Research › Search › Judgment

Himachal Pradesh High Court · body

2014 DIGILAW 1656 (HP)

State of H. P. v. Rajesh Kumar

2014-11-17

RAJIV SHARMA, SURESHWAR THAKUR

body2014
JUDGMENT : Sureshwar Thakur, J. 1. The instant appeal is directed by the State of H.P. against the impugned judgment rendered on 1.12.2012 by the learned Special Judge (Fast Track Court), Mandi in Sessions trial No. 42 of 2009, whereby, the learned trial Court acquitted the accused/respondents of theirs having allegedly committed the offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the NDPS Act). 2. Brief facts of the case are that on 10.01.2009, Inspector/Incharge SIU Mandi along with HHC Padam Singh, H.C. Prem Lal, left the office in Government vehicle No.HP-33-6202 being driven by Lalman and on a motor cycle No.HP-33B-0199 in connection with Nakabandi and were present at Dyodh Mod near Pandoh dam. The police party intercepted a Tata Sumo bearing registration No. HP-33E-0508 being driven by accused Rajesh Kumar and accused Sanjay Kumar was occupying the front seat by the side of the driver and accused Satish Kumar was occupying the seat on the back of the driver. Accused Rajesh Kumar, Sanjay Kumar and Satish Kumar were apprised of their legal rights to be searched either before Magistrate or Gazetted Officer vide memo Ex.PW4/A, Ex.PW4/B and Ex.PW4/C in the presence of the witnesses and the accused persons gave in writing that they are willing to be searched by the police. The photographs of the vehicle and of the accused were also taken by the Investigating Officer through official camera. The police party checked the vehicle and one packet was recovered from the right side of the dash board and two packets were recovered from the left side of the dash board of the vehicle which were wrapped with khaki tape and the three packets which were found in the possession of Rajesh Kumar accused 1 kg 400 grams charas was recovered and two samples of 25-25 grams were drawn from these packets which were separately packed and sealed with 7 seals of 'D' and the bulk charas of one Kg 350 grams was also sealed with 7 seals of 'D', whereas on the personal search of accused Sanjay Kumar, two packets were found to be tied on his left leg and two packets were found to be tied on his right leg. These packets were opened and they were found to be containing black colour material in the shape of sticks and balls and on weighment, it was found to be 2 kgs out of which two samples of 25 grams each were drawn which were separately packed and sealed and the bulk charas 1 kg 950 grams were also sealed with seal 'D' at 7 places. On search of the black and green colour bag which was kept by accused Satish Kumar on left side of the seat, three packets wrapped with khakhi colour tape were recovered, which were opened and found containing black colour charas in the shape of sticks and balls. On weighment, it was found to be containing 2 kgs charas. Two samples of 25 grams each were drawn from the recovered charas and the samples of charas separately packed and sealed with seal 'D' at 7 places. NCB forms in triplicate were filled in by Sh. Jaishi Ram, Investigating Officer upon which seal impression "D' was embossed and sample seal was taken on cloth. The vehicle was also taken into possession. Ruqua was scribed and sent to police station through HHC Padam Singh for registration of FIR and the Investigating Officer prepared site plan, recorded statements of the witnesses and has given notice of arrest of the accused and information of the arrest was given to the persons as desired by the accused. On coming to the police station the case property was handed over along with NCB forms to the then SHO Haripal Saini for resealing, who resealed the case property with seal 'N' by affixing three seals on each parcel and prepared the reseal memo Ex.PW 1/C and the specimen of seal also affixed on NCB forms and deposited the case property with MHC Nand Lal and he made the entry in the Malkhana register. On 12.1.2009, the case property was sent through PW-6 Nikka Ram for depositing in the office of FSL, Junga, who deposited the case property and handed over the receipt to the MHC. As per the report of the FSL Junga, Ex. P-6, the entire mass of the exhibit marked as A-1, B-1 and C-1 is a mixture of cannabis and the sample of charas. 3. As per the report of the FSL Junga, Ex. P-6, the entire mass of the exhibit marked as A-1, B-1 and C-1 is a mixture of cannabis and the sample of charas. 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 were charged for theirs having committed an offence punishable under Section 20 of the NDPS Act by the learned trial Court to which they pleaded not guilty and claimed trial. 5. In order to prove its case, the prosecution examined twelve witnesses. On closure of prosecution evidence, the statement of accused, under Section 313 of the Code of Criminal Procedure was recorded in which they pleaded innocence and chose to lead no evidence in defence. 6. On appraisal of the evidence on record, the learned trial Court, returned findings of acquittal against the accused/respondents. 