Delhi High Court
Siddiqua vs Narcotics Control Bureau on 12 December, 2006
Author: Shiv Narayan Dhingra
Bench: Shiv Narayan Dhingra
JUDGMENT Shiv Narayan Dhingra, J.
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1. This appeal has been preferred by the appellant, challenging the judgment dated 31st January, 2002 of the Special Judge, Narcotic Drugs and Psychotropic Substances Act (in short 'the NDPS Act') whereby the learned Special Judge found the appellant guilty of offence under Section 21(c) of the NDPS Act and against the order on sentence dated 4th February, 2002 whereby the appellant was sentenced to undergo rigorous imprisonment for 15 years and to pay a fine of Rs. 1 lac and in default, the appellant to further undergo Simple Imprisonment for six months.
2. Brief facts relevant for purposes of deciding this appeal are as under. The Assistant Director, Narcotic Control Bureau (NCB) Mr. S. Sharma received a secret information, which he reduced into writing (Ex.PW1/B) on 25.3.1998, that one woman named Siddika would be reaching outside Page 0169 Zoological Garden, Mathura Road at around 2 pm to deliver a consignment of 5 kg of heroin. He, thereafter, put up this information before his immediate superior officer, Deputy Director Mr. Mukesh Khullar, who directed him to organize a surveillance and take action on the basis of information. Mr. Shrama instructed Sh. D.C. Mishra, Superintendent, NCB to organize a team and reach the Zoo and mount surveillance. Mr. D.C. Mishra constituted a team consisting of himself, Lady Intelligence Officer Ms. Suman Kumari and 3-4 other officials of NCB and reached the gate of Zoological Garden and mounted surveillance. At around 2.30 pm a lady, as per the description given in the secret information, was seen standing outside the Zoo, having a black leather bag and white polythene bag in her hands. She waited for about half an hour and then took an Auto Richshaw and started moving towards the Delhi Public School, Mathura Road. The NCB Team followed that auto rickshaw and intercepted it near Sunder Nagar. The auto rickshaw with passenger was taken to nearby taxi stand. The auto driver and one independent witness from the taxi stand were associated in the proceedings and the NCB officials disclosed their identity to the appellant and disclosed about the information with them and told her that if she wished to get herself searched before a Gazetted Officer or a Magistrate, the same would be arranged. A notice under Section 50 of the NDPS Act, Ex.PW1/C, was served upon her by the Lady Officer Ms. Suman Kumari. The appellant, however, stated that she could be searched without a Gazetted Officer. Her personal search did not result into the recovery of any contraband. However, the leather bag and polythene, carried by her, were also searched, while nothing incriminating was recovered from the leather bag, the polythene carried by her contained light-brown/brown coloured powder in 5 polythene bags, kept below some clothes. The appellant confessed that the packets contained heroin. The contents of the packets were tested with help of Field Testing Kit on the spot and packets tested positive for heroin. The packets were weighed and each packet weighed 1 kg. Two samples of 5 gms were drawn from each of the packet. A Panchnama Ex.Pw1/D was prepared about the recovery. The packets and the samples were sealed with paper slips bearing the signatures of the Panch witnesses and of Ms. Suman Kumari and Mr. D.C. Mishra. The seals were affixed in such a manner, on all corners of the envelops, that the property could not be taken out without destroying the seals. The samples were marked as A1, A2, B1, B2, C1, C2, D1, D2 and E1, E2, while the packets containing the brown powder were marked as A to E. The seals affixed on the samples and the case property was also affixed on the panchnama. The case property along with the appellant was brought to the NCB Office, where the appellant made a disclosure statement under Section 67 of the NDPS Act. The case property and the samples were deposited in Malkhana on the very same day. A report Ex.PW1/5 under Section 57 of the NDPS Act was sent by an Intelligence Officer Ms. Suman Kumari to her superior Officer Mr. D.C. Mishra. Mr. D.C. Mishra forwarded it to his superior officers. The appellant in her statement under Section 67 of the NDPS Act disclosed her address as S-19, Greater Kailash. A search of this house vide memos Ex.PW2/F and PW3/A was conducted but nothing incriminating was recovered. The report of search is Ex.PW1/F. The samples along with test Page 0170 memos were sent to CRCL, New Delhi for testing and confirmation on 26th March, 1998 i.e. on very next day, in intact condition. PW4 had carried the samples for delivery to CRCL. The forwarding letter has been proved as Ex.PW4/A. The seizure memo as Ex.PW4/B. The receipt issued by the CRCL is Ex.PW4/C. The samples were tested at CRCL and Mr. K.S. Rathore, Sr. Analyst proved the Chemical analysis report as Ex.PW5/A. The samples were found to contain diacetyle morphine(heroin). PW6 Mr. A. Alam of CRCL testified about receipt of five samples, each sample having lakh lach seals of NCB, the seals being intact and tallying with the specimen of sample seals. PW9 Mr. Rajender Yadav, a panch witness, supported the prosecution case of recovery of five polythene packets and testing of contents of each polythene packet by the staff of NCB with Field Testing Kit and the finding that it was heroin. He also testified about the weight of heroin recovered from the appellant being 5 kg and sending of each sample and packet. He identified the case property as well as his signatures on the documents. His testimony was silent about some facts and, therefore, he was cross examined by the Public Prosecutor and in his cross examination, he admitted five paper slips Ex.PW1/K to PW1/O, having been affixed on five packets with seal of NCB and also sealing of sample pouches vide paper slips which bore his signatures.
