Allahabad High Court
Manoj Kumar Verma vs State Of U.P. on 12 February, 2020
Equivalent citations: AIRONLINE 2020 ALL 327
Author: Rajendra Kumar-Iv
Bench: Rajendra Kumar-Iv
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 29 A.F.R. Case :- CRIMINAL APPEAL No. - 1689 of 2007 Appellant :- Manoj Kumar Verma Respondent :- State of U.P. Counsel for Appellant :- In Person,Santosh Kumar Srivastava Counsel for Respondent :- G.A. Hon'ble Rajendra Kumar-IV,J.
1. This criminal appeal has been directed against the judgement and order dated 19.4.2007 passed by Additional Sessions Judge (F.T.C.) No. 28, Barabanki in S.T. No. 98 of 2003 (Case No. 8 of 2003), State vs. Manoj Kumar Verma, under Section 8/21 N.B.P.S. Act, whereby trial court convicted the accused-appellant under Section 8/21 N.D.P.S. Act, sentencing him to undergo 10 years rigorous imprisonment with fine of Rs. 1,00,000/- and in default of payment of fine, he shall further undergo one year additional rigorous imprisonment.
2. Brief facts of the prosecution case which need to be noted for disposal of the present appeal which are as under :-
(i) On 9.1.2003, S.I. Narendra Pratap Singh, In-Charge out post Ganeshpur along with Constable Ram Asrey Saroj, Constable Amar Chandra Shukla, Constable Ajeet Kumar Pandey and Constable Jagat Narayan Singh were going to Ram Nagar in search of wanted accused. As police party reached near Mahadeva Gate, accused appellant has seen police party coming from Mahadeva side, he turned behind and tried to run away. On being suspected as miscreant, he was apprehended at the distance of 60-70 steps by police at around 9:30 PM. On being asked his whereabouts, he disclosed his identity as Manoj Kumar Verma son of Ram Bilas Verma, resident of Bansa, Police Station Masauli, District Barabanki and told that he has Morphine in his pocket and on account of this he ran away. Police informed the accused-appellant that he has a right to be searched before any gazetted officer whereupon he answered that he does not want to go anywhere and he took out a polythene from his right pocket of pant and handed over to police disclosing that it is Morphine. Recovered Morphine was taken into custody and it was 320 gram, which was properly sealed by police and mandatory provision of N.D.P.S. was complied with. Recovery memo Ex.Ka-3 was prepared by police party on spot.
3. On the basis of recovery memo Ex.Ka-3, Chick F.I.R. Ex.Ka-2 was registered in the police station concerned against the accused and entry was made in general diary, copy whereof is on file.
4. PW-4, S.I. Suresh Chandra Sen undertook the investigation of case, visited stop, prepared site plan Ex.Ka-6 and completing entire formalities of investigation, submitted charge sheet against the accused-appellant under Section 8/21 N.D.P.S. Act before the Court.
5. Trial Court, considering the evidence collected by Investigating Officer, framed charges against accused-appellant on 17.12.2008 under Section 8/21 N.D.P.S. Act to which accused-appellant denied, pleaded not guilty and claimed trial.
6. In order to substantiate its case, prosecution examined as many as five witnesses out of whom PW-2- Constable Amar Chandra Shukla, PW-3 S.I. Narendra Pratap are the witnesses of fact and rest PW-1 Constable Omkar Nath, PW-4 S.I. Suresh Chandra Sen and PW-5 Pawan Kumar Singh are the formal witnesses.
7. Subsequent to closure of prosecution evidence, Trial Court recorded statement of accused-appellant under Section 313 Cr.P.C. explaining all incriminating and other evidence and circumstances. In the statement under Section 313 Cr.P.C., accused denied prosecution story in toto and subsequently stated that he was arrested by police from his shop at about 9:00 PM and booked behind the Bar. Nothing has been recovered from his possession.
8. Trial court after appriciating the evidence of prosecution and hearing of both the parties, convicted and sentenced the accused-appellant as stated above.
9. I have heard Sri Santosh Kumar Srivastava, learned Amicus Curiae for the appellant and Smt. Parul Kant, learned AGA for the State at length and have gone through the record available on file with the valuable assistance of learned counsel for the parties.
