Himachal Pradesh High Court
Rashid Mohammad vs State Of H.P on 26 May, 2016
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 287 of 2006.
Date of Decision: 26th May, 2016.
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Rashid Mohammad .....Appellant.
Versus
State of H.P. ....Respondent.
Coram
The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
of Whether approved for reporting? Yes.
For the Appellant: Mr. Ramesh Sharma, Advocate. For the Respondent: Mr. Vivek Singh Attri, Dy. A.G. rt _______________________________________________________ Sureshwar Thakur, Judge (Oral).
The instant appeal stands directed by the accused/convict against the judgment of the learned Special Judge, Fast Track Court, Chamba, H.P. rendered on 6.9.2006 in Sessions Trial No. 57/2004/03, whereby, it returned findings of conviction against the accused/convict for his committing an offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as the NDPS Act). The learned trial Court proceeded to hence sentence him to undergo rigorous imprisonment for 1 ½ years for commission of the offence punishable under Section 20 of the NDPS Act besides ::: Downloaded on - 15/04/2017 20:27:29 :::HCHP 2 sentenced him to pay a fine of Rs.15,000/-, in default whereof he was sentenced to undergo further rigorous imprisonment for three months.
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2. The facts relevant to decide the instant case are that on 9.01.2003, in the morning police party headed by ASI Uttam Chand, the then In-charge of Police Post, Chauhra was on routine Nakabandi at of Barangal Morh, Pargana Bhalei. At about 10.30 a.m. an HRTC bus bearing registration No. HP-48-0982 rt enroute Langera to Pathankot via Khairi came. The said bus was stopped for checking. When the belongings of the passengers traveling in the bus were being checked, a person who was sitting on seat No.44 of the bus and had kept a green coloured 'pithu' in between his legs got frightened. On suspicion, his name was enquired. He disclosed his name as Shri Rashid Mohammad. The Pithu (bag) which he was carrying was got opened and checked in presence of Shri Anoop Kumar, the driver of the bus and Shri Kishori Lal, the conductor of the bus. A plastic boru tied with a rope was recovered from the bag. The boru was opened and checked. Maize flour weighing ::: Downloaded on - 15/04/2017 20:27:29 :::HCHP 3 about 3 Kg was found in the boru. In the maize flour, a ganth (knot) of the cloth had been kept, such knot was also opened which in turn led the recovery of a .
polythene lifafa having charas in the shape of sticks.
On weighing the aforesaid contraband, it was found to be 150 grams. Thereafter, other codel formalities were completed by the Investigating Officer and the of accused was arrested. Report of the FSL was procured. rtStatements of the witnesses were recorded.
3. On conclusion of the investigation, into the offence, allegedly committed by the accused, a report under Section 173 of the Code of Criminal Procedure was prepared and filed in the Court.
4. The accused was charged by the learned trial Court for his committing an offences punishable under Section 20 of the NDPS Act. In proof of the prosecution case, the prosecution examined 14 witnesses. On conclusion of recording of the prosecution evidence, the statement of the accused under Section 313 of the Code of Criminal Procedure was recorded by the trial Court, in which the accused ::: Downloaded on - 15/04/2017 20:27:29 :::HCHP 4 claimed innocence and pleaded false implication in the case.
5. On an appraisal of the evidence on record, .
the learned trial Court, recorded findings of conviction against the accused/appellant herein.
6. The accused/appellant is aggrieved by the judgment of conviction recorded against him by the of learned trial Court. The learned counsel appearing for the accused/appellant has concertedly and vigorously rt contended qua the findings of conviction recorded by the learned trial Court standing not based on a proper appreciation of the evidence on record, rather, theirs standing sequelled by gross mis-appreciation of the material on record. Hence, he contends that the findings of conviction being reversed by this Court in the exercise of its appellate jurisdiction and theirs being replaced by findings of acquittal.