3. All the prosecution witnesses supported the prosecution case of recovery of 5 kg of heroin from the possession of the appellant, taking of samples, sealing of samples and case property and appellant was identified by the independent witness in the court as well being the same woman from whom heroin was recovered.
3. In her statement under Section 313 Cr.P.C., the appellant denied all the evidence which was put to her and claimed that she was innocent and had been falsely implicated. She also stated that her statement under Section 67 of the NDPS Act was obtained under torture. She examined her son as DW1 and herself as DW2 in defense. In her statement, as DW-2, she gave her address as C-46 Greater Kailash Part-1 and claimed that she and her son were taken to NCB Office from this house and she was made to write a statement on a paper with a promise that if she would write as directed, she would be let off.
4. Learned Trial Court weighed the entire evidence, considered the arguments advanced by both the sides and came to conclusion that the guilt of the appellant stood proved and convicted the appellant. The learned Counsel for the appellant has attacked the judgment by raising following arguments.
(i).The panch witness were not reliable. One panch witness was not examined and the other panch witness did not support the prosecution case.
(ii).The seal, after use, was not given to independent witness and the seal remained with Mr. D.C. Mishra.
(iii).The remnants of samples, after testing by the CRCL, were sent back and no record has been shown about the remnants samples and the remnants samples have not been accounted for.
(iv). The Test Form was not filled at the spot. PW1 denied filling of test forms and it has not come in evidence as to who filled the test form.
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(v).The register of Malkhana was not produced, which threw doubts about the safe custody of the seized property.
(vi).The production of malkhana register was mandatory.
(vii).There were contradictions in the statements of witnesses.
(viii).The relatives of the appellant were not informed about the arrest of the appellant.
(ix).The statement of the appellant was recorded by the NCB officials without giving her time to think and without providing her help of a counsel.
(x).The confessional statement of the appellant, recorded under Section 67 of the NDPS Act, was retracted by the appellant on 5.5.1998, when she got opportunity to retract.
(xi).The prosecution committed breach of guidelines issued by Narcotic Control Bureau and that these guidelines had statutory force.
(xii). There was non compliance of Section 52A and 57 of the NDPS Act.
