IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No. 271 of 2016 a/w Cr.Appeal No. 320 of 2016 .
Date of Decision: March 6, 2018
1. Cr.Appeal No. 271 of 2016 [ENTITY] Appellant.
Versus [ENTITY] Respondent.
2. [CASE NUMBER] [ENTITY] Appellant.
Versus [ENTITY] Respondent. Coram:
The Hon'ble Mr. Justice [ENTITY], Acting Chief Justice. The Hon'ble Mr. Justice [ENTITY], Judge. Whether approved for reporting?1 For the Appellants: Mr. [ENTITY], Advocate, for the appellant in [CASE NUMBER].
Mr.[ENTITY], Advocate, for the appellant in [CASE NUMBER].
For the Respondent: Mr. [ENTITY], Advocate General, with Mr.[ENTITY], Deputy Advocate General.
[ENTITY], ACJ.
In these appeals filed under [SECTION] [ACT], convicts [ENTITY] and [ENTITY] have assailed judgment dated 02.05.2016 / 05.05.2016, Whether reporters of the local papers may be allowed to see the judgment?
passed by Special Judge-(II), Shimla, H.P., in Sessions Trial No.16-S/7 of 2015, titled as [ENTITY] Versus [ENTITY] & another, whereby .
they stand convicted for having committed an offence punishable under the provisions of [SECTION] of the [ACT] (hereinafter referred to as the [ACT]) and sentenced to serve rigorous imprisonment for a period of ten years each and pay fine of `1,00,000/- each and in default thereof, further to undergo simple imprisonment for a period of one year
2. In short, it is the case of prosecution that on 08.02.2015, police party headed by ASI [ENTITY] (PW.13), recovered 1 kg 100 grams of charas from the conscious possession of accused [ENTITY] and [ENTITY]. The charas was recovered from a vehicle bearing registration No.CH-03D-7692, driven by accused [ENTITY] and the bag was kept under the front seat of the car over which accused [ENTITY] was sitting.
The recovery was effected in the presence of independent witness [ENTITY] (PW.1) and police officials [ENTITY] (PW.2) and [ENTITY] (PW.3).
FIR No.8 of 2015, dated 08.02.2015 (Ex.PW.10/A) was registered by [ENTITY] (PW.10), for commission of offence punishable under the provisions of [SECTION] of .
the [ACT] at Police Station, Jubbal, District Shimla, H.P. With the completion of proceedings on the spot, including the accused being searched and the NCB form (Ex.PW.13/A) filled up, contraband substance was deposited in the malkhana by [ENTITY] (PW.10).
[ENTITY] (PW.5) carried the recovered stuff for chemical analysis and the report of the Chemical Analyst (Ex.PW.13/H) alongwith the contraband substance was brought by [ENTITY] (PW.12). Special report (Ex.PW.11/A) so handed over by [ENTITY] (PW.7) was received by [ENTITY] (PW.11) in the office of SDPO, Rohru. With the completion of proceedings, which prima facie revealed complicity of the accused in the alleged crime, SI [ENTITY] (PW.9) presented the challan in the Court for trial.
3. Both the accused were charged for having committed an offence punishable under the provisions of [SECTION] of the [ACT], to which they did not plead guilty and claimed trial.
4. In order to establish its case, in all, prosecution examined as many as thirteen witnesses and statements of the accused under [SECTION] of the Code .
of Criminal Procedure were also recorded, in which they took the plea of false implication. No evidence was led in defence.
5. Appreciating the evidence on record, Trial Court found the prosecution to have proven its case, beyond reasonable doubt, and as such, by convicting the accused sentenced them to serve imprisonment and pay fine.
6. Correctness of the findings returned by the Court below are subject matter in the present appeals, so filed by both the convicts.
