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2015 DIGILAW 1895 (HP)

State of H. P v. Dalip Kumar

2015-12-16

RAJIV SHARMA, SURESHWAR THAKUR

body2015
JUDGMENT : Sureshwar Thakur, J. This appeal is directed against the judgment rendered on 6.6.2015 by the learned Special Judge (II), Mandi, District Mandi, H.P., in Sessions trial No. 6 of 2014, 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 6.1.2014, HC Chint Ram, HC Dharmender Kumar, HC Ram Lal, C Devender Kumar and LC Rekha Devi had laid a Nakka at place Nagchala. A HRTC Bus bearing registration No.HP-65-3458 came there from Manali Side. The bus was stopped and checked. While checking the bus the accused was found occupying seat No. 43 carrying a bag placed between his legs. The bag was checked by the police in presence of Naresh Kumar and Kuldeep Kumar, the driver and conductor of the bus respectively. Inside the bag there was a newspaper containing stick type cannabis which was wrapped with a green and blue in coloured polythene. Some of the sticks were not wrapped. The cannabis was weighed at the spot and its weight was found 1 Kg 400 grams. The case property was put in the same bag and it was sealed at the spot. The seal after use was given to the witness Kuldeep Kumar. NCB form in triplicate was filled. 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. 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. M.A Khan, learned Additional 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 mis-appreciation 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-5 weighing 1 Kg. 400 grams was effected under memo Ex. PW-2/A from a rucksack kept by the accused between his legs while his occupying seat No. 43 in the bus aforesaid. 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 factum of 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 factum 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 depositions 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 stood afflicted with any vice of intra se contradictions rather when they have deposed qua the manner of recovery of contraband aforesaid 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. 400 grams under recovery memo Ex. PW-2/A standing recovered from his conscious and exclusive possession while his carrying it in a rucksack kept by him between his legs while his occupying seat No. 43 in a bus bearing registration No. HP-65-3458. 8. In the instant case, independent witnesses PW-2 Kuldeep Kumar and PW-3 Naresh Kumar have not lent support to the prosecution case qua the factum of recovery of cannabis Ex. P-5 weighing 1 Kg. 400 grams standing effectuated in their respective presence. Omission of support by the independent witnesses to the genesis of the prosecution case of the aforesaid item of contraband standing recovered under Memo PW-2/A from the conscious and exclusive possession of the accused in their respective presence vitiates the testimony of the official witnesses qua the factum aforesaid besides belittles the creditworthiness of the genesis of the prosecution case. Apart from the factum of independent witnesses not lending sustenance to the genesis of the prosecution version there exist material contradictions in the depositions of official witnesses which rip apart the tenacity of their depositions embodying therein the genesis of the prosecution case. Apart from the factum of independent witnesses not lending sustenance to the genesis of the prosecution version there exist material contradictions in the depositions of official witnesses which rip apart the tenacity of their depositions embodying therein the genesis of the prosecution case. The rife contradictions qua the genesis of the prosecution case occurring in the testimonies of official witnesses stand unraveled in the deposition comprised in the crossexamination of PW-5 C. Devender Kumar vis-à-vis the unfoldments thereto comprised in the deposition of PW-6 in as much the former disclosing therein of the accused at the relevant time occupying seat No. 42 whereas in dire contradiction thereto the latter divulging therein the factum of the accused occupying seat No. 43. Even though, PW-6 has in his deposition made a disclosure therein in tandem with the prosecution version of the accused at the relevant time occupying seat No. 43, nonetheless with PW-5 deposing in stark opposition to him paves way for an inference of unavailability of PW-5 at the site of occurrence whereat the apposite proceedings stood initiated and concluded. Given the aforesaid inference of unavailability of PW-5 at the apposite stage at the site of occurrence renders discardable his testimony qua the occurrence, hence an inference is drawable of the investigating Officer having conjured the presence of PW-5 at the site of occurrence with an oblique motive to smother the truth qua its initiation and conclusion thereat. Besides PW-9 HC Chint Ram has deposed of the police party having departed from Police Station at about 9.05 a.m. whereas PW-6 has deposed qua the police personnel having departed from the police station at about 9.55 a.m. Given the variance in the depositions of PW-9 and PW-6 qua the departure of police personnel from the police station concerned begets an inference of the Investigating Officer having departed from the police station unaccompanied by PW-6. In sequel a deduction is ensuable of even PW-6 being unavailable at the site of occurrence contemporaneously alongwith the Investigating Officer. Hence his testimony too is discardable besides can be construed to be not lending any support to the genesis of the prosecution case. 9. The crux of the above discussion is of the prosecution having not adduced cogent and emphatic evidence in proving the guilt of the accused. Hence his testimony too is discardable besides can be construed to be not lending any support to the genesis of the prosecution case. 9. 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 the evidence as done 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 acquittal recorded by the learned trial Court do not merit interference. 10. In view of the above discussion, the instant appeal is dismissed and the judgment of the learned trial Court is maintained and affirmed.