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2015 DIGILAW 1894 (HP)

State of H. P v. Mohan Singh

2015-12-16

RAJIV SHARMA, SURESHWAR THAKUR

body2015
JUDGMENT : Sureshwar Thakur, J. This appeal is directed against the judgment rendered on 3.6.2015 by the learned Special Judge (II), Mandi, District Mandi, H.P., in Sessions trial No. 58/2014/2013, whereby the latter Court acquitted the accused/respondent herein (hereinafter referred to as “accused”) for his having committed an offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short “the Act”). 2. The brief facts of the case are that on 14.4.2013, SI Naveen Jhalta alongwith PSI Nirmal, HC Deep Chand, C Ajay Kumar and HHC Chet Ram driver was on patrolling duty at Lehgala. At about 11.50 a.m. the accused on seeing the police party started running fast. The accused was apprehended by the police on suspicion and he was asked about the rucksack carried by him on his left shoulder. The consent of the accused was taken and his rucksack was searched. Inside the rucksack there was white coloured gunny bag and inside that gunny bag there was round type cannabis. The cannabis on weighing was found to be 1 Kg. 300 grams. Thereafter the cannabis was put in the gunny bag and it was further put in the same rucksack which was sealed at the spot with seal impression A at 9 places. NCB form in triplicate was filled. The cannabis was taken into possession by the police. After completion of the investigation, challan, under Section 173 of the Cr.P.C. was prepared and filed in the Court. 3. The trial Court charged the accused for his having committed an offence punishable under Section 20 of the Act to which he pleaded not guilty and claimed trial. 4. In order to prove its case, the prosecution examined as many as 11 witnesses. On closure of prosecution evidence, the statement of the accused under Section 313 Cr.P.C. was recorded, in which he pleaded innocence. On closure of proceedings under Section 313 Cr.P.C the accused was given an opportunity to adduce evidence in defence which he refused to avail. 5. The appellant-State is aggrieved by the judgment of acquittal recorded by the learned trial Court. Mr. P.M Negi, learned Deputy Advocate General has concerted to vigorously contend before this Court qua the findings of acquittal recorded by the learned trial Court, being not based on a proper appreciation of evidence on record, rather, theirs being sequelled by gross misappreciation of material on record. Mr. P.M Negi, learned Deputy Advocate General has concerted to vigorously contend before this Court qua the findings of acquittal recorded by the learned trial Court, being not based on a proper appreciation of evidence on record, rather, theirs being sequelled by gross misappreciation of material on record. Hence, he contends qua findings of acquittal being reversed by this Court, in the exercise of its appellate jurisdiction and theirs being replaced by findings of conviction. 6. Recovery of cannabis Ex. P-4 weighing 1 Kg. 300 grams stood effected under recovery memo Ex. PW-1/D from a rucksack slung on left shoulder of the accused. Even though the prosecution witnesses have deposed in tandem and in harmony qua each of the links in the chain of circumstances commencing from the proceedings relating to search, seizure and recovery till the consummate link comprised in the rendition of an opinion by the FSL on the specimen parcels sent to it for analysis, portraying proof of unbroken and unsevered links, in the entire chain of the circumstances, hence it stands argued that given the prosecution case hence standing established, it would be legally unwise for this Court to acquit the accused. 7. Besides when the testimonies of the official witnesses, unravel the fact of theirs being bereft of any inter-se or intra-se contradictions hence, consequently they too enjoy credibility for sustaining thereupon findings of conviction recorded against the accused by the learned trial Court. Apparently, proof of the prosecution case is endeavored to be sustained on the strength of the unblemished testimonies of police witnesses. Apparently, proof of the prosecution case is endeavored to be sustained on the strength of the unblemished testimonies of police witnesses. A close and studied perusal of the deposition of the police witnesses underscores the factum of theirs having neither given a version qua the factum of recovery of contraband from the exclusive and conscious possession of the accused inconsistent with the manner thereof as recited in the F.I.R. for begetting a conclusion of hence their testimonies comprised in their respective examinations in chief being ridden with a vice of inter se contradictions vis-à-vis their testimonies comprised in their respective cross-examinations, rather lack of inconsistencies aforesaid render their respective testimonies on oath to be both unimproved as well as unblemished for hence implicit reliance being placed thereupon, nor when their depositions are afflicted with any vice of intra se contradictions rather when they have deposed qua the manner of recovery of contraband from the alleged conscious and exclusive possession of the accused bereft of any disharmony or inconsistency gives leverage to an inference of hence the prosecution succeeding in sustaining its charge against the accused of cannabis weighing 1 Kg. 300 grams having stood recovered under recovery memo (PW-1/D) from his conscious and exclusive possession while his carrying it in a rucksack slung by him on his left shoulder. 