Himachal Pradesh High Court
State Of H.P vs Narinder Singh And Another on 17 May, 2016
Bench: Sanjay Karol, Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No.246 of 2009 Reserved on : 3.5.2016 .
Date of Decision : May 17, 2016
State of H.P. ...Appellant.
Versus
Narinder Singh and another ...Respondents.
of
Coram:
The Hon'ble Mr. Justice Sanjay Karol, Judge. The Hon'ble Mr. Justice Ajay Mohan Goel, Judge.
rt Whether approved for reporting? No. For the Appellant :
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Mr. R.S. Verma, Additional Advocate General, Mr. Vikram Thakur, Deputy Advocate General and Mr. J.S. Guleria, Assistant Advocate General.
For the Respondents : Ms Abhilasha Kaundal, Advocate, for respondent No.1.
Mr. Vivek Sharma, Advocate, for respondent No.2.
Sanjay Karol, Judge State has appealed against the judgment dated 22.10.2008, passed by the learned Special Judge, Fast Track Court, Shimla, Himachal Pradesh, in Sessions Trial No.6-S/7 of 2008, titled as State of Himachal Whether reporters of the local papers may be allowed to see the judgment?::: Downloaded on - 15/04/2017 20:22:26 :::HCHP
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Pradesh v. Narinder Singh & another, challenging the acquittal of respondents Narinder Singh and Sunil Shah (hereinafter referred to as the accused).
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2. It is the case of prosecution that on 30.9.2007, police party, headed by SI Sher Singh (PW-
12), was on traffic checking duty. At about 4.15. p.m., when they reached near a place known as Antrawli, they of noticed accused coming from the opposite direction on a motorcycle. On the asking of the police, accused the same.
rt Narinder Singh, who was driving the motorcycle, stopped Accused Sunil Shah was sitting as a pillion rider. Accused Narinder Singh had slung a bag on his back. Suspecting the accused to have carried certain objectionable material, SI Sher Singh apprised the accused of their statutory rights, under the provisions of Section 50 of the Act. Accused Narinder Singh expressed his willingness to get the bag searched from the police present on the spot. From the bag, Charas weighing 1.5 kgs was recovered. Two samples, each weighing 25 grams, were drawn. Bulk parcel as also the samples were sealed with seal of impression 'N'. Rukka (Ex.PF) was taken to the Police Station by Constable Ramesh Kumar (PW-2), which led to the registration of FIR ::: Downloaded on - 15/04/2017 20:22:26 :::HCHP ...3...
No.55/07, dated 30.9.2007 (Ex.PK), for commission of offence, punishable under the provisions of Section 20 of the Act, at Police Station Nerwa, District Shimla, Himachal .
Pradesh. Accused were arrested. Case property alongwith the samples was entrusted to MHC Karam Chand. The sample was sent to the Forensic Science Laboratory twice. Firstly, on 2.10.2007, through HHC of Laiq Ram (PW-8) and secondly on 12.11.2007 through HHC Sadhu Ram. On receipt of the reports of the rt Chemical Examiner (Ex.PX & PY) and with the completion of investigation, which prima facie revealed complicity of the accused in the alleged crime, challan was presented in the Court for trial.
3. Accused were charged for having committed an offence punishable under the provisions of Section 20 of the Act, to which they did not plead guilty and claimed trial.
4. In order to establish its case, prosecution examined as many as 12 witnesses and statements of the accused, under the provisions of Section 313 of the Code of Criminal Procedure, were also recorded, in which they took defence of innocence and false implication. ::: Downloaded on - 15/04/2017 20:22:26 :::HCHP
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5. Based on the testimonies of witnesses and the material on record, trial Court acquitted both the accused of the charged offence. Hence, the present .
appeal by the State.
6. We have heard Mr. R.S. Verma, learned Additional Advocate Genera, Mr. Vikram Thakur, learned Deputy Advocate General and Mr. J.S. Guleria, learned of Assistant Advocate General on behalf of the State as also Ms Abhilasha Kaundal and Mr. Vivek Sharma, Advocates, , rt on behalf of the accused. We have also minutely examined the testimonies of the witnesses and other documentary evidence so placed on record by the prosecution. Having done so, we are of the considered view that no case for interference is made out at all. We find that the judgment rendered by the trial Court is based on complete, correct and proper appreciation of evidence (documentary and ocular) so placed on record. There is neither any illegality/infirmity nor any perversity with the same, resulting into miscarriage of justice.
7. It is a settled principle of law that acquittal leads to presumption of innocence in favour of an accused. To dislodge the same, onus heavily lies upon the prosecution. Having considered the material on ::: Downloaded on - 15/04/2017 20:22:26 :::HCHP ...5...
record, we are of the considered view that prosecution has failed to establish essential ingredients so required to constitute the charged offence.
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8. In Prandas v. The State, AIR 1954 SC 36, Constitution Bench of the apex Court, has held as under:
"(6) It must be observed at the very outset that we cannot support the view which has been expressed in several cases that the High Court has no power under S. 417, Criminal of P.c., to reverse a judgment of acquittal, unless the judgment is perverse or the subordinate Court has in some way or other misdirected rtitself so as to produce a miscarriage of justice.
