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Himachal Pradesh High Court · body

2016 DIGILAW 2578 (HP)

STATE OF HIMACHAL PRADESH v. BHAGI RAM

2016-12-05

AJAY MOHAN GOEL, SANJAY KAROL

body2016
ORDER : 1. By way of this appeal, the State has challenged the judgment passed by the Court of learned Special Judge, Kullu in Sessions Trial No. 26 of 2013 (276 of 2013) dated 13.08.2014, vide which learned trial Court has acquitted the accused for commission of offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985. 2. The case of the prosecution was that on 15.03.2013, a police party headed by SI Lal Singh left Police Station, Bhunter on patrol duty towards Chharor Nalah in an official vehicle. At around 9:00 p.m, when this police party was present at a place known as Jachhni where they had laid Naka, accused was seen by the police party coming towards Bhunter side. He was carrying a black colour bag on his right shoulder. When accused saw the police party and police vehicle, he turned back and tried to run away. On suspicion, he was intercepted and his name and address etc. were inquired. Investigating Officer suspected that the accused was possessing some contraband in the bag. In these circumstances, accused was taken to the back seat of the police vehicle, where his bag was searched. Before this, Investigating Officer gave his personal search to the accused. Further as per the prosecution, during the search of the bag carried by the accused, one another blue colour bag was recovered from the same and from inside this blue coloured bag, brown colour charas was recovered, part of which was wrapped with polythene and part of which was kept without wrapping. Further as per the prosecution, charas was weighed in an electronic scale by the Investigating Officer, which was found to be weighing 3 Kgs. The same was weighed in the presence of witnesses PW-6 ASI Ram Nath and ASI Ram Lal (not examined), who were associated as witnesses by the Investigating Officer. It was further the case of the prosecution that thereafter charas along with polythene wrappers was put in blue colour bag, which bag was thereafter put in black colour bag and the same were sealed in a cloth parcel with eight seals of impression 'T' by the Investigating Officer. NCB form was filled in triplicate. Parcel was taken into possession vide recovery memo. Ruqua was prepared and sent to Police Station through ASI Ram Nath, on the basis of which FIR was registered. NCB form was filled in triplicate. Parcel was taken into possession vide recovery memo. Ruqua was prepared and sent to Police Station through ASI Ram Nath, on the basis of which FIR was registered. Further as per the prosecution, spot map was prepared by the Investigating Officer, who also recorded the statements of witnesses. After completing codal formalities, the accused was arrested and was taken to the Police Station along with the case property. Investigating Officer deposited the case property with MHC and on 17.03.2013, MHC Tara Chand sent the case property along with relevant documents to FSL, Junga through HC Janesh Kumar. FSL report was received, which proved that the substance recovered from the accused was contraband. After completion of investigation, challan was filed in the Court and as a prima facie case was found against the accused, accordingly he was charged for commission of offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985, to which he pleaded not guilty and claimed trial. 3. On the basis of material produced on record by the prosecution both ocular as well as documentary, learned trial Court held that the prosecution had failed to prove the alleged liability of the accused and had failed to bring home the guilt of the accused for commission of offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985. While arriving at the said conclusion, it was held by the learned trial Court that besides there being material contradictions in the statements of prosecution witnesses, the statements made by them were also doubtful and it was not safe to hold accused liable on doubtful statements of the prosecution witnesses. It was further held by the learned trial Court that it had come in the testimonies of PW- 6 and PW-7 that there were shops at Jachhni and residential houses at Chharo Nalah, which places were nearby the spot where the accused was apprehended and PW-6 had also stated that vehicles were also plying on the road. It was held by the learned trial Court that this established that independent witnesses were available on the spot, but the Investigating Officer did not make any effort to associate any of the independent witnesses. It was held by the learned trial Court that this established that independent witnesses were available on the spot, but the Investigating Officer did not make any effort to associate any of the independent witnesses. It was held by the learned trial Court that since statements of official witnesses did not inspire confidence, as such, their corroboration through independent witnesses was required. It was also held by the learned trial Court that PW-6 ASI Ram Nath, who was present at the spot as per the prosecution had categorically stated that before the search of the bag being carried by the accused was conducted, his personal search was also carried out by the Investigating Officer. Learned trial Court held that if that was so, then it was obligatory for the Investigating Officer to have had complied with the mandatory provisions of Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 by apprising the accused of his legal right to be searched either before a Magistrate or a Gazetted officer. It was further held by the learned trial Court that the remaining witnesses examined by the prosecution were not sufficient to prove the alleged liability of the accused and on these bases, learned trial Court acquitted the accused. 