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Himachal Pradesh High Court · body

2016 DIGILAW 1258 (HP)

Hari Narayan Jaat v. State of H. P.

2016-07-01

RAJIV SHARMA, VIVEK SINGH THAKUR

body2016
JUDGMENT : Rajiv Sharma, J. 1. This appeal is instituted against the judgment dated 24.11.2015, rendered by the learned Special Judge, Kullu, H.P., in Sessions trial No. 57/2014, whereby the appellant-accused (hereinafter referred to as the accused), who was charged with and tried for offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the ND & PS Act), has been convicted and sentenced to undergo rigorous imprisonment for a term of ten years along with fine of Rs.1,00,000/- and in default of payment of fine, he was further ordered to undergo simple imprisonment for a period of one year. 2. The case of the prosecution, in a nut shell, is that on 22.4.2014 as per rapat No. 15(A), the police team headed by ASI Rajesh Kumar (PW-9) proceeded for nakabandi towards Bajaura at about 9:45 AM. When the team was present at Bajaura, a Punjab Roadways bus, bearing No. PB-12Q-9963 reached at Check Post. It was enroute from Manali to Chandigarh. It was being driven by Jasbir Singh and its conductor was Harjit Singh (PW-3). The bus was stopped for checking. ASI Rajesh Kumar (IO) along with HC Hitesh (PW-8) and Conductor Harjit Singh (PW-3) entered the bus from rear door. The driver was also called. They started checking the luggage of the passengers. On checking, accused was found sitting on seat No. 22 in the bus. He was carrying black colour bag on his lap. Accused got frightened on seeing the police party. On asking about the contents of the bag, accused could not give satisfactory reply. He was called out of the bus along with the bag. The IO in the presence of witnesses gave his personal search to accused and during his personal search nothing incriminating was found. Thereafter, the bag carried by the accused was searched by the IO and on search, three packets wrapped with cello tape were found in the bag. On opening the packets, black colour substance in the shape of balls was recovered which was found to be charas. It weighed 2.500 kgs. Out of the recovered charas, sample of 25 grams was separated which was packed in a cloth parcel and sealed with three seals of letter “T”. The remaining bulk charas was separately packed and sealed in another cloth parcel by putting eight seals of letter “T”. It weighed 2.500 kgs. Out of the recovered charas, sample of 25 grams was separated which was packed in a cloth parcel and sealed with three seals of letter “T”. The remaining bulk charas was separately packed and sealed in another cloth parcel by putting eight seals of letter “T”. Bag was separately packed and sealed in third parcel. Samples of seal “T” were drawn. NCB form in triplicate was filled vide Ext. PW-5/D. Thereafter, IO prepared rukka Ext. PW-8/A and sent to the Police Station Bhuntar, on the basis of which FIR Ext. PW-6/A was registered. The case property was produced before PW-7 SI Lal Singh, who resealed the same with seal “D”. He filled in the relevant columns of NCB form. The case property along with the documents was deposited with PW-5 MHC Gian Chand. He made entry in the malkhana register. On 23.4.2014, PW-5 MHC Gian Chand sent the same to FSL Junga. The report of the FSL is Ext. PW-7/B. The investigation was completed and the challan was put up before the Court after completing all the codal formalities. 3. The prosecution, in order to prove its case, has examined as many as nine witnesses. The accused was also examined under Section 313 Cr.P.C. According to him, he was falsely implicated. The learned trial Court convicted the accused, as noticed hereinabove. Hence, this appeal. 4. Mr. Ramesh Sharma, Advocate, has vehemently argued that the prosecution has failed to prove its case against the accused. On the other hand, Mr. M.A. Khan, Addl. Advocate General for the State has supported the judgment of the learned trial Court dated 24.11.2015. 5. We have heard the learned counsel for both the sides and have also gone through the judgment and records of the case carefully. 6. PW-2 HHC Thakur Singh testified that he remained posted in Police Station Bhuntar from November, 2013 to May, 2014. On 23.4.2014, MHC Gian Chand gave him one sealed parcel sealed with eight seals of “T” and four seals of “D”, NCB form in triplicate, recovery memo, copy of FIR, sample seals “T” and “D” vide RC No. 93/2014 for depositing in FSL, Junga. On 24.4.2014, he deposited the same at FSL Junga under receipt. 7. PW-3 Harjit Singh, Conductor testified that on 22.4.2014, he was deputed in bus bearing No. PB-12Q-9963 with Jasbir Singh driver to cater Manali Chandigarh bus service. On 24.4.2014, he deposited the same at FSL Junga under receipt. 