Himachal Pradesh High Court
State Of Himachal Pradesh vs Nand Lal on 14 March, 2018
Bench: Dharam Chand Chaudhary, Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Criminal Appeal No. 215 of 2012 .
Reserved on: 05.03.2018 Decided on: 14.03.2018 ___________________________________________________ State of Himachal Pradesh. ....Appellant.
Versus
Nand Lal ....Respondent
Coram:
The Hon'ble Mr. Justice Dharam Chand Chaudhary, Judge. The Hon'ble Mr. Justice Vivek Singh Thakur, Judge. Whether approved for reporting?1 ____________________________________________________________ For the Appellant: Mr.M.A. Khan & Mr.Virender Verma, Additional Advocate General.
For the respondent: Mr.N.S. Chandel, Advocate.
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Vivek Singh Thakur , Judge State has preferred present appeal against judgment dated 8.12.2011 passed by Special Judge, Kullu, H.P. in Sessions Trial No. 46 of 2010 dated 12.9.2010 under Section 18 of Narcotic Drugs and Psychotropic Substances Act, 1985 (for short NDPS Act), registered at Police Station Bhuntar, District Kullu, H.P., vide which respondent stands acquitted.
2. Prosecution case is that on 12.9.2010, PW-13 ASI Ram Lal along with PW-7 Constable Dhameshar Singh, PW-8 LHC Narpat and other police officials LHC Kishori Lal, Constable Subhash, Constable Jitender and Constable Kashmir Singh, being members of Special Investigation Team (SIT), had set up a naka at place Bhadyoli on a road 1 Whether reporters of Local Papers may be allowed to see the judgment? yes ::: Downloaded on - 16/03/2018 23:24:22 :::HCHP ...2... Cr. Appeal No. 215 of 2012 from Hurla to Bhadyoli. At about 12.30 P.M. respondent was seen by police party coming down from hill side with a rucksack bag with him, .
who tried to escape from the spot on noticing police party, which raised suspicion of having in his possession some stolen or illegal articles and therefore, he was nabbed by police party. As the place was secluded one and no independent witness was available, PW-13 ASI Ram Lal associated PW-8 LHC Narpat Ram and PW LHC Kishori Lal (not examined) as witnesses in the investigation.
r On inquiry, respondent disclosed his name and address. After giving search of police officials to the accused vide memo Ex. PW-7/A, bag being carried by respondent was searched in which two polythene packets, containing black and brown colour substance, were found and the substance so found, on the basis of experience, was suspected as opium. On weighing with the help of scale available in kit of I.O., recovered contraband was found to be 5 Kilograms. Thereafter opium was repacked in the same manner and was kept in rucksack bag, which was sealed in a cloth parcel Ex. P-
1. NCB form in triplicate was filled and facsimile of seal 'S' was taken on the said form and also as sample, on separate piece of cloth. Seal was handed over to PW-8 LHC Narpat and case property was taken into possession vide seizure memo Ex. PW-8/A. Thereafter rucka Ex. PW- 7/B (which is also marked as Ex. PW-13/A) was prepared and sent to Police Station, Bhunter through PW-7 Constable Dhameshwar Singh, who after registration of FIR Ex. PW-1/A came back on the spot alongwith case file and handed over the same to PW-13 at about 5:00 P.M. In the meanwhile, spot map Ex. PW-13/B was prepared and ::: Downloaded on - 16/03/2018 23:24:22 :::HCHP ...3... Cr. Appeal No. 215 of 2012 statements of witnesses were recorded. Respondent was arrested at about 4:00 P.M. vide arrest memo Ex. PW-8/C and his personal search .
was conducted and articles in his possession were taken into possession vide seizure memo Ex. PW-8/D. Thereafter accused and case property was brought to Police Station and case property was handed over to PW-4 SI/SHO Narayan Singh, who resealed the case property with seal 'T' and filled columns 9, 10 and 11 of NCB Form Ex. PW-4/B and affixed seal 'T' on this and also took specimen seal impression of seal 'T' on piece of cloth Ex. PW-4/A. Thereafter case property along with other documents was handed over to PW-1 H.C. Chaman Lal who was officiating as MHC on that day.
