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2017 DIGILAW 1018 (HP)

Shubham Verma v. State of H. P.

2017-09-04

SANDEEP SHARMA

body2017
JUDGMENT : Sandeep Sharma, J. 1. The instant appeal filed under Section 374(2) of the Code of Criminal Procedure, is directed against the judgment of conviction and sentence dated 19.12.2016/20.12.2016, passed by learned Special Judge, Bilaspur, District Bilaspur, Himachal Pradesh in Sessions Trial No. 4/3 of 2014, whereby learned trial court while holding appellant-accused (hereinafter referred to as ‘accused’) guilty of having committed the offence punishable under Section 20 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as ‘Act’), convicted and sentenced him to undergo rigorous imprisonment for a period of four years and to pay fine of Rs. 50,000/- and in default of payment of fine, to further undergo imprisonment for six months. 2. In nutshell, case of the prosecution is that on 25.04.2014, at about 4:30 AM, police party comprising of HHC Dev Raj, LHC Mangal Singh, headed by SI/SHO Lakhvir Singh of police Station, Swarghat was on patrolling in official vehicle No. HP-69-A-0130. As per story put forth by prosecution when the aforesaid police party reached near BDO Office, Swarghat, a boy i.e. appellant-accused was spotted on NH-205 carrying one ‘pithu’ on his back. Police party stopped its jeep near the said boy, whereupon said boy (accused) became perplexed. Accused on inquiry disclosed his name to be Shubham Verma son of Sh. Ramesh Chand. Police party checked the bag (pithu), which was of black and grey colour Ex.P.5, wherein one plastic envelope containing one transparent polythene was recovered. On opening of aforesaid transparent polythene, police recovered black substance in the form of stick and ball, which later on was found to be charas. As per investigating Agency, contraband allegedly recovered from the appellant-accused was found to be 450 grams. The charas was taken into possession by the police vide recovery memo Ex.PW3/A in the presence of HHC Dev Raj and Constable Rajinder Singh. Thereafter, investigating Officer sent ruqua Ex.PW4/A through LHC Mangal Singh, on the basis of which, formal FIR No. 21/2014 Ex.PW6/A came to be registered against appellant-accused at Police Station, Swarghat. After completion of the investigation, police presented the challan in the competent Court of law. 3. The learned court below being satisfied that a prima facie case exist against the accused, framed charge against the accused under Section 20 of the Act, to which he pleaded not guilty and claimed trial. 4. After completion of the investigation, police presented the challan in the competent Court of law. 3. The learned court below being satisfied that a prima facie case exist against the accused, framed charge against the accused under Section 20 of the Act, to which he pleaded not guilty and claimed trial. 4. Learned trial court on the basis of the evidence adduced on record, held appellant- accused guilty of having committed offence punishable under Section 20 of the Act and accordingly convicted and sentenced him, as per the description already given hereinabove. 5. Feeling aggrieved and dissatisfied with the impugned judgment dated 19.12.2016, passed by the learned trial Court, accused has approached this Court by way of instant proceedings seeking therein his acquittal after setting aside the judgment of conviction recorded by the learned court below. 6. Mr. D.S. Kaith, learned counsel representing the appellant-accused, vehemently contended that impugned judgment of conviction recorded by the learned court below is not sustainable in the eye of law as the same is not based upon the correct appreciation of the evidence and as such, same deserve to be quashed and set-aside. Mr. Kaith, while inviting attention of this Court to the challan put up by the police in the competent court of law, contended that case of the prosecution is that accused was found carrying charas at 4:30 AM while he was coming from Swarghat on NH-205, whereas appellant/accused by examining DW-2, Anil Kumar, who happened to be conductor of HRTC, Nahan Depot, has successfully proved on record that on 24.04.2014 accused was going from Kullu to Chandigarh in HRTC bus and as such, there was no occasion for the court below to hold appellant-accused guilty of having committed the offence punishable under Section 20 of the Act that too on the basis of the story put forth by the prosecution, which is not trustworthy at all in light of the candid statement given by DW-2, who is a government employee. Mr. Kaith, further contended that bare perusal of impugned judgment passed by the learned trial Court, clearly suggest that statement having been made by DW-2 has not been dealt with in its right perspective by the court below, as a result of which, erroneous findings have come on record to the detriment of the appellant-accused, who is an innocent person. Mr. Kaith, further contended that bare perusal of impugned judgment passed by the learned trial Court, clearly suggest that statement having been made by DW-2 has not been dealt with in its right perspective by the court below, as a result of which, erroneous findings have come on record to the detriment of the appellant-accused, who is an innocent person. Mr. Kaith, while specifically referring to para-25 of the impugned judgment of conviction recorded by the learned court below, contended that findings recorded by the court below that “DW-2 nowhere stated that accused present in the court is the same boy who was alighted by the police” is totally contrary to the actual statement made by DW-2 in the Court. While inviting attention of this court to the statement of