Himachal Pradesh High Court
Mehar Singh Son Of Shri Khubi Ram vs State Of Himachal Pradesh on 30 April, 2015
Author: P.S.Rana
Bench: P.S.Rana
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA, AT SHIMLA Cr.Appeal No. 4177 of 2013 Judgment reserved on: 27th March, 2015 Date of Judgment: April 30, 2015 .
__________________________________________________________________ Mehar Singh son of Shri Khubi Ram .....Appellant.
Vs. State of Himachal Pradesh. ....Respondent.
Coram:
Hon'ble Mr.Justice P.S.Rana, Judge.
Whether approved for reporting?1 Yes.
For the Appellant: Mr. Malay Kaushal, Advocate For the Respondent:
r Mr. M.L. Chauhan, Additional Advocate
General.
P.S.Rana Judge
Judgment:- Present appeal is filed against the judgment and
sentence passed by learned Special Judge Kinnaur Sessions Division at Rampur Bushehr in Sessions Trial No 12 of 2009 titled State vs. Mehar Singh decided on dated 30.7.2013.
Brief facts of the case as alleged by the prosecution:-
2. It is alleged that on dated 28.12.2008 ASI Jagat Singh was on patrolling duty along with C. Amar Singh, HHC Daya Ram, HHC Tilak Raj at Dawah near Bagipul and at about 2.30 PM at Jaon Bagipul road a person was seen coming from Jaon side 1 Whether reporters of the Local papers are allowed to see the judgment? yes ::: Downloaded on - 15/04/2017 18:04:49 :::HCHP 2 carrying a polythene bag in his hand and when he saw police officials he tried to turn back. It is alleged by prosecution that on suspicion accused was caught and on inquiry he disclosed his .
name as Mehar Singh. It is alleged by prosecution that place was isolated and independent witnesses could not be associated. It is further alleged by prosecution that accused was informed that he has legal right to be searched before the Magistrate or gazetted officer and thereafter accused had given his consent that he should be searched by police officials and thereafter consent memo Ext.PW1/A was prepared. It is alleged by prosecution that thereafter police officials have given their personal search and no incriminating article was found from possession of police officials.
It is alleged by prosecution that thereafter plastic bag which was in possession of accused was searched and 1 Kg. 500 grams charas was found. It is also alleged by prosecution that thereafter two samples of 25 grams each were taken for chemical analysis.
It is alleged by prosecution that seal impression was obtained and NCB form Ext.PW9/A was filled. It is alleged by prosecution that recovered charas was took into possession vide recovery memo Ext.PW1/C and thereafter ruka Ext.PW10/A was sent for registration of case and on the basis of ruka FIR Ext.PW2/A was registered. It is alleged by prosecution that thereafter spot map Ext.PW10/B was prepared and grounds of arrest were informed to accused vide memo Ext.PW1/E. It is alleged by prosecution that ::: Downloaded on - 15/04/2017 18:04:49 :::HCHP 3 case property along with NCB form was produced before SHO and then SHO P.S. Nirmand on dated 28.12.2008 resealed the bulk as well as sample parcels with seal 'H' and also filled column .
Nos. 9 to 11 of NCB form Ext.PW9/A. It is further alleged by prosecution that specimen impression of seal 'M' was obtained and thereafter special report Ext.PW4/A was prepared. It is also alleged by prosecution that charas Ext.P4 was recovered in the shape of balls and sticks. It is further alleged by prosecution that on dated 30.12.2008 one parcel of sample along with sample seal, NCB form and other relevant documents were handed over to C. Rohit Singh vide RC No. 74/2008 with direction to deposit the same in office of FSL Junga. It is also alleged by prosecution that thereafter articles were deposited in the office of FSL Junga and receipt obtained. It is alleged by prosecution that thereafter special report was presented before Bhajan Singh Negi Dy.S.P. who made his endorsement and receipt of special report was recorded in the register. It is alleged by prosecution that thereafter SI Dulo Ram on receipt of report of chemical examiner Ext.PY prepared challan. It is also alleged by prosecution that supplementary challan was also filed.
3. Learned trial Court on dated 29.11.2010 framed the charge against the accused under Section 20 of Narcotic Drugs and Psychotropic Substances Act. Accused did not plead guilty and claimed trial.
::: Downloaded on - 15/04/2017 18:04:49 :::HCHP 44. Prosecution examined as many as ten witnesses in support of its case and accused persons examined four witnesses as defence witness:-
.
