Himachal Pradesh High Court
Roshan Lal Son Of Ratti Ram vs State Of H.P. Rt on 4 November, 2015
Author: P.S.Rana
Bench: P.S.Rana
IN THE HIGH COURT OF HIMACHAL PRADESH,
.
SHIMLA:
Cr. Appeal No. 4175 of 2013.
Judgment reserved on: 23.9.2015
Date of Judgment: November 4, 2015.
____________________________________________________________
of
Roshan Lal son of Ratti Ram. .....Appellant.
Vs.
State of H.P. rt .....Respondent.
Coram:
Hon'ble Mr.Justice P.S.Rana, Judge.
Whether approved for reporting1?yes.
For the appellant: Mr.Anoop Chitkara, Advocate.
For the respondent: Mr.M.L.Chauhan, Addl.A.G and
Mr.J.S.Rana, Assistant Advocate
General.
P.S.Rana, Judge.
JUDGMENT:Present appeal is filed against the judgment and sentence passed by learned Special Judge Mandi HP in Whether reporters of the Local papers are allowed to see the judgment?yes.
::: Downloaded on - 15/04/2017 19:18:21 :::HCHP 2Session Trial No. 8 of 2009 titled State of HP Vs. Roshan Lal .
decided on 1.8.2013.
Brief facts of prosecution case.
2. It is alleged by prosecution that on dated 29.8.2008 PW7 Om Parkash along with Inspector Shamsher of Singh, PW6 Constable Pankaj Kumar, PW3 HC Rajesh Kumar, Constable Brijesh Kumar and Constable Jeet Ram were present at Shilla sward on Ghatashani Joginder Nagar road rt for traffic checking. It is further alleged by prosecution that at about 7.30 AM a maruti car came there in which PW2 Ramesh Kumar and one Manjeet Singh were sitting. It is further alleged by prosecution that vehicle was signalled to stop by police officials for the purpose of checking. It is further alleged by prosecution that in the meantime accused came from Barot side carrying bag on his left shoulder. It is further alleged by prosecution that when accused saw police officials he tried to run back and he was apprehended on suspicion. It is further alleged by prosecution that consent for search was obtained vide memo Ext PW6/A. It is further alleged by prosecution that all members of police party and witnesses have given their personal search vide memo Ext PW3/A but no ::: Downloaded on - 15/04/2017 19:18:21 :::HCHP 3 incriminating substance was found from possession of police .
officials and witnesses. It is further alleged by prosecution that thereafter bag was searched which was in the possession of accused. It is further alleged by prosecution that in bag another polythene bag was kept containing charas in the of shape of sticks. It is further alleged by prosecution that 850 grams charas was found from exclusive and conscious possession of accused. It is further alleged by prosecution that rt two samples each weighing 25 grams were separated from charas and thereafter sealed in separate parcel. It is further alleged by prosecution that specimen of seal Ext PW6/B was obtained vide memo Ext PW2/B. It is further alleged by prosecution that NCB form Ext PW7/A was filled in triplicate and seal after use was handed over to Manjeet Singh. It is further alleged by prosecution that rukka Ext PW7/B was prepared and was sent to police station through constable Rajesh Kumar and on receipt of rukka FIR Ext PW5/B was registered. It is further alleged by prosecution that spot map Ext PW7/C was prepared. It is further alleged by prosecution that case property along with sample seal, NCB form and seizure memo were produced before Inspector Shamsher ::: Downloaded on - 15/04/2017 19:18:21 :::HCHP 4 Singh who resealed each parcels. It is further alleged by .
prosecution that resealing certificate Ext PW7/E was issued by SHO. It is further alleged by prosecution that thereafter case property along with sample of seal, NCB form and seizure memo were deposited with ASI Kuldeep Singh who recorded of entry in malkhana register. It is further alleged by prosecution that abstract of malkhana register is Ext PW5/E. It is further alleged by prosecution that on dated 3.9.2008 sample parcel rt along with sample seal, NCB form in triplicate and seizure memo were forwarded to FSL Junga through constable Rajinder Singh vide RC Ext PW1/A. It is further alleged by prosecution that report of chemical examiner Ext PW7/F was obtained. It is further alleged by prosecution that special report Ext PW6/C was prepared and was forwarded to S.P SV &ACB Mandi through constable Pankaj Kumar. Charge was framed by learned Special Judge Mandi on dated 1.11.2011 under Section 20 of Narcotic Drugs and Psychotropic Substance Act 1985. Accused did not plead guilty and claimed trial.
