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2014 DIGILAW 1184 (HP)

Budh Ram v. State of H. P.

2014-09-03

RAJIV SHARMA, SURESHWAR THAKUR

body2014
JUDGMENT Sureshwar Thakur, J. The instant appeal is directed against the judgment rendered on 01.10.2010 by the learned Special Judge, Fast Track Court, Kullu, H.P. in Sessions trial No. 57 of 2009, whereby, the learned trial Court convicted and sentenced the appellant/accused to undergo rigorous imprisonment for a period of thirteen years and to pay a fine of Rs.1,30,000/- and in default of payment of fine amount to undergo simple imprisonment for a period of two years for his having allegedly committed an offence punishable under Section 20(b) (iii)(c) of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as the ND&PS Act) 2. Brief facts of the case which are necessary to determine the appeal are that on 10.8.2009 ASI Naresh, HHC Ajay Kumar, C. Ranjit Singh were present at Parari Nullah Pull in vehicle bearing registration No.HP-34-3830 which was being driven by HHC Raj Kumar. At about 2.30 a.m., they heard the sound of footsteps of someone. The search light was switched on and the accused was seen carrying a backpack. On suspicion, the accused was apprehended. On inquiry, he divulged his name as Budh Ram. There was no abadi in the vicinity and despite endeavours no independent witnesses could be joined in the investigation, as such, HHC Ajay Kumar and C. Ranjit Singh were associated as witnesses by ASI Naresh Chand. ASI Naresh Chand gave his personal search to the accused. Nothing was found in his possession. The backpack carried by accused was black in colour and bearing the words “The North Face”. It was checked and was found to be containing six packets sealed with ‘khaki’ coloured cello tape. When the packets were opened, these were found to be containing stick like charas wrapped in polythene. The charas was weighed and was found to be 28 kg. The charas and six packets were put in the bag from which they were recovered and the bag was wrapped in a piece of cloth. The bag was sealed with 12 impression of seal ‘T’. Seal impressions were taken separately on separate pieces of cloth. NCB form was filled in triplicate. Seal impression was obtained on NCB form and seal was handed over to HHC Ajay Kumar after its use. Parcel was taken into possession vide separate recovery memo in presence of the witnesses. The bag was sealed with 12 impression of seal ‘T’. Seal impressions were taken separately on separate pieces of cloth. NCB form was filled in triplicate. Seal impression was obtained on NCB form and seal was handed over to HHC Ajay Kumar after its use. Parcel was taken into possession vide separate recovery memo in presence of the witnesses. Rukka Ex.PW8/A was prepared on the spot and was sent to Police Station through HHC Ajay Kumar. SI Naresh Kumar prepared the site plan of the spot and recorded the statements of the witnesses as per their versions. HHC Ajay Kumar handed over rukka to ASI Daya Ram, who recorded the FIR and handed over the file to HHC Ajay Kumar. HHC Ajay Kumar met SI naresh Chand near Jeep Union at Patlikuhl and handed over the case file to him. Accused was arrested and a memo to this effect was prepared. Memo with respect to the personal search of the accused was also prepared. The case property along with NCB form in triplicate and seal impressions ‘T’ were handed over to ASI Daya Ram in police station for resealing. ASI Daya Ram resealed the parcel with six impressions of seal ‘S’. Samples of seal were taken separately on separate piece of cloth. ASI Daya Ram filled in column Nos. 9 to 11 of NCB form and put the seal impression on NCB form. Parcel, NCB form in triplicate, sample seals T and S were handed over to MHC Sher Singh, who made an entry at serial No. 616 in the register No.19 and deposited them in the Malkhana. He handed over the parcel, docket, copy of seizure memo, copy of FIR, NCB form in triplicate, sample seals ‘T’ and ‘S’ to HHC Gautam Chand and C. Om Prakash. On the same day, they carry these to FSL, Junga vide RC No.114/98 and deposited these at FSL on 11.8.2009 and handed over the receipt of deposit of case property in the office of FSL, Junga, to, MHC on their return to the police station. Special report was prepared and was handed over to Dy. S.P. Manali by H.C. Ramesh Kumar on 11.8.2009 at 5.05 p.m. Dy S.P. made his endorsement on the special report and handed over the report to HHC Sher Singh. HHC Sher Sinigh made an entry at Sr. No. in the register and filed it in record. 3. Special report was prepared and was handed over to Dy. S.P. Manali by H.C. Ramesh Kumar on 11.8.2009 at 5.05 p.m. Dy S.P. made his endorsement on the special report and handed over the report to HHC Sher Singh. HHC Sher Sinigh made an entry at Sr. No. in the register and filed it in record. 3. On conclusion of the investigation, into the offence, allegedly committed by the accused, report under Section 173 of the Code of Criminal Procedure was prepared and filed in the Court. 4. Accused was charged for his having committed an offence punishable under Section 20 (b) (ii) (c) of the ND & PS Act by the learned trial Court to which he pleaded not guilty and claimed trial. 