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2016 DIGILAW 797 (HP)

Dinesh Kumar v. State of Himachal Pradesh

2016-05-13

SURESHWAR THAKUR

body2016
JUDGMENT : Sureshwar Thakur, J. This petition is directed against the judgment of the learned Additional Sessions Judge, Shimla, H.P. rendered in Cr. Appeal No.52-S/10 of 06 whereby he affirmed the judgment of the learned Judicial Magistrate 1st Class, Theog, District Shimla, convicting and sentencing the accused/petitioners for theirs committing offences punishable under Section 61(1)(a) of the Punjab Excise Act, 1914 as applicable to the State of Himachal Pradesh. 2. The total haul of contraband as stood recovered from vehicle bearing No. HP-08-0165 occupied at the relevant time by the accused as its driver whereon co accused Virender Singh besides PW-2 were also aboard at the relevant time stands depicted in Ext.PW-1/A and Ext.PW-1/B. Both the aforesaid exhibits unravel the factum of the aforesaid vehicle carrying at the relevant time 65 cartons of liquor of six brands. Furthermore, the aforesaid exhibits unravel of the Investigating Officer not extracting samples from each of the bottles of liquor carried in the vehicle at the relevant time rather his only from each bottle of every brand of liquor extracting samples therefrom. On the anvil of the aforesaid factum of omission of the Investigating Officer to extract from each of the bottles carried in the vehicle at the relevant time the learned counsel for the revisionist submits of hence the incriminatory role if any as may stand ascribed to the accused convicts standing confined to only six bottles of liquor if any carried in the vehicle at the relevant time. For making the aforesaid submission the learned counsel for the convicts depends upon a judgment of this Court titled as State of Himachal Pradesh Vs. Kuldeep Singh and others 2010(2) Him. LR 825 wherein an explicit mandate stands expressed therein of an omission qua the aforesaid facet by the Investigating Officer rendering torpedoed the entire geneses of the prosecution case of each of the bottles of liquor purportedly carried in the relevant vehicle at the relevant time not standing clinchingly proved by the prosecution to contain liquor. 3. LR 825 wherein an explicit mandate stands expressed therein of an omission qua the aforesaid facet by the Investigating Officer rendering torpedoed the entire geneses of the prosecution case of each of the bottles of liquor purportedly carried in the relevant vehicle at the relevant time not standing clinchingly proved by the prosecution to contain liquor. 3. Be that as it may, yet the aforesaid submission addressed before this Court by the learned counsel for the accused convicts would not exculpate the culpability of the accused convicts qua 6 bottles of liquor whereupon the FSL concerned has rendered an opinion of theirs holding liquor in them, especially when even the aforesaid quantum of six bottles of liquor as stood purportedly borne in the vehicle at the relevant time was palpably beyond the statutory prescribed limit of bottles being carried thereon hence rendering the accused convicts to face the ensuing penal consequence besides when accused convicts both travelling together alongwith PW-2 in the vehicle aforesaid at the relevant time rendered each of them to be vicariously liable for theirs conjointly holding conscious and exclusive possession of six bottles of liquor carried at the relevant time in vehicle HP-08-0165. The contention of the learned counsel for the convicts accused of distribution of two bottles of liquor amongst each of the occupants would bring six bottles of liquor to fall within the purview of the permissible limits of liquor hence standing tenably carried in the relevant vehicle. Nonetheless, even the aforesaid submission holds no force in face of theirs existing no portrayal of any apposite suggestions qua the aforesaid facet standing put to any of the PWs nor any portrayal in consonance with the aforesaid submission existing in their respective statements recorded under Section 313 Cr.P.C. 4. The learned counsel for the convicts accused has yet proceeded to contend of imputation of guilt by the prosecution to the accused and its securing validation from the concurrently recorded findings of conviction by both the Courts below stand ridden with an omnibus vice of falsity. The learned counsel for the convicts accused has yet proceeded to contend of imputation of guilt by the prosecution to the accused and its securing validation from the concurrently recorded findings of conviction by both the Courts below stand ridden with an omnibus vice of falsity. He contends of PW-2 though was an occupant at the relevant time alongwith accused convicts of the aforesaid vehicle yet he was for no plausible reason not arrayed by the Investigating Officer as an accused alongwith the accused convicts whereas he given the factum of his occupying alongwith the accused convicts the vehicle wherefrom the haul of contraband stood purportedly recovered by the Investigating Officer, palpably stains the apposite investigations held by the investigating officer with a vice of his holding it in a skewed and a partisan manner, for exculpating the in-culpability of PW-2 rather his proceeding to associate him as a prosecution witness also amplifyingly smacks of his holding a taint ridden investigation rendering it to be holding no worth. 