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Himachal Pradesh High Court · body

2016 DIGILAW 2467 (HP)

STATE OF HIMACHAL PRADESH v. RAM LAL

2016-11-22

AJAY MOHAN GOEL, SANJAY KAROL

body2016
JUDGMENT : Ajay Mohan Goel, J. 1. By way of this appeal, the State has challenged the judgment passed by the Court of learned Special Judge, Kullu in Session Trial No. 30 of 2013 (278 of 2013) dated 17.6.2014, vide which learned Trial Court has acquitted the accused for the commission of offences punishable under Section 20 and 29 of the Narcotic Drugs & Psychotropic Substance Act, 1985 (in short 'the NDPS Act'). 2. The case of the prosecution was that on 2.3.2013 police party headed by Sub Inspector Ashok Kumar had laid a Naka at a place known as Parari Bridge and at around 2:30 a.m. one Maruti Van bearing registration No. HP-01K-3055 came there which was signaled to stop for the purpose of checking. Upon this accused Bhag Chand immediately opened the window of the van and fled away from the spot and while fleeing away, he threw a bag being carried by him on the road. Though police officials tried to chase him, however, he could not be chased due to darkness. While running away he (Bhag Chand) asked other accused Ram Lal to run away from the spot and on this accused Ram Lal who was driving the said vehic le also fled away from the spot with the vehicle. As per prosecution, police party chased the vehicle, however, the same could not be intercepted by them. Thereafter Investigating Officer, Ashok Kumar (PW9) associated ASI Jagjit Singh and Constable Mahesh as witnesses and in their presence he (Investigating Officer) took the bag which was thrown by accused Bhag Chand and checked it. It was found containing stick shaped black substance which on tasting was found to be charas. The recovered charas was weighed and the same was found to be 3.985 Kgs. The charas was again put in the same bag and sealed in cloth parcel with seal and Investigating Officer also filled-in the NCB forms in triplicate. Thereafter said parcel was taken into possession and seizure memo was prepared by the Investigating Officer. Ruqua was also prepared by the Investigating Officer and sent to the Police Station through Constable Man Chand, on the basis of which, FIR was registered. The Investigating Officer also prepared spot map and recorded statements of witnesses. Thereafter said parcel was taken into possession and seizure memo was prepared by the Investigating Officer. Ruqua was also prepared by the Investigating Officer and sent to the Police Station through Constable Man Chand, on the basis of which, FIR was registered. The Investigating Officer also prepared spot map and recorded statements of witnesses. On completion of proceedings on the spot Investigating Officer produced the sealed parcel along with relevant documents before SHO Neel Chand in the Police Station who resealed the same with seal 'A'. After completion of formalities the case property was deposited with MHC Sher Singh along with other relevant documents and on 3.3.2013 MHC sent the sealed parcel of charas along with case property to FSL, Junga through Constable Chande Ram and the report of FSL, Junga confirmed the contents of exhibit to be sample of charas. It was further the case of the prosecution that on 11.3.2013 both accused surrendered before the police at Police Post, Patlikuhal and accused Ram Lal also produced vehicle along with its documents which was taken into possession and accused persons were arrested by the police. 3. After completion of investigation challan was filed in the Court and as a prima face case was found against the accused accordingly they were charged for commission of offences punishable under Section 20 and 29 of the NDPS Act, to which they pleaded not guilty and claimed trial. 4. Learned trial court on the basis of evidence produced on record by the prosecution both ocular as well as documentary came to the conclusion that the prosecution was not able to prove its case against the accused beyond all reasonable doubt and had failed to bring home the guilt of the accused for the commission of offences for which they were charged. While arriving at the said conclusion, learned trial court held that the testimony of prosecution witnesses was not reliable neither it was found to be cogent as there were major contradictions and inconsistencies in the statement of prosecution witnesses which could not be satisfactorily explained by the prosecution. Besides this it was held by learned trial court that even the identity of accused could not be established by the prosecution. Besides this it was held by learned trial court that even the identity of accused could not be established by the prosecution. Learned trial court disbelieved the version of prosecution that accused in fact had surrendered on 11.3.2013 as, learned trial court on the basis of the contents of arrest memos concluded that these arrest memos nowhere suggested that accused had in fact surrendered. On these bases learned trial court acquitted the accused for commission of offences for which they were charged. 