Himachal Pradesh High Court
Sangat Ram vs State Of Himachal Pradesh on 8 January, 2015
Bench: Rajiv Sharma, Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 77 of 2012.
Reserved on: 31st December, 2014.
.
Date of Decision : 8th January, 2015.
Sangat Ram .....Appellant.
Versus
State of Himachal Pradesh .....Respondent.
Coram r to
The Hon'ble Mr. Justice Rajiv Sharma, Judge.
The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
Whether approved for reporting? Yes.
For the Appellant: Mr. Sunil Mohan Goel, Legal Aid counsel.
For the Respondent: Mr. J.S. Guleria, Assistant Advocate General.
____________________________________________ Sureshwar Thakur, Judge The instant appeal is directed against the judgment of the learned Special Judge, Kinnaur Sessions Division at Rampur Bushahr, Himachal Pradesh, rendered on 24th December, 2011 in NDPS Act Case No. 7 of 2011, whereby, the learned trial Court convicted the accused for his having allegedly committed ::: Downloaded on - 15/04/2017 17:31:35 :::HCHP 2 an offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as "NDPS Act") and sentenced him to undergo rigorous .
imprisonment for 10 years and to pay a fine of Rs.1,00,000/-
and in default of payment of fine, sentenced him to suffer simple imprisonment for one year.
2. The facts relevant to decide the instant case are that on 14.12.2010, the complainant along with H.C. Dharam Pal, Constable Surender Singh, was on patrol/traffic checking duty. When, at about 12.15 p.m., they were present at Bazeer Bawadi, a person was seen coming from Nirmand side carrying a bag on his left shoulder. On seeing the police, he became nervous/frightened and started running. He was overpowered/apprehended by the police. On inquiry he disclosed his name to be Sangat Ram. Since, his bag was required to be searched, independent witnesses, S/Sh. Jawahar Lal Neta and Revati Ram Sharma were also associated.
Allegedly, at the relevant time, the bag which the accused was carrying was of black colour, having strap and handle, on which Nike was written. Before taking the search of the bag, the complainant gave his search to the accused and in this regard ::: Downloaded on - 15/04/2017 17:31:35 :::HCHP 3 search memo was prepared. Allegedly, the bag contained black coloured pouch/thaili in which there was black coloured substance in round, flat and wicks form. The same appeared to .
be that of charas. On weighment, it was found to be 6.500 kilograms and put in the same bag which was sealed in a parcel with seal 'T' (six seals), the sample of which was taken separately on a piece of cloth. NCB form in triplicate was filled in. Seal after use was given to witness Sh. Jawahar Lal. The recovered charas was taken into possession by preparing seizure memo which was signed by the witnesses as well as the accused. Its copy was also supplied to the accused free of costs. Rukka was drawn and sent to Police Station for registration of case. Since, evidence had been found against the accused to have committed an offence under Section 20 of the NDPS Act, he was arrested and in this regard information was given to his brother, Sh. Ramesh. Site plan of the place of occurrence was also prepared and the sealed parcel containing charas was produced before the SHO, who resealed it with seal 'K' at six places, the seal impression of which was also taken separately. The complainant also prepared special report which was got sent to the SDPO, Rampur Bushahr. The parcel ::: Downloaded on - 15/04/2017 17:31:35 :::HCHP 4 containing charas was sent to FSL, Junga and in this regard report was obtained according to which it was opined to be containing quantity of resin to the extent of 28.93% WW and .
for this reason, it was found to be the extract of charas.
3. On conclusion of the investigation, into the offence, allegedly committed by the accused, report under Section 173 of the Code of Criminal Procedure was prepared and filed in the Court.
4. Accused was charged for his having committed an offence under Section 20 of the NDPS Act by the learned trial Court. In proof of the prosecution case, the prosecution examined 10 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 Court, in which the accused claimed innocence and pleaded false implication in the case and chose to lead evidence in defence. The accused examined two defence witnesses.
5. On appraisal of the evidence on record, the learned trial Court, returned findings of conviction against the accused/appellant.