5. There were two panch witnesses in this case, one was the taxi driver. The prosecution examined the taxi driver as PW9. He supported the prosecution case in material aspects. He testified that he was present at his taxi stand when NCB Officials came to the taxi stand of Sunder Nagar along with a lady, who was carrying polythene bag and the officials of NCB informed that the lady was to be searched. The officers of NCB offered that lady that if she so desired, she could be searched before some other officers but the lady refused. On search of the polythene bag carried by that lady, 5 polythene packets were recovered, each contained heroin. Contents of each packet were tested on a machine and on testing each sample changed its colour and the officials told that the packets contained heroin. The weight of packets was 5 kg. The samples were drawn from each packet. The remnant powder of each packet was sealed in the same packet. Thereafter it was wrapped in a paper and then sealed with lac seal. The officials had done the writing work at the spot for about 4/5 hours. He identified the documents Ex.PW1/C and PW1/D, which he had signed at the spot. He also identified the appellant as the same lady who was brought by the NCB officials on that day. He identified the case property which was seized from that lady as Ex.P1 to P5. He also identified the lady's purse which was recovered from the same packet as Ex.P6 and P7. He identified the polythene bag, which was being carried by the lady as Ex.P9 on that day. He also identified the paper slip pasted on the packets as Ex.PW1/K to PW1/Q. All the paper slips contained his signatures. He also identified the paper slip pasted on the envelops as Ex.PW1/R to PW1/W and these paper slips contained his signatures. He identified the paper slips Ex.PW1/AA to PW1/EE and his signatures on each paper slip. About rest of the things, he stated that he did not remember and he was cross examined by the Special Public Prosecutor. During cross examination, he admitted that the paper slip Ex.PW1/K to PW1/Q were affixed on the packets. He also admitted the samples having been kept in the envelops and being sealed with paper slips Ex.PW1/R to PW1/W. He also identified his statement Ex.PW3/D, running into two pages, bearing his signatures. He remembered that he had tendered his statement Ex.PW3/D before the NCB officials. The Page 0172 samples were drawn at the taxi stand itself. The case property, seen by him in the court, was the same which was recovered from the appellant. The witness was cross examined by the counsel for the appellant at great length. The independent witness stood the cross examination well. He gave all informations which was sought by the counsel for the appellant about his profession and taxi number etc. The appellant, while appeared in the court, was wearing Burka and was identified by him when the Burka was removed from her face. He testified that the appellant was not wearing Burka at the time when she was searched. He denied the suggestion about his not being present at the taxi stand and merely signing the documents at the instance of NCB officials or making statement at the behest of NCB officials. No specific suggestion was given to this witness that he had known the NCB Officials from before or he had appeared as a witness in any other case or that search of the lady was not taken in his presence or recovery were not made in his presence. In fact, the independent witness has fully supported the case of NCB and the plea taken by the appellant's counsel that there were contradictions in the statement of independent witness or that he had not supported the prosecution case, does not stand anywhere. It is not expected of an independent witness to remember each and every thing about the case when he appears in the witness box. If material details are given by him, supporting the prosecution case and the witness does not remember some of the things, he is not a hostile witness. A witness can be asked to refresh his memory by looking into documents bearing his signatures or his writing to refresh his memory. The public prosecutor could have shown the documents to the witness even in examination in chief and asked him to explain the circumstances under which documents were prepared. The law permits a witness to refresh his memory by seeing the documents prepared at the spot. Merely because the witness remembered the things after seeing the documents, prepared in his presence on the date of incident, the witness does not become hostile witness. Such a witness is completely reliable witness. I find no force in the arguments advanced by the learned Counsel for the appellant that independent witness had not supported the prosecution case or that the panch witness(PW9) was not reliable.
6. The next argument advanced by learned Counsel for the appellant is that the seal after use was not given to an independent witness and the seal could be misused. It has to be noted that there was no provision under the NDPS Act for handing over of the seal by the investigating officer after use to some independent witness. An investigating officer has to do investigation day out and day in, in several cases. It is not that after every recovery, a new seal has to be got prepared by the investigating officer and the old seal is to be discarded. Counsel for the appellant submitted that the seal movement register has not been produced by the prosecution to show the movement of the seal after used in the case. However, learned Counsel for the appellant failed to show any statutory rule under which any seal movement register is to be maintained by the prosecution. The Court cannot consider some imaginary doubts as the basis of attack on a judgment. It is not the stand of the counsel for the appellant that the seal was misused by the investigating officer after sealing of the samples and the case property. No such suggestion Page 0173 has been given to any of the prosecution witness. The only stand is that the seal was not given to an independent witness and there was possibility of misuse. Mere possibility of a thing does not cast doubt on the prosecution case. In this case, the samples and the case property were sealed with paper slips, containing the signatures of the panch witnesses. These paper slips were found intact by the learned trial court when the case property was produced in the court. Similarly, when the samples were received by the CRCL, the seals were found intact with the paper slips. There is another factor. The samples in this case were sent to CRCL on the very next day i.e. on 26th March, 1998. Any possibility of tampering the seals, therefore, stands ruled out.
7. The third ground of attacking the judgment is that the remnants samples were not accounted for by the prosecution. This argument is belied from the testimony of witnesses. The remnants of the samples were found intact with the seal of CRCL when produced in the court. The seal was opened in the Court and the envelop which was sent by CRCL to prosecution contained the remnants of the samples. The plea that the remnants samples were not accounted for, thus fails. The other plea taken is that the the Test Form was not filled up on the spot. It is submitted by counsel for the appellant that filling of test form on the spot was mandatory. He relied upon the Standing Instructions No. I/88 issued by the NCB. Relevant instruction reads as under:
The sample in duplicate should be kept in heat sealed plastic bags as it is convenient and safe. The plastic bag container should be kept in a paper envelope which may be sealed properly. Such sealed envelope may be marked as original and duplicate. Both the envelops should also bear the S.No. of the package (s)/container(s) from which the sample has been drawn. The duplicate envelope containing the sample will also have a reference of the test memo. The seals should be legible. This envelop along with test memos should be kept in another envelope which should also be sealed and marked 'secret-drug sample/Test memo', to be sent to the Chemical laboratory concerned.