DW-2, Mr. Kaith, contended that DW-2 specifically stated in his statement before the court below that at about 1/1:30 AM (night hours), appellant-accused was got alighted by the police from the bus. Learned counsel while referring to the evidence led on record by the prosecution categorically contended that no reliance, if any, could be placed by the learned court below on the version put forth by the official witnesses, especially in view of the fact that as per story of prosecution, appellant/accused was nabbed by the police at Swarghat that too at about 4:30 AM, meaning thereby independent witnesses could be easily associated by the police party to prove its case against the appellant- accused. With the aforesaid submissions, learned counsel representing the appellant/accused prayed that appellant/ accused, who is an innocent person may be acquitted of charge framed against him after setting aside the impugned judgment of conviction recorded by the learned court below. 7. Mr. M.L. Chauhan, learned Additional Advocate General representing the respondent- State, while refuting the aforesaid submissions having been made by learned counsel for the appellant-accused, strenuously argued that there is no illegality and infirmity in the judgment of conviction recorded by the court below and as such same deserve to be upheld. While inviting attention of this court towards the impugned judgment, Mr. While inviting attention of this court towards the impugned judgment, Mr. Chauhan, contended that bare perusal of the same suggest that learned court below before holding appellant-accused guilty of having committed the offence punishable under Section 20 of the Act, carefully dealt with each and every aspect of the matter and as such there is no scope of interference and as such present appeal deserve to be dismissed. With a view to substantiate his aforesaid argument, Mr. Chauhan, learned Additional Advocate General, made this Court to travel through the entire evidence adduced on record by the prosecution to demonstrate that prosecution successfully proved it beyond reasonable doubt that on 25.04.2014 at about 4:30 AM police party nabbed the appellant/accused carrying 450 grams of charas on NH-205. Mr. Chauhan further contended that since appellant/accused was apprehended by the police party during the night time, it was not possible to associate independent witness. Mr. Chauhan, also contended that otherwise also version put forth by official witnesses cannot be brushed aside/ignored solely on account of non-examination of independent witnesses, rather version put forth by officials witnesses is required to be dealt with in the same manner as of the independent witnesses. Mr. Chauhan, while referring to the statement of DW-2, Sh. Anil Kumar, Conductor of HRTC, argued that no much reliance could be placed upon the version put forth by this witness, especially when all the prosecution witnesses unequivocally supported the case of the prosecution that appellant-accused was found carrying charas weighing 450 grams at 4:30 AM at Swarghat. At this stage, it may be noticed that Mr. Chauhan, learned Additional Advocate General, while making submissions before this Court fairly conceded that there is nothing on record suggestive of the fact that DW-2, conductor of HRTC bus was related to appellant-accused in any manner. 8. I have heard the learned counsel for the parties and also gone through the record carefully. 9. After having carefully perused the evidence adduced on record by the prosecution viz-a-viz impugned judgment of conviction recorded by the court below, this Court finds substantial force in the argument of learned counsel representing the appellant-accused that learned court below miserably failed to appreciate the evidence adduced on record by the appellant-accused in defence while holding him guilty of having committed the offence punishable under Section 20 of the Act. 10. 10. In the case at hand, as clearly emerge from the record, prosecution with a view to prove its case examined as many as seven witnesses. But story put forth by the prosecution that appellant/accused was nabbed/apprehended by the police party on NH-205 appears to be concocted and untrustworthy especially in the light of the categorical statement made by DW-2, Sh. Anil Kumar, who happened to be conductor in HRTC bus, which on the relevant date was enroute from Manali to Dehradoon. Before adverting to the statement having been made by DW-2, this Court deems it fit to take note of defence taken by the appellant-accused in his statement recorded under Section 313 Cr.P.C. Appellant-accused in his statement recorded under section 313 Cr.P.C specifically stated that he was got alighted by the policy party from the bus when he was on his way to Chandigarh from Kullu. DW-2, who was conductor in HRTC Bus bearing No. HP-18-4717 deposed before the Court below that on 24.4.2014 he was on the way from Manali to Dehradoon and his bus was checked at Swarghat by the police party at about 1:30 AM (night hours). He also deposed before the Court below that one boy was got alighted by the police and thereafter they were directed by the police party to take the bus. Most importantly, it has come in the statement of this defence witness that there was no luggage with the boy when he was got down/ alighted from the bus. Similarly aforesaid witness unequivocally stated before the court below that said boy is present in the court today. As per this witness neither any vehicles nor other passengers were checked in the bus at that relevant time. DW-2, further stated before the court below that said boy had purchased ticket from Kullu to Chandigarh and he was sitting on seat No. 31. It has also come in his statement that he had checked the ticket of the appellant/accused. Cross-examination, conducted on this witness clearly suggest that prosecution was not able to shatter his testimony with regard to his stand that appellant/accused was got down/alighted from the bus which was enroute from Manali to Dehradoon, rather careful perusal of cross-examination conducted on this witness suggest that he stuck to his stand taken by him in his examination-in-chief. 