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Himachal Pradesh High Court · body

2014 DIGILAW 994 (HP)

State of Himachal Pradesh v. Asha Rani

2014-07-28

RAJIV SHARMA, SURESHWAR THAKUR

body2014
JUDGMENT : - Sureshwar Thakur, Judge The instant appeal, is, directed by the State, against the impugned judgment, rendered, on, 12.12.2007, by the learned Sessions Judge, Solan, Camp at Nalagarh, in, case No. 15-NL/7 of 2006, whereby, the learned trial Court acquitted the accused/respondents, for, theirs having committed, an, offence punishable under Section 15 of the Narcotic Drugs and Psychotropic substances Act. 2. Brief facts of the case, are, that, on 21.11.2005, the police party headed by SI Kamal Kishore, and, comprising of ASI Rattan Chand, HC Rajinder Kumar, HC Neelam Kumar, Constable Inder Singh, Constable Gurbab Singh, Constable Kapil Mohan, Constable Ram Piara, and, lady Constable Saroj Kumari, had proceeded, on, patrol towards Rajpura, and laid a naka there. At Rajpura, they apprehended two persons, namely, Jarnail Singh and Harjinder Singh, who were going, on, scooter, and, on their checking, they were found, in, possession of Bhukki, and, on interrogation, they disclosed, that, they had purchased this Bhukki from Asha Rani, resident of Nalagarh. After recording reasons of belief, the SI sent the same, to, his superior Officer. Thereafter, they proceeded towards the residence of the accused. On route, Vandna Bansal and Krishan Kumar met them, and, they were also associated by them. On theirs arriving at the residence of the accused, the accused were found to be present there. SI Kamal Kishore, disclosed to the accused, that, he had suspicion of the accused indulging, in, the sale of Bhukki, and, apprised them, of, their right, to be searched before a Gazetted Officer, or, a Magistrate. The accused desired, to, give their search, to, the police party. Thereafter, the members of the police party gave their personal search, to, the accused, and, nothing was recovered. Subsequently, search of the accused, was, conducted but, nothing incriminating, was, recovered. Thereafter, search of the house was effected, and, from the kitchen, a bag concealed, in, the chimney hook with a string, was, found. It was taken out, and, on checking, it was found containing, six packets of “Bhukki”. Each packet was weighed. One packet was found to be 500 grams, second 400 grams and the remaining four were 200 grams each in weight. It was taken out, and, on checking, it was found containing, six packets of “Bhukki”. Each packet was weighed. One packet was found to be 500 grams, second 400 grams and the remaining four were 200 grams each in weight. Two samples of 50 grams each, were drawn from two packets out of the four packets of 200 grams, which were sealed, in, separate cloth parcel with seal impression T. The remaining parcels were sealed, in, separate cloth parcel with seal impression T, which was marked as P, and the two samples were marked as S-1 and S-2. The sample of seal, was, separately taken, on, a piece of cloth. SI filled, in, NCRB form, and, took into possession, the recovered Bhukki, vide a memo prepared, in, the presence of the witnesses. The investigating Officer prepared the spot map and recorded the statements of the witnesses. He then, arrested the accused persons. The case property alongwith two sample impressions of seal used, NCRB form, police docket, and, memos were deposited with MHC Kamal Nain by the SI. The special report was sent, to, SP Solan, and, thereafter the accused, and, the case property was produced before the learned ACJM, Nalagarh. One of the samples marked, as, SI was sent, to, CTL, Kandaghat alongwith impression of seal used, copy of recovery memo, copy of FIR etc for analysis, and, on, analysis the contents of the sample were found to be Bhukki (Poppy straw), and, on receipt of the chemical examiners report, the accused were challaned and sent up for trial to the learned trial Court. 3. The accused were charged, for, theirs having committed offence punishable under Sections 15(b) of the Narcotic Drugs and Psychotropic Substances Act, by the learned trial Court, to, which they pleaded not guilty and claimed trial. 4. In order to prove its case, the prosecution examined 12 witnesses. On closure of prosecution evidence, the statements of accused, under Section 313 of the Code of Criminal Procedure, were recorded, in, which they pleaded innocence and claimed false implication. 5. On appraisal of the evidence on record, the learned trial Court, returned findings of acquittal in favour of the accused. 6. The State of H.P., is, aggrieved by the judgment of acquittal, recorded by the learned trial Court, in, favour of the accused/respondents. 5. On appraisal of the evidence on record, the learned trial Court, returned findings of acquittal in favour of the accused. 6. The State of H.P., is, aggrieved by the judgment of acquittal, recorded by the learned trial Court, in, favour of the accused/respondents. The Learned Deputy 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, exercise of its appellate jurisdiction, and, be replaced by findings of conviction, and, concomitantly an appropriate sentence, be also imposed upon the accused/respondents. 