7. PW-3 Harjit Singh, Conductor testified that on 22.4.2014, he was deputed in bus bearing No. PB-12Q-9963 with Jasbir Singh driver to cater Manali Chandigarh bus service. At about 9:45 AM, their bus was stopped by the police at Bajaura check post for checking. There were about 15-20 passengers in the bus. The passengers were directed to get their luggage checked. One person was sitting at seat No. 22. He was asked about his luggage and he told that the bag belonged to him. The person had kept the luggage on his legs. The bag was checked. The police took that person and bag to a tent at check post. He along with the driver also accompanied the police. The person disclosed his identity. The bag was found to be containing three packets which were taped from outside. On opening the tapes, black coloured substance in the shape of small balls was recovered. It was found to be charas. It weighed 2.500 kgs. The police separated 25 grams of substance from the bulk and sealed it in a cloth parcel. The remaining substance was packed in a cloth parcel and sealed. The bag was packed and sealed in third parcel. The police prepared some documents. The bus ticket of the person was obtained from him. The police took those parcels to the Police Station. Thereafter, they left for Chandigarh on the same route. He admitted his signatures on Ext. PW-3/A as well as signatures of driver Jasbir Singh. He also admitted his signatures on Ext. PW-3/B. The ticket issued to the accused is Ext. PW-3/G and the photocopy of the same is Ext. PW-3/H. In his cross-examination, he admitted that ticket Ext. PW-3/G did not bear the name of the accused. The bus started from Manali at 7:25 AM. There were shops and residential houses near the check post. The police did not send any person in his presence to search for independent witnesses. The bag was not opened inside the bus. It was lifted and touched by the police and then the accused was asked to come down along with the bag. It took around 1½ hours for the police to complete the proceedings. 6. PW-5 MHC Gian Chand testified that he was working as MHC in the Police Station Bhuntar. The bag was not opened inside the bus. It was lifted and touched by the police and then the accused was asked to come down along with the bag. It took around 1½ hours for the police to complete the proceedings. 6. PW-5 MHC Gian Chand testified that he was working as MHC in the Police Station Bhuntar. He brought the malkhana and RC register of the Police Station. On 22.4.2014, SHO Lal Chand deposited three sealed parcels with him. The first parcel was sealed with eight seals of seal “T”, four seals of “D” and stated to be containing 2.475 kgs. of charas. The second parcel was sealed with three seals of “T” and three seals of “D” stated to be containing 25 grams of charas. The third parcel was sealed with eight seals of “T” and stated to be containing a pithu bag. He also deposited copies of FIR, recovery memo, samples of seal “T” and “D”, NCB form in triplicate. He made entries at Sr. No. 129 of the malkhana register vide Ext. PW-5/Aon 23.4.2014, he sent one parcel containing 2.475 kgs of charas to FSL Junga along with sample seals “T” and “D”, copies of recovery memo, FIR, NCB form in triplicate and docket through HHC Thakur Singh for examination. As long as the case property remained in his possession, no tampering was done with the same. 7. PW-7 SI Lal Chand deposed that on 22.4.2014 ASI Rajesh Kumar produced the case property before him duly sealed containing 2.475 kgs of charas and another sealed parcel stated to be containing 25 grams of charas. He resealed the same with his own seal “D”. He deposited the case property with the MHC. 8. PW-8 HC Hitesh Kumar deposed the manner in which the accused was apprehended from the bus sitting on seat No. 22. The search, seizure and sealing proceedings were completed on the spot. In his cross-examination, he admitted that surrounding TCP Bajaura, there were residential houses and shops. The IO did not make any efforts to call for local witnesses from such houses and shops. The personal search of the accused was undertaken. 9. PW-9 ASI Rajesh Kumar also deposed the manner in which the accused was apprehended. NCB form in triplicate was filled in by him. He prepared rukka Ext. PW-8/A. It was sent to the Police Station through HC Hitesh Kumar. The personal search of the accused was undertaken. 9. PW-9 ASI Rajesh Kumar also deposed the manner in which the accused was apprehended. NCB form in triplicate was filled in by him. He prepared rukka Ext. PW-8/A. It was sent to the Police Station through HC Hitesh Kumar. He prepared the spot map Ext. PW-9/A. He handed over the case property to SHO in the Police Station. In his cross-examination, he deposed that no one else was sitting by the side of the accused. The passengers were sitting in the front and back seat on which the accused was sitting. He admitted that there were houses and shops surrounding TCP Bajaura. Thousands of vehicles used to ply day and night on the National Highway No. 21. He did not try to associate any person from the locality at the time of search nor did he try to stop any vehicle in order to associate occupants of the vehicles. He tried to associate passengers of the bus but no one was willing, as they said that they were going in connection with their important work. According to him, the bus remained at the spot till 2:00 PM. The passengers of the bus had gone by that time. 10. The prosecution has examined PW-3 Harjit Singh, PW-8 HC Hitesh Kumar and PW-9 ASI Rajesh Kumar in order to prove its case. PW-3 Harjit Singh is the conductor of the bus bearing No. PB-12Q-9963. He has categorically testified in his statement that the accused was sitting on seat No. 22 of the bus. He was asked about the luggage, which he admitted that it belonged to him. The person had kept the luggage on his legs. He has identified his signatures on memos and that of driver Jasbir Singh. PW-8 HC Hitesh Kumar and PW-9 ASI Rajesh Kumar are official witnesses. They have supported the case of the prosecution to the hilt. The prosecution has proved that the accused was issued ticket by PW-3 Conductor Harjit Singh vide Ext. PW-3/G. The I.O. has associated PW-3 Conductor Harjit Singh as independent witness. PW-3 Conductor Harjit Singh had no inimical disposition towards the accused. 