::: Downloaded on - 15/04/2017 17:31:35 :::HCHP 56. The accused/appellant is aggrieved by the judgment of conviction recorded by the learned trial Court. The learned defence counsel has concertedly and vigorously contended that .
the findings of conviction recorded by the learned trial Court are not based on a proper appreciation of the evidence on record, rather, they are sequelled by gross mis-appreciation of the material on record. Hence, he contends that the findings of conviction be reversed by this Court in the exercise of its appellate jurisdiction and be replaced by findings of acquittal.
7. On the other hand, the learned Assistant Advocate General has with considerable force and vigour, contended that the findings of conviction recorded by the Court below are based on a mature and balanced appreciation of evidence on record and do not necessitate interference, rather merit 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. This Court has traversed through the entire evidence available on record. The accused is alleged to have been found in exclusive and conscious possession of 6.500 kgs ::: Downloaded on - 15/04/2017 17:31:35 :::HCHP 6 of charas. The prosecution witnesses have deposed in tandem and in harmony qua each of the links in the chain of circumstances commencing from the proceedings relating to .
search, seizure and recovery till the consummate link comprised in the rendition of an opinion by the FSL on the specimen parcel sent to it for analysis, hence portraying proof of unbroken and un-severed links, in the entire chain of circumstances, as such, it is argued that when the prosecution case stood established, it would be legally unwise for this Court to acquit the accused. Besides when the testimonies of the official witnesses unravel the fact of their being bereft of any inter se or intra se contradictions, hence, consequently they too are contended to enjoy credibility.
10. The prosecution case gathers strength from the deposition of the official witnesses especially when they have deposed qua the genesis of the prosecution version in a consistent, uniform and harmonious manner. Consequently, their depositions acquire a hue of veracity. The Investigating Officer had associated two independent witnesses namely Jawahar Neta and Revti Nand in the proceedings relating to search, seizure and recovery. However, only one Jawahar Lal ::: Downloaded on - 15/04/2017 17:31:35 :::HCHP 7 (PW-10) was examined on behalf of the prosecution to prove the recovery of the alleged contraband from the purported exclusive and conscious possession of the accused. During his .
examination-in-chief, he omitted to lend any support to the prosecution case, hence, he was declared hostile. However, during the course of his cross-examination by the learned Public Prosecutor, he has admitted his signatures on search memo Ex.PW10/A, seizure memo Ex.PW1/B, arrest memo Ex.PW10/B and personal search memo Ex.PW10/C. Obviously then given the fact that he has omitted to depose in his disposition that he appended his signatures thereon under compulsion or duress. As a sequel then he is bound by the recitals recorded therein. As a concomitant then his having reneged from the recitals recorded in the memos is of no consequence as it comprises oral evidence in derogation to or in detraction to the recorded contents qua search, seizure and recovery comprised in Ex. PW1/B, which oral evidence, in detraction from or in derogation to the scribed contents admitted to be signatured by the aforesaid PW- 10 (Jawahar Lal) is barred and interdicted by Sections 91 and 92 of the Indian Evidence Act. As a corollary, then it has to be ::: Downloaded on - 15/04/2017 17:31:35 :::HCHP 8 emphatically concluded that his turning hostile is of no consequence, more so when a reading of the testimonies of the official witnesses omit to convey existence of any inter-se or .
intra-se contradictions in their respective testimonies, as such, their testimonies are both credible or inspiring and cannot be discarded or ousted. However, the accused has depended upon the testimonies of DW-1 Durga Devi and DW-2 Gopal Dutt to propagate that as a matter of fact the bag from which the alleged recovery was purportedly effected was owned by one Kewal Ram, who abandoned it in the bus stand and that it was falsely foisted/planted upon the accused. PW-11 ASI Bhagat Ram has been subjected to a lengthy and inexorable cross-examination by the defence to clothe the defence propagated by the accused that the case property belonged to Kewal Ram and he in lieu of letting off Kewal Ram had received from him a sum of Rs. 15,000/- with veracity. Momentum and aggravation to the said propagation is concerted to be derived from the testimonies of DW-1 and DW-2. DW-1 in her deposition comprised in her examination-in-chief has deposed that at about 5.00 p.m. ASI Bhagat Ram had telephonically summoned her and her husband to the police station. In ::: Downloaded on - 15/04/2017 17:31:35 :::HCHP 9 pursuance thereto she deposes that she and Gopal (DW-2) has accompanied her husband to the police station, Rampur. ASI Bhagat Ram proposed them to stay in the police station as he .
