Himachal Pradesh High Court
Shafit Mohammad & Ors vs State Of H.P on 22 June, 2016
Author: Rajiv Sharma
Bench: Rajiv Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr. Revision No. 17 of 2010.
Reserved on: June 21, 2016.
Decided on: June 22, 2016.
.
Shafit Mohammad & ors. ......Petitioners.
Versus
State of H.P .......Respondent.
Coram
The Hon'ble Mr. Justice Rajiv Sharma, Judge.
Whether approved for reporting? 1 Yes.
For the petitioners: Mr. Sanjeev Bhushan, Sr. Advocate, with Ms. Abhilasha
of
Kaundal, Advocate.
For the respondent: Mr. Neeraj K. Sharma, Dy. AG.
----------------------------------------------------------------------------------------------
Justice Rajiv Sharma, J.
rt This revision petition is instituted against the judgment dated 24.12.2009, rendered by the learned Addl. Sessions Judge, Fast Track, Kullu, H.P., in Criminal Appeal No. 11 of 2006 (RBT No. 23 of 2009), whereby the petitioners were acquitted under Section 379 read with Section 34 IPC. However, the sentence imposed upon them under Section 42 of the Indian Forests Act was upheld and the sentence was modified to the extent that they would undergo simple imprisonment for a period of one year instead of rigorous imprisonment for a period of one year. The fine amount of Rs. 3,000/- was maintained. The fine amount, if deposited under Section 379 IPC by the petitioners was ordered to be refunded to them.
2. The case of the prosecution, in a nut shell, is that Const.
Uttam Chand (PW-3) and Const. Suresh Kumar were deputed on patrolling duty on 10.12.2002 near Beas bridge, Manali. Const. Uttam Chand gave telephonic information at Police Station at about 4:30 AM that a maruti 1 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 20:38:17 :::HCHP 2van bearing registration No. HP-02-6466 and a truck bearing registration No. HIE 1765 went towards Bahang road with the high speed. The van was .
escorting the truck. The truck was covered with tarpaulin. Insp./SHO Badri Singh (PW-8), Madan Lal, SI Mahinder Kumar (PW-9), HC Hari Singh, HHC Sat Pal and driver Roshan Lal went towards the spot. Const.
Uttam Chand and Const. Suresh Kumar were also associated from Beas bridge. When the police vehicles reached about 3 kms. ahead of Kothi of towards Keylong road, the truck bearing registration No. HIE 1765 was intercepted. Two persons were sitting besides the driver in the truck. The rt truck was checked. It was carrying 73 scants of deodar. A permit was demanded from the occupants of the truck, but they could not produce any permit. The timber belonged to Puran, resident of Lauhal and it was being taken to Koksar. He escorted the truck up to Palchan Forest Barrier in vehicle bearing registration No. HP-02-6466. This vehicle was being driven by Roshan. The taxi sped away after Palchan. Rukka Ext. PW-5/A was scribed, upon which FIR Ext. PW-3/C was registered. Investigation was carried out by Insp. SHO Badri Singh who seized the truck and the timber vide seizure memo Ext. PW-3/A. Site Plan Ext. PW-8/A was prepared. The documents of the truck were seized vide seizure memo Ext. PW-7/A. Maruti van bearing registration No. HP-02-6466 was intercepted. It was seized vide seizure memo Ext. PW-7/B. The valuation report Ext. PW-1/A was obtained. The timber was marked with the seizure hammer K-4. Its impression was taken separately on a piece of paper. The investigation was completed and the challan was put up after completing all the codal formalities.
::: Downloaded on - 15/04/2017 20:38:17 :::HCHP 33. The prosecution, in order to prove its case, has examined as many as eight witnesses. The accused were also examined under Section .
313 Cr.P.C. They denied the incriminating evidence led by the prosecution against them. The petitioners, namely, Shafit Mohamad, Jogi Ram and Amar Nath were convicted and sentenced under Section 379 read with Section 34 IPC to undergo rigorous imprisonment for a period of six months and to pay a fine of Rs. 2,000/- and in default of payment of fine to of undergo simple imprisonment for one month by the learned JMIC, Manali.
They were also sentenced to undergo rigorous imprisonment for a period of rt one year and to pay a fine of Rs. 3,000/- and in default of payment of fine to undergo simple imprisonment for a period of one month under Section 42 of the Indian Forests Act by the learned JMIC, Manali, Distt. Kullu, H.P. The accused, namely, Puran Chand and Roshan Lal were acquitted vide judgment dated 16.3.2006. The petitioners filed an appeal before the learned Addl. Sessions Judge, Fast Track, Kullu. The learned Addl.