5. Feeling aggrieved by the said judgment of acquittal, the State has filed the present appeal. 6. Mr. Chauhan, learned Additional Advocate General has vehemently argued that the judgment of acquittal returned by learned trial court is perverse as the findings so arrived at by learned trial court are not borne out from the records of the case. Mr. Chauhan has submitted that learned trial court has failed to appreciate that the testimony of prosecution witnesses proved and corroborated the case of the prosecution on all material points and there were no major contradictions and inconsistencies in their statements as was held by learned trial court. Mr. Chauhan further argued that learned trial court also failed to appreciate that the prosecution witnesses had fully corroborated each other on the points of recovery of the charas and the factum of there being overwhelming evidence on record to prove the guilt of the accused beyond reasonable shadow of doubt had been dealt with by learned trial court in a slipshod manner. On these basis it was argued by Mr. Chauhan that the judgment returned by learned trial court warrants interference and the accused be convicted for commission of offences for which they were charged. 7. On the other hand Ms. Neha Scott learned counsel appearing for the respondents/accused argued that the judgment of acquittal returned in favour of the accused by learned trial court is neither perverse not it can be said that the findings so arrived at by learned trial court are not borne out from the records of the case. Ms. Scott has further argued that learned trial court on the basis of appreciation of evidence produced on record by the prosecution has rightly concluded that there were major contradictions and inconsistencies in the testimonies of the prosecution witnesses. It was argued by Ms. Ms. Scott has further argued that learned trial court on the basis of appreciation of evidence produced on record by the prosecution has rightly concluded that there were major contradictions and inconsistencies in the testimonies of the prosecution witnesses. It was argued by Ms. Scott that the findings returned by learned trial court that the prosecution has not been able to establish identity of the accused was also duly borne out from the records of the case. It was lastly argued by Ms. Scott that keeping in view the fact that there was a finding of acquittal returned against the accused by learned trial court and it could not be said that the said finding which was returned by learned trial court was not borne out from the records of the case, the said judgment passed by learned trial court called for no interference as there was no merit in the appeal. 8. We have heard learned counsel for the parties and have also gone through the records of the case as well as judgment passed by learned trial court. 9. A perusal of the records demonstrates that it was the case of the prosecution that accused persons were intercepted at around 2:30 a.m. when the police party had laid a Naka at Parari Bridge. It was the further case of the prosecution that when the said Maruti Van was intercepted one of the accused fled away after throwing the bag on the road from which charas was recovered and the other accused fled away with the vehicle and despite best efforts accused could not be intercepted and the charas was recovered from the bag so thrown by accused. To substantiate this contention prosecution has heavily relied upon the statements of PW3, Constable Mahesh, PW7, Constable Man Chand and PW9, Inspector Ashok Kumar who was also the Investigating Officer. 10. A perusal of statements of these three prosecution witnesses demonstrates that there are major contradictions and inconsistencies in their testimonies. 11. It has come in the deposition of PW3 that they had started from Police Station at 11:30 p.m. whereas PW7 has stated that they in fact had started from the police station at around 2:30 a.m. 12. 10. A perusal of statements of these three prosecution witnesses demonstrates that there are major contradictions and inconsistencies in their testimonies. 