3. Case file was handed over to PW-4 SI/SHO Narayan Singh by PW-13 ASI Ram Lal on 12.9.2010 where after, on 13.9.2010, PW-4 SI/SHO Narayan Singh entrusted investigation to PW-6 ASI Jaspal Singh, who delivered special report Ex. PW-2/A in the office of Dy.S.P. Headquarter at about 5:00 P.M. on the very same day and thereafter, as directed by PW-4 SI/SHO Narayan Singh, on 15.9.2010, he handed over case file to PW-1 Head Constable Chaman Lal. Case was also partly investigated by PW-10 ASI Naresh Chand by recording statements of PW-1 Head Constable Chaman Lal, PW-2 Head Constable Nirat Singh, PW-4 SI Narayan Singh, PW-9 Constable Hitesh Kumar and PW-11 MHC Tara Chand. He also obtained abstracts of malkhana register and R.C. register from MHC and abstract of register from Reader of Dy.S.P.
4. On receiving special report Ex. PW-2/A, Dy.S.P. Headquarter, Kullu, made endorsement Ex. PW-3/A upon it and it was ::: Downloaded on - 16/03/2018 23:24:22 :::HCHP ...4... Cr. Appeal No. 215 of 2012 entered in the register. Extract of register is Ex. PW-2/C. Recovered contraband was sent to State FSL, Junga through Constable Om .
Parkash No. 262 on 15.9.2010 along with all documents required for the same vide RC No. 89/10, however, the said Om Parkash deposited the case property back with MHC on 17.9.2010 as it was not accepted in FSL Junga for the reason that sample of seal 'T' was not there with the parcel. It was found that sample of seal 'T' was left in the malkhana. Thereafter, on 17.9.2010, PW-11 H.C. Tara Chand again sent the case property to State FSL, Junga vide RC No. 91/10, Ex. PW-11/C, docket No. 3560/5A, Ex. PW-11/B, through Constable Hitesh Kumar, who after depositing the case property with FSL, Junga, deposited RC with MHC PW-11 H.C. Tara Chand having endorsement thereupon regarding receipt of contraband in FSL. After receiving report from State FSL, Junga, on finding prima facie case against respondent, challan under Section 18 of NDPS Act was prepared by PW-4 SHO Narayan Singh and presented in the Court. On conclusion of trial, respondent was acquitted by Learned Special Judge on the ground that there are material contradictions in evidence led by prosecution, which renders presence of police party on spot doubtful and also holding that case property never remained in proper and safe custody. The said acquittal is under challenge in instant appeal.
5. We have heard learned counsel for parties and have also perused record of the case.
6. Prosecution has examined 13 witnesses to prove its case. In statement of respondent recorded under Section 313 Cr.P.C., he has ::: Downloaded on - 16/03/2018 23:24:22 :::HCHP ...5... Cr. Appeal No. 215 of 2012 pleaded that on 12.9.2010, he was returning after his check up from doctor and as he was not feeling well, he was taking rest near Panarsa .
Bridge near apple boxes stacked there and on finding an unclaimed bag at that place, police party had enquired him about it but despite his denial to ownership of the said bag, he was taken to Police Station on suspicion and case was registered against him as nobody else was found nearby on the spot. Respondent has not preferred to lead any evidence in defence.r
7. During trial case was fixed for recording prosecution evidence on 1.4.2011 and 2.4.2011 and four prosecution witnesses were examined on 1.4.2011, however on 2.4.2011, out of 5 summoned witnesses, only 1 PW Constable Dhameshwar Singh was present, but he was not examined, as request of learned Public Prosecutor for adjournment on behalf of all prosecution witnesses summoned for that day including Constable Dhameshwar Singh was accepted by the trial Court and case was fixed for 31st May, 2011 for examining all remaining prosecution witnesses. During intervening period, PW-6 Narayan Singh filed a supplementary challan on 10.5.2011, which was ordered to be listed on 31.5.2011 for report after clerical scrutiny. Along with supplementary challan DDR No. 65 dated 7.9.2010 pertaining to departure of SIT from Police Station Sadar, Mandi, DDR No. 4 dated 15.9.2010 and DDR No. 8 dated 17.9.2010 of Police Station Bhunter, RC No. 89/10 dated 15.9.2010, docket letter No. 3560/5/A dated 15.9.2010, RC No. 91/10 dated 17.9.2010 and docket No. 3586/5/A dated 17.9.2010 were placed on record with list of 7 witnesses proposed to be ::: Downloaded on - 16/03/2018 23:24:22 :::HCHP ...6... Cr. Appeal No. 215 of 2012 examined to prove these documents and contents thereof. After filing of supplementary challan, PW-3 Constable Lal Singh and PW-4 SHO .