In our opinion, the true position in regard to the jurisdiction of the High Court under S. 417, Criminal P.c. in an appeal from an order of acquittal has been stated in - 'Sheo Swarup v. Emperor', AIR 1934 PC 227 (2) at pp.229, 230 (A), in these words:
"Sections 417, 418 and 423 of the Code give to the High Court full power to review at large the evidence upon which the order of acquittal was founded, and to reach the conclusion that upon that evidence the order of acquittal should be reversed. No limitation should be placed upon that power, unless it be found expressly stated in the Code. But in exercising the power conferred by the Code and before reaching its conclusions upon fact, the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses, (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at ::: Downloaded on - 15/04/2017 20:22:26 :::HCHP ...6...
his trial, (3) the right of the accused to the benefit of any doubt, and (4) the slowness of an appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of .
seeing the witnesses. To state this, however, is only to say that the High Court in its conduct of the appeal should and will act in accordance with rules and principles well known and recognized in the administration of justice." "
9. Recovery of the contraband substance from of conscious and exclusive possession of the accused is sought to be established through the testimonies of HHC rt Kulbhushan (PW-1), Constable Ramesh Kumar (PW-2), Kuldeep Kumar (PW-4) and SI Sher Singh (PW-12).
10. We find independent witness Kuldeep Kumar not to have supported the prosecution case at all. He denies having witnessed any recovery of the contraband substance from the conscious possession of the accused. Though the witness was present at the place and the time when the accused was asked to stop the motorcycle, but denies accused Narinder Singh having carried any bag on his back. According to him, no option of search was given to the accused nor was he aware of the contents of the papers which the police got signed from him, and that too the following day, in the Police Station. The witness has studied only upto 2nd class. He can ::: Downloaded on - 15/04/2017 20:22:26 :::HCHP ...7...
neither read nor write in Hindi, but can simply sign in Hindi. We find the witness to have withstood the test of cross-examination and thus a version other than the one, .
which the prosecution wants the Court to believe, has emerged on record.
11. Independently, we have examined the testimonies of HHC Kulbhushan (PW-1), Constable of Ramesh Kumar (PW-2) and SI Sher Singh (PW-12), the police officials, who conducted the search and seizure rt operations. SI Sher Singh, who was posted as SHO, Police Station Nerwa, states that on 30.9.2007, he had gone in a private vehicle for traffic checking duty towards Gumma. At about 4.15 p.m., when they reached a place known as Antrawli, they saw the accused coming on a motorcycle. The vehicle was stopped and the accused asked to disclose their particulars. Accused failed to show the documents of the vehicle. On suspicion that there may be some contraband substance in the bag carried by accused Narinder Singh, by issuing notice (Ex.PA) and obtaining consent of accused Narinder Singh, bag was searched, wherefrom 1.5 kg of Charas was recovered. Two samples, each weighing 25 grams, were drawn. Bulk parcel as also the samples were sealed with seal of ::: Downloaded on - 15/04/2017 20:22:26 :::HCHP ...8...
impression 'N', impression whereof was obtained on a piece of cloth and seal handed over to HHC Kulbhushan. NCB form was filed up in triplicate and Rukka (Ex.PF) sent .
through Constable Ramesh Chand (PW-2) to the Police Station, which led to registration of FIR (Ex.PK). Constable Ramesh Kumar brought the file back to the spot. Accused were arrested and informed of the of grounds of arrest. After return to the Police Station, the case property was deposited with MHC Karam Kumar rt alongwith the samples and the NCB form. On 1.10.2007, Special Report (Ex.PG) was sent to the Superintendent of Police, Shimla. During investigation, it was found that accused Sunil Shah was aware that accused Narinder Singh was carrying Charas in the bag.
12. HHC Kulbhushan and Constable Ramesh Kumar have tried to corroborate the version of this witness.
13. Conscious of the fact that if the testimonies of the police officials are otherwise found to be inspiring in confidence, then simply became an independent witness has not supported the prosecution, accused cannot be let off. It is also a settled principle of law that the factum of recovery of the contraband substance from the conscious ::: Downloaded on - 15/04/2017 20:22:26 :::HCHP ...9...
possession of the accused has to be established by the prosecution beyond reasonable doubt. Then alone would the rigors of Section 35 of the Act apply. But how does .
the prosecution establish such fact, by leading cogent, consistent and clear evidence of recovery.
14. On first brush, testimonies of HHC Kulbhushan, Constable Ramesh Kumar and SI Sher Singh of appear to be inspiring in confidence, but then closure scrutiny only renders it not to be so. None of the police rt officials has deposed that accused Sunil Shah was aware that either accused Narinder singh was carrying the contraband substance or dealing with the same. It is not their specific case that Sunil Shah was a co-conspirator. In fact that also is not the charge framed by the Court below.
