version. He deposited the container and bottle with ASI Raghubir Singh (PW5), who deposited it in the malkhana and sent the sample to CTL, Kandaghat, for analysis through LHC Naresh Kumar (PW6) vide RC No. 221/06. LHC Naresh Kumar deposited the sample with CTL, Kandaghat, in a safe condition and handed over the receipt to MHC on his return. The result of the analysis (Ex.PW7/E) was issued, in which it was mentioned that the sample of illicit lahan contained 20.4% proof alcohol. After the completion of the investigation, the challan was prepared and presented before the learned Trial Court.

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Learned Trial Court charged the accused with the commission of an offence punishable under Section 61(1)(a) of the Punjab Excise Act (as applicable to the State of H.P.), to which he pleaded not guilty and claimed to be tried.

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The prosecution examined seven witnesses to prove its case. Maya Devi (PW1) and Balkis Kumar (PW4) are the witnesses to the recovery. HHC Surat Singh (PW2) carried the rukka to the Police Station. Constable Kamlesh Kumar (PW4) proved the entry in the daily diary. ASI Raghuvir Singh (PW5) was posted as MHC with whom the case property was deposited. Naresh Kumar (PW6) carried the sample to CTL Kandaghat. ASI Raj Kumar (PW7) investigated the matter.

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The accused, in her statement recorded under Section 313 of Cr.P.C., denied the prosecution's case in its entirety. She claimed that she was innocent. She did not lead any evidence in defence.

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Learned Trial Court held that Balkis Kumar did not support the prosecution's case, but he admitted his signature on the seizure memo (Ex.PW1/A). He could not provide any satisfactory answer for putting the signatures, and his statement was insufÏcient to doubt the prosecution's case. The testimonies of police ofÏcials corroborated each other, and there was nothing in their testimonies to show that they were making a false statement. The result of the analysis proved that

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the sample contained illicit lahan in it. Therefore, the learned Trial Court convicted the accused of the commission of an offence punishable under Section 61(1(a) of the Punjab Excise Act (as applicable to the State of H.P.) and sentenced her to undergo simple imprisonment for six months, pay a fine of ₹3,000/- and in default of payment of the fine to undergo further simple imprisonment for two months.

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Being aggrieved by the judgment and order passed by the learned Trial Court, the accused filed an appeal, which was decided by the learned Additional Sessions Judge, Sirmour, HP (learned Appellate Court). Learned Appellate Court held that Section 100(3) of Cr.PC required that the search of a woman can be conducted by another woman with strict regard to decency. No reason was assigned as to why Maya Devi (PW1) did not search the house of the accused. This was a procedural lapse that had to be considered while evaluating the evidence. One independent witness was not examined, and another did not support the prosecution's case. Lahan was not produced before the Court, and the prosecution's case could not be relied upon. Hence, the judgment and order passed by the learned Trial Court

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were set aside, and the accused was acquitted of the charged offences.

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Being aggrieved by the judgment passed by the learned Appellate Court, the State has filed the present appeal asserting that the learned Appellate Court failed to appreciate the evidence in its proper perspective. Learned Trial Court had passed a well-reasoned judgment, which was set aside by the learned Appellate Court without cogent reasons. Maya Devi (PW1) and ASI Raj Kumar (PW7) categorically stated that a drum containing 200 litres of lahan was recovered. Samples were taken, and the remaining lahan was destroyed on the spot because there was no method to transport the lahan to the Police Station. This evidence was ignored by the learned Appellate Court. Therefore, it was prayed that the present appeal be allowed and the judgment passed by the learned Appellate Court be set aside.

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I have heard Mr Lokender Kutlehria, learned Additional Advocate General for the appellant/State and Mr Bimal Gupta, learned Senior Counsel, assisted by Mr Trigun Negi, learned counsel for the respondent-accused.

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Mr. Lokender Kutlehria, learned Additional Advocate

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General for the appellant State, submitted that the learned Trial Court had convicted and sentenced the accused after passing a well-reasoned judgment. Learned Appellate Court had failed to assign any cogent reason for upsetting the judgment. The drum containing lahan could not be transported to the Police Station and was destroyed on the spot. This fact was asserted by Maya Devi (PW1) and ASI Raj Kumar (PW7). There was no reason to disbelieve this part of their statements. The accused could not have been acquitted because of the non-production of the case property. Therefore, he prayed that the present appeal be allowed and the judgment passed by the learned Appellate Court be set aside.

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Mr Bimal Gupta, learned Senior Counsel for the respondent/accused, submitted that the prosecution had failed to produce the drum before the Court. The learned Appellate Court was justified in doubting the prosecution's case in the absence of the original case property. Independent witness has not supported the prosecution's case, and the learned Appellate Court was justified in doubting the prosecution's case. Learned Appellate Court had taken a reasonable view, and this Court

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should not interfere with the reasonable view of the learned Appellate Court while deciding an appeal against acquittal. Hence, he prayed that the appeal be dismissed.

