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Himachal Pradesh High Court · body

2018 DIGILAW 32 (HP)

Kishori Lal v. State Of H. P.

2018-01-03

SURESHWAR THAKUR

body2018
JUDGMENT Sureshwar Thakur, J. - Since both the appeals are directed against common verdict of conviction pronounced upon both the accused by the learned Special Judge, Court No. II, Kangra, at Dharamshala, hence both are disposed of by a common judgment. 2. The instant appeals are directed against the judgment rendered on 31. 12. 2007/1/1/2008, by the learned Special Judge, (Court No. II),Kangra at Dharamshala, H. P. , upon, Sessions Trial No. 26-G/04, whereby co-appellant Kishori Lal stands convicted AND is consequently sentenced to undergo rigorous imprisonment, for four years AND to pay a fine of Rs. 30,000 /-, for commission of an offence punishable under Section 20 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as ''NDPS Act'') AND in default of payment of fine, he is sentenced to suffer simple imprisonment for one year AND the appellant Vijay Singh stands convicted AND is consequently sentenced to undergo rigorous imprisonment, for three months AND to pay a fine of Rs. 5,000 /-, for commission of an offence punishable under Section 20 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as ''NDPS Act'') AND in default of payment of fine, he is sentenced to suffer simple imprisonment for one month. 3. Brief facts of the case are that on 13. 12. 2003, Constable Raj Kumar No. 429 of Police Station, Jwalamukhi was deputed by SHO to collect information regarding excise and contraband vide rapat No. 3, the copy of which is Ext. PW12/B. In accordance with this rapat said constable Raj Kumar went towards Garli pragpur, Kaloha, Mahakaleshwar, Chamukha side at about 8:05 AM. Though secret information, he came to know that the accused Kishori Lal was involved in selling and purchasing contraband articles in his house with his other co-accused Vijay Singh and Kuldip Singh. In the meantime, SHO Jasbir Singh, ASI Rumal Singh, HC Anjan Pal, HHC Amar Singh and HHC Balbir Singh had also gone gtowards Kaloha, Garli Paragpur and Mahakaleshwar Chakukha etc. vide rapat No. 5, Ext. PW12/A and they had met constable Raj Kumar at Banni Chowk at about 10:55 AM. In the meantime, SHO Jasbir Singh, ASI Rumal Singh, HC Anjan Pal, HHC Amar Singh and HHC Balbir Singh had also gone gtowards Kaloha, Garli Paragpur and Mahakaleshwar Chakukha etc. vide rapat No. 5, Ext. PW12/A and they had met constable Raj Kumar at Banni Chowk at about 10:55 AM. There Constable Raj Kumar told them that the accused persons were involved in purchasing and selling contraband articles in the house of accused Kishori Lal in village Khanna and in case raid was conducted, there was likelihood of recovery of contraband from the possession of the accused. The SHO recorded statement of Constable Raj Kumar Ext. PW2/A, as per his version and sent the same to Police Station, Jwalamukhi on which the present case was registered against the accused persons vide FIR Ext. PW8/A. The SI prepared grounds of search Ext. PW12/C in compliance of Section 42(2) of the ND & PS Act, and sent the same to SDPO Dehra, through HHC Amir Chand. The SI/SHO Jasbir Singh and other police officials thereafter proceeded towards Garli and on reaching there, he had formed raiding party by associating independent witnesses Rajindra Devi and Leela Devi and then they went to the house of the accused Kishori Lal in village Khanna and the house was raided by raiding party members and the accused persons were found present there. The SHO disclosed to the accused person that he was having information about their being in possession of contraband and for that matter he was likely to search them and the house. For the purpose he had given his own search to the accused persons in the presence of independent witnesses and on his search nothing incriminating was recovered from him and memo Ext. PW3/A was prepared to this effect. Thereafter, the house of the accused was searched. One Almirah was found in the house and during search of that Almirah, one polythene packed at the back of the clothes was recovered from the middle compartment of that Almirah. On checking that polythene pack, charas in the form of sticks was found, and on weighing the same it was found to be 780 gms in all. Two samples of 20 gms of Charas each were separately taken and were put inside small