Research › Search › Judgment

Punjab High Court · body

2009 DIGILAW 1609 (PNJ)

Hari Kishan @ Krishan v. State of Haryana

2009-09-10

HARBANS LAL

body2009
JUDGMENT HARBANS LAL, J. This appeal is directed against the judgment/ order of sentence dated 15.7.2005 passed by the Court of learned Additional Sessions Judge, Sirsa whereby he convicted and sentenced the accused Hari Kishan alias Krishan as well as Nandu Ram to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.1 lac each under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 or in default of payment of fine, the defaulter to further undergo rigorous imprisonment for two years. The facts in brief are that on 6.2.2002 at about 6:10 P.M., Ram Kishan ASI among other police officials was returning to Police Post Goriwala via Ratta Khera and when they reached at T point of Village Rampura Bishnoian, one jeep bearing registration No.HRN-2371 was spotted approaching from the side of Village Ramgaria. The jeep was signalled to stop by the aforesaid ASI. The driver did not stop the jeep rather he sped away the same by accelerating the speed. On seeing that the police party was chasing the jeep, the driver took the jeep towards the outskirt of village Ramgaria and parked the same there. All the three occupants of the jeep alighted and started running. While fleeing, one was identified by HC Rakesh Kumar as well as Constable Rameshwar No.626 as Krishan alias Neta, resident of Gidder Khera, the driver of the jeep. The other one was identified as Nandu, resident of Rampura Bishnoia. The third one was identified as Seera Jat Sikh, resident of Jandwala Jatan. A hot chase was given to nab them, but in vain. On search of the jeep, six gunny bags containing poppy straw yielded from its rear portion. Many villagers had assembled on the spot, but none had shown willingness to become a witness. The contents of each bag when weighed came to 38 Kgs of poppy straw. Two samples of 100 grams each were drawn from each bag and converted into separate seals. The residue in each bag was also turned into parcels. All these parcels were sealed with seal `RK'. The seal after use was handed over to Rakesh Kumar Head Constable. A ruqa was sent to the Police Station, where on its basis, formal FIR was registered. On return to the Police Station, the case property was deposited with the MHC with seals intact. All these parcels were sealed with seal `RK'. The seal after use was handed over to Rakesh Kumar Head Constable. A ruqa was sent to the Police Station, where on its basis, formal FIR was registered. On return to the Police Station, the case property was deposited with the MHC with seals intact. On 7.12.2001, the accused Hari Kishan alias Neta son of Sant Ram and on 16.8.2001 accused Nandu were arrested. However, Seera alias Jagsir accused and Surjeet Singh sons of Mukhtiar were not found involved in the commission of crime. After completion of investigation, the charge-sheet was laid in the Court for trial of the accused, Hari Kishan alias Krishan and Nandu Ram who were charged under Section 15 of the Act to which they did not plead guilty and claimed trial. To bring home guilt against the accused, the prosecution examined HC Rameshwar PW1, Subhash Chander PW2, Ram Kishan ASI Investigator PW3, Rakesh Kumar HC PW4, Rajbir Singh Constable PW5 and Randhir Singh Inspector/ SHO PW6 and closed its evidence. When examined under Section 313 of Cr.P.C., both the accused denied all the incriminating circumstances appearing in the prosecution evidence against them and pleaded innocence as well as false implication. In their defence, they examined Bhoop Singh Constable DW1, Jaibir Singh HC DW2, and S.K. Nagpal, retired Senior Scientific Officer, FSL, Madhuban DW3. After hearing the learned defence counsel and examining the evidence on record, the learned trial Court convicted and sentenced both the accused as noticed at the outset. Feeling aggrieved with their conviction/ sentence, they have preferred this appeal. I have heard the learned counsel for the parties, besides perusing the record with due care and circumspection. To begin with, learned counsel for the appellants eloquently urged that the identity of both the appellants has not been established. The prosecution has made an exercise in futility to establish their identity on the basis of solitary statement of Rakesh Kumar Head Constable, whose evidence would reveal that they were not known to him. Thus, the learned trial Court was not justified in holding that their identity is proved. The prosecution has made an exercise in futility to establish their identity on the basis of solitary statement of Rakesh Kumar Head Constable, whose evidence