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Himachal Pradesh High Court · body

2014 DIGILAW 601 (HP)

Nan Ram v. State of Himachal Pradesh

2014-05-20

RAJIV SHARMA, SURESHWAR THAKUR

body2014
Judgment Sureshwar Thakur, J. The instant appeal is directed against the judgment of the learned Special Judge, Fast Track Court, Kullu, dated 23.01.2008 rendered in Sessions trial No. 24/2007, whereby, the learned trial Court convicted the accused for his having allegedly committed the offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as “Act”) and sentenced him to undergo rigorous imprisonment for ten years and to pay a fine of Rs.1,00,000/- and in default of payment of fine, sentenced him to suffer simple imprisonment for one year. 2. The facts relevant to decide the instant case are that on 11.11.2006 PW-5 S.I. Ram Karan alongwith H.C. Rajender, Constable Dalip Kumar, Constable Om Chand, Constable Guddu Ram and Constable Hem Raj were present near Fagu-pul at 6.00 a.m., where a naka was laid. One person was sighted to be coming from the jungle side. He was observed to be carrying a bag in the right hand. On his sighting the police, he is alleged to have attempted to conceal himself behind the pine tree. PW-5 S.I. Ram Karan directed H.C. Rajender Singh and constable Om Chand to encircle the said person. Hence, the said person threw the bag on the ground and fled away. He was chased by H.C. Rajender and C. Om Chand. On being chased he was nabbed. Constable Dalip Kumar lifted the bag and brought the same to the road side. The person was interrogated and he disclosed his name Nan Ram. He also disclosed that he was residing at Theog. The bag was blue in colour. On inspection and search, it was found to contain charas in the shape of sticks and balls. The outer pocket of the bag was also checked and it was found containing passport and Identity card of the accused. The recovered charas was weighed and it was found to be three kilograms. Two samples of charas, 20 grams each were separated from the recovered charas and were sealed in separate parcel. Each parcel was sealed with seal impression ‘T’. The samples of seal impression ‘T’ were obtained separately on a piece of cloth Ex.PD. Columns No.1 to 8 of NCB form in triplicate were filled in on the spot, comprised in Ex. PL. The seal after use was handed over to H.C. Rajender. Each parcel was sealed with seal impression ‘T’. The samples of seal impression ‘T’ were obtained separately on a piece of cloth Ex.PD. Columns No.1 to 8 of NCB form in triplicate were filled in on the spot, comprised in Ex. PL. The seal after use was handed over to H.C. Rajender. Three sealed parcels containing charas, identity card (Ex.P-2) and passport (Ex.P1) were taken into possession under seizure memo Ex. PA. Search and seizure memo Ex. PB was signed by H.C. Rajender Singh and C. Om Chand, as well as by the accused. Rukka, Ex.PM was prepared on the spot, which was sent to the police station, Banjar for registration of FIR through H.C. Rajender Singh. Site plan of the place of occurrence is comprised in Ex. PN. The accused was arrested under memo Ex. PO. Seized articles were deposited in the malkhana with MHC Chaman Lal. On obtaining report of FSL, comprised in Ex. PR and on conclusion of the investigation, into the offences, allegedly committed by the accused, report under Section 173 of the Code of Criminal Procedure was prepared and filed in the Court. 3. Accused was charged for his having committed an offence under Section 20 of the Narcotic Drugs and Psychotropic Substances Act by the learned trial Court. In proof of the prosecution case, the prosecution examined 5 witnesses. On conclusion of recording of the prosecution evidence, the statement of the accused under Section 313 of the Code of Criminal Procedure was recorded by the Court, in which the accused claimed innocence and pleaded false implication in the case. 4. On appraisal of the evidence on record, the learned trial Court convicted and sentenced the accused. 5. We have heard the learned counsel appearing for either side. 6. This Court has also traversed through the entire material evidence available on record. It is apparent from a reading of the testimonies of PW-1 H.C. Rajender Singh and PW-5 SI Ram Karan that at the apposite time, besides PW-1 H.C. Rajender Singh and PW5 SI Ram Karan, C. Om Chand, C. Guddu Ram, C. Dalip Kumar and C. Hem Raj were present at the site of occurrence. It is apparent from a reading of the testimonies of PW-1 H.C. Rajender Singh and PW-5 SI Ram Karan that at the apposite time, besides PW-1 H.C. Rajender Singh and PW5 SI Ram Karan, C. Om Chand, C. Guddu Ram, C. Dalip Kumar and C. Hem Raj were present at the site of occurrence. The accused, though, had tried to conceal himself behind the pine tree, yet on being encircled by H.C. Rajender Singh and C. Om Chand, he had thrown the bag on the ground and fled away, nonetheless, after chasing he was nabbed. The bag thrown on the ground was picked up by C. Dalip Kumar. Constable Dalip Kumar, though, had picked up the bag, thrown on the ground by the accused, yet he has been omitted to be examined by the prosecution as a witness. His testimony comprised the best evidence to fasten truth to the prosecution case, of