2026:HHC:24

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr. Revision No. 370 of 2014

Reserved on: 02.12.2025

Date of Decision: 01.01.2026.

Deepak Kumar ...Petitioner

Versus

State of H.P. ...Respondent

Coram

Hon’ble Mr Justice Rakesh Kainthla, Judge.

Whether approved for reporting?

1

No

For the Petitioner : Mr Sparsh Bhushan,

Advocate.

For the Respondent/State : Mr Ajit Sharma, Deputy

Advocate General.

Rakesh Kainthla, Judge

The present revision is directed against the judgment

dated 15.10.2014, passed by learned Additional Sessions Judge-

II, Shimla (learned Appellate Court), vide which the judgment of

conviction dated 14.08.2013 and order of sentence dated

16.08.2013, passed by learned Judicial Magistrate First Class,

Court No.6, Shimla, District Shimla, H.P. (learned Trial Court)

1

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

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were upheld. (Parties shall hereinafter be referred to in the same

manner as they were arrayed before the learned Trial Court for

convenience.)

2. Briefly stated, the facts giving rise to the present

revision 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 H.P. It was asserted that HC

Sanjeev Kumar (PW7), Constable Suresh Kumar (not examined)

and constable Rajesh Kumar (PW4) had gone for patrolling

towards Lower Bazaar, Mall Road and Middle Bazaar on

27.10.2009. They were present on the Mall Road when they saw

the accused carrying a plastic bag (Ext.P1) coming from CTO and

going towards Scandal Point. He returned after seeing the police

and tried to run away. The police apprehended him. The police

joined Om Prakash Sharma (PW5) and Kishori Lal (PW1) and

enquired about the name of the accused. He identified himself as

Deepak Kumar.

3. The police checked the bag and found 12 bottles of

Green Label Whisky, each containing 750 ml of IMFL. The police

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retained four bottles as samples, seized the remaining 8 bottles

(Ext. P2 to Ext. P9), put them in the bag and sealed the bag with

seal ‘A’. Seal impression (Ext. PX) was obtained on a separate

piece of cloth, and the bag was seized vide memo (Ext.PW1/A).

HC Sanjeev Kumar (PW7) prepared the rukka (Ext.PW7/B) and

sent it to the Police Station, where FIR (Ext.PW3/A) was

registered. HC Sanjeev Kumar (PW7) investigated the matter. He

prepared the site plan (Ext.PW7/C) and recorded the statements

of witnesses as per their version. He deposited the case property

with HC Sita Ram (PW2), who deposited them in Malkhana and

sent them to CTL Kandaghat for analysis. The results of the

analysis (Ext.PY and PZ) were issued, mentioning that each

sample contained 75.0 per cent proof alcohol in it. The

statements of witnesses were recorded as per their version, and

after the completion of the investigation, the challan was

prepared and presented before the learned Trial Court.

4. Learned Trial Court found sufficient reasons to

summon the accused. When the accused appeared, a notice of

accusation was put to him for the commission of an offence

punishable under Section 61(1) (a) of the Punjab Excise Act as

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applicable to the State of H.P., to which he pleaded not guilty and

claimed to be tried.

5. The prosecution examined 8 witnesses to prove its

case. Kishori Lal (PW1), Constable Rajesh Kumar (PW4), and Om

Prakash Sharma (PW5) are the witnesses to recovery. HC Sita

Ram (PW2) was working as MHC with whom the case property

was deposited. SI Bali Ram (PW3) signed the FIR. Inspector

Shakuntla (PW6) prepared the challan. HC Sanjeev Kumar (PW7)

investigated the matter. HC Raj Pal (PW8) carried the case

property to CTL Kandaghat.

6. The accused, in his statement recorded under Section

313 of Cr.P.C., denied the prosecution’s case in its entirety. He

stated that a false case was made against him. He did not

produce any evidence in defence.

7. Learned Trial Court held that the testimonies of the

prosecution witnesses corroborated each other. There was

nothing in their cross-examination to show that they were

making false statements. Minor contradictions in the

statements of witnesses were not sufficient to discard them. The

accused was found in possession of 12 bottles of Green Label

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Whisky. He failed to produce any permit to possess the liquor.

