Himachal Pradesh High Court
Rakesh Kumar vs State Of Himachal Pradesh on 18 March, 2015
Author: Sanjay Karol
Bench: Sanjay Karol
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
.
Criminal Appeal No. 298 of 2014
Judgment Reserved on : 12.3.2015
Date of Decision : March 18 , 2015
Rakesh Kumar ...Appellant
r Versus
State of Himachal Pradesh ...Respondent
Coram:
The Hon'ble Mr. Justice Sanjay Karol, Judge
Whether approved for reporting? 1
Yes.
For the appellant : Mr. Anup Chitkara, Advocate, along with
Ms. Anshika Sood, Advocate, for the appellant.
For the respondent : Mr. R. S. Verma Additional Advocate General,
for the respondent-State.
Sanjay Karol, J.
Appellant-convict Rakesh Kumar has assailed the judgment dated 12.8.2014/13.8.2014, passed by learned Special Judge-I, Sirmaur District at Nahan, H.P., in Sessions Trial No. 26-ST/7 of 2013, titled as State of Himachal Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 17:48:03 :::HCHP 2Pradesh vs. Rakesh Kumar & another, whereby he stands convicted and sentenced to undergo rigorous imprisonment .
for a period of eight years and pay fine of `80,000/- in relation to an offence punishable under the provisions of Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act) and in default thereof, to further undergo simple imprisonment for a period of six months.
2. to In relation to an F.I.R. No. 8, dated 28.1.2013, registered at Police Station Rajgarh, Distt. Sirmaur, H.P., accused Rakesh Kumar (appellant herein) and co-accused Siya Ram were charged for having committed an offence punishable under the provisions of Section 20 of the Act.
Vide impugned judgment dated 12.8.2014/13.8.2014, trial Court convicted both the accused in relation to the charged offence for they were found possessing 885 grams of charas without any lawful authority and sentenced as aforesaid.
3. Convict Rakesh Kumar (appellant herein) as also convict Siya Ram (appellant in Cr. Appeal No. 341 of 2014) assailed the judgment by filing separate appeals, which were clubbed and heard together. However on 27th February, 2015, these appeals were delinked and Cr. Appeal ::: Downloaded on - 15/04/2017 17:48:03 :::HCHP 3 No. 341 of 2014 so filed by convict Siya Ram was disposed of vide separate judgment of that date. Without laying .
challenge to the findings returned by the trial Court, Siya Ram pleaded for reduction of quantum of sentence which, taking into account the overall attending circumstances, was so done. His sentence was reduced for a period of five years.
4. In the instant appeal, convict Rakesh Kumar lays challenge to the findings returned by the trial Court on a limited ground. It is alleged that since recovery was effected from the "pithoo" (knapsack) carried by pillion rider Sia Ram, appellant was not even aware of the contraband substance so carried by him. Thus conscious possession of the narcotic substance, by no stretch of imagination, can be attributed to the accused-appellant herein. Before dealing with the same, it would be only appropriate to first set out the prosecution case.
5. Conjoint reading of the testimonies of SI-Ankush Dogra (PW-9), Constables Vicky Kumar (PW-2) and Amit Kumar (PW-6) reveal the prosecution story.
6. On 28.1.2013 SI-Ankush Dogra, SHO of the concerned police station along with members of the police party was present at Sanora Chowk on traffic duty. At about ::: Downloaded on - 15/04/2017 17:48:03 :::HCHP 4 2.00 - 2.30 p.m., police party stopped a motor cycle bearing registration No. HR-09A-4279, driven by convict .
Rakesh Kumar on which co-convict Siya Ram was sitting as a pillion rider. Suspecting that they might be carrying some contraband substance, by associating two independent witnesses namely Kuldeep Sharma (PW-7) and Sunil Kumar (PW-8), after completing statutory formalities, accused were searched. From the bag carried by co-convict Siya Ram, charas like substance was recovered. The contraband substance was weighed and found to be 885 grams which was sealed with seal impression-T. NCB form (Ext.PW-9/B), in triplicate, were filed up on the spot and contraband substance seized vide memo (Ext. PW-9/B). Ruka (Ext. PW-
3/A) was sent for registration of case through Constable Amit Kumar (PW-6). Resultantly F.I.R. No. 8/2013, dated 28.1.2013 (Ext. PW-3/B) was registered against the accused under the provisions of Section 20 of the Act at Police Station Rajragh, Distt. Sirmaur, H.P. Accused were arrested on the spot. Necessary investigation was also conducted and completed on the spot. Case property along with the NCB forms was handed over to the MHC Purshotam (PW-5) who sent the parcel for chemical analysis to the State Forensic Science Laboratory, Junga through Constable Amit ::: Downloaded on - 15/04/2017 17:48:03 :::HCHP 5 Kumar (PW-6) and report (Ext.PX) received and taken on record. With the completion of investigation, challan was .
presented in the Court for trial.