::: Downloaded on - 15/04/2017 19:18:21 :::HCHP 53. Prosecution examined seven oral witnesses in support .
of its case and also produced documentaries evidence.
4. Statement of accused under Section 313 Cr.PC was also recorded. Accused did not lead any defence evidence.
Learned trial Court convicted appellant to undergo rigorous of imprisonment for a period of five years and to pay fine to the tune of Rs.50,000/- (Fifty thousand). Learned trial Court further directed that in default of payment of fine appellant rt shall further undergo simple imprisonment for a period of one year. Learned trial Court further directed that period of detention undergone by convict during investigation and trial will be set off as provided under Section 428 Cr.PC.
5. Feeling aggrieved against the judgment and sentence passed by learned Special Judge Mandi appellant filed present appeal.
6. Court heard learned Advocate appearing on behalf of appellant and learned Additional Advocate General appearing on behalf of respondent and also perused entire record carefully.
7. Following points arise for determination in the present criminal appeal:
::: Downloaded on - 15/04/2017 19:18:21 :::HCHP 61. Whether learned trial Court did not properly .
appreciate oral as well as documentary evidence placed on record and whether learned trial Court caused miscarriage of justice to appellant as alleged in memorandum of grounds of appeal?
2. Final order.
8. Findings upon point No.1 with reasons.
of 8.1 PW1 Constable Rajinder Singh has stated that he was posted at police station SV&ACB Mandi since 2005. He rt has stated that on dated 3.9.2008 MHC police station SV & ACB Mandi Kuldeep Singh handed over him one parcel which was marked as mark 'A' containing 25 grams charas. He has stated that parcel was sealed with six seals. He has stated that along with parcel, MHC also handed over to him specimen seal impressions of seal 'S' and 'K', copy of FIR, one NCB form vide RC No. 20/2008 with direction to deposit same in the office of Directorate FSL Junga. He has stated that he deposited case property in the office of FSL Junga on dated 3.9.2008. He has stated that copy of RC is Ext PW1/A, copy of receipt of FSL Junga is Ext PW1/B which are correct as per original RC brought by him in Court. He has stated that case property remained intact in his custody. He has denied ::: Downloaded on - 15/04/2017 19:18:21 :::HCHP 7 suggestion that no case property was given to him. He has .
denied suggestion that he did not deposit sample in the office of FSL Junga.
8.2 PW2 Ramesh Kumar independent witness has stated that he is taxi driver by profession. He has stated that of in the month of August 2008 he was in possession of maruti car having registration No. HP 58-1929. He has stated that on dated 29.8.2008 he along with his friend Manjeet Singh was rt going towards Barot from Joginder Nagar. He has stated that they stayed at Joginder Nagar and when they proceeded to Barot police officials met them at place Ghatasani. He has stated that his vehicle was stopped by police officials. He has stated that police officials told them that they had recovered charas and they directed them to sign some papers.
Independent witness was declared hostile by prosecution. He has denied suggestion that when accused saw police officials he turned back and tried to run away. He has denied suggestion that accused was nabbed by police officials. He has denied suggestion that police officials have given their personal search to accused. He has denied suggestion that bag of accused was searched in his presence. He has denied ::: Downloaded on - 15/04/2017 19:18:21 :::HCHP 8 suggestion that polythene bag was found from the possession .
of accused. He has denied suggestion that charas was found from possession of accused. He has denied suggestion that seal was handed over to witness Manjeet Singh. He has denied suggestion that he had signed consent memo. He has denied of suggestion that investigating officer prepared rukka and sent the same to police station. He has denied suggestion that whole proceedings conducted by police officials in his rt presence. He has stated that all papers as well as parcels were prepared by police officials in a hotel. He has stated that no proceeding was conducted at the spot in his presence.