had accommodation available for their stay. She deposes that ASI Bhagat Ram had requested Ramesh and Gopal to go to Jhakri along with one advocate so that the said advocate could be dropped there, hence, both Ramesh and Gopal departed from the police station along with ASI Bhagat Ram, who accompanied them upto the bus stand and bid them adieu there. However, ASI Bhagat Ram returned to the police station and when he was in an inebriated condition, DW-1 deposes that he touched her face to which she objected. She also deposes that she telephoned her husband and asked him to return to the police station. However, she has proceeded to depose that when she was alone in the police station, she received a telephone call from Kewal Ram wherein he communicated to her his apology for the false implication of her brother-in-law (accused Sangat Ram) as also communicated that he was the owner of the bag from which the recovery of the contraband was effected by the police and that he had been let off by ASI Bhagat Ram on his paying a sum of ::: Downloaded on - 15/04/2017 17:31:35 :::HCHP 10 Rs.15,000/- to the latter. The above deposition, though purportedly receiving corroboration from the deposition of DW-
1, is in its entirety enmeshed with falsehood arising from the .
fact that in case her face was touched by ASI Bhagat Ram whereupon she had telephonically requested her husband to come to police station, then her husband in response thereto would have ensured his presence at the police station.
However, she in her entire deposition omitted to divulge whether on hers having requested her husband, to return to the police station for undoing the misdemeanor committed upon her by ASI Bhagat Ram, he returned or not.
Consequently, it appears that her face was neither touched by ASI Bhagat Ram nor she had telephonically requested her husband to return to the police station, Rampur for making ASI Bhagat Ram expiate for his misdemeanor. More so, it appears that she has concocted the fact of hers receiving a telephonic call from Kewal Ram communicating/disclosing to her that her brother-in-law i.e. accused Sangat Ram was falsely implicated by the police for his having been allegedly found in exclusive and conscious possession of contraband and as a matter of fact the said Kewal Ram was the owner of the bag from which ::: Downloaded on - 15/04/2017 17:31:35 :::HCHP 11 contraband was recovered and that he was let off by ASI Bhagat Ram on his paying a sum of Rs. 15,000/- to the former, rather her story of hers receiving a telephonic call from Kewal .
Ram, the purported owner of the bag, who had abandoned it at the bus stand stands belied as she in her entire deposition has omitted to disclose the manner in which she acquired acquaintance with Kewal Ram, hence, she had an occasion to reveal her telephone number to him so as to facilitate the latter to have a telephonic conversation with her in the manner in which she has deposed. In sequel the defence version is ripped apart in its entirety, rather the consistent, harmonious and uniform testimonies of the official witnesses establish the prosecution case beyond all reasonable doubt, dehors the fact of PW-10 having turned hostile which fact of his reneging from his previous testimony recorded in writing stands waned by his admitting his signatures on the various memos with the concomitant effect of his being bound by the recital comprised therein. In aftermath, scope for formation of no inference other than that of the prosecution has unfailingly established the factum of recovery having been effected from the bag carried ::: Downloaded on - 15/04/2017 17:31:35 :::HCHP 12 by the accused in the manner as projected by the prosecution, is left.
12. For the reasons which have been recorded .
hereinabove, this Court holds that the learned trial Court below has appraised the entire evidence on record in a wholesome and harmonious manner apart therefrom the analysis of the material on record by the learned trial Court does not suffer from any perversity or absurdity of mis-appreciation and non appreciation of the evidence on record, rather it has aptly appreciated the material available on record.
13. Hence, the appeal is dismissed and the impugned judgment of the learned trial Court is affirmed and maintained.
Records be sent back.
(Rajiv Sharma)
Judge
(Sureshwar Thakur)
January 08, 2015 Judge.
(jai)
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