11. DW-1, Sh. 11. DW-1, Sh. Pardeep Kumar, Sub-Inspector, HRTC, Kullu, stated before the court below that as per waybill report, the ticket Ex.D-1 was issued on 24.04.2014. Interestingly, no suggestion worth the name was put to this witness with regard to plying of HRTC bus bearing No. HP-18-4717 on Manali – Dehradoon route on that day. Similarly, prosecution failed to put suggestion to these witnesses that on that relevant date DW-2, Anil Kumar was not conductor in the bus which was going from Manali to Dehradoon. If the aforesaid statements having been made by defence witnesses i.e. DW-1 and DW-2 are read juxtaposing each other, it certainly persuade this court to agree with the contention of learned counsel for the appellant/accused that court below has failed to appreciate evidence led on record by the accused in defence in its right perspective, especially in the light of the defence taken by the appellant/accused in his statement recorded under Section 313 Cr.P.C, wherein he stated that he was got alighted from the bus when he was on his way to Chandigarh from Kullu. There is nothing on record from where it can be inferred that aforesaid defence witnesses were related in any manner to the appellant/accused, rather it is admitted case of the parties that both DW-1 and DW-2 are the government employees and they had no motive or reason to depose falsely in favour of the appellant/accused. 12. Leaving everything aside, as has been taken note above, both the material defence witnesses have been not cross-examined on the material points by the prosecution and as such version put forth by these witnesses could not be brushed aside easily by the courts below while placing reliance upon the statements made by the prosecution witnesses. As has been taken note above, all the material prosecution witnesses are the police officials and there appears to be no attempt, if any, on the part of the police party to associate independent witness at the time of alleged apprehending/nabbing of appellant/accused that too at Swarghat. At this stage, this court may take judicial note of the fact that at Swarghat there are number of Hotels and Dhabas and all the night buses usually/normally take halt there for dinner and tea etc. 13. At this stage, this court may take judicial note of the fact that at Swarghat there are number of Hotels and Dhabas and all the night buses usually/normally take halt there for dinner and tea etc. 13. Undisputedly, it is well settled by now that version put forth by the official witnesses cannot be brushed aside solely on the ground that independent witnesses are/were not associated but in the case at hand, where entire prosecution story is doubtful in the light of the statements having been made by DW-1 and DW-2, courts below ought to have examined/analyzed statements of prosecution witnesses with utmost care and caution. But in the case at hand learned court below proceeded to hold appellant/accused guilty of having committed the offence punishable under Section 20 of the Act, ignoring material evidence adduced on record by the appellant/accused. Had the learned court below taken pain to carefully examine the statement of defence witnesses, especially in the light of stand taken by the appellant/accused in his statement recorded under Section 313 Cr.P.C. it would have reached/arrived at some other conclusion. 14. This Court further finds from the reading of impugned judgment that learned trial Court in its judgment, especially in para-25, came to the conclusion that whole statement of DW-2 nowhere reflects that accused present in the Court was the same boy, who was alighted from the bus by the police, but aforesaid finding/observation made by the learned court below is totally contrary to the actual statement given by DW-2, Sh. Anil Kumar, who in uncertain terms stated before the court below that appellant/accused was got alighted by the police party at Swarghat at 1:30 AM. It is not understood how the learned court below arrived at a conclusion that nothing could be inferred from the statement of DW-2 that accused present in the court is not the same boy, who was got alighted by the police party on that relevant date. Similarly, it is not understood that how omission, if any, on the part of DW-2 to furnish information to the Regional Manager about detaining and checking of bus by the police is/was relevant while ascertaining implication of the accused/appellant in the case registered against him. Similarly, it is not understood that how omission, if any, on the part of DW-2 to furnish information to the Regional Manager about detaining and checking of bus by the police is/was relevant while ascertaining implication of the accused/appellant in the case registered against him. This Court after having carefully perused the evidence adduced on record by the respective parties has no hesitation to conclude that the learned court below has failed to appreciate the evidence in its right perspective, as a result of which, great prejudice has been caused to the accused, whose presence on the alleged site of occurrence is doubtful. 