Narayan Singh were re-examined in relation to documents placed on Court file along with supplementary challan.
8. PW-5 Constable Roshan Lal proved DDR No. 65 Ex.PW-5/A dated 7.9.2010 of Police Station, Sadar Mandi, which was recorded by him under directions of Inspector Surender Pal. He verified this report to be correct as per record brought by him.
r In cross-examination, he admitted that as per his record there was no entry qua arrival of police party in Police Station on 12.9.2010 and 13.9.2010 against entry Ex. PW-5/A. However he clarified that entry qua arrival of police party had been made in some other case and he also admitted that prior to that police party had not arrived in Police Station in this case. He denied the manipulation of entry qua departure of police party and also denied that for that reason only entry qua arrival had not been made in the register. Perusal of document Ex. PW-5/A reveals that it was a Special Investigating Team headed by ASI Ram Lal, which left Police Station Sadar District Mandi on 7.9.2010 for detection of crime in Mandi and Kullu Districts. It has also come in evidence that police party had visited various places including Anni, Bajora etc. and respondent was apprehended at Bhadyoli in district Kullu, a place situated in jurisdiction of Police Station Bhunter and for this reason only PW-7 had taken rucka from the spot to Police Station Bhunter only and also PW-13 ASI Ram Lal had gone to Police Station Bhunter and handed over case file and case property to PW-4 SI/SHO Narayan Singh on 12.9.2010 and on that ::: Downloaded on - 16/03/2018 23:24:22 :::HCHP ...7... Cr. Appeal No. 215 of 2012 day police party had not returned to Police Station Sadar Mandi. Therefore, there was no occasion for having such entry in DDR .
regarding arrival of police party in Police Station Sadar Mandi on 12.9.2010 or on 13.9.2010 in connection with present case or against departure entry Ex. PW-5/A.
9. On 12.9.2010, in absence of regular MHC PW-11 Tara Chand, PW-1 H.C. Chaman Lal was officiating as MHC-cum-CHO in Police Station Bhunter, who on receiving rucka at about 3:15 P.M. on that date through PW-7 Constable Dhameshwar, recorded FIR Ex. PW- 1/A, made endorsement Ex. PW-1/B on rucka, prepared case file and handed over the same to PW-7 constable Dhameshwar. On the same day at about 6:45 P.M., he received case property i.e. a cloth parcel sealed with 12 seals of 'S' and re-sealed with 12 seals of 'T' along with specimen samples of these seals and NCB form in triplicate and entered the said case property, deposited with him, at Sr. No. 124 of register No. 19, abstract of which Ex. PW-1/C was verified to be correct as per record, brought by him in the Court. In his cross-examination, nothing, impeaching his veracity, could be elucidated.
10. PW-6 ASI Jaspal Singh prepared Special Report Ex. PW-2/A and delivered it in the office of Dy.S.P. Headquarter on 13.9.2010 at about 5:00 P.M. He stated that contents of the said report Ex. PW-2/A were properly verified by him before its submission.
11. PW-2 H.C. Nirat Singh was Reader to Dy.S.P. Headquarter Kullu at relevant point of time, who corroborated receipt of special report on 13.9.2010 by Dy.S.P. Headquarter Sh.Ram Lal Bansal who had ::: Downloaded on - 16/03/2018 23:24:22 :::HCHP ...8... Cr. Appeal No. 215 of 2012 handed over Special Report Ex. PW-2/A to him after making his endorsement Ex. PW-2/B thereupon which was entered in the relevant .
register at Sr. No. 60, and abstract of which Ex. PW-2/C was found to be correct as per original record brought by him in the Court. He also identified signatures and handwriting of Dy.S.P. Sh.Ram Lal Bansal, with whom he had worked. In cross-examination he denied suggestion disputing handing over Special Report, making endorsement thereupon and entry of the same in relevant register and also that all entries, in the register, were manipulated later.
12. Recovered contraband was sent for chemical examination to State Forensic Laboratory, Junga and as per chemical analysis report Ex. PA, contraband in question was found to be sample of opium.