8. The Test Memo is prepared for sending it to the Laboratory along with the samples so that the laboratory can test the samples and give its result. The Test memo contains the details of seal affixed on the samples, the crime number, date and place of seizure and marking on the samples, date of deposit of samples and date of withdrawal of samples from Malkhana. The copy of the test memo which was filled has been placed on record as Ex.PW1/D1. The test memo bears the signatures of Mr. D.C. Mishra as a forwarding officer. The test memo was forwarded on 26.3.1998 to the Laboratory along with samples. The date of dispatch of the samples was left blank when the test memo was prepared and the date of dispatch was filled, as is apparent from the carbon copy, as 26.3.1998 when the samples were dispatched. This very fact shows that the test memos were prepared on 25.3.1998. If the Test Memos had been prepared on 26.3.1998, while sending the samples to the laboratory the date of dispatch as 26.3.1998 would have been filled simultaneously along with other details. This proves that the test memo was prepared on 25.3.1998 itself when the samples were sealed and recoveries were made. Now, whether the test memo was Page 0174 prepared on the spot or that was prepared at the office, is the only question which is not answered from the testimony. Presuming that the test memo was not prepared at the spot and was prepared when the team, after recovery had returned to office, that does not create any doubt about the recoveries of the contraband from the appellant. The court has to adopt a pragmatic approach while considering the spot investigations. Fair and impartial investigation is no doubt sacrosanct, but rituals of investigation can not be insisted upon unless strict compliance of such rituals is prescribed by statutes. There is no rule of evidence or procedural laws under Cr.P.C. or NDPS Act that every document must be prepared on the spot of recovery. The learned Counsel for the appellant has failed to show any rule framed under the NDPS Act which requires that the Test Memo has to be prepared at the spot. While sealing of case property/samples etc. should be done at the spot if practical, test memo can be prepared by the investigating agency after coming to office. It is not the requirement of law that the entire investigation must be completed on the spot and no part of writing work can be done by the investigating agency in the office or at any other place. Instruction No. 2.9 relied upon by the appellant's counsel does not say that Test memo is to be prepared at the spot of recovery of drugs. The guidelines, issued by the department are advisory in nature and have no legal sanctity. Only statutory laws made by Parliament or rules made under delegated legislators/power as conferred by the Statute, have legal force. Circulars, administrative orders or Executive instructions, issued without any statutory powers are not binding in nature. They are instructions of prudence. Merely because instructions/guidelines have been followed by an investigating officer, the court cannot hold that the statutory provisions and rules have been complied with compliance. The statutory provisions and rules made under the Act has to be looked upon independent of the departmental instructions.
9. Learned Counsel for the appellant failed to point out any piece of evidence to show that the the samples got tampered by not preparing test memo at the spot and preparing the same in the office. He also failed to show any prejudice to the appellant. I find no force in the argument.
10. Learned Counsel for the appellant has vehemently argued that non production of Malkhana Register in the evidence was fatal to the case of the prosecution. He submitted that the deposit of samples in Malkhana can be proved only by Malkhana register and no amount of oral testimony can be believed if the Malkhana register is not produced. He relied upon Section 91 and 92 of Indian Evidence Act to press his arguments that if the existence of a document is shown in respect of a transaction, no amount of oral evidence can be admitted to prove the contents. Section 91 & 92 of the Evidence Act read as under:
91. Evidence of terms of contracts, grants and other dispositions of property reduced to form of documents.- When the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself, or Page 0175 secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions hereinbefore contained.
92. Exclusion of evidence of oral agreement.-When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms:
Proviso(1).-Any fact may be proved which would invalidate any document, or which would entitle any person to any decree or order relating thereto; such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, [want or failure) of consideration, or mistake in fact or law.
Proviso(2).-The existence of any separate oral agreement as to any matter on which a document is silent, and which is not inconsistent with its terms, may be proved. In considering whether or not this proviso applies, the Court shall have regard to the degree of formality of the document.
Proviso (3).-The existence of any separate oral agreement, constituting a condition precedent to the attaching of any obligation under any such contact, grant or disposition of property, may be proved.