5. The learned Deputy Advocate General has countered the aforesaid submission on the score of there existing a manifestation in the deposition of PW-1 of PW-2 standing not arrayed as an accused alongwith the accused convicts as he merely took a lift in the vehicle driven by co accused Dinesh Kumar. The answer to the aforesaid rival submissions addressed before this Court by counsel on either side would ultimately clinch the factum of whether the investigation held by the Investigating Officer was fair beside untainted for hence it being construable to be inspiring and credible also an answer meted thereto by this Court would foster an apt inference therefrom qua whether given the availability if any of independent witnesses at the site of occurrence contemporaneous to the drawing up thereat of the apposite proceedings by the Investigating Officer, an omission on the part of the Investigating Officer to associate them in the apposite proceedings despite their availability thereat enhances the vice of incredibility staining the apposite investigations held by the Investigating Officer. On an incisive scanning of the apposite evidence for meteing an answer to the submission qua the aforesaid conundrum would negate the submission espoused before this Court by the learned Deputy Advocate General especially when the entire anchor of the prosecution case stands harbored upon the deposition of PW-2. On an incisive scanning of the apposite evidence for meteing an answer to the submission qua the aforesaid conundrum would negate the submission espoused before this Court by the learned Deputy Advocate General especially when the entire anchor of the prosecution case stands harbored upon the deposition of PW-2. It appears that the Investigating Officer has scored off the incriminatory role if any as was fastenable qua even PW-2 given his standing accepted by the prosecution to also alongwith the accused convicts occupy the aforesaid vehicle at the relevant time, merely on PW-2 meteing an explication to PW-1 of his taking a lift in the vehicle. The acceptance of the aforesaid explication by PW-2 was insufficient for acceptance by the Investigating Officer to disarray him from the array of accused especially when PW-2 concedes to the factum of his holding Karyana business at Chopal, besides given his presence at or around the vicinity of the site of the occurrence in the late hours of night especially when he would have preferred rather to commute to Chopal either in a public transport or in a hired cab renders his presence in and around the vicinity of the site of the occurrence merely in wait for the car driven by co-accused Dinesh to arrive thereat for enabling him to take a lift therein for facilitating his journey upto Chopal renders his presence thereat to be vulnerable to skepticism. In sequel, when his presence in and around the site of occurrence is rendered vulnerable to skepticism consequently any explication purveyed by PW-2 to the Investigating Officer for his presence in the car alongwith the accused convicts is to be construed to be obviously ridden with falsity. In sequel, it was obviously inappropriate for the investigating officer to omit to array him as an accused alongwith convict/accused for the offences allegedly committed by the latter. The obvious sequel therefrom is of the omission standing prodded by the Investigating Officer being partisan towards him necessarily hence with the Investigating Officer holding a partisan investigation it would be amenable to a construction of it being both uninspiring as well as untrustworthy. 6. The obvious sequel therefrom is of the omission standing prodded by the Investigating Officer being partisan towards him necessarily hence with the Investigating Officer holding a partisan investigation it would be amenable to a construction of it being both uninspiring as well as untrustworthy. 6. Be that as it may, it has to be gauged from the evidence existing on record in entwinement with the factum of the Investigating Officer accepting an untenable explication of PW-2 for his occupying alongwith the accused convicts the vehicle aforesaid at the relevant time qua when therefrom the afore referred inference stands drawn by this Court of hence even his association as a witness by the Investigating Officer in the apposite proceedings besides his signaturing the seizure memo standing taint ridden theirs standing procured under a colourable partisan investigation qua him by the Investigating Officer qua, whether given the further smotherings on the part of the Investigating Officer to despite the availability of independent witnesses other than PW-2 at the site of occurrence contemporaneous to its taking place thereat, the Investigating Officer deliberately omitting to join them, has spelt doom to the prosecution case. An advertence to the testimony constituted in the cross-examination of PW-2 an official witness underscores the factum of his departing in a truck from the site of occurrence. The aforesaid underlining in the cross-examination of PW-4 evinces an inference of a truck occupying the road at the time contemporaneous to either the apposite proceedings standing initiated or its thereat arriving at the stage of consummation of the apposite proceedings necessarily hence when it was incumbent upon the Investigating Officer to elicit in the apposite proceedings the participation of the driver of the truck, his abstaining to elicit his participation in the apposite proceedings constrains an inference of despite the driver of the truck holding the status of an independent witness, his non association by the Investigating Officer in the apposite proceedings, is both deliberate as well as intentional. Consequently, for reasons aforesaid when PW-2 who otherwise was enjoined to be arrayed as an accused alongwith other co-accused rather his standing joined as a witness to the seizure memo by the I.O. constrains this Court to conclude of his association by the Investigating Officer as a witness to seizure memo Ext.PW-1/A disclosing therein recovery of liquor from the vehicle aforesaid being an entrenched assay on the part of the Investigating Officer to smother the truth qua the occurrence. 