Hence, the learned Trial Court convicted the accused of the

commission of an offence punishable under Section 61 (1) (a) of

Punjab and Excise Act as applicable to State of H.P. and

sentenced him to undergo simple imprisonment for six months,

pay a fine of ₹2000/- and in default of payment of fine to

undergo further simple imprisonment for 15 days.

8. 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-II, Shimla

(learned Appellate Court). Learned Appellate Court concurred

with the findings recorded by the learned Trial Court that the

testimonies of the prosecution witnesses corroborated each

other. The minor contradictions were not sufficient to doubt the

prosecution's case. The accused could not produce any permit to

possess the liquor. Hence, he was rightly convicted by the

learned Trial Court. The sentence imposed by the learned Trial

Court was adequate, and no interference was required with it.

Hence, the appeal was dismissed.

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9. Being aggrieved by the judgments and order passed

by the learned Trial Court, the accused has filed the present

revision asserting that the learned Courts below erred in

appreciating the evidence on record. The Investigating Officer

admitted in his cross-examination that the bag (Ext.P1)

produced in the Court was not a plastic bag, which would make

the integrity of the case property suspect. SI Bali Ram (PW3)

stated in his cross-examination that he had received a rukka at

6:40 PM. Constable Rajesh Kumar (PW4), on the other hand,

stated that police saw the accused at 6:40 PM and he reached the

Police Station at 7 PM. The discrepancy regarding the time made

the prosecution's case suspect. Therefore, it was prayed that the

present revision be allowed and the judgments and order passed

by the learned Trial Court be set aside.

10. I have heard Mr Sparsh Bhushan, learned counsel for

the petitioner/accused and Mr Ajit Sharma, learned Deputy

Advocate General, for the respondent-State.

11. Mr Sparsh Bhushan, learned counsel for the

petitioner/accused, submitted that the learned Courts below did

not properly appreciate the material on record. There were

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various contradictions in the testimonies. The prosecution

witnesses asserted that the accused was carrying the bottles in

the plastic bag. However, the bag produced in the Court was not

a plastic bag, and this made the prosecution's case highly

suspect. The time of the recovery was also suspect. These

aspects were ignored by the learned Courts below. Hence, he

prayed that the present revision be allowed and the judgments

and order passed by the learned Courts below be set aside.

12. Mr Ajit Sharma, learned Deputy Advocate General for

the respondent/State, submitted that the discrepancy regarding

the nature of the bag was not material. Learned Courts below

have concurrently held that the accused was in possession of 12

bottles of IMFL, and this Court should not interfere with the

concurrent findings of fact recorded by learned Courts below.

Hence, he prayed that the present revision be dismissed.

13. I have given considerable thought to the submissions

made at the bar and have gone through the records carefully.

14. It was laid down by the Hon’ble Supreme Court in

Malkeet Singh Gill v. State of Chhattisgarh, (2022) 8 SCC 204:

(2022) 3 SCC (Cri) 348: 2022 SCC OnLine SC 786 that a revisional

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court is not an appellate court and it can only rectify the patent

defect, errors of jurisdiction or the law. It was observed at page

207: -

“10. Before adverting to the merits of the contentions, at

the outset, it is apt to mention that there are concurrent

findings of conviction arrived at by two courts after a

detailed appreciation of the material and evidence

brought on record. The High Court in criminal revision

against conviction is not supposed to exercise the

jurisdiction like the appellate court, and the scope of

interference in revision is extremely narrow. Section 397

of the Criminal Procedure Code (in short “CrPC”) vests

jurisdiction to satisfy itself or himself as to the

correctness, legality or propriety of any finding, sentence

or order, recorded or passed, and as to the regularity of

any proceedings of such inferior court. The object of the

provision is to set right a patent defect or an error of

jurisdiction or law. There has to be a well-founded error

that is to be determined on the merits of individual cases.

It is also well settled that while considering the same, the

Revisional Court does not dwell at length upon the facts

and evidence of the case to reverse those findings.