Dhoop containers and were separately sealed with seal "J" in separate cloth parcels by affixing five seals of J on each parcel. Two samples of 20 gms of Charas each were separately taken and were put inside small Dhoop containers and were separately sealed with seal "J" in separate cloth parcels by affixing five seals of J on each parcel. The remaining 740 gms of Charas was separately sealed in cloth parcel by affixing five seals of seal "J". All these articles were taken into possession by the police vide memo Ext. PW1/A. After the aforesaid formalities, the SHO had asked the accused that their search was also liable to be taken and they were free to give their search either to the gazetted officer of the Police or to any Magistrate, or to him, on which they had given their consent in writing to give their search, about which he prepared separate memo Ext. PW12/D to Ext. PW12/F, with respect to accused Vijay Singh, Kishori Lal and Kuldip Singh, respectively in the presence of witnesses. On personal search of accused Vijay Singh , one four square cigarette container was recovered which, on checking was found to be 20 gms of charas. This charas was sealed in the same cigarette container in cloth parcel by sealing it with five seals of seal ''J'' and the seal after use was handed over to independent witness Leela Devi and memo Ext. PW1/B was prepared to this effect. Seal impression Ext. PW12/G of seal "J" was separately taken on a piece of cloth. Thereafter the search of the other two accused Kishori Lal and Kuldip Singh had also been conducted, but nothing incriminating was recovered from, them and memo Ext. PW3/B and PW3/C were prepared to that effect. All the accused had been arrested and the information of their arrest had been given to the persons of their choice and memos Ext. PW12/J and PW12/K and PW12/L were prepared in the presence of witnesses. After the arrest of these accused, their personal searches were taken separately vide separate memo Ext. PW12/M and Ext. PW12/N and PW12/O in the presence of witnesses. After completing all the codal formalities, police challaned the accused persons for commission of the aforesaid offence. During the pendency of the trial, accused Kuldip Singh died and proceedings against him stood dropped vide order dated 24. 11. 2004. PW12/M and Ext. PW12/N and PW12/O in the presence of witnesses. After completing all the codal formalities, police challaned the accused persons for commission of the aforesaid offence. During the pendency of the trial, accused Kuldip Singh died and proceedings against him stood dropped vide order dated 24. 11. 2004. Prima facie case was made out against the other two accused Kishori Lal and Vijay Singh for commission of the offence punishable under Section 20 of the ND & PS Act, and charge was accordingly framed against him to which they pleaded not guilty and claimed trial. The accused were charged for committing an offence punishable under Section 20 of the ND & PS Act. In proof of the prosecution case, the prosecution examined twelve witnesses. On conclusion of recording of prosecution evidence, the statement(s) of the accused, under Section 313 Cr. P. C. were recorded by the trial Court, wherein they made disclosures qua their false implication. However, they did not lead any evidence in defence. 4. On an appraisal of evidence on record, the learned trial Court, recorded findings of conviction against the accused/appellant herein. 5. The accused/appellant, is, aggrieved by the judgment of conviction recorded by the learned trial Court. The learned Counsel appearing, for the accused/appellants 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, by it, 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 theirs being replaced by findings of acquittal. 6. On the other hand, the learned Additional Advocate General has with compatible force and vigor, contended that the findings of conviction recorded by the learned Court below, standing, based on a mature and balanced appreciation of evidence on record and theirs not necessitating interference, rather theirs meriting vindication. 7. 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. 8. Preceding carrying, of, personal search, of, coaccused Vijay Singh, his consent for his being personally searched, by the Investigating Officer concerned, was concerted to be elicited, through, memo, borne in Ext. 7. 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. 