7. On the other hand, the learned Deputy Advocate General has with considerable force and vigour, contended of the findings of conviction recorded by the Court below standing based on a mature and balanced appreciation of evidence on ::: Downloaded on - 15/04/2017 20:27:29 :::HCHP 5 record and theirs not necessitating interference, rather theirs meriting vindication.
8. This Court with the able assistance of the .
learned counsel on either side, has, with studied care and incision, evaluated the entire evidence on record.
9. The testimonies of the official witnesses are bereft of any vice of any inter se contradictions in their of respective depositions qua the prosecution version comprised in their respective examinations-in-chief rt vis-a-vis their respective testimonies embodied in their respective cross-examinations. Also when their testimonies are shorn off any vice of any intra se contradictions vis-a-vis their respective depositions on oath, constrains this Court to conclude of their testimonies being both credible as well as inspiring.
10. Furthermore, even if, PW-2 Kishori Lal and PW-6 Anoop Kumar, independent witnesses to the apposite proceedings which stood initiated and concluded at the site, reneged from their previous statements recorded in writing, nonetheless the factum of theirs reneging from their previous statements recorded in writing would not undermine ::: Downloaded on - 15/04/2017 20:27:29 :::HCHP 6 the efficacy of the prosecution case qua its propagation qua recovery of contraband standing effectuated from the conscious and exclusive .
possession of the accused in the manner as enunciated in FIR Ex. PW10/H. The reason for this Court omitting to belittle their creditworthiness rests upon the fact of both PW-2 and PW-6 admitting their of signatures borne on memos Ex.PA, Ex.PB and Ex.PC.
Both also admit their signatures occurring on bulk rt parcel, Ex. P-2. The effect of both PW-2 and PW-6 admitting their signatures borne on Ex.PA, Ex.PB and Ex.PC besides on bulk parcel Ex.P-2 is of their depositions manifestative of theirs repelling besides ousting their previous statements recorded in writing holding no worth given the embodiment of the apt legal principle in Sections 91 and 92 of the Indian Evidence Act of theirs standing estopped to digress from the contents of the afore referred exhibits preeminently when their respective signatures occurring thereon stand admitted by both besides with a mandate foisted in the afore referred provisions of the Indian Evidence Act of with proof emanating of ::: Downloaded on - 15/04/2017 20:27:29 :::HCHP 7 signatures of both existing thereon constituting ex facie ipso facto conclusive evidence in proof of the recitals recorded in the apposite memos constrains .
this Court to conclude of dehors theirs reneging from their previous statements recorded in writing, yet for reasons aforesaid rendering the recitals recorded therein to stand conclusively proved by the of prosecution. In sequel, with the depositions of the official witnesses acquiring corroborative vigour from rt hence the conclusively proved recitals of the apposite exhibits whereon both PW-2 and PW-6 admit theirs carrying their signatures, besides with the principle engrafted in Sections 91 and 92 of the Indian Evidence Act against the receipt of oral evidence contrary to the signatured recitals occurring in any document preponderantly when signatures of both PW-2 and PW-
6 stand un-denied by them rendering them hence incapacitated to depose at variance or in digression to the recitals occurring in the apposite memos.
Consequently, the effect of theirs reneging from their previous statements recorded in writing would not preclude this Court to undermine the efficacy of proof ::: Downloaded on - 15/04/2017 20:27:29 :::HCHP 8 adduced by the prosecution qua the apposite recitals depicted in the apposite memos. In aftermath, this Court concludes with aplomb of the prosecution .
succeeding in proving the factum of the genesis of the occurrence embodied in FIR Ex.PW10/H.