7. In the instant case, independent witnesses namely Kuldeep Sharma (PW7) and Sh. Sunil Kumar (PW-8) have not supported the prosecution case.
8. Their Lordships of the Hon'ble Supreme Court in Ashok alias Dangra Jaiswal vs. State of Madhya Pradesh, (2011) 5 SCC 123 have held that seizure witnesses turning hostile may not be very significant by itself, as it is not an uncommon phenomenon in criminal trials, particularly in cases relating to NDPS Act.
9. Their Lordships of the Hon'ble Supreme Court in Yomeshbhai Pranshankar Bhatt vs. State of Gujarat, (2011) 6 SCC 312 have held that evidence of hostile witness may contain elements of truth and should not be entirely discarded. Their Lordships have held as under:
"22. The learned counsel for the appellant further submitted the doctor had not given his written opinion that the deceased was fit enough to give her statement. Though orally, the doctor said so. Relying on this part of the evidence especially the evidence of the husband of the deceased, the learned counsel for the appellant submitted that even though the husband may have been declared hostile, the law ::: Downloaded on - 15/04/2017 17:48:03 :::HCHP 6 relating to appreciation of evidence of hostile witnesses is not to completely discard the evidence .
given by them. This Court has held that even the evidence given by hostile witness may contain elements of truth.
23. This Court has held in State of U.P. vs. Chetram and others, AIR 1989 SC 1543, that merely because the witnesses have been declared hostile the entire evidence should not be brushed aside. [See para 13 at page 1548]. Similar view has been expressed by three-judge Bench of this Court in Khujji alias Surendra Tiwari vs. State of Madhya Pradesh, [AIR 1991 SC 1853]. At para 6, page 1857 of the report this Court speaking through Justice Ahmadi, as His Lordship then was, after referring to various judgments of this Court laid down that just because the witness turned hostile his entire evidence should not be washed out."
10. Their Lordships of the Hon'ble Supreme Court in Bhajju alias Karan Singh vs. State of Madhya Pradesh, (2012) 4 SCC 327 have held that evidence of hostile witnesses can also be relied upon by the prosecution to the extent to which it supports the prosecution version of the incident. Their Lordships have held as under:
"36. It is settled law that the evidence of hostile witnesses can also be relied upon by the prosecution to the extent to which it supports the prosecution version of the incident. The evidence of such witnesses cannot be treated as washed off the ::: Downloaded on - 15/04/2017 17:48:03 :::HCHP 7 records, it remains admissible in trial and there is no legal bar to base the conviction of the accused upon .
such testimony, if corroborated by other reliable evidence. Section 154 of the Act enables the Court, in its discretion, to permit the person, who calls a witness, to put any question to him which might be put in cross-examination by the adverse party.
37. The view that the evidence of the witness who has been called and cross-examined by the party with the leave of the court, cannot be believed or disbelieved in part and has to be excluded altogether, is not the correct exposition of law. The Courts may rely upon so much of the testimony which supports the case of the prosecution and is corroborated by other evidence. It is also now a settled cannon of criminal jurisprudence that the part which has been allowed to be cross-examined can also be relied upon by the prosecution. These principles have been encompassed in the judgments of this Court in the cases:
(a) Koli Lakhmanbhai Chanabhai v. State of Gujarat (1999) 8 SCC 624
(b) Prithi v. State of Haryana (2010) 8 SCC 536
(c) Sidhartha Vashisht @ Manu Sharma v. State (NCT of Delhi) (2010) 6 SCC 1
(d) Ramkrushna v. State of Maharashtra (2007) 13 SCC 525"
11. Their Lordships of the Hon'ble Supreme Court in Ramesh Harijan vs. State of Uttar Pradesh, (2012) 5 SCC 777 have again reiterated that any portion of evidence ::: Downloaded on - 15/04/2017 17:48:03 :::HCHP 8 consistent with case of prosecution or defence can be relied upon. Their Lordships have further held that .
seizure/recovery witnesses though turning hostile, but admitting their signatures/thumb impressions on recovery memo, they could be relied on by prosecution. Their Lordships have held as under:
"23. It is a settled legal proposition that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross examine him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent that their version is found to be dependable on a careful scrutiny thereof. (Vide: Bhagwan Singh v. The State of Haryana, AIR 1976 SC 202; Rabindra Kumar Dey v.
State of Orissa, AIR 1977 SC 170; Syad Akbar v. State of Karnataka, AIR 1979 SC 1848; and Khujji @ Surendra Tiwari v. State of Madhya Pradesh, AIR 1991 SC 1853).
