Himachal Pradesh High Court
State Of H.P vs Sukhdev on 9 March, 2017
Bench: Dharam Chand Chaudhary, Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 257 of 2013 Reserved on : 02.03.2017 .
Decided on: 09.03.2017
State of H.P. .......Appellant
Versus
Sukhdev ......Respondent
Coram
The Hon'ble Mr. Justice Dharam Chand Chaudhary, Judge.
of The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge. Whether approved for reporting?1 No. For the appellant: Mr. D.S. Nainta and Mr. M.A. Khan, rt Addl. A.Gs.
For the respondent: Mr. Sandeep Chauhan, Advocate.
Dharam Chand Chaudhary, Judge.
State of Himachal Pradesh aggrieved by the judgment dated 29.12.2012 passed by learned Special Judge, Sirmour, District at Nahan in Sessions Trial No. 03- ST/7 of 2010 has preferred this appeal on the grounds inter-alia that the findings of acquittal of the respondent (hereinafter referred as to the 'accused') recorded by learned trial Court are not supported by the evidence available on record and rather based upon hypothesis, surmises and conjectures. The trial Court is stated to have not appreciated the prosecution evidence in its right perspective. The findings as recorded are manifestly unreasonable and unsustainable. The 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 15/04/2017 21:59:54 :::HCHP 2testimony of the material prosecution witnesses in the absence of there being any proof of enmity with the .
accused has been erroneously discarded. The independent witness PW-6 Bablir Singh though has not supported the prosecution case and as such, was of declared hostile, however, in his cross-examination he has admitted his signature on the seizure memo Ext. PW-
rt 1/C, which alone according to the appellant-State was sufficient for corroboration of the prosecution case. The findings that PW-2 and PW-12 have failed to explain as to why scale could not be procured from the nearby place and what prompted the I.O to get the same purchased in the market at Rajgarh situated far away from that place are stated to be also baseless. The prosecution case that PW-2 was deputed by PW-12 either to procure scale on loan basis or if not available to purchase a new one from the market at Rajgarh is stated to be proved from the testimony of Navdeep Sahni, PW-4 and from the receipt Ext. PW4-/A. It has, therefore, been urged that on setting aside the impugned judgment findings of conviction may be recorded against the accused and ::: Downloaded on - 15/04/2017 21:59:54 :::HCHP 3 also to sentence him for the commission of the offence he committed.
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2. The accused has been booked in a case under Section 20 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as the 'NDPS Act' of in short) with the allegations that a police party headed by PW-12 ASI Raj Kumar on its way from Rajgarh to Habban, rt when reached at Thanoh, noticed the accused walking alongside road and coming from opposite direction. On seeing the police party, he became nervous and tried to flee away. PW-12 had over powered him with the help of accompanying police officials. On inquiry, he disclosed his address and other antecedents. At that very time, PW-6 Balbir Singh also came there. He was asked to associate with the police in the investigation of the case. The accused was given option in the presence of PW-6 qua search of bag Ext. P-1, he was carrying on his back in the presence of Magistrate or nearby Gazetted Officer vide memo Ext.
PW-1/A. He, however, opted for search of his bag by the police officials present there. Before resorting to conduct the search of accused, I.O. PW-12 and the ::: Downloaded on - 15/04/2017 21:59:54 :::HCHP 4 members of police party including the independent witness Balbir Singh had offered their personal search to .
the accused, which he conducted vide memo Ext. PW-
1/B. Thereafter, the search of the bag Ext. P-1 was conducted. There were four portions of the said bag.
of When zip of one of the portion opened, some substance in the shape of sticks was found kept therein in a white rt coloured polythene bag, Ext. P-2. Such substance on touching, smelling and on the basis of experience was found to be charas. The weighing scale being not available there, PW-2 Constable Rajesh Kumar was deputed either to hire the same or purchase new one from the market at Rajgarh. The said witness had purchased the scale at Rajgarh from the shop of Sh.
Navdeep Sahni (PW-4) vide receipt Ext. PW-4/A. When the scale was brought to the spot, the charas was weighed and found 1.500 kgs. The charas was thereafter kept in the same polythene bag, Ext. P-2 and then put in black coloured bag Ext. P-1. The bag Ext. P-1 was thereafter put in a cloth bag and sealed with impression of seal 'w'. The sample of seal Ext. PW-8/A was prepared separately and the seal after its use was ::: Downloaded on - 15/04/2017 21:59:54 :::HCHP 5 handed over to Constable Maan Singh (PW-1) for safe custody. The recovered charas was taken in possession .
vide recover memo Ext. PW-1/E. NCB forms Ext. P-A were filled in triplicate. Since the accused was found to have committed an offence punishable under Section 20 of of the NDPS Act, therefore, Rukka Ext. PW-12/A was prepared and handed over to Constable Jitender Singh rt (PW-3) for being taken to State Vigilance and Anti Corruption Bureau, Nahan. On the basis thereof, FIR Ext.