11. PW-9 ASI Rajesh Kumar has deposed that he has tried to associate the passengers of the bus as witnesses but they were not willing to be associated as witnesses. Merely that in memo Ext. PW-3/G. The I.O. has associated PW-3 Conductor Harjit Singh as independent witness. PW-3 Conductor Harjit Singh had no inimical disposition towards the accused. 11. PW-9 ASI Rajesh Kumar has deposed that he has tried to associate the passengers of the bus as witnesses but they were not willing to be associated as witnesses. Merely that in memo Ext. PW-3/B, FIR number has not been written would not in any manner prejudice the case of the accused. All the codal formalities were completed on the spot. The samples were properly sealed. The case property was produced before PW-7 SI Lal Singh. He resealed the same and deposited it with the MHC. PW-5 MHC Gian Chand has made necessary entry in the malkhana register and the case property was thereafter sent to FSL, Junga. The report of the FSL, Junga is Ext. PW-7/B. The case property remained in safe custody from its seizure till its production in the Court and it was the same case property which was recovered from the accused. 12. According to PW-3 Conductor Harjit Singh, they left Bajaura with bus at 11:15 AM and PW-9 ASI Rajesh Kumar has deposed that the bus remained at the spot till 2:00 PM. It is a minor contradiction since the accused was apprehended on 22.4.2014 and the statements of PW-3 Conductor Harjit Singh and PW-9 ASI Rajesh Kumar were recorded on 20.11.2014 and 9.10.2015, respectively. The witnesses are not supposed to remember the time with mathematical precision. 13. Their lordships of the Hon’ble Supreme Court in the case of Bharwada Bhoginbhai Hirjibhai vs. State of Gujarat, reported in AIR 1983 SC 753 , have held that over much importance cannot be given to minor discrepancies. Discrepancies which do not go to the root of the matter and shake the basic version of the witnesses, therefore, cannot be annexed with undue importance. More so, when the all important “probabilities-factor” echoes in favour of the version narrated by the witnesses. It has been held as follows: “5. It appears that the parents of P.W. 1 as well as parents of P.W. 2 wanted to hush up the matter. Some unexpected developments however forced the issue. The residents of the locality somehow came to know about the incident. And an alert Woman Social Worker, P.W. 5 Kundanben, President of the Mahila Mandal in Sector 17, Gandhinagar, took up the cause. Some unexpected developments however forced the issue. The residents of the locality somehow came to know about the incident. And an alert Woman Social Worker, P.W. 5 Kundanben, President of the Mahila Mandal in Sector 17, Gandhinagar, took up the cause. She felt indignant at the way in which the appellant had misbehaved with two girls of the age of his own daughter, who also happened to be friends of his daughter, taking advantage of their helplessness, when no one else was present. Having ascertained from P.W. 1 and P.W. 2 as to what had transpired, she felt that the appellant should atone for his infamous conduct. She therefore called on the appellant at his house. It appears that about 500 women of the locality had also gathered near the house of the appellant. Kundanben requested the appellant to apologize publicly in the presence of the woman who had assembled there. If the appellant had acceded to this request possibly the matter might have rested there and might not have come to the court. The appellant, however, made it a prestige issue and refused to apologize. Thereupon the police was contacted and a complaint was lodged by P.W. 1 on 19 Sept. 1975. P.W. 1 was then sent to the Medical officer for medical examination. The medical examination disclosed that there was evidence to show that an attempt to commit rape on her had been made a few days back. The Sessions Court as well as the High Court have accepted the evidence and concluded that the appellant was guilty of sexual misbehavior with P.W. 1 and P.W. 2 in the manner alleged by the prosecution and established by the evidence of P.W. 1 and P.W. 2. Their evidence has been considered to be worthy of acceptance it is a pure, finding of fact recorded by the Sessions Court and affirmed by the High Court. Their evidence has been considered to be worthy of acceptance it is a pure, finding of fact recorded by the Sessions Court and affirmed by the High Court. Such a concurrent finding of fact cannot be reopened in an appeal by special leave unless it is established: (1) that the finding is based on no evidence or (2) that the finding is perverse, it being such as no reasonable person could have arrived at even if the evidence was taken at its face value or (3) the finding is based and built on inadmissible evidence, which evidence, if excluded from vision, would negate the prosecution case or substantially discredit or impair it or (43 some vital piece of evidence