Punjab-Haryana High Court
Balwinder Singh Son Of Mohinder Singh vs The State Of Haryana on 8 September, 2008
Crl. Appeal No.925-SB of 2000
1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Crl.Appeal No.925-SB of 2000
Date of Decision: 08.09. 2008
Balwinder Singh son of Mohinder Singh, resident of village
Kumhar Majra, District Kurukshetra.
.... Appellant
Versus
The State of Haryana
.... Respondent
2. Crl. Appeal No. 1078-SB of 2000
Satnam Singh son of Kashmir Singh, resident of village
Amupur, District Karnal.
... Appellant.
Versus
The State of Haryana
.... Respondent
CORAM: HON'BLE MR. JUSTICE SHAM SUNDER
Present: Mr.P.S. Hundal, Advocate
for the appellant,
in Crl. Appeal No. 925-SB of 2000.
Mr. Balwinder Singh, Advocate
for the appellant,
in Crl. Appeal No. 1078-SB of 2000.
Mr. A.K. Jindal, AAG, Haryana
for the respondent.
---
Crl. Appeal No.925-SB of 2000
2
SHAM SUNDER, J.
This judgment shall dispose of Crl. Appeal No. 925-SB of 2000, filed by Balwinder Singh and Criminal Appeal No. 1078-SB of 2000, filed by Satnam Singh, arising out of the judgment of conviction dated 24.08.2000, and the order of sentence dated 25.08.2000, rendered by the Judge, Special Court, Kaithal, vide which he convicted both the accused/appellants, for the offence punishable under Section 15 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter called as 'the Act' only) and sentenced them to undergo rigorous imprisonment, for a period of ten years each, and to pay a fine of Rs.1 lac each, and in default of payment of the same, to undergo further rigorous imprisonment for a period of one year each, for having been found in possession of 05 bags, in all containing 127 Kgs and 250 grams of poppy husk, without any permit or licence.
2. The facts, in brief, are that on 28.05.1996, Assistant Sub Inspector Balwan Singh along with other police officials, was present, in connection with patrol duty in Govt. Jeep No. HR-07/0482 and when the Police party reached the canal bridge in the area of Kaul, a picket was held and it started checking the vehicles. At about 2.30 AM ( morning of 29.05.1996 ), a Trax jeep was seen coming from the side of village Sakra. On signal, having been given, the vehicle was Crl. Appeal No.925-SB of 2000 3 stopped. Ram Chander, Head Constable, had a talk with the driver of the Trax Jeep, who disclosed his name as Satnam Singh. Balwan Singh, ASI, went to the backside of the said jeep where certain bags were seen lying . In the meanwhile, Satnam Singh sped the vehicle towards village Nigdu. The Police party chased the Trax Jeep. After covering two furlongs towards Nigdu, the driver of the said Trax Jeep and his companion ran away, after abandoning the same, by taking the shelter of darkness. Search of the accused was made but they could not be found. Thereafter, the Police party returned near the Trax Jeep. Since the Investigating Officer suspected some narcotic substance inside the bags, a V.T. message was sent at about 6.30 AM to Subhash Yadav, Deputy Superintendent of Police, to come to the spot, who reached there. Under his directions, five bags lying in the jeep aforesaid, were searched, which contained poppy husk. A sample of 250 grams of poppy husk, was taken out, from each of the bags and the remaining poppy husk was kept in the same bags. One bag was found containing 38 Kgs, second bag was found containing 37 Kgs and 300 grams, third bag was found containing 16 Kgs and 500 grams, fourth bag was found containing 15 Kgs and 200 grams and fifth bag was found containing 19 Kgs poppy husk. The bags, and the samples, were converted into parcels, duly sealed, and taken into Crl. Appeal No.925-SB of 2000 4 possession, vide a separate recovery memo. From the Trax Jeep, one driving licence of Satnam Singh, insurance cover and registration certificate of the vehicle in question, were recovered and the same were also taken into possession, vide separate recovery memo Ex.PE. Ruqa was sent to the Police Station, on the basis whereof, the FIR was registered. The site plan was prepared. During the course of investigation, search of both the accused was made. Both the accused were produced by Thath Singh, Sarpanch. The accused were arrested. The statements of the witnesses were recorded. After the completion of investigation, the accused were challaned.