13. To prove movement of recovered contraband from Malkhana to FSL Junga and return thereof along with chemical analysis report, prosecution has examined PW-3 Constable Lal Singh, PW-9 Constable Hitesh, PW-11 H.C. Tara Chand and PW-12 Constable Om Parkash.
14. According to prosecution case PW-11 H.C. Tara Chand handed over the case property along with documents vide RC No. 89 of 2010 Ex. PW-11/A and docket No. 3560/5/A dated 15.9.2010 Ex. PW- 11/B to PW-12 Constable Om Parkash for depositing the same in FSL Junga. Departure of PW-12 Constable Om Parkash was also recorded in daily station diary vide DD entry No. 4(A) dated 15.9.2010 (Ex. PW- 3/B) at 4:00 A.M. As per statement of PW-12 Constable Om Parkash, he could not reach Junga before 5:00 P.M. on that day because of blockade of road due to heavy rain and could not deposit the case property in ::: Downloaded on - 16/03/2018 23:24:22 :::HCHP ...9... Cr. Appeal No. 215 of 2012 State Forensic Laboratory on that date and thus he stayed in premises of 1st Battalion of H.P. Police at Junga and next day i.e. on 16.9.2010 he .
produced the case property in FSL Junga for depositing, but at that time Assistant Chemical Examiner, on finding that sample of resealing seal 'T' was not with case property and documents sent with it, endorsed his objection in writing on Ex. PW-11/B and returned the case property with request to send it along with sample of seal 'T', whereupon PW-12 constable Om Parkash returned back and on reaching Police Station Bhunter on 17.9.2010 at 8.30 A.M., deposited the case property along with objection of State FSL in Police Station regarding which DD entry No. 8(A) dated 17.9.2010 Ex. PW-3/C (also exhibited as Ex. PW-11/F) was recorded in daily station diary of Police Station, Bhunter.
15. PW-11 H.C. Tara Chand, on searching, found the sample of seal 'T' lying in malkhana at a place wherefrom case property was picked up for handing over it to PW-12 Constable Om Parkash. Thereafter on the same day i.e. on 17.9.2010, case property with complete documents was handed over to PW-9 Constable Hitesh Kumar vide RC No. 91/10 dated 17.9.2010 Ex. PW-11/C along with docket No. 3560/5/A Ex. PW- 4/D, who deposited the same in State FSL, Junga on the very same day against receipt Ex. PW-11/E obtained on road certificate and returned the road certificate to PW-11 H.C. Tara Chand on 18.9.2010.
16. As per entry in register No. 19 at Sr. No. 124, abstract of which is Ex. PW-1/C, case property was handed over to PW-9 Constable Hitesh Kumar on 17.9.2010 for depositing in State FSL Junga for chemical examination vide RC No. 91/10 dated 17.9.2010 and on ::: Downloaded on - 16/03/2018 23:24:22 :::HCHP ...10... Cr. Appeal No. 215 of 2012 8.10.2010 Constable Hitesh Kumar brought case property back, sealed with 7 seals of FSL and deposited the same in malkhana. Though .
corresponding daily diary reports Ex. PW-3/B and Ex. PW-3/C have been placed on record by filing supplementary challan, but there is no entry with regard to handing over of case property to PW-12 Constable Om Parkash on 15.9.2010 and also deposit of the same by him in malkhana on 17.9.2010.
17. Statement of PW-11 MHC Tara Chand under Section 161 Cr.P.C. was recorded twice. First statement Ex. DB was recorded on 9.10.2010, whereas supplementary statement Mark-Z was recorded on 2.4.2011. In his cross-examination Ex. DB has been referred as supplementary statement but on record, Ex. DB is first statement of PW- 11 recorded under Section 161 Cr.P.C. He admitted that in his statement Ex. DB, he had not mentioned about correction and deletion of entry in NCB form. In his statement Ex. DB he had narrated only about sending case property along with documents to State FSL, Junga on 17.9.2010 through Constable Hitesh Kumar and there was no reference of sending contraband for chemical examination through Constable PW- 12 Constable Om Parkash on 15.9.2010, however, the said facts were recorded in his supplementary statement recorded on 2.4.2011, brought on record with supplementary challan filed during pendency of trial, on the basis of which PW-11 deposed in Court about sending contraband through PW-12 Constable Om Parkash on 15.9.2010 and receipt thereof on 17.9.2010.
