Himachal Pradesh High Court
State Of Himachal Pradesh vs Kehar Singh & Ors on 20 March, 2025
Bench: Tarlok Singh Chauhan, Sushil Kukreja
( 2013:HHC:12277-DB ) IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. A. No. 219/2011 Reserved on: 11.03.2025 Decided on : 20.03.2025 State of Himachal Pradesh .....Appellant Versus Kehar Singh & ors. ....Respondents Coram:
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. The Hon'ble Mr. Justice Sushil Kukreja, Judge. Whether approved for reporting?1No For the Appellant: Mr. Anup Rattan, A.G. with Mr. Ramakant Sharma, Ms. Sharmila Patial, Addl. A.Gs., Mr. J. S. Guleria and Mr. Raj Negi, Dy.A.Gs.
.
For the Respondent: Mr. Ajay Kochhar, Sr. Advocate with Mr. Bhairav Gupta and Ms. Swati Sharma, Advocates.
____________________________________________________________ Justice Tarlok Singh Chauhan, Judge Aggrieved by the acquittal of the respondents under Sections 20 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ( in short, "the Act"), the appellant-State has filed the instant appeal.
1Whether reporters of the local papers may be allowed to see the judgment? Yes.
2 ( 2013:HHC:12277-DB ) 2 Briefly stated, the case of the prosecution is that on 29.3.2008 at about 6.45 p.m. when a police party headed by ASI Luder Singh comprising of HC Pushp. Dev No. 314, Constable Anil Kumar No. 373 was present near Shamshar in connection with detection of cases and traffic checking, one jeep bearing registration No. HP-35B-0777 was noticed coming from Gugra side, which was signalled to stop. Three persons were found sitting in the said Jeep and ASI Luder Singh asked the driver of the Jeep to produce the documents of his vehicle. In the meanwhile, two other persons who were sitting in the Jeep opened the outer door of the Jeep and fled away along with envelope and bag in their hands, however, ASI Luder Singh and other police officials managed to overpower one of those persons while the other person threw his bag on the road and fled away towards 'Nallah' below the road. The person, who was overpowered at the spot disclosed his name to be Kehar Singh (respondent No.1) and the Jeep driver as Rinku. On inquiry, Rinku told that Kehar Singh and Jebi Ram (respondent No.3) had boarded his Jeep behind Gugra and Jebi Ram was holding a bag in his hand and Kehar Singh was holding an envelope, 3 ( 2013:HHC:12277-DB ) but he was not aware about the contents therein. On conducting the search of the bag thrown by respondent No.3 charas in the shape of balls was found therein. Since it was getting dark and there was no provision of light on the spot, ASI Luder Singh along with accompanying officials brought respondent No.1 Kehar Singh and driver of the vehicle along with vehicle to the police station and reached there at about 7.15 p.m. The charas so recovered from the bag was weighed and found to be 5 Kg. Thereafter ASI Luder Singh drew two samples each weighing 25 grams and put the same into a separate parcel and the remaining 4 kg. 950 grams charas was put back into the same polythene envelope and bag and thereafter was packed in a parcel. The sample parcel and parcel containing the bulk were sealed with seal bearing impression 'K'. After obtaining specimen of seal, the same was handed over to HC Pushp Dev No. 314. N.C.B form in triplicate was filled by ASI Luder Singh and thereafter the contraband was taken into possession. Thereafter, respondent No.1 Kehar Singh was given option orally as well as in writing informing him about his legal right to be searched either before a Magistrate or a Gazetted 4 ( 2013:HHC:12277-DB ) Officer, but he opted to be searched by the police. Thereafter the polythene envelope, which respondent No.1 was carrying was searched and found to be containing notes amounting to Rs.1,20,000/-. These currency notes were put back in the same polythene envelope and thereafter in a separate parcel which was sealed with seal bearing impression 'K'. 3 ASI Luder Singh scribed rukka containing the aforesaid information on the basis of which FIR No. 41/08 dated 29-3-2008 under Section 20, 27-A and 29 of the Act came to be registered with Police Station, Aani. 4 ASI Luder Singh and Inspector Nathu Ram conducted the investigation. During Investigation, it was revealed that respondent No.1 Kehar Singh was servant of Jitender Kumar (respondent No.2) and on 29.3.2008 respondent No. 2 had given a sum of Rs. 1,90,000/- to respondents No. 1 and 3 for purchasing 15 kg charas, but both of them purchased only 5 kg charas for a sum of Rs.70,000/- and the remaining amount of Rs.1,20,000/- was being brought back by them. The investigation further revealed that contraband was purchased by respondent No.1 and 5 ( 2013:HHC:12277-DB ) respondent No.3 from Nari Ram and Khimi Devi, both residents of Bucchair, but during the raid conducted in the house of these persons, neither any charas nor currency notes were recovered from their houses.