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

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The present appeal has been filed against a judgment of acquittal. It was laid down by the Hon’ble Supreme Court in Surendra Singh v. State of Uttarakhand, (2025) 5 SCC 433: 2025 SCC OnLine SC 176 that the Court can interfere with a judgment of acquittal if it is patently perverse, is based on misreading of evidence, omission to consider the material evidence and no reasonable person could have recorded the acquittal based on the evidence led before the learned Trial Court. It was observed at page 438:

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23. Recently, in Babu Sahebagouda Rudragoudar v. State of Karnataka, (2024) 8 SCC 149 : (2024) 3 SCC (Cri) 535 , a Bench of this Court to which one of us was a Member (B.R. Gavai, J.) had an occasion to consider the legal position with regard to the scope of interference in an appeal against acquittal. It was observed thus : (SCC pp. 163-64, paras 38-41)

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“ 38 . First of all, we would like to reiterate the principles laid down by this Court governing the scope of interference by the High Court in an appeal filed by

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the State for challenging the acquittal of the accused recorded by the trial court.

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39 . This Court in Rajesh Prasad v. State of Bihar, (2022) 3 SCC 471 : (2022) 2 SCC (Cri) 31 encapsulated the legal position covering the field after considering various earlier judgments and held as below : (SCC pp. 482-83, para 29)

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‘ 29 . After referring to a catena of judgments, this Court culled out the following general principles regarding the powers of the appellate court while dealing with an appeal against an order of acquittal in the following words: ( Chandrappa v. State of Karnataka, (2007) 4 SCC 415 : (2007) 2 SCC (Cri) 325 , SCC p. 432, para 42)

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“ 42 . From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:

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(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.

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(2) The Criminal Procedure Code, 1973, puts no limitation, restriction or condition on the exercise of such power and an appellate court, on the evidence before it, may reach its own conclusion, both on questions of fact and of law.

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(3) Various expressions, such as “substantial and compelling reasons”, “good and sufÏcient grounds”, “very strong circumstances”, “distorted conclusions”, “glaring mistakes”, etc., are not intended to curtail the extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of “flourishes of language” to emphasise the reluctance of an appellate court to interfere

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with an acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.

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(4) An appellate court, however, must bear in mind that in the case of acquittal, there is a double presumption in favour of the accused. Firstly , the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly , the accused, having secured his acquittal, the presumption of the accused's innocence is further reinforced, reafÏrmed and strengthened by the trial court.

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(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.”

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40 . Further, in H.D. Sundara v. State of Karnataka, (2023) 9 SCC 581: (2023) 3 SCC (Cri) 748 , this Court summarised the principles governing the exercise of appellate jurisdiction while dealing with an appeal against acquittal under Section 378CrPC as follows : (SCC p. 584, para 8)

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8 . … 8.1 . The acquittal of the accused further strengthens the presumption of innocence.

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8.2 . The appellate court, while hearing an appeal against acquittal, is entitled to reappreciate the oral and documentary evidence;

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8.3 . The appellate court, while deciding an appeal against acquittal, after reappreciating the evidence, is required to consider whether the view taken by the trial court is a possible view which could have been taken on the basis of the evidence on record;

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8.4 . If the view taken is a possible view, the appellate court cannot overturn the order of

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acquittal on the ground that another view was also possible; and

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8.5 . The appellate court can interfere with the order of acquittal only if it comes to a finding that the only conclusion which can be recorded on the basis of the evidence on record was that the guilt of the accused was proved beyond a reasonable doubt and no other conclusion was possible.’

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41 . Thus, it is beyond the pale of doubt that the scope of interference by an appellate court for reversing the judgment of acquittal recorded by the trial court in favour of the accused has to be exercised within the four corners of the following principles:

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41.1 . That the judgment of acquittal suffers from patent perversity;

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41.2 . That the same is based on a misreading/omission to consider material evidence on record; and

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41.3 . That no two reasonable views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on record.”

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24. It could thus be seen that it is a settled legal position that the interference with the finding of acquittal recorded by the learned trial Judge would be warranted by the High Court only if the judgment of acquittal suffers from patent perversity; that the same is based on a misreading/omission to consider material evidence on record; and that no two reasonable views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on record.

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This position was reiterated in State of M.P. v.