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18. In NCB form Ex. PW-4/B, in column No. 12, date of dispatch and RC number has been re-written after erasing some date and number .
already mentioned thereon. This fact has also been relied upon by defence to raise suspicion about fair investigation. PW-11 MHC Tara Chand in his statement stated that on 15.9.2010, at the time of sending case property through PW-12 Constable Om Parkash, RC No. 89/10 dated 15.9.2010 was mentioned on NCB Form, but at the time of re- sending the same through PW-9 Constable Hitesh, RC No. and date was erased by him and it was re-written as RC No. 91/10 dated 17.9.2010. In cross-examination, he further admitted that column No. 12 of NCB form was filled at the time when case property was sent to FSL, Junga. He clarified that entry against column No. 12 was erased under bonafide belief that the Form was to be sent again with new RC number on it.
19. In view of evidence on record, erasing and re-writing of RC number and date against column No. 12 on NCB form Ex. PW-4/B stands satisfactorily explained and therefore, plea of defence to reject the case of prosecution on this ground is not sustainable more particularly when no prejudice, on this count, caused to respondent, has been demonstrated. In docket No. 3560/5/A Ex. PW-11/B, there is endorsement by Assistant Chemical Examiner raising objection that sample seal of re-seal 'T' was not annexed with docket. There is not even a single word put to any relevant witness disputing the endorsement of Assistant Chemical Examiner on Ex. PW-11/B.
20. There is overwriting in docket Ex. PW-11/B with respect to number of sample seals enclosed with it, which stands clarified by PW- ::: Downloaded on - 16/03/2018 23:24:22 :::HCHP
...12... Cr. Appeal No. 215 of 2012 11 MHC Tara Chand by stating that document Ex. PW-11/B was sent with case property to State FSL, Junga and since one sample of seal .
was not found enclosed with case property, cutting was made in FSL and thereafter Ex. PW-11/B was received back in Police Station, which is a reasonable explanation appearing to be true.
21. At the time of production of case property in the Court, all the seals including seals of FSL, were found intact and nothing has been brought on record either in cross-examination or otherwise in defence so as to establish or even indicate that seals affixed on case property were ever tampered with, resulting into replacing/tempering with recovered contraband.
22. So far as filing of supplementary challan placing additional documents, on record with list of witnesses to prove these documents, is concerned, same is permissible under law, unless the documents placed on record with supplementary challan appears to be doubtful, such documents, subject to proving them in accordance with law, can always be taken into consideration for deciding the case. In present case the investigating officer was empowered to file supplementary challan and documents placed on record with supplementary challan have been duly proved by leading cogent and reliable evidence.
23. Depositing case property in Police Station Bhunter, sending the same to State Forensic Laboratory, Junga and return thereof after chemical analyses, is duly proved. However, whether it was recovered from respondent or not is to be decided on the basis of assessment of ::: Downloaded on - 16/03/2018 23:24:22 :::HCHP ...13... Cr. Appeal No. 215 of 2012 evidence of PW-7 Constable Dhameshwar Singh, PW-8 LHC Narpat and PW-13 ASI Ram Lal in the light material on record.
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24. There were 7 police officials on the spot, out of them only 3 witnesses, i.e. PW-7 Dhameshwar Singh, PW-8 Narpat and PW-13 ASI Ram Lal have been examined in the Court. Claiming the place to be secluded one, no independent witness was associated, but PW-8 LHC Narpat and PW Kishori Lal (not examined) were associated by PW-13 ASI Ram Lal in search and seizure proceedings. It is settled that joining of independent witness is necessary for Investigating Officer, as provision for joining independent witness is not mere formality but a fundamental safe guard, provided to a citizen to have fair and impartial investigation. But at the same time, it is also settled that in cases where it was almost impossible to associate an independent witness on the spot, search and seizure can be conducted without independent witness, but on establishing that no independent witness was either available or ready to be associated in proceedings, despite request made to such person.
25. Credibility of official witnesses is not to be doubted out rightly on the ground that no independent witness was associated, rather conviction can be based upon reasonable and cogent testimony of official witnesses, but subject to minute and careful scrutiny of their evidence, so as to rule out infringement of right of a citizen. It is also settled that minor contradictions/ improvements/embellishments which are trivial in nature and do not have effect on genesis of prosecution ::: Downloaded on - 16/03/2018 23:24:22 :::HCHP ...14... Cr. Appeal No. 215 of 2012 story cannot be made basis to reject the testimony of prosecution witnesses.