7. On the other hand, the learned defence counsel, 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. 8. 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. 9. The first witness, who stepped into the witness box, in, proof of the prosecution case, is, PW-1, HHC Dharam Dass, who, deposed, that, copy of rapat comprised, in, Ex. PW-1/A, is, true, and, correct copy, of the original report No. 21, dated 21.11.2005. 10. PW-2, H.C Kamal Nain deposed, that, on receipt of rukka , Ex. PW-2/A, FIR , Ex. PW-2/B was registered, which, is, in his hand, and, bears his signatures. He has also produced Malkhana Register for the year 2005. He continues, to, depose that on 21.11.2005, SI Kamal Kishore deposited with him, one parcel Mark P, sealed with seal impression T, and, two sample parcels, Mark S-1 and S-2, also, sealed with seal impression T. Both parcels were alleged, to, contain “Bukhi”. SI Kamal Kishore has been deposed, to, have deposited, sample impression of seal “T”, NCRB form, and, recovery memo. Entry qua its deposit, was, made by him, in, the Register Malkhana, at, Sr. No. 871-2005. Ex. PW-2/C, is, deposed to be a true, and, correct copy of the abstract of entry made on 30.11.2005. SI Kamal Kishore has been deposed, to, have deposited, sample impression of seal “T”, NCRB form, and, recovery memo. Entry qua its deposit, was, made by him, in, the Register Malkhana, at, Sr. No. 871-2005. Ex. PW-2/C, is, deposed to be a true, and, correct copy of the abstract of entry made on 30.11.2005. He deposed that he sent one sample parcel S-1 alongwith NCRB form, one impression of the seal used, copy of recovery memo, copy of FIR, and, the police docket to CTL, Kandaghat, through HHC Ram Krishan, vide R.C No. 156/2005, who, after depositing the same with CTL, Kandaghat, returned the receipt, to, him, on, the same day. He further deposed, that, so long, as, the case property remained with him, no, tampering was done by him, or, anybody else. 11. PW-3 HHC Ram Krishan, deposed that on 30.11.2005, MHC Kamal Nain, handed over, to, him one sample parcel, Mark S-1, sealed with seal impression “T” stated to be containing 50 grams “Bhukki” alongwith copy of FIR, NCRB Form, Sample of seal, seizure memo, police docket for depositing at CTL, Kandaghat, vide RC No. 156/2005 dated 30.11.2005, which was deposited by him at CTL, Kandaghat on the same day. On return, the receipt, whereof, was handed over, to, MHC kamal Nain. He further deposed that, so, long, as, the case property remained, in, his possession, no, tampering was done by him, or, anybody else. 12. PW-4 Krishan Kumar has not supported the prosecution case and has resiled from his previous statement recorded under Section 161 Cr.P.C. Hence, he was declared hostile. However, the learned PP was permitted by the learned Sessions Judge to cross-examine this witness and during the course of his cross-examination, by learned P.P, he denied his having made a statement portion A to A of Mark X, before the police , yet, he has admitted his signatures, on, the consent memo Ex. PW-4/A. He has also admitted his signatures, on, Ex. PW-4/B, PW-4/C, PW-4/D, PW-4/E, PW-4/F, PW-4/G. However, he deposed, that, the signatures, on, the memos aforesaid, were, obtained, in, the police station. He further deposed, that, accused, are, voters of his ward. He further deposed, that, however, they are voters of congress, whereas, he belongs to B.J.P, and he does not have good relations with them. 13. PW-4/B, PW-4/C, PW-4/D, PW-4/E, PW-4/F, PW-4/G. However, he deposed, that, the signatures, on, the memos aforesaid, were, obtained, in, the police station. He further deposed, that, accused, are, voters of his ward. He further deposed, that, however, they are voters of congress, whereas, he belongs to B.J.P, and he does not have good relations with them. 13. PW-5 H.C Rajinder Kumar deposed, that, on 21.11.2005, he alongwith SI Kamal Kishore, Constable Inder Singh, LC Kishore Kumari, Constable Kapil, and, Constable Gurbab Singh, were, patrolling towards Rajpura, in, an official vehicle, driver whereof, was, Constable Balwant Singh. He continues, to, depose that, at, about 5.15 p.m., when, they were at Rajpura, one, Jarnail Singh, told them, that, accused Asha Rani, is, indulging in, the sale of “Bhukki”. The aforesaid Jarnail Singh has been deposed, to, have met, to, them while going, on, a scooter, which was stopped for checking. Gurjinder Singh was also with him. SI Kamal Kishore, then, recorded reasons of belief, and, sent the same, to, Dy. S.P, Nalagarh, through, Constable Gurbab Singh. Subsequently, he prepared rukka, and, sent it, to, the Police Station, through Constable Kapil. Thereafter, they proceeded towards the residence of the accused. On the way, Vandna Bansal and Krishan Kumar met them, and, they were also associated by them. On theirs arriving at the residence of the accused, Asha Rani, her son Yashpal, and, vishal were found to be present there. SI Kamal Kishore, disclosed to the accused, that, he had suspicion of the accused dealing in the sale of Bhukki and apprised