7. We have heard M/s [ENTITY] and [ENTITY], learned counsel, on behalf of the convicts-
appellants as also Mr.[ENTITY], learned Advocate General, on behalf of the State. We have also minutely examined the testimonies of the witnesses and other documentary evidence so placed on record by the prosecution. Having done so, we are of the considered view that no case for interference is made out at all. We find the findings returned by the trial Court to be based on complete, correct and proper appreciation of evidence (documentary and ocular) so placed on record. There is .
neither any illegality/infirmity nor any perversity with the same, resulting into miscarriage of justice. Prosecution has been able to prove its case, beyond reasonable doubt against the convict.
8. Learned counsel appearing for the convicts have raised following submissions: (a) Prosecution story, being shrouded with suspicion is untrustworthy; (b) Contradictions in the testimonies of the witnesses have rendered the prosecution case to be doubtful; (c) Provisions of [SECTION] of the [ACT] stand impeached, entitling automatic acquittal of the accused
(d) Similarly non compliance of provisions of [SECTION] of the [ACT] have rendered the prosecution case to be fatal; (e) Also there is non compliance of [SECTION] of the [ACT], thus entitling the accused for acquittal.
9. In the instant case, it is not disputed before us that contraband substance stands recovered not from the "person" of the accused, but from the bag concealed under the front seat of the car, over which accused [ENTITY] was sitting when accused [ENTITY] was on the wheels. ASI [ENTITY] (PW.13) does state .
that after recovery of the bag containing the contraband substance, which appeared to be charas, accused were also searched.
10. Allegedly proceedings of recovery and search of the person of the accused took place in the presence of witnesses be it police officials or independent witness [ENTITY] (PW.1).
r Having minutely perused the testimonies of [ENTITY] (PW.1), [ENTITY] (PW.2) and [ENTITY] (PW.3), we find these witnesses to have corroborated the version of ASI [ENTITY] (PW.13), who states that only after the contraband substance was recovered, did he search the accused persons.
11. This Court in [CASE NUMBER], titled as Sohan Lal vs. [ENTITY], decided on 02.11.2016, with similar facts had an occasion to deal with the decisions rendered by the Apex Court in [PRECEDENT]; [PRECEDENT] and State of Rajasthan vs. [PRECEDENT] and another, (2014) 5 SCC 345, the judgments cited on behalf of the appellants.
12. After minute scrutiny, this Court found itself to .
be bound by the decisions rendered by the larger/earlier Benches of Apex Court in [PRECEDENT]; [PRECEDENT] and not [PRECEDENT] (supra);
[PRECEDENT] (supra); and [PRECEDENT] (supra). Hence, in our considered view, contention that search is illegal or there has been violation of mandatory provisions of [SECTION] of the [ACT] is untenable in law. Thus trial cannot be said to be vitiated. Simply because the accused were also searched after recovery of the contraband substance, that fact itself would not vitiate the trial, for no prejudice stands shown by the accused in the search of their person, in violation of the provisions of [SECTION] of the [ACT].
13. From the testimony of ASI [ENTITY] (PW.13), we notice that regularly posted SHO was not on duty on the day of occurrence of the incident and in fact, in his place, it was the said witness, who was officiating as the SHO. Hence, there was no question of entrusting the property to the SHO or the same to be resealed specially when entire proceedings of depositing the case property in the malkhana had already taken place prior to the .
regular SHO returning to join his duty. Hence, we do not find any infraction of the said provisions of the [ACT].
14. In our considered view, also there is no infraction of provisions of [SECTION] of the [ACT].
From the conjoint reading of the testimonies of [ENTITY] (PW.7) and [ENTITY] (PW.11), it is apparent that r special report (Ex.PW.11/A) was immediately sent to the appropriate authorities. Much emphasis is laid on the fact that SI [ENTITY] (PW.9) does not state that special report was sent by him, but then how does it make any difference, for ASI [ENTITY] (PW.13) has testified to such effect. Yes, said witness does admit that there is overwriting and correction in the record with regard to the special report, but then, this in our considered view, does not render the prosecution case to be fatal. The doubt is not such so as to shake the genesis of the prosecution story to be true. In view of the clear testimony of PW.7 that she took the report and handed it over to Dy.S.P., Rohru on 10.02.2015.