8.3. PW3 Rajesh Kumar official witness has stated that he was posted as constable general duty in police station SV & ACB Mandi in the year 2008. He has stated that on dated 29.8.2008 police officials under the leadership of Inspector Samsher Singh consisting him, constable Pankaj Kumar, constable Jeet Ram and constable Brijesh Kumar were present at place known as Shilla Shayad. He has stated that at about 7.30 AM maruti car No. HP 58-1929 came there. He has stated that two persons were sitting in maruti car. He has stated that Manjeet Singh was the driver of vehicle ::: Downloaded on - 15/04/2017 19:18:21 :::HCHP 9 and second person travelling in the vehicle was Ramesh .
Kumar. He has stated that when vehicle No. HP 58-1929 was searched they noticed a person came from Jhatingri side. He has stated that said person was carrying black bag on his left shoulder. He has stated that when accused saw police officials of he at once turned back and tried to run away. He has stated that said person was chased by police officials and was nabbed at a distance of about 50 meters. He has stated that rt accused disclosed his name as Roshan Lal. He has stated that thereafter investigating officer had given option to accused whether he wanted his search in the presence of some gazetted officer or magistrate. He has stated that accused had given consent that he should be searched in the presence of police officials. He has stated that memo was prepared and thereafter police officials have given their personal search. He has stated that independent witnesses also given their personal search. He has stated that no incriminating article was found from the possession of police officials and independent witnesses. He has stated that bag which was in possession of accused was searched and said bag was found containing polythene envelope. He has stated that when the ::: Downloaded on - 15/04/2017 19:18:21 :::HCHP 10 same was opened it was found containing black coloured .
substance in the shape of sticks. He has stated that substance was found to be contraband i.e. charas. He has stated that memo Ext PW2/C was prepared. He has stated that when contraband was weighed same was found to be 850 of grams. He has stated that thereafter investigating officer separated two samples of 25 grams each for chemical analysis. He has stated that thereafter samples were sealed in rt a cloth parcel and remaining charas was also sealed. He has stated that seal after use was handed over to Manjeet Singh.
He has stated that thereafter investigating officer prepared rukka. He has stated that after registration of FIR case file was given to him and he handed over the same to investigating officer. He has stated that parcels Ext P1, Ext P2 and Ext P4 and specimen seal Ext P4 are the same which were prepared by investigating officer at the spot. He has stated that outer polythene envelope is Ext P5 and inner polythene envelope is Ext P6 and charas is Ext P7. He has stated that black coloured bag is Ext P8. He has stated that charas Ext P7 was found from bag Ext P8. He has denied suggestion that accused was not nabbed. He has denied suggestion that no ::: Downloaded on - 15/04/2017 19:18:21 :::HCHP 11 contraband was recovered from accused. He has denied .
suggestion that no rukka was given to him. He has denied suggestion that accused did not flee away from the spot. He has denied suggestion that accused had not given his consent for his personal search. He has denied suggestion that no of proceedings took place at the spot.
8.4 PW4 Inspector Vinod kumar has stated that he was posted as SHO in police station SV & ACB Mandi. He has rt stated that after completion of investigation file was produced before him and he found prima facie case under Section 20 of ND&PS Act. He has stated that he prepared challan and submitted the same in Court.
8.5. PW5 ASI Kuldeep Singh has stated that he remained posted as MHC in police station SV&ACB Mandi from April 2007 to December 2009. He has stated that on dated 28.8.2008 Inspector Shamsher Singh got recorded his departure report along with other police officials. He has stated that on dated 29.8.2008 constable Rajesh Kumar brought rukka mark 'X' to police station which was sent by SI Om Parkash. He has stated that he recorded FIR on the direction of Inspector Shamsher Singh. He has stated that FIR ::: Downloaded on - 15/04/2017 19:18:21 :::HCHP 12 is Ext PW5/B. He has stated that thereafter on dated .
29.8.2008 Inspector Shamsher Singh recorded arrival report vide rapat No.8 copy of which is Ext PW5/D which is correct as per record. He has stated that Inspector Shamsher Singh deposited three parcels with him two were sample parcels and of one was bulk parcel. He has stated that he also deposited specimen of seal. He has stated that in addition to sample parcels black coloured bag was also deposited and entered rt same at serial No.42 in register No.19. He has stated that abstract of the same is Ext PW5/E. He has stated that on dated 3.9.2008 he sent one sample parcel to FSL Junga through constable Rajinder Singh and also sent copy of FIR, copy of recovery memo, NCB form and sample seals vide R.C No. 20/2008. He has stated that copy of RC is Ext PW1/A. He has stated that constable Rajinder Singh deposited case property in the office of FSL Junga vide receipt Ext PW1/B. He has stated that thereafter he returned RC and receipt to him.
