Punjab-Haryana High Court
Vijay vs State Of Haryana on 26 September, 2011
Author: Sabina
Bench: Jasbir Singh, Sabina
CRA No.654-DB of 2007 1
In the High Court of Punjab and Haryana at Chandigarh
Date of Decision: 26.9.2011
CRA No.654-DB of 2007
Vijay .......appellant
versus
State of Haryana
........respondent
CORAM: HON'BLE MR.JUSTICE JASBIR SINGH
HON'BLE MRS. JUSTICE SABINA
Present: Mr.P.K.Ganga, Advocate,
for the appellant.
Mr.Saurav Mohunta, DAG Haryana.
****
JUDGMENT
SABINA, J.
The appellant was tried for an offence under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (the Act for short) in FIR No.49 dated 25.4.2005 registered at Police Station Sadar Dabwali.
The case of the prosecution , in brief, was that on 25.4.2005, Sub Inspector Dalip Singh along with other police officials were present on the bridge of Bhakhra canal on Dabwali-Jiwan Nagar Road in the area of Maujgarh for patrolling. At about 4.15 a.m., a vehicle was seen coming from Jiwan Nagar side. The vehicle was signaled to stop. The driver of the vehicle stopped the vehicle at some distance. 2-3 persons got down from the vehicle and ran towards the fields. Out of the said persons, one person was heard saying 'Vijay Singh run'. The said person, however, managed to CRA No.654-DB of 2007 2 escape by taking advantage of darkness. SI Dalip Singh then checked the vehicle and 32 gunny bags of poppy husk were recovered from the vehicle bearing No.HR 39-9165. Two samples of 100 gms each were taken out from each gunny bag and were made into separate sealed parcels. The remaining poppy husk in each bag weighing 39.800 kg was sealed in the same bags. The sample seal was prepared. The seal after use was handed over to ASI Om Parkash. Thereafter, DSP affixed his own seal on each sample bearing impression 'RS'. From the registration certificate recovered from the vehicle, it transpired that the vehicle was owned by Kewal Krishan s/o Jiwan Ram resident of House No.69, Ward No.30, Rania Chungi, Sirsa. All the articles were taken in possession. Rough site plan of the place of recovery was prepared. The photographs of the case property as well as the vehicle were taken by photographer Kuldeep Kumar. The case property was produced before the Area Magistrate. Appellant Vijay was arrested on 23.7.2005. During interrogation, Vijay suffered a disclosure statement that Balwinder Singh @ Billa was also accompanying him at the time of alleged recovery. They had loaded 32 gunny bags of poppy straw from village Malwani for taking the same to Rama Mandi. The owner of the vehicle Kewal Krishan had no knowledge about the transportation of poppy straw in the vehicle on that day. Balwinder Singh was driving the vehicle, whereas, he was sitting on the bags. On seeing the police party, they had left the vehicle at the spot and had managed to escape. During investigation, Kewal Krishan, owner of the vehicle, submitted his affidavit that Vijay had been employed as a driver of the vehicle in question about 2 ½ months prior to the CRA No.654-DB of 2007 3 registration of the case. It further transpired during investigation that in a family partition, the truck in question had come to the share of Jagdish Lal and after his death, his widow Paramjit Kaur was incharge of the truck, although, the registration certificate remained in the name of Kewal Krishan. At the instance of Malkiat Singh, Paramjit Kaur had appointed the appellant as a driver of the vehicle in question.
After completion of investigation and necessary formalities, challan was presented against the appellant and Balwinder Singh. Charge was framed against the accused under Section 15 of the Act on 24.11.2005. Accused Balwinder Singh was acquitted by the trial Court vide order dated 19.4.2007 as no evidence had been brought on record by the prosecution against accused Balwinder Singh. However, appellant was convicted and sentenced qua offence under Section 15 of the Act vide judgment/ order dated 22.5.2007. Hence, the present appeal by appellant Vijay.
Learned counsel for the appellant has submitted that the appellant has been falsely involved in this case. Appellant was not present at the spot. The prosecution had failed to establish that the appellant had been appointed as a driver by the owner qua the truck in question.