24. In State of U.P. v. Ramesh Prasad Misra & Anr., AIR 1996 SC 2766, this Court held that evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or the accused but required to be subjected to close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence can be relied upon. A similar view has been reiterated by this Court in Balu Sonba Shinde v. State of Maharashtra, ::: Downloaded on - 15/04/2017 17:48:03 :::HCHP 9 (2002) 7 SCC 543; Gagan Kanojia & Anr. v. State of Punjab, (2006) 13 SCC 516; Radha Mohan Singh @ .
Lal Saheb & Ors. v. State of U.P., AIR 2006 SC 951;
Sarvesh Narain Shukla v. Daroga Singh & Ors., AIR 2008 SC 320; and Subbu Singh v. State by Public Prosecutor, (2009) 6 SCC 462. Thus, the law can be summarised to the effect that the evidence of a hostile witness cannot be discarded as a whole, and relevant parts thereof which are admissible in law, can be used by the prosecution or the defence. (See also: C. Muniappan & Ors. v. State of Tamil Nadu, AIR 2010 SC 3718; and Himanshu @ Chintu v. State (NCT of Delhi), (2011) 2 SCC 36)"
12. In my considered view, trial Court, based on the settled principles of law, has succinctly dealt with this aspect of the matter. These witnesses have admitted their signatures on the documents and their deposition in court appears to be false only to help the accused.
13. I need not deal with this aspect of the matter any further for the reason that otherwise I find the testimonies of police officials to be absolutely inspiring in confidence and the witnesses to be worthy of credence. There are no material contradictions, improvements and embellishments rendering the prosecution case to be doubtful. Even by way of link evidence, prosecution has been able to establish its case beyond reasonable doubt. Though not argued but also ::: Downloaded on - 15/04/2017 17:48:03 :::HCHP 10 it cannot be said two versions, through the testimonies of independent witnesses, have emerged on record.
.
14. Given thoughtful consideration and after due appreciation of the material on record, I find the findings qua guilt of the present appellant to be totally legal. They are neither erroneous nor perverse. In fact, they are borne out from the record, based on complete and proper appreciation of the testimonies of the witnesses.
15. At the time of recovery of the contraband substance three police officials were present on the spot, namely, SI-SHO Ankush Dogra (PW-9), Constable Vicky Kumar (PW-2) and HHC Ramesh Kumar (not examined). In one voice PW-9 and PW-2 have deposed that motorcycle bearing registration No. HR-09A-4279, driven by the present appeal was stopped by the police party. At that time, co-
convict Siya Ram was sitting as a pillion rider. Motor cycle was stopped and checked. In the presence of independent witnesses, "pithoo" carried by Siya Ram was also checked from which charas like substance was recovered. It be observed that both the accused hail from the very same district i.e. Kaithal (Haryana), a bordering state. Prosecution has been able to establish, beyond reasonable doubt, recovery of motor cycle so driven by appellant Rakesh ::: Downloaded on - 15/04/2017 17:48:03 :::HCHP 11 Kumar at Sanora Chowk, which is in tehsil Rajgarh, District Sirmaur, H.P., which fact is also not challenged here. In his .
statement under Section 313 Cr. P.C., so recorded during trial, appellant admits his presence at Rajgarh. His defence being false implication in the present case and police having obtained his signatures under pressure.
Significantly, despite initially expressing his desire of leading evidence in defence, appellant failed to do so.
16. It stands established by the police officials that appellant was driving the motor cycle at the time when it was stopped for checking by the police party and co-convict Siya Ram was sitting as a pillion rider. As already observed, appellant and the pillion rider, hailed from the same district.
It is not established on record that accused were strangers to each other. Why would appellant make Siya Ram sit on his motor cycle if he was not known to him and that too at a place distant from his home town, in a bordering State? For what work appellant had come to Rajgarh has not been explained by him. They were travelling on the motor cycle belonging to the appellant and not a public transport vehicle. Recovery was effected in his presence. Thus it is difficult to assume, which fact otherwise stands established, that the appellant was not aware of the fact that ::: Downloaded on - 15/04/2017 17:48:03 :::HCHP 12 contraband substance was being carried by Siya Ram. His conscious possession stands proved on record. Statutory .
presumption remains unrebutted. Also facts personal to the knowledge of the accused remains undisclosed.
17. In law, accused was duty bound, by leading some evidence, in prima facie establishing his defence and dispel the presumption, on the principles of preponderance of probabilities. In identical circumstances, apex court in Jagdish Rai vs. State of Punjab, (2011) 4 SCC 571, upheld the findings of conviction against the driver of the motorcycle.