7. The State of H.P. is aggrieved by the judgment of acquittal recorded by the learned trial Court. The learned Assistant Advocate General has concertedly and vigorously contended that the findings of acquittal recorded by the learned trial Court are not based on a proper appreciation of evidence on record, rather, they are sequelled by gross mis-appreciation of the material on record. Hence, he contends that the findings of acquittal be reversed by this Court in the exercise of its appellate jurisdiction and be replaced by findings of conviction. 8. On the other hand, the learned counsel appearing for the accused/respondents has with considerable force and vigour, contended that the findings of acquittal 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 Inspector Hari Paul Saini, who in his deposition deposes that on 10.1.2009 on receiving ruka Ex.PW1/A through HHC Padam Singh in Police Station, Sadar Mandi, recorded FIR Ex.PW1/B which bears his signatures. 10. The first witness, who, stepped into the witness box in proof of the prosecution case is PW-1 Inspector Hari Paul Saini, who in his deposition deposes that on 10.1.2009 on receiving ruka Ex.PW1/A through HHC Padam Singh in Police Station, Sadar Mandi, recorded FIR Ex.PW1/B which bears his signatures. He further deposes that on the evening of 10.1.2009, Inspector Jaishi Ram handed over the case property to him which was resealed by him with seal bearing impression 'N'. He proceed to depose that he prepared memo Ex.PW1/C qua the factum of resealing of the case property. He deposes that facsimile of seal was also affixed on NCB forms and also filled in the relevant columns of these forms. He further deposes that he deposited the case property along with NCB form and other relevant documents with MHC. NCB forms have been deposed by this witness to be Ex.PW1/D to Ex.PW1/F. He further deposes that on receipt of report of FSL, Ex.PX, he prepared the challan in this case and presented the same in the Court. In his cross-examination, he deposes that only samples were sent to the laboratory and bulk parcels have not been sent to the laboratory. 11. PW-2 H.C. Ramesh Chand deposes that on 12.1.2009 at about 10.45 a.m., he handed over the special report of this case to the then Addl. S.P., Mandi Sh. Mandan Lal. 12. PW-3 HHC Padam Singh in his deposition has deposed a version which is in square tandem with the genesis of the prosecution version as referred to here-in-above. In his cross-examination he deposes that after leaving the police station they first set up naka at Bindrabani and stayed there till 3.30 p.m. He further deposes that they left police station at about 9.00 a.m and remained at Bindrabani from 9.00 a.m. till 3.30 p.m. He proceeds to depose that after leaving Bindrabandi, they straightway had gone to the place of Naka at Dyodh-Mod. He deposes that distance of place of naka from Pandoh dam is about 3-4 kilometers. 13. PW-4 HC Prem Pal in his deposition has deposed a version which in square tandem with the genesis of the prosecution version as also in corroboration to the deposition of PW-3. He deposes that distance of place of naka from Pandoh dam is about 3-4 kilometers. 13. PW-4 HC Prem Pal in his deposition has deposed a version which in square tandem with the genesis of the prosecution version as also in corroboration to the deposition of PW-3. In his cross-examination he deposes that they left police station at 9.00 a.m. They reached at Dyodh mod at 4.15 p.m. Distance of Dyodh from police station is about 20 kilometers. He further deposes that pandoh dam is at a distance of 2 kilometers from the place of Naka. He further deposes that he does not know whether the parcels were already stitched or they were prepared by the IO, on the spot. He further deposes that during the carrying out of the proceedings, the accused remained outside the vehicle and they were sitting on the parapet under the supervision of the police. He proceeds to depose that the entire proceedings were carried out by sitting on parapet. He further deposes that the driver was called on the spot to bring the vehicle of the accused to the police station but he does not remember the name of that driver. He further deposes that the accused were brought to the police station in the police van and the policy party came in the vehicle of the accused but he does not remember the name of the police officials who came to the police station in the vehicle of the accused. 14. PW-5 H.C. Hoshiar Singh deposes that the vehicle No. HR-33E-0508 was handed over to Pawan Kumar along with R.C. and key on supurdari vide memo Ex.PW5/A in his presence. 15. PW-6 H.C. Nikka Ram deposes that on 12.1.2009, MHC Nand Lal handed over to him three parcels sealed with 7 seals of "D" and three seals of "N" each stated to be containing 25 grams cannabis each vide R.C. No.386/08-09 along with documents i.e NCB form in triplicate and samples of seals D and N, copy of FIR and seizure memo for being taken to FSL, Junga. He further deposes that on that date, he deposited the above case property in the laboratory and obtained receipt on the R.C. which he handed over to MHC on his return. 