5 The investigation further revealed that on 29.3.2008 respondents No. 1 to 3 had remained in constant touch with each other on their mobile phones from 11 a.m. till 8.15 p.m. Respondent No.3, who had fled away from the spot had boarded the jeep of Rinku along with respondent No.1 behind Gugra and the Jeep driver was not aware about the articles in polythene envelope and bag which were recovered from the respective respondents.
6 During further investigation, Bank Pass Books and other documents were recovered from the rented house and shop of respondent No.2 showing huge deposits made by him in his Bank account and other properties acquired by him at the time of the occurrence.
7 It had also come in the investigation that respondent No. 3, who had fled away from the spot was given shelter by Shetu Ram (since deceased) from whose house he was arrested.
6 ( 2013:HHC:12277-DB ) 8 On the conclusion of investigation after completing all codal formalities, the challan was prepared and presented in the court and the respondents were produced to face trial. 9 Upon consideration of the challan and other documents annexed therewith, the court found prima facie case and accordingly, charges were framed against the respondents, to which they pleaded not guilty and claimed trial. 10 In order to prove its case, the prosecution examined as many as 40 witnesses and closed its evidence. 11 On the basis of evidence adduced by the prosecution, respondents were examined under Section 313 Cr.P.C. in which they denied all set of incriminating evidence led by the prosecution against them and stated that they were innocent and falsely implicated. The respondents examined two witnesses in their defence.
12 The learned Special Judge after recording the evidence and evaluating the same acquitted the respondents as aforesaid, constraining the State to file the instant appeal.
7 ( 2013:HHC:12277-DB ) 13 Learned Additional Advocate General would argue that the findings recorded by the learned Court below are totally perverse and therefore, deserve to be set aside. 14 On the other hand, Mr. Ajay Kochhar, Sr. Advocate duly assisted by Mr. Bhairav Gupta, Advocate, has supported the impugned judgment and would urge that since the same is based on evidence, it warrants no interference. 15 We have heard the learned counsel for the parties and have gone through the record of the case carefully. 16 At the outset, we would reiterate the principles laid down by the Hon'ble Supreme Court, governing the scope of interference by the High Court in an appeal filed by the State for assailing the acquittal of the accused upon the findings recorded by the learned trial Court.
17 In Rajesh Prasad vs. State of Bihar and another (2022) 2 SCC 471, the three Judge Bench of the Hon'ble Supreme Court encapsulated the legal position governing the field and after considering various earlier judgments held as under:-
"28. After referring to a catena of judgments, this Court culled out the following general principles regarding the 8 ( 2013:HHC:12277-DB ) powers of the appellate court while dealing with an appeal against an order of acquittal in the following words:
"42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:
(1) An appellate court has full power to review, re-
appreciate and reconsider the evidence upon which the order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.
(3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.
(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of 9 ( 2013:HHC:12277-DB ) criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court." 18 Further, in case titled as H.D. Sundara and others vs. State of Karnataka (2023) 9 SCC 581, the Hon'ble Apex Court summarized the principle governing the exercise of Appellate jurisdiction, while dealing with an appeal against acquittal under Section 378 Cr.P.C. The relevant paragraphs No. 8 to 10 of the judgment are reproduced as under:-
"8. In this appeal, we are called upon to consider the legality and validity of the impugned judgment rendered by the High Court while deciding an appeal against acquittal under Section 378 of the Code of Criminal Procedure, 1973 (for short, 'Cr.P.C.'). The principles which govern the exercise of appellate jurisdiction while dealing with an appeal against acquittal under Section 378 of Cr.P.C. can be summarised as follows: -
8.1. The acquittal of the accused further strengthens the presumption of innocence;
10 ( 2013:HHC:12277-DB ) 8.2. The Appellate Court, while hearing an appeal against acquittal, is entitled to re-appreciate the oral and documentary evidence;
8.3. The Appellate Court, while deciding an appeal against acquittal, after re-appreciating the evidence, is required to consider whether the view taken by the Trial Court is a possible view which could have been taken on the basis of the evidence on record;
8.4. If the view taken is a possible view, the Appellate Court cannot overturn the order of acquittal on the ground that another view was also possible; and 8.5. The Appellate Court can interfere with the order of acquittal only if it comes to a finding that the only conclusion which can be recorded on the basis of the evidence on record was that the guilt of the accused was proved beyond a reasonable doubt and no other conclusion was possible.