18. In Dehal Singh vs. State of Himachal Pradesh, (2010) 9 SCC 85 and Madan Lal & another vs. State of Himachal Pradesh, (2003) 7 SCC 465, under similar circumstances, Court has held accused to be in constructive possession of the contraband substance. In Madan Lal (supra) Court held as under:
"22. The expression "possession" is a polymorphous term which assumes different colours in different contexts. It may carry different meanings in contextually different backgrounds. It is impossible, as was observed in Supdt. & Remembrancer of Legal Affairs, W.B. vs. Anil Kumar Ghunja (1979) 4 SCC 274 to work out a completely logical and precise ::: Downloaded on - 15/04/2017 17:48:03 :::HCHP 13 definition of "possession" uniformally applicable to all situations in the context of all statutes.
.
23. The word "conscious" means awareness about a particular fact. It is a state of mind which is deliberate or intended.
24. As noted in Gunwantlal vs. State of M.P. (1972) 2 SCC 194 possession in a given case need not be physical possession but can be constructive, having power and control over the article in the case in question, while the person to whom physical possession is given holds it subject to that power of control.
25. r The word "possession" means the legal right to possession (See: Heath v. Drown (1972) 2 All ER
561). In an interesting case it was observed that where a person keeps his firearm in his mother's flat which is safer than his own home, he must be considered to be in possession of the same. (See:
Sullivan v. Earl of Caithness, (1976) 1 All ER 844)
26. Once possession is established, the person who claims that it was not a conscious possession has to establish it, because how he came to be in possession is within his special knowledge. Section 35 of the Act gives a statutory recognition of this position because of the presumption available in law. Similar is the position in terms of Section 54 where also presumption is available to be drawn from possession of illicit articles.
27. In the factual scenario of the present case, not only possession but conscious possession has been established. It has not been shown by the accused- appellants that the possession was not conscious in ::: Downloaded on - 15/04/2017 17:48:03 :::HCHP 14 the logical background of Sections 35 and 54 of the Act."
.
19. I shall now deal with the decisions rendered by Hon'ble the Supreme Court of India, as relied upon by Mr. Anup Chitkara, learned counsel, in support of his limited contention.
20. In Abdul Rashid Ibrahim Mansuri vs. State of Gujarat, (2000) 2 SCC 513, the Court was dealing with a case where autorickshaw of the appellant was hired by co-accused and as such he was not in the know of the contraband substance so carried by them. Also as is evident from para-23 of this report, Court found the driver to have rebutted the statutory presumption through different means.
21. In Narcotics Control Bureau, Jodhpur vs. Murlidhar Soni & others, (2004) 5 SCC 151, Court was dealing with a case where the surviving accused persons, by leading credible evidence had established their false implication in the crime. Not only they had protested their arrest but had also disclosed the factum of injuries sustained by them, through the hands of the police, on the very first opportune time and occasion when they were produced before the Court. Prosecution failed to establish ::: Downloaded on - 15/04/2017 17:48:03 :::HCHP 15 that the surviving accused persons were aware of the fact that their co-accused was carrying any contraband .
substance.
22. In Sorabkhan Gandhkhan Pathan & another vs. State of Gujarat, (2004) 13 SCC 608, Court was dealing with a case where the accused was travelling in an autorickshaw alongwith three other persons, out of whom only two were found to have been involved in the crime and also prosecution was not able to establish connection between both of them. The facts here are different.
23. In Amarsingh Ramjibhai Barot vs. State of Gujarat, (2005) 7 SCC 550, Court was dealing with a case where individual recoveries were effected from the accused persons who were seen together, which is not in the case in hand.
24. Each case has to be considered on its own given facts by applying the settled principles of law. As already observed, in the instant case, both the accused were travelling in a private vehicle which belonged to the appellant, who in fact was driving the same. The appellant never protested against his alleged involvement in the crime. They both belonged to the same place and had not explained their purpose of visit within the state of Himachal ::: Downloaded on - 15/04/2017 17:48:03 :::HCHP 16 Pradesh or their presence on the spot. In my considered view, prosecution has been able to establish, beyond .
reasonable doubt, recovery of the contraband substance from the conscious possession of the appellant-accused.
25. For all the aforesaid reasons, there is no reason to interfere with the well reasoned judgment passed by the trial Court. The Court has fully appreciated the evidence placed on record by the parties.
r There is no illegality,
irregularity, perversity in correct and/or in complete
appreciation of the material so placed on record by the parties. Findings of conviction cannot be said to be erroneous or perverse. Hence, the appeal is dismissed.
Appeal stands disposed of, so also pending application(s), if any.
Records of the Court below be immediately sent back.
(Sanjay Karol), Judge.
March 18 , 2015 (PK)
::: Downloaded on - 15/04/2017 17:48:03 :::HCHP