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2008 DIGILAW 1246 (PNJ)

Jagdish v. State of Haryana

2008-07-18

SHAM SUNDER

body2008
JUDGMENT Sham Sunder, J.:-This appeal is, directed against the judgment of conviction dated 24.5.1997, and the order of sentence dated 27.5.1997, rendered by the Court of Addl. Sessions Judge, Hisar, vide which it convicted the accused/appellant Jagdish, for the offence, punishable under Section 18 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter called as ‘the Act’ only) and sentenced him to undergo rigorous imprisonment for a period of ten years, and to pay a fine of Rs.1 lac, and in default of payment of the same, to undergo rigorous imprisonment for another period of two years, for having been found in possession of 2 Kgs. 520 grams opium, without any permit or licence. 2. The facts, in brief, are that, on 1.3.1996, Ghisha Ram, ASI, alongwith other police officials, was present at T-point Jhalania-Mohmaopur Rohi, in connection with patrol duty, when the accused was seen coming, with a bag, in his hand. On seeing the police party, he moved back, but was apprehended, on suspicion. On search of the bag, being carried by the accused, in the presence of the DSP, who was called to the spot, 2 Kg 520 grams opium, was recovered therefrom. A sample of 20 grams was separated, and put into a container. The remaining opium was put into a separate container. The containers, containing sample, and the remaining opium, were converted into parcels, duly sealed, and taken into possession, vide a separate recovery memo. Ruqa was sent to the Police Station, on the basis whereof, formal FIR was registered. The accused was arrested. After the completion of investigation, the accused was challaned. 3. On appearance, in the Court, the copies of documents, relied upon by the prosecution, were supplied to the accused. Charge under Section 18 of the Act, was framed against him, to which he pleaded not guilty and claimed judicial trial. 4. The prosecution, in support of its case, examined Nathu Ram, 51 (PW-1), Ghisha Ram, ASI (PW-2), Khayali Ram, MHC (PW-3), Ratan Singh, Constable (PW-4), Vijay Pal Godara, ASI, (PW-5), Inder Singh, OSP (PW-6), and Mam Chand, Inspector (PW-7). Thereafter, the Public Prosecutor for the State, closed the prosecution evidence. 5. The statement of’ the accused under Section 313 Cr.P.C., was recorded, and he was put all the incriminating circumstances, appearing against him, in the prosecution evidence. He pleaded false implication. Thereafter, the Public Prosecutor for the State, closed the prosecution evidence. 5. The statement of’ the accused under Section 313 Cr.P.C., was recorded, and he was put all the incriminating circumstances, appearing against him, in the prosecution evidence. He pleaded false implication. It was stated by him, that he was arrested from his house, on 27.2.1997, by the Police of Police Station Fatehabad, in the presence of Gian Singh, Sarpanch, and Sushil Chowkidar of village Jhalnia. It was further stated by him, that he was falsely implicated by the police, at the instance of am Parkash S/o Ram Partap Bishnoi, who is a close relative of Dhurra Ram Bishnoi of Fatehabad, who is a nephew of the then Chief Minister Bhajan Lal. It was further stated by him, that before this he had been falsely implicated in case FIR No.395 dated 28.6.1994 at the instance of that Om Parkash. It was further stated by him that, in that case, he was acquitted by the Court of Sh. C.B. Jaglian, the then Addl. Sessions Judge, Hisar, on 1.8.1995. It was further stated by him, that he never went to school for education. It was further stated by him, that he was an illiterate person. It was further stated by him, that his signatures were obtained by the Police, in the Police Station, itself on the blank papers. He, however, examined Bansi Lal @ Sushil (DW-1), and Hargain Singh (DW -2), in his defence. Thereafter, he closed the defence evidence. 6. After hearing the Public Prosecutor for the State, the Counsel for the accused, and, on going through the evidence, on record, the trial Court, convicted and sentenced the accused, as stated hereinbefore. 7. Feeling aggrieved, against the judgment of conviction, and the order of sentence, rendered by the trial Court, the instant appeal, was filed by the accused/appellant. 8. None, put in appearance, on behalf of the appellant, despite due notice, that the appeal was fixed for regular hearing, on the board of this Bench. Under these circumstances, it is to determined, as to whether, the Court can decide the appeal, in the absence of the appellant, and his Counsel, who had due notice that the same was fixed for regular hearing. In Dharmpal Vs. Under these circumstances, it is to determined, as to whether, the Court can decide the appeal, in the absence of the appellant, and his Counsel, who had due notice that the same was fixed for regular hearing. In Dharmpal Vs. State of U.P., 2008 (1) Law Herald (SC) 225, in similar circumstances, when the appeal against the judgment of conviction, and the order of sentence, for the offence punishable under Section 302 IPC, was fixed for regular hearing, before the Allahabad High Court, neither