Punjab-Haryana High Court
Sher Singh Son Of Bhoop Singh vs State Of Haryana on 23 February, 2010
Criminal Appeal No. 654-SB of 2008 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Criminal Appeal No. 654-SB of 2008
Date of Decision: 23.02.2010
1. Sher Singh son of Bhoop Singh, r/o village Dhani Khasa,
P.S. Agroha, District Hisar.
2. Hari Singh @ Bhuriya son of Hazari Lal, r/o Rampura
Bishnoiyan, District Sirsa.
... Appellants
Versus
State of Haryana.
...Respondent
CORAM: HON'BLE MR. JUSTICE SHAM SUNDER
Present: Mr. R.A. Sheoran, Advocate,
with Mr. Surinder Sheoran, Advocate,
for appellant No. 1.
Mr. R.S. Ghuman, Advocate,
for appellant No. 2.
Mr. Sandeep Mann, Senior Deputy Advocate General,
Haryana, for the respondent - State.
SHAM SUNDER, J.
This appeal is directed against the judgment of conviction and the order of sentence, dated 26.02.08, rendered by the Court of Additional Sessions Judge, Fatehabad, vide which, it convicted the accused (now appellants), for the offence, punishable under Section 15 (c) of the Narcotic Drugs and Physchotropic Substances Act, 1985 (hereinafter to be called as the 'Act' only), and sentenced them to Criminal Appeal No. 654-SB of 2008 2 undergo Rigorous Imprisonment, for a period of 10 years each, and to pay a fine of Rs. 1 lac each, and, in default of payment thereof, to further undergo rigorous imprisonment, for a period of one year each, for having been found in possession of 200 kgs of poppy husk, without any permit or licence, falling within the ambit of commercial quantity.
2. The facts, in brief, are that, on 31.05.05, Charan Singh, Assistant Sub Inspector, alongwith some other Police officials, was present, at village Alipur Barota, in a government jeep, bearing No. HR-20H-0182, being driven by Satbir Singh, EHC. In the meanwhile, a white coloured Maruti car, bearing registration No. DDC-5998, was seen coming from the eastern side, which was signalled to stop, by the Police party. The said car was stopped, at a distance of half killa short of the Police party, and two persons who were found sitting therein. They were wearing white kurta pajama. They alighted therefrom and managed to escape towards Aharwan side, towards the northern direction. Thereafter, the car was checked by Charan Singh, Assistant Sub Inspector, wherefrom, 5 plastic bags, containing 200 kgs poppy husk were recovered. A sample of 100 gms, from each of the bags, was separated, and the remaining poppy husk, was kept, in the same bags. The samples and the bags, containing the remaining poppy husk, were converted into parcels, duly sealed, and taken into possession, vide a separate recovery memo. During the course of investigation, it came to the fore, that the car, in question, belonged to Sher Singh. Sher Singh, accused, was arrested, on 12.06.05. On interrogation, he suffered a Criminal Appeal No. 654-SB of 2008 3 disclosure statement P5, to the effect, that on 31.05.05, he alongwith his co-accused Hari Singh, purchased poppy husk, from Mahrana (Rajasthan) and when they were going to Punjab, for selling the same, they noticed the Police party, at Alipur Barota main Road, and as such, retreated. Thereafter, Sher Singh, accused, got identified the place of recovery. On 23.05.06, Hari Singh @ Bhuria, another accused was also arrested. After the completion of investigation, they were challaned.
3. On their appearance, in the Court of the Committing Magistrate, the accused, were supplied the copies of documents, relied upon by the prosecution.
4. After the case was received by commitment, in the Court of Sessions, charge under Section 15 of the Act, was framed against the accused, which was read-over and explained to them, to which they pleaded not guilty, and claimed judicial trial.
5. The prosecution, in support of its case, examined Charan Singh, Sub Inspector (PW1), the Investigating Officer, Mahenderpal, Sub Inspector (PW2), Satbir Singh, EHC (PW3), Purshotam, Constable (PW4), Om Parkash, Assistant Sub Inspector, Retired (PW5), Ishwar Singh, Sub Inspector (PW6), Bhaga Ram, Assistant Sub Inspector (PW7), Baldev Singh, Head Constable (PW8), Hans Raj, Inspector (PW9), Surjeet Singh (PW10), Pankaj Mehta (PW11), and, Raman Sharma (PW12). Thereafter, the Public Prosecutor for the State, closed the prosecution evidence.
6. The statements of the accused, under Section 313 of the Criminal Appeal No. 654-SB of 2008 4 Code of Criminal Procedure, were recorded. They were put all the incriminating circumstances, appearing against them, in the prosecution evidence. They pleaded false implication. They stated that, no recovery, was effected, from them. It was further stated by them, that they had been falsely implicated, in the instant case. They, however, did not lead any evidence, in defence, and closed the same.