5. In order to prove its case, the prosecution examined eight witnesses. On closure of prosecution evidence, the statement of accused, under Section 313 of the Code of Criminal Procedure, was recorded, in, which he pleaded innocence and chose to lead evidence in defence. The accused examined two defence witnesses. 6. On appraisal of the evidence on record, the learned trial Court, returned findings of conviction against the accused/appellant. 7. The accused/appellant is aggrieved by the judgment of conviction recorded by the learned trial Court. The learned defence counsel has concertedly, and, vigorously contended, that, the findings of conviction recorded by the learned trial Court are not based on a proper appreciation of the evidence on record, rather, they are sequelled by gross mis-appreciation of the material on record. Hence, he contends that the findings of conviction be reversed by this Court in the exercise of its appellate jurisdiction and be replaced by findings of acquittal. 8. On the other hand, the learned Additional Advocate General has with considerable force and vigour, contended that the findings of conviction recorded by the Court below are based on a mature and balanced appreciation of evidence on record and do not necessitate interference, rather merit vindication. 9. This Court with the able assistance of the learned counsel on either side, has, with studied care and incision, evaluated the entire evidence on record. 10. The first witness, who stepped into the witness box in proof of the prosecution case is PW-1, HHC Ajay Kumar, who in his deposition has deposed a version which is in square tandem with the genesis of the prosecution version as referred to hereinabove. 10. The first witness, who stepped into the witness box in proof of the prosecution case is PW-1, HHC Ajay Kumar, who in his deposition has deposed a version which is in square tandem with the genesis of the prosecution version as referred to hereinabove. In cross-examination, he has denied the suggestion that there are residential houses above and below the road near Parari Nullah. He has denied the suggestion that the accused was taken to Patlikuhl for the purpose of further inquiry. He further denied the suggestion that accused was taken to the residence of S.P. Kullu. He has denied the suggestion that he had not taken any rukka to the police station. 11. PW-4 HHC2, HHC Sher Singh deposes that the special report, Ex.PW2/A was handed over to Dy. S.P. Manali by ASI Naresh on 11.8.2009 at 5.05 p.m., and Dy. S.P. made his endorsement on it and thereafter he handed the report to him. He deposes that he made an entry at serial No.10 in the apposite register and copy thereof has been deposed by this witness to be Ex.PW2/B. In cross-examination he has denied the suggestion that no special report was received on 11.8.2009 at 5.05 p.m. 12. PW-3, C. Om Prakash deposes that, MHC Sher Singh handed over one parcel containing 28 kg of bhang, sealed with 12 impressions of seal ‘T” and six impressions of seal ‘S’ along with samples of seals T and S, docket, copy of recovery memo, copy of FIR and NCB form in triplicate vide R.C. No.144/2009 dated 10.8.2009 to him and HHC Gautam, on 10.8.2009 with the directions to carry these to FSL Junga for chemical analysis. He further deposes that he deposited the case property at FSL, Junga on 11.8.2009 along with HHC Gautam. He further deposes that on 13.8.2009 on their return, they handed over the receipt, the parcel and the result to the MHC. He further deposes that so long as the case property remained in their possession the same was not tampered with. 13. PW-4 MHC Sher Singh deposes that ASI Daya Ram handed over one parcel which was sealed with 12 impressions of seal ‘T’ and six impressions of seal S, NCB form in triplicate and sample seals T and S to him. He made an entry at serial No.616 in the register No.19. 13. PW-4 MHC Sher Singh deposes that ASI Daya Ram handed over one parcel which was sealed with 12 impressions of seal ‘T’ and six impressions of seal S, NCB form in triplicate and sample seals T and S to him. He made an entry at serial No.616 in the register No.19. The copy thereof has been deposed by this witness to be Ex.PW4/A. He further deposes that the aforementioned case property was handed over by him to HHC Gautam Chand and C. Om Prakash on the same day vide R.C. No.114/2009, Ex.PW4/B which has been deposed by this witness to be correct as per the original brought by him in Court. He further deposes that on 13.8.2009, they brought the parcel which was sealed with 13 impressions of FSL, result of analysis and the receipt on the RC and handed over to him. He further deposes that he deposited the parcel in Malkhana and placed the RC on record. He further deposes that he filled in the column No.12 of the NCB form Ex.PW4/C, prior to handing it over to HHC Gautam and C. Om Prakash. 14. PW-5 L.C. Nitu Sharma has proved copy of rapat No.2, dated 10.8.2009, Ex.PW5/A having been prepared by her. The same has been deposed by this witness to be bearing her signatures. 