16. PW-7 H.C. Lachhman Dass deposes that on 12.1.2009, the then Addl. He further deposes that on that date, he deposited the above case property in the laboratory and obtained receipt on the R.C. which he handed over to MHC on his return. 16. PW-7 H.C. Lachhman Dass deposes that on 12.1.2009, the then Addl. S.P. Madan Lal handed over to him special report of case FIR No.11/09, P.S. Sadar Mandi for being kept in the record and he made entry in the special report register at serial No.2. Abstract of special report register has been deposed by this witness to be Ex.PW7/A. Copy of special report has been deposed by this witness to be Ex.PW7/B. 17. PW-8 HHC Manoj Kumar and PW-9 HHC Yakub Khan have proved the copies of rapat No.3, dated 10.1.2009, Ex.PW8/A and rapat No.45, 10.01.2009, Ex.PW9/A respectively. 18. PW-10 HHC Nand Lal deposes that on 10.01.2009, Inspector/SHO Hari Pal Saini deposited with him sample parcels and parcels of bulk charas sealed with seals N and D along with NCB forms, samples of seals and other documents. He deposes that on 12.01.2009, sample parcels marked as Mark A-1, B-1 and C-1 were forwarded to the laboratory through HHC Nikka Ram along with NCB form, samples seals D and N and seizure memo vide R.C. No.386/08/09, who after depositing the parcels returned the R.C., along-with receipt to him. Copy of R.C. has been deposed by this witness to be Ex.PW10/B. He proceeds to depose that on 26.06.2009, the remaining case property was forwarded to the laboratory through HHC Thakur Singh vide R.C. No.97/09, who after depositing the case property in the laboratory returned the R.C. to him. Copy of the R.C. and abstract of Malkhana register have been deposed by this witness to be Ex.PW10/C and Ex.PW10/D respectively. 19. PW-11 SI Rishi Raj deposes that in pursuant to the identification of the spot by accused Sanjay Kumar on 12.01.2009, he prepared site plan Ex.PW11/A. He further deposes that he recorded the statement, Ex.PW11/B of Nikka Ram. 20. PW-12 Jaisi Ram in his deposition has deposed a version which is in square tandem with the genesis of the prosecution version as referred to here-in-above as also in corroboration with the depositions of PW-3 and PW-4. In his cross-examination he deposes that they started from SIU Office at 9.00 a.m., and reached at Dyodh mod directly. 20. PW-12 Jaisi Ram in his deposition has deposed a version which is in square tandem with the genesis of the prosecution version as referred to here-in-above as also in corroboration with the depositions of PW-3 and PW-4. In his cross-examination he deposes that they started from SIU Office at 9.00 a.m., and reached at Dyodh mod directly. He further deposes that forest check post Bindrawani falls in between their office and Dyodh Mod. He further deposes that Dyodh mod is at a distance of two kilometers from Pandoh Dam. They reached at Dyodh mod at 10.00 a.m. He further deposes that there is an office of the security at Pandoh dam where persons remain 24 hours. He admitted the suggestion that ahead of Pandoh dam there are 3-4 shops. He further deposes that rukka was given to H.C. Padam Singh at 6.30 p.m. and Padam Singh went in private vehicle to police station and he did not use the official motor cycle and car. He proceeds to depose that while carrying out the proceedings, some of the accused were in their own vehicle and some were in police vehicle. He further deposes that accused Rajesh and Sanjay were sitting in their own vehicle whereas accused Satish was in the police vehicle. He proceeds to depose that accused Sanjay and Rajesh were brought in their vehicle which was being driven by their driver Lalman, whereas their vehicle was being driven by HHC Ramesh Kumar, accused Satish was brought in that vehicle. 21. The alleged occurrence took place on 10.01.2009 at Dyodh Mod. At the place aforesaid, the police intercepted a tata sumo bearing No. HP-33E-0508. The vehicle aforesaid, at the relevant time was driven by accused Rajesh Kumar, whereas, accused Sanjay Kumar was occupying the front seat adjoining the driver seat and accused Satish Kumar was occupying the seat on the rear of the driver. The prosecution on the strength of the credible testimonies of the police witnesses which while, hence, inspiring confidence, as also, being trustworthy concerts to attain success. However, reinforced credibility would be imputed to the testimonies of the prosecution witnesses in case they are bereft of any stark or dire inter se or intra se contradictions. The prosecution on the strength of the credible testimonies of the police witnesses which while, hence, inspiring confidence, as also, being trustworthy concerts to attain success. However, reinforced credibility would be imputed to the testimonies of the prosecution witnesses in case they are bereft of any stark or dire inter se or intra se contradictions. However, in case their testimonies suffer from the blemish or vice of inter se or intra se contradictions, the testimonies of the official