8. Preceding carrying, of, personal search, of, coaccused Vijay Singh, his consent for his being personally searched, by the Investigating Officer concerned, was concerted to be elicited, through, memo, borne in Ext. PW12/D. A perusal thereof disclose(s) (i), of, the Investigating Officer concerned, communicating to him about his legal right to be initially personally searched, by a Gazetted Officer or by a Magistrate, (ii) whereafter it is also apparent therefrom, of, its also echoing, that in case, he wants his personal search being carried by the Investigating Officer concerned, it being open for him to make an option thereof (iii) in response thereof, the accused Vijay Singh, made, signatured echoings qua his opting, for his personal search, being carried, by the Investigating Officer concerned. (iv) In sequel to the aforesaid, affirmative signatured communication(s) made by convict Vijay Singh, vis--vis the Investigating Officer concerned, holding his personal search, thereafter, the Investigating Officer concerned, upon, conducting his personal search, hence under memo borne, in Ext. PW1/B, effected recovery(s), of, 20 gms of charas, from, the left pocket of his trousers. (v) Since absolute compliance has been meted vis--vis the mandate, of, the mandatory statutory provisions, borne, in Section 50 of the ND & PS Act, (vi) thereupon it is apt to conclude, that, recovery(s) of 20 gms of charas, from, the left pocket of the trousers of co-convict Vijay Singh, effectuated under memo Ext. PW1/A, hence not wanting in any legal sanctity(s). (vii) Recovery of 780 gms of Charas, was, effectuated through memo Ext. PW1/B, from, the Almirah occurring inside the house of convict Kishori Lal. The aforesaid memo carries the signatures of co-convict Kishori Lal, besides, of, witnesses'' thereto. 9. Subsequent, to, the preparation of the aforesaid memos/exhibits, the Investigating Officer concerned (i) proceeded to, in consonance with all the apposite recitals, occurring in memos Ext. PW1/A and in Ext. PW1/B, hence evidently embossed, upon, the relevant sealed parcels , 5 seal impressions each bearing English alphabet "J", each, on all the parcels, (ii) display(s) whereof also occur in the relevant NCB form borne in Ext. PW1/A and in Ext. PW1/B, hence evidently embossed, upon, the relevant sealed parcels , 5 seal impressions each bearing English alphabet "J", each, on all the parcels, (ii) display(s) whereof also occur in the relevant NCB form borne in Ext. PW12/H. (iii) Upon the item(s) of contraband carried in the relevant cloth parcels, hence standing transmitted, to, the Police Station concerned, (iv) thereat, the SHO concerned, as unraveled by PW12/H, embossed upon each, of, the relevant cloth parcel(s), 5 re-seal seal impression(s) of English alphabet "K", each, on all the parcels. The MHC concerned, under, Road Certificate borne in Ext. PW6/A, transmitted Ext. P-1 and P-2 to the FSL concerned. The FSL, on, receiving the relevant cloth parcel(s), for examination, hence proceeded to, under, Ext. PA, hence recorded an affirmative opinion of contents, of, each parcel being Charas. 10. All the prosecution witnesses, who, are official witnesses, deposed, with interse besides intrase concurrence, in respect of the relevant recoveries, being effectuated, (i) from the left pocket of trouser(s), of, coconvict Vijay Singh (ii) AND, from, the Almirah, occurring inside the house of co-convict Kishori Lal. All the prosecution witnesses were subjected, to, a thorough, besides an inexorable cross-examination, by the learned defence counsel, (iii) however, during course thereof, no, elicitations emanated from each of them, for constraining any conclusion, of each either contradicting or embellishing, upon, their previously recorded statement(s) in writing (iv) or theirs proceeding to make gross intrase contradiction(s) or theirs, with, apparently occurring rife interse contradiction, in their respective testification(s), hence rendering unreliable their version(s) qua the prosecution case. Consequently, it is deemed fit, to, impute sanctity to their respective testification(s). 