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26. Defect in investigation or lapse on the part of Investigating Officer in preparation of challan and recording evidence of witnesses cannot be made basis for acquittal, unless it shakes the veracity of prosecution story and/or prejudice caused to the accused is established on record. The witnesses cannot be expected to remember minute details at the time of examination in Court after considerable lapse of time, however, at the same time details which are supposed to be remembered in normal circumstances cannot be avoided by the witnesses in their deposition in the Court, so as to escape from possible material contradictions in story put forward by the prosecution bound to occur for incorporation of facts other than the reality. In the light of aforesaid principles testimony of spot witnesses is to be evaluated.
27. PW-7, PW-8 and PW-13 have re-iterated the prosecution story of putting naka at Bhadyoli at about 11:00 A.M, noticing respondent at 12:30 P.M. coming on the road from upper side carrying a rucksack on his shoulder, his abnormal turning back in attempt to escape on seeing police party followed by apprehending him on suspicion after chasing for a distance of 20 meters and on inquiry, disclosure of his name by him as Nand Lal, S/o Dhani Ram. According to these witnesses, spot was secluded place, no independent witness was available and therefore, PW-8 LHC Narpat and PW Kishori Lal were associated by PW-13 ASI Ram Lal in proceedings and after giving personal search of police officials to respondent and preparing memo Ex. PW-7/A in this regard, ::: Downloaded on - 16/03/2018 23:24:22 :::HCHP ...15... Cr. Appeal No. 215 of 2012 bag of respondent was checked, wherein a polythene envelope with print Punjab Cloth House was found and inside the said bag two polythene .
envelopes having liquid substance, on the basis of smell and experience by Investigating Officer suspected to be opium, was found and on weighing the said substance was found to be 4+1=5 Kilograms, which was again put in rucksack and rucksack was sealed in cloth parcel with seal 'T' and sample of seal was taken on cloth piece and NCB form in triplicate was filled on the spot and facsimile of seal 'S' was put on NCB form and seal was handed over to PW-8 LHC Narpat, whereafter recovery memo Ex. PW-7/B was prepared and memo, cloth parcel, sample seals were signed by respondent and witnesses. Copy of seizure memo was supplied to respondent free of cost. Thereafter rucka was prepared and handed over to PW-7, who took it to Police Station, Bhunter and after registration of FIR, brought the case file on the spot at about 5:00 P.M. In the meantime, vide memo Ex. PW-8/C, respondent was informed about his arrest at about 4:00 P.M. for having to be found in possession of 5 Kilograms opium and information of his arrest as desired by respondent, was conveyed to his brother Dabe Ram on his mobile phone No. 9817259673. At the time of arrest, personal search (Jama Talashi) of respondent was also conducted and memo Ex. PW- 8/D was prepared in this regard. After recording statements of witnesses on spot, respondent and case property along with documents was handed over to PW-4 Narayan Singh, SHO in Police Station Bhunter.
28. Defence put forth by respondent is that he was not in good health in those days and during return from Panarsa after taking ::: Downloaded on - 16/03/2018 23:24:22 :::HCHP ...16... Cr. Appeal No. 215 of 2012 medicines he was resting for a while on Panarsa Bridge near apple boxes stacked there and in the meanwhile police officials reached there .
and found an unclaimed bag on apple boxes and for the reason that there was none except respondent on that place, police took him to Police Station and planted present case against him.
29. In support of his defence plea, respondent has relied upon prescription slip recovered from him during personal search, mentioned in personal search memo Ex. PW-8/D. r It is submitted on behalf of respondent that prosecution has deliberately withheld the said prescription slip from bringing the same on record and therefore, adverse inference be drawn against the State, as the slip should have revealed the reality of case. Ex. PW-8/D is personal search memo of respondent, wherein recovery of treatment slip of PHC Bunter is mentioned at Sr. No. 6 of the articles found in person of respondent at the time of arrest. Though PW-8 LHC Narpat Ram denied recovery of such slip from the person of respondent at the time of personal search, however, PW-13 ASI Ram Lal Investigating Officer has not only mentioned recovery of treatment slip during personal search of respondent in arrest memo Ex. PW-8/D, but also admitted the recovery of same in his cross- examination.