the accused on being noticed to be carrying a bag, by the police, his attempting to conceal himself behind a pine tree and on his facing imminent apprehension, his throwing the bag on the ground and fleeing thereafter. For non examination of constable Dalip Kumar, an inevitable conclusion which ensues, is, that his, testimony remained unrecorded, as on his stepping into the witness box and his being subjected to the ordeal of cross-examination he would reveal the truth qua the occurrence. As a sequitor in his non-examination the prosecution obviously appears to have concerted to conceal as well as hide the truth qua the occurrence. In consequence, the deduction which sprouts, is that the genesis of the prosecution case gets seeped in a shroud of doubt and is vulnerable to skepticism. 7. The other witnesses to the proceedings relating to the search, seizure and recovery of charas from the purported exclusive and conscious possession of the accused are constable Om Chand, constable Guddu Ram and constable Hem Raj. However, they like constable Dalip Kumar, were material witnesses, to communicate the truth qua the occurrence, yet they have remained un-examined. It is enigmatic that of, all six persons, who, were associated in the proceedings relating to search and recovery of contraband from the alleged exclusive and conscious possession of the accused, at, the purported site, only two, PW-1 H.C. Rajender Singh and PW-5 SI Ram Karan have been chosen to step into the witness box. It is enigmatic that of, all six persons, who, were associated in the proceedings relating to search and recovery of contraband from the alleged exclusive and conscious possession of the accused, at, the purported site, only two, PW-1 H.C. Rajender Singh and PW-5 SI Ram Karan have been chosen to step into the witness box. When the testimonies of other police officials would have added momentum, fervor and tenacity to the prosecution case, the omission on the part of the prosecution to examine them, as witnesses, cannot but be said to be an exercise to present a slanted and prevaricated version qua the incident, as such it cannot carry any credence with this court. It has to be dubbed to be nothing, but a sham as well as a charade. 8. It is also worthwhile to record that the testimonies of the official witnesses carry immense probative weight worth and value, in case, they are inspiring and trustworthy. Such traits/elements of trustworthiness and credibility would be borne by the testimonies of each of the official witnesses, in the event of their having come to be examined. Though, there may be good reasons to exclude from examination, one or two of the officials witnesses, however, in the instant case no sound, plausible and tenable explanation, is, communicated by the prosecution, for non examination of prosecution witnesses aforesaid, who on deposing qua the material aspect of the case would, hence, have facilitated this Court to unravel the truth. It appears that the prosecution was wary, of theirs being cross-examined by the defence counsel, as the prosecution version would have been, then, rendered incredible, as they would have spouted the truth qua the occurrence. Even otherwise, the manner in which the proceedings were carried out, for the reasons aforesaid, conveys a travesty of truth. 9. Even the fact of immediate availability of independent witnesses at the site of occurrence and their being omitted to be joined by the Investigating officer, makes a dense shroud of doubt engulf the prosecution version. PW-1 H.C. Rajender Singh, in his cross-examination has deposed that there was flow of traffic on the place where naka was laid by the police. He has also deposed that houses were situated at a distance of one kilometer from the place of occurrence. PW-5 SI Ram Karan in his cross-examination corroborates the said version deposed by PW-1. PW-1 H.C. Rajender Singh, in his cross-examination has deposed that there was flow of traffic on the place where naka was laid by the police. He has also deposed that houses were situated at a distance of one kilometer from the place of occurrence. PW-5 SI Ram Karan in his cross-examination corroborates the said version deposed by PW-1. He has proceeded to even depose that one and two houses are situated on the upper side of the Fagu-Pul, which is the site of occurrence. However, the Investigating Officer omitted to join the inhabitants of the two houses situated above the site of the occurrence. Besides, there is no explanation coming forth, that, he had attempted to do so and despite his attempt to join them as independent witnesses they either refused or were unavailable at their residences. In case, he had afforded a cogent and sound explanation, then the non association of the independent witnesses by the Investigating Officer was extenuatable. However, such an explanation is amiss. Even, though, it is settled law that non joinder or omission to join independent witnesses is not fatal to the prosecution case, unless the testimonies of the official witnesses, are, not rendered vulnerable to skepticism or are not inspiring and the Investigating Officer, too, would have been relieved of his duties to join independent witnesses to fasten the truth to the proceedings, in case, their joining is not proved to be actuated by malafides. However, when independent witnesses were immediately available at the site of occurrence and no sound explanation for their non-joining is emerging. Rather when despite availability of two residential houses above the site of occurrence, they remain unvisited by the Investigating Officer for determining either the availability of their inhabitants or their readiness or otherwise to be associated in the proceedings, sequels the inference that the Investigating Officer, omitted to join them as he intended to smother the truth qua the occurrence, hence, his omission to do so was both deliberate and intentional. Therefore, reliance upon interest testimonies of official witnesses was misplaced. 