Sr.No. Name of Witness
PW1 Tilak Raj
PW2 Lal Chand
PW3 Rohit Verma
PW4 Sohan Lal
PW5 Shyam Dass
PW6 Pushap Dev
PW7 Amar Singh
PW8 Kanwar Singh
PW9 Dulo Ram
PW10 Jagat Singh
DW1 Mehar Singh
DW2 Narpat Dass
DW3 Kaul Ram
DW4 Ses Ram
4.1 Prosecution and accused also produced following
piece of documentary evidence in support of its case:-
Sr.No. Description.
Ext.PW1/A Consent memo.
Ext.PW1/B Personal search memo
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5
Ext.PW1/C Recovery memo
Ext.PW1/D Specimen impression of seal
Ext.PW1/E Memo regarding information of
arrest
Ext.PW2/A FIR
.
Ext.PW2/B Ruka
Ext.PW2/C Specimen impression of seal
Ext.PW2/D Extract of malkhana register
Ext.PW2/E Copy of RC
Ext.PW4/A Special report
Ext.PW4/B Extract of dispatch register
Ext.PW6/A Copy of RC
Ext.PW6/B Copy of receipt
Ext.PW6/C Extract of malkhana register
Ext.PW6/D Copy of rapat No.6
Ext.PW9/A NCB form
Ext.PX and FSL reports
Ext.PY
Ext.PW10/A Ruka
Ext.PW10/B Site plan
Ext.PW10/C Copy of rapat No. 12
Ext.DA Copy of FIR No. 107
Ext.DB Copy of FSL report
Ext.DC Copy of FSL report pertaining to FIR
No. 108/2008
Ext.DD Copy of FIR No. 108/2008
Ext.DE Copy of FSL report in FIR No.
108/2008
Ext.DF Copy of FSL report pertaining to FIR
No. 107/2008
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6
5. Learned trial Court convicted the accused under Section 20 of ND&PS Act and sentenced the convicted to five years rigorous imprisonment and to pay fine of ` 50,000/-
.
(Rupees fifty thousand only). Learned trial Court further directed that in default of payment of fine the convicted shall undergo imprisonment for six months.
6. Feeling aggrieved against the judgment and sentence passed by learned trial Court appellant filed present appeal. Court heard learned Advocate appearing on behalf of the appellant and learned Additional Advocate General appearing on behalf of the respondent-State and also perused the entire record.
7. Question that arises for determination in present appeal is whether learned trial Court did not properly appreciate oral as well as documentary evidence placed on record and whether learned trial Court had committed miscarriage of justice as mentioned in memorandum of grounds of appeal.
8. ORAL EVIDENCE ADDUCED BY PROSECUTION:
8.1. PW1 Tilak Raj has stated that he was posted as HHC in P.S. Nirmand in the year 2008 and on dated 28.12.2008 he along with SI Jagat Singh, HHG Daya Ram and C. Amar Singh were on patrolling duty at Bagipul and at about 2.30 PM when they reached Dawah one person came from opposite side who ::: Downloaded on - 15/04/2017 18:04:49 :::HCHP 7 was carrying one plastic bag in his hand. He has stated that on suspicion the accused was caught and on inquiry he disclosed his name as Mehar Singh. He has stated that there was suspicion .
that accused was carrying some contraband in carry bag and thereafter consent of accused was obtained whether accused intended to be searched before Magistrate or gazetted officer. He has stated that thereafter accused had given his consent that he was ready to be searched by police officials and thereafter police officials have given their search but nothing was recovered from police officials and thereafter bag of accused was searched. He has stated that in bag charas was found and same was weighed and found 1.500 Kg. He has stated that two samples of 25 grams each were took out and both samples were sealed in different two parcels and bulk of charas was also sealed in parcel. He has stated that NCB form in triplicate was prepared. He has stated that recovered charas was took into possession vide recovery memo Ext.PW1/C. He has stated that charas produced in Court was recovered from exclusive and conscious possession of accused.
8.2 PW2 HC Lal Chand has stated that he remained posted as MHC in P.S. Nirmand w.e.f. November 2007 to May 2010 and further stated that he has brought register Nos. 19 and
21. He has stated that on dated 28.12.2008 C. Amar Singh produced one ruka prepared by ASI Jagat Singh and on the basis ::: Downloaded on - 15/04/2017 18:04:49 :::HCHP 8 of ruka he registered FIR Ext.PW2/A which bears his signatures.