which would tilt the balance in favour of the convict has been overlooked, disregarded, or wrongly discarded. The present is not a case of such a nature. The finding of guilt recorded by the Sessions Court as affirmed by the High Court has been challenged mainly on the basis of minor discrepancies in the evidence. We do not consider it appropriate or permissible to enter upon a reappraisal or re-appreciation of the evidence in the context of the minor discrepancies painstakingly highlighted by learned counsel for the appellant. Over much importance cannot be attached to minor discrepancies. The reasons are obvious: (1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen. (2) Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details. (3) The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind whereas it might go unnoticed on the part of another. (4) By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder. (4) By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder. (5) In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess work on the spur of the moment 1.1 at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time-sense of individuals which varies from person to person. (6) Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on. (7) A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub-conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him-Perhaps it is a sort of a psychological defence mechanism activated on the spur of the moment. 6. Discrepancies which do not go to the root of the matter and shake the basic version of the witnesses therefore cannot be annexed with undue importance. More so when the all important "probabilities-factor" echoes in favour of the version narrated by the witnesses.” 14. Their lordships of the Hon’ble Supreme Court in the case of Karamjit Singh vs. State (Delhi Administration), reported in AIR 2003 SC 1311 , have held that there is no principle of law that without corroboration by independent witnesses their testimony cannot be relied upon. Presumption that person acts honestly applies as much in favour of police personnel as of other persons. It has been held as follows: “8. Presumption that person acts honestly applies as much in favour of police personnel as of other persons. It has been held as follows: “8. Shri Sinha, learned senior counsel for the appellant, has vehemently urged that all the witnesses of recovery examined by the prosecution are police personnel and in absence of any public witness, their testimony alone should not be held sufficient for sustaining the conviction of the appellant. In our opinion the contention raised is too broadly stated and cannot be accepted. The testimony of police personnel should be treated in the same manner as testimony of any other witness and there is no principle of law that without corroboration by independent witnesses their testimony cannot be relied upon. The presumption that a person acts honestly applies as much in favour of police personnel as of other persons and it is not a proper judicial approach to distrust and suspect them without good grounds. It will all depend upon the facts and circumstances of each case and no principle of general application can be laid down. PW 11 Pratap Singh has clearly stated in the opening part of his examination-in-chief that ACP Shakti Singh asked some public witnesses to accompany them but they showed their unwillingness. PW10 Rajinder Prasad, SI has given similar statement and has deposed that despite their best efforts no one from public was willing to join the raiding party due to the fear of the terrorists. Exactly similar statement has been given by PW9 R.D. Pandey. We should not forget that the incident took place in November 1990, when terrorism was at its peak in Punjab and neighbouring areas. The ground realities cannot be lost sight of that even in normal circumstances members of public are very reluctant to accompany a police party which is going to arrest a criminal or is embarking upon search of some premises. At the time when the terrorism was at its peak, it is quite natural for members of public to have avoided getting involved in a police operation for search or arrest of a person having links with terrorists. It is noteworthy that during the course of the cross-examination of the witness the defence did not even give any suggestion as to why they were falsely deposing against the appellant. It is noteworthy that during the course of the cross-examination of the witness the defence did not even give any suggestion as to why they were falsely deposing against the appellant. There is absolutely no material or evidence on record to show that the prosecution witnesses had any reason to falsely implicate the appellant who was none else but a colleague of theirs being a member of the same police force. Therefore, the contention raised by Shri Sinha that on account of non-examination of a public witness, the testimony of the prosecution witnesses who are police personnel, should not be relied upon has hardly any substance and cannot be accepted.” 15. Thus, the prosecution has proved its case against the accused beyond reasonable doubt and there is no occasion for us to interfere with the well reasoned judgment of the learned trial Court dated 24.11.2015. 16. Accordingly, there is no merit in this appeal and the same is dismissed.