10. Learned Amicus Curiae for appellant submits that the accused-appellant is innocent and has been falsely implicated in the present case by police. Nothing has been recovered from his possession. There is no public witness at the time of arrest of appellant. Mandatory provision of N.D.P.S. has not been complied with by the police and search was not made before any gazetted officer. There are several contradiction in the statement of witness produced by prosecution. Trial Court did not appreciate the entire evidence in right perspective.
11. On the other hand, learned AGA for the State submits that from the possession of accused-appellant, 320 gram Morphine has been recovered for which he has no valid lincense. He has been arrested by police on spot with contraband materials in so huge quantity. The said contraband material cannot be easily planted by police. It has been further submitted that recovery happens to be made at 9:30 PM, so it was not possible to police to take public witness. Since the accused-appellant himself denied to be searched before any gazetted officer, therefore, police did not take him before any gazetted officer but recovery was made by police in compliance of mandatory provision of N.D.P.S. Act. Prosecution has been fully successful in proving its case beyond reasonable doubt and trial court has rightly convicted and sentenced the accused-appellant.
12. Now, I may proceed to consider rival submissions of learned counsel for the parties and, briefly, evidence of prosecution and some important decisions.
13. PW-2 Constable Amar Chandra Shukla deposed that on 9.1.2003, he was posted as Constable in Police Station Ram Nagar, District Barabanki and was accompanied to S.I. Narendra Pratap Singh and other constables. When he reached near Mahadeva Gate, they saw a person coming from Mahadeva Gate. Seeing the police party, he returned behind and started running back. On being suspected as miscreant, police party apprehended him at the distance of 60-70 steps at about 9:30 P.M. On being asked his name, he disclosed his identity as Manoj Kumar Verma and told that he has Morphine with him. S.I. Narendra Pratap Singh informed the accused that he has a right to be searched before any gazetted officer and he may be taken for search but he refused to go anywhere and handed over to police a polythine of Morphine taking it out from the pocket of his pant. On the consent given by accused, search of accused was made and from his possession of 320 gram Morphin was found, for which he had no valid license. Recovery memo thereof was prepared in accordance with law. Mandatory provision of N.D.P.S. Act was complied with. Police tried for public witness but nobody was ready to be a witness. Recovery memo Ex.Ka-3 and consent letter of accused-appellant Ex.Ka-4 were prepared on spot which contained a signature of accused.
14. PW-3 S.I. Narendra Pratap Singh deposed that he along with other police officials were going to Ram Nagar in search of wanted accused, when they reached near Mahadeva Gate, accused-appellant has seen the police party coming from Mahadeva Gate, he turned behind and tried to run back. On being suspected, he was apprehended by police at the distance of 60-70 steps at around 9:30 PM. On being questioned, he disclosed his identity as Manoj Kumar Verma, resident of Bansa, Police Station Masauli, District Barabanki, who told that he has some Morphine and due to fear he was running. He (PW-3) informed the accused that he has a right to be searched before any gazetted officer but accused-appellant refused to go anywhere and he took out Morphine rapped in polythine from his right pocket of his pant for which he had no valid license. Recovered Morphine was weighd and found 320 grams. Recovered material was sealed and recovery memo thereof was prepared on spot. Signature of accused was also taken on the recovery memo Ex.Ka-4.
15. PW-2 and 3 withstood sufficient lengthy cross-examination by defence but nothing adverse material could be brought so as to disbelieve their statement.
16. Admittedly, recovery and arrest of accused-appellant is not supported by any public witness for which witnesses explained that they tried the public to be witness of incident but due to fear of evil, nobdoy came forward to be witness. It is settled that generally, no public witness comes forward to be a witness against the criminals.
17. As a matter of rule, there can be no legal proposition that evidence of police officers, unless supported by independent witnesses, is unworthy of acceptance. Non-examination of independent witness or even presence of such witness during police raid would cast an added duty on the court to adopt greater care while scrutinising the evidence of the police officers. If the evidence of police officer is found acceptable, it would be an erroneous proposition that court must reject prosecution version solely on the ground that no independent witness was examined.