He has stated that case property remained intact in his custody. He has denied suggestion that all rapat rojnamcha were recorded later on. He has denied suggestion that no case property was deposited with him. He has denied suggestion ::: Downloaded on - 15/04/2017 19:18:21 :::HCHP 13 that he did not sent case property to the office of FSL Junga.
.
He has denied suggestion that case property was tampered by him.
8.6. PW6 Pankaj Kumar has stated that he was posted as HHC in police station SV&ACB Mandi. He has stated that of on dated 29.8.2008 he along with constable Rajesh Kumar, constable Brijesh Kumar, constable Jeet Ram, SI Om Parkash and Inspector Shamsher Singh went to Ghatashani for traffic rt checking in vehicle No. HP 33A-8793. He has stated that at about 7.30 AM maruti car of white colour having registration No. HP 58-1929 came from Ghatashani side in which two persons were sitting. He has stated that said car was stopped for checking. He has stated that occupants of car disclosed their names Manjeet Singh and Ramesh Kumar. He has stated that in the mean time a person came from Jhatingri side who was in possession of bag on his left shoulder. He has stated that when accused saw police officials he tried to run backward side. He has stated that accused was caught with the help of police officials in the presence of two independent witnesses namely Manjeet Singh and Ramesh Kumar. He has stated that accused disclosed his name as Roshan Lal son of ::: Downloaded on - 15/04/2017 19:18:21 :::HCHP 14 Ratti Ram. He has stated that investigating officer has given .
his introduction to accused and obtained his consent regarding his personal search. He has stated that investigating officer told him that he could get his personal search in the presence of magistrate or gazetted officer. He has stated that of thereafter investigating officer, police officials and witnesses gave their personal search to accused. He has stated that during personal search of witnesses and police officials by rt accused no incriminating article was recovered. He has stated that thereafter search of accused was carried out. He has stated that during search when bag of accused was checked it was containing a polythene envelope. He has stated that charas in the shape of sticks was found in the polythene envelope. He has stated that charas was weighed and on weighment it was found 850 grams. He has stated that thereafter investigating officer mixed recovered charas and took two homogeneous samples of 25 grams each. He has stated that thereafter samples were put in two separate polythene envelopes and were sealed in a parcel. He has stated that remaining bulk charas weighing 800 grams was put into same parcel and parcel was sealed. He has stated ::: Downloaded on - 15/04/2017 19:18:21 :::HCHP 15 that seal after use was handed over to witness Manjeet Singh.
.
He has stated that investigating officer filled NCB forms in triplicate and thereafter recovered charas was taken into possession vide seizure memo Ext PW2/A. He has stated that thereafter investigating officer handed over special report Ext of PW6/C to him. He has stated that thereafter he handed over special report to SP Vigilance. He has stated that charas Ext P7 is the same which was recovered from possession of rt accused. He has stated that sample was not made homogeneous. He has stated that he does not know how investigating officer drew sample. He has denied suggestion that accused was not apprehended. He has denied suggestion that no charas was found from the possession of accused. He has denied suggestion that all proceedings conducted in police station. He has denied suggestion that false case filed against accused. He has denied suggestion that case property was tampered.
8.7. PW7 Om Parkash has stated that he remained posted as investigating officer in police station SV&ACB Mandi during the year 2008. He has stated that on dated 29.8.2008 he along with inspector Shamsher Singh, constable Pankaj ::: Downloaded on - 15/04/2017 19:18:21 :::HCHP 16 Kumar, constable Rajesh Kumar, Brijesh Kumar and .