15. PW-6 SI Om Prakash deposes that on completion of the investigation and after receipt of the report of chemical examiner, Ex.PW6/A, on 30.8.2009, he prepared the challan in the case. 16. PW-7 ASI Daya Ram deposes that on receipt of rukka, he recorded FIR Ex.PW7/A. FIR Ex.PW7/A has been deposed by this witness to be bearing his signature. He further deposes that ASI Naresh Chand handed over to him one parcel sealed with 12 impressions of seal T, NCB form in triplicate and sample seal for the purposes of resealing. He deposes that he resealed the parcel with six impressions of seal S and handover the parcel, NCB form and sample seal to MHC Sher Singh. He further deposes that he filled in the column Nos. 9 to 11 of NCB form, Ex.PW4/C. In cross-examination he has denied the suggestion that no case property was deposited in the malkhana. He further denied the suggestion put to him that no NCB form was handed over by him to MHC. 17. He further deposes that he filled in the column Nos. 9 to 11 of NCB form, Ex.PW4/C. In cross-examination he has denied the suggestion that no case property was deposited in the malkhana. He further denied the suggestion put to him that no NCB form was handed over by him to MHC. 17. PW-8 ASI Naresh Chand, in his deposition has deposed a version which is in square tandem with the genesis of the prosecution version as referred to hereinabove as also in corroboration to the testimony rendered by PW-1 HHC Ajay Kumar. In his cross-examination, he has denied the suggestion that the tents of Budh Ram, Kalu Ram and Ram Nath were pitched at the spot. He has also denied the suggestion that these persons were slipping in their tents. He has denied the suggestion that when the backpack was opened, it was having green chillies in the upper layer. He has denied the suggestion that S.P. Kullu directed him to prepare the case against the accused. He has denied the suggestion that the accused was taken to PP Patlikuhl or that the whole case was made at Patlikuhl. He has denied the suggestion that the accused was taken to Manali Police Station. He has denied the suggestion that he had asked the witnesses to remain present at Parari Nullah to become the witnesses but they refused. He deposes that the investigation was carried out in the vehicle and the accused was taken to the vehicle after his apprehension. He has denied the suggestion that no rukka was sent from the spot. He has denied the suggestion that a false case has been made out against the accused. 18. The prosecution story, is, encapsulated in the firm, forthright and unequivocal deposition of ASI Naresh Chand, PW-8, who in categorical and unequivocal terms has corroborated the genesis of the prosecution story referred to hereinabove. During his cross-examination by the learned defence counsel, he remained unscathed. His having remained unscathed, during the ordeal of his inexorable cross-examination renders his deposition, to be both credible as well as inspiring. His deposition has come to be corroborated by the deposition of PW-1 HHC Ajay Kumar, PW-1. During his cross-examination by the learned defence counsel, he remained unscathed. His having remained unscathed, during the ordeal of his inexorable cross-examination renders his deposition, to be both credible as well as inspiring. His deposition has come to be corroborated by the deposition of PW-1 HHC Ajay Kumar, PW-1. A combined reading of the depositions of both PW-1 HHC Ajay Kumar and ASI Naresh Chand, PW-8, do not on their incisive and close reading either unearth or unravel the existence of any magnified or accentuated contradictions either inter se or intra se which would render their testimonies to be lacking in veracity or trustworthiness. Consequently, hence, their testimonies are to be construed to be credible qua the facts as deposed by each of them in respect of the place and manner in which the contraband was recovered from the purported conscious and exclusive possession of the accused. The entire apposite evidence on record from the stage of commencement of the proceedings till the consummate link comprised in the rendition of an opinion by the FSL, Junga, on the specimen parcels sent to it for analysis, portrays proof of un-broken and un-severed links, in, the entire chain of the circumstances. 19. A thorough scrutiny and rummaging of the entire material on record, straightway with aplomb constrains a conclusion that the depositions of the official witnesses while not unearthing any inter se or intra se material contradictions qua the genesis of the prosecution case, hence, are both credible as well as inspiring. Moreover, the prosecution has been able to prove each of the links in the chain of circumstances connecting the accused in the commission of the offence alleged, inasmuch as it has proved by leading cogent and convincing evidence the initial link qua search, seizure and recovery of the contraband from the exclusive and conscious possession of the accused, besides has come to prove each of the subsequent links, comprised in the resealing of the case property and its deposit in the Malkhana and its transmission to FSL, Junga, for rendition of an opinion by it, moreover has proved the consummate link comprised in the report of the FSL divulging the material sent for its examination being charas. Therefore, proof of the each of the links in the chain of circumstances led the learned trial Court to form the sequelling inference that the prosecution has discharged its onus in proving the guilt of the accused beyond all reasonable doubt. 