Himachal Pradesh High Court
State Of H.P vs Krishan Chand on 2 September, 2016
Author: Rajiv Sharma
Bench: Rajiv Sharma, Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr. Appeal No. 347 of 2012.
Reserved on: September 01, 2016.
.
Decided on: September 02, 2016.
State of H.P. ......Appellant.
Versus
Krishan Chand .......Respondent.
Coram
The Hon'ble Mr. Justice Rajiv Sharma, Judge.
of
The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
Whether approved for reporting? 1 Yes.
For the appellant: Mr. M.A.Khan, Addl. AG
For the respondent: Mr. S.C.Sharma, Advocate.
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Justice Rajiv Sharma, J.
The State has come in appeal against the judgment dated 24.4.2012, rendered by the learned Special Judge, Kinnaur Sessions Division at Rampur Bushahr, H.P., in NDPS Case No. 3/2011, whereby the respondent-accused (hereinafter referred to as the accused), who was charged with and tried for offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act), has been acquitted.
2. The case of the prosecution, in a nut shell, is that on 27.11.2010 PW-6 SHO Gurbachan Singh along with ASI Rattan Chand, HC Tain Singh, Const. Umesh Kumar was on patrolling duty. When they were present at Patarna bridge where they had gone in government vehicle No. HP-34-A-3830 at 5:00 AM, a person was seen coming from Pararna side. He was carrying a pithu bag (rucksack) on his back. He tried to run away. He was chased and nabbed. He disclosed his identity.
11 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 21:08:43 :::HCHP 2The bag carried by the accused was searched. It contained charas. It weighed 7 kgs. The same was sealed in parcel with seal "H" (9 seals), the .
impression of which was also taken separately on a piece of cloth. NCB form in triplicate was also filled in and recovered charas was taken into possession by preparing seizure memo. Rukka was prepared and sent to the Police Station through Const. Umesh Kumar. The case property was of deposited with the MHC. The same was sent to FSL, Junga. The report was obtained from FSL, Junga. The investigation was completed and the challan was put up before the Court after completing all the codal rt formalities.
3. The prosecution, in order to prove its case, has examined as many as six witnesses. The accused was also examined under Section 313 Cr.P.C. He explained that bag Ext. P-2 did not belong to him and that no charas was recovered from him. He examined two witnesses in defence, namely, Narain Singh and Govind Singh. The learned trial Court acquitted the accused, as noticed hereinabove. Hence, this appeal.
4. Mr. M.A.Khan, Addl. Advocate General has vehemently argued that the prosecution has proved its case against the accused. On the other hand, Mr. S.C.Sharma, Advocate, has supported the judgment of the learned trial Court dated 24.4.2012.
5. We have heard the learned counsel for both the sides and have also gone through the judgment and records of the case carefully.
6. PW-2 ASI Dharam Pal has registered the FIR on the basis of rukka Ext. PW-2/A on 27.11.2010.
::: Downloaded on - 15/04/2017 21:08:43 :::HCHP 37. PW-3 Const. Mukesh Kumar has brought the case property along with the report of FSL and deposited the same with the MHC, PS .
Anni in intact position.
8. PW-4 Const. Umesh Kumar is the material witness. According to him, he along with SI SHO Gurbachan Singh, ASI Rattan Chand and HC Tain Singh, was on patrolling duty towards Patarna and Kandugad in of official vehicle No. HP-34A-3830. At about 5:00 AM, when they were present at Patarna bridge near Kandugad, one person came from Patarna side carrying one rucksack.
rt On seeing the police party, he tried to escape. The police overpowered him. He disclosed his identity. The place was isolated and desolate. PW-6 SHO Gurbachan Singh informed him that he intended to conduct search of his bag as well as of his person. He was given option to be searched either before the Magistrate or Gazetted Officer. The consent memo is Ext. PW-4/A. The accused opted to be searched before the police. The bag carried by the accused was searched.
It contained charas. It weighed 7 kgs. All the codal formalities were completed on the spot. PW-6 SHO Gurbachan Singh prepared rukka Ext.
PW-2/A. It was handed over to him. He delivered the same at PS Anni.
On 29.11.2010, MHC Amar Singh handed over to him one sealed parcel sealed with 9 seals of seal bearing impression "H" along with sample of seal and NCB form in triplicate and other relevant documents vide RC No. 107/2010 for depositing the same in FSL, Junga. On the same date he deposited the same in FSL, Junga under receipt. In his cross-
examination, he deposed that they noticed the accused coming from ::: Downloaded on - 15/04/2017 21:08:43 :::HCHP 4 Patarna side from a distance of 10 meters. He admitted that at 5:00 AM, it was dark. He denied the suggestion that bag was in the possession of .