7. After hearing the Counsel for the parties, and, on going through the evidence, on record, the trial Court, convicted and sentenced the accused, as stated above.
8. Feeling aggrieved, the instant appeal, has been filed by the appellants.
9. I have heard the Counsel for the parties, and, have gone the evidence and record of the case, carefully.
10. The Counsel for the appellants, at the very outset, submitted that, as per the prosecution story, the accused (now appellants), who were travelling, in the Maruti car, when the same was signalled to stop, at about 7.15 PM, on 31.05.05, succeeded in running away. They further submitted that the accused, were arrested much later. They further submitted that, no identification parade, was conducted, during the course of investigation, so as to pin-point the identity of the accused, as the perpetrators of crime. They further submitted that, no other evidence, was produced, on the record, to prove, that the accused, were the perpetrators of crime. They further submitted that, no doubt, the Investigating Officer, stated that, he knew Criminal Appeal No. 654-SB of 2008 5 the accused earlier, and, thus, identified them, yet, no material, was produced, on the record, as to how, he knew them. They further submitted that, such a statement of the Investigating Officer, being incorrect, is not liable to be accepted. They further submitted that, since the identity of the accused, as the perpetrators of crime, was not proved, the trial Court, was wrong, in recording conviction and awarding sentence. The submission of the Counsel for the appellants, in this regard, appears to be correct. At about 7.15 PM, in the month of May, there could be said to be sufficient darkness. No doubt, the Investigating Officer, stated that, he knew the accused earlier. However, he did not state, as to whether, he had earlier arrested the accused, in any case, or they were witnesses, in any other case, investigated by him, or they used to come, to the Police Station, in which, he was the Station House Officer, in connection with the work of some people. Had he known the accused earlier then they would have been arrested within a few days of their alleged escape. As stated above, they were arrested much later. Mere bald statement of the Investigating Officer, that he knew the accused earlier, does not lead the Court anywhere. The fact remains that, the identity of the accused, as the perpetrators of crime, was not proved, from any legally admissible evidence. It was held in Budhsen and Another Vs. State of U.P., AIR 1970 SC, 1321, that facts which establish the identity of an accused person, are relevant under Section 9. As a general rule, the substantive evidence of a witness is a statement made in the Court. Criminal Appeal No. 654-SB of 2008 6 The evidence of mere identification of the accused person, at the trial, for the first time, is from its very nature, inherently of a weak character. The evidence, in order to carry conviction, should ordinarily clarify, as to how, and, under what circumstances, the witness came to pick out the particular accused person, and the details of the part, which the accused played, in the crime, in question, with reasonable particularity. The purpose of a prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is accordingly considered a safe rule of prudence to generally look for corroboration of the sworn testimony of the witnesses, in the Court, as to the identity of the accused, who are strangers to them, in the form of earlier identification proceedings. There may, however, be exceptions to this general rule, when, for example, the Court is impressed by a particular witness, on whose testimony it can safely rely, without such or other corroboration. The identification parades belong to the investigation stage. They are generally held, during the course of investigation, with the primary object of enabling the witnesses, to identify persons, concerned, in the offence, who were not previously known to them. This serves to satisfy the investigating officers of the bona fides of the prosecution witnesses, and also to furnish evidence, to corroborate their testimony, in the Court. Identification proceedings, in their legal effect, amount simply to this: that certain persons are brought to jail, or some other place, and they make statements, either express or implied, that certain individuals whom they point out are persons, whom they Criminal Appeal No. 654-SB of 2008 7 recognize, as having been concerned in the crime. The same do not constitute substantive evidence. These parades are essentially governed by Section 162 Cr.P.C. The principle of law, laid down, with regard to test identification parade in Ramanathan Vs. The State of T.N. AIR 1978 Supreme Court 1204 was as under :-
"Identification parades have been in common use for a very long time, for the object of placing a suspect in a line up with other persons for identification is to find out whether he is the perpetrator of the crime. This is all the more necessary where the name of the offender is not mentioned by those who claim to be eye-witnesses of the incident but they claim that although they did not know him earlier, they could recall his features in sufficient details and would be able to identify him if and when they happened to see him. The holding of a test identification in such cases is as much in the interest of the investigating agency or the prosecution as in the interest of the suspect or the accused. For while it enables the investigating officer to ascertain the correctness or otherwise of the claim of those witnesses who claim to have seen the perpetrator of the crime and their capacity to identify him and thereby fill the gap in the investigation regarding the identity of the culprit, it saves the suspect or the accused form the sudden risk of being identified in the dock by the self same witnesses during the course of the trial. The line up of the suspect in a test identification parade is therefore a workable way of testing the memory and veracity of witnesses in such cases and has worked well in actual practice."
The principle of law, laid down, in the aforesaid cases, is fully applicable to the facts of the instant case. Since the identity of the accused, as perpetrators of crime, was not proved, they are not Criminal Appeal No. 654-SB of 2008 8 connected with the instant case. The trial Court failed to take into consideration, this aspect of the matter, as a result whereof, it fell into a grave error, in recording conviction and awarding sentence to the accused.