9. Normally, when an Appellate Court exercises appellate jurisdiction, the duty of the Appellate Court is to find out whether the verdict which is under challenge is correct or incorrect in law and on facts. The Appellate Court normally ascertains whether the decision under challenge is legal or illegal. But while dealing with an appeal against acquittal, the Appellate Court cannot examine the impugned judgment only to find out whether the view taken was correct or incorrect. After re-appreciating the oral and documentary evidence, the Appellate Court must first decide whether the Trial Court's view was a possible view. The Appellate Court cannot overturn acquittal only 11 ( 2013:HHC:12277-DB ) on the ground that after re-appreciating evidence, it is of the view that the guilt of the accused was established beyond a reasonable doubt. Only by recording such a conclusion an order of acquittal cannot be reversed unless the Appellate Court also concludes that it was the only possible conclusion. Thus, the Appellate Court must see whether the view taken by the Trial Court while acquitting an accused can be reasonably taken on the basis of the evidence on record. If the view taken by the Trial Court is a possible view, the Appellate Court cannot interfere with the order of acquittal on the ground that another view could have been taken.
10. There is one more aspect of the matter. In many cases, the learned Trial Judge who eventually passes the order of acquittal has an occasion to record the oral testimony of all material witnesses. Thus, in such cases, the Trial Court has the additional advantage of closely observing the prosecution witnesses and their demeanour. While deciding about the reliability of the version of prosecution witnesses, their demeanour remains in the back of the mind of the learned Trial Judge. As observed in the commentary by Sarkar on the Law of Evidence, the demeanour of a witness frequently furnishes a clue to the weight of his testimony. This aspect has to be borne in mind while dealing with an appeal against acquittal."
19 Thus, it is beyond the pale of doubt that the scope of interference by an Appellate Court for reversing the judgment of 12 ( 2013:HHC:12277-DB ) acquittal rendered by the learned trial Court has to be exercised within the four corners of the following principles:-
a) That the judgment of acquittal suffers from patent perversity;
b) That the same is based on misreading/omission to consider material evidence on record;
c) That no two views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on record.
d) The Appellate Court in order to interference with the judgment of acquittal would have to record pertinent findings on the above factors, if it is inclined to reverse the judgment of acquittal rendered by the trial Court."
20 Equally settled is the proposition that it is not the duty of the Appellate Court when it agrees with the view of the trial Court on the evidence to repeat the narration of the evidence or to reiterate the reasons given by the trial Court, expression of general agreement with reasons given by the Court, the decision of which is under appeal, would ordinarily suffice (Refer: Girijanandini Devi and others vs Bijendra Narain Choudhary, AIR 1967 SC 1124).
13 ( 2013:HHC:12277-DB ) 21 In order to establish the case against the respondents, the Court would first have to determine whether there is any link evidence present in the case to connect the contraband with the reports of the SFSL and the case property. 22 This assumes importance given the fact that it is admitted case of the prosecution that the case property was sealed with seal impression 'K' by PW34 SI Ludar Singh and thereafter resealed with seal impressions 'H' by PW-35 SI Om Parkash.
23 It is further admitted case of the prosecution that initially only samples weighing 25 grams were sent for examination to the SFSL, qua which report Ex.PBB was received, in which, it was observed in para-7 that the sample exhibit sent was bearing three seals impression of 'K' and two of 'H'.
24 Yet again, it is admitted case of the prosecution that after the examination of PW34 in the Court on 23.02.2010, the remaining bulk case property was sent to SFSL on 01.03.2010 through PW38 Constable Puran Chand, which, in turn, was handed over to him by PW37 HC Pushap Dev. Report Ex.PAA 14 ( 2013:HHC:12277-DB ) was thereafter received and tendered in evidence on 20.08.2010 in the statement of the learned Public Prosecutor. 25 This means that the case property, which was allegedly seized and sent to SFSL was not at all produced in the court and this fact by itself is fatal to the case of the prosecution.