15. This position was reiterated in State of Gujarat v.

Dilipsinh Kishorsinh Rao, (2023) 17 SCC 688: 2023 SCC OnLine SC

1294, wherein it was observed at page 695:

“14. The power and jurisdiction of the Higher Court under

Section 397 CrPC, which vests the court with the power to

call for and examine records of an inferior court, is for the

purposes of satisfying itself as to the legality and

regularities of any proceeding or order made in a case.

The object of this provision is to set right a patent defect

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or an error of jurisdiction or law or the perversity which

has crept in such proceedings.

15.It would be apposite to refer to the judgment of this

Court in Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460:

(2012) 4 SCC (Civ) 687: (2013) 1 SCC (Cri) 986, where the

scope of Section 397 has been considered and succinctly

explained as under: (SCC p. 475, paras 12-13)

“12. Section 397 of the Code vests the court with the

power to call for and examine the records of an

inferior court for the purposes of satisfying itself as

to the legality and regularity of any proceedings or

order made in a case. The object of this provision is

to set right a patent defect or an error of jurisdiction

or law. There has to be a well-founded error, and it

may not be appropriate for the court to scrutinise

the orders, which, upon the face of it, bear a token of

careful consideration and appear to be in accordance

with law. If one looks into the various judgments of

this Court, it emerges that the revisional jurisdiction

can be invoked where the decisions under challenge

are grossly erroneous, there is no compliance with

the provisions of law, the finding recorded is based

on no evidence, material evidence is ignored, or

judicial discretion is exercised arbitrarily or

perversely. These are not exhaustive classes, but are

merely indicative. Each case would have to be

determined on its own merits.

13. Another well-accepted norm is that the

revisional jurisdiction of the higher court is a very

limited one and cannot be exercised in a routine

manner. One of the inbuilt restrictions is that it

should not be against an interim or interlocutory

order. The Court has to keep in mind that the

exercise of revisional jurisdiction itself should not

lead to injustice ex facie. Where the Court is dealing

with the question as to whether the charge has been

framed properly and in accordance with law in a

given case, it may be reluctant to interfere in the

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exercise of its revisional jurisdiction unless the case

substantially falls within the categories aforestated.

Even the framing of the charge is a much-advanced

stage in the proceedings under CrPC.”

16. It was held in Kishan Rao v. Shankargouda, (2018) 8

SCC 165: (2018) 3 SCC (Cri) 544: (2018) 4 SCC (Civ) 37: 2018 SCC

OnLine SC 651 that it is impermissible for the High Court to

reappreciate the evidence and come to its conclusions in the

absence of any perversity. It was observed at page 169:

“12. This Court has time and again examined the scope of

Sections 397/401 CrPC and the grounds for exercising the

revisional jurisdiction by the High Court. In State of Kerala

v. Puttumana Illath Jathavedan Namboodiri, (1999) 2 SCC

452: 1999 SCC (Cri) 275, while considering the scope of the

revisional jurisdiction of the High Court, this Court has

laid down the following: (SCC pp. 454-55, para 5)

5. … In its revisional jurisdiction, the High Court can

call for and examine the record of any proceedings

to satisfy itself as to the correctness, legality or

propriety of any finding, sentence or order. In other

words, the jurisdiction is one of supervisory

jurisdiction exercised by the High Court for

correcting a miscarriage of justice. But the said

revisional power cannot be equated with the power

of an appellate court, nor can it be treated even as a

second appellate jurisdiction. Ordinarily, therefore,

it would not be appropriate for the High Court to

reappreciate the evidence and come to its

conclusion on the same when the evidence has

already been appreciated by the Magistrate as well

as the Sessions Judge in appeal, unless any glaring

feature is brought to the notice of the High Court

which would otherwise tantamount to a gross

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miscarriage of justice. On scrutinising the

impugned judgment of the High Court from the

aforesaid standpoint, we have no hesitation in

concluding that the High Court exceeded its

jurisdiction in interfering with the conviction of the

respondent by reappreciating the oral evidence. …”

13. Another judgment which has also been referred to and

relied on by the High Court is the judgment of this Court

in Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao Phalke,

(2015) 3 SCC 123: (2015) 2 SCC (Cri) 19]. This Court held

that the High Court, in the exercise of revisional

jurisdiction, shall not interfere with the order of the

Magistrate unless it is perverse or wholly unreasonable or

there is non-consideration of any relevant material, the

order cannot be set aside merely on the ground that

another view is possible. The following has been laid

down in para 14: (SCC p. 135)