Learned State counsel, on the other hand, has submitted that from the statements of PW-5, Paramjit Kaur and PW-4, Kewal Krishan, it was evident that the truck in question had come to the share of Paramjit Kaur and she had appointed the appellant as a driver qua the truck in question. The name of the appellant was CRA No.654-DB of 2007 4 mentioned in the FIR. Although the appellant had managed to run away from the spot but his involvement in the crime was duly established. The appellant had also suffered extra judicial confession before PW-11, Gurtej Singh.
After hearing the learned counsel for the appellant and the learned State counsel and going through the evidence on record carefully, we are of the opinion that the instant appeal deserves to be allowed.
The case of the prosecution is that the appellant was driving the truck in question on the day of recovery and had managed to escape from the spot along with his companions. Let us first examine as to whether the prosecution has been successful in establishing that the appellant had been employed as a driver by the owner qua the truck in question.
PW-4, Kewal Krishan has deposed that he was the owner of the truck in question. About two years back, in a family settlement, the truck in question had come to the share of his brother Kashmir Chand, who gave the truck to his son Jagdish at the time of his family adjustment. About 1 ½ year back, after the death of Jagdish, the management of the truck came in the hands of Paramjit kaur, his wife. Paramjit Kaur had hired the appellant as a driver qua the truck in question. In April, 2005, the truck in question was found involved in transportation of poppy straw. Since his name figured in the record, police made inquiries from him and he informed the police that in a family settlement now the truck was under the management of Paramjit Kaur. He also proved on record his affidavit Ex.PC.
PW-5, Paramjit Kaur deposed that about two years back, CRA No.654-DB of 2007 5 after the death of her husband, she had got the management of the truck in question. She had hired the appellant as a driver qua the truck in question. The truck was impounded by the police on account of recovery of poppy straw from it. She had been interrogated by the police and she had disclosed to the police that appellant present in the Court was the driver of the truck in question. She proved her affidavit Ex.PD.
PW-8 Nek Chand deposed that the truck in question had fallen to the share of Jagdish in a family settlement and after his death, it was being managed by his wife and she had employed a driver.
Thus, during investigation, statements of the above witnesses were recorded to establish that appellant had been employed as a driver by Paramjit Kaur. However, there are material contradictions in the statements of witnesses in this regard. So far as PW-4 Kewal Krishan is concerned, he had deposed that the truck in question had come to the share of his nephew Jagdish but in his cross-examination, he deposed that his nephew had purchased the truck from Dabwali for ` 1,28,000/-. He was not present when the truck in question was purchased by his nephew Jagdish. However, the truck was registered in his (PW-4) name. He was not aware who was the previous owner of the vehicle. The consideration amount was paid by Jagdish to the previous owner. On the other hand PW-5 Paramjit Kaur, in her cross-examination, deposed that she had purchased the truck from Kewal Krishan and it had not come to her in a family settlement. The family settlement had taken place regarding the property owned by her father-in-law. She had not paid CRA No.654-DB of 2007 6 any salary to the accused vide cheque nor had taken any receipt from him in token of the payment of salary made to him. She was not maintaining any accounts regarding the truck. She did not have any document to establish her ownership qua the truck in question. Affidavit Ex.PD was got prepared at the asking of the police. She had not made any payment to Kewal Krishan qua the truck in question. She did not know, who had purchased the truck and from where. Kewal Krishan was the owner of the truck and was the real brother of her father-in-law.
Thus, from the statements of the witnesses discussed above, it cannot be said that Paramjit Kaur was looking after the management of the truck. The affidavits qua partition and the fact that the truck had come to the share of husband of Paramjit Kaur were prepared during investigation of the case and were attested by PW-7, Anil Jain, Notary Public, Sirsa. The said witness, in his cross- examination, deposed that there was no serial number on any of the affidavits. He did not made any entry in his register, while attesting the affidavits. Thus, it appears that during investigation, a false story was built up to involve the appellant in this case. A story was coined that appellant had been employed as a driver by Paramjit Kaur with a view to falsely involve the appellant in this case. In fact, it appears that the truck in question was owned by Kewal Krishan and in order to shun the responsibility qua the truck in question, a plea was taken that in fact Paramjit Kaur had got the truck in a family settlement and was looking after its management and had employed appellant Vijay as a driver. Paramjit Kaur was not maintaining any accounts qua the truck nor could establish the payment of salary to appellant Vijay by CRA No.654-DB of 2007 7 her. In these circumstances, learned trial Court erred in holding that the truck in question was owned by Paramjit Kaur and she had employed Vijay as a driver.