PW-3/A was recorded by PW-9, the then Station House Officer. The endorsement Ext. PW-9/A on the back side of the Rukka was also made by this witness.
3. The I.O. during further course of investigation conducted on the spot had prepared the spot map. He had also recorded the statements of witnesses under Section 161 of the Code of Criminal Procedure. The accused was interrogated and arrested at 4.30 a.m. and the grounds of arrest were made known to him vide memo Ext. PW-12/D. As per the endorsement thereon, information qua his arrest was given to his real brother Baldev Singh. The accused was lodged in lock-up of Police Station, Rajgarh on 6.12.2009. The case property ::: Downloaded on - 15/04/2017 21:59:54 :::HCHP 6 was handed over to MHC Police Station, Rajgarh for safe custody till the same is taken to Police Station, State .
Vigilance and Anti Corruption Bureau, Nahan for being produced before the Station House Officer there.
4. On the next day i.e. 7.12.2009, the accused of and case property was produced before Mal Dutt Sharma (PW-8), the then I.O. Police Station, SV&ACB, rt Nahan along with NCB forms. He re-sealed the same with seal 'SK'. The sample whereof Ext. PW-8/A was drawn separately. The entries in this regard are Ext. PW-
8/B and the re-sealing certificate is Ext. PW-8/C. On the same day, he deposited the case property including the sample of seal and NCB forms with MC of Police Station, SV&ACB, Nahan. The I.O. during further course of investigation has prepared the special report Ext. PW-
7/A. On the receipt of report of chemical examiner Ext.
P-B and on completion of investigation, PW-11 the then Inspector, Police Station, SV&ACB(SIU), Shimla has prepared the challan and filed the same in the Court.
5. Learned trial Judge on finding a prima-facie case under Section 20 of the NDPS Act made out against the accused had framed the charge against ::: Downloaded on - 15/04/2017 21:59:54 :::HCHP 7 him accordingly. He, however, pleaded not guilty to the charge and claimed trial. Therefore, the prosecution .
was called upon to lead evidence in support of its case.
The prosecution in turn has examined 12 witnesses in all.
The material prosecution witnesses are PW-1 HC Man of Singh, PW-2 Constable Rajesh Kumar, PW-3 Jitender Singh and the I.O. PW-12, who was members of the rt raiding party. PW-4 Navdeep Sahni is the shopkeeper from whom a scale was purchased by PW-2 in a sum of Rs. 160/- vide receipt Ext. PW-4/A. PW-6 Balbir Singh is the so called independent witness who, however, has not supported the prosecution case and turned hostile. The remaining prosecution witnesses are formal as PW-5 had brought the case property back to Police Station from Forensic Science Laboratory, whereas, PW-7 HC Ram Lal being Reader to SP, SV&ACB(SIU) is the witness to special report Ext. PW-7/A. PW-8 Mal Dutt Sharma being posted as SHO in Police Station, SV&ACB has been examined to prove re-sealing of the case property and PW-9 Santosh Kumar working as S.H.O. Police Station, SV&ACB, Nahan on 6.12.2009 had lodged the FIR Ext. PW-3/A on the receipt of the Rukka. PW-10 Constable Rajan was ::: Downloaded on - 15/04/2017 21:59:54 :::HCHP 8 working as MC in Police Station SV&ACB, Nahan at the relevant time to whom PW-8 had entrusted the case .
property. PW-11 Inspector Gulshan Negi, the then SHO, Police Station, SV&ACB(SIU) on completion of the investigation of the case had prepared the challan.
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6. On the other hand, the accused in his statement recorded under Section 313 of the Code of rt Criminal Procedure while denying the entire prosecution case either being wrong or for want of knowledge has stated that he is innocent and has been implicated in this case falsely. As a matter of fact, the police never visited village Thanoh nor he was apprehended there and rather he was made to de-board the bus in which he was traveling to Solan one kilometer away from Police Station, Rajgarh towards Solan side. One unclaimed bag was recovered by the police from the shelf of the bus near his seat. The recovery of the said bag was foisted upon him and he was falsely implicated in this case. On the documents prepared by the police, he was forced to put his signatures. He had also examined DW-1 Ram Lal, conductor of the bus in question.
::: Downloaded on - 15/04/2017 21:59:54 :::HCHP 97. Learned trial Judge on appreciation of the evidence has concluded that no case is made out .
against the accused and also that the inconsistencies, contradictions and improvements in the prosecution evidence renders the entire prosecution story highly of doubtful. The accused, as such, was given benefit of doubt and consequently acquitted of the charge rt framed against him under Section 20 of the NDPS Act.
8. While Mr. D.S. Nainta, learned Additional Advocate General has urged that the cogent and reliable evidence produced by prosecution is sufficient for recording the findings of conviction against him, Mr. Sandeep Chauhan, learned counsel representing him has urged that the accused has been implicated by the police in this case falsely and as such he has been rightly acquitted.
