Research › Search › Judgment

Himachal Pradesh High Court · body

2014 DIGILAW 798 (HP)

Guddu Ram v. State of H. P.

2014-06-26

RAJIV SHARMA, SURESHWAR THAKUR

body2014
JUDGMENT Sureshwar Thakur, Judge. This appeal is directed against the judgment rendered on 1st August, 2008, by the learned Special Judge (II), Mandi in Sessions Trial No. 7 of 2007, whereby the appellant has been convicted and sentenced to undergo rigorous imprisonment for ten years and to pay fine of Rs.1,00,000/- for the commission of offence punishable under Section 20 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as ‘NDPS Act’) and in default of payment of fine, he has been sentenced to undergo rigorous imprisonment for one year. 2. The brief facts of the case, are that a police party headed by S.H.O. Rajesh Kumar (PW-9), Police Station, Sadar, Mandi was on patrol duty during the intervening night of 11th and 12th February, 2007 at Khaliyar in official vehicle. Other accompanying police officials, namely, H.C. Shyam Lal, H.C. Ram Lal and H.C. Balam Ram, were also members of the raiding party. At about 12/15 a.m., the police party saw the accused carrying with him a black bag near Victoria Bridge. The police party suspected him to be thief. The accused on sighting the police attempted to flee. However, he was nabbed. The Inspector checked the bag carried by the accused and it was on checking found to contain charas. On weighing, the recovered substance was found to be 5.200 Kg. The charas recovered from the bag of the accused was in the shape of sticks. From the recovered charas, which in bulk was 5.200 kg, the Inspector, separated two samples of 25 grams each and the separated samples were packed in separate parcels and sealed with seal impression ‘K’. Remaining 5 kg and 150 grams of charas was again put, in, three polythene bags and the polyphone bags were put, in, the bag and the bag was packed in a parcel which was sealed with 8 seal impressions ‘K’. NCB form in triplicate was filled in by the Inspector on the spot. The Inspector, also, took specimen of seal impression on pieces of cloth. The seal after use was handed over to H.C. Balam Ram. The Inspector had also embossed seal impression on the NCB form. ASI Shyam Lal, H.C. Ram Lal and the accused Guddu Ram signed the three sealed parcels and specimen seal impression. The Inspector, also, took specimen of seal impression on pieces of cloth. The seal after use was handed over to H.C. Balam Ram. The Inspector had also embossed seal impression on the NCB form. ASI Shyam Lal, H.C. Ram Lal and the accused Guddu Ram signed the three sealed parcels and specimen seal impression. Thereafter, the three parcels were taken into possession under recovery memo comprised in Ex.PW3/A which was signed by ASI Shyam Lal, H.C. Ram Lal and accused Guddu Ram. Copy of recovery memo Ex.PW3/A was handed over to the accused. Inspector Rajesh Kumar (PW-9) prepared the rukka and sent the same through H.C. Balam Ram to the Police Station, Sadar. Accused was apprised of his arrest under memo Ex.PW3/C and was arrested under arrest memo Ex.PW3/D. 3. On conclusion of the investigation into the offence allegedly committed by the accused, challan was filed under Section 173 of the Code of Criminal Procedure. The accused pleaded not guilty to the charge and claimed to be tried. 4. In proof of the prosecution case, the prosecution examined 9 witnesses. On closure of the prosecution evidence, statement of accused under Section 313 Cr.P.C. was recorded by the Court in which the accused claimed false implication and pleaded innocence. In defence, the accused examined two witnesses. 5. On appraisal of evidence on record, the learned trial Court convicted and sentenced the accused for his having committed an offence under Section 20 of the NDPS Act. 6. The first witness, who stepped into the witness box is H.C. Sanjeev Walia, who deposed that on 12.2.2007, SHO Rajesh Kumar haded over to him special report in an envelope for transmission of the same to Dy. S.P. Head Quarter. He deposed that he took the envelope to the office of Dy. S.P., Head Quarter and handed over the same to the then Dy. S.P. Krishan Chand Shandil. 