He has stated that ASI Jagat Singh produced three sealed packets duly sealed with seal 'H' and also produced NCB form in .
triplicate. He has stated that SHO Dulo Ram resealed the above packets with seal 'N'. He has stated that thereafter one sample of parcel along with sample of seal and NCB form and other relevant documents were sent to office of Chemical examiner vide RC No. 74/2008. He has stated that case property remained intact in his custody. He has admitted that entry of arrival and departure of official is recorded in police station. He has denied suggestion that blank space was kept in register in connivance with police officials.
8.3 PW3 Rohit Verma has stated that in the year 2008-09 he was posted as constable in P.S. Nirmand and on dated 30.12.2008 MHC P.S. Nirmand Lal Singh handed over to him one sample parcel of charas duly sealed with seals 'H' and 'N' and also handed over NCB form and other relevant documents vide RC No. 74/2008. He has stated that on dated 31.12.2008 he deposited the same in office of FSL Junga and further stated that articles remained intact in his custody. He has stated that copy of RC is Ext.PW2/E. He has stated that he handed over the receipt of chemical examiner to MHC Lal Singh.
8.4 PW4 ASI Sohan Singh has stated that he remained posted as Reader to Dy.S.P. Ani w.e.f. 2007 to 2009 and on dated ::: Downloaded on - 15/04/2017 18:04:49 :::HCHP 9 29.12.2008 C. Nanak Chand handed over special report in case FIR No. 109/2008 to him which was presented by him before Dy.S.P. Bhajan Singh Negi. He has stated that thereafter Dy.S.P. .
had made endorsement on special report and further stated that special report is Ext.PW4/A which is correct as per original record.
He has stated that endorsement made by Dy.S.P. is Ext.PW4/C. He has denied suggestion that special report was not handed over to him.
8.5 PW5 Shyam Dass has stated that he is posted as Constable on general duty in P.S. Nirmand since April 2010 and on dated 29.8.2010 MHC Pushap Dev handed over two sealed parcels sealed with seal bearing impressions 'H' and 'N' along with specimen impression of seals along with connected documents vide RC No. 102/2010 with direction to deposit the same in office of FSL Junga. He has stated that he deposited the same on dated 30.12.2008 and brought the RC. He has stated that case property remained intact during his custody. He has further stated that on dated 19.9.2010 he brought the report of chemical examiner from FSL Junga and handed over the same to MHC in intact condition. He has stated that he has kept the case property with him during night of dated 29.8.2010.
8.6 PW6 Pushap Dev has stated that he is posted as MHC P.S. Nirmand since May 2010 and on dated 29.8.2010 he handed over two sealed parcels sealed with seal H and re-sealed with ::: Downloaded on - 15/04/2017 18:04:49 :::HCHP 10 seal 'N' along with sample of seal and connected documents to Shyam Dass vide RC No. 102/2010 with direction to deposit the same at FSL Junga. He has stated that copy of RC is Ext.PW6/A, .
receipt is Ext.PW6/B and extract of register of malkhana is Ext.PW6/C and same were correct as per original record. He has stated that copy of rapat is also correct as per original.
8.7 PW7 Amar Singh has stated that he remained posted as Constable P.S. Nirmand w.e.f. 2008 to 2009 and on dated 28.12.2008 he along with ASI Jagat Singh, HHC Tilak Raj, HHC Daya Ram were on patrolling duty at Dawah near Bagipul. He has stated that at about 2.30 PM one person came from Jaon side carrying one polythene bag in his hand and when he saw the police he tried to run away and further stated that on suspicion he caught hold the accused and on inquiry accused disclosed his name as Mehar Singh. He has stated that ASI asked the accused that police officials have suspicion that accused was carrying contraband in his bag. He has stated that thereafter accused told that accused has legal right to be searched before Magistrate or gazetted officer and further stated that memo Ext.PW1/A was prepared in this regard. He has stated that accused had given his consent that he should be searched by police officials. He has stated that thereafter ASI Jagat Singh had given his personal search to accused in his presence and in presence of Tilak Raj and memo Ext.PW1/B was prepared. He has stated that place ::: Downloaded on - 15/04/2017 18:04:49 :::HCHP 11 was isolated and no independent witness was available. He has further stated that thereafter plastic bag was searched by ASI in his presence and on search, one another plastic envelope was .