“14. … Unless the order passed by the Magistrate is

perverse or the view taken by the court is wholly

unreasonable or there is non-consideration of any

relevant material or there is palpable misreading of

records, the Revisional Court is not justified in setting

aside the order, merely because another view is

possible. The Revisional Court is not meant to act as an

appellate court. The whole purpose of the revisional

jurisdiction is to preserve the power in the court to do

justice in accordance with the principles of criminal

jurisprudence. The revisional power of the court under

Sections 397 to 401 CrPC is not to be equated with that

of an appeal. Unless the finding of the court, whose

decision is sought to be revised, is shown to be

perverse or untenable in law or is grossly erroneous or

glaringly unreasonable or where the decision is based

on no material or where the material facts are wholly

ignored or where the judicial discretion is exercised

arbitrarily or capriciously, the courts may not interfere

with the decision in exercise of their revisional

jurisdiction.”

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17. This position was reiterated in Bir Singh v. Mukesh

Kumar, (2019) 4 SCC 197: (2019) 2 SCC (Cri) 40: (2019) 2 SCC (Civ)

309: 2019 SCC OnLine SC 13, wherein it was observed at page 205:

“16. It is well settled that in the exercise of revisional

jurisdiction under Section 482 of the Criminal Procedure

Code, the High Court does not, in the absence of

perversity, upset concurrent factual findings. It is not for

the Revisional Court to re-analyse and re-interpret the

evidence on record.

17. As held by this Court in Southern Sales & Services v.

Sauermilch Design and Handels GmbH, (2008) 14 SCC 457, it

is a well-established principle of law that the Revisional

Court will not interfere even if a wrong order is passed by

a court having jurisdiction, in the absence of a

jurisdictional error. The answer to the first question is,

therefore, in the negative.”

18. This position was reiterated in Sanjabij Tari v. Kishore

S. Borcar, 2025 SCC OnLine SC 2069, wherein it was observed:

“27. It is well settled that in exercise of revisional

jurisdiction, the High Court does not, in the absence of

perversity, upset concurrent factual findings [See: Bir

Singh(supra)]. This Court is of the view that it is not for

the Revisional Court to re-analyse and re-interpret the

evidence on record. As held by this Court in Southern Sales

& Services v. Sauermilch Design and Handels GMBH, (2008)

14 SCC 457, it is a well-established principle of law that

the Revisional Court will not interfere, even if a wrong

order is passed by a Court having jurisdiction, in the

absence of a jurisdictional error.

28. Consequently, this Court is of the view that in the

absence of perversity, it was not open to the High Court in

the present case, in revisional jurisdiction, to upset the

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concurrent findings of the Trial Court and the Sessions

Court.

19. The present revision has to be decided as per the

parameters laid down by the Hon’ble Supreme Court.

20. The seizure memo (Ext.PW1/A) mentions that the

accused Deepak Kumar was carrying a black and yellow plastic

bag having 12 bottles of country liquor bearing the mark ‘Green

Label Whisky’, each containing 750 ml of IMFL. Kishori Lal

(PW1) admitted in his cross-examination that the bag (Ext.P1)

was not made up of plastic but rexine. HC Sanjeev Kumar (PW7)

stated in his cross-examination that the bag (Ext.P1) was made

of synthetic cloth. The statements of these witnesses show that

the bag produced in the Court is not the plastic bag stated to

have been recovered at the spot. If the bag in which the bottles

were recovered could be changed, there is no certainty about the

contents of the bag, which would make the prosecution’s case

suspect.

21. Rukka (Ext.PW7/B) mentions that the accused was

found coming from CTO towards the Scandal Point. Kishori Lal

(PW1) stated that he was going towards Snowdan. He saw the

accused coming from the opposite side. The police asked him to

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stop, but he ran away. The testimony of this witness shows that

the accused was coming from Snowdan, which is in the opposite

direction from the CTO. Thus, the testimony of Kishori Lal (PW1)

makes it suspicious that the accused was coming from CTO

towards Scandal point when he was apprehended.