15. From the conjoint reading of testimonies of [ENTITY] (PW.1), [ENTITY] (PW.2), [ENTITY] (PW.3) and ASI [ENTITY] (PW.13), it cannot be said that .
prosecution story is either shrouded with suspicion or that contradictions in the testimonies of the witnesses, in any manner, have rendered the creditworthiness of the witnesses to be doubtful.
16. ASI [ENTITY] (PW.13) categorically states that on 08.02.2015, he alongwith police officials [ENTITY] (PW.2) and [ENTITY] (PW.3) was travelling towards Kharapathar on routine patrolling duty. At about 12.15 pm, when they reached at a place known as Salwakara, they stopped a vehicle near the grocery shop of [ENTITY]. At that time they noticed accused travelling in a vehicle bearing registration No.CH-03D-7692. Since the vehicle was from outside the State, on suspicion, the driver was asked to produce the documents. At that time, both the driver and the occupant appeared to be frightened. In the meanwhile, both independent witness [ENTITY] (PW.1) and [ENTITY] appeared on the spot. Both the papers and the vehicle were checked in their presence.
17. From the bag concealed under the front seat of the vehicle on which accused [ENTITY] was sitting, contraband substance was recovered. The recovered .
stuff was weighed with the scales brought from the shop of [ENTITY] and found to be 1 kg. 100 grams.
The recovered stuff was packed and sealed with five seals of seal having impression 'H' in the presence of the witnesses. The sample seal was handed over to [ENTITY] after samples of the seal were taken on separate pieces of cloth (Ex.PW.1/A). NCB form (Ex.PW.13/A) was filled up in triplicate. [ENTITY] (Ex.PW.3/A) was prepared and sent to the Police Station through [ENTITY] (PW.3).
Proceedings of recovery were photographed (Ex.PW.4/A1 to Ex.PW.4/A6). Thereafter, both the accused were searched and [ENTITY] (Ex.PW.1/C & Ex.PW.1/D) prepared. Accused were arrested and with the completion of proceedings on the spot, contraband substance was deposited with M[ENTITY] (PW.10).
Special report (Ex.PW.11/A) was sent to SDPO Rohru through [ENTITY] (PW.7). The witness has explained that driver of the vehicle in which police party was travelling has since expired. He has testified about the recovered stuff (Ex.P-5), carry bag (Ex.P-3), plastic bag (Ex.P-4). FSL report (Ex.PW.13/H) also stands exhibited by him.
18. Witness was cross-examined at length by both the accused, who were represented by the same learned counsel. We notice that presence of the accused on the spot, travelling in the vehicle in question, remains undisputed. Much emphasis is laid on false preparation of the documents, indicating false implication of the accused and the alleged recovery not having taken place in the presence of the independent witnesses.
19. Significantly, it has not come on record that anyone of the police officials were harbouring animosity against the accused, but then we may not be misunderstood to mean that accused has to prove his innocence, for it is a settled principle of law that prosecution has to stand on its own legs and in a case of such like nature, onus to prove is stricter and heavily, which undisputedly lies upon the prosecution. Statutory presumption would arise only with the prosecution establishing occurrence of crime.
20. When we peruse the cross-examination part of the testimonies of the witnesses, we notice that the credit of the witnesses remains un-impeached. Version .
of the witnesses with regard to: (a) presence of the police officials on the spot; (b) presence of the accused on the spot; (c) presence of the independent witnesses on the spot; and (d) recovery of the contraband substance from the conscious possession of the accused, stands duly corroborated by independent witness [ENTITY] (PW.1), [ENTITY] (PW.2) and [ENTITY] (PW.3) police officials, who in one voice have independently testified with regard to the events which took place on the spot, which we have discussed supra.