11. It has come in the deposition of PW3 that they had started from Police Station at 11:30 p.m. whereas PW7 has stated that they in fact had started from the police station at around 2:30 a.m. 12. As per PW3 when the vehicle was intercepted it was Sub Inspector Ashok Kumar who asked the driver about his particular whereas it has come in the testimony of PW7 that all of them had cordoned the jeep. 13. Whereas as per PW3 it was he, SI Ashok Sen, ASI Jagjit and PSI Parshant who chased the accused but he fled away from the spot. However, in the testimony of PW7 he has stated that accused Bhag Chand was chased by him, Chande Ram and Constable Mahesh. 14. Besides this, a perusal of the statement of Investigating Officer reveals that he has deposed that when accused Bhag Chand ran away from the vehicle he was chased by all the police officials. Not only this with regard to the recovery of the mobile phone it has come in the statement of PW7 that the mobile phone was recovered from inside the bag which was thrown by accused whereas PW9 Inspector Ashok Kumar Investigating Officer has stated that the mobile was recovered besides the bag from the road. Incidentally, as per PW7 the vehicle in issue was stopped by the police party from about a distance of 500 meters whereas it has come in the testimony of PW9 that the vehicle was stopped from about a distance of 100 meters. PW7 who took the Ruqua from the spot to police station has stated that when he was returning back from the Police Station along with case file he met the police party at Fozal, however, PW9 has stated in his testimony that the file was received by him at the spot. These are major contradictions and inconsistencies in the statements of the prosecution witnesses which shroud the case of the prosecution with suspicion. These major contradictions and inconsistencies in the testimonies of prosecution witnesses have not been satisfactorily explained by the prosecution. Even with regard to the identification of the accused, the evidence which has been led by the prosecution is neither convincing nor satisfactory. These major contradictions and inconsistencies in the testimonies of prosecution witnesses have not been satisfactorily explained by the prosecution. Even with regard to the identification of the accused, the evidence which has been led by the prosecution is neither convincing nor satisfactory. The alleged incident as per prosecution took place on 2.3.2013. As per prosecution the accused themselves voluntarily surrendered on 11.3.2013. Ext. PW8/A and Ext. PW8/B are the arrest memos of the accused and a perusal of the contents of the same do not even remotely suggest that the accused had voluntarily surrendered as the prosecution wants this Court to believe. A perusal of the statement of Kalu Ram (PW1) demonstrates that as per him he was called by the police to bring Bhag Chand and Ram Lal to the Police Station and on this, persons whose names were Bhag Chand and Ram Lal were contacted by him and thereafter he produced them on 11.3.2013 before the police. 15. Be that as it may, the fact of the matter still remains that the testimonies of prosecution witnesses are neither convincing nor cogent nor trustworthy so as to convict the accused. Therefore, it cannot be said on the basis of evidence produced on record by the prosecution that the prosecution was able to establish the guilt of the accused beyond all reasonable doubt. 16. In State of Himachal Pradesh v. Kahan Chand 2016 (1) Drugs Cases (Narcotics) 576, a Coordinate Bench of this Court has held as under:- "19. The accused has had the advantage of having been acquitted by the Court below. Keeping in view the ratio of law laid down by the Apex Court in Mohamed Ankoos and others v. Public Prosecutor, High Court of Andhra Pradesh, Hyderabad (2010) 1 SCC 94 , it cannot be said that the Court below has not correctly appreciated the evidence on record or that acquittal of the accused has resulted into travesty of justice. No ground for interference is called for. The present appeal is dismissed. Bail bonds, if any, furnished by the accused are discharged." 17. No ground for interference is called for. The present appeal is dismissed. Bail bonds, if any, furnished by the accused are discharged." 17. We have also gone through the judgment passed by the learned trial court and a perusal of the same demonstrates that learned trial court after taking into consideration the entire evidence produced on record by the prosecution, documentary as well as ocular, concluded that the prosecution was not able to prove its case against the accused beyond all reasonable doubt. We do not find any reason to disagree with the findings so returned by the learned trial court as in our considered view also the prosecution has not been able to prove its case on the basis of material produced on record against the accused beyond all reasonable doubt. Therefore, while concurring with the finding of acquittal returned by learned trial court, we dismiss the present appeal being devoid of any merit.