7. PW-2 HHC Nand Lal deposed that on 11.2.2007, SHO Rajesh Kumar deposited with him three sealed parcels sealed with seal impression ‘K’, NCB form, specimen seal impression ‘K’ and recovery memo. The parcels were disclosed by SHO to be containing charas. He made the entry in the register at column No.19, true copy of the same is Ex.PW2/A as evident from the original brought by him in Court. The parcels were disclosed by SHO to be containing charas. He made the entry in the register at column No.19, true copy of the same is Ex.PW2/A as evident from the original brought by him in Court. On 12.2.2007, he deposed that he sent one sample parcel, NCB form, specimen seal impression ‘K’, recovery memo, copy of FIR and docket through HHC Makhan Singh, No.456 vide R.C. No.55/2007 to the FSL, Junga. He continues to depose that he has brought the original R.C., copy of which is Ex.PW2/B and the same has been deposed to be correct as per the original record. Lastly, he deposed that as long as the case property remained in his custody he did not interfere with the seal and that HHC Makhan Singh on return to police station, handed over the receipt issued by the FSL, Junga to him. 8. PW-3 ASI Shayam Lal, 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 admitted the suggestion that several vehicles also crossed on the road from the time when the accused was apprehended till morning. No vehicle was stopped in order to associate its occupants as a witness of the case. He has deposed that there were several shops in Khaliar Bazar and they did not try to join independent witness. He has admitted the suggestion that there is Cinema Hall in Mandi town and last show of which was from 9 PM to 12 mid night and that there, is, hustle and bustle in Mandi town even during mid night. 9. PW-4 H.C. Balam Ram has deposed in corroboration to the testimony rendered by PW-3. On a reading of the testimonies of PW-3 and PW-4 no intra se contradictions in their respective testimonies surges forth. PW-5 Sant Ram has deposed that on 12.2.2007, at about 2.25 P.M., H.C. Sanjeev Walia handed over special report to Dy. S.P., Mandi and after receiving the report, Dy. S.P., Mandi handed over the same to him which he entered in the special report register. Special report, is, deposed to be Ex.PW5/A. He has deposed that he put his endorsement on it, at circle A and Dy. S.P. Krishan Chand had, put his endorsement, in circle B. 10. S.P., Mandi and after receiving the report, Dy. S.P., Mandi handed over the same to him which he entered in the special report register. Special report, is, deposed to be Ex.PW5/A. He has deposed that he put his endorsement on it, at circle A and Dy. S.P. Krishan Chand had, put his endorsement, in circle B. 10. PW-6 S.I. Vijay Kumar deposed that on 11.2.2007, H.C. Balam Ram, No.540 brought a rukka prepared by SHO Rajesh Kumar to Police Station. On the basis of which FIR Ex.PW6/A, was recorded which was signed by him. He deposed, that, he appended his endorsement Ex.PW6/B on the rukka, Mark G. The case file was handed over, to, H.C. Balam Ram to be further handed over to SHO. 11. PW7 H.C. Makhan Singh deposed that on 12.2.2007, Nand Lal Handed over to him a sealed parcel, copy of FIR, NCB form, specimen seal impression vide R.C. No.55/2007 and he took the aforesaid articles to FSL, Junga and deposited them there. The receipt issued by FSL, Junga was deposited on return with Mohorror Malkhana by him. He deposed that so long the case property was remained in his custody, he did not interfere with seal and the case property. 12. PW-9 Inspector Rajesh Kumar, the Investigating Officer, in his deposition has deposed a version which is in square tandem with the genesis of the prosecution version as referred to hereinabove. 13. The learned counsel for the accused/appellant as well as the learned Advocate General heard at length. 14. With the able assistance of the counsel of either side, this Court has carefully scrutinized the evidence on record. The incident took place in the intervening night of 11/12 February, 2007 at Khaliyar as deposed by PW-9, Inspector Rajesh Kumar. The site of occurrence, is, a heavily populated area. Even though, a close, incisive and studied analysis of the testimonies of the officials witnesses may rear, an, inference that, hence, the genesis of the prosecution, is, embedded in conclusiveness or the prosecution case may, hence, is to be construable to be proved to the hilt. The site of occurrence, is, a heavily populated area. Even though, a close, incisive and studied analysis of the testimonies of the officials witnesses may rear, an, inference that, hence, the genesis of the prosecution, is, embedded in conclusiveness or the prosecution case may, hence, is to be construable to be proved to the hilt. The fact of the existence, of link evidence, comprised in the testimonies of PW-9, PW-2 and PW-7 tend to prove the deposit of the case property by PW-9 with PW-2 and, its, further transmission through PW-7 for examination and analysis by FSL, Junga, which