8. 300 grams having stood recovered under recovery memo (PW-1/D) from his conscious and exclusive possession while his carrying it in a rucksack slung by him on his left shoulder. 8. However, even though the testimonies of the official witnesses who have hence proven the factum of recovery of Cannabis from the alleged conscious and exclusive possession of the accused while his carrying it in a rucksack slung by him on his left shoulder stand on a solemn legal pedestal especially when their testimonies comprised in their respective examinations in chief are bereft of any taint of either inter se contradictions vis-à-vis their depositions comprised in their respective cross-examinations nor also when their testimonies stand un-ingrained with any vice of intra se contradictions necessarily then when their testimonies inspire confidence reinforcingly render their testimonies being amenable to implicit reliance being placed thereupon for concluding qua the guilt of the accused, nonetheless before proceeding to place implicit reliance upon their testimonies, it is also imperative for this Court to gauge or discern from the available evidence on record whether independent witnesses were available in the immediate vicinity of the locality where the proceedings relating to search, seizure and recovery of contraband from the alleged conscious and exclusive possession of the accused in the manner as deposed by the official witnesses stood launched and concluded. The Investigating Officer, is not obliged to associate independent witnesses in his holding proceedings for carrying out search and recovery of contraband from the alleged conscious and exclusive possession of the accused nor also the non- association of independent witnesses by the investigating officer in the proceedings relating to search and recovery of contraband from the alleged conscious and exclusive possession of the accused would oust or discount the probative worth of the testimonies of the official witnesses. However, when independent witnesses despite proven evidence of their availability in close proximity to the location where the proceedings relating to search and recovery of contraband from the conscious and exclusive possession of the accused stood launched or were concluded, stand not associated, such non association of independent witnesses by the Investigating Officer despite their proven availability would nurse an inference of their non association in the apposite proceedings by the Investigating Officer being both deliberate or intentional. Concomitantly also it would give succor to an inference of the Investigating Officer having omitted to join independent witnesses despite their availability in the vicinity of the location where the proceedings relating to search and recovery of contraband from the conscious and exclusive possession of the accused were launched or concluded, as he intended to smother the truth qua the genesis of the prosecution version. The genesis of the prosecution version would gain credence with this Court only when it is free from a taint of it being reared by a partisan or a slanted investigation standing conducted by the investigating officer. The investigation carried out by the Investigating Officer would garner an element of slantedness or distortion when the investigating officer despite availability of independent witnesses in proximity to the site of occurrence deliberately omits to join them in the proceedings relating to search and recovery of contraband from the purported exclusive and conscious possession of the accused. Consequently, a slanted or a distorted investigation by the Investigating Officer would erode the genesis of the prosecution story. Now the apt evidence for discerning the factum of availability of independent witnesses in the immediate vicinity or in close proximity to the location or the site of search and recovery of contraband from the conscious and exclusive possession of the accused besides concomitantly of an omission to join them being deliberate as well as intentional, for sprouting a further inference of hence the investigation carried out by the Investigating Officer being both slanted and tainted besides distorted whereupon no reliance can be placed by this Court, stands comprised in the testimony constituted in the cross-examination of PW-3. In the cross-examination of PW-3 there exists a palpable disclosure of the house of the local pradhan standing located in close vicinity to the spot where the apposite proceedings were held by the Investigating Officer. Moreover, the Investigating Officer in his deposition has therein made a disclosure qua the existence of village Katindhi about 100 meters away from the site of occurrence and of the house of Pradhan of the Gram Panchayat of the village standing located on the road. However, despite availability of independent witnesses in close proximity to the site of occurrence the Investigating Officer omitted to solicit their participation in the apposite