3. On their appearance, in the Court, the accused were supplied the copies of documents, relied upon by the prosecution. Charge under Section 15 of the Act, was framed against the accused, to which they pleaded not guilty and claimed judicial trial.
4. The prosecution, in support of its case, examined Manphool Singh, C, (PW-1), Jagdish Chander, S.I., ( PW-2 ), Sushil Kumar, H.C., (PW-3), Virender Singh, C, (PW-4), Ram Chander, H.C., ( PW-5), Jai Parkash, ASI, (PW-
6), Balwan Singh, ASI, ( PW-7 ) and Subhash Yadav Deputy Superintendent of Police, ( PW-8 ). Thereafter, the Public Prosecutor for the State, closed the prosecution evidence.
Crl. Appeal No.925-SB of 2000 5
5. The statements of the accused, under Section 313 of the Code of Criminal Procedure, were recorded. They were put all the incriminating circumstances, appearing against them, in the prosecution evidence. It was stated by them that they were falsely implicated.
5-A. In their defence, the accused examined Thath Singh, DW1. Thereafter, they closed their defence evidence.
6. After hearing the Public Prosecutor for the State, the Counsel for the accused, and, on going through the evidence, on record, the trial Court, convicted and sentenced the accused, as stated hereinbefore.
7. Feeling aggrieved, against the judgment of conviction, and the order of sentence, rendered by the trial Court, the instant appeals, were filed by the appellants.
8. I have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully.
9. The Counsel for the appellants, at the very outset, submitted that according to the prosecution case, Satnam Singh and another person, sitting with him in the jeep allegedly escaped from the spot. They further submitted that they were not identified at the spot, because it was darkness. They further submitted that no identification parade was held, during the course of investigation, to pin point their identity.
Crl. Appeal No.925-SB of 2000 6 They further submitted that the accused were, thus, not proved to be the perpetrators of crime and, as such, were falsely implicated, in the instant case. In the first instance, the case of Satnam Singh, appellant is taken up. It is proved from the evidence of ASI Balwan Singh, Investigating Officer ( PW-7 ) that when the jeep at about 2.30 AM on 29.05.1996 came, the same was stopped, on signal having been given to it. He further stated that Ram Chander, H.C. had a talk with the driver of the said jeep, who disclosed his name as Satnam Singh. He went on the back side of the said jeep, where some bags, containing poppy husk, were found lying. He further stated that in the meantime, the driver sped the jeep towards village Nigdu. It was chased, but the accused under the cover of darkness, succeeded in escaping. Ram Chander, H.C. ( PW-
5) stated that when the jeep was stopped, he was talking to the driver of the same, who disclosed his name as Satnam Singh. He also told his antecedents, address etc. He further stated that Balwan Singh, ASI started checking the jeep from the back side. In the meantime, the driver sped away with the jeep. He further stated that a young man was also sitting by the side of the driver. When the jeep came, it was stopped. On the driver seat, Satnam Singh, accused was found sitting. Ram Chander, H.C. started talking to him. When Satnam Singh, accused, disclosed his name and address, it was thereafter that Crl. Appeal No.925-SB of 2000 7 Balwan Singh, ASI went on the back side of the jeep, when Satnam Singh, accused, succeeded in taking away the same. It must have taken sufficient time, in talking to Satnam Singh, accused, ascertaining his antecedents address etc. etc. It means that H.C. Ram Chander and Balwan Singh, ASI, had sufficient opportunity to identity Satnam Singh, accused, as driver of the jeep, in which the bags, containing poppy husk were lying. The identity of Satnam Singh, thus, must have been indelibly imprinted, in the mind of these witnesses. Further more, the driving licence of Satnam Singh was found in the jeep, which clearly established that he was driving the same. Thus, the identity of Satnam Singh, accused, as driver of the jeep, in which bags containing poppy husk, were lying, stood proved. It, therefore, could not be said that Satnam Singh, accused, was falsely implicated, in the instant case. The submission of the Counsel for appellant Satnam Singh, being without merit, must fail, and the same stands rejected.