rendered an opinion in the affirmative, on, the sample parcel sent to it for its chemical examination, do also firmly convey that, hence, in conjunction with the unblemished oral evidence of official witnesses that, as such, the prosecution has been able to clinch the guilt of the accused. Furthermore, even the discarding of the defence evidence adduced by the accused on the score of the defence witnesses being interested, with theirs belonging to the same village as the accused, hence, personally known to him, may also, be a tenable and good reason afforded by the learned trial Court, for it, hence, having come to disbelieve their testimonies and in concluding that they omit to lend succor to the defence. Apart there-from and pre-eminently, the fact of non-association of independent witnesses by PW-9, Inspector Rajesh Kumar in the proceedings relating to search, seizure and recovery is to the considered mind of this Court, of overwhelming importance. Even though, when this Court has concluded hereinabove, that, for lack of inter se contradictions in the testimonies of the prosecution witnesses, as such, for want of inter se contradictions in their respective depositions, their testimonies are unfailing and acquire probative worth. However, when tested on the score of absence of association or lack of concerted efforts by the Investigating Officer to associate independent witnesses, then this Court would be compelled to take a view that the prosecution, has stage managed the entire case and has ensured the ironic communication of deposition by the prosecution witnesses, in, corroboration to their respective testimonies. However, when tested on the score of absence of association or lack of concerted efforts by the Investigating Officer to associate independent witnesses, then this Court would be compelled to take a view that the prosecution, has stage managed the entire case and has ensured the ironic communication of deposition by the prosecution witnesses, in, corroboration to their respective testimonies. However, such manufactured and concocted evidence, to the considered mind of this Court, would rather undermine the effect of or the efficacy and truthfulness of the prosecution version, more especially, when this Court proceeds to dwell upon the fact of deliberate and intentional omission on the part of the Investigating Officer to associate independent witnesses, despite the availability, particularly when for such deliberate and intentional omission by the Investigating Officer, the prosecution version is, hence, to be construed, to capsize and founder. Further, before coming to the conclusion that there was absence of concerted effort on the part of the investigating Officer to associate independent witnesses and for such willful absence, to, lend succor a deduction or an inference that, hence, the prosecution case is to be construed to be flawed, in as much, as, it having communicated a tainted and blemished version, through, the mouths of convenient police/official witnesses, it is necessary to determine, whether as a matter of fact, independent witnesses were available. The fact of availability of independent witnesses exists in the testimony of PW3, who in cross-examination has deposed that (a) that several vehicles had crossed the road from the commencement of the proceedings till morning and (b) his admission that there is a cinema hall in Mandi Town, in proximity to the site of occurrence and accessible with the vehicle available with the police patrol. Moreover, the fact as deposed by PW-3 of the last show in the cinema hall, lasting from 9 PM to 12 mid night, whereas, the incident took place at 12.15 a.m., engenders, an, inference that after the conclusion of the night show, the visitors to the night show had egressed or were in the process of egressing from the cinema hall located in Mandi town, hence, were accessible by the Investigating Officer, given the availability with him of a police vehicle. With evidence communicated by PW-3 of independent witnesses being available to be joined, however, with no concerted efforts having been made by the Investigating Officer to join them in the proceedings relating to search, seizure and recovery, rears an inference that, hence, his act of non-joining of independent witnesses, is, willful and deliberate, besides intentional. On the formation of the conclusion of deliberateness on the part of the Investigating Officer qua non-joining independent witnesses, the, further concomitant which spurs or is garnerable, is that, such omission was sprouted by the Investigating Officer