10. This Court ought not to omit to advert to the fact that H.C. Rajender Singh and Om Chand brought the accused to the road side after a lapse of five minutes. Therefore, reliance upon interest testimonies of official witnesses was misplaced. 10. This Court ought not to omit to advert to the fact that H.C. Rajender Singh and Om Chand brought the accused to the road side after a lapse of five minutes. Now when two houses were available on the upper side of the site of occurrence, hence, in the space of five minutes since the nabbing of the accused and his being brought to the site of occurrence, the Investigating Officer could have easily ensured the joining of inmates of the two houses as independent witnesses. However, he omits to do so. Obviously, entwining the fact of non-examination of the official witnesses, other than PW-1 H.C. Rajender Singh and PW-5 S.I. Ram Karan, qua whose non-examination an adverse inference has to be drawn against the prosecution, the, non joining of independent witnesses, though immediately available acquires a compounded momentum, in as much as, it gives leeway to the inference, that the proceedings were slanted, prevaricated and carry no truth. 11. Further more, seizure memo Ex. PA, has been deposed by PW-1 H.C. Rajender Singh to be reduced into writing by constable Dalip Kumar. Constable Dalip Kumar had been deposed by PW-1 to have reduced into writing the rukka as well. However, both seizure memo and rukka, though, purportedly scribed by constable Dalip Kumar on the spot, have not been proved by constable Dalip Kumar. The effect thereof, is, that he was omitted to be joined as a witness as he would have lent inveracity to the factum of recording rukka, Ex. PM and seizure memo Ex.PA , at the site of occurrence. In sequel, it has to be concluded that the entire proceedings were not carried nor were drawn at the site of occurrence, rather were drawn/prepared at some other place other than the place of occurrence. Consequently, they are a mere charade. 12. Lastly on the strength of identity card (Ex. P-2) and passport Ex. P-1 of the accused, allegedly recovered from the outer pocket of his bag which contained contraband, the prosecution concerts to link the accused with the ownership of the bag from, which the contraband was allegedly recovered. However, a perusal of the abstract, of the malkhana register, Ex. PE discloses, that, both the aforesaid documents i.e. passport (Ex. P-1 of the accused, allegedly recovered from the outer pocket of his bag which contained contraband, the prosecution concerts to link the accused with the ownership of the bag from, which the contraband was allegedly recovered. However, a perusal of the abstract, of the malkhana register, Ex. PE discloses, that, both the aforesaid documents i.e. passport (Ex. P-1) and identity card (Ex.P-2) of the accused, allegedly carried by him in the bag from which the contraband was recovered, were not deposited in the police malkhana. Omission of a recital of deposit of both the aforesaid items, in, the abstract of malkhana register, also leads to the conclusion that, it, was not recovered from the bag from which the purported recovery was made. In case such an inference of the aforesaid items not having been recovered from the bag from which the contraband was recovered, is available, it leads to a concomitant inference that the prosecution has failed to establish that the bag from which the recovery was made, was owned by the accused. In the absence of the cogent evidence to link the accused with the ownership of the bag, the inevitable inference which ought to be formed, is, that the recovery, if any, of the contraband from the purported exclusive and conscious possession of the accused, remains wholly un-established. 13. For the reasons which have been recorded hereinafter, this Court holds that the learned trial Court below has omitted to appraise the entire evidence on record, in, a wholesome and harmonious manner. On the other hand, it appears that by a giving piece meal reading, to the evidence on record, it has also discarded the probative force and relevance of the facets aforesaid, hence, indulged in gross mis-appreciation of the evidence sequeling substantial miscarriage of justice. 14. Hence, the appeal is allowed and the impugned judgment of the learned trial Court is set aside. The accused/appellant is acquitted of the offence charged and he be set free forthwith, if not required in any other case. Records be sent back.