20. However, the learned counsel appearing for the accused/appellant has urged with fervor and vigour before this Court that the omission on the part of the Investigating Officer to join independent witnesses in the proceedings relating to search, seizure and recovery of the contraband from the exclusive and conscious possession of the accused, renders the prosecution case vulnerable to skepticism. However, the said contention carries no weight. It is bereft of vigour in the face of a statement emanating in the deposition of HHC Ajay Kumar, PW-1, that he had proceeded to summon independent witnesses yet dogs chased him which constrained him to run away. In the face of a plausible explanation having emanated in the depositions of PW-1 and PW-8 qua the non-joining of the independent witnesses, hence, the non joining of the independent witnesses cannot be construed to be lending any fatality to the prosecution version. Moreover, what adds weight to the conclusion that there was no deliberateness in the investigating officer having omitted to join independent witnesses is comprised in the fact that the entire proceedings took place in the wee hours of the morning which obviously is to be concluded to have hampered or deterred not only the investigating officer to make concerted efforts to join independent witnesses, rather the wee hours of the morning can also be inferred to be an inappropriate time or its having acted as a deterrent to the inhabitants residing in the vicinity of the site of occurrence to lend themselves for being associated in the apposite proceedings. Besides when it has not been proved that it was a case of prior information in which event the Investigating Officer may have been entailed with an obligation to, before proceeding to carry out the apposite proceedings at the site of occurrence while having an opportunity to do so, to associate or to solicit the presence of the independent witnesses, yet when, hence, it is not a case of prior information, rather it being a chance recovery and that too in the wee hours of the morning, the incapacitation of the Investigating Officer sequeled by the aforesaid discussion, cannot at all be construed to be lending any spur to the conclusion that, hence, his omission to join independent witnesses was either intentional or deliberate, so as to colour the prosecution case with the tinge of fatality. 21. The learned counsel appearing for the accused/appellant with fervor before this Court urged that the prosecution case is ridden with discrepancies as well as there are inter se and intra se contradictions in the depositions of the prosecution witnesses, inasmuch as (a) it has been divulged in the rukka that the accused was stopped when the police officials went near the accused, while PW-1 in his cross-examination stated that the accused stopped when the search light was switched on and the police officials had not stopped the accused and (b) PW-8 ASI Naresh Chand stated that the accused was taken to the vehicle after apprehending him and the personal search was given after five minutes of bringing the accused to the vehicle, hence when HHC Ajay Kumar is demonstrated to have returned after about 20 minutes, it is enigmatic when further the signatures of HHC Ajay Kumar are appearing on Ex.PW1/A whether he was present in the apposite proceedings or it stems a conclusion that the proceedings are invented or concocted and (c) PW-8 ASI Naresh Chand having deposed in his cross-examination that the police party had reached the spot at 1.45 p.m. and seizure memo was prepared at 4.30 P.M. is in contradiction to the prosecution case of the recovery having been effected in the morning. 22. 22. Initially while dealing with the purported contradiction inter se the rukka and the deposition on oath of PW-1 in his cross-examination, of both contrarily stating, inasmuch as when it is recorded in the rukka of the accused having stopped when the police officials went near him, whereas PW-1 having deposed that the accused stopped when the search lights were flashed on him, is too minimal and negligible a contradiction, to in any manner usurp the genesis of the prosecution case, obviously it necessitates its being discarded as tenably done by the learned trial Court. The contradictions as portrayed by the learned counsel appearing for the appellant/accused occurring hereinabove at serial No. (b) too are highly insignificant, they are neither stark nor blatant, so as to render the prosecution case untruthful, inasmuch as given the fact that the prosecution witnesses had entered into the witness box after some time had elapsed since the occurrence took place hence, their memory having come to fade, consequently theirs having omitted to with precision and exactitude in time, elaborate the time of apprehension of the accused and his personal search having been carried out, as also theirs having omitted to narrate with exactitude of time of arrival of HHC Ajay Kumar on the spot, is not fatal, as for reiteration such omissions with exactitude and precision in timing qua the aforesaid facts are attributable to fading of memory, especially when they face a lengthy cross-examination, wherein some contradictions are likely to occur. Even, the submission occurring at serial No. (c) hereinabove addressed before this Court by the learned counsel appearing for the accused for rendering the prosecution version to be tainted, is inconsequential inasmuch given the fact that when PW-8 in his examination-in-chief has been categorical qua the