11. Be that as it may, the prosecution was also under a solemn legal obligation to firmly connect the of contraband as recovered from the purported exclusive and conscious possession of the accused at the site of rt occurrence under memo Ex.PA with the one sent for analysis to CTL, Kandaghat which on receiving the apposite samples recorded its opinion borne in Ex.PW10/D also the prosecution was enjoined to connect the opinion manifested in Ex.PW10/D qua sample parcels with their production in Court. Firm connectivity inter se the case property recovered from the purported exclusive and conscious possession of the accused at the site of occurrence vis-a-vis the opinion recorded by the CTL, Kandaghat comprised in Ex.PW10/D stood comprised in the apposite road certificate. However, the apposite road certificate has remained unadduced in evidence. The effect of ::: Downloaded on - 15/04/2017 20:27:29 :::HCHP 9 its remaining unadduced in evidence delinks the opinion recorded by the CTL, Kandaghat comprised in Ex.PW10/D with the case property as stood .
purportedly recovered from the exclusive and conscious possession of the accused at the site of occurrence. Consequently, the omission of its adduction in evidence by the prosecution has of precluded collation qua the descriptions of the case property borne in the apposite road certificate with the rt one enunciated in the report of the CTL comprised in Ex.PW10/D. With this Court hence standing deprived of collating the description of the case property borne on the apposite road certificate vis-a-vis enunciations in Ex.PW10/D constrains an inference of with per se incongruity occurring inter se the apposite recitals in the apposite road certificate vis-a-vis the apposite recitals in Ex.PW10/D hence its standing withheld from its standing sighted by the learned trial Court. In aftermath, obviously the opinion recorded in Ex.PW10/D can not be construed to be qua the case property recovered from the purported exclusive and conscious possession of the accused at the site of ::: Downloaded on - 15/04/2017 20:27:29 :::HCHP 10 occurrence nor hence it can be construable to be holding any probative vigour against the accused.
13. Be that as it may, the prosecution was also .
enjoined to prove qua the case property as stood allegedly recovered from the exclusive and conscious possession of the accused at the site of occurrence being congruous besides akin to the one which stood of produced in Court by the learned Public Prosecutor concerned for its being shown to the prosecution rt witnesses. The best evidence qua hence connectivity or congruity upsurging qua the alleged case property purportedly recovered from the exclusive and conscious possession of the accused at the site of occurrence vis-a-vis the case property produced in Court for its being shown to the prosecution witnesses stood comprised in the prime fact of the prosecution placing on record the apt malkhana register with vivid descriptions occurring therein manifestative of the Incharge of the police malkhana concerned prior to on each occasion it stood produced in Court by the learned Public Prosecutor for its being shown to the prosecution witnesses, his under signatured entries ::: Downloaded on - 15/04/2017 20:27:29 :::HCHP 11 retrieving it from the Malkhana concerned whereupon he transmitted it through an authorized official to the Court concerned for its being shown to the prosecution .
witnesses concerned. The aforesaid best evidence for connecting the accused qua its standing recovered from his purported exclusive and conscious possession at the site of occurrence with the one as stood of produced in Court by the learned Public Prosecutor for its standing shown to the prosecution witnesses rt remained unadduced. It standing withheld from the view of the learned trial Court constrains this Court to conclude of the case property as shown to the prosecution witnesses by the learned Public Prosecutor standing not either deposited in the Malkhana concerned in quick spontaneity to its standing recovered from the purported exclusive and conscious possession of the accused at the site of occurrence besides an inevitable inference ensues therefrom of the case property as produced in Court by the learned Public Prosecutor concerned for its being shown to the prosecution witnesses being a case property other than the one which stood purportedly recovered from ::: Downloaded on - 15/04/2017 20:27:29 :::HCHP 12 the exclusive and conscious possession of the accused at the site of occurrence. In sequel, with the withholding of the aforesaid best evidence by the .
prosecution no inference other than of the prosecution merely by its production in Court not proving the prime factum of it being the one as stood recovered from purported exclusive and conscious possession of of the accused at the site of occurrence is to be drawn.