10. Coming to the case of Balwinder Singh, accused-appellant, it may be stated here, that his name was neither known to Ram Chander, Head Constable, nor to Balwan Singh, ASI, the Investigating Officer. None of them talked to him ( Balwinder Singh ), when the jeep was stopped. None of them, knew him earlier. Even he did not disclose his name. He succeeded in running away, under the cover of Crl. Appeal No.925-SB of 2000 8 darkness. No identification parade of Balwinder Singh, accused, was held, during the course of investigation, with a view to pin point his identity. No other evidence was produced, on the record, to prove that Balwinder Singh was also travelling with Satnam Singh, in the jeep, at the relevant time. Even Thath Singh, Sarpanch, who produced Satnam Singh, did not state that he also produced Balwinder Singh, accused. Since it was darkness, when the alleged recovery was effected, the establishment of identity of Balwinder Singh was doubtful. It was held in Budhsen and another Vs. State of U.P., AIR 1970 SC 1321 that the 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 Court. 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 of the witnesses, in order to carry conviction, should ordinarily clarify, as to how, and, under what circumstances, they 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 Crl. Appeal No.925-SB of 2000 9 sworn testimony of the witnesses in 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 bonafides of the prosecution witnesses, and also to furnish evidence, to corroborate their testimony, in Court. Identification proceedings, in their legal effect, amount simply to this: that certain persons are brought to jail, or some other place, and make statements, either express or implied, that certain individuals, whom they point out, are persons, whom they recognize, as having been concerned in the crime. They 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 the test identification parade in Ramanathan Vs. The State of T.N. AIR 1978 Supreme Court 1204 was as under :-
Crl. Appeal No.925-SB of 2000 10 "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."
Crl. Appeal No.925-SB of 2000 11 10-A Keeping in view, the principle of law, laid down, in the aforesaid authorities, now let us see, as to whether the prosecution, was able to prove that Balwinder Singh, appellant was the perpetrator of crime. The appellant was not known to the police party earlier. As stated above, his distinctive features, were not mentioned by the Investigating Officer, in the ruqa, on the basis whereof, the FIR was registered. He did not have sufficient time, to properly identify him, when he was allegedly found sitting in the said jeep. Under these circumstances, even if, the Investigating Officer identified the appellant, in the Court, at the time of his evidence, for the first time, that identification was hardly of any consequence, to pin- point his identity, as the perpetrator of crime. With a view to prove its case, against the accused, it was obligatory upon the prosecution, to pin-point his identity, as the perpetrator of crime. In the instant case, the prosecution miserably failed to pin-point the identity of the accused, beyond a reasonable doubt, as the perpetrator of crime. Since the identity of accused Balwinder Singh as the perpetrator of crime, was not proved, beyond a reasonable doubt, he was not connected with the present case. Balwinder Singh was, thus, liable to be acquitted. The trial Court was wrong in convicting him.
Crl. Appeal No.925-SB of 2000 12
11. It was next submitted by the Counsel for appellant Satnam Singh , that though the alleged recovery was effected in this case on 28.05.1996, yet the samples were sent to the office of the Forensic Science Laboratory, on 10.06.1996, i.e. after the delay of 13 days, which remained unexplained, as a result whereof, the possibility of tampering with the samples, until the same reached the Laboratory, could not be ruled out. The submission of the Counsel for appellant, Satnam Singh, in this regard, does not appear to be correct. It is, no doubt, true that there is no explanation, with regard to delay, in sending the samples to the office of the Forensic Science Laboratory. However, mere delay, in itself, is not sufficient to come to the conclusion, that the sample parcels were tampered with, until the same reached the office of the Laboratory. The other evidence, produced by the prosecution, has been held to be cogent, convincing, reliable and trustworthy. From the other evidence, it was proved that none tampered with the samples until the same reached the office of the Forensic Science Laboratory. Even, there is report of the Forensic Science Laboratory Ex.PC, which clearly proves that the seals on the exhibits were intact on arrival, till the time of their analysis, and agreed with the specimen impression of the seals. The report Ex.PC of the Forensic Science Laboratory, is per-se admissible, in toto, under Section 293 of the Code of Crl. Appeal No.925-SB of 2000 13 criminal Procedure. There is no challenge to the report of the Chemical Examiner, in this case. In State of Orissa Vs. Kanduri Sahoo 2004(1) RCR (Criminal) 196 (S.C.), it was held that mere delay in sending the samples to the Laboratory, is not fatal, where there is evidence that the seized articles remained in safe custody. Since, it was proved that none tampered with the samples, until the same were received, in the office of the Forensic Science Laboratory, the submission of the Counsel for appellant Satnam Singh, merely based on conjectures, does not hold good. The principle of law, laid down, in the aforesaid authority, is fully applicable to the facts of the instant case. Since, it was proved that none tampered with the samples, until the same reached the office of the Forensic Science Laboratory, the submission of the Counsel for Satnam Singh, appellant, in this regard, being without merit, must fail, and the same stands rejected.