them of their right to be searched before a Gazetted officer or a Magistrate. However, they agree to be searched by the police, through consent memo, Ex.PW-4/A, which bears the signatures of the accused and the witnesses. Thereafter, he, including the witnesses, gave their search, to, the accused, but, nothing incriminating was recovered. Search Memo Ex. PW-4/B to Ex. PW-4/E were prepared, which has been deposed to be bearing the signatures of the witnesses and the accused and subsequently search of the house of the accused was effected. During the course of search of the kitchen of the house of the accused, one bag was found hanging on the Chimney. The bag was removed from there, and, checked, and, it was found to be containing, six polythene packets each containing “Bhukki”. During the course of search of the kitchen of the house of the accused, one bag was found hanging on the Chimney. The bag was removed from there, and, checked, and, it was found to be containing, six polythene packets each containing “Bhukki”. On weighing, one packet, was having 500 grams, another 400 grams, and, four packets were having 200 grams, each of “Bhukki”. Two samples of 50 grams each, were taken from the two packets of 200 grams. These samples were sealed, in, a separate cloth with seal impression ‘T’. The remaining six parcels were then sealed together in one parcel with the same seal, and, taken into possession vide recovery memo comprised in Ex. PW-4/J. Sample parcel, Ex. P-1, and, bulk parcel Ex. P-2, were, deposed to be same, and, have deposed to be bearing the signatures of the accused and the witnesses. He further deposed that three sample impressions of the seal were also taken. One of the sample impressions, is, deposed to be comprised, in, Ex. PW-4/F. 14. PW-6 Inspector Som Dutt, deposed that, on, 31.7.2006 SI Kamal Kishore handed over, to, him the case file, for, preparation of challan. He prepared the challan, on, the same day, which bears his signatures. 15. PW-7 Constable Gurbab Singh deposed that on 21.11.2005 SI Kamal Kishore handed over to him “Reasons of Belief” from the spot, which he handed over, to, the Reader, to, S.D.P.O Nalagarh, at, about 6.10 p.m., on the same day. He further deposed, that, thereafter, SDPO, Nalagarh, put his signatures encircled ‘A’ thereon. He further deposed, that, original of which, was, handed over, to, Reader to SDPO, Nalagarh, and, the carbon copy mark A, after, obtaining the signatures of SDPO, Nalagarh, was, handed over to him. 16. PW-8 Constable Ram Lok deposed, that, on 22.11.2005, SI Kamal Kishoare handed over, to, him, special report, Mark B, and, the same was handed over by him, to, S.P., Solan, on the same day, at about 11.5 a.m. The original, was, retained by S.P., Solan, and, the carbon copy, thereof, Mark B, was, handed over, to, him, which bears the endorsement, and, signatures of S.P., Solan, in circle A. 17. PW-9 Inspector Kamal Kishore, deposed, in, corroboration, and, in harmony of the deposition of PW-2, qua the genesis of the prosecution case. PW-9 Inspector Kamal Kishore, deposed, in, corroboration, and, in harmony of the deposition of PW-2, qua the genesis of the prosecution case. He further corroborated the testimony of PW-2, qua, the search, seizure, and, recovery, of poppy straw, from the kitchen of the house of the accused, in, the manner, as, alleged by the prosecution. 18. PW-10, Ms. Vandana Bansal, is, an independent witness, to, the proceedings relating, to, search, seizure, and, recovery of “Bhukki” from the kitchen of the house of the accused. She, in, her examination-in-chief has not supported the prosecution case, and, has turned hostile. However, the learned PP was permitted by the learned Sessions Judge, to cross-examine her. She has denied, that, her statement under Section 161 Cr.P.C, was ever recorded, at, the instance of Investigating Officer. However, she on her cross-examination, has, admitted her signatures on Ex. PW-4/A, PW-4/B, PW-4/C, PW-4/D, PW-4/E, PW-4/F and PW-4/G. 19. PW-11 H.C Yoginder Singh, deposed that, on, 22.11.2005, Special Report of this case, was, brought to S.P, office, Solan, by Constable Ram Lok, at, about 11.15 a.m., and the said report, comprised, in, Ex. PW-9/K, was, presented by him, before the Additional S.P. Solan, on the same day, who, made his endorsement on the original, as well, as, on carbon copy. 20. PW-12 Constable Bhag Singh, deposed that, on, 21.11.2005 at about 6.10 p.m., Constable Gurbab Singh, had, brought the “Reasons of Belief”, which was immediately put by him, before Dy. S.P., Nalagarh, who, made an endorsement, on, the same, and, on the copy thereof. 