found and in that plastic bag charas in the shape of sticks and balls was found. He has stated that charas was weighed which was found 1.500 Kg. and two samples of 25 grams each were obtained. He has stated that both samples were sealed in two different parcels and bulk charas was also sealed in parcel. He has stated that NCB form in triplicate was filled and thereafter seal after use was handed over to him. He has stated that charas was took into possession vide recovery memo Ext.PW1/C which was signed by him and Tilak Raj. He has stated that copy of recovery memo was given to accused Mehar Singh and thereafter ruka was handed over to him and on the basis of ruka FIR Ext.PW2/A was registered. He has stated that thereafter MHC prepared case file and handed over the same to him with direction to hand over the same to I.O. at the spot. He has stated that accused was also apprised by his grounds of arrest. He has stated that bags Ext.P2 to Ext.P4 were recovered from accused.
He has also proved Ext.P5, Ext.P6, Ext.P7 and Ext.P8. He has denied suggestion that charas was recovered from other persons resident of Haryana and false case was registered against the accused. He has denied suggestion that nothing incriminating was recovered from accused Mehar Singh.
::: Downloaded on - 15/04/2017 18:04:49 :::HCHP 128.8 PW8 Kanwar Singh has stated that he remained posted as I.O. in P.S. Nirmand w.e.f. November 2007 to July 2011 and further stated that after receipt of report of chemical .
examiner Ext.PX he prepared supplementary challan in this case and presented the same in Court.
8.9 PW9 SI Dulo Ram has stated that he remained posted as SHO in P.S. Nirmand w.e.f. 2007 to 2009 and on dated 28.12.2008 ASI Jagat Singh produced three sealed parcels duly sealed with seal impression 'H', bulk parcel sealed with six seals of 'H' and sample parcels sealed with three seals of 'H' along with sample of seal, NCB form in triplicate for resealing purpose.
He has stated that he resealed the bulk parcel with six seals bearing impression 'N' and sample parcels with three seals with seal impression 'N' and he filled column Nos. 9 to 11 of NCB form Ext.PW9/A. He has stated that specimen impression was drawn separately and thereafter he handed over the case property to MHC along with sample of seals N and H, NCB form in triplicate and further stated that after receipt of report of Chemical examiner Ext.PY he prepared challan in this case and presented the same in Court.
8.10 PW10 ASI Jagat Singh has stated that he remained posted as ASI/IO in P.S. Nirmand w.e.f. 2007 to 2010 and on dated 28.12.2008 he along with C. Amar Singh, HHC Daya Ram, HHC Tilak Raj were on patrolling duty at Dawah near Bagipul and ::: Downloaded on - 15/04/2017 18:04:49 :::HCHP 13 at about 2.30 PM on Jaon Bagipul road one person came from Jaon side carrying one polythene bag in his hand and when he saw police officials he tried to turn back. He has stated that on .
suspicion they caught accused and on inquiry accused disclosed his name as Mehar Singh. He has stated that place was isolated and no independent witness could be associated. He has stated that thereafter he asked the accused that he had suspicion upon accused about possession of contraband and further told the accused that he has right to be searched before Magistrate or gazetted officer and consent memo Ext.PW1/A was prepared. He has stated that accused had given consent in writing that he was ready to be searched by police officials and thereafter he had given his personal search to accused and in this regard memo Ext.PW1/B was prepared. He has stated that thereafter plastic bag which was carried by accused was searched and on search another plastic envelope was found and charas in the shape of balls and sticks found. He has stated that quantity of charas was found 1.500 Kg. and thereafter two samples of charas were took out for chemical analysis and thereafter both samples were put in two different parcels. He has stated that sample of seal was drawn separately and seal after use was handed over to Amar Singh. He has stated that recovered charas was took into possession vide recovery memo Ext.PW1/C. He has further stated that ruka Ext.PW10/A was handed over to C. Amar Singh for ::: Downloaded on - 15/04/2017 18:04:49 :::HCHP 14 registration of case and on the basis of ruka FIR Ext.PW2/A was registered. He has stated that he prepared spot map Ext.PW10/B and marginal notes are in his hand. He has stated that he also .
recorded statements of witnesses and accused was apprised by grounds of arrest and further stated that he produced case property along with NCB form and further stated that copy of rapat is correct as per original record. He has proved Ext.P1, Ext.P2, Ext.P3, Ext.P4, Ext.P5, Ext.P6, Ext.P7 and Ext.P8. He has stated that he has personally filled column Nos. 1 to 8 of NCB form at the spot and column Nos. 9 to 11 were filled in by SHO.