11. The learned counsel for the convict, has contended with vigor, that with the independent witnesses, to the apposite recovery memo(s), reneging from, their previously recorded statements reduced into writing, hence benefit thereof ought to accrue, vis--vis the accused. Nowat, the effect of independent witnesses, to recovery memo(s) Ext. PW1/A and Ext. PW1/B, reneging from, their previously recorded statements in writing, is to stand construed, alongwith, the factum of, theirs'' in their respective cross-examination(s) to which they stood subjected to, by the learned Public Prosecutor upon theirs standing declared hostile, (i) rather hence admitting the factum of their signatures occurring thereon. PW1/A and Ext. PW1/B, reneging from, their previously recorded statements in writing, is to stand construed, alongwith, the factum of, theirs'' in their respective cross-examination(s) to which they stood subjected to, by the learned Public Prosecutor upon theirs standing declared hostile, (i) rather hence admitting the factum of their signatures occurring thereon. Consequently, when they admit the occurrence of their signatures, on, the relevant memo(s), (ii) thereupon, the mandate of Section 91 and 92 of the Indian Evidence Act, is attracted, whereupon, they, on admitting the occurrence of their signatures thereon, hence stand statutorily estopped, to renege from all the recitals borne thereon, (iii) thereupon the effect of their orally deposing in variance or in detraction to the recitals occurring therein, gets statutorily belittled (iv) rather when they naturally, emphatically, hence statutorily prove the recitals comprised in the apposite memo(s), theirs orally reneging, from, the recitals borne thereon, holds no evidentiary clout (iv) nor it is legally apt, to outweigh the creditworthiness of the testimony(s) of official witnesses qua the recovery of charas, under recovery memo(s) Ext. PW1/A and Ext. PW1/B, rather hence standing effectuated, from, the conscious and exclusive possession of each of the convicts, (v) contrarily, the uncontroverted factum qua their signatures occurring in the relevant exhibits, concomitantly, renders the apposite recitals borne thereon, to hold the apt gravest probative worth, (vi) moreso when they do not testify, of theirs appending their signatures thereon, under, duress or undue influence being exerted upon them by the I. O. concerned. The ensuing sequel thereof, is (vi) qua with the statutory estoppel constituted in Sections 91 and 92 of the Indian Evidence Act, AGAINST PWs concerned, hence orally resiling, from, the scribed contents of Ext. PW-1/A and Ext. PW1/B, especially when they admit their signatures occurring thereon, to belong to them, thereupon renders unworthwhile besides insignificant, the factum qua theirs orally deposing in variance of its recorded recitals, (vii) thereupon per se an inference stands enhanced qua dehors theirs'' reneging from their previous statement(s) recorded in writing, a deduction standing capitalized qua thereupon theirs proving the genesis of the prosecution case. (viii) Conspicuously, for absence, of, suggestions being put by the learned defence counsel, while holding both the independent witnesses'', to cross-examination(s), "with" echoings therein (ix) qua theirs signing the relevant memos, under, duress or compulsion, being exerted upon them, rather benumbs the effect, if any, of the independent witnesses'', to, the relevant proceedings, making disclosure(s) in their testification(s), of, theirs signing blank relevant memo(s), prepared at the site of occurrence, by the Investigating Officer concerned. 12. The learned counsel for the appellants/convicts has also contended with vigor, (i) that with PW-2 making a vivid disclosure in his statement, in his cross-examination, of, the Investigating officer concerned, not, recording his previous statement(s) in writing (ii) thereupon, his, during the course of his examination-in-chief, whereat, the case property was shown to him, his making disclosures, of it, bearing analogity(s) with, its seizure occurring under memos, respectively borne in Ext. PW1/A and Ext. PW1/B, rather hence loosing its vigor. 