the appellant, nor his Counsel put in appearance. In these circumstances, the appeal was decided by the High Court, after perusing the records, on merits. It was held by the Apex Court, that the High Court, in such an event, could look into the records, and the other material placed thereon, including the judgment of the trial Court, and thereafter decide the appeal on merits, which would be due compliance of the provisions of Section 385 and 386 of the Code of Criminal Procedure, in disposing of criminal appeal. However, it was further held, in the said authority, that the Appellate Court, cannot dismiss the appeal, in default. Similar, Principal of law was laid down, in Bani Singh Vs. State of U.P., 1996 (4) SCC 720. Relying upon the principle of law, laid down, in these authorities, this appeal is being decided on merits. 9. I have heard the learned Counsel for the respondent, and carefully perused the records, evidence, and the impugned judgment. 10. One of the grounds, taken up in the grounds of appeal, was to the effect, that despite availability of the independent witnesses, none was joined, as a result whereof, the case of the prosecution became doubtful. It may be stated here that the police party was going from Police Station to Bothan Kalan, in connection with crime detection and patrol duty, in a gypsy, and when it reached at T-point Jhalania-Mohmadpur Rohi road, the accused was seen coming from the side of village Jhalania, with a bag, in his right hand. No secret information had been received, against the accused, that he was coming on a particular way, at a particular time, with a big haul of opium. It was a chance recovery of opium, which was effected from the accused. Under these circumstances, the question of joining of an independent witness, did not at all arise. No secret information had been received, against the accused, that he was coming on a particular way, at a particular time, with a big haul of opium. It was a chance recovery of opium, which was effected from the accused. Under these circumstances, the question of joining of an independent witness, did not at all arise. There is no evidence, on the record, to the effect that any independent witness was present, at the time, when the recovery was effected from the accused, but he was not joined, intentionally and deliberately by Ghisha Ram, ASl (PW-2). Had any independent witness been joined afterwards, his evidence would have been of no relevance, as he would not have been said to be a witness to the recovery. However, it is evident from the statement of Ghisha Ram, ASI, that some persons, who were passing near the place of recovery, were called after the recovery had already been effected, but they showed their inability, to join the investigation. It means that an effort was made to join an independent witness, though after the recovery, yet the police party was not successful. It is settled principle of law, that the evidence of the official witnesses, cannot be distrusted and disbelived, merely on account of their official status. Their evidence is as good, as that of any other independent witness. In the face of the evidence of the official witnesses only, the Court is required to scrutinize the same, carefully and cautiously. After careful and cautious scrutiny, if the Court comes to the conclusion, that the same does not suffer from any serious infirmity, the same can be believed. The evidence of the official witnesses, in the instant case, has been subjected to indepth scrutiny, and nothing came to the fore, which may go to discredit the same. In Akmal Ahmed Vs. State of Delhi, 1999(2) RCC 297 (S.C.), it was held that, it is now well-settled that the evidence of search or seizure. made by the police will not become vitiated, solely for the reason that the same was not supported by an independent witness. In State of NCT of Delhi Vs. Sunil (2000)/ S.C.C. 748, it was held as under:- “It is all archaic notion that actions of the Police officer, should be approached with initial distrust. made by the police will not become vitiated, solely for the reason that the same was not supported by an independent witness. In State of NCT of Delhi Vs. Sunil (2000)/ S.C.C. 748, it was held as under:- “It is all archaic notion that actions of the Police officer, should be approached with initial distrust. It is time now to start placing at least initial trust on the actions and the documents made by the Police. At any rate, the Court cannot start with the presumption that the police records are untrustworthy. As a proposition of law, the presumption should be the other way round. The official acts of the Police have been regularly performed is a wise principle of presumption and recognized even by the Legislature.” 