constable Jeet Ram were present at Shilla Sward at Ghatashani Joginder Nagar road. He has stated that at about 7.30 AM maruti car having registration No. HP 58-1929 came from Ghatashani side which was signaled to stop. He has of stated that car was driven by Manjeet Singh and another occupant was Ramesh Kumar. He has stated that when said vehicle was in the process of checking in the meanwhile rt accused Roshan Lal came from Barot side carrying a bag on his left shoulder. He has stated that when accused saw police officials he tried to turn back and on suspicion he was nabbed by police officials. He has stated that consent of accused was obtained vide memo Ext PW6/A. He has stated that police officials and independent witnesses have given their personal search to accused. He has stated that thereafter search of the bag of accused was conducted in the presence of witnesses namely Manjeet Singh, Ramesh Kumar and Pankaj Kumar. He has stated that polythene bag was recovered inside the bag of accused and on opening said bag it was containing charas in the shape of sticks. He has stated that charas was weighed and it was found 850 grams. He has stated that charas was ::: Downloaded on - 15/04/2017 19:18:21 :::HCHP 17 made homogeneous by mixing the same and two samples 25 .
grams each were separated. He has stated that NCB form Ext PW7/A was filled in triplicate and seal after use was handed over to witness Manjeet Singh. He has stated that spot map Ext PW7/C was prepared and statements of witnesses were of recorded as per their versions. He has stated that case property along with sample seals, NCB form and seizure memo were produced before inspector Shamsher Singh. He rt has stated that each parcels were resealed by SHO and resealing certificate Ext PW7/E was issued by SHO. He has stated that thereafter he recorded statement of reader to SP Sh. Brahma Nand, MHC Kuldeep Singh and constable Rajinder Singh as per their versions. He has stated that on receipt of report of chemical examiner Ext PW7/F case file was handed over to inspector Vinod Kumar who prepared challan and submitted same in Court. He has stated that bag Ext P8, outer polythene packet Ext P5, inner polythene packet Ext P6 and charas Ext P7 are the same which were recovered from the possession of accused. He has stated that samples Ext P1 and Ext P2 and parcel containing bulk is Ext P3 are the same which were prepared at the spot. He has stated that inner ::: Downloaded on - 15/04/2017 19:18:21 :::HCHP 18 cloth parcel is Ext P9. He has denied suggestion that accused .
was not apprehended by him. He has denied suggestion that no search of bag was conducted. He has denied suggestion that no contraband was recovered from the bag of accused. He has denied suggestion that statement of witnesses were not of recorded as per their versions.
9. Prosecution also tendered following documentaries rt evidence. (1) Ext PW1/A copy of R.C (2) Ext PW2/A seizure memo of 850 grams of charas.(3) Ext PW2/B memo regarding specimen of seal (4) Ext PW2/C memo regarding identification of contraband. (5) Ext. PX memo regarding production of case property in the court. (6) Ext PW3/A memo regarding personal search of independent witnesses and police officials (7) Ext PW5/A rapat No.18 dated 28.8.2008 (8) Ext PW5/B FIR (9) Rukka sent to police station by I.O. (10) Ext PW5/D rapat No.8 dated 29.8.2008 (11) Ext PW5/E extract of malkhana register (12) Ext PW6/A memo under section 50 NDPS Act.
(13) Ext PW6/B seal impression upon cloth (14) Ext PW6/C special report under section 57 NDPS Act (15) Ext PW7/A NCB Form (16) Ext PW7/C site plan (17) Ext PW7/F resealed ::: Downloaded on - 15/04/2017 19:18:21 :::HCHP 19 certificate under section 55 NDPS Act. (18) Ext PW7/F .
examination report submitted by SFSL Junga (HP).
(A) Testimony of independent marginal witnesses of seizure memo of contraband is fatal to prosecution case__________.
10. It is the case of prosecution that contraband i.e. of charas to the quantity of 850 grams was recovered from exclusive and conscious possession of accused in the presence of independent marginal witness namely Manjeet Singh, rt Ramesh Kumar and constable Pankaj Kumar as per seizure memo Ext PW2/A placed on record. Court has carefully perused testimony of independent witnesses PW2 Ramesh Kumar. PW2 has denied suggestion that accused started running back when he saw police officials. PW2 has denied suggestion of prosecution that accused was nabbed by police officials. PW2 has denied suggestion that accused had disclosed his name as Roshan Lal. PW2 has denied suggestion that police officials who were present at the spot and independent witnesses have given their personal search to accused. PW2 has denied suggestion in positive manner that bag of accused was searched in the presence of independent witness. PW2 has denied suggestion that during search of bag ::: Downloaded on - 15/04/2017 19:18:21 :::HCHP 20 white polythene envelope was recovered. PW2 has denied .
suggestion that charas was found in polythene envelope which was in the possession of accused. PW2 has denied suggestion that three parcels were sealed with six seal of impression 'K'.