18. In Pradeep Narayan Madqaonkar & others vs. State of Maharashtra 1995 (4) SCC 255, it was held:
"Indeed, the evidence of the official (police) witnesses cannot be discarded merely on the ground that they belong to the police force and are, either interested in the investigation of the prosecuting agency but prudence dictates that their evidence needs to be subjected to strict scrutiny and as far as possible corroboration of their evidence in material particulars should be sought. Their desire to see the success of the case based on their investigation, requires greater care to appreciate their testimony."
19. In Balbir Singh vs. State 1996 (11) SCC 139, the Court has repelled a similar contention based on non-examination of independent witnesses. The same legal position has been reiterated time and again by Apex Court vide Paras Ram vs. State of Haryana 1992 (4) SCC 662, Sama Alana Abdulla vs. State of Gujarat 1996 (1) SCC 427, Anil alias Andya Sadashiv Nandoskar vs. State of Maharashtra 1996 (2) SCC 589.
20. In Subhash Singh Thakurshyam vs State (Through CBI) (1997) 8 SCC 732, a Two Judge Bench of the Apex Court comprising of Hon'ble M. Mukherjee and Hon'ble K. Thomas JJ, in para 90 observed:
"....We should not forget that the time of the raid was during the odd hours when possibly no pedestrian would have been trekking on the road nor any shopkeeper remaining in his shop nor a hawker moving around on the pavements."
21. In State of U.P. v. Zakaullah 1998 Cri. L.J. 863 in para-10, it is said:
"The necessity for "independent witness" in cases involving police raid or police search is incorporated in the statute not for the purpose of helping the indicted person to bypass the evidence of those panch witnesses who have had some acquaintance with the police or officers conducting the search at some time or the other. Acquaintance with the police by itself would not destroy a man's independent outlook. In a society where police involvement is a regular phenomenon many people would get acquainted with the police. But as long as they are not dependent on the police for their living or liberty or for any other matter, it cannot be said that those are not independent persons. If the police in order to carry out official duties, have sought the help of any other person he would not forfeit his independent character by giving help to police action. The requirement to have independent witness to corroborate the evidence of the police is to be viewed from a realistic angle. Every citizen of India must be presumed to be an independent person until it is proved that he was a dependent of the police or other officials for any purpose whatsoever."
22. Referring to some of the the aforesaid decisions, Court in Girja Prasad Vs. State of M.P. (2007) 7 SCC 625 held:
"It is well-settled that credibility of witness has to be tested on the touchstone of truthfulness and trustworthiness. It is quite possible that in a given case, a Court of Law may not base conviction solely on the evidence of Complainant or a Police Official but it is not the law that police witnesses should not be relied upon and their evidence cannot be accepted unless it is corroborated in material particulars by other independent evidence. The presumption that every person acts honestly applies as much in favour of a Police Official as any other person. No infirmity attaches to the testimony of Police Officials merely because they belong to Police Force. There is no rule of law which lays down that no conviction can be recorded on the testimony of Police Officials even if such evidence is otherwise reliable and trustworthy. The rule of prudence may require more careful scrutiny of their evidence. But, if the Court is convinced that what was stated by a witness has a ring of truth, conviction can be based on such evidence." (para 25)
23. In so far as discrepancies, variations and contradictions in prosecution case are concerned, I have analysed entire evidence in consonance with submissions raised by learned counsel and find that the same do not go to the root of case and accused-appellant is not entitled to get benefit of the same.
24. When such incident takes place, one cannot expect a scripted version from witnesses to show as to what actually happened and in what manner it had happened. Such minor details normally are neither noticed nor remembered by people since they are in fury of incident and apprehensive of what may happen in future. A witness is not expected to recreate a scene as if it was shot after with a scripted version but what material thing has happened that is only noticed or remembered by people and that is stated in evidence. Court has to see whether in broad narration given by witnesses, if there is any material contradiction so as to render evidence so self contradictory as to make it untrustworthy is minor variation or such omissions which do not otherwise affect trustworthiness of evidence, which is broadly consistent in statement of witnesses, is of no legal consequence and cannot defeat prosecution.