9. We have carefully scrutinized the evidence produced by the prosecution and also by the accused in his defence with all care and circumspection. In our considered opinion, the prosecution case right from the very beginning till end is highly doubtful. The place from where the police party proceeded towards Habban side ::: Downloaded on - 15/04/2017 21:59:54 :::HCHP 10 on 6.12.2009 is not known. Though in the rukka, on the basis whereof FIR has been registered, the police party .
on that date proceeded to Habban side from Rajgarh, however, as per the version of PW-2 Const. Rajesh Kumar they started from Solan on that day at 7:00 AM. The of documentary evidence in the form of daily dairy report etc. to prove this part of the prosecution case has not rt been produced in evidence. Even if without entering into this controversy, it is believed that the police party traveling in official vehicle was available at Thanoh and the accused noticed coming from opposite direction, how he could have made an attempt to flee away from the spot when the vehicle was not having beckon on its top nor carrying any insignia of police department.
Above all, the members of police party, as per the evidence available on record, were also in civil dress and not in uniform. Otherwise also, in view of the position reflected in site plan Ext. PW-12/B, the accused was apprehended at a place above nullah in the forest area. The location of the site in the plan makes it crystal clear that the accused could have noticed the vehicle coming from opposite direction from some distance and ::: Downloaded on - 15/04/2017 21:59:54 :::HCHP 11 as such he had sufficient time to have fled away therefrom or screened the contraband he was carrying .
with him by throwing the same into the nullah.
10. Admittedly, there were houses and shops in existence in between Thanoh where the accused was of allegedly apprehended and Rajgarh. It is not known as to why PW-1 HC Man Singh was deputed to Rajgarh to bring the rt scale. No reasonable and plausible explanation in this regard is forthcoming on record. It is not proved beyond all reasonable doubt that PW-1 HC Man Singh was deputed to bring the scale because PW-
2 Const. Rajesh Kumar also tells us that he went to Rajgarh from the spot for bringing the weighing scale which was purchased by him from a shop there. PW-4 Navdeep Sahni is the shop keeper who tells us that the scale was purchased from his shop. Though he has proved the receipt Ext. PW-4/A also, however, this document on the face of it is neither cash memo nor bill and as such is nothing else but merely a forged document. It is significant to note that the I.O. while in the witness-box has failed to explain as to why he was not carrying scale with him because normally the I.Os ::: Downloaded on - 15/04/2017 21:59:54 :::HCHP 12 when leave the Police Stations in connection with detection of crimes under the ND & PS Act or Excise Act .
carry the I.O. kits with them which contain scale also.
Surprisingly enough, how the recovered charas was weighed with the so called scale brought from Rajgarh of remained unexplained because no evidence has come on record to show that the weights were also purchased rt from Rajgarh or if not from where the same were procured. The police case that the scale was procured from Rajgarh creates doubt qua the presence of the police party at Thanoh. In such a situation, the plea of the accused as raised in his defence, that he was traveling in a private bus bearing registration No. HP-64- 4776 being conducted by DW-1 Sh. Ram Lal from Rajgarh to Solan and the bus was intercepted by the police near Police Station Rajgarh where the accused was made to alight from the bus and unclaimed bag recovered from the shelf above the seat he was occupying, fastened upon him seems to be plausible and nearer to the factual position. Though, the plea so raised by the accused in his defence has been denied by the official witnesses i.e. PW-1, PW-2, PW-3 and PW-12 ::: Downloaded on - 15/04/2017 21:59:54 :::HCHP 13 being wrong, however, the same has been corroborated by DW-1 Sh. Ram Lal Conductor of the bus.
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The evidence, the accused produced in his defence, seems to be plausible and there is no reason to discredit the same.
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11. So far as the evidence as has come on record by way of the testimony of official witnesses, the same rt being inconsistent and contradictory in nature as well as improvements as noticed hereinabove, renders the prosecution story highly doubtful and so far as the independent witness PW-6 Balbir Singh is concerned, he has not supported the prosecution case at all. Nothing lending support to the prosecution case even could be elicited during his cross-examination also. On the other hand, he has fully supported the plea the accused raised in his defence.
12. In view of the reappraisal of the evidence available on record, in our considered opinion, the prosecution has failed to prove its case against the accused beyond all reasonable doubt. He, therefore, has rightly been acquitted by learned trial Court.
::: Downloaded on - 15/04/2017 21:59:54 :::HCHP 14Consequently, the impugned judgment calls for no interference by this Court, the same as such is affirmed.
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13. For all the reasons hereinabove, this appeal fails and the same is accordingly dismissed. Personal bonds furnished by the accused are ordered to be cancelled of and the surety bonds discharged.
(Dharam Chand Chaudhary)
Judge
rt (Chander Bhusan Barowalia)
March 09, 2017. Judge
(karan/naveen)
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