4. We have heard the learned Deputy Advocate General as well as learned counsel for the respondent. We have also gone through the records as well as the judgment passed by the learned trial Court. 5. In order to prove its case, prosecution in all examined 7 witnesses. Out of them, PW-2 HC Tara Chand was the MHC at Police Station Bhunter at the relevant time and he deposed that on 16.03.2013 at 00.30 hours, SI/SHO Lal Chand had handed over a sealed parcel allegedly containing charas along with other case property to him and he deposited the same in the Malkhana and on 17.03.2013, he sent the case property to FSL, Junga along with other relevant documents through LHC Janesh Kumar. 6. LHC Janesh Kumar entered the witness box as PW-3 and stated that on 17.03.2013, MHC Tara Chand had handed over the case property to him, which he deposited at FSL, Junga on 18.03.2013 against receipt. 7. 6. LHC Janesh Kumar entered the witness box as PW-3 and stated that on 17.03.2013, MHC Tara Chand had handed over the case property to him, which he deposited at FSL, Junga on 18.03.2013 against receipt. 7. PW-4 Constable Subhash Chand deposed with regard to entry of rapat No. 39(A) regarding departure of police party from the Police Station, whereas PW-5 ASI Rajesh Kumar deposed about the registration of FIR Ex. PW5/A on the basis of ruqua received through PW- 6. 8. ASI Ram Nath entered the witness box as PW-6 and he deposed with regard to the recovery of charas from a bag carried by the accused by the Investigating Officer, which upon weighing was found to be 3 Kgs. He further deposed that the Investigating Officer prepared the ruqua at 10:30 p.m. and handed over the same to him, which he brought to Police Station at 11:15 p.m. He further deposed that the case file was prepared and handed over to him, which he handed over to Investigating Officer at 12:20 a.m. outside Police Station, Bhunter at Manikaran Chowk. His exact deposition is as under : "I.O. prepared rukka Mark A at 10:30 pm and handed over the same to me which I brought to he police station at 11.15 pm, handed over the same rukka to ASI Rajesh Kumar who was officiating SHO. Then, case file was prepared and handed over to me which I handed over to the I.O. at 12:20 am in the night outside the police station, Bhunter at Manikaran Chowk. Then, at 12:30 in the midnight we came to the police station. There my statement was recovered by the I.O." 9. In his cross-examination, this witness stated that they reached Jachhni at 9 p.m. He also stated that the police party had checked 4-5 vehicles. He admitted it to be correct that Jachhni village was at Bhunter-Manikaran road and the said place was at a distance of 3 Kms. from Police Station, Bhunter. He also admitted that at village Jachhni, there were shops and residential houses. He also stated that police party was at a distance of 1 km. from Jachhni. He also stated that the accused was intercepted by LHC Janesh. from Police Station, Bhunter. He also admitted that at village Jachhni, there were shops and residential houses. He also stated that police party was at a distance of 1 km. from Jachhni. He also stated that the accused was intercepted by LHC Janesh. He also stated in his cross-examination that he did not remember as to on which shoulder accused had kept the bag and thereafter stated that the accused had kept the bag on his back. He also stated that before searching the bag, Investigating Officer had carried out personal search of the accused. He also stated that the proceedings were carried on the back seat of the vehicle and at the relevant time, SHO, accused and Ram Lal were sitting on the back seat and he was sitting on the front seat. He also stated in his cross-examination that he had called his personal motorcycle from the Police Station, which was brought by HHC, whose name he had forgotten. 10. ASI Ram Lal was given up by the prosecution. 11. Investigating Officer Lal Singh entered the witness box as PW-7 and he besides deposing the mode and manner in which the accused was allegedly apprehended by the police party and recovery of contraband was made from him, also stated that after the accused was apprehended, he waited for 10-15 minutes for local witnesses and any vehicle to come, but as this did not happen, therefore, he associated ASI Ram Nath and ASI Ram Lal as witnesses. He also deposed that he received the case file from PW-6 at the spot. In his cross-examination, this witness deposed that when they had reached Jachhni, neither any vehicle crossed nor any vehicle was checked by them. He also stated that ASI Ram Nath was holding a search light. He also stated that entire police party had intercepted the accused, though he did not remember who was the first to catch him. He also stated that the accused ran about 30 steps and bag was hanging on his right shoulder. He further stated that ASI Ram Nath had called his private motorcycle from Police Station, which was brought by some private person. He also stated that Jachhni was at a distance of 3 Kms. From Police Station. 