26 This aspect of the matter would be further clear from the following facts:-
a) The case property for the first time was produced in the Court on 10.08.2009 and was exhibited in the statement of PW1 HC Pushap Dev. In the case property produced before the Court, seal 'H' was neither found on the bulk parcel nor on the sample parcel and it is the case of the prosecution that the seal 'H' was used for resealing the contraband by PW35 SI Om Parkash as is evident from his statement recorded in the court, relevant portion whereof reads as under:-
"At this stage one sealed parcel is produced which is sought to be opened duly sealed with seal 'K'. The seals are found intact and is allowed to be opened. One rexine bag is taken out from the sealed packet which is Ext.P1. This bag is the same which was taken into possession and in this bag polythene packet Ext.P2 is found 15 ( 2013:HHC:12277-DB ) containing charas Ext.P3 and those are the same as recovered and taken in possession. The sealed parcel of sample are Ex.P4 and Ext.P5 and the specimen impression of seal H and K are Ext. P6 and P7."
(b) Further what is intriguing and fatal to the case of the prosecution is that there is no observation by the Court that the sample parcel, for which report Ex.PBB was received from the SFSL was having any seal of the SFSL with which it was resealed after examination.
c) The records reveal that the case property was again produced before the Court while recording the statement of PW34 on 23.02.2010 and during the course of his entire statement, there is no such observation of the Court that it is the same case property, which had earlier been produced while recording the statement of PW1. There is no observation whatsoever regarding seals 'H', 'K' or even the Court seals as is evident from the observations as contained in his statement, which reads as under:-
"At this state three sealed parcels opne containing bulk charas and other containing sample of charas produced which are duly sealed and sealed packet containing charas sought to be opened. The seals are found intact and the same is allowed to be opened."
16 ( 2013:HHC:12277-DB )
d) Another equally shocking and glaring mistake or oversight committed by the prosecution, which is fatal to its case, is that the prosecution has only tendered report, Ext. PPA qua bulk case property, which had been sent through PW38 Constable Puran Chand, who never chose to produce the same in the court of law.
27 This aspect of the matter assumes greater importance given the fact that it is settled proposition of law that the case property has to be produced physically and thereafter ought to have been proved in accordance with law by either marking it as 'Mark' or 'Exhibit'. 28 We need not to multiply the authorities on the subject, suffice it to make reference to a fairly recent judgment of the Hon'ble Supreme Court in Mangilal vs. State of Madhya Pradesh, 2023 (10) SCALE 147, wherein the Hon'ble Supreme Court while relying upon its earlier judgments has made the following pertinent observations in paras 8 and 11, which read as under:-
8. Before any proposed disposal/destruction mandate of Section 52A of the NPDS Act requires to be duly complied 17 ( 2013:HHC:12277-DB ) with starting with an application to that effect. A Court should be satisfied with such compliance while deciding the case. The onus is entirely on the prosecution in a given case to satisfy the Court when such an issue arises for consideration. Production of seized material is a factor to establish seizure followed by recovery. One has to remember that the provisions of the NDPS Act are both stringent and rigorous and therefore the burden heavily lies on the prosecution. Non-production of a physical evidence would lead to a negative inference within the meaning of Section 114(g) of the Indian Evidence Act, 1872 (hereinafter referred to as the Evidence Act). The procedure contemplated through the notification has an element of fair play such as the deposit of the seal, numbering the containers in seriatimwise and keeping them in lots preceded by compliance of the procedure for drawing samples. The afore-stated principles of law are dealt with in extenso in Noor Aga v. State of Punjab, (2008) 16 SCC 417:
"89. Guidelines issued should not only be substantially complied with, but also in a case involving penal proceedings, vis-à-vis a departmental proceeding, rigours of such guidelines may be insisted upon. Another important factor which must be borne in mind is as to whether such directions have been issued in terms of the provisions of the statute or not. When directions are issued by an authority having the legal sanction granted therefor, it becomes obligatory on the part of the subordinate authorities to comply therewith.