witnesses would acquire the taint of prevarication, as such, squealing a jolt to the prosecution case. 22. For determining, whether the prosecution witnesses have deposed in harmony with each other and, as such, their testimonies are to be construed to be both trustworthy as well as inspiring, it is necessary to advert to certain pre-eminent facts as unfolded in the depositions of PW-12, PW-3 and PW-4. An advertence to the un-foldment by the prosecution witnesses aforesaid rather conveys the existence of dire and blatant intra se contradictions in their testimonies which contradictions, hence, erode the efficacy of the prosecution case. The unfoldment by PW-12 Jaishi Ram in his deposition of the police party having started from SIU office at 9 a.m., and having reached the site of occurrence at 10 a.m., stands contradicted by the testimony of PW-3 HHC Padam Singh, who deposed that the police party had departed from the police station at 9 a.m., however, they prior to their arriving at the site of occurrence, had till 3.30 p.m. laid a naka at Bindribani. The deposition of PW-3 stands corroborated by PW-4 H.C. Prem Pal. However, both PW-3 Padam Singh and PW-4 Prem Pal, hence, blatantly contradict the deposition of PW-12 Jaishi Ram qua the time of arrival of the police at the site of occurrence, inasmuch as though PW-12 Jaishi Ram deposes that the police party had reached at the site of occurrence at 10 a.m., whereas PW-3 and PW4 have deposed that they had arrived at the site of occurrence in the later hours of the afternoon. This contradiction qua the time of arrival of the police party at the site of occurrence existing in the testimonies of PW-12, PW-3 and PW-4 underscores the factum of the proceedings relating to search, seizure and recovery of contraband from the alleged exclusive and conscious possession of the accused having been effected at a time when, hence, all PWs were not simultaneously present at the site of occurrence. In other words, it dispels the factum of the simultaneous presence of PWs at the site of occurrence. As a concomitant, it also erodes and undermines the efficacy of the prosecution version of the entire proceedings having commenced at the site of occurrence at 9.00 a.m., as a corollary then the inevitable conclusion which is filliped is that the proceedings relating to search, seizure and recovery of contraband from the purported exclusive and conscious possession of the accused were effected at a place other than as propounded by the prosecution. The learned trial Court in having imputed significance to the factum of the existence of the aforesaid contradictions and it having concluded that they constituted major contradictions rendering, hence, the prosecution version to be unbelievable cannot be obviously concluded to have mis-appreciated their significance thereto or having committed a legal mis- demeanor. Moreover, the further unfoldment of stark intra se contradictions in the testimonies of PW-12 and PW-4, inasmuch as PW-4 having deposed that the accused was brought to the police station in the police van, whereas the police party travelled in the vehicle of the accused, whereas PW-12 in his cross-examination having deposed that both accused Sanjay Kumar and Rajesh Kumar were brought in their vehicle i.e. tata sumo which was driven by the police driver Lalman and accused Satish Kumar was brought in the police vehicle driven by HHC Ramesh Kumar, devolves upon the factum of the manner of accused having been brought to the police station. The contradictory manner in which both PW-12 and PW-4 have deposed qua the manner in which the accused were brought to the police station obviously begets an inference that both PW-4 and PW-12 were not simultaneously present at the site of occurrence, besides it also boost an inference that the accused were not simultaneously nabbed by the police as propounded by the prosecution. 23. 23. It is in the face of the existence of stark contradictions in the testimonies of PWs as highlighted here-in-above that the necessity or significance qua association of independent witnesses by the police, arises. However, fatality to the prosecution for non association of independent witnesses would occur only in the event of palpable evidence existing on record displaying or marking the factum of availability of independent witnesses in the vicinity of the site of occurrence. Only in the face of imminent evidence existing on record marking the factum of availability of independent witnesses that lack of concert by the Investigating Officer or lack of efforts on his part to associate them in the proceedings relating to search, seizure and recovery would fasten prevarication to the prosecution case. For determining whether evidence exists on record displaying the availability of independent witnesses in the vicinity of the site of occurrence, an advertence to the testimony of PW-12 Jaishi Ram is apt. The witness aforesaid in his testimony has voiced the factum of existence of office of security at Pandoh Dam situated within two kilometers from the site of occurrence. Now given