Proviso(4).-The existence of any distinct subsequent oral agreement to rescind or modify any such contact, grant or disposition of property, may be proved, except in cases in which such contact, grant or disposition of property is by law required to be in writing, or has been registered according to the law in force for the time being as to the registration of documents.
Proviso (5).-Any usage or custom by which incidents not expressly mentioned in any contract are usually annexed to contracts of that description, may be proved.;
Provided that the annexing of such incident would not be repugnant, to, or inconsistent with, the express terms of the contract.
Proviso(6). -. Any fact may be proved which shows in what manner the language of a document is related to existing facts.
11. A perusal of above Sections of Evidence Act would show that no mileage can be drawn by the learned Counsel for the appellant out of the above two Sections. These two Sections deal with altogether different kinds of documents and do not deal with the official registers, maintained at store room or Malkhana. Considering hypothetically, can mere entry in Malkhana register be considered sufficient to prove the depositing of a case property in Malkhana? The answer is emphatic 'No'. The entry can be made in Malkhana register without actually depositing the samples. Unless either the person who deposited the case property or MHCM/store in charge do not prove the deposit of samples, mere production of Malkhana register with the entries about deposition of samples, in the court is of no use. Malkhana Register is Page 0176 maintained in Malkhana as a stock register. It is not a concrete proof of deposit of the property. In the instant case, the official who deposited the case property in Malkhana deposed in the court about it. The evidence on record shows when the case property was deposited, when the samples were taken out of Malkhana of sending to the Laboratory. The case property duly sealed was produced from Malkhana in the Court in intact condition. Mere non production of Malkhana register cannot create doubt about the case property remaining intact in the Malkhana. However, in the present case, production of Malkhana register was resisted by the appellant. If the appellant had any doubt about the entries in Malkhana register, he had opportunity to examine the Malkhana register. Prosecution had not filed the entries of Malkhana register along with challanm but later on when prosecution made an application that they want to produce the Malkhana register and copy of Malkhana register was filed along with application, this application was resisted by the appellant tooth and nail and the same was dismissed by the learned Special Judge. The revision against the application was also dismissed by this Court being not maintainable. Both, the revision and the application, were resisted by the appellant tooth and nail to prevent exhibiting of Malkhana register as if malkhana register was the only effective and conclusive proof against the appellant and the production of malkhana register was going to nail the appellant. The appellant cannot, therefore, draw any mileage from non production of malkhana register.
12. The next argument advanced by learned Counsel for the appellant is that there were contradictions in the statements of witness examined by the prosecution in the court. A perusal of the statements of the prosecution witnesses would show that on material aspects, there were no contradictions. A small contradiction here and there about the timings or preparation of Test Report, could not make the testimonies of the witnesses doubtful. In my opinion, where the witnesses do not make any contradictions and all witnesses, parrot like repeat the same statement, one after another, such statements would not be natural statements. It has now been scientifically proved that if ten persons watch one incident and if they are all asked to describe the same incident after some time, each person shall give a description of the incident which will not match in minute details with the description of the other. Minor discrepancies are very natural to occur in testimony of different witnesses and the testimony of a witness cannot be rejected on the ground that there were minor discrepancies or contradictions.
13. The next argument of the appellant's counsel is that the confessional statement of appellant recorded under Section 67 of the NDPS Act was not admissible because it was recorded without giving the appellant any time to think and it was retracted. He submitted that it was obtained under torture. The conviction of the appellant is not based on the confessional statement. Even if the confessional statement is not taken into account, the rest of the evidence is sufficient to prove the guilt of the appellant. The Special Judge has not based the conviction of the appellant on the basis of confessional statement. The recovery of heroin has been proved independent of the confessional statement. Confessional statement is only one piece of evidence which merely reaffirms and corroborates what has been proved by the witness, Page 0177 independent of the confessional statement. Moreover, in this case, the appellant had not retracted the confessional statement at the first opportunity. After recording of her confessional statement, she was produced before the Magistrate on 26.3.1998 and thereafter on every 14th days, for her judicial remand. She did not retract her confessional statement nor made any complaint to the Judge about torture, rather record shows that on next day when she was produced before the court, the court had asked her if she wanted to get herself medically examined, she replied that she did not want to get herself medically examined. Had she been tortured or beaten, she would have told the court that she was being tortured and she should be medically examined. This reveals that she was not tortured when the confessional statement was made by her. There is another reason to believe that the confessional statement was voluntary and the arrest of the appellant was from the spot, as stated by the prosecution and not from her house as is the stand of the appellant. In her confessional statement, she gave her address as S-19, Greater Kailash Part-I stating that she was living with her sister. The NCB officials, believing that she was living at this address, obtained search warrants of this address. The house was searched but nothing incriminating was found. The NCB officials were not aware that this was not the correct address of the appellant. The appellant, later on, in her statement, stated that she was living at C-46 Greater Kailash Part-I. Had she given her correct address, the NCB officials would have gone to her correct address for seizure of further contraband. But they went to a address of another person given by the appellant in her confessional statement under Section 67 of the NDPS Act.