13. However, the potency of the aforesaid contention IS blunted (i) by the factum, of, PW-2 being not the only prosecution witness, wheretowhom, the case property was shown in Court, (ii) rather with the case property being also shown in Court, to, the Investigating Officer concerned, by the Public Prosecutor concerned, wherein he makes unshattered vivid echoings, of it, bearing analogity, with its seizure occurring in memo(s) Ext. PW1/A and PW1/B, (iii) thereupon with PW-2, despite, for want of the I. O, concerned, recording his previous statement in writing his, yet rendering testification(s), with echoing(s) therein, of the case property, on all fronts, bearing consonance with the relevant memos, rather would not at all, hence, shatter the strength of the prosecution case. 14. Furthermore, the learned counsel for the convict has also contended that the Investigating Officer concerned, in his statement, occurring in his crossexamination, (i) making echoing(s), of, his prior to his holding the relevant proceedings, his, giving an opportunity to both the convicts, to hold his personal search, (ii) whereas no memo(s) in respect thereof, being either tendered or exhibited (iii) thereupon an inference being rearable, therefrom, of the entire proceedings being invented and concocted, by the Investigating Officer concerned. However, the potency of the aforesaid submission "is blunted" (i) by the factum of no suggestion(s) apposite thereto being put, to, the Investigating Officer concerned, during, the course of his being hold to cross-examination by the learned defence counsel, (ii) with echoings therein, of his, introducing the relevant item(s) of contraband, into, the Almirah owned by Kishori Lal. (iii) Also with the learned defence counsel, while, holding the prosecution witness(es) concerned, to cross-examination, his not putting apposite suggestion(s) to each of them (iv) that at the time, the, Investigating Officer, proceeded to open the Almirah, wherefrom, recovery of Charas weighing 780 gms stood effectuated, under, memo Ext. PW1/A, thereat convict Kishori Lal making a protest, qua his not holding its keys or his not owning it, (v) wherefrom, rather it was permissible, for, the learned defence counsel, to contend that it was forcibly opened, despite, its keys evidently not owned by co-convict Kishori Lal, (vi) hence effectuation of recovery(s) therefrom being not amenable, to, any inference, of its, recovery(s) therefrom, being sequelled by sheer contrivance and stratagem, deployed, by the Investigating Officer concerned or , of, hence co-convict Kishori Lal not holding, it, in his conscious and exclusive possession. 15. In aftermath, it is to be concluded that the Investigating Officer concerned, did not, contrive or invent the effectuation, of, recovery of charas, respectively, from, the person of convict Vijay Singh and from convict Kishori Lal, especially, in the manner, reflected in the apposite seizure memo(s), respectively borne in Ext. PW1/A and Ext. PW1/B. 16. For the reasons which have been recorded hereinabove, this Court holds that the learned trial Court has appraised the entire evidence on record in a wholesome and harmonious manner, apart therefrom, the analysis of the material on record by the learned trial Court, does not, suffer from any gross perversity or absurdity of mis-appreciation and non appreciation of evidence on record. The impugned verdict is affirmed and maintained. 17. However, the learned counsel for the appellants/convicts prays, at this stage, for reducing the sentence of appellants/convicts. He submits that the aforesaid submission hence being amenable to acceptance, given the convicts, being the sole bread earner(s) of their respective family(s). The aforesaid submission is partly accepted. The sentence of imprisonment imposed, upon, the appellant/convict Kishori Lal is reduced, from, four years rigorous imprisonment, to, one year rigorous imprisonment. He submits that the aforesaid submission hence being amenable to acceptance, given the convicts, being the sole bread earner(s) of their respective family(s). The aforesaid submission is partly accepted. The sentence of imprisonment imposed, upon, the appellant/convict Kishori Lal is reduced, from, four years rigorous imprisonment, to, one year rigorous imprisonment. Sentence of fine, imposed upon the appellant/convict Kishori Lal, is, reduced from Rs. 30,000/- each to Rs. 15,000/- In default of payment of fine, he shall further undergo simple imprisonment for three months. The sentence of imprisonment and, of, fine imposed, upon, the appellant/convict Vijay Singh remains intact. The period of detention already undergone by the appellants/convicts, is ordered to be set off, from the sentence of imprisonment imposed upon them. 18. Consequently, the sentence(s) of imprisonment imposed upon the convicts, is modified to the extent above. Records be sent back forthwith.