PW2 has denied suggestion that seal after use was handed of over to witness Manjeet Singh. PW2 has denied suggestion that consent memo of accused was signed by him. PW2 has denied suggestion that investigating officer prepared rukka rt and sent the same to police station through constable Rajesh Kumar. PW2 has denied suggestion that entire proceeding conducted by police officials in his presence as well as in the presence of Manjeet Singh. PW2 has denied suggestion that charas placed in three parcels was recovered in his presence from the bag of accused. PW2 has stated in positive manner that all papers as well as parcels were prepared by police officials in a hotel. In the present case independent witness namely PW2 Ramesh Kumar did not support prosecution case as alleged by prosecution. Hence it is held that testimony of PW2 independent witness is fatal to prosecution in present case.
::: Downloaded on - 15/04/2017 19:18:21 :::HCHP 21(B) Non-examination of another independent witness Manjeet .
Singh is fatal to prosecution case despite his presence in court_______________________________________________________.
11. It is the case of prosecution that 850 grams charas was recovered from exclusive and conscious possession of accused in the presence of independent witness of Manjeet Singh. It is also the case of prosecution that seal after use was handed over to independent witness Manjeet Singh.
rt Prosecution did not examine Manjeet Singh in Court. It is held that when independent witness Ramesh Kumar did not support prosecution case then non-examination of another marginal witness of seizure memo namely Manjeet Singh in Court is also fatal to prosecution case. In the present case no positive, cogent and reliable reason assigned by prosecution as to why prosecution did not examine another independent witness namely Manjeet Singh when PW2 Ramesh Kumar did not support prosecution case. Hence it is held that non-
examination of another independent witness namely Manjeet Singh is also fatal to prosecution in present case. It is proved on record that on dated 22.5.2012 Manjeet Singh independent witness was present in Court but he was not examined by ::: Downloaded on - 15/04/2017 19:18:21 :::HCHP 22 learned public prosecutor Sh N.S.Katoch and no plausible .
explanation has been given by learned public prosecutor for non-examination of Manjeet Singh independent witness who was present in Court on dated 22.5.2012. On dated 22.5.2012 public prosecutor namely Sh. N.S.Katoch has given statement of that he does not want to examine independent witness namely Manjeet Singh who was present in Court won over by accused.
Court is of the opinion that when Manjeet Singh was present rt in Court on dated 22.5.2012 for recording his statement and when PW2 Ramesh Kumar did not support prosecution case it was expedient in the ends of justice to examine Manjeet Singh to elicit truth from Manjeet Singh independent witness. Hence it is held that non-examination of Manjeet Singh independent witness who was present in Court on dated 22.5.2012 is also fatal to prosecution case and adverse inference is drawn against prosecution under section 114 (G) of Indian Evidence Act 1872.
(C) Two views theory is proved in present case which is fatal to prosecution case____________________________________________.
12. It is well settled law that seizure memo of contraband Ext PW2/A is the substantial piece of ::: Downloaded on - 15/04/2017 19:18:21 :::HCHP 23 documentary evidence. It is well settled law that contents of .
document can be proved only by way of testimony of marginal witnesses only. In seizure memo Ext PW2/A marginal witnesses are (1) Manjeet Singh (2) Ramesh Kumar (3) Constable Pankaj Kumar. In the present case one marginal of witness of seizure memo Ext PW2/A namely Ramesh Kumar did not support prosecution case as alleged by prosecution and another marginal witness namely Pankaj Kumar has rt supported prosecution case as alleged by prosecution. There are material contradictions between the testimonies of PW2 Ramesh Kumar and PW6 HC Pankaj Kumar relating to recovery of charas from exclusive and conscious possession of accused. PW2 Ramesh Kumar marginal witness has specifically stated in positive manner that no charas was recovered from exclusive and conscious possession of accused in his presence. On the contrary constable Pankaj Kumar has stated that 850 grams charas was recovered from accused in his presence. In view of material contradictions between testimonies of marginal witnesses of seizure memo Court is of the opinion that two views have emerged in present case. It is ::: Downloaded on - 15/04/2017 19:18:21 :::HCHP 24 well settled law that when two views emerged in criminal case .
then benefit of doubt should be given to accused.