18 ( 2013:HHC:12277-DB )
90. Recently, this Court in State of Kerala v. Kurian Abraham (P) Ltd. [(2008) 3 SCC 582] , following the earlier decision of this Court in Union of India v. Azadi Bachao Andolan [(2004) 10 SCC 1] held that statutory instructions are mandatory in nature.
91. The logical corollary of these discussions is that the guidelines such as those present in the Standing Order cannot be blatantly flouted and substantial compliance therewith must be insisted upon for so that sanctity of physical evidence in such cases remains intact. Clearly, there has been no substantial compliance with these guidelines by the investigating authority which leads to drawing of an adverse inference against them to the effect that had such evidence been produced, the same would have gone against the prosecution.
92. Omission on the part of the prosecution to produce evidence in this behalf must be linked with a second important piece of physical evidence that the bulk quantity of heroin allegedly recovered indisputably has also not been produced in court. The respondents contended that the same had been destroyed. However, on what authority it was done is not clear. Law requires that such an authority must flow from an order passed by the Magistrate. Such an order whereupon reliance has been placed is Exhibit PJ; on a bare perusal whereof, it is apparent that at no point of time had any prayer been made for destruction of the said goods or disposal thereof otherwise. What was necessary was a certificate envisaged under Section 110(1-B) of the 1962 Act. An order was required to be passed under the aforementioned provision providing for authentication, inventory, etc. The same does not contain within its mandate any direction as regards destruction.
19 ( 2013:HHC:12277-DB ) XXX XXX XXX
95. The High Court proceeded on the basis that non- production of physical evidence is not fatal to the prosecution case but the fact remains that a cumulative view with respect to the discrepancies in physical evidence creates an overarching inference which dents the credibility of the prosecution. Even for the said purpose the retracted confession on the part of the accused could not have been taken recourse to.
96. Last but not the least, physical evidence relating to three samples taken from the bulk amount of heroin was also not produced. Even if it is accepted for the sake of argument that the bulk quantity was destroyed, the samples were essential to be produced and proved as primary evidence for the purpose of establishing the fact of recovery of heroin as envisaged under Section 52-A of the Act. XXX XXX XXX
100. Physical evidence of a case of this nature being the property of the court should have been treated to be sacrosanct. Non-production thereof would warrant drawing of a negative inference within the meaning of Section 114(g) of the Evidence Act. While there are such a large number of discrepancies, if a cumulative effect thereto is taken into consideration on the basis whereof the permissive inference would be that serious doubts are created with respect to the prosecution's endeavour to prove the fact of possession of contraband by the appellant. This aspect of the matter has been considered by this Court in Jitendra v. State of M.P. [(2004) 10 SCC 562 : 2004 SCC (Cri) 2028] in the following terms: (SCC p. 565, para 6) "6. ... In the trial it was necessary for the prosecution to establish by cogent evidence that the alleged quantities of 20 ( 2013:HHC:12277-DB ) charas and ganja were seized from the possession of the accused. The best evidence would have been the seized materials which ought to have been produced during the trial and marked as material objects.
There is no explanation for this failure to produce them. Mere oral evidence as to their features and production of panchnama does not discharge the heavy burden which lies on the prosecution, particularly where the offence is punishable with a stringent sentence as under the NDPS Act."
11. The memorandum of informer's information dated 20.05.2010 exhibited under P-3 indicates signature of two witnesses, P.W.2 and P.W.6, both of them turned hostile. Though they admitted their signature it was clearly deposed that they were not present at the scene of occurrence. In our considered view the Court below have wrongly construed the evidence, in fact these two witnesses were party to most of the exhibits running upto 13. Search warrant under Exhibit P-4 acknowledge the fact that procedure contemplated under the NDPS Act has not been followed. As noted, one of the witnesses to the seizure memo has not been examined while the other turned hostile. Both the witnesses to the arrest memo have not been examined. On the issue of non- production of narcotic substance and panch witnesses turning hostile we wish to reiterate the decision of this Court in Jitendra v. State of M.P., (2004) 10 SCC 562:
"5. The evidence to prove that charas and ganja were recovered from the possession of the accused consisted of the evidence of the police officers and the panch witnesses. The panch witnesses turned
21 ( 2013:HHC:12277-DB ) hostile. Thus, we find that apart from the testimony of Rajendra Pathak (PW 7), Angad Singh (PW 8) and Sub-Inspector D.J. Rai (PW 6), there is no independent witness as to the recovery of the drugs from the possession of the accused. The charas and ganja alleged to have been seized from the possession of the accused were not even produced before the trial court, so as to connect them with the samples sent to the Forensic Science Laboratory. There is no material produced in the trial, apart from the interested testimony of the police officers, to show that the charas and ganja were seized from the possession of the accused or that the samples sent to the Forensic Science Laboratory were taken from the drugs seized from the possession of the accused. Although the High Court noticed the fact that the charas and ganja alleged to have been seized from the custody of the accused had neither been produced in the court, nor marked as articles, which ought to have been done, the High Court brushed aside the contention by observing that it would not vitiate the conviction as it had been proved that the samples were sent to the Chemical Examiner in a properly sealed condition and those were found to be charas and ganja. The High Court observed, "non-production of these commodities before the court is not fatal to the prosecution. The defence also did not insist during the trial that these commodities should be produced". The High Court relied on Section 465 CrPC to hold that non- production of the material object was a mere 22 ( 2013:HHC:12277-DB ) procedural irregularity and did not cause prejudice to the accused.