He has denied suggestion that bus was available after every ten minutes. He has denied suggestion that all documents were prepared in police station. He has denied suggestion that signatures of accused were obtained on all documents in police station. He has denied suggestion that he has recorded statements of witnesses of his own. He has denied suggestion that nothing was recovered from accused and he has denied suggestion that false case has been filed against the accused.
9. Statement of accused recorded under Section 313 Cr.P.C. He has stated that false case has been filed against him.
He has stated that on dated 28.12.2008 he was made to deboard the bus at bus stand Nirmand and he was took to police station where false case was planted against him under threat. He has stated that at that time Kaul Singh and Ses Ram were also ::: Downloaded on - 15/04/2017 18:04:49 :::HCHP 15 deboarded from the bus. Accused also produced oral evidence in defence.
10. Defence evidence adduced by the accused .
10.1. DW1 Mehar Singh has stated that on dated 28.12.2008 he was coming from Bagipul to Rampur in a government bus and when bus stooped at Nirmand 2/3 police personnel came and inquired whether Mehar Singh, Kaul Singh and Ses Ram were in bus or not. He has stated that thereafter he was taken to police station along with Kaul Ram and Ses Ram and they were questioned. He has stated that he was not carrying any contraband and police planted false case against him. He has stated that he did not file any complaint because he was arrested. He has denied suggestion that on dated 28.12.2008 he was intercepted by police and also denied suggestion that he was carrying a plastic bag containing charas.
He has denied suggestion that 1.500 Kg. charas was found from his possession. He has denied suggestion that spot was lonely place.
10.2 DW2 Narpat Dass has stated that on dated 28.12.2008 he was going from Bagipul to Ani in HRTC bus and when bus stopped at Nirmand 2-3 police officials came and inquired about Mehar Singh, Kaul Singh and Ses Ram. He has stated that thereafter police officials took the aforesaid persons.
He has stated that those persons were not carrying anything. He has stated that accused Mehar Singh is his neighbour. He has ::: Downloaded on - 15/04/2017 18:04:49 :::HCHP 16 denied suggestion that he along with Mehar Singh were not travelling in bus. He has denied suggestion that he did not file any complaint to Pardhan G.P., superior police officer, illaqua .
magistrate that accused was not having any contraband with him while he was travelling in bus.
10.3 DW3 Kaul Ram has stated that on dated 28.12.2008 he was going from Bagipul to Rampur and when bus was stopped at Nirmand 2-3 police officials came in bus and inquired about him, Mehar Singh and Ses Ram. He has stated that accused was not carrying any contraband. He has further stated that Mehar Singh is from his village. He has denied suggestion that he is familiar with facts of case. He has denied suggestion that on dated 28.12.2008 police had apprehended accused Mehar Singh carrying 1½ Kg. charas in plastic bag.
10.4 DW4 Ses Ram has stated that on dated 28.12.2008 he was going from Bagipul to Ani in HRTC bus and bus was stopped at Nirmand. He has stated that 2-3 police personnel came and inquired about him, Kaul Ram and Mehar Singh in bus.
He has stated that above said persons were not carrying anything and further stated that thereafter after 3-4 minutes the bus left for its own journey. He has stated that he could not say the number of bus and he did not bring the ticket of bus. He has stated that he does not know about case. He has stated that he did not file any complaint in writing to any authority. He has ::: Downloaded on - 15/04/2017 18:04:49 :::HCHP 17 stated that he did not question the police officials as to why he along with Mehar Singh was took to police station. He has stated that even his family members did not report the matter to higher .
authority. He has denied suggestion that he was not travelling in bus. He has denied suggestion that on dated 28.12.2008 at about 2.30 PM police officials have apprehended accused Mehar Singh when he was carrying charas weighing 1½ Kg. in plastic bag. He has denied suggestion that he has deposed falsely in order to save the accused. He has denied suggestion that he and co-
accused Mehar Singh were involved in trade of charas. He has denied suggestion that charas was recovered from Mehar Singh.