Sessions Judge, Fast Track, Kullu acquitted the accused under Section 379 IPC read with Section 34 IPC, however, the conviction imposed upon the petitioners under Section 42 of the Indian Forests Act was upheld but the sentence was modified to one year simple imprisonment instead of rigorous imprisonment for a period of one year. The fine of Rs. 3000/-
imposed by the learned JMIC, Manali was upheld. Hence, this revision petition.
4. Mr. Sanjeev Bhushan, Sr. Advocate, has vehemently argued that the prosecution has failed to prove its case against the accused. On the other hand, Mr. Neeraj K. Sharma, learned Dy. Advocate General for ::: Downloaded on - 15/04/2017 20:38:17 :::HCHP 4 the State has supported the judgment dated 16.3.2006 passed by the learned JMIC, Manali.
.
5. I have heard the learned counsel for both the sides and have also gone through the judgment and records of the case carefully.
6. PW-1 Mehar Chand, B.O. Palchan has proved valuation report vide Ext. PW-1/A.
7. PW-2 Roop Lal, Forest Guard proved Hammer marked sample of of scants vide Ext. PW-2/A.
8. PW-3 HHC Uttam Chand deposed that the police party headed rt by Insp. Badri after receiving information in the Police Station rushed towards Keylong road in the official vehicle and the truck bearing registration No. HIE 1765 was intercepted 3 kms. beyond Kothi and accused Jogi Ram, Amar Nath and Shafit were apprehended from the said truck. On checking the truck, 73 scants of deodar were recovered. The accused could not produce any transportation permit of the seized scants.
The scants and the truck were seized vide seizure memo Ext. PW-3/A. Rukka Ext. PW-3/B was scribed which led to the registration of FIR Ext.
PW-3/C. He carried rukka at 6:10 AM and arrived at the Police Station at 8:00 AM. The truck, maruti van and scants were handed over to Jai Ram, Range Officer on spurdari through Ext. PW-3/D.
9. PW-4 HC Mohar Singh deposed that truck along with maruti van and 73 scants of deodar were handed over to B.O. Kullu and thereafter the said truck, van and scants were handed over to Range Officer Jai Ram at Bhooti Colony on spurdari through seizure memo Ext. PW-4/A. ::: Downloaded on - 15/04/2017 20:38:17 :::HCHP 5
10. PW-5 ASI Gian Chand has proved rukka Ext. PW-3/B and FIR Ext. PW-3/C. .
11. PW-6 Range Officer Jai Ram has testified that on 14.12.2002 on the orders of authorized officer Kullu, 73 scants of deodar, truck No. HIE 1765 and Maruti Van No. HP-02-6466 were handed over to him through memo Ext. PW-4/A.
12. PW-7 HHC Sat Pal deposed that Insp. Badri after receiving of information in the Police Station rushed towards Keylong road in the official vehicle and truck No. HIE-1765 was intercepted near Kothi Gulaba rt Road and accused were also apprehended along with 73 scants of deodar.
The accused could not produce any transportation permit. The scants were seized vide memo Ext. PW-3/A.
13. PW-8 Insp. Badri Singh is the material witness. He testified that information was received in the Police Station that truck escorted by maruti van was moving towards Bahang. He reached the spot. The truck was intercepted at a distance of 3 kms ahead Kothi. It was carrying 73 scants of deodar. The driver disclosed his identity. The accused could not produce any document. The timber was seized. Rukka was scribed. Entry regarding departure of Const. Uttam and Const. Suresh Kumar was recorded in the Police Station. No independent witness was associated by him. He also volunteered that in case he had tried to join independent witnesses, the accused could have escaped. He has admitted that there were houses between Manali to Kothi and Kothi to Mari but the place where the accused were apprehended was deserted. He also admitted that ::: Downloaded on - 15/04/2017 20:38:17 :::HCHP 6 there was Forest Barrier at Palchan. Record of the barried was checked and it was found that there was no entry regarding the vehicle.
.
14. PW-9 SI Mohinder Kumar testified that information was received in the Police Station about the movement of the truck. It was covered with tarpaulin. The truck was intercepted, accused were apprehended and 73 scants of deodar were recovered. The place where the accused were apprehended was deserted and isolated place. The accused of were apprehended in the early hours and thus it was not possible to join independent witnesses though the houses and shops were situated rt between Manali to Kothi and Kothi to Mari.