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Ramveer Singh, 2025 SCC OnLine SC 1743, wherein it was

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observed:

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21. We may note that the present appeal is one against acquittal. Law is well-settled by a plethora of judgments of this Court that, in an appeal against acquittal, unless

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the finding of acquittal is perverse on the face of the record and the only possible view based on the evidence is consistent with the guilt of the accused, only in such an event, should the appellate Court interfere with a judgment of acquittal. Where two views are possible, i.e., one consistent with the acquittal and the other holding the accused guilty, the appellate Court should refuse to interfere with the judgment of acquittal. Reference in this regard may be made to the judgments of this Court in the cases of Babu Sahebagouda Rudragoudar v. State of Karnataka (2024) 8 SCC 149 ; H.D. Sundara v. State of Karnataka (2023) 9 SCC 581 and Rajesh Prasad v. State of Bihar (2022) 3 SCC 471 .

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

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Learned Appellate Court held that Section 100(3) of Cr.P.C. requires the search to be carried out by a woman in case of search of another woman. The seizure memo (Ex.PW1/A) shows that the accused was alone at the time of her search. ASI Raj Kumar (PW7) stated in his cross-examination that he, other police ofÏcials and independent witnesses went to the house of the accused, where she was found alone. He apprised her of the secret information and conducted the search. He volunteered to say in his cross-examination that the accused was alone at the time of the search.

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ASI Raj Kumar (PW7) has not provided any reason why the search of the accused was not carried out by LC Maya Devi (PW1), who was stated to be present; hence, the learned Appellate Court was justified in viewing the prosecution's case with due care and caution.

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ASI Raj Kumar stated that the information was received near Kirpal Shah Gurudwara. The ruqqa was sent, and they proceeded to the spot. They met the witnesses near the poultry farm. This shows that the raiding party was formed near the poultry farm. LC Maya Devi, on the other hand, stated in her cross-examination that the raiding party was formed at the place where the information was received. Thus, LC Maya Devi (PW1) has incorrectly mentioned the place where the witnesses were associated.

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LC Maya Devi (PW1) stated in her cross-examination that she could not mention the time spent in investigating the matter. She could not say the time for which she remained on the spot. She could not tell the time of reaching the Police Station. She could not tell the names of the people who have houses in the vicinity. The failure to mention details related to

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the recovery and the circumstances related to the recovery will make her presence on the spot highly suspect.

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Balkis (PW2) did not support the prosecution's case. He claimed that his signatures were obtained by the police. He was permitted to be cross-examined. He denied that the search of the house and kitchen was conducted in the presence of the accused, and one drum was recovered in his presence. He denied that samples were taken on the spot, which were sealed on the spot. He denied the previous statement recorded by the police. It is apparent from his testimony that he has not supported the prosecution's case, and the learned Appellate Court was justified in doubting the prosecution's case due to the absence of corroboration from independent witnesses.

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The police did not produce the drum 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:-

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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

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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 insufÏcient without establishing its quantity and safekeeping.”

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While dealing with the case of non-production of

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case property in forest case, it was laid down by the Hon’ble Supreme Court in Pawan Kumar v. State of H.P. , (2019) 4 SCC 182: (2019) 2 SCC (Cri) 39: 2019 SCC OnLine SC 359 that when the seized wood and the vehicle were not produced, and only one sample was produced, the accused could not have been convicted of the commission of offences punishable under Section 379 of the IPC and Section 42 of the Forest Act. It was observed at page 183: -

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“4. We have heard the learned counsel for the respondent in opposition to the appeal and considered the nature of the evidence available. Non-production of the seized wood and the vehicle, the primary evidence of the offence, renders the prosecution's case fragile and unsustainable. Mere production of the seizure memo does

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not tantamount to the production of the seized woods and the lorry. Unless the seized wood was produced, mere production of a sample, and there is no material in support that the sample was out of the same 22 logs, we are unable to sustain the conviction of the appellants.”

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Therefore, in these circumstances, the learned

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Appellate Court was justified in doubting the prosecution’s case due to the non-production of the case property.

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Therefore, the learned Appellate court had taken a reasonable view, and it was rightly submitted that this Court will not interfere with the reasonable view of the learned Appellate Court even if another view is possible.

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No other point was urged.

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

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In view of the provisions of Section 437-A of the Code of Criminal Procedure (Section 481 of Bhartiya Nagarik Suraksha Sanhita, 2023) the respondent/accused is directed to furnish bail

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bonds in the sum of ₹25,000/- with one surety in the like amount to the satisfaction of the learned Trial Court within four weeks, which shall be effective for six months with stipulation

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that in the event of Special Leave Petition being filed against this judgment, or on grant of the leave, the respondent/accused on receipt of notice thereof, shall appear before the Hon’ble Supreme Court.

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

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(Rakesh Kainthla) Judge 1^st December, 2025 (Chander)

State v. Jaissa Devi

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State v. Jaissa Devi

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