21. Contradictions as pointed out, in our considered view are absolutely minor. They are not material rendering the genesis of the prosecution case to be doubtful, much less false. Whether shop of [ENTITY] (PW.1) was at a distance of 100 meters as pointed out by [ENTITY] (PW.3) or 200-300 meters as pointed out by [ENTITY] (PW.2) or 60-70 meters as pointed out by [ENTITY] pales into insignificance, for what stands conclusively established is the factum of [ENTITY] having his shop in close proximity to the place of occurrence of the incident.
22. It is also argued that there are contradictions .
rendering the presence of another independent witness [ENTITY] to be present on the spot. Whether he came of his own or he was called by the police officials, in our considered view, is not a contradiction material enough, rendering the genesis of the prosecution case to be doubtful, for after all there is time gap between the date of occurrence of the incident and the recording of their statements in Court.
23. We also notice that the Trial Court has sufficiently dealt with the contradictions in paragraphs 32 and 33 of the judgment.
24. From the testimonies of spot witnesses, official witnesses as also independent witnesses, to our mind, it stands conclusively established that the prosecution has been able to establish its case, beyond reasonable doubt, that the contraband substance was in effect was recovered from the conscious possession of the accused. It is in this backdrop, statutory presumption would lie against the accused.
25. We also otherwise find the prosecution case to have been corroborated by other independent witnesses.
Contraband substance came to be deposited with MHC .
[ENTITY] (PW.10), who has testified that till and so long the property remained with him, the same was not tampered with. It was sealed and the seals were kept intact. He handed over the same to [ENTITY] (PW.5) for being deposited with the Forensic Science Laboratory, Junga. Such version also stands fortified by the latter. r
26. Not only that, report of the expert of the Forensic Science Laboratory (Ex.PW.13/H) establishes that the case property was received in a proper and sealed manner and that the contraband substance analyzed was found to be charas. The case property was brought back from the Laboratory alongwith the certificate by [ENTITY] (PW.12), who has also testified about the same.
27. We may also observe that accused do not dispute the factum of the vehicle with the registration of another State taken into possession by the police. Now these persons have not explained their presence on the spot.
28. The ocular version as also the documentary .
evidence clearly establishes complicity of the convict in the alleged crime. The testimonies of prosecution witnesses are totally reliable and their depositions believable. There are no major contradictions rendering their version to be unbelievable.
29. From the material placed on record, it stands clearly established by the prosecution witnesses, beyond reasonable doubt, that the convicts are guilty of having committed the offences charged for. There is sufficient, clear, convincing, cogent and reliable piece of evidence on record to this effect. The circumstances stand conclusively proved by unbroken chain of unimpeachable testimony of the prosecution witnesses. The guilt of the convicts stands proved beyond reasonable doubt to the hilt. It cannot be said that convicts are innocent or not guilty or that they have been falsely implicated or that their defence is probable or that the evidence led by the prosecution is inconsistent, unreliable, untrustworthy and unbelievable. It cannot be said that the version narrated by the witnesses in Court is in a parrot-like manner and hence is to be disbelieved.
30. Thus, from the material placed on record, it .
stands established by the prosecution, beyond reasonable doubt, by leading clear, cogent, convincing and reliable piece of evidence, that convicts were found in conscious and exclusive possession of 1 kg 100 grams of charas.
31. For all the aforesaid reasons, we find no reason to interfere with the judgment passed by the trial Court. The Court has fully appreciated the evidence placed on record by the parties. There is no illegality, irregularity, perversity in correct and complete appreciation of the material so placed on record by the parties. Findings cannot be said to be erroneous in any manner. Hence, the appeals are dismissed.
Records of the Court below be immediately sent back.
([ENTITY]), Acting Chief Justice ([ENTITY]), March 6, 2018 Judge. (Purohit)