15. The statements of the official witnesses, if inspire confidence, can be taken into consideration. The accused were apprehended on 10.12.2002 and the statements of the witnesses were recorded on 10.12.2002 itself. The witnesses are not supposed to remember the minutest details about the timings. There is bound to be some variation with the passage of time.
16. Mr. Sanjeev Bhushan, Sr. Advocate, has vehemently argued that the prosecution has not proved the daily diary. Their lordships of the Hon'ble Supreme Court in the case of Kalpnath Rai vrs. State (through CBI), along with connected matters, reported in AIR 1998 SC 201, have held as under:
"94. We do not find any force in the said contention. No doubt Daily Diary is a document which is in constant use in police station. But no prosecution is expected to produce such diaries as a matter of course in every prosecution case for supporting the police version. If such diaries are to be produced by prosecution as a matter of course in every case, the function of the police station would be greatly ::: Downloaded on - 15/04/2017 20:38:17 :::HCHP 7 impaired. It is neither desirable nor feasible for the prosecution to produce such diaries in all cases. Of course it is open to the defence to move the court for getting down such diaries if the defence wants to make use of it."
.
17. Similarly, their lordships of the Hon'ble Supreme Court in the case of Bharwada Bhoginbhai Hirjibhai vs. State of Gujarat, reported in AIR 1983 SC 753, have held that over much importance cannot be given to minor discrepancies. Discrepancies which do not go to the root of of the matter and shake the basic version of the witnesses, therefore, cannot be annexed with undue importance. More so, when the all important "probabilities-factor" echoes in favour of the version narrated by the rt witnesses. It has been held as follows:
" 5. It appears that the parents of P.W. 1 as well as parents of P.W. 2 wanted to hush up the matter. Some unexpected developments however forced the issue. The residents of the locality somehow came to know about the incident. And an alert Woman Social Worker, P.W. 5 Kundanben, President of the Mahila Mandal in Sector 17, Gandhinagar, took up the cause. She felt indignant at the way in which the appellant had misbehaved with two girls of the age of his own daughter, who also happened to be friends of his daughter, taking advantage of their helplessness, when no one else was present. Having ascertained from P.W. 1 and P.W. 2 as to what had transpired, she felt that the appellant should atone for his infamous conduct. She therefore called on the appellant at his house. It appears that about 500 women of the locality had also gathered near the house of the appellant. Kundanben requested the appellant to apologize publicly in the presence of the woman who had assembled there. If the appellant had acceded to . this request possibly the matter might have rested there and might not have come to the court. The appellant, however, made it a prestige issue and refused to apologize. Thereupon the police was contacted and a complaint was lodged by P.W. 1 on 19 Sept. 1975. P.W. 1 was then sent to the Medical officer for medical examination. The medical examination disclosed that there was evidence to show that an attempt to commit rape on her had been made a few days back. The Sessions Court as well as the High Court have accepted the evidence and concluded that the appellant was guilty of sexual misbehavior with P.W. 1 and P.W. 2 in the manner alleged by the prosecution and established by the evidence of P.W. 1 and P.W. 2. Their evidence has been considered to be worthy of acceptance lt is a pure. finding of fact recorded by the Sessions Court ::: Downloaded on - 15/04/2017 20:38:17 :::HCHP 8 and affirmed by the High Court. Such a concurrent finding of fact cannot be reopened in an appeal by special leave unless it is established: (1) that the finding is based on no evidence or (2) that the finding is perverse, it being such as no reasonable person could have .
arrived at even if the evidence was taken at its face value or (3) the finding is based and built on inadmissible evidence, which evidence, if excluded from vision, would negate the prosecution case or substantially discredit or impair it or (43 some vital piece of evidence which would tilt the balance in favour of the convict has been overlooked, disregarded, or wrongly discarded. The present is not a case of such a nature. The finding of guilt recorded by the Sessions Court as affirmed by the High Court has been challenged mainly on the basis of minor discrepancies in the evidence. We do not consider it appropriate or permissible to enter upon a reappraisal or of reappreciation of the evidence in the context of the minor discrepancies painstakingly highlighted by learned counsel for the appellant. Over much importance cannot be attached to minor discrepancies. The reasons are obvious:
rt (1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen. (2) ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details. (3) The powers of observation differ from person to person.
What one may notice, another may not. An object or movement might emboss its image on one person's mind whereas it might go unnoticed on the part of another. (4) By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.
(5) In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess work on the spur of the moment 1.1 at the time of interrogation.
And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time- sense of individuals which varies from person to person. (6) Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.
