Driver and cleaner ran away
9. On the facts of the case in hand, it is evident that FIR No.68 dated 16.05.2000 was registered on a complaint by Sub Inspector Ram Mehar (PW-8) who was on a petrol duty when it was found the truck no. PAT/2029 was lying turtle and bags of powder scattered. He was informed by two shopkeepers at the nearby place, namely, Ram Sarup (PW-6) and Naresh Kumar (PW-10) that the accident occurred at 9 P.M. on 15.05.2000. After the accident, the driver and the cleaner came out of the truck cabin and on enquiry by the said witnesses they informed their names as Joginder Singh s/o Jang Singh and Gurmail Singh s/o Nachhattar Singh. They claimed themselves to be the driver and cleaner of the truck. They had gone to inform the owner of the truck of the said accident but did not return. Having suspicion that the truck was carrying contraband substances, both the truck and the contraband items were taken into possession.
Witnesses turned hostile
10. Eleven prosecution witnesses were produced. Two prosecution witnesses namely Ram Sarup (PW-6) and Naresh Kumar (PW-10) could be said to be relevant for the reason that in the FIR their names were mentioned as the witnesses who had informed the police party about the names of the driver and cleaner of the truck. They denied that any incident had happened in their presence or they informed anything to the police party. Both were declared hostile. They did not even identify the driver and cleaner of the truck. PW-7 ASI Ram Sarup was posted at Police Station Agroha along with Sub-Inspector Ram Mehar (PW-8), who was the author of the FIR. Besides reiterating what is stated in the FIR in his evidence, he added that on 19.05.2000 Balwan Singh s/o Chatar Singh, resident of New Grain Mandi, Barwala stated that Joginder Singh s/o Jang Singh and Gurmail Singh s/o Nachhattar Singh, the driver and cleaner of the truck in question stated before him that they have brought 21 bags of Choorapost along with powder from Rajasthan on instructions of Harbhajan Singh and that their truck turned turtle at Agroha. As the police party was in search of them, they asked that they be produced before the police. The fact remains that Balwan Singh s/o Chatar Singh was not produced in evidence. The case sought to be set up by the prosecution was that the driver and the cleaner of the truck made extra judicial confession before Balwan Singh s/o Chatar Singh. Ram Mehar who is the author of the FIR appeared as PW-8. In his statement also, nothing was stated against the Appellant. He also referred to the statement of Balwan Singh s/o Chatar Singh recorded during investigation, who was not produced in evidence.
Registered owner of the truck added as accused
11. The appellant in his statement recorded under Section 313 CrPC denied all the suggestions. In the entire evidence led by the prosecution, no material was produced against the Appellant to discharge initial burden to prove the foundational facts that the offence was committed with the knowledge and consent of the Appellant. It is a case in which he was not with the vehicle nor was he arrested from the spot when the accident occurred or when truck and contraband were taken into custody. He has been convicted merely on the ground that he was the registered owner of the truck. The Trial Court had put entire burden of defence on the Appellant being the registered owner of the vehicle. The Court held that the driver and cleaner of the vehicle being poor will not take risk of smuggling such huge quantity of contraband without the connivance of the owner and it was for the appellant to clear his stand. The judgment of the Trial Court was upheld by the High Court.
12. In the case in hand, the primary error committed by the Courts below while convicting the Appellant is that the onus is sought to be shifted on him to prove his innocence without the foundational facts having been proved by the prosecution. Hence, the conviction of the Appellant cannot be legally sustained.
Accused acquitted.
Party
Harbhajan Singh vs. State of Haryana – Criminal Appeal No. 1480 of 2011 – April 25, 2023.
https://main.sci.gov.in/supremecourt/2010/36615/36615_2010_16_1502_43893_Judgement_25-Apr-2023.pdf