11. It was next submitted by the Counsel for the appellants, that, no doubt, the car, in question, was tried to be connected with Sher Singh, accused, yet, such an attempt of the prosecution remained futile. The submission of the Counsel for the appellants, in this regard, appears to be correct. There is nothing, on the record, that the registration certificate of the car, was in favour of Sher Singh, accused. On the other hand, P18, an agreement, on a loose paper, has been submitted, on the record, which was allegedly executed, in favour of Sher Singh, by Pankaj Mehta. When Pankaj Mehta, appeared as PW11, he, stated that, on 20.10.04, he sold the car, in favour of Sher Singh, vide agreement P18. He further stated that he handed over the affidavit P11, to him, at that time. However, during the course of his cross- examination, he could not identify Sher Singh, accused. He further stated that, it was, on account of lapse of long period, that he could not identify him. According to agreement P18, after the receipt of a particular amount of sale consideration of the car, the delivery thereof, was to be made, in favour of Sher Singh. However, according to P20 delivery receipt, the car was delivered, in favour of Pankaj Mehta, on 29.09.04, by Dilip Kumar. Had the car been sold by Pankaj Mehta, in favour of Sher Singh, on 20.10.04, he would have certainly identified Criminal Appeal No. 654-SB of 2008 9 him, as the person, in whose favour, the alleged agreement was executed, when he appeared, in the Court, as his own witness. It appears that such an agreement was apparently created later on. In case, the car, had been sold, in favour of Sher Singh, then what was the hitch, in getting the same registered, in his favour, by Pankaj Mehta, is not known. The fact remains, that the car, was never registered, in the name of Sher Singh, but, no the other hand, the registration certificate, was in the name of Dilip Kumar. The car, in question, was thus, not connected with Sher Singh. The Court below, was wrong, in coming to the conclusion, that since the car, in question, was connected with Sher Singh, it was he, who left the same, containing poppy husk, and ran away. The findings of the trial Court, in this regard, being perverse are reversed.
12. It was next submitted by the Counsel for the appellants, that the conscious possession of the accused, in respect of the contraband, was not proved, and, as such, no offence, punishable under Section 15
(c) of the Act, was committed by them. The submission of the Counsel for the appellants, in this regard, appears to be correct. The accused, allegedly ran away, from the spot. As stated above, their identity, as the alleged perpetrators of crime, could not be established, by the prosecution, beyond a reasonable doubt. The accused, were, thus, neither in constructive, nor in physical possession nor in control of the contraband. No doubt, under Sections 54 and 35 of the Act, once an accused, is found, to be in actual physical or constructive possession of Criminal Appeal No. 654-SB of 2008 10 the contraband, then statutory presumption operates, that he was in conscious possession thereof. Thereafter, onus lies upon him, to rebut that statutory presumption. The fact remains that, in the first instance, it is the bounden duty of the prosecution, to prove the physical or constructive possession of the accused, in respect of the contraband. Only after proving the physical or constructive possession of the accused, in respect of the contraband, that such a statutory presumption, could operate, against them. As stated above, in the instant case, since the physical or constructive possession of the appellants, in respect of the contraband, was not proved, the statutory presumption, against them, under Sections 54 and 35, did not at all operate. The conscious possession of the accused, was not proved and, therefore, they did not commit an offence, under Section 15 of the Act. The submission of the Counsel for the appellants, to the effect, that the appellants, were not found, in conscious possession of the poppy husk, allegedly recovered, from the car, and thus, no offence punishable under Section 15 (c) of the Act, was constituted, carries substance, and deserves to be accepted.
13. No other point, was urged, by the Counsel for the parties.
14. In view of the above discussion, it is held, that the judgement of conviction and the order of sentence, are not based, on the correct reading and due appreciation of evidence, as also law, on the point. Had the trial Court, taken into consideration, the aforesaid infirmities and lacunae, it would have certainly come to the conclusion, Criminal Appeal No. 654-SB of 2008 11 that the prosecution, had failed, to prove its case, beyond a reasonable doubt. The findings, recorded by the trial Court, recording conviction and awarding sentence, to the accused (now appellants), are perverse and illegal, and, as such, liable to be set aside.
15. For the reasons recorded above, the appeal, is accepted. The judgement of conviction and the order of sentence, rendered by the trial Court, are set aside. The appellants, are acquitted of the charge framed against them. If the appellants, are on bail, they shall stand discharged of their bail bonds. If they are in custody, they shall be set at liberty at once, if not required, in any other case.
16. The concerned Chief Judicial Magistrate, shall comply with the judgment, forthwith and send the compliance report, within a period of 15 days, from the date of receipt of a copy of the same.
23.02.2010 (SHAM SUNDER) Amodh JUDGE