6. In our view, the view taken by the High Court is unsustainable. In the trial it was necessary for the prosecution to establish by cogent evidence that the alleged quantities of charas and ganja were seized from the possession of the accused. The best evidence would have been the seized materials which ought to have been produced during the trial and marked as material objects. There is no explanation for this failure to produce them. Mere oral evidence as to their features and production of panchnama does not discharge the heavy burden which lies on the prosecution, particularly where the offence is punishable with a stringent sentence as under the NDPS Act. In this case, we notice that panchas have turned hostile so the panchnama is nothing but a document written by the police officer concerned. The suggestion made by the defence in the cross- examination is worthy of notice. It was suggested to the prosecution witnesses that the landlady of the house in collusion with the police had lodged a false case only for evicting the accused from the house in which they were living. Finally, we notice that the investigating officer was also not examined. Against this background, to say that, despite the panch witnesses having turned hostile, the non- examination of the investigating officer and non-production of the seized drugs, the conviction under the NDPS Act can still be sustained, is far-fetched." (emphasis supplied) 23 ( 2013:HHC:12277-DB ) 29 In addition to what has been observed above, the respondents could have been convicted for conspiracy only if such conspiracy amongst them had been established, however record reveals otherwise as would be clear from the following:
a) There is no evidence on record to prove the fact that respondent Kehar Singh was employed as servant by respondent Jitender. Further, there is no evidence to establish on record that Jitender had actually given a sum of Rs.
1,90,000/- to Kehar Singh and Jebi Ram for the purchase of alleged Charas. This fact is duly admitted by none other but PW34 Ludar Singh, Investigating Officer, who has stated before the Court that "during my investigation, no material was found about the handing over of the cash by Jitender Singh to Kehar Singh".
b) The prosecution has also failed to prove that on 29.03.2008, Jitender, Jebi Ram and Kehar Singh were seen coming together and going from Primary School at Naldehra despite the fact that the prosecution examined PW-4, PW-5, PW-6, PW-8 and PW-13 to prove this fact, but none of them has supported the case of the prosecution.
24 ( 2013:HHC:12277-DB )
c) The prosecution has further failed to prove on record that all the respondents were in constant touch with each other on 29.03.2008 either physically or on their respective mobile phones. Rather, there is no evidence on record that all these respondents were in possession of the SIMs of the mobile numbers attributed to them. The mobile number 98169-66001 was stated to be that of respondent Jitender, but when PW11 Davinder Singh was examined, he stated that the mobile number 98169-66001 was of one Naresh Chand, who was never examined by the prosecution. Similarly, mobile number 98175-93602 as per prosecution belonged to respondent Kehar Singh, whereas this in fact belonged to one Gopal Singh, who was examined as PW21 who denied that respondent Kehar Singh had purchased this SIM in his name. As regards respondent Jebi Ram, he was alleged to be in possession of mobile number 98172-34652, but the same was owned by one Ram Singh, who was examined as PW17 and clearly denied that sim had been purchased in his name by Jebi Ram.
25 ( 2013:HHC:12277-DB )
d) If this was not enough, it is admitted case of the prosecution that none of the SIMs was recovered from the possession of any of respondents.
e) Even PW1 HC Pushap Raj is silent qua having recovered any phone from the possession of the respondent Kehar Singh.