proceedings. However, despite availability of independent witnesses in close proximity to the site of occurrence the Investigating Officer omitted to solicit their participation in the apposite proceedings. The omission on the part of the Investigating Officer, despite availability of independent witnesses in close proximity to the site of occurrence, to associate them in the apposite proceedings, is obviously construable to be both intentional and deliberate for camouflaging the truth qua the occurrence. Furthermore, the inference which is available to be drawn by this Court is of the Investigating Officer having carried out a slanted besides a contorted as well as a contrived investigation whereupon no reliance can be placed by this Court. In sequel, the genesis of the prosecution version founded upon a skewed, faulty and partisan investigation cannot be lent credence by this Court. 9. Be that as it may, it was also incumbent upon the prosecution to fortifyingly establish the factum probandum in as much as of the case property produced before the trial Court being linkable to its recovery standing effectuation from the alleged conscious and exclusive possession of the accused in the manner espoused by the prosecution. The germane besides apt material for forming a conclusion qua the case property as produced in Court being linkable to the apposite stage of its recovery from the alleged conscious and exclusive possession of the accused in the manner propagated by the prosecution, stood embedded in the apposite descriptive entries qua it, recorded in the Malkhana register of the police station concerned. Imperatively at the stage contemporaneous to its production in Court by the learned PP for its being shown to the PW (a) the former was enjoined to produce in Court either the abstract of the malkhana register personificatory of narrations or descriptions borne thereon being compatible or congruous to the one borne on seizure memo as shown to the prosecution witnesses (b) or he was obliged to elicit from the PW to whom the case property stood shown in Court by him communications portraying the factum of it being carried by them on its being handed over to them by an authorized official after its retrieval by the latter from the Malkhana concerned whereupon it stood handed over by them to the learned PP for facilitating on its production by him in Court emanation of apposite elicitations from them unveiling the factum of it being the case property as attributed by the prosecution to the accused (c) even in the face of the aforesaid omission the learned PP at the time of production of case property in Court, for its being shown to the PWs for theirs deposing qua it being the very same property as was recovered from the alleged conscious and exclusive possession of the accused in the manner as propagated by the prosecution to yet gain muscle was obliged to on its production in Court by him besides prior to its being shown to the PWs communicate before it the factum of his having received it from an empowered official after its retrieval by the latter from the Malkhana concerned. 10. 10. However, a close and circumspect reading of the testimonies of PW-10 to whom the case property on its production in Court by the learned PP was shown omits to unfold (a) the factum of either at the stage contemporaneous to its production in Court by the learned PP for its being shown to the PWs aforesaid he divulged to the trial Court the factum of his having received it from an authorized officer on its retrieval by the latter from the Malkhana concerned (b) nor is there any emanation in the deposition of PW aforesaid of his having received it from an authorized official on its retrieval by the latter from the malkhana concerned, (c) besides there is no communication by him in his recorded deposition on oath of his carrying with him at the time of recording of his deposition in Court during course whereof the learned PP showed him the case property, the relevant abstract of the malkhana register wherefrom compatibility intra-se descriptions or narrations borne thereon on its comparison with the abstract of the malkhana register could stand either disinterred or fathomed, for as a corollary rendering a conclusion of the case property as produced in Court being the one as stood recovered from the conscious and exclusive possession of the accused. 11. The summom bonum of the above discussion is of the omissions aforesaid countervailing the propagation of the prosecution of case property produced in Court by the learned PP for its being shown to PW aforesaid being relatable to the contraband recovered from the alleged conscious and exclusive possession of the accused under memo PW-1/D. 12. The crux of the above discussion is of the prosecution having not adduced cogent and emphatic evidence in proving the guilt of the accused. The appreciation of evidence by the learned trial Court does not suffer from any infirmity as well as perversity. Consequently, reinforcingly, it can be formidably concluded, that, the findings of the learned trial Court do not merit interference. 13. In view of the above discussion, the instant appeal is accordingly dismissed, and, the judgment of the learned trial Court is maintained and affirmed.