The next question that requires consideration is as to whether the disclosure statement suffered by appellant was admissible in evidence.
In this regard, the prosecution has examined Bhajan Lal, PW-10. The said witness deposed that on 24.7.2005, he had gone to Dabwali for some personal work and came to know that the vehicle in question and its driver were in custody of police of CIA staff, Dabwali. He went to CIA staff, Dabwali and in his presence, appellant admitted before the police that he had brought 32 bags of poppy husk in the vehicle from Sant Nagar Jagmalera. The trial Court rightly held, while recording the statement of the witness, that the said statement was inadmissible in evidence as it amounted to confession before police. Moreover, PW-10 Bhajan Lal had no occasion to visit the CIA staff, Dabwali without any work as his village was 60 kms away from Dabwali. In these circumstances, no reliance can be placed on the testimony of the said witness.
The next question that requires consideration is as to whether the appellant had suffered an extra judicial confession before PW-11, Gurtej Singh.
PW-11, Gurtej Singh deposed that appellant Vijay was known to him. On 23.7.2005, at about 8 p.m. the appellant met him in the street and told him that he had loaded 32 bags of poppy straw in the vehicle in question. On 25.4.2005, he was caught hold of by the police but he managed to escape by leaving the canter at the CRA No.654-DB of 2007 8 spot. He requested the witness to produce him before the police but the witness refused to exceed to the said request. The said witness, in his cross-examination, deposed that he was an ordinary person and had no say in the police department or in District Administration. The testimony of the said witness fails to inspire confidence because the said witness had declined to produce the accused before the police yet his statement under Section 161 Cr.P.C. was recorded by the police on 23.7.2005. As per PW-13, ASI Bachan Singh, who had arrested the appellant on 23.7.2005, the accused had been produced before him by Ram Saran, Sarpanch.
As per the statement of PW-11, Gurtej Singh, recorded by ASI Bachan Singh, PW-13, under Section 161 Cr.P.C., the appellant had been produced by Gurtej Singh before the police. However, PW-11, Gurtej Singh, while appearing before the Court, had stated that he had refused to produce the appellant before the police. PW- 13, ASI Bachan Singh has also not deposed to the effect that the appellant had been produced before him by PW-11, Gurtej Singh nor he had deposed qua recording of the statement of PW-11 by him. Ram Saran, while appearing in the witness box as PW-6, on the other hand, has not supported the prosecution case. In these circumstances, the statement of PW-11, Gurtej Singh cannot be said to be trustworthy. Hence, the prosecution had failed to establish that the appellant had suffered any extra judicial confession.
The next question that requires consideration is as to whether the prosecution has been successful in proving the presence of the appellant at the spot.
In this regard, learned State counsel has placed reliance CRA No.654-DB of 2007 9 on the statement of PW-14 SI Dalip Singh and PW-15 ASI Om Parkash. The said witnesses have deposed that the driver of the vehicle had stopped the vehicle at a distance of 3 killas/acres from them. 2-3 persons had alighted from the vehicle. One of the said persons had given a call "Vijay to run away, police has come". However, it is not believable that the police officials, who were standing at a distance of about 3 acres, could have heard the alleged call made by one of the accused. Admittedly, it was dark at that time.
Thus, from the perusal of the evidence on record, it is evident that the prosecution had miserably failed to prove its case. Investigation in the present case has not been conducted in a fair and proper manner. It appears that in order to shield the real culprit, the appellant has been falsely involved in this case. The prosecution has failed to establish that the appellant had been employed as a driver qua the truck in question and has further failed to establish that the appellant was traveling in the vehicle in question at the time of alleged recovery as a driver or a passenger. Keeping in view the totality of the facts and circumstances of the case, this appeal is allowed. The impugned judgment/order of conviction and sentence are set aside. The appellant is acquitted of the charge framed against him.
(SABINA)
JUDGE
(JASBIR SINGH)
September 26, 2011 JUDGE
anita
CRA No.654-DB of 2007 10