(D) Testimony of PW3 HC Rajesh Kumar is not sufficient for conviction as PW3 is not marginal witness of seizure memo Ext PW2/A and same fact is fatal to prosecution case_______.
13. Court has also perused testimony of PW3 HC of Rajesh Kumar. PW3 Rajesh Kumar is not marginal witness of seizure memo Ext PW2/A. It is held that it is not expedient in rt the ends of justice to convict appellant simply on the testimony of PW3 Rajesh Kumar because PW3 is not marginal witness of seizure memo Ext PW2/A. It is well settled law that as per Indian Evidence Act 1872 contents of document can be proved only by witness who is signatory to document. PW3 is not signatory to seizure memo Ext PW2/A. Hence it is held that contents of seizure memo of contraband could not be proved as per testimony of PW3 HC Rajesh Kumar. PW2 Ramesh Kumar who is signatory to seizure memo of contraband did not prove contents of seizure memo of contraband Ext PW2/A placed on record and prosecution did not examine another independent witness namely Manjeet Singh despite his presence in Court on dated 22.5.2012 in ::: Downloaded on - 15/04/2017 19:18:21 :::HCHP 25 order to prove contents of seizure memo of contraband Ext .
PW2/A placed on record. As per section 61 of Indian Evidence Act 1872 contents of document should be proved by way of primary evidence or by way of secondary evidence. No application filed by prosecution to prove content of document of i.e. seizure memo of contraband by way of secondary evidence as mentioned under section 63 of Evidence Act 1872 or by way of oral accounts as provided under section 63(5) of Indian rt Evidence Act 1872.
(E) Non-issuance of certificate in chemical examiner report that seals of sample parcels were intact and tallied with seal impression separately sent in the office of FSL Junga is also fatal to prosecution_________________________________________.
14. Court has carefully perused chemical examiner report Ext PW7/F placed on record submitted by HP State Forensic Science Laboratory Junga. There is no certificate in examination report submitted by FSL Junga that seal of sample parcels were intact and tallied with seal impression separately sent for comparison. Hence it is held that in the absence of recital in examination report sent by HP State Forensic Science Laboratory Junga that seal of sample parcels ::: Downloaded on - 15/04/2017 19:18:21 :::HCHP 26 were intact and tallied with seal impression separately sent for .
comparison is also fatal to prosecution.
(F) Testimony of marginal witness PW6 HC Pankaj Kumar in cross examination that sample was not made homogeneous is also fatal to prosecution__________________________________.
15. PW6 HC Pankaj Kumar in examination-in-chief of has stated that investigating officer mixed recovered charas and took two homogeneous sample of 25 grams each. In cross rt examination PW6 HC Pankaj has stated that samples were not taken homogeneously. The above stated two contradictory statements of PW6 HC Pankaj Kumar in examination-in-chief and cross examination is also fatal to prosecution case.
(G) There are material contradictions in the testimonies of official witnesses which is also fatal to prosecution.__________
16. PW7 Om Parkash investigating officer has stated that police officials reached at the spot at 11.30 PM on 28.8.2008 in examination in chief. PW3 HC Rajesh Kumar has stated in cross-examination that police officials reached at the spot at 6.30 AM. PW6 HC Pankaj Kumar has stated in cross examination that police officials reached at the spot at 1-2 AM on 29.8.2008. It is held that above stated material ::: Downloaded on - 15/04/2017 19:18:21 :::HCHP 27 contradictions in the testimony of police officials also creates .
doubt in the mind of Court. Hence it is held that testimony of official witnesses did not inspire confidence of Court.
(H) Non-production of original seal in Court is also fatal to prosecution case___________________________________________.
of
17. It is the case of prosecution that original seal was handed over to independent witness namely Manjeet Singh after use. Although independent witness Manjeet Singh was rt present in Court on dated 22.5.2012 but he was not examined by prosecution and original seal was not produced in Court for inspection of Court. There is no evidence on record that original seal was lost. Hence it is held that non-production of original seal in court is also fatal to prosecution in the present case.