22. Rukka (Ext.PW7/B) mentions that the accused was

carrying a bag in his right hand. HC Sanjeev Kumar (PW7) also

stated on oath that the accused was carrying a bag in his right

hand. However, Kishori Lal (PW1) stated in his cross-

examination that the accused was carrying the bag on his back.

Thus, the witnesses also made different statements regarding

the manner of holding the bag.

23. Rukka (Ext. PW7/B) mentions that the accused was

found near the shop of John Player. The site plan (Ext.PW7/C)

shows the place where the accused was apprehended at point ‘C’

opposite the shop of John Player. Kishori Lal (PW1) stated in his

cross-examination that he saw the accused near the statue of

Lala Lajpat Rai. He was not aware of the location of John Player’s

shop on the Mall road. The statue of Lala Lajpat Rai is located at

the scandal point. Hence, he has shifted the place of the incident

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from the opposite side of the shop of John Player to the Scandal

Point, which would make his testimony highly suspect.

24. SI Bali Ram (PW3) stated in his cross-examination

that he had received the rukka at 6:40 PM, and he recorded the

FIR after 15-20 minutes. His testimony that rukka was received

at 6:40 pm will make the prosecution’s case suspect that the

accused was apprehended at 6:40 pm.

25. Constable Rajesh Kumar (PW4) carried the rukka to

the Police Station. He stated in his cross-examination that the

police had reached the scandal point at 6:00 PM. The accused

was apprehended at 6:40 PM. He reached the Police Station at

7:00 PM and took the rukka from the spot at 6:45 PM. The

Investigating Officer had recorded the statements of Kishori Lal

(PW1), Om Prakash Sharma (PW5) and his statement before

sending the rukka. The seizure memo was also prepared before

sending the rukka, and the bottles were sealed on the spot. It

took about 15-20 minutes to complete this investigation. The

fact that he specifically stated about the apprehension of the

accused at 6:40 PM shows that he is not mistaken regarding the

time, and his testimony regarding the time is acceptable. His

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statement also makes it doubtful that the accused was

apprehended at 6:40 pm. It was difficult to seize the bottles,

prepare the seizure memo, record the statements of the

witnesses and prepare the rukka within 5 minutes to enable him

to take the rukka at 6:45 pm.

26. Learned Courts below were swayed by the fact that

the witnesses had made consistent statements and the

independent witnesses had supported the prosecution's case.

This was not sufficient. They failed to notice the discrepancies

noticed above and their impact on the prosecution's case.

27. 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, as the sole touchstone for the test of

such credibility. The evidence must be tested for its

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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.”

28. 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

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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 Lloyds 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

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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:

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(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: -

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"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

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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

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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.”

29. Thus, the prosecution’s case became suspect because

of the discrepancies noticed above, and the judgments of the

learned Courts below that the prosecution had succeeded in

proving its case beyond a reasonable doubt cannot be sustained.

30. In view of the above, the judgments and order passed

by the learned Trial Court cannot be sustained; hence, the

present revision is allowed, and the judgments and order passed

by the learned Courts below are set aside. The petitioner/accused

is acquitted 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. The fine, if deposited be refunded to the

petitioner/accused after the expiry of the period of limitation, in

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case no appeal is preferred, and in case of appeal, the same be

dealt with as per the orders of the Hon’ble Supreme Court of

India.

31. In view of the provisions of Section 437-A of the Code

of Criminal Procedure [Section 481 of Bharatiya Nagarik

Suraksha Sanhita, 2023 (BNSS)], the petitioner/accused is

directed to furnish personal bond in the sum of ₹25,000/- with

one surety in the like amount to the satisfaction of the learned

Registrar (Judicial) of this Court/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 petitioner/accused, on

receipt of notice thereof, shall appear before the Hon’ble

Supreme Court.

32. A copy of this judgment, along with the records of the

learned Trial Court, be sent back forthwith. Pending

miscellaneous application(s), if any, also stand(s) disposed of.

(Rakesh Kainthla)

Judge

1

st

January, 2026

(Nikita)