11. In Appa Bai and another Vs. State of Gujarat, AIR 1988 S.C. 696, it was held that the prosecution story cannot be thrown out, on the ground, that an independent witness had not been examined, by the prosecution. It was further held, in the said authority, that the civilized people, are generally insensitive, when a crime is committed, even in their presence, and they withdraw from the victims side, and from the side of the vigilant. They keep themselves away from the Courts, unless it is inevitable. Moreover, they think the crime like a civil dispute, between two individuals, and do not involve themselves, in it. The principle of law, laid down, in the aforesaid authorities, is fully applicable to the facts of the present case. In these circumstances, mere non-joining of an independent witness, when the evidence of the prosecution witnesses, has been held to be cogent, convincing, creditworthy, and reliable, and there was no reason, on their part to falsely implicate the accused, no doubt, is cast on the prosecution story. This ground, therefore, does not hold good. 12. The next ground, taken up in the memorandum of appeal, was to the effect, that all the documents, even the statements of the witnesses, recorded under Section 161 Cr.P.C., were not in the hand of Ghisha Ram, ASI, the Investigating Officer, but were in the hand of another ASI namely Vijay Pal. It was, thus, stated in the memorandum of appeal, that such a procedure adopted by the Investigating Officer, was not in consonance with the provisions of law. It was, thus, stated in the memorandum of appeal, that such a procedure adopted by the Investigating Officer, was not in consonance with the provisions of law. In my considered opinion, there is no requirement, under the relevant provisions of law, that the statements of the witnesses, under Section 161 Cr.P.C. should only be recorded by the Investigating Officer, and not by any other official, accompanying him, and a member of the raiding party. On the other hand, it is evident from the provisions of Section 161 Cr.P.C., that any police officer, making an investigation, under this Chapter, or any Police Officer, not below such rank, as may be prescribed by the State Government by general or special order, acting on the requisition of such Officer, may examine orally any person supposed to be acquainted with the facts and circumstances of the case. In the instant case, Vijay Pal, ASI, a member of the raiding party, if on the requisition of the Investigating Officer, recorded the statements of the witnesses, under Section 161 Cr.P.C., he did not commit any irregularity, or illegality. Even the Investigating Officer by getting recorded the statements of the witnesses, under Section 161 Cr.P.C. from Vijay Pal, ASI, did not commit any irregularity or illegality. There is nothing, on the record, that any prejudice was caused to the accused, on account of adoption of such a procedure, by the Investigating Officer. Even otherwise, the statements, under Section 161 Cr.P.C., can only be used, for the purpose of contradiction. When all the witnesses, appeared in the Court, and proved the prosecution case, the statements under Section 161 Cr.P.C. were hardly of any relevance. This ground, therefore, does not hold good. The trial Court was right, in rejecting the same. 13. The next ground taken up, in the memorandum of appeal, was to the effect, that as per the prosecution story, the search of the appellant was carried out by the DSP himself, but the evidence produced, at the time of trial, was contrary to the said story. Ghisha Ram, ASI (PW -2), stated that a wireless message was sent to the DSP, Fatehabad, as a result whereof, Inder Singh, DSP, reached the spot. He further stated that the DSP, disclosed his identity, to the accused, and informed that he wanted to get his bag searched. Ghisha Ram, ASI (PW -2), stated that a wireless message was sent to the DSP, Fatehabad, as a result whereof, Inder Singh, DSP, reached the spot. He further stated that the DSP, disclosed his identity, to the accused, and informed that he wanted to get his bag searched. He further stated that the DSP, directed him (Ghisha Ram, ASI), to search the bag of the accused. On said search of the bag, of the accused, opium weighing 2 Kgs. 520 grams, was recovered. From the statement of Ghisha Ram, ASI (PW -2), it is evident that the search was conducted, by him, though at the directions of the DSP. There is nothing in the statement of Ghisha Ram, ASI, that the DSP, himself conducted the search of the bag, being carried by the accused. Inder Singh, DSP (PW-6), also stated, in his statement, that he directed Ghisha Ram, ASJ, to conduct the search of the bag, being carried by the accused. No doubt, in the Ruqa, Ex.PA, it was recorded that it was Inder Singh, DSP, who conducted the search of the bag. Whether the search of the bag, being carried by the accused, was conducted by Inder Singh, DSP, or by Ghisha Ram, ASI, as both were together there, hardly mattered. No prejudice, whatsoever, was shown to have been caused to the accused, on account of this discrepancy. Had any prejudice been shown to have been caused, on account of such a discrepancy, the matter would have been considered, in the light thereof. It was only an inconsequential discrepancy, which occurred, in the statements of the official witnesses, vis-a-vis the ruqa. The trial Court was right, in discarding such a discrepancy, which did not affect the merits of the case. This ground, therefore, does not hold good. 14. The next ground taken up, in the memorandum of appeal, was to the effect, that though the alleged recovery was