Research › Search › Judgment

Himachal Pradesh High Court · body

2016 DIGILAW 2327 (HP)

Bakhtawar Singh v. State of Himachal Pradesh

2016-11-03

SURESHWAR THAKUR

body2016
JUDGMENT : Sureshwar Thakur, J. The instant appeal is directed against the judgement rendered on 30.5.2015 recorded by the learned Special Judge, Ghumarwin, District Bilaspur, Himachal Pradesh, Camp at Bilaspur, in Sessions trial No. 11/3 of 2013, whereby the appellant stands convicted and sentenced to undergo rigorous imprisonment for four years and to pay a fine of Rs.25,000/- and in default to undergo simple imprisonment for six months for commission of an offence punishable under Section 20 (b) (ii) (B) of the Narcotic Drugs and Psychotropic Substances Act, 1985. 2. The prosecution story, in brief, is that Lakvir Singh, Inspector alongwith police party were present near Kali Mata Temple on patrolling duty on 18.4.2013 in an official vehicle. At about 1.15 p.m. the accused came from the opposite side wearing a purple coloured T-shirt and a black pant. On seeing the police party he turned back and tried to flee away. On suspicion, the accused was chased by the police party and was nabbed. On inquiry the accused disclosed his name as Bakhtawar Singh. The personal search of the accused was conducted. From the right pocket of the pant, a plastic envelop was recovered. On being opened, it was found to be containing a black coloured substance in stick shapes. Inspector Lakhvir Singh had tested the said substance by burning a small piece and it was found to be charas. Memo regarding identification of charas was prepared. Thereafter the case property was taken into possession and after completing all codal formalities and on conclusion of the investigation into the offence, allegedly committed by the accused challan was prepared and filed in the Court. 3. Charge stood put to the accused by the learned trial Court for his committing offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 to which he pleaded not guilty and claimed trial. 4. In order to prove its case, the prosecution examined 7 witnesses. On closure of prosecution evidence, the statement of the accused under Section 313 of the Code of Criminal Procedure, was recorded in which he pleaded innocence and claimed false implication. He chose to lead evidence in defence and examined three witnesses in defence. 5. On an appraisal of the evidence on record, the learned trial Court returned findings of conviction against the accused/appellant herein. 6. He chose to lead evidence in defence and examined three witnesses in defence. 5. On an appraisal of the evidence on record, the learned trial Court returned findings of conviction against the accused/appellant herein. 6. The appellant stands aggrieved by the judgement of conviction recorded by the learned trial Court. The learned counsel for the appellant has concertedly and vigorously contended qua the findings of conviction recorded by the learned trial Court standing not based on a proper appreciation by it of the evidence on record, rather, theirs standing sequelled by gross mis-appreciation of the material on record. Hence, he contends qua the findings of conviction being reversed by this Court, in the exercise of its appellate jurisdiction and being replaced by findings of acquittal. 7. On the other hand, the learned Additional Advocate General, has, with considerable force and vigour, contended that the findings of conviction, recorded by the Court below, standing based on a mature and balanced appreciation of evidence on record and hence theirs not necessitating interference rather theirs meriting 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. Charas weighing 230 grams stood purportedly recovered from the conscious and exclusive possession of the accused under memo Ext.PW-2/B. A perusal of the aforesaid memo whereunder charas stood recovered unveils of its recovery standing effectuated from the pocket of the pants worn by the accused. The learned trial Court on traversing the evidence on record had concluded of the prosecution successfully substantiating the trite factum aforesaid. The conclusion aforesaid formed by the learned trial Court stood anvilled upon the factum of the prosecution witnesses deposing in tandem unbereft of any inconsistency qua the preparation of recovery memo Ext.PW-2/B whereunder recovery of charas stood effectuated in the manner delineated therein, occurring at the site of occurrence divulged therein. The conclusion aforesaid formed by the learned trial Court stood anvilled upon the factum of the prosecution witnesses deposing in tandem unbereft of any inconsistency qua the preparation of recovery memo Ext.PW-2/B whereunder recovery of charas stood effectuated in the manner delineated therein, occurring at the site of occurrence divulged therein. However, the learned counsel appearing for the appellant has submitted with force that the recitals disclosing therein qua the preparation of Ext.PW-2/B occurring at the site of occurrence standing belied by the factum of (i) a communication occurring in the testimony comprised in the cross-examination of PW-2 qua a temple existing in close proximity to the site of occurrence, temple whereof stands testified by him to be manned by its priest Raja Ram who is echoed therein to remain present thereat till 6.00 in the evening whereas the relevant occurrence taking place at 1.15 p.m warranted his association in the relevant proceedings whereas his standing omitted to be associated thereat renders suspect the preparation of Ext.PW-2/A. (ii) With occurrence of a communication in the deposition comprised in the cross-examination of PW-2 qua the accused after his standing nabbed and searched his standing taken to his house besides his also voicing therein qua the Investigating Officer also holding the search of his house likewise rendering suspect the factum of recovery of the relevant item of contraband in the manner reflected in the relevant memo aforesaid. 10. Even though there is no imperative necessity for the Investigating Officer to associate independent witnesses in the relevant proceedings also non association of independent witnesses by the Investigating Officer in the relevant proceedings would not scuttle the vigour of the prosecution version rather conspicuously, when the testifications of official witnesses omit to unravel any occurrence therein of any blatant interse or intra se contradictions, the factum of non solicitation of independent witnesses by the Investigating Officer in the apposite proceedings despite their availability would not assume any paramount significance. However, when a police official PW-2 has in his testimony made an unequivocal articulation qua the accused after standing nabbed at the relevant site of occurrence his standing accosted by the Investigating Officer to his house besides his also testifying qua the house of the accused also standing subjected to search, significantly when thereupon the testifications of official witnesses stand stained with a vice of