3-4 locals, namely, Sher Singh, Bittu and Puran Chand accompanying the police party. He admitted that one knife was also taken out from the bag while recording his statement. The knife was not found when the bag was searched. The proceedings were conducted in search light as it was dark.
of The spot from Kandugad was about half a kilometer. He denied the suggestion that there was residential house of Govind Singh at the edge of the bridge. Volunteered that there was no one in the house at that time.
rt The search memo of witnesses, seizure memo and arrest memo, sample seal of H and NCB form are in the hand of SI Gurbachan Singh. He was not aware who had authored the personal search memo of accused. No efforts were made to search for the witnesses.
9. PW-5 HC Amar Singh testified that on 27.11.2010, SI Gurbachan Singh handed over to him one sealed parcel duly sealed with seal "H" (9 numbers), sample of seal "H", seizure memo, NCB form in triplicate. He entered the same in Malkhana register at Sr. No. 262, the extract of which is Ext. PW-5/A. He handed over the case property to Const. Umesh Kumar for chemical analysis. He also filled in column No. 12 of NCB form. According to him, as long as the case property remained with him, the same was not tampered with.
10. PW-6 SHO Gurbachan Singh deposed the manner in which the accused was apprehended on 27.11.2010. The place where the accused was nabbed was isolated and desolate. The accused was ::: Downloaded on - 15/04/2017 21:08:43 :::HCHP 5 apprised of his right to be searched either before the Magistrate or Gazetted Officer. Consent memo Ext. PW-4/A was prepared. The accused .
opted to be searched by the police. The contraband was recovered from the bag of the accused. All the codal formalities were completed on the spot, including preparation of rukka Ext. PW-2/A. In his cross-
examination, he deposed that the consent memo, memo of search of the of witnesses, seizure memo, noting on the sample seal, memo of personal search of the accused and memo of arrest of the accused are not in his hand but he gave dictation to one of the members of the police party. He rt denied the suggestion that the residential house of Govind Singh was on the edge of the bridge. He did not make any effort to associate witnesses from the adjoining house. Volunteered that none was residing in that house and the house was in dilapidated condition.
11. It was at 5:00 AM in the morning and the place where the accused was apprehended was isolated and desolate. DW-2 Govind Singh has deposed that he was residing permanently in his house near Patarna bridge and house of Amar Chand and Pune Ram was situated about 150 meters above his house. He also testified that his family permanently resides in the house and at 5/5:30 AM, they were awake for morning chores. The police could not associate independent witnesses when it was dark at 5:00 AM. It is desirable that the independent witnesses are associated at the time of search, seizure and sealing proceedings, however, it would be difficult to associate witnesses when the place is isolated and desolate. The statements of the official witnesses could be ::: Downloaded on - 15/04/2017 21:08:43 :::HCHP 6 relied upon if they inspire confidence and are trustworthy. PW-4 Const.
Umesh Kumar and PW-6 SHO Gurbachan Singh have stated in unison .
that the place where the accused was apprehended was isolated and desolate. The statements of the official witnesses inspire confidence.
12. Their lordships of the Hon'ble Supreme Court in the case of Gangabhavani vs. Rayapati Venkat Reddy and others, reported in of (2013) 15 SCC 298, have held that in case there are minor contradictions in the depositions of the witnesses the same are bound to rt be ignored as the same cannot be dubbed as improvements and it is likely to be so as the statement in the court is recorded after an inordinate delay. In case the contradictions are so material that the same go to the root of the case, materially affect the trial or core of the prosecution case, the court has to form its opinion about the credibility of the witnesses and find out as to whether their depositions inspire confidence. Their lordships have held as follows:
"12. Thus, the position of law in cases where there is a contradiction between medical evidence and ocular evidence stands crystallised to the effect that though the ocular testimony of a witness has greater evidentiary value vis-à-vis medical evidence, when medical evidence makes the ocular testimony improbable, that becomes a relevant factor in the process of the evaluation of evidence. However, where the medical evidence goes so far that it completely rules out all possibility of the ocular evidence being true, the ocular evidence may be disbelieved.