30 We further find that there are material contradictions, which affect the core or substratum of the prosecution case with regard to apprehension of respondents Kehar Singh and Jebi Ram, who were alleged to have fled away from the spot.
31 The conjoint reading of statements of PW1 HC Pushap Raj, PW2 Rinku and PW34 SI Ludar Singh would go to show that they had not apprehended the respondents in the manner alleged by the prosecution in the final report submitted to the Court. Had all these witnesses been on the spot, then their statements ought to have been consistent, whereas it is not so, as would be evident from the following:-
a) PW1 and PW34 specifically stated that the vehicle in question was intercepted near Shamshar and at that time, it 26 ( 2013:HHC:12277-DB ) was dark, whereas PW2 contradicted both of them by stating that the vehicle was intercepted in Shamshar Bazaar and at that time, the Bazaar was open and number of persons had gathered on the road side, when the vehicle was intercepted.
b) PW2 has further falsified the case of the prosecution by specifically stating that Pushap Raj was not present when the vehicle was intercepted and the police officials, who had signaled the vehicle to stop, were on motorcycle. PW2 in his statement has further falsified the case of prosecution by stating that "It is correct that I did not see anyone while throwing bag Ex.P-1" and that "it is correct that I did not see bag Ex.P-1 while lying on the road". This witness has also falsified the case of prosecution that since it was dark and there was no provision of light and under these circumstances, the case property was taken to the police station and entire proceedings were conducted there, when he stated that "it is correct that my vehicle was stopped in Shamshar Bazaar. It is correct that Shamshar bazaar was open and there was sufficient provision for light".
27 ( 2013:HHC:12277-DB ) 32 There is contradiction in the statement of the PW1 HC Pushap Raj examined by the prosecution with regard to finger prints on the currency notes, when he stated that, "the finger prints on these currency notes were lifted in my presence", whereas PW34 has contradicted the same by stating that "I did not lift the finger prints from the currency notes recovered". 33 As a matter of fact all these contradictions have been duly noted by the learned Special Judge in para-48 of the impugned judgment.
34 Further, there is also interpolation in the NCB-I form placed on record as Ex.PW-34/N, wherein in column No.2, name and address of the offender has been interpolated to name and address of the officer apprehending the respondents. 35 Even presence of PW1 HC Pushap Raj on the spot appears to be doubtful in view of the statement of PW2 and the contradictions appearing in the statements of PW1 and PW34 in their statements.
36 PW1 in his statement before the Court has stated that while going to the police station from the spot, he was sitting on the rear side of the vehicle, whereas PW34 is 28 ( 2013:HHC:12277-DB ) emphatic in his statement when he stated that there was no rear seat in the said vehicle.
37 At this stage, we may note that introduction of one Constable Anil Kumar is of no help to the prosecution, who was introduced by the Investigating Officer while he was under oath to claim that it was Constable Anil Kumar, who was sent to associate any person from Shamshar bazaar by stating that "I sent Constable Anil Kumar to associate any person from Shamshar Bazaar, but the shops were closed". 38 It needs to be noticed that this was never the case of the prosecution and was not even stated by other witnesses. 39 Lastly and more importantly, there is no evidence on record that the money in the bank account of respondent Jitender was having any connection with illegal activity. PW9 in his deposition has admitted that "all the transactions in the account have been shown through cheques" and PW-14 has also admitted in his cross examination that the account of Jitender was having a credit limit to Rs.3 lacs and stock for the cash credit limit had been verified from time to time by the 29 ( 2013:HHC:12277-DB ) concerned bank and there was total debt liability of Rs. 3,33,203/- in the account of respondent Jitender. 40 This assumes significance because there is ample evidence on record that the respondent Jitender was running a business of clothes and this fact was admitted by PW1 HC Pushap Raj and even suggestion was given to PW6 Monika. Even PW7 has also admitted that Jitender was running a readymade garments shop and was supplier of readymade garments.
41 In view of the aforesaid discussions and for the reasons stated above, we see no reason to interfere with the impugned judgment as the view taken by the learned Special Judge is possible and plausible one.
42 Consequently, we find no merit in the instant appeal and the same is accordingly dismissed so also the pending application(s), if any.
(Tarlok Singh Chauhan) Judge (Sushil Kukreja) 20.3.2025 Judge (pankaj)