14. Learned Counsel for the appellant has tried to draw mileage from the name of lady given secret information, as Siddika. Counsel for the appellant submitted that the name of the appellant was 'Siddiqua' and not 'Siddka' and the lady by the name of Siddka has been let off and the appellant has been falsely implicated because of similarity in name. This argument must fail. No suggestion was given to any of the witnesses any other woman named Siddika was arrested or recovery was made from Siddika. Moreover, 'Siddiqua' and 'Siddika' have similar phonetics and the informer might have not heard the name properly and gives it as 'Siddika' and not 'Siddiqua'. This rather proved the truthfulness of the case of the prosecution and shows hollowness of the arguments of the appellant.
15. The appellant's counsel also laid emphasis that there was no compliance of Section 57 of the Act. The copy of the report, as required under Section 57 of the NDPS Act was not sent to the superior officer. This argument has also been turned down by the learned Special Judge, and rightly so. The information was recorded by PW2. He could have sent a copy of the information to his senior officer and proceeded to act on the information of his own. However, instead of acting of his own and sending a copy, he took the original information, recorded by him to his superior officer, Deputy Director, Mr. Khullar. The endorsement of Mr. Khullar on the original information is at portion A to A on Ex.PW1/B. The arguments of learned Counsel is that only a copy can be sent and the original information cannot be carried and only shown sending of a copy alone is compliance of Section 57 of the NDPS Act. I Page 0178 consider that Section 57 of the NDPS Act only ensures that the information, which is recorded, is made known to the superior officer. Sending a copy is only a mode of doing this. If original is sent to the senior officer, who makes an endorsement on the same, it is more than sufficient compliance of Section 57 of the NDPS Act.
16. Another argument, which has been advanced by the learned Counsel for the appellant, is about deposition made by witnesses in respect of the colour of the material recovered from the appellant. He submits that somebody has deposed it as light brown, somebody has simply stated light colour and, therefore, the appellant should get benefit of doubt. People's perception of colours differs. One colour can be in hundred shades and people's perception about each shade may differ. There is no uniformity about the names of different shades of a colour neither there exists any standardization done by any institute naming the colours. Only seven colours are distinctly known to the people. Namely red, green, blue, black, white, yellow and purple. All other colours are described by people in their own manner. One colour can be described in several manners. Some may describe it as brown colour, other may call it as a light brown colour, some may describe it as wheatish colour and other as biscuit colour. The description of the same case property identified in the court by one as a light colour, other light brown or brown makes no difference and cannot be a ground to give benefit of doubt. Therefore, this cannot be a ground to doubt the truthfulness of the witnesses.
17. The Court has to consider the entire evidence as has been adduced before it and then come to a conclusion. Learned Counsel for the appellant cannot lift one sentence from here and another sentence from there and ask the Court that the case should depend upon that sentence in the testimony. It is only after considering the entire statement of a witness that the court has to come a conclusion that the witness was credit worthy or not. The court has to silt grains from the chaff. It is well recognized that minute details of incident, with the passage of time, go out of memory. In all such cases, the Court has to see whether the overall testimony of the the witness was truthful and whether the incident, as claimed by the prosecution, had happened or not. The proof beyond reasonable doubt, only means that he Court should see that all the material ingredients of the offence have been proved by cogent evidence. The prosecution agency is also a human agency and the Court should except accuracy standards only to the extent which can be expected from a normal human being. The court should not except super human standards from the prosecution agency in all aspects. What the court has to see is that the investigation has been done in a fair and proper manner and there is no false implication of the accused. Here, in this case, there is no reason to believe the defense that the appellant was falsely implicated after picking her from her house, in view of the fact that prosecution was not having address of the appellant and the prosecution believed the statement of appellant that she was living at S-19 Greater Kailash Part -I where in fact some other gentleman was living.
18. In view of my foregoing discussion, I find no force in the appeal. The same is hereby dismissed.