CONTRADICTIONS IN EVIDENCE:::: Downloaded on - 15/04/2017 21:08:43 :::HCHP 7
13. In State of U.P. v. Naresh, (2011) 4 SCC 324, this Court after considering a large number of its earlier judgments held:
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"In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and other witnesses also make material improvement while deposing in the court, such evidence cannot be safe to rely upon. However, minor contradictions, of inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. The court has to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence. rt Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility."
Therefore, mere marginal variations in the statements of a witness cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier. The omissions which amount to contradictions in material particulars i.e. go to the root of the case/materially affect the trial or core of the prosecution's case, render the testimony of the witness liable to be discredited."
A similar view has been re-iterated by this Court in Tehsildar Singh & Anr. v. State of U.P., AIR 1959 SC 1012; Pudhu Raja & Anr. v. State, Rep. by Inspector of Police, JT 2012 (9) SC 252; and Lal Bahadur v. State (NCT of Delhi), (2013) 4 SCC 557).
14. Thus, it is evident that in case there are minor contradictions in the depositions of the witnesses the same are bound to be ignored as the same cannot be dubbed as improvements and it is likely to be so as the statement in the court is recorded after an inordinate delay. In case the contradictions are so material that the same go to the root of the case, materially affect the trial or core of the prosecution case, the court has to form its opinion about the credibility of the ::: Downloaded on - 15/04/2017 21:08:43 :::HCHP 8 witnesses and find out as to whether their depositions inspire confidence."
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13. Mr. S.C.Sharma, Advocate appearing for the accused has vehemently argued that knife was not recovered at the time when the bag was initially searched in the presence of PW-6 SHO Gurbachan Singh but when PW-4 Const. Umesh Kumar appeared in the Court he deposed that of knife was recovered when the bag was searched. It is a minor contradiction. The recovery of knife has not prejudiced the case of the accused in any manner since charas itself has been recovered from the rt same bag Ext. P-2.
14. PW-4 Const. Umesh Kumar has initially in his examination-
in-chief deposed that they were not carrying any search light but later on in his cross-examination he admitted that the proceedings were conducted in search light as it was dark. Mr. S.C. Sharma, Advocate for the accused has vehemently argued that as per Ext. DW-1/A, the police party had gone to Kandugad and not to Patarna bridge. The distance between two places is merely one and a half kilometer. Thus, it cannot be presumed that the police party has not visited Patarna bridge from where the accused was apprehended.
15. Though PW-4 Const. Umesh Kumar deposed that the documents were filled in by PW-6 SHO Gurbachan Singh, however, PW-6 SHO Gurbachan Singh has categorically testified that memos were filled in by one of the members of the police party under his dictation. This is also not a major contradiction, the manner in which the memos were recorded.
::: Downloaded on - 15/04/2017 21:08:43 :::HCHP 9The learned trial Court has treated minor contradictions as major contradictions. Whether the police has reached the spot 10 minutes .
before or after cannot be treated as major infirmity. There is bound to be memory loss with the passage of time.
16. Their lordships of the Hon'ble Supreme Court in the case of State of Uttar Pradesh vs. Naresh and others, reported in (2011) 4 of SCC 324, have held that normal discrepancies are bound to occur due to normal errors of observation, errors of memory due to lapse of time and due to mental disposition.
rt Trivial matters which do not affect core of prosecution case should not be made a ground on which evidence is rejected in its entirety. Their lordships have held as follows:
"18. The High Court has given undue importance to the minor contradictions in the statement of Subedar (PW.1) and Balak Ram (PW.5) as one of them had stated that the I.O. reached the place of occurrence at 10.15 p.m. and another has stated that he reached about mid night. The incident occurred in mid October 1979. This is the time when the winter starts and in such a fact-situation no person is supposed to keep record of exact time particularly in a rural area. Everybody deposes according to his estimate. More so, the statement had been recorded after a long lapse of time. Therefore, a margin of 1-1/2 hours remained merely a trivial issue.
30. In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and other witnesses also make material improvement while deposing in the court, such evidence cannot be safe to rely upon. However, minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety.The court has to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence.::: Downloaded on - 15/04/2017 21:08:43 :::HCHP 10
"Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test credibility of the prosecution version, when the entire evidence is put in a .
crucible for being tested on the touchstone of credibility."