would reveal that they were not known to him. Thus, the learned trial Court was not justified in holding that their identity is proved. To overcome this submission, the learned State Counsel maintained that Rakesh Kumar Head Constable PW4 has stated in categoric and candid terms that the appellants were known to him earlier and that being so, there is nothing wrong with the trial Court's judgment in holding that their identity stands demonstrated. This contention merits rejection. It is in the cross-examination of Ram Kishan ASI PW3 that “at that time there was dark when the search was conducted. We had reached just near the jeep when the accused fled. Again said, we were at a distance of 10-15 paces from the jeep of the accused, when they left the jeep. We had seen them in the jeep light. It is correct that the accused are not registered owner of the jeep.” It is in the evidence of Rakesh Kumar Head Constable PW4 that “Krishan alias Neta and Seera alias Surjit and Nandu were identified by me and Rameshwar Constable because they were known to us previously.” It is in his cross-examination that “I cannot tell the names of brothers of accused Nandu nor can tell how many brothers he has. I did not arrest Nandu in any other case investigated by me nor he was a witness in any case detected by me. However, Nandu used to come to the Police Post in routine. Indeed accused was never arrested by me, nor I am a witness in any case pending against him. I cannot tell the names of his father and grand-father. However, I know him as he used to park his vehicle at the taxi stand. We were at a distance of 400-500 yards while chasing the jeep and at that time there was some dark. We identified both the accused with the help of jeep light.” It emanates from the above referred evidence that it was dark when the appellants had allegedly fled away by getting down from the jeep. While fleeing, their faces in all probabilities were to be in the opposite direction. Therefore, the question of their being identified by the said witnesses does not arise. While fleeing, their faces in all probabilities were to be in the opposite direction. Therefore, the question of their being identified by the said witnesses does not arise. If it is assumed that the escapers were the appellants despite that the aforesaid HC Rakesh Kumar would have seen their back only. By no process of reasoning, it can be said that the appellants would have been identified merely from their backside. Under the stress of cross-examination, this HC has regretted his inability to tell the names of the brothers or the number of brothers of the appellant Nandu. If Nandu was not arrested by this witness in any case nor he had appeared as a witness in any case against this appellant, how it can be presumed that he was known to this appellant. In relation to Neta – appellant also, this HC has stated that he had never arrested him nor he had appeared as a witness in any case pending against him. This apart, he regretted his inability to tell the names of his father or grand-father. He has testified that he knew him because Neta used to park his vehicle at the taxi stand. To my mind, this evidence is not enough to hold that the escapers were really the appellants. The prosecution has not examined Rameshwar Constable, who had also allegedly identified the appellants. There is no gainsaying the fact that the test identification parade was not arranged to establish the identity of the appellants. Rakesh Kumar as well as Rameshwar Constable being police officials would have not resiled from identifying the appellants in the test identification parade. Of course, test identification parade is a mere corroborative evidence, but as a rule of prudence, if the same is carried out, it strengthens the prosecution evidence with regards to the identity of the accused. To add further to it, according to Ram Kishan ASI PW3, they were at a distance of 10-15 paces from the jeep when the appellants ran away by abandoning the jeep. According to Rakesh Kumar HC PW4, they were at a distance of 400/500 yards while chasing the jeep. If they were at such a distance and darkness had grown, it does not stand to the logic that the aforesaid police officials would have been able to identify the appellants properly. According to Rakesh Kumar HC PW4, they were at a distance of 400/500 yards while chasing the jeep. If they were at such a distance and darkness had grown, it does not stand to the logic that the aforesaid police officials would have been able to identify the appellants properly. Thus, I am constrained to hold that the prosecution has miserably failed to pin down the identity of the appellants. In re: Megh