intending to smother the truth qua the genesis of the occurrence. With the formation of the aforesaid inference, this Court cannot but conclude that the omission to join independent witnesses, is fatal to the prosecution case, is as much, as, docked version as emanated. Moreover, even if, there is for want of inter se contradictions in the testimonies of the prosecution witnesses or even if, there is want or lack of intra se contradictions in the respective depositions of the prosecution witness, their depositions are, hence, construable to be tailor made to suit to the convenience of the prosecution. In other words, they have narrated a parrot like version qua the incident which does not convey the truth. Further, this Court, is, constrained to voice that aggravation, to, the aforesaid inference is lent of is engendered by the occurrence, in, cross-examination of PW-2, of there being an omission of reflection of NCB form and recovery memo in the malkhana register at the time of its deposit with him by Inspector Rajesh Kumar. The admission qua the said omission of reflection of deposit of NCB form and recovery memo in the malkhana register, conveys that, hence, the NCB form and recovery memo were not deposited with PW-2 Nand Lal and that, too, immediately subsequent to the completion of all the formalities. If, it was omitted to be deposited with PW-2 Nand Lal, Incharge Malkhana, an inference which is engendered is that both were filled up and completed at a place other than the site of occurrence. In case, such an inference is ensuable, then, the obvious and concomitant deduction is that the proceedings related to search, seizure and recovery were completed at a place other than the one as deposed by the prosecution witnesses. Consequently, their depositions are to be construable to be slanted and prevaricated. In case, such an inference is ensuable, then, the obvious and concomitant deduction is that the proceedings related to search, seizure and recovery were completed at a place other than the one as deposed by the prosecution witnesses. Consequently, their depositions are to be construable to be slanted and prevaricated. As a sequel, it, cannot be concluded, that with the fulcrum of the prosecution witnesses comprised in the NCB form and recovery memo enjoined to be deposited with immediate promptitude, theirs having not come to be so deposited. Hence, the concomitant inference which can be drawn is that the proceedings relating to search, seizure and recovery were commenced and concluded at a place other than the one as deposed by the prosecution witnesses. In aftermath, the opinion rendered by FSL, Junga on the specimen parcel would not link the accused with the propounded fact of it having been recovered from the conscious and exclusive possession of the accused. 15. Accentuation to the inferences, aforesaid, is lent, by the fact, that, the NCB form accompanying the parcels sent for chemical examination, to, FSL, Junga contains eight columns, whereas, the columns which are required to be comprised, in, a standard NCB form are 12. It appears that, hence, the deficiency in the columns of NCB form, as, sent along with the parcels, purportedly recovered from the exclusive and conscious possession of the accused, unfolds the fact that, it, was not the one, as, was filled up on the spot by the Investigating Officer. Therefore, it appears that, it, is a wholly manufactured and concocted document on which, no, reliance can be placed by this Court, in, concluding that, it, comprises evidence of probative worth, in, connecting the accused with the offence, in as much, as, it was prepared at the spot and at the time of proceedings relating, to, search, seizure and recovery. 16. In view of the above discussion, the appeal is allowed and the impugned judgment dated 1st August, 2008, rendered by the learned Special Judge (II), Mandi is set aside. The appellant/accused is acquitted of the offence charged. The fine amount, if any, deposited by the accused, is ordered to be refunded to him. Since, the accused is in jail, he be released forthwith, if not required in any other case. 17. The appellant/accused is acquitted of the offence charged. The fine amount, if any, deposited by the accused, is ordered to be refunded to him. Since, the accused is in jail, he be released forthwith, if not required in any other case. 17. The Registry is directed to prepare the release warrant of the accused and send it to the Superintendent of the Jail concerned, in conformity with this judgment forthwith. Record of the trial Court be sent down forthwith.