effected on 1.3.1996, yet the sample was sent to the office of the Forensic Science Laboratory on 12.3.1996, without any explanation of delay, as a result whereof, the case of the prosecution became doubtful. It is no doubt, true that there was a delay of 11 days, in sending the sample to the office of the Forensic Science Laboratory. It is no doubt, true that there was a delay of 11 days, in sending the sample to the office of the Forensic Science Laboratory. Mere delay, in sending the sample, to the office of the Forensic Science Laboratory, in itself, was not sufficient, to come to the conclusion, that the same was tampered with, until the same was deposited, in the office of the Forensic Science Laboratory. In the instant case, from the evidence of the prosecution witnesses, which has been found to be cogent, convincing, reliable, and trustworthy, it was proved beyond a reasonable doubt, that none tampered with the sample parcel, until the same was deposited, in the office of the Forensic Science Laboratory. Above all, there is report of the Forensic Science Laboratory, Ex.PH, which is admissible into evidence, in its entirety, as per the provisions of Section 293. It is evident from Ex.PH, report of the Forensic Science Laboratory, that the sample parcel, was found intact and the seals thereon, tallied with the specimen seals, as per the forwarding authority. In the face of such cogent and convincing evidence, produced, on record, the trial Court, in my opinion, was right in coming to the conclusion, that none tampered with the sample parcel, until the same reached the office of the Forensic Science Laboratory. Had no other evidence, been produced, by the prosecution, to prove that the sample parcel, remained untampered with, until the same reached the office of the Forensic Science Laboratory, the matter would have been different. In Narinder Singh @ Nindi Vs. Stale of Punjab 2005(3) RCR (Criminal) 343, which was a case, relating to the recovery of 4 Kgs. of opium, the samples were sent to the office of the Chemical Examiner, after 23 days. All the samples were intact. In these circumstances, it was held that, in the face of the other cogent, convincing, reliable, and trustworthy evidence, produced by the prosecution, to prove the completion of link evidence, it could not be held that the possibility of tampering with the samples, could not be ruled out. The principle of law, laid down, in the aforesaid authority, is fully applicable to the facts of the instant case. Therefore, in the instant case, unexplained delay of 11 days, in sending the sample to the office of the Forensic Science Laboratory, did not at all matter much. The principle of law, laid down, in the aforesaid authority, is fully applicable to the facts of the instant case. Therefore, in the instant case, unexplained delay of 11 days, in sending the sample to the office of the Forensic Science Laboratory, did not at all matter much. This ground, therefore, does not hold good. 15. The next ground taken up, in the memorandum of appeal, was to the effect, that as per the prosecution story, three seals were affixed on the sample, and the remaining case property i.e. one seal of Ghisha Ram, ASI, one seal of lnder Singh, DSP, and one seal of Mam Chand, Inspector/SHO, but the report of the Forensic Science Laboratory, showed that there were two seals, on the sample parcel, when it was delivered in that office. It was, thus, stated in the grounds of appeal, that this factum coupled with unexplained delay, in sending the sample to the Forensic Science Laboratory, made the case of the prosecution doubtful. This ground, does not appear to be correct. It is the case of the prosecution, that at the time of recovery of opium, Ghisha Ram, ASI, the Investigating Officer, affixed his seal, bearing impression ‘GR’, on the sample parcel, and the case property, whereas, Inder Pal, DSP, affixed his seal, bearing impression ‘ISS’ on the Sample parcel, and the case property, and Mam Chand, SHO, affixed his seal, bearing impression ‘MC’ on the sample parcel, and the case property, when the same were produced before him. Ex.PH, report of the forensic Science Laboratory, clearly depicts that the seals on the parcel, were found intact, and tallied with the specimen seals, as per the forwarding authority. It is further evident from Ex.PH, that one sealed parcel, with two seals of ‘ISS’, two seals of ‘GR’, and one seal of ‘MC’ was received in the Laboratory. Report, Ex.PH, therefore, falsified the aforesaid ground, taken up in the memorandum of appeal. The trial Court was, thus, right in holding that this ground was not in consonance with the evidence. This Court, after scrutiny of the evidence, also comes to the conclusion, that this ground does not hold good, and, on the other hand, belied by Ex.PH, report of the Forensic Science Laboratory. 16. The trial Court was, thus, right in holding that this ground was not in consonance with the evidence. This Court, after scrutiny of the evidence, also comes to the conclusion, that this ground does not hold good, and, on the other hand, belied by Ex.PH, report of the Forensic Science Laboratory. 