7. In aftermath reliance if any as placed by the learned Deputy Advocate General upon the factum of his admittedly signaturing recovery memos whereupon he contends of his standing interdicted by provisions of 91 and 92 of the Indian Evidence Act against his resiling from the recitals recorded therein cannot stand to be accepted by this Court. 8. Dehors the above the prosecution was imperatively enjoined to prove the factum of the opinion recorded in the apposite report of the FSL qua six bottles sent to it for analyses standing connected with the case property as allegedly stood recovered from the purported alleged conscious and exclusive possession of the accused preponderantly from the aforesaid vehicle which at the relevant time stood occupied by them. Only on the prosecution discharging the aforesaid onus would secure an unflinching conclusion from this Court of six bottles whereupon an opinion stood recorded by the FSL denoted in Ext.PY, PZ, PZA, PZB, PZC of theirs holding liquor of theirs hence standing connected with the ones recovered under seizure memo Ext.PW-1/A. The discharge by the prosecution of the aforesaid onus would occur only when on production of bottles aforesaid before the learned trial Court the officials concerned carrying with them the apposite abstract of the Malkhana connotative of reflections of theirs standing in quick succession to their seizure from the car occupied by the accused convicts their standing deposited in the Malkhana concerned wherefrom they stood retrieved under an apposite entry recorded therein for facilitating their production in Court by the APP concerned for theirs being shown to the PWs concerned. Even though a perusal of the record unravels the factum of six bottles standing produced by the APP before the learned trial Court for theirs being shown to PW-1 and PW-4 yet at the time of theirs standing produced before the learned trial Court for theirs standing shown to the aforesaid PWs there occurs no manifestation therein of the APP concerned at the time of their production before the learned trial Court conveying to the latter of theirs standing retrieved from the Malkhana concerned by an authorized official who transmitted them through an authorized official to the Court whereat it stood shown to the PWs concerned. Omission aforesaid read conjointly with the apparent fact of the APP concerned also omitting to place before the Court the apposite register displaying the trite fact of bottles in quick succession to theirs standing recovered under memo Ext.PW-1/A theirs standing deposited in the malkhana concerned under apposite signatured entries recorded in the apposite register concerned wherefrom they under apposite signatured entries stood retrieved therefrom at the time contemporaneous to their production before the Court coagulated with an omission on the part of the PWs concerned to also echo in their respective depositions of theirs being aware of the factum of the case property as stood shown to them by the APP concerned during the course of the recording of their testimony before the learned trial Court qua their production thereat emanating under apposite signatured entries recorded in the apposite register secures a firm conclusion of hence the prosecution abysmally failing to prove the prime factum of bottles of liquor displayed in the apposite report of the FSL concerned standing connected with the ones produced in Court whereupon an obvious inference is of the case property which stood produced in Court standing delinked rather detached from the factum of its standing recovered from the conscious and exclusive possession of the accused in the manner as espoused by the prosecution. The effect of the aforesaid infirmities gripping the prosecution case truncates the efficacy if any of the depositions of the official witnesses who in their respective testimonies have concerted to lend succor to the espousal of the prosecution. 9. The effect of the aforesaid infirmities gripping the prosecution case truncates the efficacy if any of the depositions of the official witnesses who in their respective testimonies have concerted to lend succor to the espousal of the prosecution. 9. A wholesome analysis of the evidence on record portrays that the appreciation of evidence as done by both the Courts below suffers from perversity and absurdity hence it can be said that the Courts below in recording findings of conviction have committed a legal misdemeanor, inasmuch as theirs having mis-appreciated the evidence on record or theirs having omitted to appreciate relevant and admissible evidence. In aftermath this Court deems it fit and appropriate that the findings of conviction recorded by the learned trial Court merit interference. In view of the above discussion, I find merit in this petition, which is accordingly allowed and the judgments of conviction and sentence rendered by the both the Courts below are set-aside. Bail bonds are discharged.