(7) A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub-conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness ::: Downloaded on - 15/04/2017 20:38:17 :::HCHP 9 is giving a truthful and honest account of the occurrence witnessed by him-Perhaps it is a sort of a psychological defence mechanism activated on the spur of the moment.
.
6. Discrepancies which do not go to the root of the matter and shake the basic version of the witnesses therefore cannot be annexed with undue importance. More so when the all important "probabilities-factor" echoes in favour of the version narrated by the witnesses."
18. Mr. Sanjeev Bhushan, Sr. Advocate, has also argued that the road in the month of November was closed for onward traffic to Lahaul and of Spiti. However, the fact of the matter is that no evidence has been led by the petitioners that road infact was closed either by summoning record
19. rt from the Public Works Department or HRTC.
Mr. Sanjeev Bhushan, Sr. Advocate, has lastly contended that no entry was made in the Palchan Forest Barrier of the vehicle in question.
Merely that the entry has not been made in the Palchan Forest Barrier will not dilute the case of the prosecution when there is overwhelming evidence against the accused that they were apprehended carrying 73 scants of deodar without transportation permit in breach of the provisions of Indian Forests Act read with H.P. Forest Produce Transit (Land Route Rules), 1978. Moreover, no motive has been attributed to the forest officials and no suggestions have been put to them to falsely implicate the petitioners.
It has also come on record that the Van has escorted the truck up to Palchan Forest Barrier and thereafter escaped and seized later on. The possibility of connivance of the forest officials posted at Palchan Forest Barrier with the accused cannot be ruled out.
20. Their lordships of the Hon'ble Supreme Court in the case of Karamjit Singh vs. State (Delhi Administration), reported in AIR 2003 ::: Downloaded on - 15/04/2017 20:38:17 :::HCHP 10 SC 1311, have held that there is no principle of law that without corroboration by independent witnesses their testimony cannot be relied .
upon. Presumption that person acts honestly applies as much in favour of police personnel as of other persons. It has been held as follows:
" 8. Shri Sinha, learned senior counsel for the appellant, has vehemently urged that all the witnesses of recovery examined by the prosecution are police personnel and in absence of any public witness, their testimony alone should not be held sufficient for sustaining the of conviction of the appellant. In our opinion the contention raised is too broadly stated and cannot be accepted. The testimony of police personnel should be treated in the same manner as testimony of any other witness and there is no principle of law that without corroboration by independent witnesses their testimony cannot be rt relied upon. The presumption that a person acts honestly applies as much in favour of police personnel as of other persons and it is not a proper judicial approach to distrust and suspect them without good grounds. It will all depend upon the facts and circumstances of each case and no principle of general application can be laid down. PW11 Pratap Singh has clearly stated in the opening part of his examination-in-chief that ACP Shakti Singh asked some public witnesses to accompany them but they showed their unwillingness.
PW10 Rajinder Prasad, SI has given similar statement and has deposed that despite their best efforts no one from public was willing to join the raiding party due to the fear of the terrorists. Exactly similar statement has been given by PW9 R.D. Pandey. We should not forget that the incident took place in November 1990, when terrorism was at its peak in Punjab and neighbouring areas. The ground realities cannot be lost sight of that even in normal circumstances members of public are very reluctant to accompany a police party which is going to arrest a criminal or is embarking upon search of some premises. At the time when the terrorism was at its peak, it is quite natural for members of public to have avoided getting involved in a police operation for search or arrest of a person having links with terrorists. It is noteworthy that during the course of the cross- examination of the witness the defence did not even give any suggestion as to why they were falsely deposing against the appellant. There is absolutely no material or evidence on record to show that the prosecution witnesses had any reason to falsely implicate the appellant who was none else but a colleague of theirs being a member of the same police force. Therefore, the contention raised by Shri Sinha that on account of non-examination of a public witness, the testimony of the prosecution witnesses who are police personnel, should not be relied upon has hardly any substance and cannot be accepted."::: Downloaded on - 15/04/2017 20:38:17 :::HCHP 11
21. Accordingly, the prosecution has proved the case against the accused beyond reasonable doubt under Section 42 of the Indian Forests .
Act and there is no occasion for this Court to interfere with the well reasoned judgment of the learned Addl. Sessions Judge, Fast Track, Kullu dated 24.12.2009.
22. Consequently, there is no merit in this revision petition and the same is dismissed. Bail bonds are cancelled.
of
June 22, 2016, ( Rajiv Sharma ),
(karan) Judge.
rt
::: Downloaded on - 15/04/2017 20:38:17 :::HCHP