15. After having bestowed its thoughtful consideration to the material available on record, this court is inclined to agree with the submissions made by Mr. D.S. Kaith, learned counsel for the appellant/accused that story put forth by the prosecution is not at all trustworthy and no conviction could be recorded by the court below on the basis of statements of prosecution witnesses. Rather, this court after having carefully examined the statements of defence witnesses is compelled to conclude that police party falsely implicated the appellant/accused in the case at hand, who at the relevant time was travelling in the bus. Otherwise also, if the statements made by the prosecution witnesses are read in conjunction, there appears to be material contradictions in their version put forth before the court below and there is no explanation, worth the name, on record that why independent witnesses were not associated when they could be easily associated at Swarghat. Similarly, there is nothing on record to prove that appellant/accused, who was allegedly carrying 450 grams charas was ever informed about his right to be searched in front of Gazetted officer or not. 16. After perusing the statements of the prosecution/defence witnesses as well exhibits placed on record, two views are possible in the present case and as such, the petitioner-accused is entitled to the benefit of doubt. The learned counsel for the appellant- accused has placed reliance on the judgment passed by Hon’ble Apex Court reported in State of U.P. vs. Ghambhir Singh and Others, AIR 2005 (92) SC 2439, wherein the Hon’ble Apex Court has held that if on the same evidence, two views are reasonably possible, the one in favour of the accused must be preferred. The relevant paragraph is reproduced as under:- “6. The relevant paragraph is reproduced as under:- “6. So far as Hori Lal, PW-1 is concerned, he had been sent to fetch a basket from the village and it was only a matter of coincidence that while he was returning he witnessed the entire incident. The High Court did not consider it safe to rely on his testimony because he evidence clearly shows that he had an animus against the appellants. Moreover, his evidence was not corroborated by objective circumstances. Though it was his categorical case that all of them fired, no injury caused by rifle was found, and, only two wounds were found on the person of the deceased. Apart from this PW-3 did not mention the presence of either PW-1 or PW-2 at the time of occurrence. All these circumstances do create doubt about the truthfulness of the prosecution case. The presence of these three witnesses becomes doubtful if their evidence is critically scrutinized. May be it is also possible to take a view in favour of the prosecution, but since the High Court, on an appreciation of the evidence on record, has recorded a finding in favour of the accused, we do not feel persuaded to interfere with the order of the High Court in an appeal against acquittal. It is well settled that if on the same evidence two views are reasonably possible, the one in favour of the accused must be preferred.” 17. Reliance is also placed on judgment rendered by the Hon’ble Apex Court in Harbeer Singh vs. Sheeshpal and Others, (2016) 16 SCC 418, relevant para whereof is being reproduced herein-below:- “11. It is a cardinal principle of criminal jurisprudence that the guilt of the accused must be proved beyond all reasonable doubt. The burden of proving its case beyond all reasonable doubt lies on the prosecution and it never shifts. Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. [Vide Kali Ram vs. State of Himachal Pradesh, (1973) 2 SCC 808 ; State of Rajasthan vs. Raja Ram, (2003) 8 SCC 180 ; Chandrappa and Others vs. State of Karnataka, (2007) 4 SCC 415 ; Upendra Pradhan vs. State of Orissa, (2015) 11 SCC 124 and Golbar Hussain and Others vs. State of Assam and Another, (2015) 11 SCC 242 ].” 18. The Hon’ble Division Bench of this Court vide judgment reported in Pawan Kumar and Kamal Bhardwaj vs. State of H.P. Latest HLJ 2008 (HP) 1150 has also concluded here-in-below:- “25. Moreover, when the occurrence is admitted but there are two different versions of the incident, one put forth by the prosecution and the other by the defence and one of the two version is proved to be false, the second can safely be believed, unless the same is unnatural or inherently untrue. 26. In the present case, as noticed hereinabove, the manner of occurrence, as pleaded by the defence, is not true. The manner of the occurrence testified by PW-11 Sandeep Rana is not unnatural nor is it intrinsically untrue, therefore, it has to be believed. 27. Sandeep Rana could not be said to have been established, even if the prosecution version were taken on its face value. It was pleaded that no serious injury had been caused to PW-11 Sandeep Rana and that all the injuries, according to the testimony of PW-21 Dr. Raj Kumar, which he noticed on the person of Sandeep Rana, at the time of his medical examination, were simple in nature. 19. Consequently, in view of the detailed discussion made hereinabove, the present appeal is allowed. Judgment dated 19.12.2016 rendered by the learned Special Judge, Bilaspur, District Bilaspur, Himachal Pradesh in Sessions Trial No. 4/3/2014 is set-aside and quashed. Accused is acquitted of the offence punishable under Section 20 of the Act. He is ordered to be released, if not required by the police in any other case. Fine amount, if any, paid by the accused, be refunded to him. Accused is acquitted of the offence punishable under Section 20 of the Act. He is ordered to be released, if not required by the police in any other case. Fine amount, if any, paid by the accused, be refunded to him. The Registry is directed to prepare and send the release warrant of the accused to the Superintendent of Jail concerned forthwith.