15. Contradictions, which have emerged in the testimonies of the police officials, go to the root of the case; shakes the foundation of the prosecution case; renders the testimonies of the police officials to be unbelievable and the witnesses to be unreliable. The contradictions are material and fatal. If Sunil Shah was a conspirator, then why is it that in the Rukka and the Memo (Ex.PA), SI Sher Singh wrote word "Doshi" and not ::: Downloaded on - 15/04/2017 20:22:26 :::HCHP ...10...
"Doshigan". The word is used in singular and not plural.
Why is it that no memo of search was served upon accused Sunil Shah or his consent obtained? This renders .
the genesis of the prosecution story of accused Sunil Shah being involved in the crime to be false. What was the basis on which accused Sunil Shah made an accused by SI Sher Singh, remains a secret, for none of the of documents, with regard to search and seizure operations, either makes reference of or contains signatures of Sunil Shah.
16. rtSignificantly, none of the witnesses has deposed anything against accused Sunil Shah, for it stands admitted by Kulbhushan that "Accused Sunil Shah had told us that he knew nothing about the charas".
17. Thus the genesis of the prosecution story appears to be false.
18. Further, according to SI Sher Singh, all the documents were prepared on the spot. NCB form, according to this witness, was also filled up on the spot. He is categorical that Constable Ramesh Kumar carried the Rukka to the Police Station and after registration of the FIR came to the spot. Obviously, it is only thereafter that the number of the FIR could have been recorded on ::: Downloaded on - 15/04/2017 20:22:26 :::HCHP ...11...
the NCB form. But then, this witness is telling blatant lies, for according to the Ramesh Kumar, he never returned to the spot. Obviously, the file must have been .
handed over in the Police Station. But, the contradiction does not end here. HHC Kulbhushan wants the Court to believe that Constable Ramesh Kumar left for the Police Station in a private motor vehicle, whereas according to of Ramesh Kumar it was in a Bus. Now, bus is definitely not a private motor vehicle. We find there are contradictions rt in the testimony of the police officials with regard to the number of the vehicles checked, and the place where the search and seizure operations conducted. Whether it was Fadiz Pull or Gumma, is evidently not clear.
19. SI Sher Singh wants the Court to believe that all Memos were prepared and written by him, but then contradicts his own version by admitting that Memos (Ex.PA and PD) are not in his hand. To explain this, he states that they were authored under his dictation, but by whom he does not state.
20. Further, according to HHC Kulbhushan and Constable Ramesh Kumar, police was carrying weights of 1 kg, 500g, 20g and 5g, whereas SI Sher Singh also adds weight of 50g. Now, it is not the case of the prosecution ::: Downloaded on - 15/04/2017 20:22:26 :::HCHP ...12...
that police party was carrying the weights. SI Sher Singh admits the same to have been purchased from M/s Sewa Ram Daya Sagar vide Bill (Ex.DC) Now, in the Bill there is .
no reference of weight less than 50 grams. If that be so, then how is it that two samples of 25 grams each were drawn, for it is not the case of the police that first one sample of 50 grams was drawn and then it was divided of into two equal parts, weighed and then packed and sealed.
21. rt Also there is tampering of record, with regard to the Special Report sent to the Superior Officer. Contraband substance was recovered on 30.9.2007 and the document (Ex.PG) sent to the office of Superintendent of Police, Shimla, records the endorsement to be that of 1.9.2007. It is not a typographical error. If the recovery stood effected on 30.9.2007, then how is it that the endorsement is of 1.9.2007.
22. Hence, from the material placed on record, prosecution has failed to establish that the accused are guilty of having committed the offence, they have been charged with. The circumstances cannot be said to have been proved by unbroken chain of unimpeachable ::: Downloaded on - 15/04/2017 20:22:26 :::HCHP ...13...
testimony of the prosecution witnesses. The guilt of the accused does not stand proved beyond reasonable doubt to the hilt. The chain of events does not stand .
conclusively established, leading only to one conclusion, i.e. guilt of the accused. Circumstances when cumulatively considered do not fully establish completion of chain of events, indicating to the guilt of the accused of and no other hypothesis other than the same.
23. Hence, it cannot be said that prosecution has rt been able to prove its case, by leading clear, cogent, convincing and reliable piece of evidence so as to prove that the accused were found in conscious and exclusive possession of Charas.
24. For all the aforesaid reasons, we find no reason to interfere with the judgment passed by the trial Court. The Court has fully appreciated the evidence so placed on record by the parties.
25. The accused have had the advantage of having been acquitted by the Court below. Keeping in view the ratio of law laid down by the Apex Court in Mohammed Ankoos and others versus Public Prosecutor, High Court of Andhra Pradesh, Hyderabad (2010) 1 SCC 94, it cannot be said that the Court below has not ::: Downloaded on - 15/04/2017 20:22:26 :::HCHP ...14...
correctly appreciated the evidence on record or that acquittal of the accused has resulted into travesty of justice. No ground for interference is called for. The .
present appeal is dismissed. Bail bonds, if any, furnished by the accused are discharged.
Appeal stands disposed of, so also pending application(s), if any.
of ( Sanjay Karol ), Judge.
rt ( Ajay Mohan Goel ),
May 17, 2016(sd) Judge.
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