police officials being present at the site of occurrence at 2.30 a.m., hence his deposition in his cross-examination unraveling the fact of the seizure memo having been prepared at 4.30 p.m. can be attributable to be arising from fading of the memory or arising from the time lapse since the occurrence and his deposition in Court besides his having suffered a lengthy cross-examination, wherein there is every likelihood of his rendering an erroneous deposition qua time on which no capital can be made by the defence, especially when stroke ‘PM’ occurring after 4.30, appears to be over written, inasmuch as stroke ‘P’ appears to have been substituted by stroke ‘A’, sequelling, a conclusion that the said error in the time of the preparation of seizure memo as deposed by PW-8 is occasioned by typographical mistake, hence is inconsequential . 23. The learned counsel appearing for the accused/appellant has drawn the attention of this Court to Ex. D-3, which portrays the fact of the police party having proceeded to Parari Nalla from Patlikuhl and thereafter to Kullu and Manali. Consequently, he urges before this Court that the occurrence took place somewhere else other than the place alleged. This contention of the learned counsel appearing for the accused does not carry any vigour and force in the face of the fact that when the evidence as comprised in the depositions of the officials witnesses does not suffer from any vice of inter se or intra se contradictions, hence, acquires tenacity as well as is inspiring, as also then does not detract hence the efficacy of their depositions qua the prosecution version. Besides consequently when the proceedings came to be, hence, concluded at the site of occurrence, the movement of the police officials from Parari Nala to Patlikuhl and thereafter to Kullu and Manali does not overwhelm of the fact of proceedings having not concluded at the site of occurrence or theirs having been concluded somewhere else other than the place alleged. 24. 24. Lastly, the learned counsel appearing for the accused/appellant has contended before this court that for the omission on the part of the prosecution to bring on record the communication number of the file or the reference number under which the case property was transmitted to FSL, Junga for rendition of its opinion, the ultimate opinion rendered by the FSL on the items/stuff sent for its analysis and consequent opinion does not match with the case property or with the case property as recovered from the alleged conscious and exclusive possessions of the accused at the site of occurrence. However, the said omission on the part of the prosecution is of no consequence, rather wanes in the face of (a) it having emanated on a perusal of the FSL report that the examiner concerned tallied before proceeding to analyze the contraband sent for analysis, the seal impressions as existing on NCB form with the seal impressions on the parcels containing the charas, rather generates an inference that the contraband as recovered from the exclusive and conscious possession of the accused at the site of occurrence wherefrom the sample parcels were separated and sent for analysis were the very same sample parcels, as such, the opinion rendered by the FSL conveying the stuff examined to be charas sequels a conclusion that the opinion rendered by the FSL connects the accused with the alleged recovery and (b) it having been proved by the depositions of HHC Gautam and C. Om Prakash, with whom the sample parcels were sent to FSL, Junga for obtaining a report/opinion thereupon, of both the aforesaid police officials after having deposited the same in the FSL, Junga on 11.8.2009, they on their return having handed over the receipt to the MHC, the parcel and the opinion thereto, besides when they have identified the case property in Court to be the same, constitutes corroborative evidence qua the fact of opinion by the FSL, Junga, having been rendered on the case property as recovered from the conscious and exclusive possession of the accused at the site of occurrence. Moreover, there being no evidence that the case property as was carried by the police officials was other than the charas as was recovered from the site of occurrence from the exclusive and conscious possession of the accused nor when it has been demonstrated by leading cogent evidence that besides the case property other case property was also one sent for analysis through the police personnel. Consequently, cumulatively a firm conclusion can be formed that given the identification of the case property in Court by both the police personnel, who carried it to FSL, Junga for rendition of opinion on it by FSL and returned subsequent day with the opinion rendered on it by the FSL, negates the contention that the opinion of the FSL, Junga was rendered on case property other than the case property which was sent to it for rendition of an opinion. 25. In aftermath, this Court concludes that there is convincing, forceful and in-discrepant evidence on record comprised in the credible deposition of the official witnesses, as such, the findings of conviction recorded by the learned trial Court below are well merited and do not deserve any interference from this Court. Accordingly, the appeal is dismissed and the judgment of the learned trial Court is affirmed and maintained.