11. Accused Mehar Singh also tendered in evidence copy of rapat No. 10 dated 28.12.2008, copy of rapat No. 23 dated 28.12.2008 attested copy of FSL report pertaining to FIR No. 107 dated 28.12.2008 and consent memo of Ses Ram and copy of personal search of Ses Ram and copy of recovery memo relating to FIR No. 107/08, copy of recovery memo relating to FIR No. 108/08, copy of FIR No. 108/08, copy of spot map relating to FIR No. 108/08, copy of FSL report relating to FIR No. 108/08, copy of spot map relating to FIR No. 107/08 and copy of FSL report relating to FIR No. 107/08.
12. Submission of learned Advocate appearing on behalf of appellant that finding of learned trial Court is based upon misrepresentation of oral as well as documentary evidence ::: Downloaded on - 15/04/2017 18:04:49 :::HCHP 18 placed on record is rejected being devoid of any force for the reasons hereinafter mentioned. PW1 Tilak Raj has specifically stated in positive manner that 1.500 Kg. of charas was found .
from conscious and exclusive possession of accused in his presence. Court has perused seizure memo Ext.PW1/C placed on record. Marginal witnesses of seizure memo Ext.PW1/C are Mehar Singh and Tilak Raj. PW1 Tilak Raj has stated in positive manner when he appeared in witness box that 1.500 Kg. chara was found from conscious and exclusive possession of accused in his presence. Testimony of PW1 Tilak Raj is trustworthy reliable and inspires confidence of Court. There is no reason to disbelieve the testimony of PW1 Tilak Raj. There is no evidence on record to prove that PW1 Tilak Raj has hostile animus against the accused at any point of time.
13. Court has also perused the testimony of another marginal witness PW7 Amar Singh who has specifically stated in positive manner that 1.500 Kg. charas was found from exclusive and conscious possession of accused in his presence. Testimony of PW7 Amar Singh is trustworthy reliable and inspires confidence of Court. There is no reason to disbelieve the testimony of PW7 Amar Singh as there is no evidence on record in order to prove that PW7 Amar Singh has hostile animus against the accused at any point of time.
::: Downloaded on - 15/04/2017 18:04:49 :::HCHP 1914. Even PW10 ASI Jagat Singh has stated in positive manner that 1.500 Kg. charas was found from conscious and exclusive possession of accused in his presence. Testimony of .
PW10 ASI Jagat Singh is also trustworthy reliable and inspires confidence of Court. There is no evidence on record to prove that PW10 Jagat Singh has hostile animus against the accused at any point of time.
15. Testimonies of PW1 Tilak Raj, PW7 Amar Singh and PW10 ASI Jagat Singh are corroborated by testimony of PW3 Rohit Verma who has specifically stated in positive manner that on dated 30.12.2008 MHC P.S. Nirmand Lal Singh handed over to him one parcel of charas along with sample of seal and NCB form and directed him to deposit the same in FSL Junga. He has stated that he deposited the articles in office of FSL Junga on dated 31.12.2008. Testimony of PW3 is also trustworthy reliable and inspires confidence of Court. There is no reason to disbelieve the testimony of PW3 Rohit Verma.
16. Testimonies of PW1 Tilak Raj, PW7 Amar Singh and PW10 ASI Jagat Singh are corroborated by PW4 ASI Sohan Lal who has proved special report Ext.PW4/A placed on record.
Testimony of PW4 ASI Sohan Lal is also trustworthy reliable and inspires confidence of Court. There is no reason to disbelieve the testimony of PW4 ASI Sohan Lal.
::: Downloaded on - 15/04/2017 18:04:49 :::HCHP 2017. Even testimonies of PW1 Tilak Raj, PW7 Amar Singh and PW10 ASI Jagat Singh are corroborated by PW5 Shyam Dass who has specifically stated in positive manner that he deposited .
the parcels vide RC No. 102/2010 in office of FSL Junga and he further stated that he brought the report of Chemical Examiner FSL Junga along with case property and handed over the same to MHC in intact position. Testimony of corroborated witness PW5 Shyam Dass is also trustworthy reliable and inspires confidence of Court. There is no reason to disbelieve the testimony of PW5 Shyam Dass. Testimonies of PW1 Tilak Raj, PW7 Amar Singh and PW10 ASI Jagat Singh are corroborated by PW8 Kanwar Singh who has stated that after receipt of report of Chemical Examiner he prepared supplementary challan and presented the same in Court. Testimonies of PW1 Tilak Raj, PW7 Amar Singh and PW10 ASI Jagat Singh are corroborated by PW9 SI Dulo Ram who has specifically stated that after receipt of chemical examiner's report he submitted the challan in Court.