25. In Sampath Kumar v. Inspector of Police, Krishnagiri, (2012) 4 SCC 124, Court has held that minor contradictions are bound to appear in the statements of truthful witnesses as memory sometimes plays false and sense of observation differs from person to person.
26. In Sachin Kumar Singhraha v. State of Madhya Pradesh, 2019 (8) SCC 371, Supreme Court has observed that Court will have to evaluate evidence before it keeping in mind the rustic nature of depositions of the villagers, who may not depose about exact geographical locations with mathematical precision. Discrepancies of this nature which do not go to the root of the matter do not obliterate otherwise acceptable evidence. It need not be stated that it is by now well settled that minor variations should not be taken into consideration while assessing the reliability of witness testimony and the consistency of the prosecution version as a whole.
27. We lest not forget that no prosecution case is foolproof and the same is bound to suffer from some lacuna or the other. It is only when such lacunae are on material aspects going to the root of the matter, it may have bearing on the outcome of the case, else such shortcomings are to be ignored. (See Smt. Shamim v. State of (NCT of Delhi), 2018 (10) SCC 509)
28. Evidently, recovery and arrest of accused happens suddenly at about 9:30 PM and it was winter season. Police informed the accused-appellant that he has legal right to be searched before gazetted officer but he did not require so and he had given a consent to be searched by police and on the consent given by accused-appellant, police took search of accused-appellant, recovery of contraband was made and police prepared recovery memo thereof. Thus, it cannot be said that mandatory provision of N.D.P.S. Act has not been complied with by police.
29. F.S.L. report Ex.Ka-12 reveals that on examination of sample, it was found Heroin and accused-appellant commented nothing on F.S.L. report. In statement under Section 313 Cr.P.C. he simply stated that nothing has been recovered from his possession. He did not choos to adduse any defence to discedit F.S.L. report.
30. In view of facts and legal position discussed hereinabove, I find that Trial Court has rightly analyzed evidence led by prosecution and found accused guilty and convicted him for an offence punishable under Section 8/21 N.D.P.S. Act. Conviction and sentenced awarded by Trial Court is liable to be maintained and confirmed. No interference is warranted by this Court. Criminal appeal lacks merit and liable to be dismissed.
31. So far as sentencing of accused-appellant is concerned, it is always a difficult task requiring balance of various considerations. The question of awarding sentence is a matter of discretion to be exercised on consideration of circumstances aggravating and mitigating in individual cases.
32. It is settled legal position that appropriate sentence should be awarded after giving due consideration to the facts and circumstances of each case, nature of offence and the manner in which it was executed or committed. The measure of punishment should be proportionate to gravity of offence. Object of sentencing should be to protect society and to deter the criminal in achieving avowed object of law. Further, it is expected that courts would operate the sentencing system so as to impose such sentence which reflects conscience of society and sentencing process has to be stern where it should be. The Court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against individual victim but also against society to which criminal and victim belong. Punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality which the crime has been perpetrated, enormity of crime warranting public abhorrence and it should 'respond to the society's cry for justice against the criminal'. [Vide: Sumer Singh vs. Surajbhan Singh and others, (2014) 7 SCC 323, Sham Sunder vs. Puran, (1990) 4 SCC 731, M.P. v. Saleem, (2005) 5 SCC 554, Ravji v. State of Rajasthan, (1996) 2 SCC 175].
33. Hence, applying the principles laid down in the aforesaid judgments and having regard to the totality of facts and circumstances of case, nature of offence and the manner in which it was executed or committed, I find that punishment awarded to accused-appellant by Trial Court in impugned judgment and order is not excessive and it appears fit and proper and no question arises to interfere in the matter on the point of punishment imposed upon him.
34. Appeal lacks merit and is hereby dismissed.
35. Lower Court record along with a copy of this judgment be sent immediately to Trial Court for compliance.
36. Before parting, I provide that Sri Santosh Kumar Srivastava Advocate, Amicus Curiae for accused-appellant, shall be paid counsel's fee as Rs. 10,000/- for his valuable assistance. State Government is directed to ensure payment of aforesaid fee through Legal Remembrancer, Lucknow, without any delay and, in any case, within one month from the date of receipt of copy of this judgment.
Order Date :- 12.2.2020 Manoj