the uncontroverted fact of the existence of the office of security at Pandoh Dam at a distance of two kilometers from the site of occurrence as also when the said fact entwined with the fact of availability of vehicle with the police to travel to solicit the joining of the personnel manning the security office, the palpable absence of concerted efforts on the part of the Investigating Officer to solicit the joining of the personnel manning the security office at Pandoh Dam, located at a distance of two kilometers from the site of occurrence, personifies that their association was not solicited by the Investigating Officer, despite theirs being available as he intended to smother the truth qua the genesis of the prosecution case. Therefore, in the face of the conclusion drawn here-in-above by this Court that the testimonies of the official witnesses do not for existence of intra se contradictions in their respective testimonies inspire the confidence of this Court, the palpable inertia as well as indolence on the part of the Investigating Officer despite availability to associate independent witnesses at the site of occurrence, assumes importance, inasmuch as their non association aggravates the magnitude of the prevarication resorted to by the Investigating Officer or portrays that the Investigating Officer omitted to associate them as he was carrying out a slanted or tainted investigation. Therefore, the slanted and tainted investigating as carried out by the Investigating Officer fastens fatality to the prosecution case, rendering it unbelievable. 24. Furthermore, PW-10 HHC Nand Lal, the then MHC with whom the case property was deposited by the Investigating Officer has deposed that on 12.1.2009 sample parcels marked as Mark A1, B1 and C1 were forwarded to the Laboratory through PW-6 Nikka Ram along with NCB form, sample seals 'D' and 'N' and seizure memo vide R.C. No.386/08/09, besides PW-10 has also proceeded to depose that on 26.6.2009, the remaining case property was forwarded to the laboratory through HHC Thakur Singh vide R.C. No.97/09 who after depositing the case property in the laboratory concerned returned the R.C. However, HHC Thakur Singh, who carried the remaining case property to the laboratory for analysis subsequent to the prior dispatch of the sample parcels, has remained not associated by the Investigating Officer in the investigation carried out by him. Obviously, HHC Tahkur Singh also did not step into the witness box to support the prosecution case qua the factum as deposed by PW-10 of his having handed over to the former on 26.6.2009 the remaining bulk parcel for rendition of an opinion by the Chemical Analyst. Obviously, HHC Tahkur Singh also did not step into the witness box to support the prosecution case qua the factum as deposed by PW-10 of his having handed over to the former on 26.6.2009 the remaining bulk parcel for rendition of an opinion by the Chemical Analyst. His non association by the Investigating Officer in the investigation carried out by him, as also, his not stepping into the witnesses box would have obviated an inference of tampering with the case property, as a corollary, his then having remained omitted to be associated in the investigation by the Investigating Officer and consequently when he omitted to step into the witness box, aggravates an inference that the case property as carried out by him to the laboratory concerned may have been tampered with or was some case property other than one attributed to the accused. With the formation of the inference aforesaid, the squealing effect is that, hence, even the samples sent for rendition of an opinion to the Chemical Analyst may have not been extracted from the bulk sent through HHC Thakur Singh for analysis to the Chemical Analyst, rather may have been extracted from some other case property. In aftermath, the deduction which ensues is that the opinion rendered by the Chemical Analyst on samples sent to it for analysis may not be, hence, relatable to the bulk as recovered at the site of occurrence from the purported conscious and exclusive possession of the accused. 25. On an incisive and thorough scanning of the evidence on record comprised in the testimonies of the official witnesses which suffer from the taint of stark and blatant intra se contradictions, the prosecution case, hence, suffers a jolt. Moreover, the factum of non association of the independent witnesses by the Investigating Officer in the investigation despite their availability especially when the depositions of the prosecution witnesses suffer erosion for the reasons aforesaid, dispels the truth of the genesis of the prosecution case, apart there from the analysis of the material on record by the learned trial Court does not suffer from any perversity or absurdity of mis-appreciation and non appreciation of the evidence on record, rather it has aptly appreciated the material available on record. 26. For the foregoing reasons, the appeal is dismissed and the judgment of the learned trial Court is affirmed and maintained. Records be sent back forth with.