Therefore, mere marginal variations in the statements of a witness cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier. The omissions which amount to contradictions in material particulars i.e. go to the root of the case/materially affect the trial or core of the prosecution's case, render the testimony of the witness liable to be discredited. [Vide:
State Represented by Inspector of Police v. Saravanan & Anr., AIR of 2009 SC 152; Arumugam v.State, AIR 2009 SC 331; Mahendra Pratap Singh v. State of Uttar Pradesh, (2009) 11 SCC 334; and Dr. Sunil Kumar Sambhudayal Gupta & Ors. v. State of Maharashtra, JT 2010 (12) SC 287].31.
rt The High Court has also fallen into error in giving significance to a trivial issue, namely, that in respect of the morning incident all the accused had not been named in the complaint/NCR."
17. Their lordships of the Hon'ble Supreme Court in the case of Madhu alias Madhuranatha and another vs. State of Karnataka, reported in (2014) 12 SCC 419, have held that minor discrepancies on trivial matters which do not affect the core of the case of the prosecution must not prompt the Court to reject the evidence in its entirety.
Irrelevant details which do not, in any way, corrode the credibility of a witness should be ignored. The court has to examine whether evidence read as a whole appears to have a ring of truth. The Court is not supposed to give undue importance to omissions, contradictions and discrepancies which do not go to the heart of the matter. Their lordships have further held that the evidence of police officials cannot be discarded merely on the ground that they belong to the police force and are either interested in the investigation or in the prosecution. There can be no prohibition to the effect that a policeman cannot be a witness or that his ::: Downloaded on - 15/04/2017 21:08:43 :::HCHP 11 deposition cannot be relied upon if it inspires confidence. Their lordships have held as follows:
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"15. It has been canvassed on behalf of the appellants that there are discrepancies and contradictions in the depositions of witnesses like the timings when deceased was seen last with the appellants and the distances of places etc. do not tally. Thus, their evidence cannot be relied upon.
16. In Rohtash Kumar v. State of Haryana, JT 2013 (8) SC 181, this of Court considered the issue of discrepancies in the depositions. It is a settled legal proposition that while appreciating the evidence of a witness, minor discrepancies on trivial matters which do not affect the core of the case of the prosecution must not prompt the court to reject the evidence in its entirety. Therefore, irrelevant details which rt do not in any way corrode the credibility of a witness should be ignored. The court has to examine whether evidence read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinize the evidence, more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witnesses and whether the earlier evaluation of the evidence is shaken, so as to render it unworthy of belief. Thus, the court is not supposed to give undue importance to omissions, contradictions and discrepancies which do not go to the heart of the matter, and shake the basic version of the prosecution witness. A similar view has been re-iterated in State of U.P. v. M.K. Anthony, AIR 1985 SC 48; State rep. byInspector of Police v. Saravanan & Anr., AIR 2009 SC 152; and Vijay @ Chinee v. State of M.P., (2010) 8 SCC 191.
17. Learned counsel for the appellants has vehemently argued that in some of the recoveries, though a large number of people were available, but only police personnel were made recovery witnesses. Thus, the whole prosecution case becomes doubtful.
18. The term 'witness' means a person who is capable of providing information by way of deposing as regards relevant facts, via an oral statement, or a statement in writing, made or given in Court, or otherwise. In Pradeep Narayan Madgaonkar & Ors. v. State of Maharashtra, AIR 1995 SC 1930, this Court dealt with the issue of the requirement of the examination of an independent witness, and whether the evidence of a police witness requires corroboration. The Court held that though the same must be subject to strict scrutiny, however, the evidence of police officials cannot be discarded merely on the ground that they belong to the police force and are either ::: Downloaded on - 15/04/2017 21:08:43 :::HCHP 12 interested in the investigation or in the prosecution. However, as far as possible the corroboration of their evidence on material particulars should be sought.(See also: Paras Ram v. State of .
Haryana, AIR 1993 SC 1212; Balbir Singh v. State, (1996) 11 SCC 139;
Kalpnath Rai v. State (Through CBI), AIR 1998 SC 201; M. Prabhulal v. Assistant Director, Directorate of Revenue Intelligence, AIR 2003 SC 4311; and Ravinderan v. Superintendent of Customs, AIR 2007 SC 2040).