30. Police Party was a Special Investigating Team constituted for detecting crime having its Headquarter at Mandi. As per prosecution story, the team firstly visited Ani and thereafter traveling for five hours, on 12.9.2010, reached on the spot. According to PW-7 they had gone to Ani on 8.9.2010 and on the spot on 12.9.2010. PW-8 stated that they ::: Downloaded on - 16/03/2018 23:24:22 :::HCHP ...17... Cr. Appeal No. 215 of 2012 had gone to Ani on 10th or 11th September, 2010 and had left Ani on 12.9.2010 at 5:00 A.M. in the morning and reached on the spot at 11:00 .
A.M. Whereas PW-13 stated that they had gone to Ani on 9/10.9.2010 and stayed at Ani up to 11.9.2010, but he remained silent as to where they stayed on 11.9.2010. According to him police party left Ani on 11.9.2010. According to PW-7 and PW-8, they had come from Ani on 12.9.2010.
31. PW-7 stated that from 8th to 11th September, 2010 they remained in Ani area, but he did not remember the names of places since he had gone in that area for the first time and during night they stayed in hotels, but he could not remember names of hotels and he also did not remember as to whether they visited Police Station, Ani or not. Even if it is presumed to be true that he did not notice the names of hotels, even then visiting of Police Station is not such a fact, which could not be remembered by a police official, member of Special Investigating Team.
32. Contrary to him, PW-8 claimed that police party remained in Ani and stayed in a hotel, as against the claim of PW-7 that they stayed in hotels. PW-8 and PW-13 also did not remember the name of hotel. Interestingly PW-13 claimed to have made the payments in hotel, but did not keep bills and details thereof and also did not remember how much amount was paid.
33. PW-7 did not remember as to whether they come via Shimla, Karsog or Jalori. PW-7 is resident of Himachal Pradesh serving in Police Department of Himachal Pradesh and member of SIT and Shimla, ::: Downloaded on - 16/03/2018 23:24:22 :::HCHP ...18... Cr. Appeal No. 215 of 2012 Karsog or Jalori are not insignificant places, but are well known places located in three different distinguishable directions, even known to an .
illiterate person, what to say about a person serving in Police Department, member of Special Investigating Team.
34. PW-7 stated that memos were prepared by Investigating Officer. In later part of his cross-examination he also stated that he could not tell about the scribe of documents. His statement is not only self contradictory, but also contrary to the statement of PW-13 Investigating Officer, who stated that documents were prepared by LHC Kishori Lal (not examined) under his dictation.
35. Prosecution case is and as also deposed by PW-8 and PW- 13 that cloth parcel after seizure of contraband was stitched and sealed on the spot, whereas PW-7 did not remember as to whether the parcel was stitched on the spot or not. According to PW-8 cloth parcel was prepared on the spot with the help of seizure, needle and thread brought by the Investigating Officer in his kit and preparation of cloth parcel is not a minute thing which could not have been noticed by PW-7.
36. There is another flaw in prosecution evidence as when parcel was shown to PW-8 in the Court, he admitted that the same was found to be stitched on two sides with sewing machine and with hand only on one side, indicating that the said parcel was prepared with the help of sewing machine, which could be possible only in the shop of a tailor but not on spot as there was no tailor available on the spot. It also falsified the story of prosecution regarding preparation of cloth parcel and seizure of contraband on the spot.
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37. PW-7 stated that they had laid naka at one or two places while coming to the spot, but did not remember the names of those .
places and also as to how many vehicles were checked in those naka and how much time was spent at those nakas. Whereas PW-8 stated that they came to the spot from Ani without laying any other naka on the way
38. According to PW-7, PW-13 had tried to associate independent witnesses from here and there, but he did not remember the time taken by PW-13 to find out independent witnesses, but he stated with certainty that efforts to associate independent witnesses were made. Whereas, PW-8 deposed in clear terms that no efforts were made to associate independent witnesses by any of the police officials. Also PW-13 stated that no police personal was deputed to bring independent witnesses, since no village was noticed by them nearby the spot.