21. The investigating Officer, had, associated independent witnesses, in, the proceedings relating, to, search, which was to be carried out, in the house of accused. Even though, during the course of search, of the house of the accused, contraband, was, purportedly recovered from the kitchen of the accused, in their purported presence, however, they have not supported the prosecution case. They have reneged from their previous statements recorded, in, writing. Consequently, the effect of theirs, reneging from their previous statements, recorded, in, writing, is that, it, belies the factum, of, theirs being present along with the police, at the time of carrying out the search and recovery of contraband from the kitchen of the house of the accused. They have reneged from their previous statements recorded, in, writing. Consequently, the effect of theirs, reneging from their previous statements, recorded, in, writing, is that, it, belies the factum, of, theirs being present along with the police, at the time of carrying out the search and recovery of contraband from the kitchen of the house of the accused. Even though, they have admitted their signatures, on various memos comprised, in, PW-4/A, PW-4/B, PW-4/C, PW-4/D, PW-4/E, PW-4/F and PW-4/G, yet, with an explanation, emanating of their signatures having been, obtained in the police station, does not attribute truth to the factum of various memos, having come to be signatured, by them, at the site of occurrence. Consequently, no, capital can be made by the prosecution, on, the strength of existence of signatures, of the independent witnesses, on, the various memos, to, contend before this Court, that, hence, throughout, they remained with the raiding party, when the search of the premises of the accused was carried out, and that, hence recovery of the contraband was effected in their presence, and, as such the fact of theirs turning hostile or resiling from their previous statements, is, inconsequential. More so, given the preponderant facts of theirs having omitted to recite below their signatures, the fact of theirs having signatured the various memos at the time and place as reflected in the Rukka. Now, it, has to be fathomed, whether, in the face of the independent witnesses, who were joined or associated by the Investigating Officer, in, the proceedings relating to search, seizure and recovery of the contraband, in, the manner as alleged by the prosecution, from the house of the accused, having reneged, renders the genesis of the story to be inspiring and credible. Obviously, when the independent witnesses have been contended by the prosecution to be present throughout, alongwith, the IO and others members of his team, when search, seizure and recovery of the contraband was effected from the premises of the accused, yet, theirs not supporting the prosecution case, hence, taints, even the version as spelt out, qua the prosecution case, by the official witnesses. Lastly when, the prosecution case, hence, with the independent witnesses turning hostile, is, ridden with the vice of intra-se contradiction, interse the testimonies of prosecution witnesses, the inference, which, hence, surges forth is that the genesis of the prosecution case, is, bereft of truth. Lastly when, the prosecution case, hence, with the independent witnesses turning hostile, is, ridden with the vice of intra-se contradiction, interse the testimonies of prosecution witnesses, the inference, which, hence, surges forth is that the genesis of the prosecution case, is, bereft of truth. Obviously then it, is, rendered unreliable. 22. The prosecution case, too, gets ridden with inveracity, in, the face of the purported place of search, seizure and recovery of contraband, having not been proved, to be in the exclusive possession of the accused alone, and, the same being inaccessible to other family members. In the face of absence of evidence marking the fact, that, there were no members other than the accused, constituting the inmates of the house, as such, it has to be inferred that the said portion of the house was accessible to other residents/inmates of the house. It has to be also concluded, in sequel, that, when persons other than the accused also reside there and had access to the kitchen, rendered the kitchen, from where contraband was purportedly recovered, to, be accessible to them also. In aftermath, it has to be inferred that the accused cannot be held to be consciously aware of the place of keeping of contraband or theirs not being in its exclusive possession. Consequently it, is, construed that other members of the family of the accused, who, too had access to kitchen, wherefrom recovery of contraband, was, effected, hence, may have taken to place it there. For reiteration, when that portion of the house of the accused, was, accessible, to, others family members of the accused, therefore, it cannot be said that the said portion, from which contraband, was, recovered, was, in the exclusive possession of the accused, who alone, had exclusive knowledge, qua, its being placed there, hence, consequently, they alone are vicariously liable for the act, as alleged against them. The reasons, as, afforded by the learned trial Court, in, acquitting the accused, do not, suffer from any infirmity, or, perversity. Consequently reinforcingly, it can be formidably concluded, that, the findings of learned trial Court, are, well merited, and, do not merit interference. 23. In view of above discussion, we find no merit in this appeal, which is accordingly dismissed, and, the judgment of the learned trial Court is affirmed. Record of the learned trial Court be sent back forthwith.