19. Thus, a witness is normally considered to be independent unless he springs from sources which are likely to be tainted and this usually means that the said witness has cause to bear such enmity of against the accused so as to implicate him falsely. In view of the above, there can be no prohibition to the effect that a policeman cannot be a witness or that his deposition cannot be relied upon if it inspires confidence.
rt
20. This Court in Laxmibai (dead) Thr. L.Rs. & Anr. v. Bhagwantbuva (dead) Thr. L.Rs. & Ors., AIR 2013 SC 1204 examined a similar issue and held:
"Furthermore, there cannot be any dispute with respect to the settled legal proposition, that if a party wishes to raise any doubt as regards the correctness of the statement of a witness, the said witness must be given an opportunity to explain his statement by drawing his attention to that part of it, which has been objected to by the other party, as being untrue. Without this, it is not possible to impeach his credibility. Such a law has been advanced in view of the statutory provisions enshrined in Section 138 of the Evidence Act, 1872, which enable the opposite party to cross-examine a witness as regards information tendered in evidence by him during his initial examination in chief, and the scope of this provision stands enlarged by Section 146 of the Evidence Act, which permits a witness to be questioned, inter-alia, in order to test his veracity. Thereafter, the unchallenged part of his evidence is to be relied upon, for the reason that it is impossible for the witness to explain or elaborate upon any doubts as regards the same, in the absence of questions put to him with respect to the circumstances which indicate that the version of events provided by him, is not fit to be believed, and the witness himself, is unworthy of credit. Thus, if a party intends to impeach a witness, he must provide adequate opportunity to the witness in the witness box, to give a full and proper explanation. The same is essential to ensure fair play and fairness in dealing with witnesses. (See: Khem Chand v. State of Himachal Pradesh, AIR 1994 SC 226;State of U.P. v. Nahar Singh (dead) & Ors., AIR 1998 SC 1328; Rajinder Pershad (Dead) by L.Rs. v. Darshana Devi (Smt.), AIR 2001 ::: Downloaded on - 15/04/2017 21:08:43 :::HCHP 13 SC 3207; and Sunil Kumar & Anr. v. State of Rajasthan, AIR 2005 SC 1096)".
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18. Mr. S.C. Sharma, Advocate for the accused, during the course of arguments, has also referred to spot map Ext. PW-6/A to prove that the house of DW-2 Govind Singh was shown in the spot map. The house has been shown in this map as dilapidated house. PW-6 SHO Gurbachan of Singh has also deposed that the house shown in the spot map near the bridge was dilapidated. Even if it is assumed that the house of DW-2 Govind Singh was near Patarna bridge, it would not make any difference rt as it was not expected from the police to awake DW-2 Govind Singh or his family members and that too in the early morning at 5:00 AM.
19. The case property was deposited with PW-5 HC Amar Singh.
He made entry in the malkhana register. Thereafter he sent the same to FSL Junga through PW-4 Const. Umesh Kumar, who deposited the same at FSL Junga. The report of the FSL is Ext. PXY. The FSL has received one sealed cloth parcel bearing 9 seals of impression "H". The seals were found intact and tallied with specimen seal sent by the forwarding authority. It has come on record that the case property has remained intact at malkhana and FSL Junga. When the case property was produced in the Court, while recording the statement of PW-4 Const.
Umesh Kumar, the seals of FSL Junga were found intact. The prosecution has proved that the charas was recovered from the conscious and exclusive possession of the accused. There was no occasion for the ::: Downloaded on - 15/04/2017 21:08:43 :::HCHP 14 police to falsely implicate the accused. Thus, the accused is liable to be convicted under Section 20 of the ND & PS Act.
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20. Accordingly, the appeal is allowed. The judgment of acquittal rendered by the learned trial Court in NDPS case No. 3 of 2011, dated 24.4.2012 is set aside. The accused is convicted under Section 20 of the ND & PS Act. The accused be heard on quantum of sentence on of 8.9.2016. The Registry is directed to prepare and sent the production warrant to the quarter concerned. Bail bonds are cancelled.
21. rt However, before parting with the judgment, it is made clear that the police throughout the State of Himachal Pradesh is directed to register cases against the owners or occupiers or having the control or use of any house, room, enclosure, space, place, animal or conveyance, who knowingly are permitting it to be used for the commission of an offence by any other person punishable under the provisions of the Act. These persons are liable to punishment under Section 25 of the ND & PS Act, 1985 with the punishment provided for that offence under the Act. The Principal Secretary (Home) to the Government of Himachal Pradesh is directed to issue necessary directions to all the Investigating Officers throughout the State of Himachal Pradesh for due compliance of these mandatory directions.
::: Downloaded on - 15/04/2017 21:08:43 :::HCHP 1522. The Registry is directed to send a copy of this judgment to the Principal Secretary (Home) to the Government of Himachal Pradesh .
forthwith for due compliance.
( Rajiv Sharma ), Judge.
September 02, 2016, ( Sureshwar Thakur ),
(karan) Judge.
of
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