39. Seizure memo Ex. PW-8/A is claimed to have been prepared after recovery of contraband from respondent on the spot at 13:30 P.M. and his personal search is claimed to have been conducted at the time of his arrest at 4:00 P.M. by preparing personal search memo Ex. PW- 8/D. PW-8 and PW-13 during their cross-examination admitted the meaning of fard Jama Talashi, is memo of personal search. PW-13, though claimed it to have happened on account of mistake, but admitted that in the seizure memo of contraband memo of titled as fard Jama Talashi, i.e. memo of personal search and in its body also it is mentioned that personal search of respondent was conducted at 13:30 P.M. on the ::: Downloaded on - 16/03/2018 23:24:22 :::HCHP ...20... Cr. Appeal No. 215 of 2012 spot. Definitely it cannot be presumed that incharge of Special Investigating Team was not a naïve, but an experienced police officer .
and such mistake could not have happened if the documents been prepared in the manner in which things had taken place.
40. According to prosecution story, the Special Investigating Team had left Police Station, Mandi on 7.9.2010 at 9:55 P.M. after recording their departure vide daily station diary No. 65A Ex. PW-5/A. According to PW-7, they reached Ani on 7.9.2010. According to PW-8, they reached Ani on 10th or 11th September, 2010. Whereas according to PW-13, they reached Ani on 9th or 10th September, 2010. Apart from these contradictions, where the intervening time was spent by SIT is not on record.
41. The SIT was consisting of seven police officials including the Investigating Officer. Admittedly, they had travelled in a private Centro car bearing No. HP-33B-3300 owned and possessed by PW-13 Investigating Officer, who admitted that his car was registered for 4+1 occupants (4 passengers+driver). As per deposition of prosecution witnesses, the SIT reached on spot after 4-5 hours journey from Ani. How seven persons were managed such long journeys at a stretch in that car, also creates doubt about the veracity of prosecution story. PW- 7 in his cross-examination stated that 6-7 persons could sit in a car. Even if, it is to be accepted as possible by considering that four persons were adjusted on rear seat and two on front seat apart from driver, assuming that all these police officials were courageous and devoted having capacity to bear torture of performing such a long journeys in the ::: Downloaded on - 16/03/2018 23:24:22 :::HCHP ...21... Cr. Appeal No. 215 of 2012 car during their duty to detect the crime, even then there is no explanation on record that how the eighth person, i.e. the respondent .
was taken from the spot to Police Station. PW-7 Constable Dhameshwar Singh had left the spot with ruka to the Police Station, who according to prosecution case came back on the spot at 5:00 P.M. and thereafter all of them including respondent moved to Police Station. It creates doubt about truthfulness of prosecution story.
42. Testimony of these witnesses indicates that police officials were deliberately avoiding to answer specific details, required to be disclosed by them in order to establish their presence in various places including the spot, which reflected that reality was something else which has not been brought on record, but a cooked story suitable to the prosecution has been put forward.
43. Above discussed contradictions and discrepancies cannot be stated to be minor contradictions, particularly when there is no independent witness in the present case. It is also settled law that stringent the provisions of law, higher the degree of proof is required to be established on record. The cumulative effect of aforesaid contradictions and discrepancies renders the prosecution story highly doubtful. It appears that the things have not happened as has been claimed by prosecution and therefore, prosecution has failed to establish its onus to prove the guilt of respondent beyond reasonable doubt, as the veracity of spot witnesses examined by prosecution is under cloud. Prosecution has failed to lead cogent, reliable, trustworthy and convenience evidence, necessarily required, so as to convict a person. ::: Downloaded on - 16/03/2018 23:24:22 :::HCHP
...22... Cr. Appeal No. 215 of 2012
44. Moreover, respondent has advantage of having acquitted by the trial Court, fortifying presumption of innocence in his favour and the .
prosecution has failed to discharge its onus to point out sufficient evidence to rebut such presumption. Despite claimed recovery of 5 Kilograms of charas by Special Investigating Team, with heavy heart for the reasons stated herein above, this Court is constrained to uphold the judgment of learned trial Court acquitting the accused. The appeal is accordingly dismissed. Bail bonds, if any, furnished by or on behalf of respondent are discharged. Records of the Court below be sent back immediately.
(Dharam Chand Chaudhary) Judge.
(Vivek Singh Thakur) Judge 14th March, 2018 (KRS) ::: Downloaded on - 16/03/2018 23:24:22 :::HCHP