12. It was next submitted by the Counsel for Satnam Singh, appellant, that when the case property was produced, in the Court, the seals thereon, were found broken, and the paper chits containing the particulars of the case were not found in existence. He further submitted that, under these circumstances, it could not be said that the case property produced in the Court, at the time of evidence of the prosecution witnesses, was the same, as was allegedly Crl. Appeal No.925-SB of 2000 14 recovered from the appellant. He further submitted that, under these circumstances, it could be said that no recovery, whatsoever, was effected from the accused, but he was falsely implicated in the instant case. The bags containing poppy husk Ex.P1 to Ex.P5 were produced at the time of the evidence of Head Constable Ram Chander, ( PW5 ) on 17.12.1998. Some of the bags were found torn, and the seals on some of the bags were found broken. It may be stated here, that the recovery, in this case was effected on 29.05.1996, whereas, the case property was, in the first instance, was produced in the Court at the time of the evidence of Ram Chander, H.C. (PW5) after more than three years. The case property remained lying in the malkhana, where the case properties of other cases, were also lying. On account of shortage of space, in the malkhana, the case properties of the cases, cannot be stacked properly. If, on account of irresponsible handling, lapse of sufficient time, between the date of recovery, and production of the case property, in the Court, and during the course of transit, seals on some of the bags stood broken and some of the bags containing poppy husk underwent the process of decay, that did not mean that the case property, produced in the Court, did not stand connected with the case. Ram Chander, Head Constable, ( PW5 ) in clear-cut terms, stated that the bags, containing poppy husk, produced, in the Court, were the same, as were Crl. Appeal No.925-SB of 2000 15 recovered from the jeep, being driven by the Satnam Singh,accused. The only obligation, upon the prosecution, is to produce the case property, in the Court, and get it identified, from the prosecution witnesses, so as to connect the same, with the case. In the instant case, the prosecution produced the witnesses, who identified the case property, as the same, as was recovered from the accused. Under these circumstances, the case property produced in the Court, stood duly connected with the case. In this view of the matter, the submission of the Counsel for Satnam Singh, appellant, being without merit, must fail, and the same stands rejected.
13. It was next submitted by the Counsel for Satnam Singh, appellant, that no independent witness was joined, at the time of alleged search and seizure, as a result whereof, the case of the prosecution became doubtful. The submission of the Counsel for Satnam Singh, appellant, in this regard, does not appear to be correct. The alleged recovery, in this case, was effected at about 2.30 AM. At that odd hour of night, the possibility of the presence of an independent witness, at the spot, did not at all arise. It was, under these circumstances, that no independent witness could be joined. The mere fact, that the evidence of the official witnesses, was not corroborated, through an independent source, is not sufficient to disbelieve and distrust the same. In the face of Crl. Appeal No.925-SB of 2000 16 the evidence of the official witnesses only, the Court is required to be put on guard, to scrutinize the same, carefully and cautiously. After careful and cautious scrutiny, if the Court comes to the conclusion, that the same does not suffer from inherent infirmities, the same can be believed. The evidence of the prosecution witnesses, has been scrutinized carefully. Nothing came to the fore, during the course of their cross- examination, which may go to discredit the same. They stood the test of touch-stone of all probabilities, during the course of their cross-examination. In Akmal Ahmed Vs. State of Delhi, 1999(2) RCC 297 (S.C.), it was held that, it is now well-settled that the evidence of search or seizure, made by the police will not become vitiated, solely for the reason that the same was not supported by an independent witness. In State of NCT of Delhi Vs. Sunil (2000)I S.C.C. 748, it was held as under:-
"It is an archaic notion that actions of the Police officer, should be approached with initial distrust. It is time now to start placing at least initial trust on the actions and the documents made by the Police. At any rate, the Court cannot start with the presumption that the police records are untrustworthy. As a proposition of law, the presumption should be the other way round. The official acts of the Police have been regularly performed is a wise principle of presumption and recognized even by the Legislature."