12. A perusal of the statements of PW-6 and P-7 demonstrate that there are contradictions and inconsistencies in their statements. He further stated that ASI Ram Nath had called his private motorcycle from Police Station, which was brought by some private person. He also stated that Jachhni was at a distance of 3 Kms. From Police Station. 12. A perusal of the statements of PW-6 and P-7 demonstrate that there are contradictions and inconsistencies in their statements. The biggest contradiction and inconsistency in the testimonies of PW-6 and PW-7 is that whereas as per PW-6 after he brought the ruqua to the Police Station and case file was handed over to him, he handed over the case file to Investigating Officer outside Police Station, Bhunter at Manikaran Chowk, however, as per the Investigating Officer, case file was handed over to him by PW-6 at the spot. This major contradiction in the testimonies of PW-6 and PW-7 has not been satisfactorily explained by the prosecution and it shrouds the very case of the prosecution with suspicion and creates a serious doubt about the factum of alleged recovery of contraband from the accused at the place, date and time, as the prosecution wants this Court to believe. 13. Not only this, whereas PW-6 has stated that after laying down the Nakka, they had checked 4-5 vehicles, PW-7 stated that neither any vehicle crossed Nakka nor any vehicle was checked. Even with regard to motorcycle of PW-6 being brought to Police Station, there is contradiction in the testimonies of PW-6 and PW-7. Whereas as per PW-6, the motorcycle was brought by one HHC whose name he had forgotten, however, PW-7 stated that the motorcycle was brought by some private person. Similarly, PW-6 has stated that the accused was apprehended by LHC Janesh, however, PW-7 stated that the entire police party apprehended him. The version of PW-7 that accused ran about 30 steps has not been corroborated by PW-6. These are major contradictions and inconsistencies in the testimonies of the star prosecution witnesses, which cannot be ignored by this Court. Incidentally, no other person of the police party has been examined by the prosecution to prove and corroborate its case. 14. The non-joining of independent witnesses has also not been satisfactorily explained by the prosecution. The stand of the Investigating Officer that he waited for 10 to 15 minutes for the purpose of joining an independent witness is not corroborated by PW-6. 14. The non-joining of independent witnesses has also not been satisfactorily explained by the prosecution. The stand of the Investigating Officer that he waited for 10 to 15 minutes for the purpose of joining an independent witness is not corroborated by PW-6. Even otherwise, it belies prudence as to why the Investigating Officer did not send any member of the police party to bring an independent witness when an official vehicle was available with them and it has come in the testimonies of PW-6 and PW-7 that there were shops and residences nearby the place where accused was apprehended and even the Police Station was just about a distance of 3 Kms. This Court is not even remotely suggesting that in the absence of independent witness, the testimonies of police officials cannot be believed and the accused cannot be convicted on the basis of testimonies of police witnesses, however, when the prosecution fails to satisfy the conscious of the Court that bona fide effort was made to join independent witnesses and there are major contradictions and inconsistencies in the statements of police officials, then non-joining of independent witnesses creates serious doubts over the story of the prosecution. 15. Besides this, a perusal of the documents placed on record by the prosecution demonstrate that there is overwriting in Ex. PW7/C, i.e. the arrest memo, wherein the FIR number was initially written with blue pen but thereafter it has been over written in red pen. This interpolation/overwriting has also not been satisfactorily explained by the prosecution. In our considered view, the possibility of documents having been prepared subsequently in the Police Station after the FIR number was known to the Investigating Officer cannot be ruled out and this possibility can also not be ruled out that after the Investigating Officer realized his mistake, he tried to overwrite the FIR number with red pen. This also creates doubts about the varsity of the case of the prosecution. 16. We have also gone through the judgment passed by the learned trial Court and a perusal of the same demonstrates that it has gone into all these aspects of the matter and after scrutiny of the entire evidence on record, it has returned the finding of acquittal in favour of the accused. 17. 16. We have also gone through the judgment passed by the learned trial Court and a perusal of the same demonstrates that it has gone into all these aspects of the matter and after scrutiny of the entire evidence on record, it has returned the finding of acquittal in favour of the accused. 17. In our considered view, the findings so returned by the learned trial Court are duly borne out from the records of the case and according to us also, the evidence on record does not prove the guilt of the accused. Therefore, while concurring with the judgment passed by the learned trial Court, we dismiss this appeal being devoid of any merit.