Also at the time of the learned Public Prosecutor rt concerned producing the case property before the learned trial Court for its being shown to the prosecution witnesses, there is no echoing of any communication by him to the learned trial Court of his receiving the case property from an authorised official after its retrieval from the apposite Malkhana by its In-Charge, the apt sequitur thereto is of this Court standing constrained to conclude with formidability of the production of the case property by the learned Public Prosecutor concerned before the learned trial Court besides its identification thereat on its being shown to the prosecution witnesses concerned holding no vigour in sustaining any inference of it being the ::: Downloaded on - 15/04/2017 20:27:29 :::HCHP 13 case property as stood recovered from the purported exclusive and conscious possession of the accused at the site of occurrence. Needless to say of the .
prosecution hence abysmally failing to underscore the prime factum of the case property sent for analysis to CTL, Kandaghat besides the one which stood produced in Court being linkable or holding any connectivity of with the one which stood recovered from the exclusive and conscious possession of the accused in the rt manner as propagated by it.
14. The learned Deputy Advocate General has contended with vigour of with imminent upsurgings occurring in the depositions of the apposite prosecution witnesses to whom the case property stood shown by the Public Prosecutor concerned at the time of his producing it in Court qua the seals borne thereon remaining intact hence dispelling any inference of the case property as stood produced in Court being unrelatable to the one as recovered from the purported exclusive and conscious possession of the accused besides rendered dispensable the adduction into evidence of the apposite Malkhana ::: Downloaded on - 15/04/2017 20:27:29 :::HCHP 14 register in portrayal of it standing deposited in the Malkhana concerned besides also dispelling any inference of its not standing retrieved therefrom by its .
In-Charge under signatured entries for its onward transmission to the Public Prosecutor concerned for its production by him before the learned trial Court.
However, the aforesaid submission addressed by the of learned Deputy Advocate General holds no weight and force as the mere factum of the seals occurring rt thereon remaining unbroken or intact would not dispel the inference voiced hereinabove of the case property as produced in Court for omissions of the prosecution alluded hereinabove hence not standing firmly connected with the contraband as stood recovered from the purported exclusive and conscious possession of the accused at the site of occurrence, especially when the factum of the police official concerned or the IO after breaking the seals as stood embossed thereon, at the time contemporaneous to its seizure standing effectuated at the site of occurrence, his inserting therein contraband in portrayal of its standing purportedly recovered from ::: Downloaded on - 15/04/2017 20:27:29 :::HCHP 15 the exclusive and conscious possession of the accused. Since, the insertion of contraband in the parcels would occur only after his tampering with the .
parcels, whereupon he resealed them with analogous seals, imperatively if the aforesaid inference remains a mere possibility whereas its standing engendered would have suffered emasculation by adduction into of evidence of the aforesaid best evidence. Necessarily when the aforesaid best evidence connecting the case rt property as produced in Court with the one as recovered from the purported exclusive and conscious possession of the accused at the site of occurrence has remained unadduced, its production in Court by the learned Pubic Prosecutor concerned is not amenable to an inference of its being linkable to the one as stood recovered from the purported exclusive and conscious possession of the accused at the site of occurrence, rather the effect of its non production is contrarily of the Investigating Officer tampering with the case property. In aftermath, with omissions aforesaid making pervasive inroads qua the efficacy of the prosecution case qua the facet aforesaid its ::: Downloaded on - 15/04/2017 20:27:29 :::HCHP 16 discrepant evidence thereof jolts its vigour hence rendering suspect the prosecution case. Hence, the benefit of doubt ought to be given nto the accused.
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15. For the reasons which have been recorded hereinabove, this Court holds that the learned trial Court below has not appraised the entire evidence on record in a wholesome and harmonious manner apart of therefrom the analysis of the material on record by the learned trial Court suffers from gross perversity or rt absurdity of mis-appreciation and non appreciation of evidence on record.
16. Consequently, the instant appeal is allowed and the impugned judgment is set aside. The accused/appellant is acquitted of the offence charged.
Fine amount, if any, deposited by the accused be refunded to him forthwith. Records be sent back forthwith.
(Sureshwar Thakur)
26 th
May, 2016 Judge.
(jai)
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