Crl. Appeal No.925-SB of 2000 17 13-A In Appa Bai and another Vs. State of Gujrat, AIR 1988 S.C. 696, it was held that the prosecution story cannot be thrown out, on the ground, that an independent witness had not been examined, by the prosecution. It was further held, in the said authority, that the civilized people, are generally insensitive, when a crime is committed, even in their presence, and they withdraw from the victims' side, and from the side of the vigilant. They keep themselves away from the Courts, unless it is inevitable. Moreover, they think the crime like a civil dispute, between two individuals, and do not involve themselves, in it. The principle of law, laid down, in the aforesaid authorities, is fully applicable to the facts of the present case. In these circumstances, mere non-joining of an independent witness, when the evidence of the prosecution witnesses, has been held to be cogent, convincing, creditworthy, and reliable, and there was no reason, on their part to falsely implicate the accused, no doubt, is cast on the prosecution story. The submission of the Counsel for Satnam Singh appellant, in this regard, being without merit, must fail, and the same stands rejected.
14. It was next submitted by the Counsel for Satnam Singh, appellant, that the link evidence, in the instant case, was incomplete. He further submitted that, as per the prosecution story, and according to affidavit Ex.PB, seals Crl. Appeal No.925-SB of 2000 18 bearing impressions BS and SY were affixed on the case property and the sample parcels. He further submitted that as per the affidavit Ex.PD of Virender Singh, Constable he was handed over the sample parcels, bearing impression BS. He further submitted that this witness, in affidavit Ex.PD, did not state even a single word that the sample parcels also bore the seal impression 'SY'. It is, no doubt, true that, in the affidavit Ex.PD, there is no mention of the seal impression SY. It appears that it was, on account of inadvertence, that in the affidavit it was not mentioned that the sample parcels also had the seal bearing impression SY. When the sample parcels bearing the impression of the seals BS and SY were handed over to Virender Singh, Constable by the MHC, then how only the seal bearing impression BS could be found and not the seal bearing impression SY. Not only this, this fact stands further clarified from Ex.PC, the report of the Forensic Science Laboratory, Haryana. It is evident from this report, that five sample parcels, sealed with two seals of BS and one seal of SY, were received. The seals were intact and tallied with the sample impression of the seals. When, in the laboratory, the sample parcels bearing the seal impressions BS and SY reached, then how it can be said that when the same came to the hands of Virender Singh, Constable, seal bearing impression SY was not found in existence thereon. Such a Crl. Appeal No.925-SB of 2000 19 mistake was rightly ignored by the trial Court. The other evidence produced by the prosecution, clearly proved that none tampered with the sample parcels until the same reached the office of the Forensic Science Laboratory. In this view of the matter, the submission of the Counsel for Satnam Singh, appellant, being without merit, must fail, and the same stands rejected.
15. No other point, was urged, by the Counsel for the parties.
16. In view of the above discussion, it is held that the judgment of conviction and the order of sentence, qua Satnam Singh, accused, rendered by the trial Court, are based on the correct appreciation of evidence, and law, on the point. The same do not warrant any interference. The same are liable to be upheld.
17. The judgment of conviction and the order of sentence, rendered by the trial Court, qua Balwinder Singh, are not based, on the correct appreciation of evidence, and law, on the point, and, are, thus, liable to be set aside.
18. For the reasons recorded, hereinbefore, criminal appeal No. 1078-SB of 2000 filed by Satnam Singh, is dismissed. The judgment of conviction and the order of sentence qua Satnam Singh are upheld. If the appellant is on bail, his bail bonds shall stand cancelled.
Crl. Appeal No.925-SB of 2000 20
19. Criminal Appeal No. 925-SB of 2000 filed by Balwinder Singh, appellant is accepted. The judgment of conviction dated 24.08.2000, and the order of sentence dated 25.08.2000, qua Balwinder Singh, are set aside. Balwinder Singh, appellant shall stand acquitted of the charge, framed against him. If, he is on bail, he shall stand discharged of his bail bonds. If, he is in custody, he shall be set at liberty, at once, if not required in any other case.
20. The Chief Judicial Magistrate, shall take necessary steps, in accordance with the provisions of law, to comply with the judgment qua Satnam Singh, keeping in view the applicability of the provisions of Section 428 of the Code of Criminal Procedure , and qua Balwinder Singh, in accordance with law, with due promptitude and send the compliance report, within three months, from the date of receipt of a copy of the same.
(SHAM SUNDER)
September 08, 2008 JUDGE
dinesh