18. Testimonies of PW1 Tilak Raj, PW7 Amar Singh and PW10 ASI Jagat Singh and testimonies of other corroborative witnesses are also corroborated by documentary evidence placed on record i.e. consent memo Ext.PW1/A, seizure memo Ext.PW1/C, seal impression obtained upon plain cloth Ext.PW1/D, ruka Ext.PW2/B, extract of malkhana register Ext.PW2/D, road certificate Ext.PW2/E, special report Ext.PW4/A, NCB form and ::: Downloaded on - 15/04/2017 18:04:49 :::HCHP 21 site plan placed on record. Even as per FSL report Ext.PX it is proved on record that after various scientific tests such as physical identification, chemical and chromatographic analyses .
carried out in the laboratory testes indicated the presence of cannabinols including the presence of tetrahydrocannabinol in both the exhibits. It is further proved on record beyond reasonable doubt that extracts was of cannabis and was samples of charas.
19. Submission of learned Advocate appearing on behalf of the appellant that investigating agency did not associate any independent witness and on this ground appeal filed by appellant be accepted is rejected being devoid of any force for the reasons hereinafter mentioned. PW10 ASI Jagat Singh I.O. has specifically stated in positive manner when he appeared in witness box that place was isolated and independent witness could not be associated and PW10 ASI Jagat Singh has further stated that it was a chance recovery. It was held in case reported in AIR 1973 SC 2783 titled Nathu Singh vs. State of Madhya Pradesh that mere fact that witnesses examined in support of the prosecution case were the police officials was not strong enough to discard their evidence. It is well settled law that conviction could be given on testimony of police witnesses if testimony of police witnesses is trustworthy reliable and inspires confidence of Court. (See: AIR 1985 SC 1092 titled State of Gujarat vs. Raghunath Vamanrao Baxi; See (1996)3 SCC 338 titled Tahir vs. State (Delhi); See: (2012)4 SCC 722 ::: Downloaded on - 15/04/2017 18:04:49 :::HCHP 22 titled Govindraju alias Govinda vs. State by Sriramapuram Police Station and another; See: (2007)15 SCC 760 titled Tika Ram vs. State of M.P.;
See: (2007)7 SCC 625 Girja Prasad (dead) by LRs vs. State of M.P.)
20. Another submission of learned Advocate appearing .
on behalf of appellant that there is material contradiction in the testimonies of oral witnesses examined by prosecution and on this ground appeal filed by appellant be accepted is rejected being devoid of any force for the reasons hereinafter mentioned.
Learned Advocate appearing on behalf of appellant did not point out any major contradiction in testimonies of prosecution witnesses in present case which goes to the root of case. It is well settled law that minor contradictions are bound to come in criminal case when testimonies of police officials are recorded after a gap of sufficient time. In present case incident took place on dated 28.12.2008 at about 2.30 PM and statements of prosecution witnesses were recorded on dated 5.8.2011, 6.8.2011, 5.9.2011, 6.9.2011 and 19.9.2011. It is also well settled law that concept of falsus in uno falsus in omnibus is not applicable in criminal cases. (See AIR 1980 SC 957 titled Bhee Ram vs. State of Haryana. See AIR 1971 SC 2505 titled Rai singh vs. State of Haryana.) It was held in case reported in AIR 1987 S.C. 1328 Dalbir Singh Vs. State of Punjab that there is no hard and fast rule which could be laid down for appreciation of evidence and it is a question of fact and each case has to be decided on the fact as they proved in a particular case.
::: Downloaded on - 15/04/2017 18:04:49 :::HCHP 2321. Another submission of learned Advocate appearing on behalf of appellant that factum of recovery of contraband is not proved from accused in positive cogent and reliable manner .
and on this ground appeal be accepted is rejected being devoid of any force for the reasons hereinafter mentioned. It is well settled law that no number of witnesses is required to prove the facts and it is also well settled law that conviction could be based on testimony of a single witness in the criminal case if testimony of single witness inspires confidence of Court. (See: AIR 1973 SC 944 Jose Vs. The State of Kerla (Full Bench) It was held in case reported in AIR 2003 SC 854 titled Lallu Manjhi and another vs. State of Jharkhand that law of evidence does not require any particular number of witnesses to be examined and it was held that Court may classify the oral testimony into three categories (1) Wholly reliable (2) Wholly unreliable and (3) Neither wholly reliable nor wholly unreliable. It was held that in first two categories there would be no difficulty in accepting or discarding the testimony of a single witness.