Singh v. State of Punjab, 2004(1) Apex Criminal 482, the accused was sitting on gunny bags containing contraband. It was held by Hon'ble the Supreme Court that “Word `conscious' means awareness about a particular fact. It is a statement of mind which is deliberate or intended. Expressions `possession' is a polymorphus term which assumes different colours in different contexts. It is impossible to work out a completely logical and precise definition of “possession” uniformly applicable to all situations in the context of all statutes. Once possession is established, the person who claims that it was not a conscious possession has to establish it, because how he came to be in possession is within his special knowledge. Section 35 of the Act gives a statutory recognition of this position because of presumption available in law. Similar is the position in terms of Section 54 where also presumption is available to be drawn from possession of illicit articles. This position was highlighted in Madan Lal and another v. State of Himachal Pradesh, 2003(6) SCALE 483”. It is inferable from these observations that initially the prosecution is to establish that the accused was in possession of the contraband and only then, the onus is to shift upon the accused to prove that he was not in conscious possession. In the present one, the appellants were not found in possession of the poppy husk bags allegedly recovered from the jeep as according to the prosecution version, they had already run away after having left the jeep at the place of recovery. Thus, to my mind, their possession is not established by the prosecution. So, the onus does not shift on to the appellants to prove that they were not in conscious possession. Sequelly, the presumption arising under Section 35 as well as 54 of the Act does not operate in favour of the prosecution. Thus, to my mind, their possession is not established by the prosecution. So, the onus does not shift on to the appellants to prove that they were not in conscious possession. Sequelly, the presumption arising under Section 35 as well as 54 of the Act does not operate in favour of the prosecution. It is in the testimony of Rakesh Kumar HC PW4 that “On the next date, I returned the seal to the IO”. As per Ex.PG, the Forensic Science Laboratory's report, the sample parcels of this case were received in the laboratory on 13.2.2002 whereas the recovery was effected on 6.2.2001. If the seal was returned by the aforesaid HC to the Investigator on the next day, it is then inferable that the sample parcels were still lying in the malkhana, as the same were despatched on 12.2.2001. Furthermore, there is inexplicable delay of as many as six days in sending the sample parcels for chemical analysis. Thus, the possibility of tampering with their contents cannot be ruled out. It is in the evidence of DW3 S.K. Nagpal, Retired Sr. Scientific Officer, F.S.L. Madhuban that “I have seen my report Ex.PG, which is signed by me. In the report I have not given percentage of morphine as under the NDPS Act the percentage of morphine in the poppy straw is less than 0.2% and in some case is less than 0.2%. Therefore, I cannot say that how much percent morphine was in the contraband. According to Ex.PG, the recovery was effected on 6.2.2001 and the sample was received in the laboratory on 13.2.2001 and as per the rules under NDPS Act, the same should reach within 72 hours in the laboratory from the date of recovery. I did not raise any objection regarding sending of the sample within 72 hours.” In view of this evidence, it is very difficult to say that the contents of sample parcels were really poppy husk. It is in the cross-examination of Ram Kishan ASI, the Investigator that “Later on, I came to know that there were four occupants of the Jeep and the name of the fourth accused was Surjeet Singh. It is correct that accused Seera was found innocent during investigation. It is in the cross-examination of Ram Kishan ASI, the Investigator that “Later on, I came to know that there were four occupants of the Jeep and the name of the fourth accused was Surjeet Singh. It is correct that accused Seera was found innocent during investigation. Seera was however occupying the jeep at the relevant time and he was identified by Rakesh Kumar and Rameshwar PWs, but I cannot tell the reason as to how he was found innocent, later on. Till the investigation of the case remained with me, Seera was not found innocent.” In the face of this evidence, it is hard to believe the entire prosecution version. As a sequel of the above discussion, this appeal is accepted setting aside the impugned judgment. The accused are acquitted of the charged offence.