18. It was held by Hon'ble Apex Court of India in case reported in 2011 (6) SCC 312 titled Yomeshbhai Pranshankar Bhatt Vs. State of Gujarat that evidence of hostile witness may contain elements of truth and should not be entirely discarded. Also see AIR 1989 SC 1543 titled State of UP Vs. Chet Ram. Also see AIR 1991 S.C 1853 titled Khujji alias Surendra Tiwari Vs. Stat of M.P. Also see 2012 (4) SCC 327 ::: Downloaded on - 15/04/2017 19:18:21 :::HCHP 28 titled Bhajju alias Karan Singh Vs. State of Madhya Pradesh.
.
Also see 1999 (8) SCC 624 titled Koli Lakhmanbhai Chanabhai Vs. State of Gujarat. Also see 2010 (8) SCC 536 titled Prithi Vs. State of Haryana. Also see 2010 (6) SSC 1 titled Sidhartha Vashisht Vs. State (NCT of Delhi). Also see of 2007 (13) SCC 525 titled Ramkrushna Vs. State of Maharashtra. Also see 2012 (5) SCC 77 titled Ramesh Harijan Vs. State of Uttar Pradesh. Also see AIR 1976 SC 202 titled rt Bhagwan Singh Vs. State of Haryana. Also see 1977 SC 170 titled Ravindra Kumar Dey Vs. State of Orissa. Also see AIR 1979 SC 1848 titled Syad Akbar Vs. State of Karnataka.
19. It was held in case reported in Latest HLJ 2004 (HP) 642 titled State of HP Vs. Hanacho alias Stewart that if independent witness did not support prosecution case then benefit of doubt should be given to accused in ND&PS cases.
It was held in case reported in 1998 (2) SLJ 1408 titled Shashi Pal and others Vs. State of HP that when two versions appear in the prosecution evidence then version beneficial to accused should be adopted. Also see 1993 (1) SLJ 405 titled State of HP Vs. Sudarshan Singh. Also see 1995 (3) SLJ 1819 titled State of HP Vs. Inder Jeet and others.
::: Downloaded on - 15/04/2017 19:18:21 :::HCHP 2920. It was held in case reported in 2005 (9) SCC 765 .
titled Anjlus Dungdung Vs. State of Jharkhand that suspicion however strong cannot take place of proof. It was held in case reported in 2010 (11) SCC 423 titled Nanhar Vs. State of Haryana that prosecution must stand or fall on its own leg of and it cannot derive any strength from the weakness of the defence. It is well settled law that conjecture or suspicion cannot take the place of legal proof.
rt See AIR 1967 SC 520 titled Charan Singh Vs. State of Uttar Pradesh. Also see AIR 1971 SC 1898 titled Gian Mahtani Vs. State of Maharashtra.
It was held in case reported in AIR 1979 SC 1382 titled State (Delhi Administration) Vs. Gulzarilal Tandon that moral conviction however strong or genuine cannot amount to legal conviction sustainable in law. Also see AIR 1984 SC 1622 titled Sharad Birdhichand Sarda Vs. State of Maharashtra.
Also see 1983 SC 906 titled Bhugdomal Gangaram and others Vs. State of Gujarat. Also see AIR 1985 SC 1224 titled State of UP Vs. Sukhbasi and others. In view of above stated facts and case law cited supra point No.1 is answered in affirmative in favour of appellant.
::: Downloaded on - 15/04/2017 19:18:21 :::HCHP 30Point No.2 Final order.
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21. In view of findings on point No.1 appeal is accepted. Judgment and sentence passed by learned Special Judge Mandi HP set aside. It is held that learned trial Court did not properly appreciate oral as well as documentary of evidence placed on record. Appellant is acquitted qua offence punishable under Section 20 ND&PS Act 1985 by way of giving him benefit of doubt. Case property will be confiscated rt to the State of HP after expiry of limitation for filing further criminal proceedings before competent Court of law. Registrar Judicial will issue release warrant of appellant forthwith in accordance with law if appellant is not required in any other case. File of learned trial Court along with certified copy of judgment be sent back forthwith and file of this Court be consigned to record room forthwith after due completion.
Appeal is disposed of. Pending applications if any also disposed of.
(P.S.Rana), Judge.
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