22. Another submission of learned Advocate appearing on behalf of appellant that in view of testimonies of DW1, DW2, DW3 and DW4 appeal filed by appellant be accepted is rejected being devoid of any force for the reasons hereinafter mentioned.
Seizure memo of contraband has been signed by accused himself and contents of seizure memo are proved by way of testimonies ::: Downloaded on - 15/04/2017 18:04:49 :::HCHP 24 of PW1 Tilak Raj, PW7 Amar Singh and PW10 ASI Jagat Singh.
There is no evidence on record in order to prove that PW1 Tilak Raj, PW7 Amar Singh and PW10 ASI Jagat Singh have enmity with .
accused prior to recovery. Recovery of contraband was chance recovery and hence it is held that testimony of DW1 is not sufficient to rebut the testimony of PW1 Tilak Raj, PW7 Amar Singh and PW10 ASI Jagat Singh. Court has carefully perused the testimony of DW2 Narpat Dass who has specifically stated that accused Mehar Singh is his neighbour. DW2 Narpat Dass did not prove the ticket of bus and even DW2 Narpat Ram did not report the matter to any competent authority that co-accused Mehar Singh was not having any contraband when he was travelling in bus and he was falsely involved in present case. In view of above stated facts testimony of DW2 Narpat Dass is not sufficient to disbelieve the testimonies of PW1 Tilak Raj, PW7 Amar Singh and PW10 ASI Jagat Singh who are eye witnesses of recovery of contraband.
23. Submission of learned Advocate appearing on behalf of appellant that on the basis of testimony of DW3 Kaul Ram appeal filed by appellant be accepted is rejected being devoid of any force for the reasons hereinafter mentioned. Court has carefully perused the testimony of DW3 Kaul Ram who has specifically stated in positive manner that accused is resident of his village and DW3 has also stated in positive manner that he ::: Downloaded on - 15/04/2017 18:04:49 :::HCHP 25 did not bring the ticket of bus in order to prove that he was travelling in bus at the relevant time. DW3 Kaul Ram has also stated in positive manner that he could not state the registration .
number of bus. DW3 Kaul Ram has stated that he did not file any complaint to any higher authority including CM, MLA, SP, DC and Illaqua Magistrate regarding false implication of accused in present case. DW3 Kaul Ram has stated that he could not prove in evidence that on dated 28.12.2008 he was going along with accused Mehar Singh. It is held that there is no cogent and positive reasons to disbelieve testimonies of PW1 Tilak Raj, PW7 Amar Singh and PW10 ASI Jagat Singh who have specifically stated in positive manner when they appeared in witness box that contraband measuring 1.500 Kg. was found from conscious and exclusive possession of accused in their presence.
24. Another submission of learned Advocate appearing on behalf of appellant that on the testimony of DW4 Ses Ram appeal filed by appellant be accepted is rejected being devoid of any force for the reasons hereinafter mentioned. Court has carefully perused testimony of DW4 Ses Ram who has specifically stated in positive manner that he could not state the registration number of bus in which he was travelling and further stated that he did not bring the ticket of bus in order to prove that he was travelling in bus. DW4 Ses Ram has stated that he did not file complaint in writing that appellant Mehar Singh was falsely ::: Downloaded on - 15/04/2017 18:04:49 :::HCHP 26 implicated in present case. DW4 Ses Ram has specifically stated that higher authorities were not informed relating to false implication of appellant in present case. It is held that appellant .
did not adduce any positive, cogent and reliable evidence in order to disbelieve the testimony of eye witnesses namely PW1 Tilak Raj, PW7 Amar Singh and PW10 ASI Jagat Singh. PW1 Tilak Raj, PW7 Amar Singh and PW10 ASI Jagat Singh have specifically stated in positive manner that 1.500 Kg. charas was found from conscious and exclusive possession of accused in their presence.
25. In view of above stated facts and case law cited supra appeal filed by appellant is dismissed. Judgment and sentence passed by learned trial Court are affirmed. It is held that learned trial Court had properly appreciated oral as well as documentary evidence placed on record and it is further held that no miscarriage of justice has been caused to appellant in present case. Appeal stands disposed of. All pending miscellaneous application(s) if any also stands disposed of.
April 30, 2015 (P.S. Rana)
(ms). Judge
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