16. The next ground taken up, in the memorandum of appeal, was to the effect, that a sample of 20 grams was taken out, from the opium, alleged to have been recovered, whereas, the weight of the sample received in the office of the Forensic Science Laboratory, was 17 grams. It was, thus, stated in the grounds of appeal, that this clearly proved that the sample was tampered with, until it reached the office of the Forensic Science Laboratory. It may be stated here, that, no doubt, 20 grams of sample was taken out of the opium recovered, in this case. It is evident from Ex.PH, report of the Forensic Science Laboratory, that the sample received therein approximately, weighed 17 grams. It was not the exact weight, of the sample, which was mentioned by the Laboratory, in the report Ex.PH. Since, it was only the approximate weight of the sample, which was mentioned in the report, it could not be said that the possibility of tampering with the sample parcel, could not be ruled out. From Ex.PH, it is evident that the sample parcel was received with seals intact, which tallied with the sample impression of the seals, sent by the forwarding authority. This report has not been challenged. Under these circumstances, every possibility of tampering with the sample parcel, until it reached the office of the Forensic Science Laboratory, was ruled out. The trial Court was right, in holding that there was no tampering with the sample parcel, until it reached the office of the Forensic Science Laboratory. After reppraisal of the evidence of the prosecution witnesses, this Court also comes to the same conclusion. This ground, therefore, does not hold good. 17. The next ground taken up, in the memorandum of appeal, was to the effect, that the accused was falsely implicated, at the instance of one Om Parkash, a close relative of Dhurra Ram Bishnoi of Fatehabad, who is a nephew of the then Chief Minister Bhajan Lal, Bansi Lal @ Sushil (DW-1), and Hargain Singh (DW-2), were examined by the accused, in his defence. Both these witnesses, stated that the accused was taken away from his house, and nothing was recovered from him. Both these witnesses, are co-villagers of the accused. Hargain Singh, (DW-2) was Sarpanch of the village, at the relevant time. In case the accused, had been falsely implicated, he being the headman of the village, could get passed a resolution, in this regard, in the Panchayat. He could also move an application before the Police, regarding the false implication of the accused. He could also move an application before the Deputy Commissioner, or the Illaqa Magistrate, regarding the false implication of the accused. However, none of the defence witnesses, made any written or oral complaint, with regard to the false implication of the accused, in the instant case. It could not be expected of them to sleep over the matter, for such a long time, had the accused been falsely implicated, in this case. The mere fact that they slept over the matter, from 1.3.1996, the date of recovery to 17.5.1997, when they appeared as defence witnesses, in itself, was sufficient to disbelieve their evidence. Copy of the judgment Ex.D-1, was also tendered into evidence, by the accused, showing that he alongwith so many other persons, was tried by the Court of Addl. Sessions Judge, Hisar, and acquitted. It is evident, from the perusal of Ex.D-1, copy of the judgment dated 1.8.1995, that the witnesses therein resiled. It was, under these circumstances, that the accused alongwith his co-accused was acquitted by the Court of the Addl. Sessions Judge, Hisar, for the offences punishable under Sections 148 and 307 read with Section 149 IPC. This judgment did not, in any way, go to support the defence version set up by the accused, that he was falsely implicated, in the instant case. The defence version was rightly disbelieved, by the trial Court. On reppraisal, of the evidence, this Court also come to the same conclusion. 18. No other material ground, was taken up, in the memorandum of appeal. 19. In view of the above discussion, it is held that the judgment of conviction, and the order of sentence, rendered by the trial Court, are based on the correct appreciation of evidence, and law, on the point. The same do not warrant any interference, and are liable to be upheld. 20. For the reasons recorded, hereinbefore, the appeal is dismissed. In view of the above discussion, it is held that the judgment of conviction, and the order of sentence, rendered by the trial Court, are based on the correct appreciation of evidence, and law, on the point. The same do not warrant any interference, and are liable to be upheld. 20. For the reasons recorded, hereinbefore, the appeal is dismissed. The judgment of conviction dated 24.5.1997, and the order of sentence dated 27.5.1997, are upheld. If the appellant is on bail, his bail bonds shall stand cancelled. The Chief Judicial Magistrate, Hisar, shall take necessary steps to comply with the judgment, with due promptitude, keeping in view the applicability, of the provisions of Section 428 of the Code of Criminal Procedure, and submit a compliance report, within a period of two months, from the date of receipt of the certified copy of the judgment. ------------------