intra se contradiction, it was a peremptory obligation cast upon the investigating officer concerned to for belying the efficacy of intra se contradictions occurring in the testifications of official witnesses qua the facet aforesaid, to hence associate independent witnesses in the relevant proceedings which purportedly occurred at the site mentioned in the relevant memo whereat the accused stood subjected to a search whereupon the vigour of the prosecution case would stand enhanced. Moreover, the aforesaid articulation made by PW-2 in his cross-examination did for dispelling, the factum qua the effectuation of recovery of the relevant item of contraband from the conscious and exclusive possession of the accused in the manner reflected in the relevant memo not hence occurring at the relevant site of occurrence, warrant the association by the Investigating Officer of independent witnesses in the relevant proceedings, especially when for reasons aforesaid they were available in close proximity thereof. However, he omitted to do so. The prosecution witnesses consistently in their testifications denied the factum of DW-1 owner of a Dhaba adjoining the relevant site of occurrence not holding his commercial establishment in proximity to the site of occurrence whereupon it is submitted by the learned Additional Advocate General of his association in the relevant proceedings being unsolicitable rendering hence his non association in the relevant proceedings to be insignificant. Also he contends qua with the prosecution witnesses consistently denying the suggestion put to them of Tarsem Singh and Dina Nath taking tea at the Dhaba of Sodhi Ram similarly rendered their non association in the apposite proceedings to be irrelevant. However, Sodhi Ram and Dina Nath stepped into witness box as defence witnesses. They in their respective testifications deposed with intra se corroboration qua the relevant factum qua effectuation of recovery of the relevant item of contraband pronounced in the relevant memo not occurring in proximity to the Dhaba of DW-1 contrarily they proceeded to consistently pronounces in their depositions qua theirs witnessing the police officials to accost the accused to his house. They in their respective testifications deposed with intra se corroboration qua the relevant factum qua effectuation of recovery of the relevant item of contraband pronounced in the relevant memo not occurring in proximity to the Dhaba of DW-1 contrarily they proceeded to consistently pronounces in their depositions qua theirs witnessing the police officials to accost the accused to his house. The aforesaid testifications unraveled by defence witnesses acquire a virtue of veracity also their testimonies are undiscardable given their relevant testifications remaining unrepulsed during the course of an inexorable cross-examination to which they stood subjected to besides when the testifications of defence witnesses stand on a pedestal coequal to the testifications of prosecution witnesses whereupon conspicuously when their relevant propagations for reasons aforesaid acquire sinew in sequel thereto the depositions of defence witnesses warrant imputation of credence thereto preeminently when PW-2 in his cross-examination has also supported the aforesaid factum wherefrom imperatively the ensuing sequel is of a pervasive doubt seeping the prosecution version qua recovery of the relevant item of contraband standing effectuated in the manner propagated in the relevant memo. Significantly also given the evident availability of the aforesaid witnesses in proximity to the relevant site of occurrence when stands unbelied by the prosecution rendered hence imperative their association in the relevant proceedings whereas theirs standing unassociated in the relevant proceedings spurs an inference of the prosecution failing to dispel the factum of the relevant seizure occurring at a place other than pronounced in the relevant memo. The prosecution case would stand on a solemn pedestal only when the Investigating Officer concerned had associated in the relevant proceedings the priest of the temple who as deposed by PW-2 was available at the relevant time in proximity to the relevant site of occurrence. However, with the priest of the temple located in close proximity to the site of occurrence remaining unassociated by the Investigating Officer concerned in the relevant proceedings begets an inference qua the Investigating Officer hence concerting to smother the truth of the prosecution version. Also therefrom an inference arises qua his concealing besides camouflaging the factum of effectuation of recovery of the relevant item of contraband not occurring at the relevant site of occurrence rather its recovery occurring elsewhere whereupon the propagation made by the prosecution qua its recovery standing effectuated in the manner spelt in the relevant memo loosing its vigour and credibility. Also therefrom an inference arises qua his concealing besides camouflaging the factum of effectuation of recovery of the relevant item of contraband not occurring at the relevant site of occurrence rather its recovery occurring elsewhere whereupon the propagation made by the prosecution qua its recovery standing effectuated in the manner spelt in the relevant memo loosing its vigour and credibility. The learned trial Court while relying upon the depositions of the prosecution witnesses has omitted to appreciate the import of the aforesaid testifications. Consequently its discarding the import of the aforesaid echoings occurring in the testification of PW-2 besides in the testifications of defence witnesses has sequelled its drawing erroneous findings qua the accused. 11. Also a perusal of the report of FSL concerned comprised in Ext.PW-4/D reveals of its standing detected to be in the form of sticks and one ball. However, when the relevant case property stood produced in Court for its standing shown to PW-1 theirs occurs a testification of it being only in the form of sticks. Consequently, when PW-1 to whom the case property stood shown in Court has omitted to testify in tandem with the manifestations occurring in the report of the FSL concerned comprised in Ext.PW-4/D prods an inference qua the case property as produced in Court not constituting the one whereupon an opinion stood rendered by the FSL nor it can be concluded of its constituting the relevant case property which stood purportedly recovered under memo Ext.PW-2/B from the alleged conscious and exclusive possession of the accused. Consequently, reinforcingly, it can be formidably concluded, that, the findings of the learned trial Court merit interference. 12. In view of above discussion, the appeal is allowed and the impugned judgment rendered by the learned Special Judge, Ghumarwin, 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. 13. The Registry is directed to send the record forthwith, prepare forthwith in conformity with the judgment the release warrants of the accused and send the same to the Superintendent of the jail concerned.